State's Highest Court Distinguishes "Critical Evaluation" From "Reprimand" For Purposes of Public Employee Due Process Rights
December 26, 2012
Although public employers may be aware of their obligation to provide certain types of employees with an opportunity for a hearing prior to imposing discipline (such as a written reprimand), the line between a non-disciplinary counseling memorandum and a disciplinary reprimand is not always clear. The New York State Court of Appeals' recent decision in Matter of Michael D’Angelo v Nicholas Scoppetta serves as an important reminder that the term “reprimand” may be interpreted more broadly than public employers anticipate.
In the D'Angelo case, the Court of Appeals held that a letter informing a firefighter that he had violated the Fire Department’s Code of Conduct and Equal Employment Opportunity (“EEO”) Policy, following a detailed and lengthy investigation, constituted a “reprimand” that could not be placed in his file without affording him the opportunity for a hearing and other due process rights. The firefighter was accused of yelling a racial epithet at an emergency medical technician, also employed by the Fire Department, while responding to a motor vehicle accident. The EMT filed a police report, notified his supervisor of the incident, and complained to the department’s EEO office. After a two-year internal investigation, a finding was made that the firefighter had used the racial slur as alleged. A final report summarizing the findings and recommendations resulting from the investigation was issued, and the report was approved by the Commissioner of the Fire Department.
The Assistant Commissioner of the Fire Department then sent the firefighter a letter regarding the determination that he had “exercised unprofessional conduct and made an offensive racial statement.” The letter instructed him to read and sign an attached Advisory Memorandum and informed him that he would receive additional EEO training in the future. The Assistant Commissioner characterized the letter as a “formal Notice of Disposition of the filed Complaint” which would be placed in the firefighter's permanent file.
The firefighter objected to the placement of the letter in his file without the opportunity for a hearing and commenced an Article 78 proceeding to challenge the Fire Department's placement of the letter in his file. The trial court annulled the determination and expunged the letter from the firefighter's file, holding that the letter was a disciplinary reprimand and, therefore, the firefighter was entitled to a formal hearing and other due process safeguards. The decision was subsequently affirmed by both the Appellate Division and the Court of Appeals.
In reaching its decision, the Court of Appeals focused on several key facts to distinguish the letter issued to the firefighter from counseling letters issued to teachers which were found to be non-disciplinary “critical evaluations” in a 1981 Court of Appeals decision. Specifically, the Court noted that the letters to the teachers, although “sharply critical,” were not intended to punish the teachers, but rather were intended to identify relatively minor breaches of school policy and to encourage future compliance. In contrast, the Court held that the determination that the firefighter had used a racial epithet could not be considered a “minor breach” of the EEO policy. In fact, the Fire Department conceded during oral argument that it was serious misconduct which could negatively affect the firefighter’s eligibility for future promotion. Further, the requirement that the firefighter participate in additional EEO training was determined by the Court to be a form of discipline.
Additionally, the letters to the teachers in the 1981 case were sent by the individual school administrator, who was the teachers’ direct supervisor. In contrast, the letter in the D’Angelo case was sent to the firefighter following a two-year formal investigation conducted by the Fire Department’s EEO office with approval from both the Fire Department’s Assistant Commissioner and Commissioner.
In light of these specific facts, the Court of Appeals concluded that the letter was a formal disciplinary reprimand, and that the firefighter was entitled to a hearing to protect his due process rights prior to placement of the letter in his permanent file.
The D’Angelo decision serves as a good reminder to public employers to consider the manner in which employee performance and conduct problems are addressed, and to be prepared to follow applicable due process requirements when appropriate.
