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Not preserving records that an employee claims might help in defending disciplinary charges filed against the individual may not be a fatal defect

Not preserving records that an employee claims might help in defending disciplinary charges filed against the individual may not be a fatal defect
Thomas v Mt. Vernon P.D., App. Div., 249 A.D.2d 483, Motion to appeal denied, 94 N.Y.2d 763

The Thomas case raises an interesting question: What is the impact of an employer?s failure to preserve records that an employee may believe helpful in a disciplinary hearing?

Robin Thomas was found guilty of failing to provide advance notice to the Mount Vernon Police Department that she would be absent from work on May 4, 1995. Found guilty, the penalty imposed was dismissal.

Claiming that she telephoned on May 3, 1995 to report that she would be absent, Thomas sued, contending that she was denied due process because the police department failed to preserve the tape recordings of telephone calls it received on that date.

The Appellate Division held that the record failed to show that the loss of this tape was due to bad faith on the part of the department. Testimony showed that such tapes were routinely reused after 30 days, which was ?well before any disciplinary charges were brought against Thomas. The court also commented that ?contrary to [Thomas?] contention that the tape recording was the best evidence as to whether the subject telephone call was ever made, direct evidence on that issue was offered at the hearing from the alleged parties to the conversation.

The matter, however, was remanded for reconsideration of the penalty imposed. The court said that the hearing officer, in recommending termination, relied on information in Thomas? personnel file, including allegations of ?excessive absences.?

The hearing record, however, (1) did not show that Thomas was advised that her personnel record would be considered by the hearing officer and (2) did not show that she was given an opportunity to submit her comments concerning its contents.

If an individual?s personnel records are to be used to determine the disciplinary penalty to be imposed, the employee must be advised of that fact and provided with an opportunity to comment on the material included in the file.

Citing Bigelow v Board of Trustees, Village of Gouverneur, 63 NY2d 470, the Appellate Division said that a new determination as to the penalty to be imposed was required and remitted the matter to Mount Vernon?s Commissioner of Public Safety.

Full post as published by New York Public Personnel Law on April 05, 2010 (boomark / email).