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March 09, 2011

Employee terminated for falsifying attendance records and other misconduct

Employee terminated for falsifying attendance records and other misconduct
Dinnocenzo v Lackawanna, 270 AD2d 840

In Dinnocenzo the Appellate Division, Fourth Department, sustained the termination of an employee found guilty of falsifying his time records and other offenses.

James Dinnocenzo was charged, and found guilty, of disciplinary charges alleging misconduct and insubordination. Among the specifications:

1. Unauthorized absence from work;

2. Failure to obey his superior’s orders to report his absences; and

3. Submitting time sheets falsely indicating the hours that he was present at work.

Finding that there was substantial evidence in the record to support the findings of guilt, the court said that in light of all the circumstances, the penalty of dismissal was not so disproportionate to the misconduct as to be `shocking to one’s sense of fairness’ -- the Pell doctrine [Pell v Board of Education, 34 NY2d 222].

As to Dinnocenzo’s testimony concerning the reason for his absences and minimizing the length of those absences, this, said the court, raised an issue of credibility for the Hearing Officer to resolve. The Hearing Officer apparently was not persuaded by Dinnocenzo’s efforts to explain his actions.
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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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