Assessing the appropriate penalty to be imposed for unprofessional and disrespectful language in the workplace

Assessing the appropriate penalty to be imposed on an employee found guilty unprofessional conduct and using disrespectful language at the workplace

OATH Index No. 0073/17

A New York City Office of Administrative Trials and Hearings Administrative Law Judge [ALJ] found that an Eligibility Specialist employed by the City's Human Resources Administration [HRAHHRA] inefficiently performed her duties by holding seven cases for 22 or more days and delaying the processing of a client’s application for months.

In addition, Judge Ingrid M. Addison found that the Eligibility Specialist violated multiple rules of HRA's Code of Conduct by being verbally abusive to co-workers at her workplace; failed to efficiently perform her duties; was insolent to, and refused to meet with, HRA's deputy director when directed to do so, was discourteous to a client in the presence of other clients and failed to follow a supervisor’s instructions.

Finding that HRA, however, failed to prove other Charges and Specifications of misconduct alleged in the notice of discipline served upon her.

Considering the record made at the Civil Service Law §75 disciplinary hearing, the ALJ recommended that the Eligibility Specialist be suspended from her employment without pay for 30 days, the penalty urged by HRA, commenting that "Even though [HRA] did not prove the five charges [preferred against the employee] in their entirety, I find [HRA's] request to be appropriate."

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17-73.pdf

Disciplinary hearing officer permitted to "draw the strongest inferences" from the record in the event the charged individual declines to testify at his or her disciplinary hearing

Disciplinary hearing officer permitted to "draw the strongest inferences" from the record in the event the charged individual declines to testify at his or her disciplinary hearing

Varriale v City of New York, 2017 NY Slip Op 02513, Appellate Division, First Department

The Appellate Division affirmed the decision to terminate a tenured New York City school teacher [Petitioner]. Noting that Petitioner showed no remorse nor appreciation for the seriousness of her conduct, the Appellate Division said that as Petitioner declined to testify at her administrative disciplinary hearing, "the hearing officer was permitted to draw the strongest inference against her permitted by the record."

The court said that the record indicated that Petitioner had "strayed from her duties as a school teacher by deliberately escalating a confrontation with a student by yelling expletives and threatening him with violence."

The Appellate Division's decision also noted that: "Even after security personnel defused the situation by removing the student from the classroom, Petitioner subsequently confronted him again, later that day, yelling at least six times that her husband, an armed police officer, would kill him. Petitioner then brought her husband to school the following morning to the student's scheduled class in the gymnasium although the student, having been suspended from school, was not there."

The court said that although Petitioner was a thirteen-year employee with no prior disciplinary history, and no charges had ever previously been filed against her, in light of the seriousness of the allegations made against her, the penalty of termination was not shocking to one's sense of fairness.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_02513.htm

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Challenging an employee's termination during his or her disciplinary probation period

Challenging an employee's termination during his or her disciplinary probation period

Woods v State Univ. of N.Y., 2017 NY Slip Op 03083, Appellate Division, Third Department

In 2013 a member of a collective bargaining unit [Employee] represented by the New York State Correctional Officers and Police Benevolent Association, Inc. [Union] was placed on disciplinary probation in the course of a disciplinary arbitration conducted pursuant to the relevant collective bargaining agreement.

In 2014 the employer, State University of New York [SUNY], summarily terminated Employee from his probationary employment following a negative performance evaluation. The Union commenced a proceeding seeking to compel arbitration of Employee's termination pursuant to CPLR §7503 or, alternatively, to vacate and annul SUNY's decision terminating Employee while he was serving the disciplinary probationary period pursuant to CPLR Article 78.

Supreme Court converted the proceeding to an application to confirm the 2013 arbitration award; the Appellate Division reversed and granted the Union's petition to compel arbitration (see 139 AD3d 1322). Ultimately the Court of Appeals reversed Appellate Division's order and remitted the matter to it "for consideration of the facts and issues raised but not determined on the appeal" (see 28 NY3d 1140).

