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Employee’s lack of remorse concerning activities leading todisciplinary action does not always mandate imposing termination as the penaltyCity of New York v Organization of Staff Analysts, 2013NY Slip Op 00806, Appellate Division, First Department
The Appellate Division affirmed Supreme Court’s denial ofthe City of New York’s petition to vacate an arbitrator’s award imposing apenalty of a one-year suspension without pay rather than termination of theemployee.
The employee had been charged with accessing the personnelfiles of two co-workers.
The Appellate Division said that although and arbitrator’saward “can be overturned where it is directly contrary to a settled public policy,” citing UFT Local 2 vBoard of Education, 1 NY3d 72. The court said that imposing a one-yearsuspension without pay rather than termination did not violate “the policy ofprotecting confidential information.”
Further, explained the court, the imposition of a penaltyshort of termination did not render the award irrational, rejecting the City’sargument 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 AD3d1042, in support of its contention that termination was the appropriate penalty in this instance. In Binghamton the Appellate Division held that a “school teacher'slack of remorse or understanding of moral aspect of inappropriate relationshipwith teen student required termination until counseling or other remedial stepstaken.”
Although the Appellate Division noted “the employee's lackof remorse,” it held that although “relevant to the risk of recidivism,” inthis instance such lack of remorse “didnot rise to the level in the cases relied upon by the City.”
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00806.htm
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