2013 NY Slip Op 05942, Appellate Division, Third Department
A school custodian [Employee] was served with disciplinary charges pursuant to Civil Service Law §75 alleging that he was guilty of misconduct, incompetence and insubordination. The disciplinary hearing officer found Employee guilty of charges of misconduct and insubordination involving numerous incidents, including Employee’s sleeping while on duty and Employee’s “using vacation days” without giving proper notice or obtaining authorization to do so.
The hearing officer also determined that Employee was guilty of misconduct and insubordination with respect to his behavior after being served with the initial disciplinary charges and specifications brought against him by “verbally abusing his supervisor and failing to immediately leave the premises after being directed to do so.”*
Noting that Employee had violated an earlier "last chance" agreement specifying that dismissal was appropriate if he engaged in any future misconduct, the hearing officer recommended that Employee be terminated from his position.
The appointing authority adopted the hearing officer’s findings and recommendation and dismissed Employee from his position.
Employee applied for unemployment insurance benefits. The Unemployment Insurance Appeal Board determined that Employee's behavior “did not rise to the level of disqualifying misconduct" and awarded him unemployment insurance benefits.The employer appealed the Board’s decision.
The Appellate Division reversed the Board’s ruling, explaining that although the Board was free to make "independent additional factual findings" and draw its own independent conclusion as to whether Employee's behavior rose to the level of disqualifying misconduct for purposes of entitlement to unemployment insurance benefits, it was also bound by the disciplinary hearing officer's "factual findings” with respect to Employee’s conduct and the hearing officer's conclusion that Employee was guilty of insubordination.
As the Board failed to consider whether some of the established instances of misbehavior constituted disqualifying misconduct, and improperly contradicted other factual findings of the disciplinary hearing officer, the Appellate Division remanded the matter to the Board “so that it may reconsider” its ruling consistent with the court’s decision.
* Presumably the initial disciplinary charges served on Employee were amended or supplemented to reflect these additional allegations of misconduct.
The decision is posted on the Internet at:
Reprinted with permission New York Public Personnel Law
Mitchell H. Rubinstein