Employee terminated after failing random drug test
Danese v NYC Transit Authority, App. Div., 256 AD2d 464, Motion for leave to appeal denied, 93 NY2d 811
In this appeal from administrative discipline cases involving a police officer’s failing a random drug test, the Appellate Division panels ruled that dismissal was not too harsh a penalty to impose after being found guilty of the offense.
New York City Transit Police Officer Salvatore Danese, tested positive for cocaine in a random drug test.
An administrative law judge found Danese guilty of “certain enumerated charges.” The penalty imposed by the Authority: termination.
Danese appealed, challenging the Authority’s determination and the penalty imposed. The Appellate Division said that dismissal under the circumstances “was not so disproportionate to the offense as to be shocking to one’s sense of fairness,” applying the so-called Pell standard [Pell v Board of Education, 34 NY2D 222].
NYPPL
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL
December 02, 2010
Employment status as an employee determines an employer liability
Employment status as an employee determines an employer liability
Rudder v City of New York, Appellate Division, 254 AD2d 115
There is a saying that a police officer is “always on duty.” While there is a great deal of truth in that exaggeration, it does not follow that the police officer’s employer is liable for all off-duty acts or omissions by the officer. The Rudder case shows that the employer is liable only for off-duty acts involving the performance of official duties.
Rudder was involved in an automobile accident with Scott V. Thompson, an off-duty New York City police officer. Thompson had been driving to the office of the Police Surgeon “for an unscheduled visit” when the accident occurred.
Thompson was driving a vehicle owned by another officer, and that vehicle was uninsured, unregistered and uninspected at the time of the accident. In addition, Thompson’s driver’s license had been suspended.
Rudder sued the City of New York on the theory that the city was liable for Thompson’s actions under the doctrine of respondeat superior (“let the master answer”). Rudder argued that a police officer “is always on duty” and Thompson’s trip to the police surgeon’s office constituted “official business.”
After a State Supreme Court judge disagreed and dismissed the city as a party in the action, Rudder appealed to the Appellate Division.
The Appellate Division said that “given this set of circumstances ... Thompson had not during the relevant time frame been acting in the course of his employment” as a police officer. It sustained the lower court’s determination severing the City of New York as a respondent in the lawsuit.
If the court had declared that Thompson had been acting in the scope of his employment, the city would have faced significant legal bills. Typically, a public employer is required to provide for the defense and indemnification of its officers and employees held liable in lawsuits involving the performance of, or their failure to perform, their official duties.
A similar case was Sanchez v NYC Transit Authority, 254 AD2d 345. Christopher Huwer, an off-duty Transit Authority police officer, was involved in an altercation in the course of a traffic dispute. The Appellate Division rejected Huwer’s demand that the Transit Authority provide for his defense and indemnification as mandated by Section 18 of the Public Officers Law.
The Appellate Division said that the record supported the “corporation counsel’s conclusion that the altercation underlying [Sanchez’s] action was personal in nature, and that [Huwer] was not acting within the scope of his employment.”
It is worth noting that a different rationale is applied when considering off-duty misconduct by law enforcement personnel for the purposes of disciplinary action as opposed to employer liability.
Employers may discipline officers for off-duty misconduct, even if remote from their official duties, if the action brings disrepute upon the employer. For instance, a New York City firefighter was fired after he participated in a September 7, 1998 Labor Day parade was held in the Broad Channel neighborhood of Queens County. As part of the parade, a float appeared that was said to have been intended as a “parody” of African-Americans. Participants rode on a decorated flatbed truck wearing ‘black face’ and wigs.” Steiner unsuccessfully claimed he was unable to get a fair hearing because Mayor Rudy Guiliani had publicly vowed to fire any police or fire officers who were on the float. [Eagan v Von Essen, 260 AD2d 479].*
Similarly, the Appellate Division upheld the imposition of a 20-day suspension without pay when the police commissioner found that a police officer, while off-duty, “wrongfully and without just cause, harassed and threatened one of his neighbors” [Hogan v Bartton, Appellate Division, 254 AD2d 110].
