Labor & Employment Law

Determining an appropriate penalty for misconduct

By Harvey Randall, Esq.

Determining an appropriate penalty for misconduct
Matter of Darryl Tripplin and the NYC Department of Sanitation, OATH Index No. 1016/07

Darryl Tripplin, a computer associate employed by the New York City Department of Sanitation, was served with disciplinary charges alleging five incidents of ignoring, disobeying, or being disrespectful to his supervisor.

Sanitation asked that a penalty of five days? suspension for each of two disrespectful e-mails be imposed and that a penalty of a 60 days? suspension without pay be imposed for the other misconduct charges.

OATH Administrative Law Judge Kevin F. Casey found substantial evidence to prove that Tripplin sent one disrespectful e-mail about a supervisor and that he was guilty of insubordination on two other occasions.

Judge Casey said that ?Although I agree that a five-day penalty is appropriate for a disrespectful e-mail, a 60-day penalty for the remaining charges is excessive. Instead, Judge Casey recommended imposing a penalty of a 30-days suspension without pay in consideration of all of the charges for which Tripplin had been found guilty.

In determining the penalty to recommend Judge Casey considered Tripplin?s personnel history with the Department of Sanitation. Key elements considered by the Administrative Law Judge included the fact that Tripplin had been employed by Sanitation since 1990 and that he had no prior disciplinary record. Judge Casey also noted that Tripplin had earlier been employed as a State corrections officer and that he had served in the Marine Corps.

In making his recommendation regarding the penalty to be imposed, Judge Casey noted that although Tripplin had been found guilty of engaging in insubordinate and other unprofessional behavior, the penalty requested by Sanitation ?is out of line with prior penalties imposed on other Department employees for similar misconduct.?

A penalty at the high end of the permissible range would be disproportionate to the 30-day penalty imposed upon a co-worker of Tripplin?s for similar misconduct, especially in view of the fact that Sanitation?s witnesses testified that the co-worker?s conduct was ?a more disruptive influence in the workplace? than was Tripplin?s. Judge Casey commented that while Tripplin?s co-worker ?had accepted his penalty without going to a hearing, that distinction is not enough to justify a harsher penalty against [Tripplin].?

Thus, said Judge Casey, ?A mid-range penalty would be more consistent with principles of progressive discipline, while making clear to [Tripplin] that his insubordination is not acceptable behavior? and recommended the Department imposed a cumulative penalty of a 30-day suspension without pay.

For the full text of the opinion, go to:

http://nypublicpersonnellawarchives.blogspot.com/2007/06/determining-appropriate-penalty-for.html

Full post as published by New York Public Personnel Law on March 24, 2008 (boomark / email).