Employer’s failure to provide disciplinary hearing to a temporary employee after having initiated disciplinary action an abuse of discretion

Employer’s failure to provide disciplinary hearing to a temporary employee after having initiated disciplinary action an abuse of discretion
Matter of Kaefer v New York State Off. of Parks Recreation & Historical Preserv., 2010 NY Slip Op 51503(U), Decided on July 16, 2010, Supreme Court, Nassau County, Judge Ute Wolff Lally, [Not selected for publication in the Official Reports]

Robert Kaefer had been employed as a “seasonal temporary” lifeguard for 18 years* by Jones Beach State Park [Parks].

Returning from an absence following surgery performed by a Dr. Halpern, Kaefer was told that he needed a doctor's note before returning to work. As Dr. Halpern was unavailable, Kaefer handed in a false doctor's note allegedly written by a Dr. Persaud, which he had obtained with the help of another lifeguard, James Green.** Subsequently Kaefer obtained an appropriate doctor’s note from Dr. Halpern.

Dr. Persaud's note, however, had raised some suspicion and Kaefer was told to provide evidence verifying its accuracy. Kaefer, in response, submitted “another bogus note from Dr. Persaud.”

Parks allowed Kaefer to continue serving as a lifeguard for the rest of the swim season.***

Thereafter Susan Guliani, Director of Jones Beach State Park, notified Kaefer to appear for a Step 1 disciplinary hearing concerning the first bogus note -- the first formal step in the process taking disciplinary action against a lifeguard. The hearing, however, was adjourned to but prior to the rescheduled date Kaefer received a letter advising him that the step 1 hearing "has been postponed and will be rescheduled at a future date to be determined".

No notification of a rescheduled or cancelled Step 1 hearing was ever sent to Kaefer.

Ultimately Kaefer was refused reemployment as a lifeguard and he filed an Article 78 petition seeking a court order setting aside Parks decision banning from serving as a lifeguard, contending that the decision was arbitrary and capricious because:

1. Parks failed to adhere to its own policies and procedures; and

2. Parks imposed a different penalty than it has applied its prior determinations on essentially the same alleged acts of misconduct by barring him from employment as a life guard.

Judge Lally rejected Parks’ argument that Kaefer’s petition should be dismissed because he had “failed to exhaust his administrative remedies because he did not inquire into and/or request to have the Step 1 hearing rescheduled," holding that the duty of providing for the rescheduling and notifying Kaefer of such a hearing was Parks'.

In contrast, Judge Lally ruled that Kaefer had the burden of proving that his punishment — a lifetime bar from employment as a lifeguard -- was so disparate from the treatment accorded to similarly situated lifeguards, that it was arbitrary and capricious.

In this regard, said the court, Kaefer failed to meet his burden as, except for James Green, Kaefer was unable to point to any lifeguard who was found guilty of submitting a bogus doctor's note. Further, Judge Lally said that he would not substitute his judgment for that of Parks, finding that there was no abuse of discretion as a matter of law in Parks’ treatment of Kaefer compared to its treatment of other lifeguards convicted of crimes.

As to Parks’ argument that it had merely exercised its discretion to terminate a “seasonal temporary” lifeguard pursuant to its authority to do so "for any reason without prior notice," Judge Lally ruled that it could not now rely on such discretion to excuse its failure to follow through with the disciplinary procedure it earlier initiated. In the words of the court, “Having invoked its authority [to discipline Parks] was obliged to comply with it. [Parks] scheduled, rescheduled and then canceling the rescheduled hearing with a promise to provide a new date."

In effect, "once initiated, [Parks] was required to complete the disciplinary process in accordance with the provisions set out in the collective bargaining agreement and by failing to do so it violated its own policies and procedures, which deprived Kaefer of any opportunity to explain his action and/or to plead his case."

In determining the appropriate redress to be given Kaefer to cure Parks’ “abuse of discretion in violating its policies and procedures,” Judge Lally said that he must consider the particular circumstances of Kaefer’s employment.

The court explained that although hired for numerous seasons, Kaefer consistently had been an employee for a fixed term for each season and he had no right to be rehired. However, in barring Kaefer from “taking the new hire test without having afforded him a Step 1 hearing,” Parks had, essentially, made a disciplinary decision without giving Kaefer the benefit of such a hearing.

Accordingly, Judge Lally directed Parks “to provide to [Kaefer] the hearings he is entitled to” and to permit him to take “the new hire test unless and until a determination after the appropriate hearings ban him from such service for life.”

Significantly, the court, noting that Parks had “wrongfully prohibited” Kaefer from taking the new hire tests, commented that “there is no certitude that [Kaefer] would have passed same or that an opening existed.” Accordingly, Judge Lally declined to award Kaefer “lost wages.”

In contrast, however, as the prevailing party, the court said that Kaefer was entitled to attorney fees pursuant to the New York State Equal Access to Justice Act (CPLR §8601).

* "Seasonal Appointment Letters" sent to Kaefer stated that "You should understand, however, that your employment relationship with the Office of Parks, Recreation & Historic Preservation is only temporary. It may be terminated at any time, either by you or by the agency, for any reason and without prior notice...."

** James Green, Kaefer's co-conspirator in obtaining the bogus doctor's notes, had agreed as part of a plea bargain to a lifetime ban of employment as a lifeguard at Parks.

