Dismissing an employee before he or she has completed his or her probationary period

Dismissing an employee before he or she has completed his or her probationary period 

153 AD3d 1201, Appellate Division, First Department

In York v McGuire, 63 NY2d 760, the Court of Appeals indicated that "it is well settled that a probationary employee may be discharged without a hearing and without a statement of reasons" where the decision is made in good faith and not for a constitutionally impermissible purpose or reason.   

With respect to employees in the classified service of a public employer, this general statement has been clarified and while a probationer in the classified service can be discharge at any time after the completion of his or her minimum period of probation and before the end of the maximum period of probation, the courts have further held that in the event the appointing authority decides to terminate a probationary appointee during his or her minimum probationary period, the individual is entitled to “notice and hearing” in the nature of a disciplinary proceeding as a condition precedent to such termination.*

The rule is somewhat different with respect public employees in the unclassified service.**

Here an educator [Petitioner] serving her probationary period, challenged the New York City Department of Education's decision discontinue her employment as a probationary teacher, a position in the unclassified service.  Petitioner challenged the Department's action, contending that it erred in concluding that her actions constituted prohibited corporal punishment. 

Supreme Court agreed and annulled the Department's action. The Department then appealed the Supreme Court's ruling. The Appellate Division, however, unanimously reversed the lower court's decision "on the law" and reinstated the Department's decision to dismiss Petitioner from her from her position.

Citing Mendez v New York City Dept. of Education, 28 NY3d 993, the Appellate Division explained that Petitioner failed to show that the Department's decision to discontinue her employment as a probationary teacher was done in bad faith, for a constitutionally impermissible purpose, or in violation of the law.

Further, said the court, Petitioner's claim that the Department had erred in concluding that Petitioner had subjected the student  to "prohibited corporal punishment" was insufficient to establish that the employer reached its conclusion in bad faith or for an impermissible reason. 

* See McKee v Jackson, 152 AD2d 54, holding that a probationer is entitled to a minimum period of time to demonstrate his or her ability to successfully perform the duties of the position, and Gray v Bronx Developmental Center, 65 NY2d 904, holding that a probationer may be dismissed without notice and hearing after completing his or her minimum period of probation and prior to the expiration of his or her maximum period of probation. 

**§3012(a) of the Education Law provides that the services of a probationary teacher may be discontinued at any time during the teacher's probationary period, which is typically set by law. Absent a provision in a collective bargaining agreement to the contrary, such a dismissal will not be overturned unless the teacher can demonstrate that the appointing authority's action was for a constitutionally impermissible reason or purpose.

The decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2017/2017_06713.htm

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The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more information click on http://booklocker.com/books/5215.html

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School board seeks to remove a sitting member from the board for alleged "official misconduct"

School board seeks to remove a sitting member from the board for alleged "official misconduct"

Decisions of the Commissioner of Education, Decision No. 17,204

The School Board [Board] held a special meeting at which it voted to pursue removal charges against a sitting member of the board [Member]* for alleged "official misconduct." Member did not attend the special meeting at which the Board approved three motions, all by a 4-2 vote, ** which, respectively:

1. Charged Member with official misconduct pursuant to Education Law §1709(18);

2. Appointed a board attorney to prosecute the charges; and

3. Designated an attorney to serve as a hearing officer for the removal hearing.

Member was subsequently served with disciplinary charges that set out "twelve specifications of misconduct [that] alleged numerous incidents in which [Member], among other things, berated or verbally attacked district personnel, invaded the personal space of others, refused to comply with orders, improperly photographed personnel records and improperly destroyed a document."

In response, Member filed an appeal with the Commissioner of Education challenging the Board's action, contending:

[1] The Board "lacked sufficient votes to approve charges against [Member] because [the Board's President] ... was biased and, therefore, should have been disqualified from voting"; 

[2] "The charges do not allege official misconduct;" and

[3] [The charges] "[d]o not sufficiently identify specific factual details which would afford [Member] an opportunity to prepare a defense."

