Disciplinary probation may result in employee being summarily terminated without further hearing

Disciplinary probation may result in employee being summarily terminated without further hearing
Wilson v Bratton, 266 AD2d 140

An individual placed in “disciplinary probation” status is typically subject termination without any further hearing or due process procedures if he or she violates the term of the probation. The Wilson case illustrates this potential for being summarily dismissed.

Lynne Wilson, a New York City police officer, petitioner was placed on “dismissal probation” after she was found unfit for duty because she was intoxicated. Since joining the police force in 1980, she had accumulated a prior disciplinary record, which included the commission of an assault while on duty, two incidents of being out of residence while on sick report, and a pattern of chronic lateness.

Although she could have been terminated for the incident involving the intoxication, she was offered a one-year “dismissal probation status.” Wilson accepted and signed an agreement which provided that “[d]uring this period the Police Commissioner may impose the penalty of Dismissal at any time without further proceedings, pursuant to Administrative Code Section 14-115(d)”.

While on probation, Wilson’s commanding officer, Captain Jeffrey Mishula, filed five “command disciplines” against her.*

Wilson was warned that her that continued tardiness could lead to her dismissal. After she was late for a 10:00 a.m. appointment with the department’s Psychological Services Unit, Wilson compounded the problem by signing in as having arrived at 11:00 a.m. although she actually arrived at 11:14 a.m. As a result, Wilson was terminated without a hearing.

Wilson grieved, claiming that department had acted in bad faith because it agreed with Captain Mishula’s recommendation to terminate her without independently investigating the facts. The grievance referee sustained Wilson’s grievance. Subsequently a State Supreme Court justice confirmed the referee’s report, granted Wilson’s petition, and ordered the department to reinstate her with back pay. The Appellate Division unanimously reversed the lower court on the law and the facts, and dismissed the case. Among the problems in the decisions by the referee and the lower court pointed out by the Appellate Division were the following:

1. The court, in confirming the report, found it significant that no formal charges were served on Wilson before her summary termination;

2. The court and the referee “inexplicably ignored” Wilson’s admission that she was an hour late to the appointment, focusing instead on the disputed 14 minutes; and

3. The lower court improperly considered testimony from Wilson’s unemployment insurance hearing, which is not admissible in court proceedings, citing Labor Law Section 537[1] and Beacham v Brown, 215 AD2d 334.

The Appellate Division concluded that the lower court misread the record and noted that “[a]bsent bad faith, a municipal agency may summarily terminate a probationary employee for any reason.” Wilson acknowledged this when she signed the agreement to dismissal probation.

As to the merits of terminating an individual for lateness, the court pointed out that “[l]ateness is sufficient grounds to terminate a probationer’s employment, particularly where, as here, [Wilson’s] late arrival at [the Psychological Services Unit] was merely the last in a long series of such episodes.”

In the Wilson case the Appellate Division concluded that Wilson had agreed in writing that she could have been fired at any time without further proceedings and that having “failed to fulfill her responsibilities after being given numerous chances by [by the department], she has no basis to argue that she was terminated in bad faith.”

In contrast, a Suffolk County employee won reinstatement with full retroactive salary and contract benefits after a court found that he was improperly dismissed while serving a disciplinary probation [Taylor v Cass, 505 NY2d 929]. It seems that under the terms and conditions of the probation to which Taylor had agreed, the county could terminate him 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, while subject to this probationary period, was terminated without a hearing for “failing to give a fair day’s work” and “sleeping during scheduled working hours.” He challenged his dismissal and won reinstatement with back salary. The Appellate Division decided that Taylor’s dismissal was improper because Taylor was not terminated for the sole reason specified in the settlement: intoxication on the job.

The lesson to be drawn from these rulings is that (1) the terms of a disciplinary probationary period must be fulfilled if the employee is to be continued in service; and (2) the employer may terminate the probationer without a hearing only if he or she fails to meet the conditions set out in the “disciplinary probation agreement.”

* Command disciplines are filed in the event an officer is late three times within a three-month period.

============================================
If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
============================================
.

Employee seeks a hearing after being denied a promotion

Employee seeks a hearing after being denied a promotion
Wagner v NYC Transit Authority, 266 AD2d 304

The New York City Transit Authority [NYCTA] decided that Robert Wagner should not be promoted to the position of dispatcher because of his poor attendance record with the Authority. Wagner appealed and persuaded a State Supreme Court justice to direct the Authority to give him a hearing concerning the question of his promotion and make a new decision after the hearing was completed.

The Appellate Division reversed, noting that in contrast to NYCTA’s documentary evidence demonstrating that Wagner was not promoted because of his chronic absenteeism, Wagner did not present any evidence to “rebut or controvert” NYCTA’s proof.

