Employee may be disciplined for excessive absence from work

Employee may be disciplined for excessive absence from work
Gradel v Sullivan Co. Public Works, 257 AD2d 972

May an individual who has been authorized to take time off from work be disciplined for “excessive absence” based on an accumulation of “authorized” absences?

The Gradel case involved Section 75 disciplinary charges that were filed against Len Gradel, a Sullivan County sanitation worker. The charges alleged misconduct in the form of excessive absences, as well as poor job performance and insubordination, notwithstanding Gradel’s claim that he was authorized to take the time off.

“[T]he fact that [Gradel] was authorized to take the days off does not preclude a finding of guilt, especially where, as here, [Gradel] was repeatedly informed by memoranda that his pattern of absences was disruptive and burdensome to his employer and co-workers,” the Appellate Division ruled, citing Romano v Town Bd. of Town of Colonie, 200 AD2d 934.

Another issue involved the penalty imposed. Finding Gradel guilty of all of the charges filed against him, a hearing officer recommended that Gradel be suspended without pay for four days and placed on probation for one year.

The county, while agreeing with the hearing officer’s determination as to guilt, imposed the penalty of termination instead of the penalty recommended by the hearing officer. Gradel contended that the penalty imposed was excessive.

The Appellate Division rejected his arguments, holding that there was ample evidence in the record to support the hearing officer’s findings and confirm the county’s decision as to the penalty imposed. The court said that it was “unpersuaded by [Gradel’s] contention that the penalty of termination, which exceed that recommended by the Hearing Officer, was disproportionate to the offenses committed as to shock one’s sense of fairness.”
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Website established for those interested in joining the Cuomo-Duffy administration

Website established for those interested in joining the Cuomo-Duffy administration
Source: Cuomo-Duffy Transition Committee

Interested in joining the Cuomo-Duffy administration?

There is a website where those interested in positions in the Cuomo-Duffy administration may submit their resumes for consideration electronically.

The several transition focus committees will review these resumes and subsequently submit their recommendations to Governor-elect Cuomo and Lieutenant Governor-elect Robert Duffy with respect to staffing key positions with the new administration.

Resumes for all administration positions may be filed at http://www.worksforny.com/.
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Court hearing not available when claims that the appointing authority acted in bad faith are ”conclusory and speculative”

Court hearing not available when claims that the appointing authority acted in bad faith are ”conclusory and speculative”
Matter of Swindell v Antonelli, 2010 NY Slip Op 08346, Decided on November 16, 2010, Appellate Division, First Department

Tajiri Swindell, an employee of the NYC Department of Corrections, was on the promotion list for Captain. When Swindell not appointed as Captain, she initiated an Article 78 action alleging that the decision not to promote her to captain was made in bad faith.

Supreme Court temporarily restrained Department of Correction from making appointments from the new list pending a court hearing.

The Appellate Division vacated the lower court’s order and dismissed Swindell’s petition.

The court said that the Department’s decision, in the light of “the open confidential investigation,” not to promote Swindell was “rational, reasonable, and made in good faith.”

Swindell’s claims of bad faith, said the court, were conclusory and speculative and thus she was not entitled to a judicial review of her claims.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08346.htm
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Advancement to a higher level position not always a promotion entitling employee to a leave of absence from his or her former position

Advancement to a higher level position not always a promotion entitling employee to a leave of absence from his or her former position
Bethel v McGrath-McKechnie, 258 AD2d 316, Reversed, 95 NY2d 7

If an employee is promoted to a position in which he or she is required to serve a probationary period, the individual is given a leave of absence from his or her former position and is to be restored to that position if he or she fails the probationary period (Section 63.1, Civil Service Law). Section 63.1 does not define the term “promotion”, however.

In the Bethel case, the Appellate Division said it is incorrect to assume that a “promotion” is restricted to a direct promotion in the chain of command. It ruled that an appointment to a position from an open competitive examination list having higher pay, more responsibility and more prestige qualified as a promotion. The Court of Appeals disagreed and reversed the Appellate Division’s determination.

Earlene Bethel was a New York City Contract Specialist Level II with the city’s Community Development Agency (CDA). In July 1994, she accepted a provisional appointment as a Staff Analyst, another position in CDA, and she was placed on leave from her Contract Specialist position. Nine months later she was permanently appointed to the title of Staff Analyst from on open competitive examination eligible list. She, accordingly, was required to serve a probationary period. At the same time, Bethel was told that “her leave from the title of Contract Specialist II was canceled.” CDA’s reason for discontinuing her leave of absence: Bethel had not been “promoted” and thus Section 63.1 did not apply in her situation.*

On January 11, 1996, while still a probationer, Bethel was summarily dismissed from her Staff Analyst position. CDA rejected her request to be restored to her former position on the grounds that she was not on leave from the position and therefore had no legal claim to it.

