March 7, 2013
Employee’s lack of remorse concerning activities leading to disciplinary action does not always mandate imposing termination as the penalty
City of New York v Organization of Staff Analysts, 2013 NY Slip Op 00806, Appellate Division, First Department
The Appellate Division affirmed Supreme Court’s denial of the City of New York’s petition to vacate an arbitrator’s award imposing a penalty of a one-year suspension without pay rather than termination of the employee.
The employee had been charged with accessing the personnel files of two co-workers.
The Appellate Division said that although and arbitrator’s award “can be overturned where it is directly contrary to a settled public policy,” citing UFT Local 2 v Board of Education, 1 NY3d 72. The court said that imposing a one-year suspension without pay rather than termination did not violate “the policy of protecting confidential information.”
Further, explained the court, the imposition of a penalty short of termination did not render the award irrational, rejecting the City’s argument that there was a possibility that the employee “will re-offend, especially where there has been no criminal conviction and there is a clear, substantial penalty imposed to deter such future conduct.”
The City had cited Binghamton City School District, 46 AD3d 1042, in support of its contention that termination was the appropriate penalty in this instance. In Binghamton the Appellate Division held that a “school teacher's lack of remorse or understanding of moral aspect of inappropriate relationship with teen student required termination until counseling or other remedial steps taken.”
Although the Appellate Division noted “the employee's lack of remorse,” it held that although “relevant to the risk of recidivism,” in this instance such lack of remorse “did not rise to the level in the cases relied upon by the City.”
The decision is posted on the Internet at:
Mitchell H. Rubinstein