Addressing Member's argument that the Board "lacked sufficient votes to approve charges" because the Board President "was biased*** and, therefore, should have been disqualified from voting," the Commissioner first noted that "a distinction must be drawn between a board member’s vote to authorize removal proceedings (the “initiation level”) and his or her vote to sustain charges of official misconduct following a full and fair opportunity for the subject of such charges to refute them (the “final determination level”)"

Although "a board member harboring an 'adverse animus' should not be allowed to participate in the 'decision-rending' aspect of a removal proceeding," the Commissioner noted that Member cited "no authority indicating that this standard is applicable to a board member’s vote to initiate removal proceedings." In other words, a board member may participate in activities leading to, and making, the decision to file disciplinary charges against an individual but then he or she should recuse himself or herself from any and activities involving or related to going forward with the disciplinary action.

Accordingly, the Commissioner said that she found that Member had tried, and failed, to meet Member's burden of demonstrating that the Board President should have been disqualified at the initiation of disciplinary action level.

Turning to Member's allegation that the Charge and Specifications were defective, the Commissioner said she found no merit in Member's claim that the statement of charges is deficient. "On the record before me," said the Commissioner, Member was  "afforded sufficient due process to satisfy this requirement and found that "the statement of charges was sufficiently detailed so as to apprise [Member] of the alleged official misconduct which would be at issue at the hearing." In the words of the Commissioner, "[e]ach charge identified the date when the alleged conduct occurred and a specific description of the objectionable conduct.

Finding that Member's claims were "without merit," the Commissioner dismissed Member's appeal.

* Education Law §1709(18) authorizes the members of a Board "To remove any member of their board for official misconduct. But a written copy of all charges made of such misconduct shall be served upon him [or her] at least ten days before the time appointed for a hearing of the same; and he [or she] shall be allowed a full and fair opportunity to refute such charges before removal.

**  The decision notes that "[a]s relevant to this appeal," the Board President was one of the four board members who voted in favor of the motions.

*** In support of this contention, Member refereed to and submitted numerous newspaper articles and public statements detailing the acrimonious relationship between various board members and the superintendent.  In particular, Member complained of an incident in which the superintendent alleged that his vehicle had been vandalized, and the Board President allegedly told a fellow board member that he believed Member was responsible for the vandalism.  Member  further complained that the Board President told a reporter that Member had been a “headache” since Member took office and that Board President is referenced within some of the charges against Member.  The Board denies in its answer that the Board President speculated that Member damaged the superintendent’s vehicle and, in an affidavit, Board President generally averred  that he is not biased against Member.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17204

Trends in arbitration

Trends in arbitration

On October 24, 2017, the United States Senate, by a 51-50 vote, approved H.J.Res. 111 providing for congressional disapproval under Chapter 8 of Title 5, United States Code, of the rule submitted by Bureau of Consumer Financial Protection relating to "Arbitration Agreements." 

The Joint Resolution, in effect, nullified a rule adopted by the Consumer Financial Protection Bureau prohibiting banks from mandating that consumers resolve disputes with the bank through arbitration.

The Bureau's rule regulated the use of arbitration agreements in contracts for specific consumer financial products and services and prohibited "the use of a predispute arbitration agreement to prevent a consumer from filing or participating in certain class action suits." The rule also requires consumer financial product and service providers to furnish the CFPB with particular information regarding arbitrations."

In contrast, on October 26, 2017, a California appellate court handed down its decision in Baxter v. Genworth North America Corp., [California Courts of Appeals, First Appellate District, Docket Number A144244, ], sustaining a lower court's ruling that held that a employment agreement constituted  “procedural unconscionability.”

Genworth had acquired another company, AssetMark, and Maya Baxter, as a condition of continue employment by Genworth, was required to agree to resolving any dispute with Genworth through its "Resolve Employee Issue Resolution  Program," a four-step procedure culminating in arbitration of the matter[s].

