Court vacates dismissal as too harsh a penalty after considering employee's work record

Court vacates dismissal as too harsh a penalty after considering employee's work record
Currithers v Mazzullo, 258 AD2d 460

School bus driver Steadman Currithers pled guilty to driving while his ability was impaired. He was served with disciplinary charges of misconduct and incompetence based on this conviction. Found guilty, the penalty imposed was dismissal from his position as school bus driver. Currithers appealed and won an annulment of the penalty the district had imposed.

The Appellate Division ruled that although Currithers was guilty as charged, the penalty imposed offended the Pell standard [Pell v Board of Education, 34 NY2d 222].

The court said that while the finding that Currithers was guilty of misconduct is supported by substantial evidence, under all of the circumstances of this case, “including the fact that this incident was an isolated act in an otherwise unblemished record of 15 years employment, and in light of [Currithers] unblemished driving record on and off the job prior to this incident, the penalty of dismissal is shocking to one’s sense of fairness” [the Pell standard]. It remanded the matter to the district with instructions that it “impose a new penalty other than dismissal.”
NYPPL

Vindicating an employee's right conferred by law may not be resolved by filing a grievance pursuant to a collective bargaining agreement

Vindicating an employee's right conferred by law may not be resolved by filing a grievance pursuant to a collective bargaining agreement
Marino v Hauppauge UFSD, 262 AD2d 321

If a public employee claims that some action by his or her employer violated his or her statutory rights, may the employer insist that the issue be resolved by the employee filing a grievance under a Taylor Law contract grievance procedure? No said the Appellate Division in the Marino case.

Frank Marino sued his employer, the Hauppauge Union Free School District, alleging that the district had violated his rights under Section 3013 of the Education Law by reducing his annual salary by $4,148.* The district persuaded a State Supreme Court judge to dismiss Marino’s complaint, contending that Marino complaint should be resolved under the grievance procedure set out in the Taylor Law agreement then in place.

The Appellate Division overturned the lower court’s dismissal of Marino’s Article 78 action. The Appellate Division noted that the collective bargaining agreement did provide a grievance procedure to resolve “any dispute between the parties concerning the interpretation of the terms and conditions of [the] agreement”. However, said the court, Marino had not raised any issue relating to the terms and conditions of his employment as set out in the agreement. What he was attempting to do was to “vindicate rights conferred upon him by Education Law Section 3013(1).”

The courts have consistently ruled that the statutory rights of teachers whose positions are abolished pursuant to either Sections 3013 or 2510 of the Education Law may not be changed by a collective bargaining agreement.

For example, in Szumigala v Hicksville Union Free School District, 148 AD2d 621, 539 NY2d 83, the Appellate Division, citing Cheektowaga v Nyquist, 38 NY2d 137, held that a seniority clause in a Taylor Law agreement violated Section 2510 of the Education Law when it permitted seniority in different tenure areas to be combined for the purposes of determining seniority for the purposes of layoff.

Considering a conflict between the CAB and the Civil Service Law, in Matter of City of Long Beach v Civil Serv. Empls. Assn., Inc.—Long Beach Unit, 8 N.Y.3d 465, the Court of Appeals said that where “the terms of the CBA that afford tenure rights to provisional employees after one year of service are contrary to statute and decisional law and therefore any relief pursuant to those terms may not be granted by an arbitrator.”

The same is true with respect to Taylor Law contract provisions that adversely impact upon layoff rights vested in employees in the classified service by Sections 80 or 80-a of the Civil Service Law [see Plattsburgh v Local 788, 108 AD2d 1045].

The Appellate Division, citing a number of cases including Matter of Board of Educ. of Barker Cent. School District, 209 AD2d 945, concluded that Marino “had every right to seek redress for the alleged violation of his statutory rights” by bringing a timely Article 78 action, “even after having begun a grievance procedure which related exclusively to an alleged violation of his contract.”

Why? Because, the court explained, “the issues presented and the remedies sought in each forum were separate and distinct,” quoting from England v Commissioner of Education, 169 AD2d 868, among other cases, in support of its ruling.

* Section 3013 deals with layoff upon the abolishment of a position by a school district or a BOCES and provides, in pertinent part, for the reinstatement of a person who has been laid off to “an office or position similar to the one which such person filled without reduction in salary or increment....”
NYPPL

Termination after failing the National Teacher’s Exam upheld

Termination after failing the National Teacher’s Exam upheld
Feldman, et. al., v Bd. of Ed., City of New York, 262 AD2d 276

Because they had not passed the National Teacher’s Examination, the New York City Board of Education terminated the teaching license it had issued to Sandra Feldman and a number of other teachers employed by the board. The teachers sued, contending that the board’s action in terminating their respective teaching licenses was arbitrary and capricious.

