Employee placed on administrative leave without pay after failing to report to work

Employee placed on administrative leave without pay after failing to report to work

2013 NY Slip Op 07183, Appellate Division, Second Department

Employee challenged Employer’s placing her on “administrative leave without pay,” contending that Employer had ”wrongfully suspended her without pay for a period exceeding 30 days in violation of Civil Service Law §75(3).” Employee had been served with disciplinary charges pursuant to §75.

Supreme Court dismissed Employee’s Article 78 petition; the Appellate Division affirmed the lower court’s ruling.

The Appellate Division noted that as the issue “under review” – Employee’s suspension without allegedly in violation of Civil Service Law §75(3), had not been made as a result of a quasi-judicial evidentiary hearing it would review the determination under the standard set forth in CPLR 7803(3) and consider only “whether the determination was made in violation of lawful procedure, was affected by an error of law, was arbitrary and capricious, or was an abuse of discretion.”

Although Employee argued that suspension without pay was unlawful to the extent that it exceeded a suspension for 30-days without pay permitted pursuant to §75(3), the Appellate Division ruled that Employee had not been suspended without pay pending the hearing and determination of charges of incompetency or misconduct within the meaning of 75(3).

Rather, explained the court, Employee had “failed to report to work,” whereupon she was placed on administrative leave without pay pending her return to work

Accordingly, the Appellate Division found that Employer had not violated Civil Service Law §75(3) and thus its determination “was not made in violation of lawful procedure.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07183.htm
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Refusing to use employer supplied equipment that was mandatory in performing the duties of the position results in dismissal of the employee

Refusing to use employer supplied equipment that was mandatory in performing the duties of the position results in dismissal of the employee
2013 NY Slip Op 08128, Appellate Division, First Department

In a number of instances employees have been disciplined because of their unauthorized use of the employer’s equipment in violation of the employer’s rules.

For example, a 15-day suspension without pay was recommended as the disciplinary penalty after the worker was found guilty of using a department vehicle for an unauthorized purpose [OATH Index No. 1976/08] while an employee found guilty of the misuse of employer’s e-mail to senda "questionable e-mail" to his co-employees was terminated [Smith v Commissioner of Labor, 296 AD2d 803].

In this case Employee challenged her termination because she refused to use equipment supplied by Employer in order for Employee to perform the duties of the position. The equipment in question: an electronic ticket issuing machine [TIM], the use of which was mandatory by individuals performing the duties of a train conductor when issuing tickets to passengers.

The Appellate Division dismissed Employee’s appeal, noting that although Employer was not obligated to exempt Employee from the system-wide mandatory use of the TIM, it had ‘engaged in a good faith interactive process and offered [Employer] a choice of positions that did not require use of the TIM, which she rejected”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08128.htm
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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending December 7, 2013

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending December 7, 2013

Click on text highlighted in color  to access the full report

State Comptroller co-sponsoring webinars for local officials

The Office of the State Comptroller devotes significant resources to assisting local officials. Whether you’re newly elected or a returning veteran, there are many exciting opportunities and interesting challenges that lie ahead. To help ease your transition, my office is co–sponsoring a webinar with the Association of Towns of the State of New York on December 12, 2013 as well as two New Town Officials Schools in the second and third week of January. For additional details and registration information, please visit: http://www.osc.state.ny.us/localgov/training/index.htmand www.nytowns.org.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed audits of

the City of Little Falls;

the Swan Lake Fire District; and

the Town of Wawayanda.

"Let State Comptroller Audit LDCs in New York" Op–Ed by State Comptroller DiNapoli

New York State Comptroller Thomas P. DiNapoli has published an op–edin the Rochester Democrat & Chronicle, "Let State Comptroller Audit LDCs in New York," which details the problems and reasons more oversight of Local Development Corporations by his auditors is necessary.

