Labor & Employment Law

Disciplinary action claimed filed with malice

Disciplinary action claimed filed with malice
Howard v City of New York, App. Div., 1st Dept., 294 A.D.2d 184

An agency files disciplinary charges against an employee only to later withdraw the charges. Is the employer guilty of malicious prosecution? As the Howard case demon­strates, it depends on the circumstances.

The New York City Department of Corrections filed disciplinary charges against one of its correction officers, Cheryl Howard. The basis for these disciplinary charges: allega­tions that Howard had appeared in a pornographic video.

When it was subsequently discovered that Howard had neither appear in, nor was in­volved with, the pornographic video, the Department rescinded and withdrew the disci­plinary charges it had filed against her. Howard, however, sued the Department, charging it with malicious prosecution because, she alleged, the Department had conducted a "deficient investigation into the grounds for initiating the disciplinary proceeding against her."

The Appellate Division sustained the Supreme Court's dismissal of her charge of mali­cious prosecution because Howard did not allege any "special injury." According to the ruling, Howard did not allege any "concrete harm ... considerably more cumbersome than the physical, psychological or financial demands of defending" the disciplinary proceeding. Further, said the court, Howard did not demonstrate that she had suffered "a highly substantial and identifiable interference with person, property or business."

Another case involving alleged malicious prosecution is Covert v County of Westchester, 608 NYS2d 516. Covert, a Westchester County corrections officer, sued the County for malicious prosecution after he was acquitted of criminal charges of assault base on alle­gations made by a prisoner that he had been subjected to a beating by Covert and two other correction officers.

The Appellate Division said that in order to recover damages for malicious prosecution, the aggrieved party had to show [1] Initiation of an action; [2] The action was terminated in favor of the employee; [3] There was no probable cause for bring the action; and [4] The charges were filed with malice.

The court dismissed Covert's complaint, holding that "[i]n this instance there was ample evidence in the record to find, as a matter of law, that there was probable cause to be­lieve that Covert had committed the assault."

Although the Covert case involved a criminal complaint being filed against the em­ployee, presumably the same standard would be applied by courts in cases alleging mali­cious prosecution in connection with administrative disciplinary actions.

Full post as published by New York Public Personnel Law on May 08, 2008 (boomark / email).