Employee’s argument that “mitigating circumstances” should temper imposing the penalty of dismissal from her position rejected

Employee’s argument that “mitigating circumstances” should temper imposing the penalty of dismissal from her position rejected

Thornton v Edwards-Knox Cent. Sch. Dist. Bd. of Educ., 2013 NY Slip Op 02450, Appellate Division, Third Department

A school bus driver [Driver] was promoted to Senior School Bus driver in 2006. She served in that capacity until her position was abolished in 2010 and she was returned to her previous duties as a bus driver.

The appointing authority then discovered that Driver had neglected to complete certain required records during the 2009-2010 school year and ultimately filed disciplinary charges against her pursuant to Civil Service Law §75 setting out nine counts of incompetence and misconduct alleging, among other things, that:

[1] She had failed to properly complete and maintain records required by several state agencies;

[2] She had provided bus drivers with advance notice of purportedly random drug and alcohol testing; and

[3] She had sent a disparaging email about the school district to transportation supervisors in other school districts.

The Hearing Officer found Driver guilty of seven of the nine charges and recommended that she be discharged. The appointing authority adopted the Hearing Officer's findings and recommendation as to the penalty to be imposed and dismissed Driver, who subsequently commenced a CPLR Article 78 proceeding challenging her termination. 

Supreme Court dismissed her petition. The Appellate Division sustained the Supreme Court’s ruling, explaining that in evaluating Driver’s appeal it ‘must consider whether, in light of all the relevant circumstances, the penalty is so disproportionate to the charged offense[s] as to shock one's sense of fairness.”

The Appellate Division first addressed Driver’s return to the position of bus driver after serving as senior bus driver noting that it was not a "demotion," but, rather, occurred as specified in a memorandum of understanding pursuant to which the position of senior bus driver had been created in contrast to being a disciplinary consequence of Driver's misconduct.

The decision notes that while Driver sent the disparaging email after being reinstated to a school bus driver position because she was "upset" about losing the post, most of the remaining charged conduct had occurred prior to the elimination of the position, but appointing authority neither learned about it nor took disciplinary action against Driver until after she had left the Senior School Bus Driver position.

The Appellate Division said that Supreme Court had noted that the charges here did not arise from a single issue or act, nor were the shortcomings limited to matters that did not impact student safety. Among the examples of misconduct described was the Driver “just before leaving the senior bus driver position in late August 2010 [had] discovered that she had ‘forgot[ten],’ for a period of almost a full year, to maintain certain required certifications for the school district's bus drivers” and wrote a note to successor that she placed “in a drawer with the unfinished paperwork and left for a vacation.”

The school district's employees testified that this and Driver's other failures endangered the school district's eligibility for state transportation aid and placed it at risk of fines and other legal and financial consequences and “[m]ost seriously, the safety of the school district's students was jeopardized by Driver's warnings to drivers of the dates of random drug and alcohol tests.”

As to mitigating circumstances that might temper imposing the penalty of dismissal, the Appellate Division said it was “unpersuaded by Driver's argument that, in light of her unblemished disciplinary record as a bus driver, she should not be terminated for her offenses involving supervisory and administrative responsibilities, as these are not part of her work as a bus driver” and found that the Driver's termination was neither disproportionate to her misconduct nor to the risk of harm it posed to the school district.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02450.htm

Employers must use the revised federal Employment Eligibility Verification Form (Form I-9) after May 7, 2013

Employers must use the revised federal Employment Eligibility Verification Form (Form I-9) after May 7, 2013.

The U.S. Citizenship and Immigration Services, Department of Homeland Security, advises employers that after May 7, 2013* only the newly revised federal Employment Eligibility Verification Form (Form I-9)** may be used 

New York State Department of Civil Service has added Advisory Memorandum 13-1 to the State Personnel Management Manual. This Manual applies to officers and employees of the State as the employer.

Advisory Memorandum 13-1, prepared by Marc Hannibal, Special Counsel, addresses the use of the newly revised federal Employment Eligibility Verification Form (Form I-9).

N.B. With respect to I-9 Forms prepared after May 7, 2013, only the new March 8, 2013 version of the Form I-9 will be accepted. The form and instructions for its use is posted on the Internet at:

 http://www.uscis.gov/files/form/i-9.pdf.

Political subdivisions of the State may wish to check with the responsible local civil service commission or personnel officer concerning the processing of the Form I-9 in their respective jurisdictions.

The Department of Civil Service’s Advisory Memorandum 13-1 is set out below:

 =================

This Advisory Memorandum updates State Personnel Management Manual Advisory Memorandum #09-01, dated March 13, 2009, located in Sections 1000 and 1800. Note on both copies of the 2005 Memo that this Advisory Memorandum should be consulted.

