A two-month suspension without pay rather than termination ruled the appropriate penalty in view of employee's 29 years of service and her previously unblemished work record

A two-month suspension without pay rather than termination ruled the appropriate penalty in view of employee's 29 years of service and her previously unblemished work record

2014 NY Slip Op 04660, Appellate Division, Fourth Department

A senior account clerk-typist [Petitioner] was charged with incompetence and misconduct in the performance of her duties. The hearing officer sustained one of the three specifications of incompetence and one of the two specifications of misconduct and recommended that Petitioner be placed on “an employee improvement plan” in lieu of discipline. The appointing authority adopted the findings of the hearing officer and sustained an additional specification of incompetence. It then imposed the penalty of termination and dismissed the Petitioner.

After reviewing all of the disciplinary charges and specifications filed against the employee, the Appellate Division said that it was “left with two specifications of incompetence, i.e., failure to bill for services in a timely manner and failure to deposit cash and checks in a timely manner.”

The Appellate Division said that the appointing authority acknowledged that Petitioner did not misuse or misappropriate any of the funds at issue, and there was no evidence that the employer had lost revenue or otherwise suffered financial harm as a result of Petitioner's delay in processing invoices or preparing funds for deposit. Further, said the court, the record showed that there were several factors beyond Petitioner's control that contributed to the delays and the appointing authority conceded that there were no rules, regulations, or written policies with respect to the timing of invoices or deposits, and Petitioner's direct supervisor testified that he never directed Petitioner to send out invoices or prepare funds for deposit within a particular period of time.*

The court noted that although there was a six-month period during which Petitioner failed to prepare any invoices, the record reflects that Petitioner was ill and intermittently absent from work during several of those months, that no one performed Petitioner's duties during her absence, and that several of Petitioner's completed invoices were inadvertently deleted by the employer’s informational technology department.

Accordingly, the Appellate Division “unanimously modified on the law” the appointing officer’s determination part of the determination and vacated the penalty of termination imposed by the appointing authority.

The court concluded that the penalty of termination is "so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness," citing Matter of Pell, 34 NY2d 222.  233; see Johnson, 281 AD2d at 895). It then explained that "[A] result is shocking to one's sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally.”

In our view, said the Appellate Division, “the penalty of termination is particularly unfair in light of Petitioner's long service to the City and her previously unblemished work record,” noting that prior to the initiation of this disciplinary action Petitioner had worked for the City for 29 years and had never been disciplined, threatened with discipline, or counseled with respect to her job performance.

Under the circumstances, the Appellate Division concluded that "the maximum penalty supported by the record" is a two-month period of suspension without pay.

* The court noted that although there was a six-month period during which Petitioner failed to prepare any invoices, the record reflects that Petitioner was ill and intermittently absent from work during several of those months, that no one performed Petitioner's duties during her absence, and that several of Petitioner's completed invoices were inadvertently deleted by the employer’s informational technology department.

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Insubordination, neglect of duty, and unbecoming conduct

Insubordination, neglect of duty, and unbecoming conduct

OATH Index No. 1372/14

A respiratory therapist [RT] was charged with insubordination, neglect of duty, and unbecoming conduct. OATH Administrative Law Judge Faye Lewis found that RT neglected his duty by failing to answer multiple telephone calls from the emergency room relating to a trauma patient and failing to respond to the emergency room in a timely manner. 

However, the appointing authority did not establish that RT was insubordinate or that he engaged in unbecoming conduct by initiating an argument with staff. Penalty recommended was a 60-day suspension without pay.

The decision is posted on the Internet at: http://archive.citylaw.org/oath/11_Cases/14-1372.pdf

Failure to name necessary parties required the dismissal of an appeal to the Commissioner of Education

Failure to name necessary parties required the dismissal of an appeal to the Commissioner of Education

Decisions of the Commissioner of Education, Decision No. 16,607

This appeal concerned the school district’s alleged failure to recall an individual whose name appeared on the relevant preferred eligible list who claimed to have greater seniority that those reinstated from the preferred list.

It is instructive in that it again illustrates the critical need to join necessary parties, a party whose rights would be adversely affected by a determination of an appeal in favor of a Petitioner.

Further, joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense.

In this instance, said the Commissioner, if the Petitioner’s request for relief were granted, the rights of the three duly certified teachers earlier appointed, each of whom allegedly had less seniority in the relevant tenure area than Petitioner, could be adversely affected, thus making those teachers necessary parties to this action.

As Petitioner failed to name and serve these individuals, the Commissioner dismissed Petitioner’s appeal.

