Penalty of termination imposed on a employee found to have been conducting private business activities "on company time"

Penalty of termination imposed on a employee found to have been conducting private business activities "on company time"

Ficken v Suffolk Vocational Education Board, 238 A.D.2d 589

An employee of Suffolk County's Vocational Education and Extension Board [VEEB] was conducting a personal business activity while employed simultaneously being employed by VEEB. The problem was that the employee was alleged to have conducted some of her personal business on VEEB property and on VEEB time.

Although warned several times not to conduct her personal business affairs while on VEEB property and that her failure to comply with directive could result in disciplinary action, the employee persisted in conducting some of her personal business while at work.

This resulted in the employee being charged with and found guilty of, misconduct, characterized as theft of services. The penalty imposed: termination. 

The employee appealed the disciplinary action taken against her, claiming that there was no substantial evidence to support the appointing authority's determination. 

The Appellate Division disagreed and dismissed the appeal challenging the disciplinary action taken against her. The court explained that the employee's admission that she met with a client to conduct aspects of her business on VEEB property and on "VEEB time," coupled with the testimony of two co-workers that the employee typed documents related to her business activities while "at work," was "sufficient to provide substantial evidence to sustain the findings of misconduct."

As to the penalty imposed, the Appellate Division, citing Pell v Board of Education, 34 NY2d 222, said that under the circumstances, dismissal was not so disproportionate to the offense as to be "shocking to one's sense of fairness."

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Employer's "legitimate, independent, and nondiscriminatory reasons" for its personnel actions trumps employee's complaint of discrimination and retaliation

Employer's "legitimate, independent, and nondiscriminatory reasons" for its personnel actions trumps employee's complaint of discrimination and retaliation

Cubelo v City of New York, 2019 NY Slip Op 00689, Appellate Division, First Department

The Plaintiff in this action, who was born in Spain, contended that he was passed over for several promotions by the New York City Department of Transportation [DOT] as a result of DOT's giving persons of South Asian descent preference in promotions. He also claimed that DOT retaliated against him after he had filed complaints alleging unlawful discrimination and a union grievance by "transferring* him to a lesser position" in violation of the State** and City Human Rights Laws.***

The Appellate Division said that DOT had established, prima facie, "legitimate, independent, and nondiscriminatory reasons" for the personnel actions underlying Plaintiff's complaints. The court explained that the record supports DOT's explanation that the candidates selected for promotion over Plaintiff were chosen because the individuals appointed "were better qualified for the job, having advanced degrees and directly relevant experience that [Plaintiff] did not possess."

Although Plaintiff contended that these candidates were actually promoted as a result of preferential treatment toward employees of South Asian descent, the Appellate Division noted that Plaintiff failed to submit evidence that in making these decisions his supervisors took into account the fact that he was not of South Asian descent. Further, said the court, Plaintiff's contention that the real reason for the decisions constituted unlawful discrimination was undermined by the fact that a woman of Polish descent was ultimately hired to occupy one of the four positions for which he applied and that Plaintiff failed to raise an issue of fact whether DOT's proffered reasons concerning the promotions were false and a pretext for, or motivated at least in part by, discrimination.

Addressing Plaintiff's allegations of retaliation after he had filed discrimination complaints and grievances, the court said that DOT had also established prima facie that Plaintiff's departmental transfer was not made in retaliation for his complaints of discrimination because it did not constitute an "adverse employment action" or an "action that disadvantaged him."

As to Plaintiff's filing a grievance with his union, his grievance alleged that he was performing out-of-title work in his former position. The Appellate Division pointed out that Plaintiff's reassignment was initiated as a remedy for the grievance and Plaintiff continued to earn the same salary and benefits while serving in the same title in his new position.

The Appellate Division unanimously affirmed Supreme Court's granting DOT's motion for summary judgment dismissing Petitioner's complaint.  

* The movement of an individual from one position to a second position subject to the jurisdiction of the same appointing authority is typically described as a "reassignment." In contrast, the movement of an employee from one position to a second position under the jurisdiction of a different appointing authority is typically characterized as a "transfer."  Although the term "transfer" is used in this decision to describe the personnel action Plaintiff experienced, the term "reassignment" is, in opinion of NYPPL's editor, the appropriate term to describe the relevant "personnel action" in this instance. Contrast, for example, 4 NYCRR 1.2(b)(1) with 4 NYCRR 1.2(b)(2).

