Repeated acts of insubordination, excessive absences and untimely completion of assigned tasks warrants termination of the employee

Repeated acts of insubordination, excessive absences and untimely completion of assigned tasks warrants termination of the employee
Matter of Gibbons v New York State Unified Ct. Sys., Off. of Ct. Admin., 2010 NY Slip Op 08571, Decided on November 16, 2010, Appellate Division, Second Department

Grace Gibbons, a court reporter in the District Court, Nassau County, for 22 years, was served with disciplinary charges.

In the course of the disciplinary hearing the Office of Court Administration presented evidence that Gibbons had been “insubordinate to her supervisors and to a District Court Judge, that she failed to produce transcripts in a timely manner, and that she was excessively absent without providing sufficient notice.”

The disciplinary hearing officer, Colleen M. Fondulis, found Gibbons guilty of a number of the charges filed against her and recommended that she be dismissed from her position. The Deputy Chief Administrative Judge for Courts Outside of New York City, Jan H. Plumadore, concurred, finding Gibbons guilty of the misconduct and incompetence alleged in many of the 20 specifications. Judge Plumadore adopted the hearing officer's recommendation as to the penalty to be imposed and terminated Gibbons from her position.

Gibbons filed a petition pursuant to CPLR Article 78 appealing Judge Plumadore’s determination.

The Appellate Division said that test of the lawfullness of an administrative determination made after a hearing required by law is limited to whether that determination is supported by substantial evidence.* In this instance, said the court, it found that that the administrative determination was supported by substantial evidence.

Further, the court said that "[t]he courts may not weigh the evidence or reject the choice made by [an administrative agency] where the evidence is conflicting and room for choice exists," citing Matter of Berenhaus v Ward, 70 NY2d 436.

In considering the penalty imposed on Gibbons, termination, the Appellate Division noted that a penalty imposed following an administrative disciplinary hearing based on a finding that the individual is guilty of one or more of the charges must be sustained unless it is "so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law,” the so-called “Pell Standard.”**

Considering Gibbons’ “repeated acts of insubordination, absences, and untimely completion of transcripts,” the Appellate Davison said that the penalty imposed, termination, did not shock its sense of fairness.

* Substantial evidence is defined as "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact"

** Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08571.htm
NYPPL