Home -> Law Blog Directory -> Labor & Employment Law Blogs -> New York Public Personnel Law

Labor & Employment Law

: New York Public Personnel Law

Evidence of a valid reason for taking disciplinary action against an employee trumps a finding that there was an improper reason for such action

strongEvidence of a valid reason for taking disciplinary action against an employee trumps a finding that there was an improper reason for such action/strongbr /Batyreva v New York City Dept. of Education, 2008 NY Slip Op 09841, Decided on December 16, 2008, Appellate Division, First Departmentbr /br /Olga Batyreva alleges that she was assigned to grade a Regents examination and while doing so, observed other teachers improperly grading the exam with No. 2 pencils instead of red pencils or red pens. She reported this violation to ?to the appropriate officials.? As a result of her action, Batyreva claimed the New York City Department of Education gave her and unsatisfactory rating and instituted disciplinary action against her.br /br /Batyreva filed an Article 78 action, challenging the unsatisfactory ratings as false. Her action was dismissed on a finding that the ratings were not arbitrary and capricious (a href="http://www.courts.state.ny.us/reporter/3dseries/2008/2008_02902.htm" target="_blank"Batyreva v New York City Dept. of Educ., 50 AD3d 283/a).br /br /Batyreva then filed a second lawsuit against DOE contending that it had retaliated against her for her exercise of free speech by giving her unsatisfactory evaluations ratings and instituting disciplinary proceedings falsely alleging incompetence in violation of 42 USC 1983, the Civil Right Act.br /br /A lower court decided that Batyreva?s complaint ?sufficiently alleges that the grading procedures are a matter of public concern,? and because it did not allege that she was ?in a supervisory position or that it [was] part of her official responsibilities to report any suspected or real diversions from proper grading procedures," Batyreva was "speaking as a citizen and not in her official capacity as a public employee."br /br /The Appellate Division held that the lower court?s ruling was incorrect. Rather, said the court, the holding in Batyreva?s prior Article 78 proceeding estops her from asserting that the unsatisfactory ratings and disciplinary proceeding were retaliatory violations of her right to free speech. The court said that ?proof that the [retaliatory] action was independently justified on grounds other than the improper one defeats [her 42 USC 1983] claim.?br /br /The full text of the decision is posted on the Internet at:br /br /a href="http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09841.htm"http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09841.htm/a

Full post as published by New York Public Personnel Law on December 18, 2008 (boomark / email).