Police officer Richard Hogan “warned the neighbor to ‘watch her back’ and [to have] used racial slurs while in a tirade....” The court said the penalty imposed did not “shock its sense of fairness,” and sustained the commissioner’s determination.
* See Von Essen v NYC Civil Service Commission, 3 A.D.3d 115 and Von Essen v. New York City Civil Service Com'n, 4 N.Y.3d 220, concerning other, jurisdictional, aspects of the underlying disciplinary action.
NYPPL
Rudder v City of New York, Appellate Division, 254 AD2d 115
There is a saying that a police officer is “always on duty.” While there is a great deal of truth in that exaggeration, it does not follow that the police officer’s employer is liable for all off-duty acts or omissions by the officer. The Rudder case shows that the employer is liable only for off-duty acts involving the performance of official duties.
Rudder was involved in an automobile accident with Scott V. Thompson, an off-duty New York City police officer. Thompson had been driving to the office of the Police Surgeon “for an unscheduled visit” when the accident occurred.
Thompson was driving a vehicle owned by another officer, and that vehicle was uninsured, unregistered and uninspected at the time of the accident. In addition, Thompson’s driver’s license had been suspended.
Rudder sued the City of New York on the theory that the city was liable for Thompson’s actions under the doctrine of respondeat superior (“let the master answer”). Rudder argued that a police officer “is always on duty” and Thompson’s trip to the police surgeon’s office constituted “official business.”
After a State Supreme Court judge disagreed and dismissed the city as a party in the action, Rudder appealed to the Appellate Division.
The Appellate Division said that “given this set of circumstances ... Thompson had not during the relevant time frame been acting in the course of his employment” as a police officer. It sustained the lower court’s determination severing the City of New York as a respondent in the lawsuit.
If the court had declared that Thompson had been acting in the scope of his employment, the city would have faced significant legal bills. Typically, a public employer is required to provide for the defense and indemnification of its officers and employees held liable in lawsuits involving the performance of, or their failure to perform, their official duties.
A similar case was Sanchez v NYC Transit Authority, 254 AD2d 345. Christopher Huwer, an off-duty Transit Authority police officer, was involved in an altercation in the course of a traffic dispute. The Appellate Division rejected Huwer’s demand that the Transit Authority provide for his defense and indemnification as mandated by Section 18 of the Public Officers Law.
The Appellate Division said that the record supported the “corporation counsel’s conclusion that the altercation underlying [Sanchez’s] action was personal in nature, and that [Huwer] was not acting within the scope of his employment.”
It is worth noting that a different rationale is applied when considering off-duty misconduct by law enforcement personnel for the purposes of disciplinary action as opposed to employer liability.
Employers may discipline officers for off-duty misconduct, even if remote from their official duties, if the action brings disrepute upon the employer. For instance, a New York City firefighter was fired after he participated in a September 7, 1998 Labor Day parade was held in the Broad Channel neighborhood of Queens County. As part of the parade, a float appeared that was said to have been intended as a “parody” of African-Americans. Participants rode on a decorated flatbed truck wearing ‘black face’ and wigs.” Steiner unsuccessfully claimed he was unable to get a fair hearing because Mayor Rudy Guiliani had publicly vowed to fire any police or fire officers who were on the float. [Eagan v Von Essen, 260 AD2d 479].*
Similarly, the Appellate Division upheld the imposition of a 20-day suspension without pay when the police commissioner found that a police officer, while off-duty, “wrongfully and without just cause, harassed and threatened one of his neighbors” [Hogan v Bartton, Appellate Division, 254 AD2d 110].
Police officer Richard Hogan “warned the neighbor to ‘watch her back’ and [to have] used racial slurs while in a tirade....” The court said the penalty imposed did not “shock its sense of fairness,” and sustained the commissioner’s determination.
* See Von Essen v NYC Civil Service Commission, 3 A.D.3d 115 and Von Essen v. New York City Civil Service Com'n, 4 N.Y.3d 220, concerning other, jurisdictional, aspects of the underlying disciplinary action.