Significantly, the court ruled that severing the offending provisions it found in Genworth's "Resolve Employee Issue Resolution  Program" was not an option because "the arbitration agreement is permeated by unconscionability."

Educator's unsatisfactory performance rating for the academic year supported by the "detailed descriptions" of educator's difficulties in the classroom in the record

Educator's unsatisfactory performance rating for the academic year supported by the "detailed descriptions" of educator's difficulties in the classroom in the record

2017 NY Slip Op 03891, Appellate Division, First Department

Supreme Court denied the CPLR Article 78 petition filed by a teacher [Petitioner]seeking a court order annulling the determination of New York City Department of Education [DOE], thereby sustaining DOE's unsatisfactory performance rating of Petitioner for the 2013-2014 school year.

The Appellate Division unanimously affirmed Supreme Court's ruling.

The court explained the DOE's determination that Petitioner's performance as a teacher of during the 2013-2014 school year was unsatisfactory was not arbitrary and capricious.

The Appellate Division pointed out that the determination was supported by Petitioner's  principal's detailed descriptions of Petitioner's difficulties in [1] developing learning objectives, [2] using lesson plans, [3] maintaining academic rigor, [4] meeting students' varying needs, [5] facilitating "accountable talk" through "higher order thinking questions," and [6] actively engaging students.

The Appellate Division also noted Petitioner's deficiencies including Petitioner's "persistent failure to improve despite the ongoing individualized professional development support she received."

The court also rejected Petitioner's contention that she was not provided with sufficient time or feedback to remedy perceived deficiencies as also "belied by the record."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_03891.htm

_______________

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more information click on http://booklocker.com/books/5215.html

___________________

The findings of fact made by a §75 hearing officer are given collateral estoppel effect in considering a terminated individual's application for unemployment insurance benefits

The findings of fact made by a §75 hearing officer are  given collateral estoppel effect in considering a terminated individual's application for unemployment insurance benefits

Matter of Schaefer (Commissioner of Labor), 2017 NY Slip Op 04335, Appellate Division, Third Department

The Claimant for unemployment insurance benefits had been terminated from her position as a school bus driver after having been served with disciplinary charges alleging  misconduct arising from her alleged [1] mismanagement of students on her bus during an incident, [2] being uncooperative with school district personnel during a field trip and [3] calling a parent of a student and requesting that the student wait for the bus at an unapproved bus stop without permission from the school district.

Following a disciplinary hearing held pursuant to Civil Service Law §75, the Hearing Officer sustained the charges [1] and [3] but dismissed the charge related to being uncooperative during the field trip. The Hearing Officer, considering that Claimant had received prior parental complaints, counseling memos from the school district and performance evaluations that were all critical of her student management skills, recommended that the appointing authority terminate Claimant.

The appointing authority accepted the Hearing Officer's findings and recommendation as to the penalty to be imposed and dismissed Claimant from her position.

Subsequently Claimants application for unemployment insurance benefits was denied by the Unemployment Insurance Appeal Board based its finding that Claimant had been terminated from her position with the school district due to "disqualifying misconduct.*

Claimant appealed the Board's determination. The Appellate Division sustained the Board's ruling, explaining that "[A]s claimant had a full and fair opportunity to litigate the issue of misconduct at the disciplinary hearing, the Board properly accorded collateral estoppel effect to the Hearing Officer's factual findings."

In addition, the court noted that the Board made its own its own determination as to whether Claimant's behavior, which included creating a hostile environment for a student on her bus and failing to follow a known policy of the employer, constituted disqualifying misconduct for unemployment insurance purposes.

Under the circumstances, the Appellate Division said it found that the Board's decision was supported by substantial evidence and "will not be disturbed." 

* N.B. As the Appellate Division noted in Matter of Wrzesinski [Roberts], 133 AD2d 884, not every discharge for cause in a disciplinary action is misconduct within the meaning of the Unemployment Insurance Law, which defines such disqualifying misconduct  conduct as “a willful and wanton disregard of the employer's interest.” 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_04335.htm