Uniformed Services Employment and Reemployment Rights Act of 1994 Class Action claims survive employer's motion to dismiss the action

Some of the elements consider by the courts when an educator challenges his dismissal during his probationary period

The Appellate Division affirmed Supreme Court's denying a probationary employee's [Petitioner] CPLR Article 78 petition seeking a court order annulling a city school district's terminating Petitioner's employment.

The court opined that:

1. It perceived no basis for finding that Petitioner's termination "was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith," citing Matter of Mendez v New York City Dept. of Educ., 28 NY3d 993;

2. Evidence in the record indicated that Petitioner received both "ineffective" and "developing" ratings on more than one occasion, supporting the conclusion that the determination to terminate him prior to the completion of his maximum period of probation was not made in bad faith;

3. Petitioner was given timely notice of the possibility that his probationary employment would be terminated as mandated by Education Law §2573[1]*;

4. Petitioner was provided with support and any alleged deviations from internal procedures did not deprive him of a substantial right or undermine the fairness and integrity of the rating process followed by the school district; and

5. The record contained evidence of Petitioner's persistent and unresolved issues despite ongoing efforts by school administrators to help him improve his instructional methods.

* §2573[1] of the Education Law addresses the appointment and removal of probationary assistant, district or other superintendents,  teachers and other employees employed by a city school district having 125,000 or more inhabitants.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05090.htm

Although seeking a hearing may be couched in permissive rather than mandatory terms, that will not excuse employee's failing to make a timely demand for such a hearing

A police officer's [Petitioner] initiated a CPLR Article 78 review a determination of the Village Mayor that the Petitioner application for a hearing and further evaluation of a determination of the Chief of Police denying Petitioner's application for benefits pursuant to General Municipal Law §207-c was untimely. Supreme Court sustained the Mayor's decision and Petitioner appealed.

The Appellate Division affirmed the lower court's ruling, explaining:

1. The basis for the Mayor's denial was that the Petitioner's request for a hearing and further evaluation was made more than 10 days after the Petitioner received the Chief's determination, which violated the time requirements set forth in Appendix C, §11 of the governing collective bargaining agreement [CBA] between the Village and the employee organization representing the Village's police officers.

2. A person aggrieved by an administrative determination must exhaust all available administrative remedies before seeking court intervention.

3. Although the CBA provided that the employee "may serve a written demand on the Mayor for a hearing and further evaluation of the application," was couched in permissive rather than mandatory terms, Petitioner was not excused from exhausting the administrative remedies available to him.

4. Here the  CBA's provisions governing an application for benefits pursuant to §207-c of the General Municipal Law are clear -- after an initial denial of benefits, they permit, but do not require, an employee to seek a hearing and further evaluation of the application from the Mayor.

Thus, said the Appellate Division, Petitioner "may" serve a written demand on the Mayor for such hearing and further evaluation but if Petitioner intended to do so the CBA requires Petitioner to do so by filing the written demand upon the Mayor within 10 days after receiving the decision denying benefits, opining that the use of the word "may" in §11 of the CBA simply provided Petitioner with the choice between seeking further review from the Mayor or accepting the Chief's denial of benefits.

In the opinion of the court, the Mayor's denial of Petitioner's demand for a hearing and further evaluation as untimely [1] was not rendered in violation of lawful procedure, [2] was not affected by an error of law, and [3] was not arbitrary or capricious or an abuse of discretion.

The Mayor, said the court, had examined the Chief's denial letter and the certified mail return receipt indicating the Petitioner's receipt of the letter on June 18, "correctly determined that the demand for a hearing ...  was untimely within the meaning of §11 of the CBA, and the mayor "had no discretionary authority to find otherwise," citing JP and Assoc. Corp. v NYS Division of Housing and Community Renewal, 122 AD3 739.

Accordingly, the Appellate Division concurred with the Supreme Court's determination denying the petition and dismissing the proceeding.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_04937.htm

Employee's conduct following an acrimonious end of a romantic relationship with a coworker basis for disciplinary action and termination

An employee [Petitioner] was involved in a romantic relationship with a coworker that ended acrimoniously. The appointing authority [Respondent] thereafter served Petitioner with an notice of discipline pursuant to Civil Service Law §75 alleging that Petitioner had "made numerous prank telephone calls to the coworker, mailed letters disparaging the coworker to other employees and mailed packages containing underwear and notes disparaging the coworker to one particular individual." The Petitioner was also charged that when questioned by representatives of the Respondent, Petitioner made numerous false statements to the interviewers.

