Penalty imposed for absence from work after employee told “she could not take those days off” - termination from employment

Penalty imposed for absence from work after employee told “she could not take those days off”  - termination from employment

2013 NY Slip Op 07912, Appellate Division, Third Department

The school district was closed from April 11 to 15, 2011 for spring recess. Employee, a special education aide, was approved to be absent on April 19 and 20, 2011 for religious observances. In addition, Employee asked for approval from her principal to April 18 and 21, 2011. By taking time off on April 18 and 21, 2011, Castle would effectively be absent from the classroom for two weeks.

As this absence would involve an extension of an existing school holiday, Employee was told that her request required the approval of the District Superintendent. Ultimately Employee request to absent herself on April 18 and 21 was denied and she was notified "that she could not take those days [off] under any circumstances" and she was specifically told  "[D]on't take sick time…”

 Employee went to the Dominican Republic on April 10 through April 22, 2011. While there, Employee notified the school via email that she was taking April 18 and 21, 2011 off as "family sick" days.

The school district subsequently filed Civil Service Law §75 disciplinary charges against Employee alleging misconduct, insubordination and being absent without permission [AWOL]. The hearing officer found Employee guilty of all of the charges filed against her and recommended that she be terminated from her employment with the school district.

The Board of Education adopted the findings and recommendations of the hearing officer and Employee filed an Article 78 petition challenged the decision to dismiss her from her position.

The Appellate Division said that as Employee’s “primary challenge on review is directed to the propriety of the penalty imposed,” its is to determine "whether, in light of all the relevant circumstances, the penalty is so disproportionate to the charged offense[s] as to shock one's sense of fairness" i.e., the “Pell standard.”* Further, said the court, “it is not the role of this Court to either "second-guess the administrative agency or substitute its own judgment for the action taken" even if "a lesser penalty may have been more appropriate."

Addressing Employee’s claim that neither the Hearing Officer nor the Board gave due consideration to the mitigating factors present here — namely, hers consistently positive performance evaluations, her lack of a prior disciplinary record, her family's dependence upon her employment as a source of income/health insurance and the fact that she made arrangements for a substitute to cover her classes on the days she elected to be absent, the court said the record reflects that both the hearing officer and the Board considered these factors.

However, said the Appellate Division, "even a long and previously unblemished record does not foreclose dismissal from being considered as an appropriate sanction" for demonstrated misconduct,” citing Matter of Rogers v Sherburne-Earlville Cent. School Dist., 17 AD3d 823, “particularly where, as here, an employee openly defies an employer's express directive”

Finding that there was ample evidence to support the finding that Employee’s absence "was a well-planned event taken in direct contravention of a direct order," the court sustained the Board’s imposing the penalty of termination. **

* Pell v Board of Education, 34 NY2d 222

** See, also, Decisions of the Commissioner of Education, Decision 14,280, in which the Commissioner considered disciplinary action taken against and educator alleged to have abused the school district’s leave provisions, posted at: http://www.counsel.nysed.gov/Decisions/volume39/d14280.htm

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The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07912.htm

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A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://nypplarchives.blogspot.com/

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Employee’s failure to “opt-out” after reading an e-mail and webpage resulted in an arbitration agreement

Employee’s failure to “opt-out” after reading an e-mail and webpage resulted in an arbitration agreement

Source: Employment News from WKL&B WorkDay

The employer had implemented an arbitration program to resolve disputes between it and its employees.. Its notice to employees included the statement : “If you do not opt out by the deadline, you are agreeing to the arbitration process set forth in the Agreement.”

An employee who received a notice of the arbitration agreement and accessed the relevant “webpage” failed to “opt-out” by not declining to use the arbitration process by the deadline indicated on the web site. The court granted the employer’s motion to compel arbitration of the employee’s discrimination claims, holding that the employee, by failing to opt-out in a timely manner, had agreed to submit the matter to arbitration.

The text of the article by Lorene D. Park, J.D, writing for Wolters Kluwer, is posted on the Internet at:

http://www.employmentlawdaily.com/index.php/news/email-and-webpage-suffice-as-arbitration-agreement-employee-agreed-by-not-opting-out/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+CCH-Workday+%28WKL%26B+WorkDay%29

The text of the federal district court’s decision is posted on the Internet at:

http://hr.cch.com/ELD/KarzonAT&T.pdf

NYPPL Comment: As the employee had alleged that that employer had subjected him to a hostile work environment and unequal discipline, and unlawfully terminated his employment based on his national origin, it could be argued that the employee had a vested statutory right to litigate his complaint[s] that could only be obviated if he affirmatively elected submit the matter to arbitration.  

