State Snooping Produces a Second Lawsuit

     ALBANY, N.Y. (CN) – A New York Department of Labor worker, who was fired and got his job back because his bosses had snooped on him, wants his job back after being fired a second time.
     In terminating him again, Michael A. Cunningham claims, the department failed to carry out a review of his first firing as ordered by New York’s highest court, which found that GPS tracking devices placed on his car to gather evidence of misconduct were “excessively intrusive.”
     Cunningham, who started at the agency in 1980, most recently served as director of the Office of Staff and Organizational Development at the department’s headquarters in Albany. His complaint in Albany County Supreme Court describes him as “the highest ranking African-American permanent civil service competitive employee” in the agency since 1995.
     Cunningham was fired in 2010 after what he described as several years of “harassment, retaliation, discrimination and punishment by certain high-level supervisors in the Department of Labor.”
     He appealed the firing on constitutional grounds, and the Court of Appeals last year ordered a re-evaluation of the termination. It found that four of the 11 charges against him should be dismissed because they relied on GPS surveillance.
     The court said the tracking was not unwarranted because the state suspected Cunningham of falsifying time records to conceal unauthorized absences. But the justices said the surveillance was unreasonable because it included periods when Cunningham was not scheduled to work: weekends, evenings, several days of vacation.
     “Where an employer conducts a GPS search without making a reasonable effort to avoid tracking an employee outside of business hours, the search as a whole must be considered unreasonable,” the court ruled .
     In his new complaint, Cunningham claims the department failed to abide by the court’s recommended re-evaluation and simply rubberstamped the previous findings when it fired him this year.
     “[B]y re-imposing the penalty of termination, the DOL’s decision was a violation of lawful procedure, was arbitrary and capricious, was an abuse of discretion, was made in violation of the U.S. and N.Y. Constitutions, and was not supported by substantial evidence,” Cunningham says in the complaint.
     In letters to the agency after the Court of Appeals decision, Cunningham says he expressed concern that the previous disciplinary process was “permeated and tainted” by the GPS evidence and offered to “present this position in detail directly to the DOL.”
     But the agency “refused to engage in a fair process of re-determination of the disciplinary penalty,” he claims.
     “The DOL’s January 2014 [termination] decision, therefore, failed to meet the procedural safeguards that were necessary in order to properly implement the mandate of the Court of Appeals,” he says.
     Cunningham calls the reimposed penalty “disproportionate to the offenses” and “shocking to one’s sense of fairness,” and says it should be vacated.
     He also asks that the department be barred from making this year’s firing retroactive to the 2010 termination – a period for which Cunningham says he is due back pay – and that he be permitted to return to his former post at the agency.
     He is represented by Mark Mishler of Albany.
     A spokesman for the department could not be reached for comment by email Thursday evening.

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