The court said that Section 61 of the Civil Service Law gives the appointing authority “discretionary appointive power,” and a candidate for appointment or promotion does not acquire any protected property interest merely by reason of his placement on an eligible list. Accordingly, the decision of an appointing authority not to promote a particular individual “will not be disturbed as long as the determination is supported by a rational basis.” Finding that Wagner “merely alleged in conclusory fashion that the [authority’s] determination was arbitrary and improper,” the Appellate Division ruled that there was no basis for a “promotion hearing” and the Wagner’s petition should have been dismissed by the lower court.

However, Wagner also claimed that he was entitled to a hearing because NYCTA did not give him any written notice of his non-selection for the promotion required by Section 61.3 of the Civil Service Law.

Section 61.3 provides that when a candidate is selected, each candidate considered, but not selected, is to be advised of his or her “non-selection.”*

The Appellate Division said that the purpose of Section 61.3 is to provide individuals on an eligible list with information regarding their status in the civil service system so that they may make intelligent career choices. The opinion notes that neither Section 61.3 itself nor the failure of an appointing authority to comply with its provisions give an unsuccessful candidate a basis for challenging the selection decision made by the appointing authority. In contrast, a disappointed candidate may challenge his or her non-selection on the grounds that such non-selection is based on unlawful considerations by the appointing authority.

* Although Section 61.3, in pertinent part, states: “Persons on an eligible list … considered and not selected for appointment or promotion pursuant to this section shall, whenever another candidate is appointed or promoted, be given or sent written notice by the appointing authority of such non-selection …”, it does not require the appointing authority to provide the candidate with the reason or reasons why he or she was not selected for the appointment.
.

Arbitrating a contract grievance

Arbitrating a contract grievance
Greenburgh 11 UFSD v Local 1532, 266 AD2d 213

The collective bargaining agreement between Local 1532 and Greenburgh 11 provided that after a teacher was late nine times for less than 20 minutes per lateness, the district would have a meeting with the employee and a union representative. A second meeting was to be held after the tenth such lateness.

Without holding any “lateness meetings” with the teachers or the Local, the district preferred Section 3020-a disciplinary charges against 15 teachers, alleging they were late on several occasions. The Local filed a contract grievance and demanded arbitration.

When Supreme Court refused to stay the contract grievance arbitration, the district appealed. The Appellate Division affirmed the lower court’s ruling, stating that “[t]he question of the scope of the substantive provisions of the contract is itself a matter of contract interpretation and application, and hence it must be deemed a matter for resolution by the arbitrator.”
.

Information contained in personnel record alleged to be defamatory

Information contained in personnel record alleged to be defamatory
Monroe v Schenectady County, 266 AD2d 792

Sometimes an employee will contend that information contained in his or her personnel files is derogatory. May the individual sue the agency if the information is made available to other governmental officials? Part of the Monroe case concerned the dissemination of information contained in a personnel file Monroe alleged was derogatory.

David Monroe, a Schenectady County corrections lieutenant, sued the sheriff and the county following his termination from his position of lieutenant. After a Federal court dismissed his complaint alleging a deprivation of due process under the 14th Amendment of the US Constitution, Monroe filed a lawsuit in State court.

According to the decision, Monroe was served with a written notice of discipline on July 15, 1994. He was charged with sexually harassing a Schenectady police officer and endangering “the security of the county jail by playing ping-pong and smoking.” The proposed penalty: dismissal.

Monroe, Monroe’s union representatives and department personnel met to discuss settlement of the disciplinary action. The proposed terms of the settlement: Monroe would accept a demotion to correction officer and the department would reinstatement him as a correction officer without retroactive pay or the restoration of any lost benefits. Monroe rejected the offer.

As described by the court, after he rejected the settlement, Monroe was told that if he should press for and win the disciplinary arbitration, charges alleging consorting with a prostitute, having sex with her and his being present when she purchased cocaine would be filed against him and this information would be revealed to the press. At this point Monroe decided to withdraw his disciplinary grievance and accepted the settlement offer, which he signed on January 6, 1995.

One of the issues in this rather complex litigation involved Monroe’s “ninth cause of action” which set out allegations of defamation. Monroe contended that the sheriff had defamed him when he stated that he intended “to pursue further disciplinary action against [Monroe] based on [Monroe’s] alleged connection with a prostitute” if Monroe refused to the settle the then pending disciplinary action.

According to Monroe, “the defamatory words were published by the sheriff to County officials and disseminated throughout the Sheriff’s Department by the placing of a note about the event in [Monroe’s] file.”

The Appellate Division dismissed this branch of Monroe’s action, ruling that “[i]t is obvious that the Sheriff was acting wholly within the scope of his duties (as alleged in [Monroe’s] complaint) in publishing the charges in a disciplinary action and thus was protected by an absolute privilege providing him immunity from a suit for defamation.

The court cited Mahoney v Temporary Commission of Investigation of New York, 165 AD2d 233, in support of its holding.
.