NYPPL
Employment status as an employee determines an employer liability
Employment status as an employee determines an employer liability
Rudder v City of New York, Appellate Division, 254 AD2d 115
There is a saying that a police officer is “always on duty.” While there is a great deal of truth in that exaggeration, it does not follow that the police officer’s employer is liable for all off-duty acts or omissions by the officer. The Rudder case shows that the employer is liable only for off-duty acts involving the performance of official duties.
Rudder was involved in an automobile accident with Scott V. Thompson, an off-duty New York City police officer. Thompson had been driving to the office of the Police Surgeon “for an unscheduled visit” when the accident occurred.
Thompson was driving a vehicle owned by another officer, and that vehicle was uninsured, unregistered and uninspected at the time of the accident. In addition, Thompson’s driver’s license had been suspended.
Rudder sued the City of New York on the theory that the city was liable for Thompson’s actions under the doctrine of respondeat superior (“let the master answer”). Rudder argued that a police officer “is always on duty” and Thompson’s trip to the police surgeon’s office constituted “official business.”
After a State Supreme Court judge disagreed and dismissed the city as a party in the action, Rudder appealed to the Appellate Division.
The Appellate Division said that “given this set of circumstances ... Thompson had not during the relevant time frame been acting in the course of his employment” as a police officer. It sustained the lower court’s determination severing the City of New York as a respondent in the lawsuit.
If the court had declared that Thompson had been acting in the scope of his employment, the city would have faced significant legal bills. Typically, a public employer is required to provide for the defense and indemnification of its officers and employees held liable in lawsuits involving the performance of, or their failure to perform, their official duties.
A similar case was Sanchez v NYC Transit Authority, 254 AD2d 345. Christopher Huwer, an off-duty Transit Authority police officer, was involved in an altercation in the course of a traffic dispute. The Appellate Division rejected Huwer’s demand that the Transit Authority provide for his defense and indemnification as mandated by Section 18 of the Public Officers Law.
The Appellate Division said that the record supported the “corporation counsel’s conclusion that the altercation underlying [Sanchez’s] action was personal in nature, and that [Huwer] was not acting within the scope of his employment.”
It is worth noting that a different rationale is applied when considering off-duty misconduct by law enforcement personnel for the purposes of disciplinary action as opposed to employer liability.
Employers may discipline officers for off-duty misconduct, even if remote from their official duties, if the action brings disrepute upon the employer. For instance, a New York City firefighter was fired after he participated in a September 7, 1998 Labor Day parade was held in the Broad Channel neighborhood of Queens County. As part of the parade, a float appeared that was said to have been intended as a “parody” of African-Americans. Participants rode on a decorated flatbed truck wearing ‘black face’ and wigs.” The firefighter unsuccessfully claimed he was unable to get a fair hearing because Mayor Rudy Guiliani had publicly vowed to fire any police or fire officers who were on the float..*
Similarly, the Appellate Division upheld the imposition of a 20-day suspension without pay when the police commissioner found that a police officer, while off-duty, “wrongfully and without just cause, harassed and threatened one of his neighbors” [Hogan v Bartton, Appellate Division, 254 AD2d 110].
Police officer Richard Hogan “warned the neighbor to ‘watch her back’ and [to have] used racial slurs while in a tirade....” The court said the penalty imposed did not “shock its sense of fairness,” and sustained the commissioner’s determination.
* See Von Essen v NYC Civil Service Commission, 3 A.D.3d 115 and Von Essen v. New York City Civil Service Com'n, 4 N.Y.3d 220, concerning other, jurisdictional, aspects of the underlying disciplinary action.
NYPPL
Rudder v City of New York, Appellate Division, 254 AD2d 115
There is a saying that a police officer is “always on duty.” While there is a great deal of truth in that exaggeration, it does not follow that the police officer’s employer is liable for all off-duty acts or omissions by the officer. The Rudder case shows that the employer is liable only for off-duty acts involving the performance of official duties.
