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Disciplinary penalty of termination vacated as ?shocking to one?s sense of fairness?

By Harvey Randall, Esq.

Disciplinary penalty of termination vacated as ?shocking to one?s sense of fairness?
Ronnie Wiggins v Southampton UFSD, Supreme Court, IAS Term, Part XXIV, Suffolk County, Judge Peter Fox Cohalan [not officially reported]

Ronnie Wiggins, had been employed by the Southampton Union Free School District as a groundsman for some 17 years. He brought this Article 78 action to challenge his termination following his being involved in an accident while driving a school-owned dump truck.

Wiggins was operating the dump truck in the course of snow removal operations when the vehicle he was driving came into contact with the private truck of another employee, Eugene Jacobs Jacobs had parked his vehicle in the parking lot being cleared of snow. On Tuesday, February 14, 2006, Mullin?s supervisor, Randall Dobler, directed Mullins to fill out a New York State MV-104 accident form immediately. Wiggins submitted the completed MV-104 form on February 17, 2006.

As the disciplinary hearing officer, Benjamin L. Herzweig, Esq., noted, the MV-104 form is required to be completed and filed within ten days of the incident. Wiggins was reassigned to his home with pay pending an investigation by the school district.

The School District subsequently filed disciplinary charges against Wiggins for ?allegedly refusing to complete paperwork in a timely manner when directed to do so; for denying the incident occurred; and for ?responding untruthfully.? Ultimately Wiggins was found guilty of the charges and was terminated from his position.

Wiggins? Article 78 petition did not raise any issue concerning whether the charges and specifications were supported by ?substantial evidence.? Rather, the petition challenged Wiggins? termination on the theory that imposing the penalty of termination under the circumstances in this case, constituted an ?abuse of discretion as to the measure or mode of penalty or discipline imposed.?

The issues for review, as framed by the court:

1. The determination of the School District?s Board of Education to dismiss a seventeen-year employee/groundskeeper with the School District because of his failure to file an MV-104 immediately at the time his superior told him to do so, notwithstanding New York?s requirement that such filing should be made within ten days of the incident to be reported;? and

2. In view of the fact that as Mullins did file the MV-104 form three days after being instructed to do so, whether his dismissal and loss of employment with the School District is ?so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct.?

Judge Cohalan decided that the penalty of dismissal was, indeed, so disproportionate to the offense charged and sustained as to violate the fundamental fairness doctrine and to constitute an abuse of discretion.

It appears, said the court, that the basis for the disciplinary action was not the accident but rather Wiggins? failure to file an MV-104 immediately upon being told to do so. While Wiggins should be disciplined for failing to promptly do as instructed by his superior, the question here is ?Does the penalty fit the crime?? In Judge Cohalan?s view, under the circumstances, terminating Wiggins for his failure promptly file an MV-104 when directed to do so seems extreme and disproportionate to the offense charged and constitutes an abuse of discretion as a matter of law.

The decision notes that in a similar case dealing with misconduct of an employee, Torrance v. Stout, 38 AD3d 910, the court commented that ?... the penalty of demotion from the position of Park Foreman to the position of Maintenance Laborer after 21 years of unblemished service, and its long term financial implications for [Torrance], was so disproportionate to the offense committed as to be shocking to one?s sense of fairness?.

By the same token, said Judge Cohalan, the long term financial implications with respect to Wiggins and his family resulting from dismissal after seventeen years of service ?seems extreme to the point of being disproportionate to the offense committed and shocks one?s sense of fairness and proportionality.? The matter was then remanded to the school district for it ?to impose a more reasonable penalty for the charges found to be valid.?

Full post as published by New York Public Personnel Law on April 24, 2008 (boomark / email).