Taylor v. Cass

122 A.D.2d 885, 505 N.Y.S.2d 929, 1986 N.Y. App. Div. LEXIS 59370

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 15, 1986
• Status: Published

Opinions

— In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of the Suffolk County Department of Public Works, dated March 30, 1984, which terminated the petitioner’s employment as a senior sewage treatment plant operator, the appeal is from a judgment of the Supreme Court, Suffolk County (Brown, J.), dated February 28, 1985, which, after a hearing, annulled the determination and reinstated the petitioner to his former position of employment with full retroactive pay and contractual benefits from the date of termination.

Judgment affirmed, without costs or disbursements.

The petitioner, prior to his termination, was employed by the County of Suffolk as a senior sewage treatment plant operator at its Bergen Point sewage treatment plant. In 1983, the petitioner was brought up on disciplinary charges pursuant to Civil Service Law § 75. That disciplinary proceeding was eventually settled by a stipulation wherein the petitioner agreed to be placed on probation for a period of six months and to be terminated "without another hearing” if, during the probationary period, his job performance, in the opinion of his supervisor, was "adversely affected” by his "consumption of alcohol”. The petitioner was placed on a six-month disciplinary probationary period effective March 2, 1984.

The petitioner was subsequently served with a notice of infraction on March 20, 1984. The notice charged the petitioner with "failing to give a fair day’s work” and "sleeping during [the] scheduled working hours” on that date. By letter dated March 30, 1984, the petitioner was terminated from his employment without being afforded a hearing. The letter stated, inter alia: "You are fully aware of the reasons for this action”.

The petitioner then commenced the instant CPLR article 78 proceeding alleging, inter alia, that the charges against him had nothing to do with the consumption of alcohol and he therefore could not be dismissed without a disciplinary hearing pursuant to Civil Service Law § 75. After a hearing, Special Term made a finding of fact that the petitioner was not intoxicated on March 20, 1984. Accordingly, Special Term held as follows:

"[I]t is clear that there was no rational basis for the Commissioner’s determination to dismiss the petitioner in the manner that he did. The prior stipulation agreed to by the petitioner specifically provided that he could be dismissed without a hearing only if the petitioner’s performance was adversely affected by alcohol. Given the narrow confines of that stipulation, it was arbitrary and capricious for the Commissioner to dismiss the petitioner without a hearing based on charges that the petitioner failed to give a fair day’s work and slept during scheduled working hours (CPLR § 7803 subd 3).

"Accordingly, the petitioner is entitled to a judgment reinstating him to position of Senior Sewage Treatment Plant Operator with full retroactive pay and contractual benefits from March 30, 1984.”

We agree with the determination of Special Term. The petitioner’s co-worker, who reported the petitioner to his supervisors, testified at the hearing that he did not inform the supervisors, that he believed that the petitioner had been drinking. Indeed, the notice of infraction served on the petitioner failed to indicate that the petitioner was being charged with intoxication on the job, even though the preprinted form which was used by the county listed, among 25 types of infractions, the charge of "[ijmpaired on the job by intoxicants and/or drugs”. Moreover, the letter of termination sent to the petitioner also failed to state that intoxication was the reason for his dismissal. Finally, the civil engineer in charge of the Bergen Point plant testified on cross-examination that the petitioner was terminated solely for the reasons set forth in the notice of infraction.

Under the circumstances, the petitioner should not have been dismissed without a hearing, and the judgment appealed, from is therefore affirmed. Lazer, J. P., Mangano and Brown, JJ., concur.