Terminated probationary employee has the burden of demonstrating an improper basis for his or her termination

Terminated probationary employee has the burden of demonstrating an improper basis for his or her termination

Francois v Walcott, 2016 NY Slip Op 00760, Appellate Division, First Department

The Appellate Division unanimously affirmed a determination by Supreme Court, New which denied the petition filed by Coquita Francois seeking to annul her termination during her probationary employee, to vacate her unsatisfactory rating for the 2012-2013 school year, and to reinstate her employment.

The Appellate Division explained that “[i]t is well established that a ‘probationary employee may be discharged for any or no reason at all in the absence of a showing that [the] dismissal was in bad faith, for a constitutionally impermissible purpose or in violation of law.’”

Francois, said the Appellate Division, failed to demonstrate an improper basis for the termination of her probationary employment. In contrast, the employer’s documentary evidence provided a rational basis for the determination that Francois’ job performance was unsatisfactory.

Although Francois disputed the principal's account of events and the principal's opinion of her job performance, the Appellate Division said that she “failed to show that certain irregularities in the review process demonstrated bad faith or deprived her of a substantial right” and dismissed her appeal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00760.htm

Factual findings made in a disciplinary hearing have a collateral estoppel effect where the individual had a full and fair opportunity to litigate the alleged misconduct at that hearing

Factual findings made in a disciplinary hearing have a collateral estoppel effect where the individual had a full and fair opportunity to litigate the alleged misconduct at that hearing

Matter of Hopton (Commissioner of Labor), 2016 NY Slip Op 00743, Appellate Division, Third Department

Nina Hopton, a correction officer, was served with disciplinary charges alleging that she had violated her employer's rules [1] by having an improper personal relationship with an inmate and [2] by giving false statements to investigators regarding that relationship.

Following a disciplinary hearing held in accordance with Civil Service Law §75, an Administrative Law Judge found there was evidence sufficient to support the bulk of the charges filed against Hopton and recommended that she be dismissed from her position. The appointing authority accepted the findings and recommendations of the Administrative Law Judge and terminated Hopton employment.

Hopton applied for unemployment insurance benefits but the Unemployment Insurance Appeal Board [Board] denied her claim on the ground that she lost her employment due to misconduct. Hopton appealed the Board’s ruling.

The Appellate Division sustained the Board’s decision, explaining that the Board “properly gave collateral estoppel effect to the factual findings stemming from the disciplinary hearing inasmuch as the record establishes that [Hopton] had a full and fair opportunity to litigate the issue of misconduct at that hearing."

Although Hopton contended that she was appealing the disciplinary determination, the Appellate Division said that such an appeal “does not preclude the application of collateral estoppel.” In any event, said the court, the Board “drew its own conclusions that [Hopton’s] behavior, which involved violations of known policies of the employer and were detrimental to the employer's best interest, constituted disqualifying misconduct for the purpose of [eligibility for] unemployment insurance benefits."

Finding that substantial evidence supported the Board's decision, the Appellate Division said “it will not be disturbed.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00743.htm

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New York City service contractor held liable for wages, benefits, interest and the payment of a civil penalty for its failure to pay employees prevailing wages and benefits

New York City service contractor held liable for wages, benefits, interest and the payment of a civil penalty for its failure to pay employees prevailing wages and benefits

Office of the City Comptroller v Paramount Security Group, Inc., OATH Index No. 2553/15

Paramount Security Group, Inc., a services contractor admitted to failing to pay prevailing wages and benefits of $1.8 million to 28 security employees working at the Health and Hospitals Corporation (HHC) offices.

It was undisputed that Paramount failed to pay prevailing wages to its security employees from December 2010 to March 2013. Paramount, however alleged that the entire blame for this violation was on HHC, which Paramount insisted prevented compliance with the prevailing wage law by refusing to approve increased wages.

OATH Administrative Law Judge John B. Spooner found that “the notion that Paramount knowingly violated the terms of its contract based upon verbal directions of HHC personnel, without protesting or seeking approval from a higher authority, was highly improbable” as the contract between Paramount and HHC provided, in pertinent part, that during the term of this agreement, “the contractor shall be responsible for paying the prevailing wage rate in New York City to all of its security guards.” The contract also provided that HHC was “not responsible for any type of payroll increase . . . . [e]xcluding prevailing wage requirements” [emphasis supplied].

The ALJ held that the evidence supports a finding that Paramount’s violations of Labor Law §230 were willful was liable for the wages, benefits due the employees, plus interest and a civil penalty. As to interest, Judge Spooner held that the Comptroller was entitled to  maximum interest, at the annual rate of 16%, from the date the wages and benefits were payable and in addition, Paramount should be assessed a civil penalty of 25% of the total violation.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-2553.pdf