Courts will strictly construe the terms of a disciplinary settlement agreement setting out the reason permitting the employee to be summarily terminated from his or her position

Courts will strictly construe the terms of a disciplinary settlement agreement setting out the reason permitting the employee to be summarily terminated from his or her position

2015 NY Slip Op 01181, Appellate Division, First Department 

Supreme Court denied an Article 78 petition filed by an individual [Plaintiff] seeking to annul the appointing authority’s decision to terminate his employment. The court held that the parties' disciplinary settlement agreement executed in 2012 served to waive Plaintiff's right to appeal or seek judicial review of his termination of employment “in all scenarios.”

The 2012 settlement agreement's introductory paragraph stated that the parties agreed to settle Plaintiff's violation of an earlier disciplinary settlement agreement that addressed Petitioner’s violation of the appointing authority’s policy concerning the "Sales of Goods and Services in Hospital." 2012 settlement agreement provided that should Plaintiff engage in misconduct that was the "same or similar to" that constituting the violation of the prior agreement, to be determined solely by the Director of Labor Relations or her designee, he would be terminated and could not appeal the penalty in any administrative or legal forum.*

The Appellate Division reversed the Supreme Court’s decision and remanded the matter “for further consideration” as the Supreme Court “never reached the merits of Plaintiff’s petition.”

The Appellate Division explained that courts should not "adopt an interpretation that renders a portion of the contract meaningless," citing Wallace v 600 Partners Co., 205 AD2d 202. In this instance, said the court, the appointing authority terminated Plaintiff for allegedly taking leave under color of the Family Medical Leave Act (29 USC §§ 2611 et seq.) without obtaining prior approval from his department or the Office of Labor Relations.

Such conduct is not the "same or similar to" the sale of goods in the hospital  and,  hence, the terms and conditions of set out in Paragraph 1 of the 2012 settlement agreement, including Plaintiff's waiver of judicial review, are inapplicable. The Appellate Division said that to hold otherwise “would be to render superfluous paragraph three, which speaks to the penalty for failing to adhere to policies and procedures generally, but does not include such additional restrictions.”

Further, noted the court, the employer “failed to follow” its own procedures and the terms of the settlement agreement by effectively precluding Plaintiff “from having an opportunity to explain why he should not be terminated.”

Similarly, Taylor v Cass, 122 A.D.2d 885, illustrates impact of a settlement agreement providing for a disciplinary probation award that provided that the appointing authority could summarily terminate the employee without any hearing if, in the opinion of his superior, "his job performance was adversely affected by his intoxication on the job during the next six months.”

Taylor was terminated during his disciplinary probationary period without a hearing for failing to give a fair day’s work and sleeping during scheduled working hours. However, there was no allegation that he had been intoxicated on the job as a reason for his dismissal as a disciplinary probation employee.

Taylor sued, challenging his dismissal and won reinstatement with back salary. The Appellate Division said that Taylor’s dismissal was improper because Taylor was not terminated for the sole reason specified in the settlement: intoxication on the job.

* Paragraph three of the agreement separately provided that Plaintiff agreed to adhere to departmental policies and procedures and would be terminated for his failure to do so, but provided no limitation on who would determine his guilt, nor did it waive any judicial review.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2015/2015_01181.htm

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Certification to teach in the position sought critical to teacher’s reinstatement from a preferred list following his or her layoff

Certification to teach in the position sought critical to teacher’s reinstatement from a preferred list following his or her layoff

2015 NY Slip Op 04492, Appellate Division, Second Department

A teacher [Teacher] certified to teach Spanish, was appointed as a foreign language teacher in the school district’s elementary school. Teacher taught Spanish and acquired tenure in that position.

The school board [Board] subsequently abolished the elementary school Spanish teacher position for economic reasons and Teacher’s name was placed on a "preferred eligible list" for appointment to any vacancy which may arise in a similar position within seven years from the date that her position was abolished as provided by Education Law §§2510[3][a]; 3013[3][a]).

In 2011, the Board of Education created a new a full-time position of "French/Spanish Teacher 7-12" and appointed an individual who was certified to teach both French and Spanish to fill that vacancy.

Teacher commenced a CPLR Article 78 in the nature of mandamus to compel the Board to appoint her to a position of part-time Spanish teacher. 

Teacher argued that the Board, in effect, had created "a teaching position that is [part-time] Spanish and [part-time] French," and that she was entitled pursuant to Education Law §§2510(3)(a) and 3013(3)(a) to be appointed to the purported part-time Spanish teacher position.

Supreme Court denied the petition and dismissed the proceeding on the merits and Teacher appealed.

The Appellate Division affirmed the Supreme Court’s action, explaining that "[CPLR] Article 78 relief in the form of mandamus to compel may be granted only where a petitioner establishes a clear legal right to the relief requested." In determining whether Teacher is entitled to re-employment pursuant to Education Law §§2510 or 3013 in this action, "the threshold question must be one of certification to teach in the position sought. Absent such certification, re-employment rights cannot attach."

Noting that Teacher did not challenge the propriety of the Board's decision to create a single full-time position encompassing instruction of both French and Spanish, the Appellate Division ruled the her “claim must fail because, as [Teacher] conceded, she lacks the dual certification necessary for [appointment to] the full-time position.”

Thus, held the Appellate Division, as Teacher “failed to demonstrate a clear legal right to the relief sought,” the Supreme Court properly denied the petition and dismissed the proceeding on the merits.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04492.htm

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Civil Service Commission overturns agency’s disqualification of applicant for examination

Civil Service Commission overturns agency’s disqualification of applicant for examination

Matter of City of New York v New York City Civ. Serv. Commn., 2015 NY Slip Op 03036

The New York City Civil Service Commission, after a hearing, reversed a determination by the City’s Department of Citywide Administrative Services that an applicant for the examination for “Principal Administrative Associate” did not meet the minimum qualifications for admission to the examination.

The Appellate Division, sustaining the Commission’s determination, found that the Commission's decision was supported by substantial evidence. The court said that the evidence presented by the applicant for the examination at the hearing before the Commission demonstrated that she possessed the requisite supervisory and/or administrative experience to qualify for admission to the examination for appointment to the position.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03036.htm