Following a hearing, the Hearing Officer dismissed all but one of the allegations of harassment as untimely under Civil Service Law §75(4)* but determined that petitioner was guilty of the sole remaining allegation of harassment involving sending a package to another employee that contained underwear with a note suggesting that the employee may have contracted a sexually transmitted disease from the coworker. In addition, the Hearing Officer determined that Petitioner made three false statements during his questioning by the interviewers.

Based on these findings the Hearing Officer recommended that Petitioner be terminated, which findings and recommendations were adopted by the appointing authority, resulting in Petitioner's dismissal from the position.

Petitioner appealed, contending that efforts to questions the Hearing Officer "to determine if there was any basis to argue that the Hearing Officer was biased" and objected to Respondents' opening statements as being  improper as they "referenced conduct underlying charges that were ultimately dismissed as well as conduct for which no charges were filed."

The Appellate Division ruled that contrary to Petitioner's claim of a right to inquire as to whether the Hearing Officer was biased, Petitioner was not entitled to question the Hearing Officer to determine if there was any basis to argue that the Hearing Officer was biased, explaining that "There is a presumption of integrity on those serving as adjudicators . . . and hearing officers are presumed to be free from bias," citing Donlon v Mills, 260 AD2d 971, leave to appeal denied, 94 NY2d 752 . The court then opined that since Petitioner "failed to establish any reason to question the Hearing Officer's impartiality, [it found] no basis to annul the determination on that ground."

Addressing Petitioner's contention that Respondents' opening statements were improper inasmuch as they referenced conduct underlying charges that were ultimately dismissed as well as conduct for which no charges were filed, the court reject those contention's, indicating that with respect to statements concerning conduct underlying the charges that were ultimately dismissed as untimely, there was no impropriety because, had Respondents established that such conduct would have constituted a crime, they would not have been untimely. 

With respect to Petitioner's objections to statements concerning uncharged conduct, the Appellate Division said that the record "establishes that references to uncharged conduct were 'necessary to refute petitioner's attempts to explain his behavior' and his denials of guilt of the charged misconduct." Further, the decision indicates that the Hearing Officer "based his determination on specific and distinct findings as to each [specification] sustained; the dismissal recommendation was based on his finding that [Petitioner] was guilty of [four] very serious [specifications] of misconduct' . . . There is no record support for the contention that the determination or penalty recommendation was based on uncharged conduct."

In contrast, the Appellate Division found that Petitioner correctly contended that the Hearing Officer erred in relying on the preponderance of the evidence standard. However, opined the court, that error does not require it to annul the determination, explaining that the "preponderance of the evidence standard" used by the Hearing Officer "is a higher standard than the substantial evidence" standard Petitioner asserts should have been employed. Accordingly, the court found that Respondents satisfied a higher, rather than lower, standard of proof."

Concluding that Respondent's determination was supported by substantial evidence and the penalty of termination is not "so disproportionate to the offense as to be shocking to one's sense of fairness," the Pell Doctrine**, there was no abuse of discretion as a matter of law and unanimously confirmed Respondent's determination and dismissed Petitioner's complaint.

* Section 75.4, in pertinent part, provides that "no removal or disciplinary proceeding shall be commenced ... more than more than one year after the occurrence of the alleged incompetency or misconduct complained of and described in the charges, provided, however, that such limitations shall not apply where the incompetency or misconduct complained of and described in the charges would, if proved in a court of appropriate jurisdiction, constitute a crime."

** See Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, 34 NY2d 222, generally referred to as the "Pell Doctrine."  Essentially the Pell Doctrine instructs that any permissible disciplinary penalty may be imposed on an employee found guilty of one or more disciplinary charges and specifications by an appointing authority or arbitrator unless the court finds that, considering the circumstances underlying the disciplinary action, such a penalty is "shocking to one's sense of fairness."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_04834.htm