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Second Department Reiterates that Public Employers Must Explain Their Personnel Decisions

Talking to HR can sometimes feel like talking to a brick wall. You thought you made a good argument and explained your side of the story. Maybe you were sure you were right; maybe you just hoped you were right. But you expected that, if HR did deny your request, they would at least consider your explanation and justify why they're rejecting it. Instead, you got a rubber stamp – a "DENIED" without so much as an acknowledgment of what you said.

That is incredibly frustrating in any workplace (really, in any interaction). In a New York State government workplace, it might be illegal.

Take Van Dunk v. Orange-Ulster BOCES, 2023 NY Slip Op 04671 (2d Dep't Sep. 20, 2023). Ms. Van Dunk, a paraprofessional educator, was working in an elementary special education classroom, playing Uno with a student, when another student asked to play. When she told him he had to wait until the next game, the student lost his temper and became violent, attacking Ms. Van Dunk and injuring her knee and ankle. Although Ms. Van Dunk was able to return to work shortly thereafter, her pain worsened with time and she had to take disability leave nearly a year later. Her doctor found, and the Workers' Compensation Board agreed, that her inability to work was directly caused by the attack.

A year passed. If you litigate public employment disability issues, you'll instantly think of the "one-year rule": A statute, Civil Service Law § 71, provides that an employee who is out on disability for more than a year can ordinarily be removed from payroll and replaced. (Sidebar: while the employer cannot negotiate away its right to terminate those employees, unions do have a right to negotiate pretermination procedures that the employer must then follow. City of Long Beach v. PERB, 39 N.Y.3d 17, 25 (2022). The firm where I was employed at the time, Blitman & King LLP, filed an amicus brief in Long Beach on behalf of the New York State Professional Firefighters Association.) Since Ms. Van Dunk was out for over a year, BOCES wrote that it planned to terminate her.

But Ms. Van Dunk read the statute and realized that her situation was unusual. Though CSL § 71 normally sets up a one-year rule, there is an exception: if the disability is the result of an "assault sustained in the course of... employment," you get two years, not one. Ms. Van Dunk wrote back to BOCES to formally dispute her termination, stating unequivocally that "the injuries that I have sustained are the result of a physical assault against me by a BOCES student in the classroom in which I worked... New York Civil Service Law Section 71 states that employees whose disabling injuries were sustained as the result of an assault sustained in the course of performing his or her employment duties, said employee is entitled to a leave of absence for at least two years." Sounds like a good argument, right?

Remember that brick wall? Ms. Van Dunk received a form letter that must have been infuriating: "This letter will serve as official notification that we have received your dispute of our findings to terminate your position based on NewYork Civil Service Law Section 71. Your dispute of this matter has been reviewed and is being denied. Your position has been terminated effective [three days ago]. All benefits will end as of that date." No acknowledgment of the assault, no explanation for the denial.

Ms. Van Dunk lawyered up. She filed an Article 78 petition, which is a vehicle for challenging government action that is arbitrary, capricious, or contrary to law. Shockingly, in its response, BOCES alleged for the first time that it had a reason for rejecting Ms. Van Dunk's argument: in its view, the attack by the student was not an "assault" because the student, who was developmentally disabled, could not have formed the required intent to injure Ms. Van Dunk. In BOCES' view, this was an accident, not an assault. BOCES buttressed its argument by citing a provision of the collective bargaining agreement, which defined "assault" in accordance with the Penal Law.

Now, there are several issues with BOCES' explanation for its action – not least that the section of the collective bargaining agreement in question doesn't mention leave under CSL § 71. But it's at least an explanation, which Ms. Van Dunk had never received before going to court. You can imagine how infuriating that must have been. Ms. Van Dunk objected to this belated explanation, but just in case, she also argued that she had been assaulted.

The trial court agreed with her on both counts. In a scathing decision, it wrote:

The letter acknowledges receipt of Petitioner's dispute of notice of termination and states:

"Your dispute of this matter has been reviewed and is being denied."

This is the decision appealed from. There is no record of how, when, where this determination was made, who was involved in making the decision, what information was considered, or what was the basis of this decision.

In opposition to the petition, Respondent argues that, "Your dispute of this matter has been reviewed and is being denied" is actually a determination that the student who assaulted the Petitioner did not have the criminal intent required by Penal Law § 120.10. Of course, the determination does not mention the intent of the student and there is no record to demonstrate a rational basis for such a determination.

The disposition of a proceeding pursuant to CPLR article 78 is limited to a review of the facts and record adduced before the agency when the administrative determination was rendered and it is improper for the court to consider proof dehors the record. [Citation.] There is no evidence of any facts or record before [BOCES] when [it] made the determination that the Petitioner's dispute was denied. This Court cannot give deference to a determination not supported by any record and the petition must be granted.

For good measure – just in case – the trial court also determined that the student did have intent to assault Ms. Van Dunk. When BOCES appealed, the Second Department saw no need to go there. The decision was short and sweet:

"Administrative action is arbitrary when it is without a sound basis in reason and is taken without regard to the facts." [Citation.] Here, BOCES's determination to terminate the petitioner's employment was conclusory and lacked a factual basis.

The Second Department's decision broke no new ground. But it is an important reminder that employees are entitled to some explanation for the decisions that profoundly affect their lives. If BOCES had told Ms. Van Dunk it didn't think the student had technically "assaulted" her, it's anybody's guess how this case would have come out – I don't think that's right, but perhaps reasonable people could disagree, and the litigation would certainly have been a lot harder. Because Ms. Van Dunk hadn't been given any explanation, she was entitled to reinstatement – with back pay, seniority, and reimbursement for out-of-pocket medical expenses.

Has a public employer taken action against you without trying to explain itself? Contact Burdick Law PLLC for a case review.


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