Employee absent on workers' compensation leave served with disciplinary charges alleging he was able to perform the essential functions of his job while on such leave

A school district [Employer] adopted the finding a §75 disciplinary action hearing officer holding that the employee [Plaintiff] was guilty of certain charges of misconduct and the hearing officer's recommendation that the Petitioner be terminated from his position. Petitioner appealed the Employer's decision but the Appellate Division sustained the Employer's action and dismissed Plaintiff's Article 78 petition on the merits, with costs.

Petitioner, a motor equipment operator, sustained injuries on August 11when the ride-on lawn mower he was using while at work overturned. Petitioner obtained a doctor's recommendation that he not return to work until September 8.  After Plaintiff returned to work on September 8, the Employer filed fourteen Civil Service Law §75 disciplinary charges against the Petitioner alleging misconduct that occurred between August 12, and September 8, which charges the Appellate Division characterized as alleging the Plaintiff was "out of work on workers' compensation even though he was able to perform the essential functions of his job as a motor equipment operator."  

The Appellate Division, explaining that a court's review of an administrative determination in an employee disciplinary proceeding made after a hearing pursuant to Civil Service Law §75 is limited to considering whether the determination was supported by substantial evidence, said where there is conflicting evidence or different inferences may be drawn from the evidence, "the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]" and the courts may not weigh the evidence or reject the choice made by the appointing authority where the evidence is conflicting and room for choice exists, noting the Court of Appeals decision in Berenhaus v Ward, 70 NY2d 436.

As any credibility issues were resolved by the hearing officer, the Appellate Division said it found "no basis upon which to disturb the determination that the [Plaintiff] was guilty of the misconduct alleged, which was supported by substantial evidence."

Noting that "A court may set aside an administrative penalty only if it is so disproportionate to the offense as to be shocking to one's sense of fairness", the Appellate Division opined that "[u]nder the circumstances here, the penalty of termination of the [Plaintiff's] employment was not so disproportionate to the offense committed as to be shocking to one's sense of fairness," 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.

Click HERE to access the full text of the Appellate Division's decision.

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The changing number of justices on the Supreme Court of the United States

As discussions concerning increasing the number of justices serving on the United States Supreme Court are currently a topic of continuing interest, it might be well to note although the Judiciary Act of 1789 set the number of justices of the Supreme Court at six, a chief justice and five associate justices, in 1807 Congress amended the law and increased the number of justices to seven.

The next change occurred in 1837 when the number of justices was increased to nine while in 1863 the number became 10 justices. In 1866 Congress enacted the Judicial Circuits Act, reducing the number of justices to seven in number, only to raise the number of justices to nine in 1869, which number has survived to date.

Although then President Franklin Delano Roosevelt sought to persuade Congress to enact legislation authorizing the appointment of additional justices to the high court in the event a justice, upon attaining the age 70, declined to resign or retire, and limited the total number of justices serving on the Supreme Court to 15 members, Congress elected not to do so.

See, also, https://publicpersonnellaw.blogspot.com/2018/10/setting-number-of-justices-on-united.html

An educator's previously unblemished employment record deemed insufficient to mitigate imposing a lesser penalty than dismissal from the position after being found guilty of charges of incompetence and misconduct

An educator [Plaintiff] was found guilty of disciplinary charges served upon her by her employer, the New York City Department of Education [Employer] after a hearing. The arbitrator found the Plaintiff guilty of disciplinary charges filed against her alleging incompetence and misconduct and imposed the penalty of dismissal.  

Plaintiff initiated a CPLR Article 75 proceeding challenging her dismissal from her position and sought a court order vacating the arbitration award which sustained disciplinary charges filed against her alleging Plaintiff was guilty of incompetence and misconduct. 

Supreme Court granted the Employer's motion to dismiss Plaintiff's Article 75 petition seeking to vacate an arbitration award, which ruling Plaintiff appealed to the Appellate Division.

The Appellate Division unanimously affirmed the Supreme Court's decision. The court observed that the arbitrator's "determination sustaining charges of incompetency is amply supported by the evidence." Further, said the court, the evidence also showed that Plaintiff was "unwilling ... to implement suggestions and constructive criticism of her ineffective teaching methods. Likewise, said the court, the portions of the arbitrator's decision addressing various charges of misconduct were "in accord with due process, rationally based and supported by adequate evidence."

As to the penalty imposed, dismissal from her position, the Appellate Division opined that notwithstanding Plaintiff's "previously unblemished record ... her identified pedagogical shortcomings, lack of improvement, and student safety issues inherent in two of the sustained misconduct charges, the penalty of termination does not shock one's sense of fairness", citing Matter of Ferraro v Farina, 156 AD3d 549, leave to appeal denied, 32 NY3d 902.

Click HERE to access the full text of the Appellate Division's decision.