Upon remand, the Appellate Division noted that the parties had agree, and it concurred, that Supreme Court erred in treating the petition as an application to confirm the 2013 award and in remitting the matter to the arbitrator for clarification. The Appellate Division explained that "[a]n arbitrator's authority extends to only those issues that are actually presented by the parties. Thus, an arbitrator may not reconsider an award — regardless of whether the request is couched as a clarification or a modification — if the matter was not previously raised in arbitration."

The Appellate Division's decision also noted that at the commencement of the 2013 arbitration the Union and SUNY stipulated to allow the arbitrator to decide whether Employee was guilty of the past misconduct as alleged and, if so, what the appropriate penalty should have been. Significantly, the arbitrator was not asked to interpret any term in the contract or make a ruling that would define or affect the employer/employee relationship going forward and neither party sought to modify, confirm or vacate the award after it was issued.

Although the Union sought an order by Supreme Court to compel SUNY to arbitrate the 2014 termination, the Appellate Division said that this was error and Supreme Court "should not have remitted the issue for resolution by the arbitrator who decided the 2013 disciplinary action."

Addressing the Union's allegation that SUNY acted in bad faith when it decided to terminate Employee, the Appellate Division said that "[a] probationary employee may challenge a termination only by demonstrating that the dismissal was in bad faith or done for an improper reason."* Further, said the court, "a probationary employee is not necessarily entitled to a hearing or even an explanation unless there is proof that the discharge was unconstitutional or violated the law." To successfully challenge a probationary termination, the individual is required to submit "proof sufficient to raise a question of fact as to whether the dismissal was due to causes unrelated to work performance and/or improperly motivated."

Here, said the court, SUNY's submissions, "which are not disputed," confirmed that Employee "was terminated for a valid reason, that is, poor work performance."

*N.B. The decision Taylor v Cass, 122 A.D.2d 885, illustrates another the critical element for an appointing authority to consider when terminating an individual serving a disciplinary probationary period. Taylor, a Suffolk County employee, won reinstatement with full retroactive salary and contract benefits after demonstrating that he had been improperly dismissed while serving his disciplinary probation period. The terms of his probation provided that Taylor could be terminated without any hearing if, in the opinion of his superior, his job performance was “adversely affected” by his “intoxication on the job” during the next six months. Taylor, however, was subsequently terminated without a hearing for “failing to give a fair day’s work” and “sleeping during scheduled working hours.” The Appellate Division ruled that Taylor's termination from his probationary employee was improper because Taylor was not terminated for the sole reason specified in the agreement settling the disciplinary action: intoxication on the job.

The Woods decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_03083.htm

The Taylor decision is posted on the Internet at:

https://www.leagle.com/decision/19861007122AD2d885_2320/MATTER%20OF%20TAYLOR%20v.%20CASS

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The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html

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New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending April 22, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending April 22, 2017

Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR

Assistant Director Affiliated with Queens Pre-School Provider Pleads Guilty to Stealing $5 Million Intended for Special Needs Students

New York State Comptroller Thomas P. DiNapoli and Queens District Attorney Richard A. Brown announced that Rabbi Samuel Hiller, the former assistant director of Island Child Development Center, once one of New York City's largest providers of special education services to pre-schoolers with disabilities, pleaded guilty to stealing $5 million in city and state funding between 2005 and 2012—money that was intended for special needs students between ages three to five.

Volunteer Fire Company Treasurer alleged to have embezzled over $55,000 of the fire company's funds for personal use

On April 18, 2017, Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the arrest and arraignment of Gail E. Cesternino, for allegedly embezzling over $55,000 from the West Ghent Volunteer Fire Company. The indictment  charges Cesternino with Grand Larceny in the Second Degree and thirteen counts of Falsifying Business Records in the First Degree. It should be remembered that these charges against Cesternino are merely accusations and she is presumed innocent unless and until proven guilty in a court of law.

According to the Indictment and papers filed in court on April 18, 2017, Cesternino is alleged to have used her position as the Fire Company's Treasurer to regularly withdraw cash, issue herself checks and charge personal expenses on the Fire Company's credit card, including purchases for her personal sales business.