The Appellate Division noted that there were two defects in the action; one procedural and the other substantive.

As to the procedural defect, the court ruled that Feldman’s Article 78 action was untimely. The decision points out that Section 217 of the Civil Practice Law and Rules provides that “a proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner”.

According to the ruling, a determination is considered final and binding for the purposes of Section 217 when it has an impact upon the petitioner and when he or she knows he or she is aggrieved by the administrative decision.

As to the substantive issue [e.g., the merits of the complaint], the court concluded that the board action was neither arbitrary nor capricious since the several teachers “admittedly failed to achieve a passing grade on the National Teacher’s Examination within five years of the issuance of their licenses” despite the requirement that they do so.
NYPPL

Employer not be liable for damages resulting from employee’s off duty misconduct absent notice of the employee's proclivity for such misconduct

Employer not be liable for damages resulting from employee’s off duty misconduct absent notice of the employee's proclivity for such misconduct
Acosta-Rodriguez v City of New York, 2010 NY Slip Op 07470, Decided on October 21, 2010, Appellate Division, First Department

An employee of the New York City Board of Education [BOE] was alleged to have sexually abused two students. When the parents of the children sued, the School Board argued that its was not liable because the abuse by its employee “was not committed in furtherance of school business and was done for [the employee’s] personal reasons.”

The Appellate Division agreed, holding that the BOE cannot be held liable under the theory of respondeat superior.*

The parents also contended that the employee was negligently hired, supervised or retained by BOE. However, said the Appellate Division, the parents “failed to raise a factual issue as to whether, at the time of the employee's hiring, BOE was on notice of facts triggering a duty to inquire further, or to contradict BOE's claim that it conducted its standard pre-employment investigation of the employee.”

As to the parents’ evidence that the BOE was on notice, either actual or constructive, of the employee's propensity for sexual abuse of minors because he “bought pizza for the students and observed them at play,” the court held that such activities “does not constitute notice of the employee's proclivity for sexual abuse.”

The Appellate Division also commented that the incident had occurred off school grounds and that there was nothing in the record indicating that BOE released the students to the employee or even knew that the three were together.

Accordingly, the court concluded that “there are no triable issues as to whether [the students’] injuries were caused by a failure of adequate supervision or a disregard on premises that should have alerted [the BOE] to a hazardous situation.

* The common-law doctrine that holds that an employer is liable for the actions of an employee when the employee's actions are within the scope of the individual's duties.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07470.htm
NYPPL

Employment application fraud leads to disqualification for employment

Employment application fraud leads to disqualification for employment
Schindlar v Village of Lloyd Harbor, 261 AD2d 626

Providing false information in his application for appointment as a police officer resulted in Dennis Schindlar’s disqualification and removal from his position with the Village of Lloyd Harbor.

The Suffolk County Department of Civil Service, after holding a hearing, revoked the Schindlar’s certification and appointment as a police officer.

The department’s hearing officer determined that Schindlar had “perpetrated a fraud in claiming residency in the Incorporated Village of Lloyd Harbor.” Schindlar had presented evidence that he resided in Lloyd Harbor, including copies of his driver’s license and voter registration cards. There was also testimony by the owner of the property on which he allegedly resided.

Section 50.4(f) of the Civil Service Law provides for the disqualification of individuals “who has intentionally made a false statement of any material fact in his [or her] application.” A pre-disqualification hearing may be provided where appropriate, it but is not mandated by Section 50.4.

The key due process element in Section 50.4 provides that “no person shall be disqualified ... unless he [or she] has been given a written statement of the reasons ... and afforded an opportunity to make an explanation and to submit facts in opposition to such disqualification.”

The Appellate Division noted that notwithstanding such evidence submitted by Schindlar, the hearing officer “credited the persuasive documentary evidence to the contrary.” The court said that it was well established that a reviewing court may not weigh evidence or reject the choice made by the hearing officer, especially where there is conflicting evidence and room for choice exists.

Finding that there was substantial evidence in the record to sustain a finding that Schindlar did not in fact reside in Lloyd Harbor during the period in question, the court affirmed Schindlar’s disqualification by the department.
NYPPL