Employee’s dismissal for “excessive absenteeism” failed to survive judicial scrutiny where such absences were authorized by the employer and properly documented

Employee’s dismissal for “excessive absenteeism” failed to survive judicial scrutiny where such absences were authorized by the employer and properly documented 

Matter of Iarocci v Incorporated Vil. of W. Haverstraw, 2011 NY Slip Op 50794(U), Supreme Court, Rockland County, Judge Alfred J. Weiner [Not selected for publication in the Official Reports.] 

Michael Iarocci was served with disciplinary charges pursuant to §75 Civil Service. He was found guilty a pattern of excessive absences over an 18-month period.* 

Iarocci contended that his absences were all for valid reasons and that his termination was contrary to law and was arbitrary and capricious. The Village, on the other hand, argued that Iarocci’s “excessive absences” made him unreliable and, therefore, incompetent to perform his duties. 

The §75 Hearing Officer found there was "...substantial evidence to support the charge of incompetence based upon [Iarocci’s] excessive absences but that [his] absences did not affect the morale of the department to the extent that it was ... asserted in conclusory fashion by the witnesses who testified."  The Hearing Officer recommended that Iarocci be suspended for a period of 90 days without pay and that upon his return placed on disciplinary probationary for an appropriate period of time.

West Haverstraw accepted the findings of the Hearing Officer but imposed the penalty of dismissal.

Iarocci appealed that Judge Weiner said that the issue before him was whether the penalty of termination was "so disproportionate as to shock one's sense of fairness?" 

Citing Matter of Featherstone v. Franco, 95 NY2d 550, Judge Weiner said that “Judicial review of an administrative penalty is limited to whether the measure or mode of penalty of discipline imposed constitutes an abuse of discretion as a matter of law.” Further, the court observed, in Pell v Board of Education, 34 NY2d 222, the Court of Appeals set out the standard for determining the appropriate penalty is whether the punishment imposed is "...so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness." 

Judge Weiner then set out a number of decision in which courts have upheld the termination of a public employee found guilty of “excessive absence” including McKinnon v. Board of Educ. of North Bellmore Union Free School Dist. 273 AD2d 240, Alston v. Morgan 245 AD2d 287, and Romano v. Town Bd. of Town of Colonie, 200 AD2d 934.

Here, however, the record indicated that Iarocci had received authorization from his employer for his absences, followed the appropriate call-in procedures and obtained appropriate medical documentation when necessary. Further, the court found that he was never warned about his excessive absences or charged with insubordination or other misconduct. 

Other mitigating circumstances considered by Judge Weiner included Iarocci employment for ten years and no prior disciplinary problems; his frequent absences commenced only began after he had gallbladder surgery and later suffered an employment related back injury; and his promotion from Motor Equipment Operator I to Motor Equipment Operator II by West Haverstraw. 

Distinguishing Iarocci’s situation from the facts underlying the several cases in which termination has been imposed for excessive absenteeism, Judge Weiner noted that “When absenteeism has been authorized by an employer and properly documented according to procedure, termination for excessive absenteeism has not been imposed upon an employee unless it was coupled with more aggravating factors, including insubordination, [following] progressive discipline and other incidents of poor performance at work.”

Rulling that penalty of termination imposed upon Iarocci by West Haverstraw was  “disproportionate to the offense charged …” Judge Weiner said that the Town “should have given due weight to mitigating factors when deciding the appropriate penalty to impose.”

Annulling the penalty of dismissal, Judge Weiner remanded the matter to the Village Board “for the imposition of a penalty other than termination.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_50794.htm

A series of annual appointments as an educator may not result in tenure by estoppel

A series of annual appointments as an educator may not result in tenure by estoppel

Mohr v Salamanca City School District, 267 A.D.2d 983

Seniority is one of the critical elements in determining the retention of an employee in layoff situations. Such seniority, however, is a function of having tenure with the individual’s employer, as the Mohr case demonstrates. As Mohr demonstrates, tenure is attained as a result of being continued in service after completing a probationary period and not simply completing a series of annual appointments.

Brian Mohr was appointed as a teacher’s aide in Salamanca’s Bilingual Education Program in 1978. He was reappointed annually to that position until 1982 when he was appointed as a Title VII funded Bilingual Resource Teacher [BFT] for one year.

In determining seniority for the purposes of a layoff, the District found that Mohr, the least senior teacher, and he was terminated. Mohr sued, contending that because of his earlier service with the district, he was not the least senior teacher in his tenure area. Mohr argued that he had acquired tenure by estoppel as a teacher as a result of his service with the district from 1987 through and including 1992. He claimed that this entitled him to “bump” a teacher in the Seneca Language/Iroquois Culture tenure area with less seniority or, alternatively, to be placed on the preferred list for employment in “similar positions”.

