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Violating the terms of a disciplinary probation

By Harvey Randall, Esq.

Violating the terms of a disciplinary probation
Davis v DMNA, App. Div., 3rd Dept., 291 A.D.2d 778

Disciplinary action was initiated against Randall Davis by his employer, the New York State Division of Military Affairs and Naval Affairs [DMNA], based on allegations that he was guilty of violating DMNA's Internet policy by visiting inappropriate websites, including pornographic websites and using a State-owned computer for "personal busi­ness."

The disciplinary action was matter was settled and the Division and Davis entered into an agreement dated January 19, 2000.

The relevant part of the settlement agreement placed Davis on disciplinary probation for one year and prohibited him from using State-owned computer equipment for personal reasons, including placing personal information on disks or other storage devices owned by the State. The agreement expressly provided that in the event Davis violated any of its terms, he would be subject to "automatic dismissal".

Davis returned to work and shortly thereafter created a file folder in his computer entitled "Rd" and stored various information, including personal information, in that folder.

According to the decision, Davis created this folder after work hours and placed it in a location on his work computer that was considered to be unusual for this type of file. As a result he was summarily terminated from his position on the grounds that he had violated the terms of his disciplinary probation.

Davis appealed, claiming that his termination was arbitrary and capricious and that the decision to terminate him was made in bad faith. However, noted the Appellate Division, Davis neither contested the fact that he created this file in his state-owned computer nor that he moved nonwork-related website addresses into it. The Appellate Division observed that Davis "voluntarily entered into the settlement agreement which placed him in the status of a probationary employee subject to automat­ic termination if he violated any of its provisions."

Citing Swinton v Safir, 93 NY2d 758, the court said it had to apply a "stringent standard of review" in considering termination cases of probationary employees. It said that "a probationary employee has no right to challenge the termination by way of a hearing or otherwise, absent a showing that he was dismissed in bad faith or for an improper or impermissible reason."

Dismissing Davis' appeal, the court made the noted the following:

The record demonstrates that Davis violated the terms of the disciplinary settlement agreement, which provides a legally sufficient basis to terminate his employment; and

Davis did not meet his burden of establishing that his termination was retaliatory in nature and thus made in bad faith.

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