An employer's personnel policies may be operative with respect to its employees' conduct while its employees are "off-duty"

An employer's personnel policies may be operative with respect to its employees' conduct while its employees are "off-duty"

Redfern-Wallace v Buffalo News, CWA Local 81, CA2nd Circuit, Docket #16-3007-cv

The Petitioner in this action claimed that she was the victim of race discrimination, retaliation, and a hostile work environment by her employer, the Buffalo News Co., in violation of Title VII of the Civil Rights Act of 1964 [42 U.S.C. §2000e]. She also contended that CWA Local 81 had breached its duty of fair representation with respect to her advancing her claims against Buffalo News.

Petitioner contended that she had been disciplined and terminated from her position by Buffalo News, while a co-worker, who was similarly situated in all material respects to her, was neither disciplined nor terminated.

Although Petitioner had admitted to Buffalo News that she had sent inappropriate text messages to the co-worker, she failed to provide any evidence to Buffalo News, or to the court in the course of the litigation, to corroborate her allegation that the co-worker had sent her inappropriate text messages in the same exchange.

The Circuit Court of Appeals said that Petitioner "thus failed to show that she and [the co-worker] were 'similarly situated in all material respects' because she did not demonstrate that they both 'engaged in' conduct of comparable seriousness.”

Petitioner had also claimed that the conduct that resulted in her dismissal from her position occurred outside of work and therefore did not violate any of Buffalo News’ rules or policies. The court disagreed, commenting that Buffalo News’ anti-harassment policy was not limited to conduct occurring at work but covered [employee] conduct outside of work that affected the workplace as well.*

Finally, Petitioner claimed "ineffective assistance of counsel." However, the Circuit Court dismissed this contention, explaining that such a claim "is not cognizable in a civil case," citing United States v. Coven, 662 F.2d 162.

* In Tessiero v Bennett, 50 A.D.3d 1368, the Appellate Division sustained the termination of an employee found guilty of off-duty misconduct that brought discredit upon the employer. 

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/c2a7dadd-d6fc-4e58-a3d1-4991a70f33ce/10/doc/16-3007_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/c2a7dadd-d6fc-4e58-a3d1-4991a70f33ce/10/hilite/

Assessing the appropriate penalty to be imposed for unprofessional and disrespectful language in the workplace

Assessing the appropriate penalty to be imposed on an employee found guilty unprofessional conduct and using disrespectful language at the workplace

OATH Index No. 0073/17

A New York City Office of Administrative Trials and Hearings Administrative Law Judge [ALJ] found that an Eligibility Specialist employed by the City's Human Resources Administration [HRAHHRA] inefficiently performed her duties by holding seven cases for 22 or more days and delaying the processing of a client’s application for months.

In addition, Judge Ingrid M. Addison found that the Eligibility Specialist violated multiple rules of HRA's Code of Conduct by being verbally abusive to co-workers at her workplace; failed to efficiently perform her duties; was insolent to, and refused to meet with, HRA's deputy director when directed to do so, was discourteous to a client in the presence of other clients and failed to follow a supervisor’s instructions.

Finding that HRA, however, failed to prove other Charges and Specifications of misconduct alleged in the notice of discipline served upon her.

Considering the record made at the Civil Service Law §75 disciplinary hearing, the ALJ recommended that the Eligibility Specialist be suspended from her employment without pay for 30 days, the penalty urged by HRA, commenting that "Even though [HRA] did not prove the five charges [preferred against the employee] in their entirety, I find [HRA's] request to be appropriate."

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17-73.pdf

Disciplinary hearing officer permitted to "draw the strongest inferences" from the record in the event the charged individual declines to testify at his or her disciplinary hearing

Disciplinary hearing officer permitted to "draw the strongest inferences" from the record in the event the charged individual declines to testify at his or her disciplinary hearing

Varriale v City of New York, 2017 NY Slip Op 02513, Appellate Division, First Department

The Appellate Division affirmed the decision to terminate a tenured New York City school teacher [Petitioner]. Noting that Petitioner showed no remorse nor appreciation for the seriousness of her conduct, the Appellate Division said that as Petitioner declined to testify at her administrative disciplinary hearing, "the hearing officer was permitted to draw the strongest inference against her permitted by the record."

The court said that the record indicated that Petitioner had "strayed from her duties as a school teacher by deliberately escalating a confrontation with a student by yelling expletives and threatening him with violence."