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Employment Law 2013

Employment Law 2013

Source: FindLaw blog site

Anne C. O'Donnell of Findlaw has authored a summary of significant employment law court rulings handed down during 2013 that sets out "highlights and developments from the land of employment law during the past year."

Ms. O’Donnell’s Review is posted on the Internet at:

http://corporate.findlaw.com/human-resources/2013-year-in-review-employment-law.html?DCMP=NWL-pro_top

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Preclusion bars an individual from relitigating the findings of a disciplinary hearing officer in a subsequent involving the same parties in a different tribunal

Preclusion bars an individual from relitigating the findings of a disciplinary hearing officer in a subsequent involving the same parties in a different tribunal

USCA, Second Circuit, Docket  Nos. 11- 1234 (L), 11-1618 (XAP)

An employee [Plaintiff] was dismissed from his position after a disciplinary hearing conducted pursuant to Civil Service Law §75. He subsequently sued his former employer alleging, among other things, that he was the victim of unlawful discrimination in violation of the federal Civil Rights Act of 1871, 42 USC 1983.

One of the issues addressed by the U.S. Circuit Court of Appeals in the civil rights action was the question of whether the §75 disciplinary hearing officer’s finding that there was a sufficient and legitimate basis for Plaintiff’s termination precluded* the Plaintiff from relitigating those issues in federal district court.

The Circuit Court said that State law governs the preclusive effects of a state administrative agency’s quasi-judicial findings in a federal court and New York courts give quasi-judicial administrative fact-finding preclusive effect where there has been a full and fair opportunity to litigate the issue. This, said the court, applies to findings made by administrative officers after conducting §75 disciplinary hearings.

As is the case with respect to a prior judicial finding of fact, in order to have preclusive effect over a subsequent fact-finding or legal analysis, the prior administrative determination must have resolved the identical issue and the issue must have been actually and finally decided in the prior administrative adjudication.

The appointing authority had adopted the recommendations of the hearing officer, which became the official decision of the agency and Plaintiff decided not to challenge the determination by appealing the decision to a state court or to the responsible Civil Service Commission

However, even if an identical issue was necessarily decided in the prior proceeding, issue preclusion does not apply unless there was a full and fair opportunity for the party against whom preclusion is sought to contest the decision now said to be controlling.** The Court then noted that Plaintiff’s civil rights claims were not considered in the course of his §75 hearing*** and thus that decision did not did not preclude the jury from finding discriminatory conduct on the part of the employer in Plaintiff’s federal civil rights action.

The issue decided by the hearing officer after the §75 hearing concerned the appointing authority’s articulated basis for seeking to terminate Plaintiff. The hearing officer’s ultimate conclusions was that Plaintiff had committed disciplinable misconduct and was incompetent were guided by the particular legal framework and standards applicable in §75 proceedings.

Turning to Plaintiff’s civil rights complaint, the Circuit Court explained that the §75 framework differs substantially from the legal framework for state and federal employment discrimination law applicable to Plaintiff’s federal jury trial.

 
Although the hearing officer’s findings and conclusions concerning the charges of alleged misconduct and incompetence for purposes of §75 filed against Plaintiff precluded him from arguing otherwise at trial, they are not preclusive of any findings that the jury could have made in the course of its deliberations with respect to Plaintiff’s allegations of unlawful discrimination on the part of his former employer being the reason for his termination.

Therefore, in the course of deciding Plaintiff’s §1983 claims regarding whether the appointing authority terminated Plaintiff for legitimate or illegal reasons, the jury was required to accept the hearing officer’s finding that Plaintiff had failed to perform satisfactorily, if at all, some of his duties and responsibilities.

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The bottom line: Applying these principles to this case, the Circuit Court conclude that the jury was precluded from finding that Plaintiff had not actually engaged in the conduct charged against him in the §75 hearing.

As to Plaintiff’s civil rights action, the jury found in his favor and awarded him $304,775 in back pay.

* Essentially preclusion bars the relitigation of the same issue that was the basis of a finding or verdict in an action involving the same parties in subsequent lawsuits involving the same parties.

** In contrast, citing Leventhal v. Knapek, 266 F.3d 64, the Circuit Court said that there is no preclusion in the event there was no “final decision” both because the parties settled before the hearing officer had taken all of the evidence and because the appointing authority had not adopted any recommendation of the hearing officer.