Rudder was involved in an automobile accident with Scott V. Thompson, an off-duty New York City police officer. Thompson had been driving to the office of the Police Surgeon “for an unscheduled visit” when the accident occurred.
Thompson was driving a vehicle owned by another officer, and that vehicle was uninsured, unregistered and uninspected at the time of the accident. In addition, Thompson’s driver’s license had been suspended.
Rudder sued the City of New York on the theory that the city was liable for Thompson’s actions under the doctrine of respondeat superior (“let the master answer”). Rudder argued that a police officer “is always on duty” and Thompson’s trip to the police surgeon’s office constituted “official business.”
After a State Supreme Court judge disagreed and dismissed the city as a party in the action, Rudder appealed to the Appellate Division.
The Appellate Division said that “given this set of circumstances ... Thompson had not during the relevant time frame been acting in the course of his employment” as a police officer. It sustained the lower court’s determination severing the City of New York as a respondent in the lawsuit.
If the court had declared that Thompson had been acting in the scope of his employment, the city would have faced significant legal bills. Typically, a public employer is required to provide for the defense and indemnification of its officers and employees held liable in lawsuits involving the performance of, or their failure to perform, their official duties.
A similar case was Sanchez v NYC Transit Authority, 254 AD2d 345. Christopher Huwer, an off-duty Transit Authority police officer, was involved in an altercation in the course of a traffic dispute. The Appellate Division rejected Huwer’s demand that the Transit Authority provide for his defense and indemnification as mandated by Section 18 of the Public Officers Law.
The Appellate Division said that the record supported the “corporation counsel’s conclusion that the altercation underlying [Sanchez’s] action was personal in nature, and that [Huwer] was not acting within the scope of his employment.”
It is worth noting that a different rationale is applied when considering off-duty misconduct by law enforcement personnel for the purposes of disciplinary action as opposed to employer liability.
Employers may discipline officers for off-duty misconduct, even if remote from their official duties, if the action brings disrepute upon the employer. For instance, a New York City firefighter was fired after he participated in a September 7, 1998 Labor Day parade was held in the Broad Channel neighborhood of Queens County. As part of the parade, a float appeared that was said to have been intended as a “parody” of African-Americans. Participants rode on a decorated flatbed truck wearing ‘black face’ and wigs.” The firefighter unsuccessfully claimed he was unable to get a fair hearing because Mayor Rudy Guiliani had publicly vowed to fire any police or fire officers who were on the float..*
Similarly, the Appellate Division upheld the imposition of a 20-day suspension without pay when the police commissioner found that a police officer, while off-duty, “wrongfully and without just cause, harassed and threatened one of his neighbors” [Hogan v Bartton, Appellate Division, 254 AD2d 110].
Police officer Richard Hogan “warned the neighbor to ‘watch her back’ and [to have] used racial slurs while in a tirade....” The court said the penalty imposed did not “shock its sense of fairness,” and sustained the commissioner’s determination.
* See Von Essen v NYC Civil Service Commission, 3 A.D.3d 115 and Von Essen v. New York City Civil Service Com'n, 4 N.Y.3d 220, concerning other, jurisdictional, aspects of the underlying disciplinary action.
NYPPL
Diversity education effort results in allegations of “intentional infliction of emotional distress”
Diversity education effort results in allegations of “intentional infliction of emotional distress”
Graham v Guilderland CSD, App. Div., 256 AD2d 863, Motion for leave to appeal denied, 93 NY2d 803
Teacher John Birchler found himself named as a defendant in a lawsuit when the parents of a black student objected to some of the comments he made during a class discussion concerning “Homosexual Awareness.”
According to the decision by the Appellate Division:
While discussing a “Homosexual Awareness Assembly” that had been held the previous day, a student asked [Birchler] “Why not call them Faggots? That’s what they are!” In response [Birchler] pointed to Elizabeth, the only African American in the classroom and stated, “Why not call Liz a ‘nigger’ because that’s what she is? Liz, why not tell us what it feels like to be called a ‘nigger.’“
Elizabeth and her parents sued the district and Birchler, claiming [Elizabeth was the victim of the] “intentional infliction of emotional distress.” They contended that because Elizabeth was the only African American in the class Birchler had a “heightened duty, as a teacher and role model, to refrain from engaging in what they describe as a ‘vicious racial attack’ ... in front of her peers.”
