By Jordan Jones
In Stresing v. Agostinoni, a Federal court held that a New York corrections officer (officer) waived any right to a pre-termination hearing when he signed a last chance agreement with his employer.
The officer was arrested for harassment in 2006 when his wife alleged that he had punched her in the face twice. The officer was then issued a letter from his employer advising him that he “maintain the strictest standards of conduct both on and off duty,” and that “any similar conduct on your part will lead to serious administrative action that may lead to your dismissal from service.” In 2009, the officer was arrested for assault and menacing after his wife reported that he had hit her. Subsequently, the officer signed a last chance agreement which imposed a 12-month disciplinary evaluation period for “misconduct same or similar to that referenced in the Notice of Discipline . . . .” Specifically, the last chance agreement noted that:
The signatures of the employee and the employee’s representative herein signify the knowing waiver of any further appeal to the grievance and arbitration procedures . . . of the collective bargaining agreement concerning any Departmental determination or imposition of penalty . . . .
The officer was arrested again in 2009 for violating a protective order requested by his wife. The officer was then given a notice of termination from his employer without a pre-termination hearing.
The officer alleged that “he has a constitutionally protected property interest in his employment” and that “his Fourteenth Amendment right to due process was violated when he was terminated without a hearing . . . .”
The employer contended that the officer “waived any right he may have had to a [pre-termination] . . . hearing” by signing the last chance agreement and moved for summary judgment.
The court stated that:
A public employee must satisfy a two-step inquiry to establish he . . . was terminated without due process . . . . First, the plaintiff must show he or she had a property right in continued employment protected by the United States Constitution. If such a right exists, the court must determine what process was due, and whether the employee received the required constitutional minimum in his or her particular case.
The court noted that “[i]n the employment context, a property interest typically is established by showing that under a . . . collective bargaining agreement, the employee cannot be terminated without a hearing.” The court held that the officer “did not have a constitutionally-protected interest in his employment [by signing the last chance agreement] . . . that would give rise to a Fourteenth Amendment claim . . . .”
Editor’s Note (Jim Cline): This court decision reflects an unconventional view of “last chance agreements.” It has been fairly well recognized that an employee who signs such an agreement does not give up the right to challenge whether a violation of one of the agreement’s provisions in fact occurred. The terms of this agreement waived the employee’s right to appeal whether a sustained violation would warrant discharge, but that waiver did not appear to extinguish the employee’s ability to contest the existence of a violation. As a result, a due process violation should have been found to have occurred when he was deprived of a hearing to contest such a finding. If there is an appeal of this decision, it would seem to have a strong likelihood of success.