** See Executive Law §296.

*** See Administrative Code of City of NY §8-107.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_00689.htm

Applying compensation limitations retroactively

Applying compensation limitations retroactively

People v Edward J. Murphy, 235 A.D.2d 554

In 1993 certain limitations on the amount of compensation that a BOCES Superintendent could receive were enacted into law [Chapter 295, Laws of 1993].

In the Murphy case the Appellate Division concluded that the limitations set out in Chapter 295 did not apply retroactively.

The case arose when the State attempted to recover a portion of what the Appellate Division described as an "overly generous BOCES compensation package (which included extensive sick and vacation leave time and the right to liquidate this leave at full-pay)" granted to its then BOCES Superintendent Edward J. Murphy.

The Court said that "while improvident, BOCES' offer to Murphy, and his acceptance of the overly generous BOCES compensation package ... did not violate any articulated public policy." 

Further, the Court ruled that although the law now places a limitation on the amount of compensation that a BOCES superintendent may receive, "at the time Murphy began working at BOCES and continuing throughout his tenure as the BOCES district superintendent, the law provided for no such restrictions. Accordingly, the Court decided, Murphy's employment agreements with BOCES were neither illegal nor unauthorized.

The ruling suggests that all or part of a "compensation package" in place prior to the effective date of the enactment or the amendment of a law limiting the compensation of a public officer or a public employee then in service may survive judicial challenge even if the compensation package is in excess of that authorized by the law as enacted or amended.

The decision is posted on the Internet at:

https://www.leagle.com/decision/1997789235ad2d5541272

Accessing the personnel records of law enforcement personnel

Accessing the personnel records of law enforcement personnel

Ferrara v Superintendent, Division of State Police, 235 A.D.2d 874,  Appeal dismissed, 90 N.Y.2d 829, Defendant's motion to dismiss appeal granted, 26 F.Supp.2d 410

A prisoner at the Oneida Correctional Facility, submitted a Freedom on Information request to the Division of State Police seeking "records of disciplinary action taken against members of the State Police" as the result of an internal investigation.

The Appellate Division, in sustaining the Division's refusal to provide such information, explained that such records are specifically exempted from disclosure under Civil Rights Law §50-a.

In a similar cases, Nassau County Police Department v Kevin, 237 A.D.2d 354, the Appellate Division quashed a judicial subpoena issued by a District Court that ordered the production of "internal police directives and orders" that it was alleged would establish the existence of a quota system for making arrests for driving while intoxicated on the Long Island Expressway. 

See, also, 166 Misc.2d 207. Here the driver of a motor vehicle had been arrested for allegedly driving 85 miles an hour while intoxicated by Nassau County Police. The Appellate Division said the driver presented nothing to support his claim and that a subpoena may not be used "to fish for impeaching material".

The decision is posted on the Internet at:

https://www.leagle.com/decision/19971109235ad2d8742420

Sending threatening texts messages to a co-worker

Sending threatening texts messages to a co-worker

OATH Index No. 2411/18

An employee was served with disciplinary charges pursuant to Section 7.5 of the Personnel Rules and Regulations of the Health and Hospitals Corporation alleging that he sent threatening text messages to another employee of the Corporation. The employee apologized for his actions the next day and subsequently took, and completed, five months of counseling and anger management training and received a certificate confirming that he had successfully completed the treatment program.

OATH Administrative Law Judge John B. Spooner, in consideration of the employee's sincere expressions of remorse and his substantial efforts to deal with his anger control issues, recommended that the appointing authority impose a penalty of a 60-day suspension, without credit for employee's 30-day pre-hearing suspension without pay.

Section 7.5.5 of HHC's Personnel Rules and Regulations, "Sustaining of Charges - Penalty," provides as follows:

If the charges are sustained, the penalty or punishment may consist of the following and the time which the employee is suspended without pay pending the hearing may be considered as part of the penalty:

a) A reprimand; or
b) A fine not to exceed $100.00 to be deducted from his/her salary; or
c) Suspension without pay not exceeding two months; or
d) Demotion in grade and title; or 
e) Dismissal from service.

Similarly, §75.3 of the Civil Service Law provides, in pertinent part, "that the time during which an officer or employee is suspended  without pay may be considered as part of the penalty."

However both §7.5.4 of the Personnel Rules and Regulations of the Health and Hospitals Corporation and §75.3 of the Civil Service Law, in pertinent part, state that if the employee is acquitted of the disciplinary charges, the individual shall be restored to the position with full pay for the period of the suspension without pay, less the amount of any unemployment insurance benefits or wages the individual received during that period.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-2411.pdf

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