The New York State Court of Appeals recently issued a decision holding that a written determination that a firefighter violated his fire department’s Code of Conduct and Equal Employment Opportunity (EEO) Policy, made after a lengthy internal investigation, may not be placed in the firefighter’s permanent employment file. In this ruling that impacts both public and private employers, the court held that the firefighter’s due process rights were violated, as the firefighter had no opportunity to examine any of the witnesses interviewed or to present any witnesses on his own behalf.
In the Matter of Michael D’Angelo v Nicholas Scopetta, et al., decided October 18, 2012, the petitioner firefighter was accused of assaulting and yelling racial epithets at an emergency medical technician, also employed by the fire department, who separately responded to a motor vehicle accident. The EMT filed a police report and notified his superior of the incident, causing a two-year-long internal investigation to be launched. During the investigation, the firefighter, the EMT, and other personnel at the scene were interviewed by the department’s EEO office (but not by or on behalf of the firefighter), and a finding was made that the firefighter made an inappropriate racial slur. The final report went up the chain of command from the attorney who prepared the report summarizing the findings, to the Assistant Commissioner, and then to the department’s Commissioner, who approved it.
The firefighter was then sent a letter informing him of the determination that he had “exercised unprofessional conduct and made an offensive racial statement.” The letter instructed the firefighter to read and sign an attached Advisory Memorandum and that he would receive additional EEO training in the future. The letter was characterized as a “formal Notice of Disposition of the filed Complaint” and was placed in the firefighter’s permanent EEO file.
The firefighter commenced an Article 78 proceeding requesting that the court annul the determination that petitioner made an offensive racial remark, and requested that the court direct the fire department to provide the firefighter with a hearing.
The trial court annulled the determination, holding that the letter was a disciplinary reprimand and not a critical evaluation and, therefore, the firefighter was entitled to a formal hearing and other due process safeguards. It went on to note that it could not order a hearing as the applicable statute of limitations for conducting such a hearing had expired. The court’s decision was affirmed by the Appellate Division, and that decision was affirmed by the New York State Court of Appeals.
The Court of Appeals noted that section 15-113 of the Administrative Code, which relates to discipline and removal procedures for the department provided that the Commissioner has the power “on conviction of a member” to punish the offending party by reprimand or removal from the force. The term “conviction” infers a full trial or, at very least, a hearing with full due process rights. The fire department argued that although a formal hearing was required when a firefighter is subject to reprimand, in this case the letter was not a reprimand but was merely a critical evaluation which would not require a formal hearing. The Court of Appeals disagreed, differentiating with letters from a superior which were critical about items such as a teacher failing to maintain an orderly classroom or disrupting another teacher’s class; or a warning letter advising that a teacher’s regular absences from his duties violated school policies. The Court of Appeals noted that these letters to the teachers, although sharply critical, were not intended to punish the teachers, but rather were sent to identify relatively minor breaches of school policy and to encourage future compliance. Additionally, the letters to the teachers were sent by a school administrator, and were not issued after an investigation was conducted by the board of education.
In D’Angelo, on the other hand, the letter was sent to the firefighter after a two-year formal investigation was conducted by the fire department’s EEO office, and included interviewing the firefighter, the EMT, and other witnesses. The report then went up the chain of command to the Department’s Commissioner, who approved the determination. Further, the determination that the firefighter used a racial epithet was not a “minor breach” of the EEO policy. The fire department conceded at oral argument that this was serious misconduct which could negatively affect the firefighter’s eligibility for future promotion. Additionally, the requirement that the firefighter participate in additional EEO training is a form of discipline.
Weighing all of these factors, the court held that the letter constituted a reprimand of the firefighter and, therefore, he was entitled to a formal hearing to protect his due process rights. The letter was expunged from the firefighter’s permanent EEO file.
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