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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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