The Appellate Division's decision also noted that: "Even after security personnel defused the situation by removing the student from the classroom, Petitioner subsequently confronted him again, later that day, yelling at least six times that her husband, an armed police officer, would kill him. Petitioner then brought her husband to school the following morning to the student's scheduled class in the gymnasium although the student, having been suspended from school, was not there."

The court said that although Petitioner was a thirteen-year employee with no prior disciplinary history, and no charges had ever previously been filed against her, in light of the seriousness of the allegations made against her, the penalty of termination was not shocking to one's sense of fairness.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_02513.htm

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A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

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Challenging an employee's termination during his or her disciplinary probation period

Challenging an employee's termination during his or her disciplinary probation period

Woods v State Univ. of N.Y., 2017 NY Slip Op 03083, Appellate Division, Third Department

In 2013 a member of a collective bargaining unit [Employee] represented by the New York State Correctional Officers and Police Benevolent Association, Inc. [Union] was placed on disciplinary probation in the course of a disciplinary arbitration conducted pursuant to the relevant collective bargaining agreement.

In 2014 the employer, State University of New York [SUNY], summarily terminated Employee from his probationary employment following a negative performance evaluation. The Union commenced a proceeding seeking to compel arbitration of Employee's termination pursuant to CPLR §7503 or, alternatively, to vacate and annul SUNY's decision terminating Employee while he was serving the disciplinary probationary period pursuant to CPLR Article 78.

Supreme Court converted the proceeding to an application to confirm the 2013 arbitration award; the Appellate Division reversed and granted the Union's petition to compel arbitration (see 139 AD3d 1322). Ultimately the Court of Appeals reversed Appellate Division's order and remitted the matter to it "for consideration of the facts and issues raised but not determined on the appeal" (see 28 NY3d 1140).

Upon remand, the Appellate Division noted that the parties had agree, and it concurred, that Supreme Court erred in treating the petition as an application to confirm the 2013 award and in remitting the matter to the arbitrator for clarification. The Appellate Division explained that "[a]n arbitrator's authority extends to only those issues that are actually presented by the parties. Thus, an arbitrator may not reconsider an award — regardless of whether the request is couched as a clarification or a modification — if the matter was not previously raised in arbitration."

The Appellate Division's decision also noted that at the commencement of the 2013 arbitration the Union and SUNY stipulated to allow the arbitrator to decide whether Employee was guilty of the past misconduct as alleged and, if so, what the appropriate penalty should have been. Significantly, the arbitrator was not asked to interpret any term in the contract or make a ruling that would define or affect the employer/employee relationship going forward and neither party sought to modify, confirm or vacate the award after it was issued.

Although the Union sought an order by Supreme Court to compel SUNY to arbitrate the 2014 termination, the Appellate Division said that this was error and Supreme Court "should not have remitted the issue for resolution by the arbitrator who decided the 2013 disciplinary action."

Addressing the Union's allegation that SUNY acted in bad faith when it decided to terminate Employee, the Appellate Division said that "[a] probationary employee may challenge a termination only by demonstrating that the dismissal was in bad faith or done for an improper reason."* Further, said the court, "a probationary employee is not necessarily entitled to a hearing or even an explanation unless there is proof that the discharge was unconstitutional or violated the law." To successfully challenge a probationary termination, the individual is required to submit "proof sufficient to raise a question of fact as to whether the dismissal was due to causes unrelated to work performance and/or improperly motivated."

Here, said the court, SUNY's submissions, "which are not disputed," confirmed that Employee "was terminated for a valid reason, that is, poor work performance."

*N.B. The decision Taylor v Cass, 122 A.D.2d 885, illustrates another the critical element for an appointing authority to consider when terminating an individual serving a disciplinary probationary period. Taylor, a Suffolk County employee, won reinstatement with full retroactive salary and contract benefits after demonstrating that he had been improperly dismissed while serving his disciplinary probation period. The terms of his probation provided that Taylor could be terminated 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, however, was subsequently terminated without a hearing for “failing to give a fair day’s work” and “sleeping during scheduled working hours.” The Appellate Division ruled that Taylor's termination from his probationary employee was improper because Taylor was not terminated for the sole reason specified in the agreement settling the disciplinary action: intoxication on the job.

The Woods decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_03083.htm

The Taylor decision is posted on the Internet at:

https://www.leagle.com/decision/19861007122AD2d885_2320/MATTER%20OF%20TAYLOR%20v.%20CASS

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