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Deferring imposing a disciplinary penalty equivalent to disciplinary probation

Deferring imposing a disciplinary penalty equivalent to disciplinary probation
Matter of Mele v New York State Off. of Gen. Servs., 46 A.D.3d 1159

David Mele, an employee of the New York State Office of General Services [OGS], was demoted to the position of senior parking attendant in January 2005 due to poor work attendance. He was subsequently served with a notice of discipline seeking his dismissal from service based on allegations of time and attendance abuse ? being absent from work without approval [AWOL] on 23 separate occasions during February and March 2005.

Mele provided medical records documenting that he was incapacitated on the relevant dates and the OGS withdrew the charges.

Shortly thereafter, however, Mele again was AWOL and OGS issued a second notice of discipline in April 2005.

Ultimately, the parties entered into a settlement agreement that provided, among other things, that Mele ?[would] have a penalty of termination held in abeyance for one year for any AWOL[s] that occur during the one year period? commencing upon the execution of the agreement, i.e., commencing May 5, 2005.

The settlement agreement also provided that Mele, his union and OGS?s representatives would meet prior to the implementation of the penalty being held in abeyance. In addition, the settlement agreement stated that ?deferred penalties are equated to probation periods? and that by signing the settlement agreement, Mele was forfeiting his rights to appeal and, or, arbitrate the termination decision otherwise available to him pursuant to the collective bargaining agreement.

When Mele was AWOL again in September 2005, OGS?s Director of Human Resources Management, Daniel Cunningham, told him that he was in violation of the settlement agreement and that he was terminated from his position.

The union filed a grievance on Mele?s behalf. Cunningham denied the grievance, finding that by entering into the settlement agreement, Mele forfeited his right to appeal and, or, arbitrate OGS?s termination decision. The union appealed.

The Appellate Division, in considering the matter, noted that it had recently ruled in a case ?wherein the offending employee executed a disciplinary settlement agreement that imposed a one-year ?disciplinary evaluation period,? which the parties, in turn, understood to be the equivalent of a probationary period,? [Matter of Campbell, 37 AD3d 993].

In Campbell the Appellate Division decided that the imposition of the probationary period conferred upon the employer ?the right to make the threshold determination of whether [the employee] had committed misconduct without specification of the charges and without a hearing.?

In Mele?s case the settlement agreement ?plainly provided that any deferred penalty was equated to a probationary period? and, in addition, provided that by signing the settlement agreement, Mele was forfeiting his right to appeal his termination pursuant to relevant provisions in the collective bargaining agreement.

Accordingly, said the Appellate Division, OGS was free to make the determination of whether Mele was AWOL without the need for a specification of charges and a hearing. However, the court said that because Supreme Court did not address the issue of whether Mele?s termination was arbitrary and capricious, it was remitting this issue to Supreme Court for that purpose.

It should be noted that OGS terminated Mele for violating the specific condition set out in the settlement agreement ? his being AWOL. In contrast, in Taylor v Cass, 505 NYS2d 929, a Suffolk County employee won reinstatement with full retroactive salary and contract benefits because the court determined that he was improperly dismissed while serving a disciplinary probation period.

The terms of Taylor?s probation provided that he could be terminated 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 was subsequently terminated without a hearing for ?failing to give a fair day?s work? and ?sleeping during scheduled working hours.? The Appellate Division said the dismissal was improper because Taylor was not terminated for the sole reason specified in the settlement agreement: intoxication on the job.

Full post as published by New York Public Personnel Law on May 19, 2008 (boomark / email).