Reporting threats of violence by a disgruntled employee to the police

Reporting threats of violence by a disgruntled employee to the police
Aviles v Cornell Forge Co., CA7, 241 F.3d 589

Violence at the work site is a growing concern to both employers and employees.

The Aviles case involves an employer's fear of such violence after it learned that a disgruntled employee, Alfredo Aviles, had threatened a supervisor and was seen standing outside the building. The police were called and arrested Aviles. Aviles then sued the employer, Cornell Forge Co., for alleged unlawful discrimination based on his national origin and claimed that the Cornell had called the police in retaliation for his filing a hostile work environment claim.

These were the essential elements alleged in the Aviles case.

Aviles contended that he was the victim of unlawful discrimination because "calling the police to report that a disgruntled employee is waiting outside the workplace and may be armed is an adverse action as a matter of law."

The U.S. Circuit Court of Appeals disagreed with Aviles' theory, ruling that a truthful, nondiscriminatory report to the police should not subject an employer to Title VII liability.

According to the decision, such theory is "ill-advised." If, said the court, an employer had to face potential Title VII liability for truthfully reporting to the police that a disgruntled employee had threatened a supervisor and could be armed, it probably would discourage employers from taking the most prudent action to protect themselves and others in the workplace.

In contrast, the court said that a false report to the police could be construed as a retaliatory action meant to dissuade Aviles from pursuing his EEOC charge against the company.

The court affirmed the district court's granting a directed verdict in favor of Cornell Forge.

Proof of the alleged "crime" must be in the record of the disciplinary hearing to satisfy the "exception" to the §75 "18 month statute of limitation"

Proof of the alleged "crime" must be in the record of the disciplinary hearing to satisfy the "exception" to the §75 "18 month statute of limitation"
Matter of Guynup v County of Clinton, 2010 NY Slip Op 04914, decided on June 10, 2010, Appellate Division, Third Department

Terry Guynup, a lieutenant with 14 years of service with the Clinton County Sheriff's Department, was served with disciplinary charges alleging misconduct, incompetence and insubordination pursuant to Civil Service Law §75.

One of the specifications filed against Guynup alleged that he had directed threats towards the Sheriff, David Favro.

The §75 hearing officer found Guynup guilty of all but two of the specifications set out in the charges.

In addition to dismissing a charge that alleged that Guynup had made derogatory public comments about the Sheriff's Department because no evidence was presented at the hearing to support this charge, the Hearing Officer dismissed the charge concerning the threat that Guynup was alleged to have directed at Sheriff Favro because, “if made, it occurred more than 18 months before the disciplinary charges were filed and, as a result, was untimely.*

The Hearing Officer recommended that Guynup be required to participate in an employee assistance program and be suspended without pay for 30 days.

When Sheriff Favro received the Hearing Officer’s findings and recommendations, he disqualified himself from any further participation in the proceeding and designated Michael E. Zurlo, the Clinton County Administrator, to review the report, determine if its findings were supported by substantial evidence and decide what penalty, if any, should be imposed upon Guynup.

Zurlo adopted the Hearing Officer's findings that Guynup was guilty of misconduct, insubordination and incompetence, but, among other things, determined that the specification dismissed by the Hearing Officer as untimely was, in fact, timely as it constituted criminal and, therefor, the statutory time period within which the disciplinary action concerning this allegation had to be commenced did not apply.

Zurlo rejected the Hearing Officer's recommendation regarding the penalty to be imposed and, instead, directed that Guynup should be terminated from his position with the Sheriff's Department.

Guynup filed an Article 78 petition challenging [1] “the legality of Zurlo's appointment by Favro,” and [2] Zurlo’s determination that the charge alleging the threat to Favro was timely.

As to Guynup’s objection to the Sheriff designating Zurlo to review the Hearing Officer’s findings and recommendations and to make a final determination, the Appellate Division, citing Gomex v Stout, 13 NY3d 182, said that “where a civil service proceeding has been commenced and a conflict exists that implicates the appointing authority's ability to be fair and impartial, a third party with ‘supervisory authority over that particular employee’ may be designated to review a Hearing Officer's report and, upon such a review, make determinations concerning the employee's status.”

Noting that “the conflict for Favro was self-evident and required that he disqualify himself from conducting the necessary review of the findings and recommendations made by the Hearing Officer,” the Appellate Division also found that the only others having “command authority” over Guynup were disqualified because of they were both witnesses who testified at the disciplinary hearing.

The court said that “Favro not only had the authority to deputize Zurlo, the County Administrator, and make him a member of the Sheriff's Department, but also had the right to delegate to him the authority to conduct this review.”

Turning to the Hearing Officer’s ruling that the charge alleging that Guynup threatened Favro was untimely and should have been dismissed, the Appellate Division said that it agreed with the Hearing Officer’s determination that the §75(4) 18-month statute of limitations for bringing such charges controlled.

First, said the court, Civil Service Law §75(4) requires that a removal or disciplinary proceeding be commenced within 18 months after the acts that form the basis of the charges have occurred, unless the conduct in question involves the commission of a crime.

The County's theory: Guynup actions constituted committing the crimes of menacing in the third degree and reckless endangerment in the second degree, thereby rendering the 18-month time limit within which such a charge could be brought inapplicable to this proceeding. The Appellate Division disagreed and sustained the Hearing Officer's ruling.

