Labor & Employment Law

Employee ultimately terminated not entitled to back salary for the period when the penalty to be imposed was being reconsidered

Employee ultimately terminated not entitled to back salary for the period when the penalty to be imposed was being reconsidered
Hershkowitz v New York City Dept. of Educ., 2008 NY Slip Op 04742, Decided on May 27, 2008, Appellate Division, First Department

The New York City Department of Education [DOE] filed disciplinary charges against Cary Hershkowitz pursuant to Education Law § 3020-a. The charges contained 12 specifications of sexual misconduct and other inappropriate interactions with respect to several students.

Hershkowitz asked the hearing officer to suppress his written confession, in which he admitted to sending "many" instant messages to a female student explicitly discussing and soliciting various sexual acts. The hearing officer suppressed the statement as violative of the collective bargaining agreement between DOE and the United Federation of Teachers (UFT) and dismissed all of the charges filed against him and directed that DOE reinstate him to his former position.

DOE appealed and Supreme Court vacated the determination and directed a new hearing, at which Hershkowitz?s written statement was to be considered. The Appellate Division affirmed the Supreme Court?s ruling [see Board of Educ. of City of N.Y. v Hershkowitz, 308 AD2d 334].

A new hearing was held at which the written statement was admitted. Hershkowitz declined to testify. The hearing officer sustained six of the charges and imposed the penalty of a one-year suspension without pay. DOE filed an appeal pursuant to CPLR Article 75, contending that the penalty imposed was inadequate.

The matter was remanded to a new hearing officer who directed that Hershkowitz be dismissed from service.

Hershkowitz then sued to recover back pay and benefits for the period of time between the award suspending him for one year, which was annulled, and the final order terminating his employment. The Appellate Division said that his complaint should be dismissed for failure to state a cause of action. The court pointed out that the matter was remanded solely for a redetermination of the penalty and Hershkowitz ultimately received a harsher penalty ? termination from employment. The fact that the second hearing officer erroneously believed that he was to make a redetermination with respect to the 6 six charges that Hershkowitz had been found guilty in the initial disciplinary hearing, said the court, is immaterial.

Full post as published by New York Public Personnel Law on May 30, 2008 (boomark / email).