United States Citizenship and Immigration Services (USCIS) has published a revised Employment Eligibility Verification Form I-9 for use. Improvements to Form I-9 include new fields, reformatting to reduce errors, and clearer instructions for both employees and employers.

Effective March 8, 2013:

1. Employers should begin using the newly revised Form I-9 (Rev. 03/08/13)N for all new hires and reverifications.

2. Employers may continue to use previously accepted revisions (Rev.02/02/09)N and (Rev. 08/07/09) Y until May 7, 2013.

3. After May 7, 2013, employers must only use Form I-9 (Rev. 03/08/13)N.

The revision date of the Form I-9 is printed on the lower left corner of the form.

Employers should not complete a new Form I-9 for current employees if a properly completed Form I-9 is already on file.

Copies of the March 8, 2013 version of Form I-9 (including instructions) are available for download on the USCIS Web site at www.uscis.gov.

Print copies of the March 8, 2013 version of Form I-9 for your agency’s use and destroy all blank copies of previous versions of Form I-9 in your possession. Check the USCIS Web site regularly for the latest official information and guidance.

__________________________________________

* N.B. The March 8, 2013 revised Form I-9 notes that it expires on March 31, 2016. Presumably a replacement form will be promulgated by the Department of Homeland Security prior to that date.

** Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment in the United States.

Unemployment resulting from taking advantage of a severance package or an early retirement incentive does not constitute good cause for leaving one's employment

Unemployment resulting from taking advantage of a severance package or an early retirement incentive does not constitute good cause for leaving one's employment

Rubscha (Commissioner of Labor), 2013 NY Slip Op 02609, Appellate Division, Third Department

Robert F. Rubscha’s employer had instituted a voluntary reduction in force program in an effort to avoid eventual layoffs. Although Rubscha, who had been employed for 29 years, had no information that his job would be eliminated, he nevertheless accepted the severance package offered by his employer out of concern that he or his coworkers would be laid off.

When Rubscha filed for unemployment insurance benefits the Unemployment Insurance Appeal Board ruled that Rubscha was disqualified from receiving unemployment insurance benefits because he voluntarily left his employment without good cause.

The Appellate Division sustained the Board’s determination, explaining that leaving a job in order to take advantage of a severance or early retirement package when continuing work is available does not constitute good cause for leaving one's employment.

In addition, the court noted that substantial evidence supported the Board's finding that Rubscha received retirement incentives identical to those that he would have been provided had he been laid off and that, as a result, he lacked "a compelling financial incentive to leave his job."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02609.htm

In which nations are the readers of NYPPL located?

In which nations are the readers of NYPPL located?

Following up on the report that Washington University School of Law is now offering an online Legal English Class for Foreign Lawyers, in response to a number of inquires from readers as to the number of individuals outside the United States that access NYPPL, "Google Statistics" reports that in the last thirty [30] days, in addition to its 14,666 readers in the United States, this LawBlog had readers in the following nations:

France	2,778
Germany	392
Russia	348
United Kingdom	289
Ukraine	220
China	124
Poland	90
Israel	86
Turkey	72

Terminated employee’s reliance on the Doctrine of Legislative Equivalency in challenging her dismissal held misplaced

Terminated employee’s reliance on the Doctrine of Legislative Equivalency in challenging her dismissal held misplaced

The Doctrine of Legislative Equivalency sets out the principle that a position created by a legislative act can be abolished only by a correlative legislative act.

Among the arguments advanced by the Petitioner in this Article 78 proceeding challenging her termination was that her dismissal violated the Doctrine of Legislative Equivalency.

The Appellate Division, however, rejected Petitioner’s contention that the agency's determination violated the Doctrine of Legislative Equivalency, “without merit,” as the position from which she had been removed had not been abolished, implying that she had not been "laid off" withing the meaning of Civil Service Law §§80 or 80-a.* 

Turning to another element in this case, according to the Appellate Division’s ruling, Petitioner was terminated from her position without first being accorded any "quasi-judicial evidentiary hearing."**  Accordingly, said the court, its review was subject to the standard set out in §7803(3) of the Civil Practice law and Rules:

[1] Was the determination was made in violation of lawful procedure;

[2] Was the determination affected by an error of law;

[3] Was the determination arbitrary and capricious; or

[4] Was the determination an abuse of discretion.

Citing Matter of Wooley v New York State Dept. of Correctional Servs., 15 NY3d 275, the Appellate Division said that pursuant to this standard courts will "examine whether the action taken by the agency has a rational basis" and will overturn that action only "where it is taken without sound basis in reason' or regard to the facts." Further, explained the court, "courts must defer to an administrative agency's rational interpretation of its own regulations in its area of expertise," citing Peckham v Calogero, 12 NY3d at 431.

The Appellate Division ruled that Petitioner failed to meet her burden of demonstrating that the determination made by the County of Nassau Department of Assessment terminating her employment lacked a rational basis or was arbitrary and capricious.