The indictment is the result of an investigation conducted by the State Comptroller's Office Division of Investigations and the Attorney General's Public Integrity Bureau.

This case is the latest joint investigation under the Operation Integrity partnership of the Attorney General and Comptroller, which to date has resulted in dozens of convictions and more than $11 million in restitution.

The Comptroller's investigation was conducted by the Comptroller's Division of Investigations working with the Division of Local Government and School Accountability.

Assistant Attorney General Bridget Holohan Scally of the Attorney General's Public Integrity Bureau is prosecuting this case under the supervision of Public Integrity Bureau Chief Daniel Cort and Deputy Bureau Chief Stacy Aronowitz.

This matter was investigated by the State Comptroller's Division of Investigations, along with Mark Spencer of the Attorney General's Investigators Bureau, which is led by Deputy Chief Antoine Karam and Chief Dominick Zarrella. Legal Analyst Sara Pogorzelski worked on the matter as well.

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.state.ny.us, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236.

Department of Audit and Control auditors halt payment of suspicious 2016 tax refunds

On April 17, 2017, State Comptroller Thomas P. DiNapoli announced that his office stopped $21.3 million in questionable or fraudulent personal income tax refunds from being paid so far in 2017.

DiNapoli’s office paid out 4.6 million state refunds totaling $4.4 billion to date. Another 471,000 refunds totaling $466 million are expected to be paid in the coming days.

The Comptroller said: “My auditors are committed to safeguarding the funds of honest New Yorkers ... [w]e’ll stay one step ahead of the schemes used by tax cheats, and look to ensure only legitimate refunds are paid.”

DiNapoli’s office audits New York state personal income tax refunds prior to payment. The Comptroller’s auditors work cooperatively with the Department of Taxation and Finance to stop questionable refunds and to ensure timely payment of legitimate refunds. DiNapoli’s auditors perform their review after the department completes its own tax return audit.

The majority of questionable refunds stopped were for returns filed by taxpayers who claimed refundable credits based on incorrect information such as fake or inflated dependents or understated income. Auditors also stopped over $2.2 million in refunds that were linked to unscrupulous tax preparers filing false returns. Other popular scams include using questionable social security numbers and intentionally misstating deductions. 

Municipal Audits released

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

Village of Endicott -- Budget Review

Village of Hempstead – Budget Review

Town of Hoosick -- Departmental Cash Collections and Sales Tax Allocation

Town of Lake Pleasant – Credit Cards  

Town of Newfane – Supervisor's Financial Records and the

Village of Sandy Creek – Cash Receipts and Disbursements

New York State Comptroller announced the release of the following State Audits

Office of Information Technology Services (OITS): Security and Effectiveness of Division of Criminal Justice Services' Core Systems (Follow-Up) (2016-F-28)

An initial audit issued in February found that OITS did not have established policies and procedures for backup of key division systems. In a follow-up, auditors found OITS officials have made some progress in correcting the problems identified in the initial report. However, improvements are still needed.

Dormitory Authority of the State of New York (DASNY): Monitoring of Prevailing Wage Compliance on Construction Contracts (2015-S-99)

DASNY has implemented appropriate controls to meet its specific prevailing wage responsibilities,. However, although DASNY project managers and field representatives visited construction projects, they did not routinely inspect the sites to ensure that prevailing wage rates were posted, as required.

Department of Corrections and Community Supervision (DOCCS): Inmate Sentence Calculation and Release Practices (2016-S-43)

Auditors found DOCCS has appropriate procedures in place to ensure that it accurately determines inmate release dates. Tests of sentencing calculations for a sample of 60 inmates found proper procedures were followed in all the cases selected, and the sentences were accurately calculated. However, DOCCS records showed that during the audit period five inmates were released between two weeks and 12 months early because department procedures were not followed.

