Absent consideration of a disciplinary hearing officer's report or other factual findings, an appointing authority has no basis to make a disciplinary determination

The Plaintiff in this CPLR Article 78 proceeding was served with disciplinary charges pursuant to §75(2) of the Civil Service Law alleging he "caused himself to receive unauthorized overtime compensation and an unauthorized increase in salary for a pay period."   

Although a §75 disciplinary hearing was conducted before a duly designated hearing officer, the hearing officer failed to issue a report of findings or make a recommendation with respect the disposition of the disciplinary charges filed against Plaintiff by the appointing authority. Notwithstanding this defect in the disciplinary procedure,* the appointing authority terminated Plaintiff's employment effective December 31, 2019.

In response to Plaintiff's challenge to the appointing authority's action, Supreme Court concluded that the Board's determination was not arbitrary and transferred the matter to the Appellate Division.**

The Appellate, noting that it is undisputed that "the hearing officer did not issue a report with findings or recommendations" before the appointing authority made its determination to terminate Plaintiff 's employment, concluded that any action taken by the appointing authority was "unavoidably ... arbitrary", citing Matter of Wiggins v Board of Educ. of City of N.Y., 60 NY2d 385.

Accordingly, the Appellate Division held that "under the circumstances, the [Petitioner] is entitled to be reinstated to his position and to back pay and benefits, even if the proceedings against him eventually lead to the termination of his employment."

The court granted the Plaintiff's Article 78 petition, annulled the determination of the appointing authority, reinstate the Plaintiff to his former position, with full back pay and benefits, and "remitted the matter to the [appointing authority] for a new hearing and a new determination with respect to the charges."

* §75.2 of the Civil Service Law, in pertinent part, provides "In case a deputy or other person is so designated, he shall, for the purpose of such hearing, be vested with all the powers of such officer or body and shall make a record of such hearing which shall, with his recommendations, be referred to such officer or body for review and decision." 

 ** See CPLR §7804(g).

Click HERE to access the Appellate Division's decision posted on the Internet.

 

Employee terminated after failing to provide a urine sample for a drug test

The New York City Transit Authority [Respondent] terminated Plaintiff's employment as a bus operator because he failed to provide a urine sample for a drug test. The Plaintiff commenced a proceeding pursuant to CPLR Article 75 in an effort to vacate an arbitration award sustaining the Respondent's terminating Plaintiff's employment. The Supreme Court denied the petition, dismissed the proceeding and Plaintiff appealed.

The Appellate Division's decision noted:

1. The courts have limited power when reviewing an arbitration award, indicated an arbitrator "exceed[s] his [or her] power [within the meaning of the statute] where the ... award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power", citing Matter of New York City Tr. Auth. v Transport Workers' Union of Am., Local 100 AFL-CIO, 6 NY3d 332*;

2. "Even where an arbitrator has made an error of law or fact, courts generally may not disturb the arbitrator's decision", citing Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530; and

3. "A party seeking to overturn an arbitration award bears a heavy burden and must establish a ground for vacatur by clear and convincing evidence."

Observing that Plaintiff failed to establish by clear and convincing evidence that the arbitration award should be vacated, the Appellate Division opined that although the Plaintiff contended on appeal that the arbitration award was irrational, the arbitration award was supported by evidence in the record, and, thus, was not irrational.

The Appellate Division's conclusion: Supreme Court properly denied and dismissed Plaintiff's CPLR Article 75 petition.

* See, also, Matter of Kowaleski [New York State Dept. of Correctional Servs.], 16 NY3d 85.

Click HERE to access the Appellate Division decision posted on the Internet.

 

Justia lists Employment Law blawgs

Justia's top 14 of its 225 Employment Law blogs as of May 14, 2023, sorted by popularity, are listed below.

In addition, Justia currently lists 3,558 Blawgs in 73 subcategories of practice areas. Click on the URL shown below to access its complete list of practice areas.

 https://blawgsearch.justia.com/blogs

 

Employment Law Blogs

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