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Employee suspended without pay in excess of the time authorized by §75 may be entitled to be paid for some or all of such suspension without pay

Employee suspended without pay in excess of the time authorized by §75 may be entitled to be paid for some or all of such suspension without pay
Elizabeth Miller Nabors v Town of Somers, 2010 NY Slip Op 03089, Decided on April 13, 2010, Appellate Division, Second Department

Elizabeth Miller Nabors began working part time for the Town of Somers. Although she worked about 10 hours per week she submitted claims to the Unemployment Insurance Division of the New York State Department of Labor [UID] in which she stated that she had not worked any days during her part-time employment.

Subsequently Nabors became a full time employee. UID then determined that she had received benefits to which she was not entitled and that she had willfully misrepresented her eligibility for unemployment benefits. Nabors appealed the penalty UID imposed on her but the hearing, an administrative law judge sustained UID?s initial determination.

Somers then initiated a disciplinary action charging Nabors with two counts of misconduct based on her alleged false representations to the UID and to the ALJ, and one charge of alleged incompetence, contending that Nabors made false and willful misrepresentations that excluded her from coverage under the Town's insurance policy.

The Town placed Nabors on unpaid suspension effective February 10, 2006, "for the period allowed by Civil Service Law §75(3)," and scheduled a hearing for March 3, 2006.

In a letter dated February 28, 2006, Nabors's newly retained counsel requested an adjournment of the hearing originally scheduled for March 3, 2006, until sometime after March 9, 2006. In so doing, Nabors's attorney acknowledged that her "client is currently on an unpaid suspension pending the decision of the aforementioned hearing and agree that such condition will continue until a hearing is conducted and the matter resolved."*

The Town consented to the adjournment, and the parties' respective counsel thereafter agreed that the hearing would be adjourned until March 20, 2006. Subsequently the hearing officer advised the parties that the hearing was adjourned from March 20th to April 21, 2006. Then the Town's attorney requested an adjournment of the hearing, and the hearing officer granted the request by rescheduling the hearing for May 18, 2006.

The hearing officer again adjourned the hearing, this time until July 5, 2006 and ultimately the hearing was conducted on July 5, 2006, and July 28, 2006.

The hearing officer issued a decision and order dated January 4, 2007, finding Nabors was guilty of all three charges. Finally, in a resolution dated May 11, 2007, approximately 15 months after Nabors's suspension from employment began, the Town adopted the recommendations of the hearing officer, and terminated Nabors's employment.

Nabors next initiated a lawsuit seeking summary judgment to recover back pay for the period of her suspension in excess of 30 days, as provided by Civil Service Law §75(3). Supreme Court denied Nabors's motion, concluding that she waived her right to be paid during her suspension. The Appellate Division disagreed, ruling that Nabors did not waive her right to be paid during her suspension.

The Appellate Division explained that ?As long as the delay in disposing the charges is not ?occasioned by the employee's fault,? an employee suspended for a period in excess of 30 days may recover back pay for the excess period even if he or she is eventually found guilty of the charges.?**

Here, said the court, Nabors sought a brief adjournment of the original hearing date. Notwithstanding the acknowledgment by Nabors's counsel that Nabors was suspended without pay pending the hearing and resolution of the matter, and despite the absence of any coercion, the Town may not be permitted to use that acknowledgment alone as the basis for delaying the hearing for an indefinite period without paying Nabors.

Finding that Nabors did not openly and knowingly agree to waive all rights to back pay or to a timely resolution, the Appellate Division ruled that she was is entitled to back pay and remitted the matter to the Supreme Court for a hearing to determine ?the portion of the delay for which the Town bears responsibility? and to award her back pay accordingly.

* Although the right to back pay may be waived, the Appellate Division noted that when considering whether a voluntary waiver of rights has occurred, the focus is "upon the existence of a bona fide agreement by which the employee received a desired benefit in return for the waiver, the complete absence of duress, coercion or bad faith and the open and knowing nature of the waiver's execution."

** The Appellate Division affirmed the Town's determination, holding that finding Nabors guilty of misconduct and incompetence was supported by substantial evidence at the hearing. In addition, the court sustained the penalty imposed, dismissal, holding that in light of the charges and Nabors's employment duties, the penalty imposed was not so severe as to be "shocking to one's sense of fairness".

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_03089.htm

Full post as published by New York Public Personnel Law on April 19, 2010 (boomark / email).