Tuesday, April 25, 2017

Employee Who Lost His Job Because Of Prior Criminal Conviction Entitled To His Job Back

Matter of Dudley v. City of New York, ___Misc. 3d ____, 2017 NY Slip Op 27129(N.Y. Co.2017).
This is an interesting decision where a substance abuse counselor who worked at Rikers Island successfully for 8 years was entitled to get his job back after he was terminated because of a prior criminal conviction. As the court explained:

It is undisputed that respondents' initial decision to revoke petitioner's license, or security clearance, was based solely on the results of the results of a criminal background check and a prior conviction, without any determination as to whether there is a direct relationship between his misdemeanor conviction and his license, or security clearance, or that the continuation of the license would pose an unreasonable risk to the safety or welfare of others. It is also undisputed that DOC's  letter or memorandum detailing the factors to be considered on an appeal of a revocation does not reflect or reference all of the factors set forth in Correction Law § 752. As a consideration of all of the factors is required, and absent any evidence that respondents so complied, the revocation of petitioner's license, or security clearance, and denial of his appeal are arbitrary and capricious as a matter of law. (Matter of Acosta v New York City Dept. of Educ., 16 NY3d 309 [2011] [failure to consider each factor constitutes failure to comply with Correction Law]). In Acosta, the Court of Appeals found that the respondent had acted arbitrarily and capriciously in denying the petitioner's application for a security clearance, as it had failed to consider each factor. (Id. at 320).
Having violated article 23-A, respondents also violated the New York State and City Human Rights Laws. (Cf. Matter of Belgrave, 137 AD3d at 442 [as respondent did not violate Correction Law, provisions of New York State and City Human Rights Laws inapplicable]).
Moreover, assuming that respondents considered the factors listed in their appeal letter, all of them weigh in petitioner's favor as his allegedly disqualifying conviction was for misdemeanor assault more than 25 years ago, his last criminal conviction was approximately 18 years ago, his eight-year tenure at Rikers Island is without blemish, and his appeal is supported by a recommendation from his supervisor. Also relevant is his relatively advanced age, and his background, which particularly suits him to counseling drug-addicted prisoners.

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