Violating of the termsof a disciplinary probationary settlement
Pagan v Board of Educ. of the City School Dist. of the City of New York, 56 AD3d 330
The employee, while serving a disciplinary probationary period, was summarilydismissed for violating the terms and conditions of the probationary settlementagreement.
The Appellate Division dismissed former employee’s petition seekingreinstatement.
The court said that the terms of a signed stipulation to which the individualhad agreed set out a three-year probationary period that provided as follows:
1. She was subject to automatic termination if she exceeded10 days per school year in unexcused absences; and
2. She waived her tenure right to a hearing under EducationLaw § 3020-a.
Accordingly, the individual was a probationary employee withinsofar as any unexcused was involved and was required to show bad faith of thepart of the Board of Education in order to succeed in her challenge to herdismissal.
Here, said the court, the evidence did not demonstrate thatthe former employee had been terminated in bad faith. Rather, the evidenceestablished that during the 2005-2006 school year, she had 11 unexcusedabsences.
The individual argued that she only had 8 unexcused absences because three ofher absences were in connection with court appearances. The Appellate Divisionheld that Pagan’s unexcused absences for court appearances “did not satisfy theterms of the stipulation for excused absences.”
NYPPL Comment: Exceptwhere a collective bargaining agreement provides otherwise, a public employeerequired to appear in a judicial or quasi-judicial proceeding pursuant to asubpoena is typically excused from his or her duties without charge to his orher leave credits. In contrast, an individual who is a party appearing in otherthan his or her official capacity must charge his or her absence from work tohis or her leave credits or be place on leave without pay.
As an example, 4 NYCRR 21.9 of the attendance rules foremployees of the State as the employer, address “Leave for subpoenaedappearance and jury attendance.” The rule provides that:
(a) Except as provided in subdivision (b) of this section,on proof of the necessity of jury service or appearance as a witness pursuantto subpoena or other order of a court or body, an employee shall be granted aleave of absence with pay with no charge against leave credits; provided,however, that this section shall not apply to any absence by an employeeoccasioned by such an appearance in an action to which such employee is aparty; and
(b) An employee holding a position designated as overtimeineligible may be granted a leave of absence with pay with no charge againstleave credits on proof of necessity of jury service or appearance as a witnesspursuant to subpoena or other order of a court or body for any period(s) ofless than a workweek, regardless of whether such employee is a party to theaction.
4 NYCRR 28-1.9 provides for similar absences, with orwithout pay, by individuals designated Managerial or Confidential within themeaning of Article 14 of the Civil Service Law [the Taylor Law].
The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_08993.htm
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