Termination of employment following extened absence without approval

Termination of employment following extended absence without approval  

Dep’t of Homeless Services v. Anonymous,OATH Index No. 1653/17

An agency employee [Anonymous*] who had worked in the New York City Borough of Manhattan was charged with being Absent Without Leave [AWOL] when she did not report to an assigned new workplace in another borough of New York City for over 13 months and failed to respond to notices regarding this absence.

Anonymous claimed that she was afraid to report to the new workplace because she had personally handled disciplinary action involving employees at that location. A psychologist who testified on Anonymous’ behalf opined that Anonymous suffered from depression and anxiety related to her reassignment to the new location.

The employer’s psychiatrist, on the other hand, testified that Anonymous  did not exhibit signs of severe anxiety or depression.

Office of Administrative Trials and Hearing Administrative Law Judge Astrid B. Gloade found this conflicting medical evaluations were of limited value as they were completed after the AWOL period.

Further, ALJ Gloade was not persuaded that Anonymous’ mental health prevented her from responding to department notices or reporting to work for over 13 months. Nor did the ALJ credit Anonymous’ contention that the relocation threatened her safety, as Anonymous' supervisors confirmed that security measures, including security guards, department police officers and "panic buttons" were in place.

Judge Gloade recommended that Anonymous be terminated from her position as a result of Anonymous' long, unexplained absence from her assigned duty station.

An appointing authority's may attempt to remove a tenured employee from his or her position for "absence" it deemed to be an abandonment of the position. In Ciccarelli v West Seneca Central School District, 107 AD2d 105, a teacher successfully challenged a Board of Education’s resolution [1]  holding that the educator had abandoned her position and [2] terminating her from her tenured employment. 

The Appellate Division held that the burden of proving that an educator had abandoned his or her tenured teaching position was upon the District. This, said the court, must be established "by clear and convincing evidence" that a teacher, by a "voluntary and deliberate act," intended to relinquish [the] teaching position and forfeit [his or her] tenure rights. Otherwise, ruled the Appellate Division, a tenured teacher may be terminated only in accordance with the provisions set out §3020-a of the Education Law.

In a similar situation involving an employee in the classified service [educators are in the unclassified service] a former rule of the New York State Civil Service Commission [4 NYCRR 5.3(d)] providing that a State employee absent for a period of ten or more days without an explanation would be deemed to have resigned from his or her position was held to violate the employee's right to administrative due process [Bernstein v Industrial Commissioner, 59 AD2d 678]. This type of provision, however, has survived in a number of  collective bargaining agreement [see New York State Off. of Mental Health v New York State Div. of Human Rights, 53 A.D.3d 887].

* Pursuant to OATH Rule of Practice section 1-49(d), respondent had requested that "Anonymous" be used in reporting this decision.

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Administrative due process must be provided the accused employee in a disciplinary arbitration proceeding

Administrative due process must be provided the accused employee in a disciplinary arbitration proceeding

2017 NY Slip Op 03853, Appellate Division, First Department

Petitioner, a tenured educator, initiated a CPLR Article 75 action seeking a court order vacating an arbitration award in which Petitioner was found guilty of multiple disciplinary charges and was terminated.

The Appellate Division sustained the arbitration award, noting that the following administrative due process requirements were satisfied:

1. Petitioner's right to administrative due process was not violated as Petitioner [a] was provided with appropriate notice, [b] was represented by counsel at a 13-day hearing and [c] had the opportunity to present evidence and cross-examine witnesses;

2. The hearing officer issued a detailed decision in which she [a] thoroughly analyzed the facts, [b] evaluated the credibility of witnesses and evidence presented and [c] arrived at a reasoned conclusion; and

3. Petitioner's claim that the arbitrator was bias was speculative and unsupported by the evidence.

As to the penalty imposed by the arbitrator, dismissal from the position, the Appellate Division opined that considering "Petitioner's teaching deficiencies over the course of three years, the absence of any improvement despite assistance offered by the appointing authority," and Petitioner's "refusal to acknowledge her shortcomings," imposing the penalty of termination "does not shock the court's sense of fairness," citing the so-called Pell standard [Pell v Board of Education,  34 NY2d 222.

Click here to Read a FREE excerpt from The Discipline Book concerning the due process rights of public employees in New York State.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_03853.htm

Failure to comply with contractual grievance procedures may not always serve as a basis a for a court's issuing a stay of arbitration where such issues are to be resolved by the arbitrator

Failure to comply with contractual grievance procedures may not always serve as a basis a for a court's issuing a stay of arbitration where such issues are to be resolved by the arbitrator

Matter of Arbitration Between Town of Greece and Civil Service Employees Association, Inc., Local 828, AFSCME, AFL-CIO, 2017 NY Slip Op 06785, Appellate Division, Fourth Department

The Town of Greece [Greece] initiated a CPLR Article 75 action seeking a permanent stay of the arbitration of a grievance arising from its termination of one of the Civil Service Employees Association, Inc., Local 828 [Local 828] members. Supreme Court denied Greece's application for a permanent stay of arbitration and directed it to hold a hearing pursuant to step two of the three-step grievance procedure set out in the collective bargaining agreement [CBA] between the parties "within 30 days."

Greece appealed and although the Appellate Division affirmed the Supreme Court's denial of the permanent stay of arbitration sought by Greece, it vacated that part of the Supreme Court's order that directed Greece "to hold a step two hearing."

The Appellate Division explained that Supreme Court erred in directing Greece to hold a step two hearing. Contrary to the court's determination, the Appellate Division said that "a step two hearing is not a condition precedent to arbitration under the terms of the CBA."

As the CBA contained "a broad arbitration clause and does not expressly identify any conditions precedent to arbitration," the Appellate Division said that any alleged failure of a party to comply strictly with the contractual grievance procedures or time limits is not a proper ground for a stay of arbitration because such issues are to be resolved by the arbitrator.

With respect to CBA between Greece and Local 828,  Appellate Division held that  "... as a step two hearing is a permissive and not a mandatory part of the CBA's grievance and arbitration procedure, strict compliance with each step in the procedure is not a condition precedent to arbitration."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06785.htm