Proving disciplinary charges

To contact us Click HERE

Proving disciplinary charges

An employee was found guilty of some of the thirty specificationsof misconduct and incompetence filed against her. The hearing officer found theemployee guilty of seventeen of these thirty specifications and recommendedthat she be dismissed from her position.
Specifications of misconduct and incompetence filed againstthe employee included allegations of excessive lateness, failure to properlycarry out assigned duties, and actions in contradiction of established employerprocedure. The hearing officer's findings and recommendations were adopted by theappointing authority and the individual was dismissed from her position. Insustaining the determination, the Appellate Division, Third Department notedthat: the findings of a Hearing Examiner will be confirmed if they aresupported by substantial evidence in the record even where conflicting evidencemay have supported a different determination.
What constitutes "substantial evidence" is thesignificant issue in such cases. The decision illustrates some of the factorsthat courts weigh in determining whether there is substantial evidence tosupport the findings of the hearing officer.
The hearing officer found the employee guilty of seven ofthe 12 specifications concerning her alleged failure to perform assignedclerical tasks properly. The court, however, concluded that "only six ofthe seven specifications should be confirmed based upon the testimony profferedby petitioner's supervisor." Why? Because, explained the court, testimonythat employee had typed the incorrect labels because the witness recognized thefont from the individual’s typewriter was insufficient as there was testimonyestablishing that there were several typewriters in that office using thatparticular font. As the witness could not testify that she witnessed theemployee preparing these folders and the employee denied that the error washers, the court said it could not conclude that there was sufficient evidenceto support this allegation.
The hearing officer also found the employee guilty of six ofthirteen specifications alleging that she improperly performing her duties byexceeding her authority or violating the employer’s policy. In this instancethe court held that the record supported the hearing officer's findings, noting that the employee was advised of these problems in her performance invarious performance evaluation, together with the need for her to improve inthese areas.
With respect to disciplinary specifications focusing on theemployee's use of the workplace to conduct personal business and engage inlengthy personal telephone calls, the Appellate Division ruled that thetestimony of her superiors, confirmed by a co-worker, was sufficient to provethe allegations.
The court also said that it did not find any error in thehearing officer finding the employee guilty of 36 of the 48 allegations thatshe had arrived late for work on specified dates. These allegations, said thecourt, were supported either by the employee's time sheets or by testimony fromher superior or co-workers.
The Appellate Division remanded the matter to the employerfor its consideration of the appropriate penalty to be imposed in view of itsfinding the employee not guilty of certain charges and specifications. Thecourt also said that it noted that the employee had been given numerous oraladmonitions and counseling memoranda warning her of "further disciplinaryaction," but held that such actions did not constitute "punishment" such that thepresent disciplinary proceeding could be deemed duplicative.
The decision is posted on the Internet at:http://weblinks.westlaw.com/result/default.aspx?cfid=1&cnt=DOC&db=NY-ORCS-WEB&eq=search&fmqv=c&fn=_top&method=TNC&mt=Westlaw&n=2&origin=Search&query=%22FERGUSON+V+TRAFICANTI%2C%22&rlt=CLID_QRYRLT6335626910110&rltdb=CLID_DB219026910110&rlti=1&rp=%2Fsearch%2Fdefault.wl&rs=NYOFF1.0&service=Search&sp=NYOFF-1000&srch=TRUE&ss=CNT&sskey=CLID_SSSA889026910110&sv=Split&tempinfo=word&vr=2.0