Failing to take lawful action against an individual in exchange for a benefit

Failing to take lawful action against an individual in exchange for a benefit

2014 NY Slip Op 01663, Appellate Division, First Department

A New York City police officer [Officer] was terminated from his position after being found guilty of failing to take lawful police action against an individual who was driving without a license in exchange for that individual agreeing to provide a benefit to Officer, -- “installing sheetrock at [Officer’s] home.”

The Appellate Division sustained the Commissioner’s termination of Officer, noting that substantial evidence supported the determination. Further, said the court, “The penalty of termination does not shock our sense of fairness,” citing Kelly v Safir, 96 NY2d 32.

The Appellate Division also considered the fact that “one of the two main witnesses relied upon by the hearing officer in reaching his conclusion had recanted his testimony” some two years later.

The Commissioner, however, had denied Officer’s request for a new hearing based on “this new evidence.” The court said that the recantation raised issues that were addressed by the Commissioner, who considered the submissions by Officer and reviewed of all the evidence.*

The Appellate Division decided that “Under the circumstances, including the sufficiency of the other evidence, the witness's recantation did not warrant a further hearing.”

* The Appellate Division, citing Douglaston Civic Assn. v Galvin, 36 NY2d 1, noted that the Commissioner’s 2013 decision denying Officer's request for a new hearing based on such “new evidence” could not reviewed in the instant proceeding as a separately brought petition was required.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01663.htm

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Sleeping on the job

Sleeping on the job

OATH Index No. 2196/13  

The New York City Health and Hospitals Corporation (HHC) charged a hospital police officer with sleeping or assuming a sleeping position while on an eight-hour tour that began at midnight.

HHC relied on video evidence that showed police officer’s head bobbing up and down and sideways after she was assigned to the front desk. Further, the officer admitted that her head was down and she was fighting to not fall asleep.

OATH Administrative Law Judge Faye Lewis found that HHC proved the charge and recommended seven days’ suspension as the officer had no prior disciplinary record.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/13-2196.pdf

Refusing to accept work assignments constitutes insubordination and dereliction of duty

Refusing to accept work assignments constitutes insubordination and dereliction of duty

2014 NY Slip Op 01505, Appellate Division, First Department

Supreme Court denied an Article 75 petition filed by a New York City tenured teacher [Teacher] challenging a disciplinary arbitrator’s decision to terminate Teacher and dismissed the proceeding.

The Appellate Division affirmed the lower court’s ruling, explaining that the record indicated that Teacher “without reasonable or legitimate justification, continually refused teaching assignments” during the school year.

Such conduct, said the court, constitutes "insubordination and the dereliction of duties." As the arbitrator’s finding was “supported by adequate evidence in the record,” the Appellate Division said there was no basis upon which to disturb the credibility determinations of the Hearing Officer.

As to the penalty imposed by the arbitrator, termination, the court said that it did not shock its sense of fairness in light of the extensive nature of Teacher's insubordinate conduct throughout the school year. Such insubordination, said the court required the school to hire a substitute teacher to cover Teacher’s class. Further, noted the Appellate Division, Teacher’s refusal to admit to any wrongdoing indicated a likelihood of a recurrence of such insubordinate conduct.

The Appellate Division also noted that although the arbitration award was not issued in a timely manner, Teacher was not prejudiced by the delay.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01505.htm

Providing a reasonable accommodation of an employee’s disability

Providing a reasonable accommodation of an employee’s disability
2014 NY Slip Op 01550, Appellate Division, First Department

An employee [Plaintiff] sued her employer contending that it had failed to provide her with a reasonable accommodation of her disability when it refused to reassign her to a particular location.

Supreme Court dismissed Plaintiff’s complaint and the Appellate Division affirmed the lower court’s ruling.

The court said that the employer had established that its refusal to agree to Plaintiff’s request to be reassigned to a certain work location did not constitute a refusal to make a reasonable accommodation of her disability.

The Appellate Division noted that there was no position available at the location Plaintiff desired, and, citing Pimentel v Citibank, N.A., 29 AD3d 141, said that in any event, "an employer is not obligated to provide the disabled employee with [an] accommodation that the employee requests or prefers."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01550.htm
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Individual’s unsatisfactory annual performance rating annulled in the absence of rationally based administrative findings

Individual’s unsatisfactory annual performance rating annulled in the absence of rationally based administrative findings

2014 NY Slip Op 01501, Appellate Division, First Department

A New York City school teacher [Teacher] filed an Article 78 petition challenging the New York City Board of Education’s denial of her appeal of her unsatisfactory annual performance rating. Supreme Court granted the Board’s motion to deny the teacher’s petition and dismissed the proceeding.

The Appellate Division unanimously reversed the lower court’s decision “on the law.” It then granted Teacher’s petition and annulled the challenged unsatisfactory annual performance rating.

The court said that Board’s determination to sustain Teacher’s unsatisfactory performance rating was not rationally based on administrative findings that Teacher had acted in an insubordinate manner and refused to adhere to the directives of the principal during the school year.

In addition, the Appellate Division found that Teacher had established that the Board had violated its own rules, procedures and guidelines contained in its human resources handbook "Rating Pedagogical Staff Members" by placing certain disciplinary letters in Teacher’s personnel file which neither contained Teacher's signature acknowledging receipt of the letters nor a witness' statement attesting to Teacher's refusal to sign the documents in question..

The decision notes that neither the principal who made the allegations against Teacher nor any other witness testified at the hearing.

Under the circumstances, the Appellate Division said that remittitur to Supreme Court for service of an answer to Teacher’s petition by the Board was not warranted "as the facts have been fully presented in the parties' papers and no factual dispute remains."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01501.htm
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