The Commissioner also noted that that Petitioner had named the superintendent in the petition. However, there was no evidence in the record that the superintendent was personally served and thus Petitioner’s claims against the superintendent were also be dismissed for lack of personal service.

As to Petitioner request attorney fees and reimbursement for the costs and disbursements of this proceeding, the Commissioner noted that there was no statutory authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310.

A court will confirm an arbitration award unless it finds the award irrational or violates public policy, or exceeds a specifically enumerated limitation on the arbitrator's power

A court will confirm an arbitration award unless it finds the award irrational or it violates strong public policy, or it exceeds a specifically enumerated limitation on the arbitrator's power

Professional Firefighters Assn. of Nassau County v Village of Garden City, 2014 NY Slip Op 05343, Appellate Division, Second Department

The Village Garden City assigned volunteer firefighters to operated “first line” equipment rather than to paid firefighters represented by the Professional Firefighters Association of Nassau County. The Association grieved the Village’s action and the arbitrator held that the Village had violated the relevant collective bargaining agreement by assigning the operation of first line equipment to volunteer firefighters.

When the Association filed an Article 75 petition seeking to confirm the award, the Village moved to vacate the arbitrator’s decision. Supreme Court vacated the arbitrator’s award and the Association appealed.

The Appellate Division reversed the Supreme Court order on the law, with costs, confirming the arbitration award is granted. The court explained that arbitration decisions are entitled to deference from the courts and will not be disturbed unless they are irrational, violate public policy, or exceed a specifically enumerated limitation on the arbitrator's power.

Rejecting the Village’s argument to the contrary, the Appellate Division said that “challenged arbitration award did not exceed a specifically enumerated limitation on the arbitrator's power.’  Rather, said the court, the arbitrator acted within her broad authority under the collective bargaining agreement by relying upon the prior agreements and past practices of the parties in interpreting the provisions of the agreement, and in determining that the Village violated it by assigning the operation of first line equipment to volunteer firefighters rather than to paid firefighters represented by the [Association].

As the arbitrator's award was neither irrational nor violative of public policy, the Appellate Division held that Supreme Court erred in denying that branch of the petition which was to confirm the award and in granting the Village's motion to vacate it.

The New York City Metropolitan Transportation Authority is seeking applicants for the position of Deputy General Counsel – Employment

The New York City Metropolitan Transportation Authority is seeking applicants for the position of Deputy General Counsel – Employment

The Deputy General Counsel – Employment reports to the General Counsel and serves as the Metropolitan Transportation Authority’s senior in-house employment law expert.

Duties include managing the employment functions of the MTA Headquarters Legal Department; representing the MTA in litigation and administrative matters before federal and state courts and various administrative agencies, including the Equal Employment Opportunity Commission, State Division of Human Rights and State Public Employment Relations Board, providing day-to-day legal advice and counsel to MTA's Human Resources and Labor Relations Departments and Department of Diversity and Civil Rights regarding employment, employment discrimination and labor issues and for developing policies and procedures in those areas.

Other duties include:

■ Coordinating with the MTA's subsidiary and affiliated agencies' law departments, equal employment opportunity specialists and human resources managers concerning certain all-agency policies and initiatives in the labor and employment areas;

■ Advising MTA and its agencies on issues involving Title VI, environmental justice, equal employment opportunity, personal privacy protections (including HIPAA), MTA's disadvantaged, minority and women-owned business enterprise ("DMWBE") programs, Paratransit and ADA station accessibility matters;

■ Coordinating reporting by the MTA and its agencies to MTA's Board and to federal and state regulatory authorities, including the Federal Transit Administration concerning Title VI, equal employment opportunity and MTA's DMWBE programs;

■ Advising MTA management concerning the legal risks related to employment practices to protect MTA's interests; and

■ Supporting the General Counsel in the performance of his accountabilities by providing him with legal and policy advice representing the MTA in complex and sensitive special assignments as requested by the General Counsel..

The Deputy General Counsel – Employment will be expected to provide guidance, advice, and general supervision to assistant and, or, associate counsels.

Additional information concerning this position is posted on MTA's Internet Careers page.

Interested attorneys may submit their “online application” form by clicking on the “APPLY NOW” button from either the MTA’s CAREERS page or from the JOB DESCRIPTION page, which can be found at:

https://erecruit.mtabsc.info/psc/ERPRD/EMPLOYEE/HRMS/c/HRS_HRAM.HRS_CE.GBL?&PAGE=HRS_CE_HM_PRE

under MTA Headquarters jobs. 

If you have previously applied on line for other MTA positions, enter your User Name and Password.  If it is your first registration, click on the CLICK HERE TO REGISTER hyperlink and enter a User Name and Password; then click on the REGISTER button.
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