Although the Appellate Division decided that “under the unique circumstances presented, “cancellation of [Bethel’s] leave from her former position prior to the expiration of her probationary period was an abuse of discretion,” the Court of Appeal disagreed and reversed the Appellate Division’s ruling. The court said that although after passing the examination for Staff Analyst and being appointed to the title as a provisional employee and given a leave of absence from her permanent position as Contract Specialist II:

1. Bethel was appointed to the position of Staff Analyst from an open competitive examination.**

2. Civil Service Law § 63 and the corresponding rules "furnish job security [i.e., a leave of absence] to a permanent employee who is transferred or promoted to a position in which he or she is required to serve,” a probationary period for his or her probationary term" citing Matter of Engoren v County of Nassau, 163 AD2d 520, leave to appeal denied, 77 NY2d 805.***

3. Bethel conceded that she was not "transferred," nor was she "promoted," to Staff Analyst and her argument that her appointment to Staff Analyst through an open examination rather than a promotional examination “is without consequence” is not persuasive.

4. The Civil Service Law and implementing rules and regulations do not mandate an agency place a permanent appointee on leave of absence from his or her former position while he or she is serving a probationary period in an effort to qualify for continuation in a position to which he or she has been neither promoted nor transferred.

Further, the Court of Appeals said that CDA's determination denying Bethel’s application for reinstatement to her former position of Contract Specialist was not an abuse of discretion and as Bethel accepted an original appointment to the position of Staff Analyst after passing the open competitive examination, she effectively resigned her permanent position as a Contract Specialist.

Accordingly, said the court, Civil Service Law §75(1)(a) is inapplicable under the facts in this case. Accordingly, Bethel was not entitled to a hearing prior to her employer’s cancellation of her leave of absence from her former Contract Specialist position.

* CSL Section 63.1 applies to New York City personnel. Moreover, the city’s administrative code is consistent with Section 63.1 of the Civil Service Law. [See Rule 5.2.3 of the City’s Personnel Rules].

** In July 1994, after passing the examination, Bethel received a provisional appointment to Staff Analyst pending certification of the civil service list for the position to the Human Resources Administration.

*** An individual holding a position by permanent appointment who is place on a leave of absence upon promotion or transfer to another position may elect to return to his or her “permanent title” at any time during the probationary period.
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Negotiated drug testing policy may waive an employee’s right to a Section 75 disciplinary hearing

Negotiated drug testing policy may waive an employee’s right to a Section 75 disciplinary hearing
Gary Grippo v John P. Martin, 257 AD2d 952

After negotiations with union representatives, the Town of Glenville adopted a drug and alcohol policy in December 1995. The policy included a provision for the random testing of employees for drug and alcohol use. The policy also specified various disciplinary actions to be taken following positive test results. In particular, the policy provided that two positive tests within a 10-year period would result in the employee’s immediate termination.

Gary Grippo, a town employee since 1986, tested positive for drug and alcohol use in August 1996. In accordance with the policy, Grippo was suspended from his employment without pay for 30 days. Grippo tested positive a second time on May 15, 1997. He was informed of the test result and the penalty of termination was imposed.

Grippo challenged his dismissal, contending that by creating an “irrebuttable presumption of [Grippo’s] guilt without affording him the due process of a hearing”, the policy is unconstitutional and violative of Civil Service Law Section 75[1].”

The Appellate Division disagreed and sustained a lower court’s ruling dismissing Grippo’s petition.

The Appellate Division commented that “a contract provision in a collective bargaining agreement may modify, supplement, or replace the more traditional forms of protection afforded public employees, for example, those in sections 75 and 76 of the Civil Service Law”.

Accordingly, an employee organization may, pursuant to the provisions of a collective bargaining agreement, waive the employee’s Section 75 and 76 rights.

The decision points out that “both by statute and case law, such a waiver in a collective bargaining agreement of public employee statutory rights in disciplinary matters is not against public policy, and members of the bargaining unit are bound thereby.”

The court found that: (1) Glenville had negotiated with Grippo’s union to enact the drug and alcohol policy, and (2) Grippo was provided with a copy of the policy and expressly agreed to its terms by signing it.
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