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In re Application of McShane

Supreme Court, New York County

January 7, 2014

In the Matter of the Application of Patrick McShane, Petitioner, For a Judgment Confirming an Arbitration Award Under Article 75 of the Civil Practice Law and Rules, and for a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules,
v.
State of New York, NEW YORK STATE DEPARTMENT OF TRANSPORTATION, and JOAN McDONALD, as Commissioner of the New York State Department of Transportation, Respondents.

For petitioner Lichten & Bright, P.C., Stuart Lichten, Esq.

For respondents Eric T. Schneiderman, Attorney General Of Counsel: Elyce N. Matthews, Assistant Attorney General.

DECISION, ORDER AND JUDGMENT

Michael D. Stallman, J.

This combined Article 78 and Article 75 proceeding concerns acts ostensibly taken under Civil Service Law § 72 for placement of petitioner, a tenured civil service worker, on involuntary leave for medical disability and a parallel grievance procedure under the collective bargaining agreement (COBA) between the State of New York and the Public Employees Federation, petitioner's union, to terminate petitioner's employment.

Petitioner Patrick McShane is an employee of respondent New York State Department of Transportation (DOT). Respondents allege that on October 10, 2012, DOT acted to place petitioner on involuntary leave pursuant to Civil Service Law § 72, and then, on November 29, 2012, proposed to terminate petitioner's employment based on disciplinary charges pursuant to the COBA and suspended petitioner without pay. As required by the COBA, an arbitration hearing was held regarding petitioner's proposed termination. In an arbitration award dated April 15, 2013, the arbitrator sustained petitioner's grievance in part and directed that DOT reinstate petitioner. On April 18, 2013, respondents allegedly notified petitioner that he was still on leave pursuant to Civil Service Law § 72 and that he would not be reinstated until he did certain things. In this combined proceeding, petitioner seeks: (1) pursuant to CPLR Article 75 to confirm the arbitration award; and (2) pursuant to CPLR Article 78 to annul the determination placing him on involuntary leave. Petitioner seeks an order:

(1) directing respondents to reinstate petitioner to his former position and pay him back pay and benefits from April 15, 2013; and
(2) declaring that respondents' refusal to reinstate petitioner is arbitrary and capricious and violates Civil Service Law § 72.

Respondents move to vacate the arbitration award and argue that the petition should be dismissed on the grounds that it is time-barred, that petitioner did not exhaust his administrative remedies, and that DOT's decision to place petitioner on involuntary leave was not arbitrary and capricious. [1]

BACKGROUND

Petitioner has been employed by DOT for 24 years, most recently as a Civil Engineer I. The terms and conditions of petitioner's employment are governed by the COBA. On November 12, 2011, the Investigations Bureau allegedly received a complaint that petitioner "is arriving late every day; absent often; is performing non-work related activities....; is rude and intimidating, and poses a safety hazard with his messy cluttered cubicle." (LaMarco Aff. Ex A.) In response to these allegations, DOT conducted a review of petitioner's email account for the period of March 1, 2012 through August 24, 2012, and DOT allegedly found that 3, 000 of the 3, 490 emails on petitioner's computer were non-business related; that petitioner had accessed the internet for approximately 66 hours of personal internet use; and that petitioner accessed web-sites approximately 76 times where the subject dealt with explosives. (Id.) In addition, petitioner's co-workers, in interviews, allegedly revealed concerns for their safety with regard to petitioner's purported long-time continuous acts of intimidation and threats. (LaMarco Aff. Ex B.) One such purported consistent threat was that petitioner "would push certain co-workers [i]n front of the [s]ubway and then apologize." (Id. [internal quotations omitted]). One staff member allegedly indicated a fear that petitioner is capable of "coming into the workplace with a gun and shooting people." (Id.)

According to DOT, it pursued two courses of action: (1) interrogation of petitioner and preferring of charges against petitioner pursuant to Article 33 of the COBA and (2) placing petitioner on involuntary leave.

Allegations Related to the Article 75 Proceeding

On October 10, 2012, DOT sent petitioner a letter directing petitioner to report to headquarters "for an interrogation pursuant to Article 33 of the [COBA]." (LaMarco Aff. Ex C.) On October 15, 2012, petitioner allegedly reported for the interrogation. (Id.) On November 29, 2012, by statement of charges, DOT notified petitioner that DOT proposed to terminate petitioner's employment pursuant to Disciplinary Procedures in Article 33 of the COBA and suspended petitioner without pay effective that day. (Pet. Ex. D.)

In the statement of charges, DOT listed four charges against the petitioner which were allegedly violations of employment regulations and / or New York Penal Law: (1) excessive internet use for personal reasons between March 1, 2012 and August 24, 2012; (2) submission of false time records due to underlying facts in Charge 1; (3) failure to report and replace employee ID after it became inoperable on July 27, 2012; and (4) an altercation on December 1, 2011 with a fellow employee in which petitioner allegedly accosted the employee, used inappropriate language, and attempted to entice the employee into physical confrontation. (Id.)

On March 15, 2013, an arbitration hearing was held in New York County before Arbitrator Gayle A. Gavin. On April 15, 2013 Arbitrator Gavin issued her Opinion and Award, stating, "[t]he grievant is denied in part and sustained in part. The charges are proved. The penalty is modified to a time-served suspension. [DOT] is directed to reinstate the grievant forthwith." (Pet. Ex. E at 9.)

Allegations Related to the Article 78 Proceeding

On October 10, 2012, concurrently with the letter directing the COBA interrogation, DOT sent petitioner a separate letter notifying petitioner that he was being placed on leave with pay. The letter stated,

"This is to advise you that you are currently being placed on Administrative Leave with Pay effective beginning of business Wednesday October 10, 2012.

You will remain on such leave until otherwise advised by DOT Management. During the leave period, you are not to enter the grounds of the [DOT] or any of its sites without specific authorization from DOT Management. Should you enter without authorization, you will be subject to arrest as a trespasser and also subject to disciplinary action for insubordination.

In addition, you are directed to not have contact with other staff regardingany matter pertinent to your job."

(LaMarco Aff. Ex. F.)

On October 18, 2012, DOT sent petitioner a letter with the heading "Section 72 Employee Notification" notifying petitioner that DOT had requested petitioner be examined by two health ...


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