Failure to follow prescribed treatment ruled misconduct

Failure to follow prescribed treatment ruled misconduct

DeCherro v. Ross, 83 A.D.2d 709

Supervisors frequently are told be an employee that he or she cannot work because of illness. Sometimes this results in the employee being terminated from his or her position.

In DeCherro the Appellate Division upheld a finding by the Unemployment Insurance Appeals Board that the employee “while...suffering from an illness, has made no reasonable effort to pursue a course of treatment...conduct contrary to the best interests of the employer.”

Although there was no doubt that DeCherro was suffering from an illness, his claim for unemployment benefits was denied “because he lost his employment due to misconduct.”

The court explained DeCherro did not show that his illness would interfere with following simple directions or that his work assignments would render him unable to follow routine treatment recommendations.

Employee found guilty of misconduct based on hearsay evidence presented at the disciplinary hearing

Employee found guilty of misconduct based on hearsay evidence presented at the disciplinary hearing

Matter of Matter of Paul v Israel, 2011 NY Slip Op 08947, Appellate Division, Second Department

Josephine Paul challenged the Westchester Medical Center’s decision to terminate her following a Civil Service Law §75 disciplinary hearing in which she was found guilty of misconduct, contending that the hearing officer’s determination was not supported by substantial evidence and was based on hearsay testimony.

The Appellate Division confirmed the appointing officer’s decision and dismissed her petition challenging the penalty imposed “on the merits.”

Finding that there was substantial evidence in the record to support the determination of the Westchester Medical Center that Paul was guilty of misconduct, the court ruled that her argument that the administrative determination is not supported by substantial evidence because the evidence presented was hearsay was without merit.

As to the penalty imposed, termination, the Appellate Division said that dismissal “was not so disproportionate to the offense committed as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law,” citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222.

Frequently the use of hearsay evidence in a disciplinary hearing is claimed to justify the vacating of an adverse disciplinary decision. In Roldan v Bartton, 203 A.D.2d 368, Roldan argued that the hearing officer had improperly admitted "certain hearsay evidence" in the course of the hearing. The court said that Roldan's contention was "unpersuasive," holding that "it is well settled that hearsay is admissible in administrative hearings and may form the basis of an adverse determination," citing Gray v Adduci, 73 NY2d 741.

The Paul decision is posted on the Internet at: 
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08947.htm

Employee must answer questions concerning work if granted “use immunity”

Employee must answer questions concerning work if granted “use immunity”

Tanico v. McGuire, 80 AD2d 297

Two police officers refused to answer questions concerning their performance of official duties following their suspension without pay for alleged official misconduct.

They were subsequently served with disciplinary charges alleged misconduct and later again refused to answer “questions specifically directed and narrowly related to official duties.”

Instead the officers filed an Article 78 petition seeking a court order prohibiting such questioning.

The Appellate Division ruled that “a public employee, if granted ‘use immunity’ may be narrowly and specifically questioned about his official duties and dismissed...if he refuses to answer questions properly put to him.”

Although “use immunity” would prevent the answers being used against the individual in a criminal prosecution, the court indicated “since disciplinary proceedings are not criminal actions, the employee’s statements may be used against him in those proceedings (and) an employee who refuses to answer may be discharged on that basis.”

New York City Police Department Rules authorize interrogation of police officers who are either the subject of or witnesses in an official investigation. It appears that an employee can be compelled to testify against himself in a disciplinary proceeding as “use immunity” would be provided under the 5th Amendment in any subsequent criminal prosecution.