Trooper Loses Argument That Discharge Barred By Statute Of Limitations

Timothy McKinney was employed as a trooper by the New York State Police. The State filed 18 disciplinary charges against McKinney. Three of the charges were eventually sustained, and the State terminated McKinney.

On appeal, McKinney argued that the State’s disciplinary action was barred by a New York statute requiring that disciplinary proceedings must commence within 18 months of the complained-of action. An appeals court rejected this argument, noting that there was an exception in the statute of limitations where the disciplinary charges “would, if proved in a court of appropriate jurisdiction, constitute a crime.” One of the allegations against McKinney was that he placed a female trooper’s hand on his pants, without her consent, so she could feel his erect penis. The Court found that, if proven, such conduct would constitute the crime of sexual abuse in the third degree, and that the disciplinary charge fell within the exception to the statute of limitations.

McKinney also contended that no substantial evidence supported the State’s termination decision. The Court was phenomenally unimpressed with this argument, and recited the following facts:

“The evidence established that while McKinney was alone in a State Police garage with a female trooper, he grabbed her hand and placed it on his erect penis through his clothing. She testified that she did not voluntarily do this, was shocked by the actions and quickly left.

“The evidence also established that McKinney engaged a female sergeant in a conversation which amounted to sexual harassment in violation of State Police policy. During the conversation, petitioner asked the sergeant if she had ever had sex with a black man, implied that he had large genitals, asked her to go out with him or have a casual sexual relationship with him, accused her of being racist for not sleeping with him, and told her that she might as well sleep with him because he had already informed everyone at the station that he would have her. This evidence supported the sustained charges.”

McKinney v. Bennett, 2006 WL 1838947 (A.D. 2006).

This article appears in the August 2006 issue