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Employee?s personnel records considered by the administrative law judge in determining the disciplinary penalty to be recommended

Employee?s personnel records considered by the administrative law judge in determining the disciplinary penalty to be recommended
Health and Hospital Corp. v Milton Meyers, OATH Index No. 1487/09

Administrative Law Judge Alessandra F. Zorgniotti found that a hospital aide guilty of intentionally ?chest bumping? a co-worker with such force as to cause the co-worker to stumble.

A police officer classified the event as ?harassment? and the narrative indicated that Meyers ?did push and shove [his co-worker] after a dispute.? ALJ Zorgniotti recommended that Meyers be given ten-day suspension without pay as the penalty for his action.

In making her recommendation Zorgniotti noted that she had considered the material in Meyers ?personnel abstract.? The abstract indicated that he had been earlier given a warning for ?intimidating and threatening behavior? among other criticisms. However, the ALJ found that ?this warning constitutes vague allegations and was not adjudicated misconduct? she deemed it ?irrelevant to this penalty consideration.?

In Holt v Board of Education, 52 N.Y.2d 625, the Court of Appeals said that performance evaluations and letters of criticism placed in the employee?s personnel file were not ?disciplinary penalties? and thus could be placed there without having to first hold a disciplinary proceeding.

In contrast, where ?constructive criticism? imposed, in effect, a penalty, it constitutes disciplinary action and such action has been found to serve to frustrate an employee?s right to due process as set out in Section 75 of the Civil Service Law, Section 3020-a of the Education Law or a contract disciplinary procedure.

The decisions of the Commissioner of Education in Irving v Troy City School District, CEd 14,373, illustrate this concept [Irving is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume39/d14373.htm ].

The full text of the Meyers decision is posted on the Internet at:
http://www.citylaw.org/OATH/09_Cases/09-1487.pdf

Full post as published by New York Public Personnel Law on February 24, 2009 (boomark / email).