The Appellate Division sustained a lower court’s dismissal of the Graham’s complaint, finding that the allegations “did not rise to the level of ‘extreme and outrageous conduct’ necessary to sustain such a claim.” The court explained its ruling by indicating that Birchler’s remarks, “considered in their entirety, were plainly intended to convey his strong disapproval of such epithets by exemplifying -- perhaps, too effectively -- the pain they can cause.”
One member of the appellate panel, Judge Cardona, dissented. He said that the Graham’s complaint should not have been dismissed by the trial court, noting that “although it does not appear that [Birchler] deliberately intended to cause harm to [Elizabeth], his disregard and invasion of her feelings and emotions was at the very least reckless.” The lesson here is that attempting to address cultural diversity issues in the classroom has the potential for polarizing the community and prompting legal action. Unfortunately, there is no simple formula that can be applied that will insulate educators from criticism or litigation in such situations.
As Judge Cardona noted in his dissenting opinion, “although I agree with the majority that an open exchange of ideas should be encouraged in a classroom setting, that goal must yield to the protection of one’s emotional well-being.” According to Judge Cardona, “the fact that [Birchler’s] remarks were used in the context of a classroom discussion allegedly for the purpose of spurring conversation about prejudice does not render them less objectionable.”
NYPPL
Graham v Guilderland CSD, App. Div., 256 AD2d 863, Motion for leave to appeal denied, 93 NY2d 803
Teacher John Birchler found himself named as a defendant in a lawsuit when the parents of a black student objected to some of the comments he made during a class discussion concerning “Homosexual Awareness.”
According to the decision by the Appellate Division:
While discussing a “Homosexual Awareness Assembly” that had been held the previous day, a student asked [Birchler] “Why not call them Faggots? That’s what they are!” In response [Birchler] pointed to Elizabeth, the only African American in the classroom and stated, “Why not call Liz a ‘nigger’ because that’s what she is? Liz, why not tell us what it feels like to be called a ‘nigger.’“
Elizabeth and her parents sued the district and Birchler, claiming [Elizabeth was the victim of the] “intentional infliction of emotional distress.” They contended that because Elizabeth was the only African American in the class Birchler had a “heightened duty, as a teacher and role model, to refrain from engaging in what they describe as a ‘vicious racial attack’ ... in front of her peers.”
The Appellate Division sustained a lower court’s dismissal of the Graham’s complaint, finding that the allegations “did not rise to the level of ‘extreme and outrageous conduct’ necessary to sustain such a claim.” The court explained its ruling by indicating that Birchler’s remarks, “considered in their entirety, were plainly intended to convey his strong disapproval of such epithets by exemplifying -- perhaps, too effectively -- the pain they can cause.”
One member of the appellate panel, Judge Cardona, dissented. He said that the Graham’s complaint should not have been dismissed by the trial court, noting that “although it does not appear that [Birchler] deliberately intended to cause harm to [Elizabeth], his disregard and invasion of her feelings and emotions was at the very least reckless.” The lesson here is that attempting to address cultural diversity issues in the classroom has the potential for polarizing the community and prompting legal action. Unfortunately, there is no simple formula that can be applied that will insulate educators from criticism or litigation in such situations.
As Judge Cardona noted in his dissenting opinion, “although I agree with the majority that an open exchange of ideas should be encouraged in a classroom setting, that goal must yield to the protection of one’s emotional well-being.” According to Judge Cardona, “the fact that [Birchler’s] remarks were used in the context of a classroom discussion allegedly for the purpose of spurring conversation about prejudice does not render them less objectionable.”
NYPPL
December 01, 2010
Attorneys, Arbitrators, Mediators, Expert Witnesses
Attorneys, Arbitrators, Mediators, Expert Witnesses
. .