*** The decision notes that Plaintiff “never expressly argued to the hearing officer that he was treated adversely” within the meaning of 42 USC 1983.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/2013a850-216d-4ede-93b6-36484b07172f/4/doc/11-1234_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2013a850-216d-4ede-93b6-36484b07172f/4/hilite/
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Summary of the Governor Cuomo’s 2014 State of the State address

Summary of the Governor Cuomo’s 2014 State of the State address

Source: Office of the Governor

In the past three years, under Governor Cuomo’s leadership, the state has reversed decades of dysfunction to become a model for the nation, and demonstrated the impact an effective and responsive government can have on the lives of its people.  The state has established real fiscal discipline by limiting spending to 2% and passing on-time budgets, added over 380,000 new private sector jobs since 2010, and reduced taxes for middle class New Yorkers to the lowest rates in 60 years. Additionally, we have made significant reforms in our state’s education system and made New York a fairer and safer state for our citizens.

On January 8, 2014, Governor Andrew M. Cuomo delivered his 2014 State of the State address – a sweeping agenda that builds on the immense success we have achieved over the past three years.  To read the full plan, click here.

The State of the State highlighted the Governor’s efforts to:

Continue New York’s successful job growth strategy through property tax relief, business tax cuts, and innovative job creation initiatives;

Transform New York’s schools to provide the highest quality education for all of our children;

Create more progressive, safer, cleaner and fairer communities; and

Reimagine New York State in the wake of recent disastrous storms by improving our disaster response capabilities and hardening our infrastructure to protect against future severe weather.

Under the Governor’s leadership, we have gone from a $10 billion deficit to a $2 billion surplus. Rather than using this revenue to increase spending, the Governor instead proposed to provide additional tax relief for New Yorkers, including significant property tax relief for homeowners and a tax credit for renters; reduced taxes on businesses to make our state more competitive and create jobs; and additional tax cuts designed to help New Yorkers.  Click here to read details of the Governor’s tax relief plan.

The number one priority for New York State continues to be jobs. Through the Governor’s tax relief plan, New York will become more competitive to attract business and investment. The Governor will also continue to encourage targeted investment in New York businesses through key industry initiatives and our Regional Economic Development Councils. Additionally, he proposed to host the Global NY Summit on World Trade and Investment to reach foreign investors to increase investment in New York.  His agenda will also further revitalize upstate communities by continuing to invest in tourism, bringing world-class destination resorts to Upstate NY, and eliminating the corporate income tax rate for Upstate manufacturers.  He also outlined a plan to quickly and efficiently modernize LaGuardia and JFK airports – these gateways to New York are major economic engines and New York deserves globally-renowned, 21^st century airports.

Our next step in transforming our schools is to reinvent our classrooms with new technology – to do this, the Governor proposed launching a $2 billion “Smart Schools” bond referendum to help bring all of New York schools into today’s high-speed, high-tech world.  Additionally, the Governor will build on his programs to reward our most effective teachers, encourage students to study in math, science and engineering, and make full-day pre-K universal in NYS.

The Governor also understands there is more to do to make New York communities more progressive, safer, cleaner, and fairer. The NY Youth Works program has helped 13,000 inner city youth find work, and for 2014, the Governor has proposed increasing the program to further combat the unacceptable unemployment levels in our communities. To ensure New Yorkers have safe, clean, and decent housing, the Governor’s agenda includes preserving or creating 3,000 more units of affordable housing. New York remains one of only two states in which the age at which youths are treated as adults in the justice system is 16 – nearly 40,000 16- and 17-year-olds had their cases handled in adult or criminal court in 2012, which is why the Governor proposed establishing the Commission on Youth, Public Safety & Justice to provide concrete, actionable recommendations regarding youth in New York’s criminal and juvenile justice systems.

Medical research suggests that medical marijuana may help manage the pain and treatment of cancer and other serious illnesses, which is why the Governor has proposed launching a medical marijuana research program at 20 hospitals to evaluate the effectiveness and feasibility of a medical marijuana system. 

To further protect New Yorkers against drunk drivers, the Governor is proposing a three-strikes-and-you’re-out rule. He will also continue to crack down on youth texting while driving.

New York means justice for ALL, which is why the Governor will continue to fight for the Women’s Equality Act.  His agenda also includes protection for students against discrimination and harassment, because New York’s tolerance for racism and discrimination is ZERO.

The Governor has also made restoring New Yorkers’ trust in state government a top priority. This year, he will continue to fight for reforms to ensure New Yorkers have confidence that their elected officials are serving them faithfully. He proposed new anti-bribery and corruption laws, public financing of elections, independent enforcement and oversight at the Board of Elections, and disclosure of outside clients with business before the State.

Understanding that extreme weather is the new reality, we need to reimagine New York for a new reality. Vice President Biden credited the Governor’s storm plan as a model for future recovery efforts. The Governor proposed a $17 billion strategy that will transform New York’s infrastructure, transportation networks, energy supply, coastal protection, weather warning system, and emergency management to better protect New Yorkers from extreme weather. Click here to read more about the Governor’s broad strategy to protect New Yorkers from future extreme weather.

To read the Governor’s full plan, click here. 
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