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Inability to demonstrate the possession of a required license permits the summary termination of an incumbent

Inability to demonstrate the possession of a required license permits the summary termination of an incumbent
Matter of Cravatta v New York State Dept. of Transp., 23 Misc 3d 1137(A)

In this case the court considered the application of the so-called "Felix" procedure [Felix v New York City Dep't of Citywide Administrative Services, 3 NY3d 498] in a situation where the incumbent loses or fails to renew a license required to perform the duties of the position or otherwise fails to satisfy a job qualification.

Felix involved the termination of an employee without a ?pre-removal hearing? in the nature of disciplinary action when the individual cannot satisfy a qualification for his or her being continued in the office or position. In Felix the appointing authority removed the individual because the employee violated the city's mandatory residency requirement.

Although Felix was given an opportunity to present proof of his being a resident of New York City, he was neither served with disciplinary charges pursuant to Civil Service Law §75 nor a contract disciplinary procedure. The Court of Appeals held the "notice of and opportunity to contest the charge" procedure used by the City of New York met due process requirements as Felix was ineligible for continued municipal employment pursuant to an Administrative Code Section as distinguished from an act of misconduct which would require a pre-removal hearing.

Michael J. Cravatta was employed the NYS Department of Transportation as a Highway Maintenance Worker 2 (HMW 2). Incumbents of HMW 2 positions are required to possess a valid New York State Class B or higher Commercial Driver's License.

On May 13, 2007 Cravatta was arrested and charged with misdemeanor offenses of DWI, aggravated DWI, and traffic infractions. On June 11, 2007 his CDL was suspended. Cravatta continued to work for the Department following his arrest date until September 7, 2007 when he was injured at work. As a result of this occupational injury, Cravatta was absent from work on Workers? Compensation Leave [See §71 of the Civil Service Law] until July 2008.

Although DOT asked Cravatta to produce proof that he possessed a valid CDL as early as September 14, 2007 and told him that he was unable to do so he would be terminated, the Department took no further action while Cravatta was out on Worker's Compensation leave.

When he returned to work on July 21, 2008, Cravatta was placed on "administrative leave with pay" and was directed to produce documentation demonstrating that he did, in fact, have a valid Class B or higher Commercial Driver's License at a meeting scheduled for August 4, 2008.

Although Cravatta appeared at the meeting, he did not produce the requested documentation and he was terminated from employment as of August 16, 2008.

Cravatta was convicted of the charges underlying the suspension of his CDL on September 22, 2008.

Contending that DOT was arbitrary and capricious and violated his right to due process in that he was not given a pre-termination hearing as required by the relevant Article in the collective bargaining agreement, Cravatta filed an Article 78 petition seeking a court order directing that the Department reinstate him to his former position.

Part of Cravatta?s claim regarding the denial of due process was that he was terminated ?before a conviction on the criminal charges which did not take place until September 22, 2008.?

Judge Feroleto said that Due process does not always require a hearing for loss of a job or license. Summary terminations without a hearing have been upheld under different circumstances but that in each such case a statute that had been violated or a statute mandated the possession of the license or termination was mandated by law upon the conviction of a crime pursuant to Public Officers Law §30 [1] [e].*

In this instance Judge Feroleto, noting that his summary dismissal was effected prior to Cravatta's conviction, found that ?there is nothing in the record to show it was the result of a statutory violation such as a refusal to submit to a chemical test. Where there is no prima facie evidence of a statutory violation, an administrative hearing was required so the extent and nature of the employee's misconduct could be resolved before he was disciplined (see, Civil Service Law § 75). Under the facts of this case -- where the termination was sought prior to the resolution of the criminal charges -- "a summary proceeding is not enough to comport with due process as there is no procedure in place to apply for reinstatement following the conclusion of the criminal matter; even were it to end favorably for [Cravatta].?

Accordingly, said the court, ?Cravatta was deprived of due process of law when he was terminated without a hearing and prior to his conviction on the criminal charges.?**

As at the time of his dismissal, said the court, there was no conviction that could otherwise be presented as prima facie proof to establish a violation of a statute, Judge Feroleto ruled that Cravatta was improperly terminated on August 16, 2008. However, as Cravatta was convicted of the charge of driving while intoxicated on September 22, 2008 and that, as a result, his New York State driver's license was revoked, once the conviction was entered due process no longer required invoking the hearing procedures set forth in §75 of the Civil Service Law or under contract grievance procedure of the relevant collective bargaining agreement as a condition precedent to terminating Cravatta from his position.

The "classification standard" for HMW 2 states that the incumbent "must hold a New York State Class B CDL or a comparable higher level license and endorsed permitting one-person Plow certification." (emphasis supplied by the court). This mandatory job requirement, said the court, was not met as established by the prima facie evidence of the conviction with notice of license suspension.

The court then directed that Cravatta be reinstated to the position of Highway Maintenance Worker 2 for the period of August 16, 2008 until September 22, 2008 "as if he had no break in service" but otherwise denied his petition. Accordingly, although Cravatta was awarded some back pay, DOT?s action terminating him was sustained, such termination to be effective September 23, 2008.

* The court?s rationale: Due process, in the absence of a conviction or proven statutory violation such as a residency requirement, requires a hearing so any factors that the employee may have raised to controvert his guilt on the charges could be presented in his defense. Since "a criminal defendant has no right to stay a disciplinary proceeding pending the outcome of a related criminal trial," the Civil Service Law § 75 hearing or, as in this case, the hearing required by the collective bargaining agreement, could be held prior to the conviction so that an inordinate delay in a criminal case will not affect the safety of the public work force."

** Apparently the court did not view the initial suspension of Cravatta?s CDL on or about June 11, 2007 as controlling.

PELP COMMENTS: Typically courts view the loss of the required credential, be it a license to practice law or medicine, teach, drive a motor vehicle or pilot an aircraft, as barring the individual from providing such service, or performing such tasks, by operation of law. Courts have viewed employees who lack licenses as being ?unqualified,? in contrast to being ?incompetent,? to perform the duties of the position.

In contrast, see Matter of Martin ex rel Lekkas, 86 AD2d 712. In Lakkas the court held that an individual?s failure to possess a valid license otherwise required for the position is not fatal to the employee?s continuation in service if he or she is not performing duties set out in the job description for the position for which the license is otherwise required.

Full post as published by New York Public Personnel Law on March 17, 2010 (boomark / email).