New York City Department of Housing Preservation and Development (HPD): Administration of the Article 8-A Loan Program (Follow-Up) (2016-F-24)

An initial audit issued in September 2014, examined whether the loans awarded by HPD under the Article 8-A Loan Program were being used only for qualified projects and their intended purpose and whether loan recipients were complying with the requirements of their loans with respect to correcting violations and making other needed repairs. In a follow-up, auditors determined HPD officials made little progress addressing the problems identified in the initial audit report and additional actions are still needed.

State Education Department (SED): Spotted Zebra Learning Center, Inc., Compliance with the Reimbursable Cost Manual (2016-S-81)

During the 2013-14 school year, Spotted Zebra provided three SED-funded, rate-based preschool special education programs to 43 children from school districts located in Albany, Columbia, Rensselaer, and Saratoga counties. For the three years ended June 30, 2014, Spotted Zebra reported over $2.5 million in reimbursable costs for the rate-based preschool special education programs it operated. Auditors found that the personal service costs tested were in compliance with SED’s requirements. However, they identified $13,058 in other than personal service costs that Spotted Zebra that did not comply with SED’s prescribed requirements for reimbursement.

State Education Department: ACDS Inc., Compliance with the Reimbursable Cost Manual (2016-S-76)

During the 2013-14 school year, ACDS provided four SED-funded, rate-based preschool special education programs to 213 children from school districts located in Nassau, Queens, and Suffolk counties. For the fiscal year ended June 30, 2014, ACDS reported $4,752,257 in reimbursable costs for the rate-based preschool special education programs it operated. For the fiscal year ended June 30, 2014, the personal service costs claimed by ACDS that were tested were in compliance with SED’s requirements. However, auditors identified $30,104 in other than personal service costs that did not comply with SED’s prescribed requirements for reimbursement.

State Education Department: North Country Kids Inc., Compliance with the Reimbursable Cost Manual (2016-S-53)

North County provides preschool special education services to children with disabilities who are between three and five years of age. North Country is reimbursed for preschool special education services through rates set by SED. For the two fiscal years ended June 30, 2014, North Country reported $2.6 million in reimbursable for the rate-based preschool special education programs it operated. For the two years ended June 30, 2014, auditors identified $79,084 in ineligible costs that North Country reported for the programs. The ineligible costs included: $69,272 in other than personal service costs and $9,812 in personal service costs.

Second Circuit Court of Appeals precedent holds Title VII's prohibition of unlawful discrimination based on "sex" does not encompasses discrimination based on "sexual orientation"

Second Circuit Court of Appeals precedent holds Title VII's prohibition of unlawful discrimination based on "sex" does not encompasses discrimination based on "sexual orientation"

Zarda v Altitude Express, USCA, 2nd Circuit, Docket #15-3775;

Donald Zarda,* a skydiver, alleged that he was terminated from his job as a skydiving instructor because of his sexual orientation. He sued his former employer, Altitude Express, alleging that his termination was in violation of Title VII of the Civil Rights Act of 1964 [42 U.S.C. § 2000e et seq.,] and New York State's Human Right Law [Executive Law Article 15].

The United States District Court, Eastern District of New York, found a triable issue of fact with respect to Zarda's contention that Altitude was in of violation of New York law but granted summary judgment to Altitude with respect to Zarda's Title VII claim. The district court, citing Simonton v Runyon, 232 F.3d 33, observed that Second Circuit precedent holds that Title VII does not protect against discrimination based on sexual orientation. 

Considering Zarda's allegations that Altitude violated New York State's Civil Rights Law, the jury found for Altitude.

On appeal, Zarda asked the Circuit Court's three-judge panel to reconsider the Second Circuit's interpretation of Title VII and hold that Title VII’s prohibition on discrimination based on “sex” includes discrimination based on “sexual orientation.” 

The panel declined to do so, explaining that "a three-judge panel of this Court lacks the power to overturn Circuit precedent."

* Zarda died in a skydiving accident before the case went to trial and two executors of his estate replaced him as plaintiff.

The decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/bea90438-1fa4-4076-a1ff-2065c27c670d/1/doc/15-3775_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/bea90438-1fa4-4076-a1ff-2065c27c670d/1/hilite/