Labor & Employment Law

Back pay award is based on salary of position to which employee was demoted

By Harvey Randall, Esq.

Back pay award is based on salary of position to which employee was demoted
Matter of DeStefano v Board of Coop. Educ. Servs. of Nassau County, 2008 NY Slip Op 03454, Decided on April 15, 2008, Appellate Division, Second Department

Karen DeStefano was dismissed for her position Teacher Aide of by the Board of Cooperative Educational Services of Nassau County after the BOCES adopted a Civil Service Law Section 75 hearing officer?s finding her guilty of misconduct and recommendation that she be terminated.

DeStefano appealed and the Appellate Division, Second Department annulled the determination terminating her employment, and remitted the matter to BOCES for the imposition of an appropriate sanction less severe than termination (see Matter of DeStefano v Board of Coop. Educ. Servs. of Nassau County, 26 AD3d at 433-434).

BOCES reconsidered its determination and subsequently advised DeStefano that it was demoting her to the position of School Monitor and that it would pay her $35,927.05, representing back pay from the date on which she was terminated from her position of Teacher Aide. BOCES based the back pay amount on a School Monitor's salary, which was less than a Teacher's Aide's salary.

DeStefano appealed, but the Appellate Division ruled that the new sanction imposed by BOCES was not so disproportionate to the petitioner's misconduct 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, 34 NY2d at 222.

The Appellate Division also ruled that ?no basis exists for annulling the determination of BOCES to base the back pay award on a School Monitor's salary as opposed to a Teacher's Aide's salary.? The court rejected DeStefano?s argument that the court had earlier ?reinstated her to her former position? and thus her back pay award should have been based on her ?Teacher? Aide? salary. Rather, said the court, it had earlier upheld BOCES' determination that DeStefano was guilty of misconduct, but remitted the matter to it for the imposition of a less severe sanction for that misconduct.

Full post as published by New York Public Personnel Law on April 21, 2008 (boomark / email).