Layoffs and Downsizing the State's workforce

Layoffs and Downsizing the State's workforce
Source: News media reports

On Thursday, September 23, 2010, Governor Paterson announced that in order to help solve the State's current financial crisis it will be necessary to layoff some 2,000 State employees.

Indicating that the proposed downsizing of the State's work force will begin in mid-November, the Governor said that a memorandum is being sent to the heads of State Departments and Agencies, signed jointly by Robert Megna, the State’s Budget Director and Mark Leinung, the Acting Director of State Operations, notifying them of the necessary reductions.*

The memorandum indicated that specific targets for staff reductions on an agency-by-agency basis would be distributed.

The actual number of incumbents to be laid off in a particular department or agency, however, could be reduced by its not filling vacancies resulting from retirements, resignations and other forms of “attrition” in its work force.

* The September 23, 2010 memorandum signed by Megna and Leinung, in pertinent part, states:

The ongoing economic and fiscal problems facing the State will require further cost saving actions. Despite our best efforts the State is falling short of its financial plan targets. The alternatives available to ensure we remain on a stable fiscal course are limited. Accordingly, we will need to take additional actions by the end of 2010 that will result in a reduction in the workforce by 2000 employees. You will be given the discretion to use layoffs as a part of this reduction in workforce....

Your budget examination unit will contact you with revised targets, and with further details on the process for submitting your proposed reductions.

============================================
For information about layoff procedures involving employees in the public service in New York State please click here: http://nylayoff.blogspot.com/
============================================
.

Employee terminated after testing positive for drug

Employee terminated after testing positive for drug
McGovern v Safir, App. Div. First Dept., 266 AD2d 94

New York City police officer John McGovern appealed his termination from the force after testing positive for marijuana.

McGovern had been selected for a random drug test. He did not dispute the fact that he had tested positive for marijuana but explained that his “ingestion of marijuana was unknowing and involuntary.” The deputy police commissioner rejected this excuse as incredible, resulting in McGovern’s dismissal.

The Appellate Division said that the positive drug test constitute substantial evidence supporting the determination that McGovern possessed and ingested marijuana. Further, the court said that under the circumstances, “[t]he penalty of dismissal does not shock our sense of fairness.”

In another disciplinary action involving a New York City police officer, the Appellate Division upheld the officer’s termination after he was found guilty of orally and physically assaulting, without provocation, a detective he thought was involved in undercover Internal Affairs investigations [McGaughey v Safir, App. Div., First Dept., 266 AD2d 100, motion for leave to appeal denied, 94 NY2d 760.
.

The employee organization's duty of fair representation

The employee organization's duty of fair representation
Walsh v Rochester Teachers’ Asso. and the Rochester City School District, App. Div., 4th Dept., 266 AD2d 817

The lesson of the Walsh case is that if a unit member sues a union for its alleged violation of its duty of fair representation, s/he must name the specific individuals involved in, or whose actions constituted, the violation.

Timothy J. Walsh, a tenured social studies teacher said that he was induced to resign from his position effective June 26, 1997 because the Rochester City School District’s personnel director, Rebbeca Torres-Lynch told him that he would be transferred to an elementary school teaching position. Walsh also held tenure for the elementary teacher position.

The district, however, treated Walsh’s letter of resignation as a resignation from District employment and he was not given an elementary school teaching position in the following school year.

Walsh sued the district, the personnel director for “intentional misrepresentation” and the Rochester Teachers’ Association for violating its duty of “fair representation.” Considering Walsh’s allegations concerning the association, the Appellate Division said that Supreme Court was incorrect when it denied the association’s motion to dismiss Walsh’s complaint against it.

Walsh charged that while the association had provided him with “some assistance” in his efforts to “rescind” his resignation, it had violated its duty to represent him under the collective bargaining agreement. Walsh also alleged that all the defendants’ actions were “intentional and caused [him] to suffer emotional distress.”

However, he named only the association’s president, Adam Urbanski, as a defendant in his “official capacity” as president. In contrast, Walsh named the district’s personnel director as a defendant in both her official capacity and “individually”.

The Appellate Division said that Walsh’s “failure to allege that individual members of the [association] authorized or ratified the complained of conduct renders the amended complaint fatally defective as against the [association].”

In an earlier case involving the Rochester Teachers’ Association, Grahame v Rochester Teachers’ Associations, 262 AD2d 963, [motion for leave to appeal denied, 94 NY2d 796], the Appellate Division, Fourth Department, rejected the association’s motion to dismiss the complaint because Grahame did not allege that the individual members of association ratified the acts of their representative. The Grahame case, however, alleged the association was negligent in providing retirement information to a member, not that it breached its duty of fair representation to that member.

The Appellate Division also said that Supreme Court should have dismissed his petition as untimely. The court observed that “although Walsh may have had a reasonable belief that the association would represent him for some period of time after his last interaction with an association agent in late July 1997,” there was nothing in his complaint to support this belief through January 12, 1998, the last day on which he could file a timely cause of action for breach of the association’s duty of fair representation.
.