Challenging an unsatisfactory annual performance rating

Challenging an unsatisfactory annual performance rating

2015 NY Slip Op 04589, Appellate Division, First Department

A teacher [Teacher] brought an Article 78 action against the New York City Department of Education's (DOE) challenging her annual unsatisfactory rating for the 2011-12 school year, Supreme Court dismissed the petition and Teacher appealed.

The Appellate Division sustained the Supreme Court’s ruling holding that Teacher’s unsatisfactory annual rating was not arbitrary and capricious or contrary to law.

Teacher had contended that her supervisor administered the lesson observation on which the rating was based in an arbitrary and capricious manner. The court held that this claim was not supported by the record.*

As to Teacher’s argument that the annual performance rating was made "in violation of lawful procedure" because DOE failed to follow procedural safeguards set forth in their own guidelines, in that it failed to provide her with “a written warning” that she had to improve her performance, the Appellate Division said that Teacher’s argument “lacks merit,” explaining that DOE's rating handbook did not create “any substantive right to receive a written warning” that failure to improve "may result in an unsatisfactory rating."

The Appellate Division also noted that Teacher “went on terminal leave two months after the unsatisfactory observation report,,” retiring one month later, which precluded DOE’s making a second observation which would normally have been the case.

* The court noted that Teacher’s principal's hearing testimony clarifying the reasoning behind the unsatisfactory annual rating.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04589.htm

Discourteousness, refusal to follow directives and failure to accept work assignments lead to employee’s dismissal from the position

Discourteousness, refusal to follow directives and failure to accept work assignments lead to employee’s dismissal from the position2015 NY Slip Op 04746, Appellate Division, First Department

The New City Commissioner of Police Commissioner terminated the services of a civilian employee [Petitioner] of Police Department after she was found guilty of a number of disciplinary charges.

The Appellate Division sustained the Commissioner’s decision.

The court said that substantial evidence supported the determination that Petitioner had engaged in numerous acts of misconduct, including:

1. Discourteousness to coworkers and supervisors;

2. Refusal to follow the directives of her supervisors; and

3. Failure to accept appropriate work assignments.

Although Petitioner contends that the uniformed police personnel were hostile to her because of her union activities, she admitted making some of the charged statements and refusing to accept work assignments.

The Appellate Division also observed that “The record reflects that testimony of a civilian employee also supported some the allegations of misconduct.”

Finding no basis to disturb the credibility determinations of the Hearing Officer, the court said that the penalty of termination did not shock its sense of fairness in view of the number of incidents involved, and given Petitioner's prior disciplinary record.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04746.htm

___________

A Reasonable Disciplinary Penalty Under the Circumstances - a 442-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on

http://booklocker.com/books/7401.html

_____________

Inappropriate sexual relationship with a minor

Inappropriate sexual relationship with a minor

OATH Index No. 1227/15.

Administrative Law Judge Alessandra F. Zorgniotti found that a correction officer had engaged in an inappropriate relationship with a minor. She did not credit respondent's testimony than he thought the minor was 18 years old, because it was contradicted by more credible testimony from the girl, her mother and her step-father, who testified that the step-father than told respondent that the girl was 16 and that he should leave her alone.

Due to respondent's law enforcement status, his actions of pursuing a 16-year girl, taking her places without her parents' knowledge and against their express wishes, and engaging in sexual contact with her bore a nexus to his job. Termination of employment was recommended.  

Posted on the Internet at: http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15-1227.pdf

_____________

The Discipline Book - A concise guide to disciplinary actions involving public employees in New York State set out in a 448 page e-book. For more information click on
http://thedisciplinebook.blogspot.com

_____________

Disclosure of confidential information

Disclosure of confidential information
OATH Index No. 984/15.

Administrative Law Judge John B. Spooner sustained charges that agency attorney had disclosed confidential information through emails to a private attorney representing an inmate in a lawsuit against the City in violation of Department rules and state and city laws.

ALJ Spooner found mitigation in the attorney’s long unblemished service record, his forthrightness when confronted with the emails, his acknowledgment that he made a mistake, his expression of remorse and previously served 30-day pre-hearing suspension.

Posted on the Internet at:http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-984.pdf[Modified on penalty: Commissioner imposed the penalty of termination of employment, finding the attorney had breached the attorney-client privilege and his disclosures rendered him a security risk to the Department.]

_____________

A Reasonable Disciplinary Penalty Under the Circumstances - a 442-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on

http://booklocker.com/books/7401.html

_____________

Definition of full day worked for certain employees who contract for other than a 5-day standard work week [I.D. No. AAC-24-15-00004-P] amending 2 NYCRR 315.3(b)(4)(ii)

Definition of full day worked for certain employees who contract for other than a 5-day standard work week [I.D. No. AAC-24-15-00004-P] amending 2 NYCRR 315.3(b)(4)(ii)

Source: New York State Register, June 17, 2015

The purpose of the amendment of 2 NYCRR 315.3(b)(4)(ii), show below in italics, is to define full day worked for certain employees who contract for other than a 5 day standard work week. This is a “Consensus Rule Making Determination” for the sole purpose of defining a full day worked for certain full time employees. This amendment relates to the definition of a full day worked for certain full time employees and it has been determined that no person is likely to object to the adoption of the rule as written.

(ii) A full day worked shall be any day on which the employee performs paid service for at least the standard number of hours required for the position in which such service is rendered. In no event shall less than six hours be considered to be a full day.

For full time employees performing services pursuant to a collective bargaining agreement or contract that provides for other than a five day standard work week paid at straight time, an employer may report them at full time per their payroll cycle, provided the cumulative number of hours equal at least 120 hours a month. A full day worked for such employees shall be a minimum of six hours of accumulated time worked and paid at the straight time rate. The minimum number of hours which shall be reported as days worked, for the purpose of reporting preliminary credit, for a full year of service credit for such employees is 1,560 hours.

Public comment will be received until: 45 days after publication of this notice – June 17, 2015. Views or arguments may be submitted to:

Jamie Elacqua, Office of the State Comptroller, 110 State Street, Albany, NY 12236, (518) 473-4146, 

Email: jelacqua@osc.state.ny.us