*** Subsequently Kaefer was charged by the Nassau County District Attorney with a felony and plead guilty to a Class A misdemeanor, submitting a false instrument for filing.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51503.htm

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Employee terminated after refusing to accept reassignment to another location

Employee terminated after refusing to accept reassignment to another location
Dippell v Hammons, 246 A.D.2d 450

Dagmar Dippell, an attorney employed by the New York City Human Resources Administration, refused to report to her new assignment in Queens. This resulted in Dippell’s demotion following a disciplinary hearing.

When she continued to refuse to report to the new location, a second hearing was conducted and she was terminated. Dippell appealed, contending that the determinations by the two Administrative Law Judges [ALJs] were not supported by substantial evidence.

Commenting on the hearings that preceded Dippell’s dismissal, the Appellate Division cited the “obey now, grieve later” principle. The Court said that the first ALJ had ample grounds to conclude that Dippell had no basis for disregarding that principle. Although Dippell’s physician had recommended a “non-stressful job” for her, that, standing alone, “was inadequate to establish that the reassignment would be unduly debilitating to her health.”

The ALJ found that Dippell’s testimony lacked credibility and that she came across as “stubborn and misguided.” According to the decision, the ALJ credited the testimony of a department witness that Dippell was reassigned because of her failure to return from a Florida vacation on time and her “longstanding poor relationship with her immediate supervisor.”

The second proceeding was held before a different ALJ. The Appellate Division noted that Dippell failed to appear at that hearing. The Appellate Division said that the second ALJ “properly concluded” that dismissal was the only appropriate penalty, because Dippell had previously been demoted for similar misconduct.

Participating in an arbitration may bar extrication from the process

Participating in an arbitration may bar extrication from the process
Suffolk County v Faculty Asso. of SCCC, App. Div., 247 A.D.2d 472

Suppose a party appears at a grievance arbitration but later decides that it didn’t have to. May it ask to have the arbitration award vacated?

This was the significant issue in the Suffolk County case. The Appellate Division indicated that once a party has appeared in an arbitration and a decision had been rendered, it may be too late for the party to extricate itself the process.

Suffolk County participated in a grievance arbitration proceeding involving the Faculty Association of Suffolk County Community College. The county challenged the arbitration and won a court order vacating the award made by the arbitrator after persuading a New York State Supreme Court justice that “there was no agreement to arbitrate the grievance in question” between the parties.

The Faculty Association appealed and the Appellate Division reversed the lower court’s ruling, reinstating the award. The Court said, “the absence of an agreement to arbitrate is not a basis upon which a party who participated in the arbitration may seek to have the resulting award vacated.”

The Court also rejected the County’s alternative argument, in which it contended that the arbitration award violated public policy, on a technical ground. Why? Because, said the Court, the County did not raise the “public policy” argument in its motion to vacate the arbitration award at the Supreme Court level. Accordingly, the County’s “public policy” theory was not properly before it on appeal.

Selected bills recently signed into law

Selected bills recently signed into law
Source: New York State Legislature

Chapter 423 of the Laws of 2010: Provides that employers who provide funeral leave for family members of deceased shall not deny such leave for same-sex committed partners of the deceased.

Chapter 426 of the Laws of 2010: Requires New York City school districts to notify parents of bedbug infestations.

Chapter 430 of the Laws of 2010: Relates to health insurance coverage for surviving spouses or domestic partners of members of the New York City Department of Correction.

Chapter 480 of the Laws of 2010: Relates to the residence of peace officers employed as fire protection inspectors, urban park rangers and traffic enforcement agents level IV by a city with a population over one million [i.e., the City of New York].

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State Comptroller’s report concludes that Office of Mental Health's “contracting out” for personnel and other services not adequately monitored

State Comptroller’s report concludes that Office of Mental Health's “contracting out” for personnel and other services not adequately monitored
Source: Office of the State Comptroller, Audit 2009-S-42

The State Comptroller’s auditors found that the Office of Mental Health (OMH) had 819 state-funded contracts for personal and miscellaneous services during a three-year audit period totaling $61.7 million.

The focus of the audit: Was OMH adequately justifying the need to initially contract out for such services and then periodically reassessing whether such contracts could be deferred, eliminated or reduced. The report indicates that “this was not adequately done.”

A sample of 50 of the 819 Service Contracts was selected for study. The auditors reviewed available documentation to determine whether the need for the services and the decision to contract for services was justified with supporting documentation.

According to the Comptroller’s report, OMH was able to demonstrate that it had formally evaluated and justified the need for only 15 of these 50 contracts totaling $13.5 million. The Department did not produce documentation showing that it formally evaluated the justification for the remaining 35 contracts, which totaled $48.2 million.

Although OMH officials agreed that all of the decisions pertaining to contracting for Services were not documented, they indicated that "this is not a feasible task, as decisions are made at many levels in many forms." OMH said that it believe it had effectively communicated the intent of the relevant budget bulletins to all OMH divisions and facilities. The auditors, in contrast, said they “did not find sufficient evidence that OMH had contracted out only when there was a clearly documented need for the services.”

The contracts involved providing for mental health services, information technology, maintenance, and security services.

The full text of the Comptroller’s report is posted on the Internet at:
http://osc.state.ny.us/audits/allaudits/093010/09s42.pdf
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