To have committed the crime of reckless endangerment, said the court, evidence must be presented that Guynup "recklessly engage[d] in conduct which create[d] a substantial risk of serious physical injury to another person" within the meaning of Penal Law §120.20. As Guynup denied the events underlying the allegation, the Appellate Division ruled that “Absent some evidence to the contrary, and none was presented at the hearing, the crime of reckless endangerment on these facts could not have been committed.”

As a result, said the court, "even if the testimony regarding the threats and ensuing struggle are fully accepted, the crimes of reckless endangerment and menacing were not committed by Guynup and the statutory exception to the 18-month rule does not apply” and the charge alleging that he had threatened Favro must be dismissed as untimely.

Finding that Zurlo “never specified the penalty to be imposed for each charge for which he found [Guynup] guilty,” and that the principal charge filed against him — the threat to Sheriff Favro — has been dismissed, the Appellate Division remitted the matter “for a redetermination of the penalty to be imposed on those charges of which [Guynup] now stands guilty.”

* §75.4. provides that “Notwithstanding any other provision of law, no removal or disciplinary proceeding shall be commenced more than eighteen months after the occurrence of the alleged incompetency or misconduct complained of and described in the charges or, in the case of a state employee who is designated managerial or confidential under article fourteen of this chapter, more than one year after the occurrence of the alleged incompetency or misconduct complained of and described in the charges, provided, however, that such limitations shall not apply where the incompetency or misconduct complained of and described in the charges would, if proved in a court of appropriate jurisdiction, constitute a crime.”

N.B. §75.4 sets different statutes of limitations for state employees designated managerial or confidential pursuant to Article 14 of the Civil Service Law than it does for other individuals. Although a number of collective bargaining agreements provide for a shorter “statutes of limitations” for filing disciplinary charges against an individual in a collective bargaining unit, it is unlikely that setting a greater statute of limitations for employees in a collective bargaining unit would survive judicial review for the reason set out by the Appellate Division in City of Plattsburgh v Local 788, 108 AD2d 1045 -- a collective bargaining agreement may not truncate or diminish a statutory right enjoyed by an employee.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04914.htm

Using personnel records in determining an appropriate disciplinary penalty

Using personnel records in determining an appropriate disciplinary penalty
Massaria v Betschen, 290 A.D.2d 602

In the Massaria case the Appellate Division was asked to determine if was appropriate for the Section 75 hearing officer to consider a disciplinary settlement agreement entered into by an employee and his or her employer to resolve an earlier disciplinary action involving the employee when determining the penalty to be imposed on the employee after he or she was found guilty of misconduct and incompetence in a second, subsequent, disciplinary action.

New Paltz Superintendent of Schools Frederick Betschen filed Section 75 disciplinary charges Kenneth Massaria alleging that he was guilty of misconduct and incompetence based on Massaria's failing to drop a third grade student off at the proper bus stop on two occasions and an incident, captured on videotape, in which Massaria drove his bus in the middle of the road as he approached waiting students at a bus stop.

The hearing officer found Massaria guilty of all of these charges and recommended that he be dismissed from his employment. The School Board adopted the hearing officer's findings and recommendation and terminated Massaria from his position. Massaria appealed, challenging the Board's action.

The Appellate Division dismissed Massaria's appeal, ruling that the testimony and evidence presented at the hearing supplied the substantial evidence required to affirm the school district's action.

One the major issues considered by the court involved the "penalty phase" of the disciplinary hearing. At this point in the proceeding the School District introduced Massaria's prior disciplinary record for the hearing officer's to consider in determining the appropriate penalty to be imposed on Massaria.

This record consisted of a "stipulation of settlement" in lieu of disciplinary charges. In executing this stipulation, Massaria admitted to four acts of misconduct and incompetence involving improperly operating his school bus and "his departing from a mandatory meeting without supervisory permission."

Massaria conceded that the stipulation also provided that it constituted Civil Service Law Section 75 discipline, that it could be used in any future disciplinary proceeding against him, and that if he engaged in similar misconduct in the future, the District would seek to dismiss him from his position.

Addressing the hearing officer's consideration of the stipulation documenting Massaria's prior admission of misconduct and incompetence during the "penalty phase" of the disciplinary action, the Appellate Division said that here the hearing officer's consideration of Massaria's employment record met the test set out in Bigelow v Board of Trustees of the Incorporated Village of Gouverneur, 63 NY2d 470. In particular, the court found that:

1. The hearing officer considered the stipulation only after Massaria was found guilty of the charges of misconduct and incompetence filed against him;

2. Massaria "was given ample notice" that the prior stipulated incidents would be submit­ted to the hearing officer to consider in determining the penalty to be imposed; and

3. Massaria was given an opportunity to be heard regarding those prior incidents.

Significantly, the Appellate Division said that the "prior infractions need not have been included in the statement of charges."Ruling that Massaria's employment history, including the settlement agreement flowing from the prior disciplinary action taken against him, "was properly taken into consideration in the determination of an appropriate sanction for the proven present acts of misconduct and incompetence," the Appellate Division dismissed Massaria's appeal.