Labor & Employment Law

Employee terminated after violating terms of disciplinary probation

By Harvey Randall, Esq.

Employee terminated after violating terms of disciplinary probation
Pagan v Board of Educ. of City School Dist. of City of N.Y., 2007 NY Slip Op 1952(U) June 18, 2007, Supreme Court, New York County, Docket Number: 0116905/2006, Shirley W. Kornreich, J. [Not officially reported]

Yvonne Pagan, a former NYC School District employee was terminated pursuant to a stipulation settling a disciplinary action. The stipulation stated that Pagan would be immediately terminated if she was excessively absent.¹

On August 31, 2006, Pagan?s principal, Ailene Altmari Mitchell, notified her that she

was terminated immediately for absences exceeding 10 days during the year. Pagan then claimed that she submitted proof of three absences due to court appearances, which, she contended, meant that her ?absence count? was only eight days for the year.

Pagan, seeking reinstatement to her former position, argued she is a tenured employee and, in effect, terminating her after eight days of absence violated the terms and conditions of the disciplinary settlement stipulation as well as Education Law §3020-a.

Judge Kornreich stated that ?It is settled that a teacher may voluntarily waive her tenure rights under Education Law 3020-a in exchange for withdrawal of disciplinary charges, citing Ahruinovich v, Board Central School Dist. No. 1, 62 AD2d 252. Thus, under the terms of the settlement agreement, insofar as her absenteeism was a consideration, Pagan was a probationary employee, subject to termination without the right to an Education Law Section 3020-a hearing. Accordingly, any dismissal due to absenteeism during this probationary period was to be reviewed under the standard for probationary employees.

The Court noted that the language of the Stipulation is clear; Pagan was serving a three-year ?probationary period? during which she waived her tenure right to a Section 3020-a hearing, and could be summarily terminated for violating the Stipulation.²

Although Pagan retained her status as a tenured employee in all other aspects, insofar as her status with regard to absenteeism, she was a probationary employee. Therefore, ?judicial review is limited to an inquiry as to whether the termination was made in bad faith? with regard to her dismissal for ?excessive absence.?

Finding that Pagan was not summoned to court nor did she submit timely proof of the court appearances, as was required by the Stipulation, Judge Kornreich said that ?Nothing in the record indicates that [School District] violated the Constitution, a statute, or decisional law.?

In effect, the court rejected Pagan?s contention that her ?absence count? was only eight days for the year, concluding that she could be summarily dismissed pursuant to the terms set out in the disciplinary settlement agreement.

Accordingly, the court ruled that Pagan had no tenable claim that her termination was made in bad faith and granted the School District?s motion for summary judgment dismissing her complaint.

Taylor v Cass, 505 N.Y.S.2d 929, provides another example that courts strictly apply the terms and conditions of a disciplinary probationary period set out in a disciplinary settlement and on the limitations placed on the discretion of the appointing authority to terminated an individual serving such a disciplinary probation as well as the employee?s conduct under the terms of the settlement.

Taylor, a Suffolk County employee, won reinstatement with full retroactive salary and contract benefits after a court found that he was improperly dismissed during his disciplinary probation period.

According to the ruling, under the terms and conditions of the probation to which Taylor had agreed, the county could terminate him 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.? Nothing was said as to his being intoxicated on the job with respect to his dismissal as a probationary employee.

Taylor sued, challenging his dismissal. He won reinstatement with back salary. The Appellate Division decided that Taylor?s dismissal was improper because Taylor was not terminated for the sole reason specified in the disciplinary settlement agreement: intoxication on the job.

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1 The settlement of the disciplinary action provided that Pagan would pay a $6,500 fine and serve a three year probationary period, during which time she could be absent was limited to absences 10 per year. Accordingly, Pagan could be summarily terminated if she exceed 10 absences in a year while serving as a probationer. The settlement also provided that absences due to Pagan?s being summoned for jury duty or for a court proceeding would not count towards the ten allowable absences, provided she immediately submitted proof of jury duty or the court proceeding upon her return to work.