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Proving disciplinary charges

Proving disciplinary charges
Ferguson v Traficanti, App. Div., 3rd Dept., 295 A.D.2d 786

Desiree Ferguson was found guilty of some of the thirty specifications of misconduct and incompetence filed against her. The hearing officer found Ferguson guilty of seven­teen of these thirty specifications and recommended that she be dismissed from her posi­tion of Senior Office Assistant with the Schenectady City Court.

Among the specifications of misconduct and incompetence filed against her: excessive lateness, failure to properly carry out assigned duties, and actions in contradiction of established court procedure. The hearing officer's findings and recommendations were adopted by the appointing authority and Ferguson was dismissed from her position.

In sustaining the determination, the Appellate Division, Third Department noted that:

Findings of a Hearing Examiner will be confirmed if they are supported by substantial evidence in the record even where conflicting evidence may have supported a different determination.

What constitutes "substantial evidence" is the significant issue in such cases. The deci­sion demonstrates some of the factors that courts weigh in determining whether there is substantial evidence to support the finding of the hearing officer.

The hearing officer found Ferguson guilty of seven of the 12 specifications concerning her alleged failure to perform assigned clerical tasks properly. The court said that "only six of the seven specifications should be confirmed based upon the testimony proffered by petitioner's supervisor."

Why? Because, explained the court, testimony that Ferguson had typed the incorrect labels because the witness "recognized the font from [Ferguson's] typewriter was insuffi­cient since testimony also established that there were several typewriters in that office using that particular font."

As the witness could not testify that she witnessed Ferguson preparing these folders and Ferguson denied that the error was hers, the court said it could not conclude that there was sufficient evidence to support this allegation.

The hearing officer also found Ferguson guilty of six of thirteen specifications alleging that she improperly performing her duties by exceeding her authority or violating court policy. In this instance the court held that the record supported the hearing officer's find­ings, noting that Ferguson was advised of these problems in her performance in various performance evaluation, together with the need for her to improve in these areas.

With respect to disciplinary specifications focusing on Ferguson's use of the workplace to conduct personal business and engage in lengthy personal telephone calls, the Ap­pellate Division ruled that the testimony of her superiors, confirmed by a co-worker, was sufficient to prove the allegations.

The court also said that it did not find any error in the hearing officer finding Ferguson guilty of 36 of the 48 allegations that she had arrived late for work on specified dates.

These allegations, said the court were supported either by Ferguson's time sheets or by testimony from her superior or co-workers.

The Appellate Division declined to review the penalty imposed, as the more appropriate course is to remit the matter to the appointing authority for its reconsideration.

The court also said that it noted that Ferguson was given numerous oral admonitions and counseling memoranda warning her of further disciplinary action, such did not constitute "punishment" such that the present disciplinary proceeding could be deemed duplicative.

Full post as published by New York Public Personnel Law on June 11, 2008 (boomark / email).