State Comptroller DiNapoli, A.G. Schneiderman & DOI Commissioner Gill Hearn Announce Arrest of Not–For–Profit Executive in Six–Year Theft Scheme

Comptroller Thomas DiNapoli, Attorney General Eric T. Schneiderman and New York City Department of Investigation (NYC DOI) Commissioner Rose Gill Hearn Thursday, December 5, 2013 announced the arrest of a nonprofit executive accused of pocketing taxpayer dollars intended for public services and capital improvements in New York City. A multi–agency joint investigation, including NYC DOI and two federal agencies, exposed the theft of approximately $373,000 in public funds provided by New York State, the New York City Council, and federal earmark grants.

DiNapoli Leads Investor Group Urging Olympic Corporate Sponsors to Speak Out for Russian LGBT Rights

New York State Comptroller Thomas P. DiNapoli announced on Thursday, December 5, 2013 that the $160.7 billion New York State Common Retirement Fund, leading a coalition of investors with $327 billion of assets under management, has sent lettersto ten major corporate sponsors of the upcoming Winter Olympic Games in Sochi, Russia urging the sponsors to use their influence to ensure the human rights of Russian citizens, as well as athletes and visitors to the Olympics.

DiNapoli to Audit Hate Crime Reporting in New York State

The Office of the State Comptroller is auditing the Division of Criminal Justice Services’ oversight and management of hate crime reporting across the state, State Comptroller Thomas P. DiNapoli announced Friday, December 6, 2013.

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Employee dismissed notwithstanding having earlier resigned from the position and recorded as having been terminated from the position

Employee dismissed notwithstanding having earlier resigned from the position and recorded as having been  terminated from the position

2013 NY Slip Op 08022, Appellate Division, First Department

Judge Michael D. Stallman, Supreme Court, New York County, denied the petition filed by Individual, a former probationary employee, seeking to annul employer’s decision terminating Individual’s employment as a probationer and so noting the individual's personnel file notwithstanding Individual's having earlier resigned from the position.

The Appellate Division affirmed Judge Stallman’s decision, explaining that “As a probationary employee, [Individual] was subject to termination "at any time and for any reason, unless [Individual] establishe[d] that the termination was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith." Here, said the court, Individual failed to meet her burden of proof of demonstrating such an impermissible reason for her termination.

Individual had also contended that the employer had terminated her employment occurred after the effective date of her resignation which demonstrated “bad faith” of the part of the employer. The Appellate Division disagreed, noting that despite her resignation, there was still a possibility that Individual could return to work in the future, and thus her resignation was not irrevocable, citing Folta v Sobol, 210 AD2d 857.

In Folta an employee resigned while the adjudication of disciplinary charges filed against the employee pursuant to Education Law §3020-a were pending. The Hearing Panel, nevertheless, proceeded to render its decision, finding the employee guilty and recommending that he be dismissed from his position, which finding and recommendation was adopted by the appointing authority and made part of the individual's personnel file.

The Folta court held that as the individual’s resignation was not irrevocable, it was possible that under the terms of the then applicable collective bargaining agreement and "Chancellor's Regulation §205(25)" the individual could, subject to the approval of the Chancellor, withdraw his resignation and apply for reemployment.

The existence of such a possibility, said the court, provides a valid reason for allowing an Education Law §3020-a hearing to proceed and placing the ultimate decision in the individual's personnel file,

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2013/2013_08022.htm

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Termination follows employee’s refusal to participate in training in a new position

Termination follows employee’s refusal to participate in training in a new position
2013 NY Slip Op 08115, Appellate Division, First Department

Employer filed disciplinary charges against Employee alleging misconduct after Employee refused to comply with orders to participate in training for a new position after being reassigned to a different department and absenting himself from work for more than 11 months. Found guilty of the charges and specifications, Employee was terminated from his position.

The Appellate Division sustained Employer’s action, holding that substantial evidence supported its determination. The court also stated that the penalty imposed, termination, was not so disproportionate to Employee’s offense as to shock its sense of fairness, explaining that the evidence established that Employer’s requirement that Employee participate in processing training was not in excess of its authority.

In addition, the court mentioned that Employee had not observed the rule of "work now, grieve later" and that Employee had failed to show that any exceptions to the rule applied in Employee’s situation, citing Ferreri v New York State Thruway Authority, 62 NY2d 855.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08115.htm
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