Employer's zero-tolerance policy for workplace violence sustained

The Appellate Division unanimously affirmed Supreme Court's denial of Plaintiff's petition to vacate an arbitration award that found Plaintiff guilty of violating his employer's zero-tolerance policy for workplace violence and imposing a penalty of a 25-day suspension without pay.

The court rejected Petitioner's contention that the arbitration award was irrational because the arbitrator did not explain where Petitioner should have "should have retreated" from the confrontation as "the path of analysis, proof and persuasion by which the arbitrator reached [his] conclusion is beyond judicial scrutiny," citing Matter of New York State Correctional Officers and Police Benevolent Assn. v State of New York,94 NY2d 321.*

The Appellate Division also observed that the arbitration award did not violate public policy as there are "no public policy considerations which would prohibit an arbitrator from deciding if an employee should be disciplined for workplace violence or imposing a 25-day suspension for such violence."

* In Correctional Officers the Court of Appeals held that courts "are not authorized to revisit ... the arbitrator's assessment of the evidence ... or reasoning in fashioning the [arbitration] award".

Click HERE to access the Appellate Division's decision posted on the Internet.

Imposing a reasonable disciplinary penalty under the circumstances

The Board of Trustees of the Pound Ridge Library District dismissed the Director of the Pound Ridge Library [Plaintiff] after adopting the findings and recommendation of a disciplinary Hearing Officer, made after a hearing finding the Plaintiff "guilty of certain charges of misconduct and incompetence." Plaintiff thereupon initiated a CPLR Article 78 action challenging the Board's action.

Supreme Court transferred the proceeding to the Appellate Division pursuant to CPLR §7804(g). The Appellate Division granted Plaintiff's petition to the extent it annulled so much of the determination as found the Plaintiff guilty of some of the charges and specifications charged, vacated the penalty imposed by the Board, termination, and remitted the matter to the Board for its consideration of a new, and appropriate, penalty to be imposed "under the circumstances."

Upon reconsideration of the matter as the court mandated, the Board voted to impose the penalty of demoting Plaintiff to the position of Librarian I. Plaintiff then commenced the instant proceeding to review the Board's determination to impose the penalty of demotion to Library I. Supreme Court denied Plaintiff's petition seeking to vacate the Board's determination and dismissed the proceeding.

Plaintiff appealed, contending that the penalty imposed "was unlawful since it was based on alleged misconduct with which she had not been charged and/or charges that were dismissed by this Court."

The Appellate Division held that Plaintiffs arguments were "without merit" as they were based "upon mere speculation and is otherwise not supported by the record." Further, opined the Appellate Division, "contrary to [Plaintiff's] contention, the record fails to raise any issues of fact material to the Board's determination which required a trial."

Quoting Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, the court explained that "[a]n administrative penalty must be upheld unless it 'is so disproportionate to the offense as to be shocking to one's sense of fairness,' thus constituting an abuse of discretion as a matter of law."

The Appellate Division pointed out that it had previously determined that substantial evidence supported the Board's determination that the Plaintiff was guilty of certain charges of misconduct and incompetence but further determined that so much of the determination as found the Plaintiff guilty of the remaining charges was not supported by substantial evidence "and that the penalty of termination of the petitioner's employment for the charges and specifications which were supported by substantial evidence was so disproportionate to the offense as to be shocking to one's sense of fairness," typically referred to as the Pell Doctrine.

Essentially, said the Appellate Division, the matter before the Board was its determining "the appropriate penalty to be imposed" in lieu of dismissal.

In the words of the court "Under the circumstances presented, the penalty of demotion to the position of Librarian I" effective as of the date of the Board's original determination" is not so disproportionate to the offenses which "this Court found to be supported by substantial evidence as to be shocking to one's sense of fairness."

The Appellate Division further concluded that the Board did not violate Civil Service Law §77 in demoting Plaintiff, nor "in basing an award of back pay and benefits commensurate with the position of Librarian I" from the effective date of Plaintiff's demotion, September 26, 2016, citing Matter of DeStefano v Board of Coop. Educ. Servs of Nassau County, 50 AD3d at 899.

Click HEREto access the instant decision by the Appellate Division.

A former employee's right to bring an action alleging a violation of Civil Service Law §75-b, the "whistle blower law," survives the employee's separation from employment

In this CPLR action the Appellate Division rejected a lower court's ruling that Civil Service Law §75-b does not apply to actions taken by a public employer against a former employee prohibited by §75-b after an employee has resigned.

Rather, said the court, Civil Service Law §75-b prohibits a public employer from dismissing or taking any "other disciplinary or other adverse personnel action against a public employee regarding the employee's employment" because the employee discloses information of either:

(1) a violation of rule or law which presents a substantial and specific danger to public health and safety, or 

(2) improper governmental action (see Matter of Kowaleski [New York State Dept. of Correctional Servs.], 16 NY3d 85. 

The Appellate Division explained this includes "... blacklisting and providing negative references to an individual's prospective employers in retaliation for prior reports of government misconduct." Such actions may constitute adverse personnel action within the meaning of §75-b in the same way that the State Human Rights Law has been found to cover certain violations of the State Human Rights Law, citing Beckett v Prudential Ins. Co. of Am., 893 F Supp 234."