The Appellate Division said “Supreme Court properly rejected those contentions.”

According to the decision, although an individual who completes his or her probationary period may attain tenure by estoppel, Mohr had not been appointed to a “tenure track” position until 1993. Each of Mohr’s pre-1993 employments by the district was dependent on the district’s receiving grant funds. As Mohr had been employed under a series of one-year contracts rather than for a “probationary term,” the court said that he could not, and did not, attain tenure by estoppel. This meant that Mohr could not “bump” a teacher with less service with the district.

In Yastion v Mills, 229 A.D.2d 775, the Appellate Division held that a teacher may work on a year-to-year contractual basis and never acquire tenure even after three years of service. Orange-Ulster BOCES had appointed Yastion to a federally funded position and his annual employment contracts specifically indicated that “tenure does not apply to this position.”

Mohr was no more successful with his claim that he should be placed on a preferred list. The Appellate Division said that “it is well settled that a teacher is entitled to be placed on a preferred eligible list if he or she is certified in the same or a similar tenure area.”

Pointing out that Mohr was not certified to teach in the Elementary Education or a similar tenure area, the court said that while he held a permit that was the equivalent of certification to teach Seneca Language/Iroquois Culture, “the closest tenure area to Seneca Language/Iroquois Culture is the foreign languages tenure area, which, said the court, applies to seventh grade and above, not to the elementary grades.” Accordingly, the Appellate Division dismissed this branch of his appeal as well, holding that Mohr was not “entitled to placement on a preferred eligibility list.”

An appeal of an arbitration award must be perfected within the controlling statute of limitations

An appeal of an arbitration award must be perfected within the controlling statute of limitations

Rodriguez v NYC Transit Authority, 269 A.D.2d 600, Motion for appeal denied, 96 N.Y.2d 704

Hermino Rodriguez was dismissed from his position of cleaner with the New York City Transit Authority after being found guilty of disciplinary charges by a tripartite arbitration board.

Objecting to his termination, Rodriguez filed an Article 78 petition. A State Supreme Court judge vacated the arbitration award and directed the Authority to reinstate Rodriguez to his former position with back salary.

Find anything wrong with this? The Appellate Division did and overturned the lower court’s ruling.

In the words of the Appellate Division, “[c]ontrary to the Supreme Court’s determination, the only proper proceeding to seek review of the arbitrators’ decision in this case would be pursuant to CPLR [Civil Practice Law and Rules] Article 75...” not Article 78.

In addition, Section 7510 of the CPLR has a relatively short statute of limitation. The motion to vacate the arbitration award must be filed within 90 days of the receipt of the arbitrators’ decision.*

Rodriguez received a copy of the arbitration award affirming his termination on July 24, 1997. He filed his Article 78 petition, which was not heard until November 15, 1997. By that time it was too late for him to file an Article 75 petition.

While the Supreme Court justice treated Rodriguez’s Article 78 proceeding as an application pursuant to Article 75 of the CPLR, which he could do, the court did not have the power to extend the Statute of Limitations controlling the filing Article 75 actions.

The point here is that Rodriguez could have filed his motion to vacate the arbitration award within 90 days of his receiving the determination even if he had already filed an Article 78 action. The fact that he had started an Article 78 action, however, did not toll the running of the statute of limitations applicable in an Article 75 pro­ceeding.

* Education law Section 2030-a.5 provides an even shorter statute of limitations for challenging an adverse  disciplinary arbitration award – 10 days: Section 3020-a.5 Appeal. Not later than ten days after receipt of the hearing officer’s decision, the employee or the employing board may make an application to the New York state supreme court to vacate or modify the decision of the hearing officer pursuant to section seven thousand five hundred eleven of the civil practice law and rules. The court's review shall be limited to the grounds set forth in such section. The hearing panel's determination shall be deemed to be final for the purpose of such proceeding. In no case shall the filing or the pendency of an appeal delay the implementation of the decision of the hearing officer.