NYPPL readers often ask for the name of a professional to handle a personnel, retirement, civil rights or other employment related matter. If you are interested in being listed in NYPPL’s directory of professionals, send an e-mail to publications@nycap.rr.com with the word “Directory” as the subject and the details will be e-mailed back to you.
NYPPL
. .
NYPPL readers often ask for the name of a professional to handle a personnel, retirement, civil rights or other employment related matter. If you are interested in being listed in NYPPL’s directory of professionals, send an e-mail to publications@nycap.rr.com with the word “Directory” as the subject and the details will be e-mailed back to you.
NYPPL
OATH administrative law judge recommends an award of $500 for the de minimis retaliation by supervisor against employee
OATH administrative law judge recommends an award of $500 for the de minimis retaliation by supervisor against employee
NYC Commission on Human Rights, ex rel. Cerullo v Fricione, OATH Index ## . 1865/10 & 1866/10
An alleged violation of New York City’s Human Rights Law was initiated by the New York City Commission on Human Rights (“the Commission”), pursuant to section 8-109(h) of the Administrative Code and section 1-71 of the Commission’s rules, 47 RCNY §1-71(a). Human Rights and heard by OATH Administrative Law Judge Faye Lewis.
Theresa Cerullo and Gregory Cerullo, A husband and wife who worked together on the custodial staff of a public high school brought claims of gender discrimination and retaliation against their supervisor.
ALJ Faye Lewis found that Mrs. Cerullo’s claims of gender discrimination were not proved. Although the supervisor was at times unpleasant, Judge Lewis decided that Mrs. Cerullo failed to prove that he treated men and women differently in the workplace.
However, Mrs. Cerullo proved that respondent took away Mr. Cerullo’s keys to the back room and garage in retaliation for Mr. Cerullo’s complaints about perceived discriminatory treatment against his wife.
Mrs. Cerullo, however, failed to prove that the supervisors retaliated against her husband by decreasing his overtime.
Judge Lewis recommended a $500 damage award for the de minimis retaliation proved by Mrs. Cerullo.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1865.pdf
NYPPL
NYC Commission on Human Rights, ex rel. Cerullo v Fricione, OATH Index ## . 1865/10 & 1866/10
An alleged violation of New York City’s Human Rights Law was initiated by the New York City Commission on Human Rights (“the Commission”), pursuant to section 8-109(h) of the Administrative Code and section 1-71 of the Commission’s rules, 47 RCNY §1-71(a). Human Rights and heard by OATH Administrative Law Judge Faye Lewis.
Theresa Cerullo and Gregory Cerullo, A husband and wife who worked together on the custodial staff of a public high school brought claims of gender discrimination and retaliation against their supervisor.
ALJ Faye Lewis found that Mrs. Cerullo’s claims of gender discrimination were not proved. Although the supervisor was at times unpleasant, Judge Lewis decided that Mrs. Cerullo failed to prove that he treated men and women differently in the workplace.
However, Mrs. Cerullo proved that respondent took away Mr. Cerullo’s keys to the back room and garage in retaliation for Mr. Cerullo’s complaints about perceived discriminatory treatment against his wife.
Mrs. Cerullo, however, failed to prove that the supervisors retaliated against her husband by decreasing his overtime.
Judge Lewis recommended a $500 damage award for the de minimis retaliation proved by Mrs. Cerullo.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1865.pdf
NYPPL
Dismissed probationer required to prove that his or her termination was for an improper reason
Dismissed probationer required to prove that his or her termination was for an improper reason
Matter of Lambert v Kelly, 2010 NY Slip Op 08618, decided on November 23, 2010, Appellate Division, First Department
Yolanda Lambert, a probationary police officer, challenged her termination from her position, alleging it was for an impermissible reason and in an effort to frustrate her receipt of vested interest retirement benefits.
