Labor & Employment Law

Employer cannot impose a disciplinary penalty not provided for by statute or by its own rules or written policies

By Harvey Randall, Esq.

Employer cannot impose a disciplinary penalty not provided for by statute or by its own rules or written policies
Matter of Gomez v New York City Dept. of Educ., 2008 NY Slip Op 03956, Decided on April 29, 2008, Appellate Division, First Department

On April 26, 2006, Francia Gomez, a school bus driver since 1998 with a previously unblemished employment record, reported for work, she was notified that she had been randomly selected to appear at a Queens laboratory for a drug test and that her failure to submit to such test on that date might result in her decertification. Gomez, however, went to a previously scheduled appointment with physician and did not go to the laboratory to be tested for drugs until the next morning. The test results: negative.

In consideration of a claim that the Office of Pupil Transportation [OPT] has "zero tolerance for drug use," the disciplinary conference officer ruled that the permanent revocation of Gomez's bus driver certification was the appropriate penalty to be imposed because Gomez failed to report for a random drug test as directed.

The Appellate Division, however, pointed out that ?Chapter 6 of Title 17 of the Administrative Code of the City of New York, which governs "Drug Testing of School System Conveyance Drivers," merely provides that ?"[a]ny driver who refuses to take a drug test shall immediately be removed from active duty for a period of at least one year and shall not return to active duty until passing a return to active duty drug test? (Administrative Code §17-610[c]).? In the words of the court, ?It goes without saying that an administrative agency cannot impose a penalty not provided for by statute or by its own rules or regulations and written policies.?

The Appellate Division agreed with Supreme Court?s view that even assuming that Gomez's taking the random drug test one day late constituted a "refusal" to take the test, ?there is simply no provision that a driver who refuses to take a randomly scheduled drug test shall be permanently decertified as a bus driver.?

Finding that the penalty imposed by OPT was arbitrary and capricious as a matter of law, the Appellate Division sustained the lower court?s annulment of its decision to revoke Gomez?s certification as a school bus driver.

In addition, Justice Buckley, in a concurring opinion, said: ?Because the penalty imposed (revocation of petitioner's school bus driver certification) for petitioner's failure to appear for a drug test was harsher than the penalty permitted under the pertinent rules if she had taken the test and failed, the penalty imposed was so disproportionate to the offense 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 the Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222.

Full post as published by New York Public Personnel Law on May 01, 2008 (boomark / email).