Termination of educator for posting sex ad on Craigslist while off-duty upheld by California court

Termination of educator for posting sex ad on Craigslist while off-duty upheld by California court Source: Meyers Nave PLC. Reproduced with permission. Copyright © 2011, Meyers Nave. All rights reserved From time to time disciplinary charges will be filed against a public employee for alleged off-duty misconduct. In a posting on its Law Blog Public Law News, Meyers Nave notes the decision in San Diego Unified School District v Commission on Professional Competence. It reports: “In San Diego Unified School District v. Commission on Professional Competence (Lampedusa), --- Cal. Rptr. 3d ---, 2011 WL 1234686 (ordered published May 3, 2011), the California Court of Appeal upheld a school district's dismissal of a schoolteacher who was terminated for posting a sexually explicit ad and photos of himself on Craigslist while off duty. The ad neither identified the school nor that he was a teacher.  Nevertheless, the Court found the dismissal was justified based on the teacher's "evident unfitness" to serve as a teacher and that he had engaged in "immoral conduct" in posting the ad. “In reversing the decision of the Superior Court (which upheld the Commission's finding of no cause for dismissal), the Court of Appeal affirmed the principal that "[t]here are certain professions which impose . . . responsibilities and limitations on freedom of action which do not exist in regard to other callings. Public officials such as judges, policemen and schoolteachers fall into such a category." “The Court's decision relied in part on the United States Supreme Court's ruling in City of San Diego v. Roe, 543 U.S. 77 (2004). In Roe, the Court upheld the termination of a police officer discharged for selling homemade pornographic videos on an online auction site. Notably, the Court held that although the police officer's activities occurred outside of work and were purportedly unrelated to his employment, they were nonetheless "detrimental to the mission and functions of the employer." Accordingly, the City of San Diego was justified in disciplining the officer for his conduct.  “The Court of Appeal in Lampedusa applied this same principal to find that "the disciplinary action taken by the District did not have an adverse impact or chilling effect on Lampedusa's constitutional rights." The decision thus supports the idea that, despite the substantial limitation on an agency's ability to discipline public employees for off-duty conduct, courts will uphold discipline for off-duty conduct when there is a sufficient nexus to the workplace, and are more likely to find that nexus with particular job classifications such as public safety. “PRACTICE TIP: A public employer considering discipline for off-duty conduct should carefully scrutinize the conduct at issue and surrounding circumstances in evaluating whether there is a sufficient nexus to the workplace to justify the discipline. As noted in the Lampedusa and Roe decisions, a public employee's position and job responsibilities can factor into that analysis.”

Recent decisions reported by the New York City Office of Administrative Trials and Hearings

 Recent decisions reported by the New York City Office of Administrative Trials and Hearings 

A deputy sheriff who served as union treasurer was discovered to have transferred funds totaling $13,266, drawn from union accounts into his own bank account. When confronted, he refused to reimburse the union or provide receipts showing how the money was spent. Administrative Law Judge John Spooner found that respondent’s theft was inconsistent with his law enforcement responsibilities, and recommended termination from employment. Dep’t of Finance v. Smyth (in PDF), OATH Index No. 1285/11 (Mar. 9, 2011), adopted, Comm’r Dec.

An eligibility specialist who was arrested for participating in a scheme to defraud Medicaid, was charged with failing to report her arrest, accessing New York City Human Resources Administration’s Welfare Management System (“WMS”) without authorization, obtaining information on four Medicaid beneficiaries, and providing the information to an outside party for compensation. Administrative Law Judge Ingrid Addison found no proof that respondent knowingly participated in a conspiracy to defraud Medicaid, or that she received any form of compensation. However, petitioner proved that respondent made four attempts to login to WMS with a supervisor’s password in violation of HRA’s policies. Because she found no evidence that respondent was knowingly and willingly complicit in the scheme, the ALJ found termination to be disproportionate to the proven misconduct and recommended that respondent be demoted to a position where she no longer has access to WMS and the sensitive agency information on that system.  Human Resources Admin. v. Mays (in PDF), OATH Index No. 1299/11 

Administrative Law Judge Ingrid Addison recommended dismissal of multiple charges against a computer specialist that she was not competent to perform her job. Petitioner proved that respondent made six errors in a six-month period, but failed to prove that respondent’s errors were willful, or that there was such a proliferation of them so as to deem her incompetent. Petitioner established respondent was insubordinate when she yelled at her supervisor, did not respond to a voice message, and did not update operating procedures properly. The recommended penalty was a 25-day suspension. Transit Auth. v. Victor (in PDF), OATH Index No. 799/11 (Mar. 3, 2011), adopted, Comm’r Dec

New York City Human Resources Administration alleged that respondent was absent without authorization for three periods totaling 16 months. Respondent asserted that her absences were caused by various medical conditions, particularly depression. However, respondent did not provide sufficient proof of her medical conditions. She admitted that she was never treated for depression and that her absences were not authorized. Administrative Law Judge Joan Salzman found that, though respondent had some personal difficulties, termination of employment was the appropriate penalty for her lengthy AWOL, where she had failed to follow procedures for medical absences and to communicate with the Administration about her need for leave. Human Resources Admin. v. Gonzalez (in PDF), OATH Index No. 972/11