Affirming the Supreme Court Alice Schlesinger’s decision dismissing Lambert’s petition, the Appellate Division said that the basic rules in adjudicating a probationer’s allegation that his or her probationary dismissal was unlawful are:
1. It is well settled that a probationary employee may be discharged without a hearing or statement of reasons, for any reason or no reason at all, in the absence of a showing that the dismissal was in bad faith, for a constitutionally impermissible purpose, or in violation or law; and
2. The burden of proving bad faith is on the employee, and its mere assertion, without supporting evidence, does not satisfy that requirement;
Here, said the Appellate Division, Lambert failed to produce competent proof that she was terminated for an impermissible or unlawful reason. On the contrary, the court pointed out that the record discloses a rational basis for the challenged determination, including:
1. Lambert had violated numerous NYPD regulations, including illegally parking her personal vehicle displayed an expired police parking permit that belong to another individual; and
2. Lambert used her position as an officer to try to get special treatment from the City Marshal's Office when attempting to retrive the illegally parked vehicle after it was impounded.
Finally, the Appellate Division said that there was no evidence that Lambert was dismissed “in order to frustrate her receipt of vested interest retirement benefits.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08618.htm
NYPPL
Matter of Lambert v Kelly, 2010 NY Slip Op 08618, decided on November 23, 2010, Appellate Division, First Department
Yolanda Lambert, a probationary police officer, challenged her termination from her position, alleging it was for an impermissible reason and in an effort to frustrate her receipt of vested interest retirement benefits.
Affirming the Supreme Court Alice Schlesinger’s decision dismissing Lambert’s petition, the Appellate Division said that the basic rules in adjudicating a probationer’s allegation that his or her probationary dismissal was unlawful are:
1. It is well settled that a probationary employee may be discharged without a hearing or statement of reasons, for any reason or no reason at all, in the absence of a showing that the dismissal was in bad faith, for a constitutionally impermissible purpose, or in violation or law; and
2. The burden of proving bad faith is on the employee, and its mere assertion, without supporting evidence, does not satisfy that requirement;
Here, said the Appellate Division, Lambert failed to produce competent proof that she was terminated for an impermissible or unlawful reason. On the contrary, the court pointed out that the record discloses a rational basis for the challenged determination, including:
1. Lambert had violated numerous NYPD regulations, including illegally parking her personal vehicle displayed an expired police parking permit that belong to another individual; and
2. Lambert used her position as an officer to try to get special treatment from the City Marshal's Office when attempting to retrive the illegally parked vehicle after it was impounded.
Finally, the Appellate Division said that there was no evidence that Lambert was dismissed “in order to frustrate her receipt of vested interest retirement benefits.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08618.htm
NYPPL
Use of hearsay testimony in disciplinary actions permitted
Use of hearsay testimony in disciplinary actions permitted
Brinson v Safir, Appellate Division, 255 AD2d 247, Motion for leave to appeal denied, 93 NY2d 805
James Brinson, a New York City police officer, was dismissed after being found guilty of “knowingly and wrongfully associat[ing] with persons know to be engaged in criminal activity.”
The evidence against Brinson consisted of hearsay statements of two informants. The statements of the informants were corroborated by police surveillance. The Appellate Division said that such testimony, together with its corroboration, constituted substantial evidence of the charges filed against Brinson and dismissed his appeal.
Another aspect of the appeal involved Brinson’s being required to submit to a drug test. The Appellate Division said that “corroborated information” supplied by informants provided a “reasonable suspicion” to require Brinson to undergo drug testing.
NYPPL
Brinson v Safir, Appellate Division, 255 AD2d 247, Motion for leave to appeal denied, 93 NY2d 805
James Brinson, a New York City police officer, was dismissed after being found guilty of “knowingly and wrongfully associat[ing] with persons know to be engaged in criminal activity.”
The evidence against Brinson consisted of hearsay statements of two informants. The statements of the informants were corroborated by police surveillance. The Appellate Division said that such testimony, together with its corroboration, constituted substantial evidence of the charges filed against Brinson and dismissed his appeal.
Another aspect of the appeal involved Brinson’s being required to submit to a drug test. The Appellate Division said that “corroborated information” supplied by informants provided a “reasonable suspicion” to require Brinson to undergo drug testing.
NYPPL
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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
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