As to Petitioner’s contention that the agency's determination violated the Doctrine of Legislative Equivalency, the court rejected this argument as “without merit,” as the position from which she had been removed had not been abolished.

* The Attorney General has concluded that there must be an actual and lawful abolishment of a position in order to lawfully remove an employee from his or her position pursuant to §§80 or 80-a (1976 Opinions of the Attorney General 7).

** Presumably Petitioner was not entitled to a pre-termination disciplinary hearing otherwise available pursuant to the Civil Service Law, a collective bargaining agreement or so other statutory procedure.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02580.htm

A court may hold a law enforcement official to a higher standard in evaluating the penalty imposed if he or she is found guilty of misconduct after an administrative disciplinary action

A court may hold a law enforcement official to a higher standard in evaluating the penalty  imposed if he or she is found guilty of misconduct after an administrative disciplinary action  

A correction officer [Petitioner] employed by the Ulster County Sheriff’s Department and who was also a member of the Sheriff's Emergency Response Team, was served with disciplinary charges Civil Service Law §75 that alleged that his treatment of an inmate resulted in an injury to that individual. 

The Hearing Officer sustained two of the three charges* against Petitioner and recommended a penalty of a three-week suspension without pay. The Sheriff adopted the finding of the Hearing Officer that Petitioner was guilty of the two charges but rejected the Hearing Officer’s recommendation as to the penalty to be imposed. Instead of a suspension without pay, the Sheriff determined that that termination was the appropriate penalty.

Petitioner initiated a CPLR Article 78 proceeding challenging the Sheriff's determination but Supreme Court dismissed his petition. The Appellate Division affirmed Supreme Court’s ruling.

The Appellate Division said that Petitioner's sole challenge on appeal is to the penalty imposed by the Sheriff. However, explained the court, its review is "limited to whether the penalty is so disproportionate [to the offense] as to be shocking to one's sense of fairness."

Noting that

[1] “[a]s a law enforcement official, Petitioner's conduct may be held to a higher standard when we evaluate the appropriate penalty to be imposed;.”

[2] that Petitioner “was found to have caused an injury to a defenseless, handcuffed inmate over whose custody petitioner was in charge;” and

[3] the Sheriff explained in that his decision to terminate Petitioner's employment was based, in large measure, upon the fact that, “as a correction officer, Petitioner was required to handle the most difficult and sometimes dangerous individuals” and that "[d]isrespect and brutality of prisoners cannot and will not be tolerated."

the Appellate Division concluded that “[e]ven if there is mitigating evidence that could support a different result — such as Petitioner's otherwise unblemished record of service during his 10 years as a correction officer — we may not substitute our judgment for that of the Sheriff.”

As to penalty imposed, termination, the court said that considering Petitioner's position as a correction officer and a Sheriff's Emergency Response Team member and the serious nature of Petitioner's misconduct — an assault of a handcuffed inmate who petitioner was supervising at the time — as well as petitioner's failure to take responsibility for his actions, “the decision to terminate his employment does not shock our sense of fairness,” citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222.

* The third disciplinary charge alleged misconduct based the correction officer’s arrest and being charged with assault in the third degree as a result of this incident. As the correction officer was acquitted of the criminal charge, the Hearing Officer did not sustain that disciplinary charge.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02447.htm

Court rules that the disciplinary penalty imposed by the arbitrator after finding the employee guilty “well-tailored to the misconduct” charged

Court rules that the disciplinary penalty imposed by the arbitrator after finding the employee guilty “well-tailored to the misconduct” charged

Disciplinary charges were filed against a teacher including an allegation that the teacher had made a remark comparing the elementary school where she worked "to the shootings and killings of individuals in the Iraq war."

The arbitrator found a teacher guilty of the disciplinary charges filed against her and imposed a fine of $8,000 and directing that the teacher receive up to 48 hours of pedagogical training.

The teacher appealed but Supreme Court confirmed the arbitration award and dismissed the proceeding, which decision was unanimously affirmed by the Appellate Division.

The Appellate Division explained while making the remark, the teacher stood up and feigned pulling the trigger of a gun, which was worrisome to her colleagues.

As to the teacher’s claim that the arbitrator had gone beyond that which he was authorized to hear, the Appellate Division ruled that the There exists no basis to disturb the credibility determinations of the arbitrator arbitrator's reference to teacher's miming of shooting a gun flowed naturally from the credited witnesses' testimony, and did not go beyond what the arbitrator was authorized to hear.

Finding that the charges preferred against teacher specifically notified her of the misconduct that she was accused of and were sufficiently specific to permit petitioner to prepare her defense, the court sustained the arbitrator’s decision and the penalty he imposed, ruling that it did not shock the court’s sense of fairness and in fact was well-tailored to the misconduct of which teacher was found guilty.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02509.htm