Disciplinary arbitrator may consider hearsay evidence and unsworn testimony in making his or her determination
The Appellate Division held that an arbitration award that resulted in the termination of the employee was made in accordance with due process; was supported by adequate evidence; and was rational and not arbitrary and capricious.
Citing Gray v Adduci, 73 NY2d 741, the court noted that "[h]earsay evidence can be the basis of an administrative determination."
In addition, the Appellate Division said that unsworn testimony by witnesses to the incidents that led to the filing of disciplinary charges and the employee’s own testimony acknowledged the incidents, while offering differing exculpatory accounts thereof, supported the hearing officer’s determination.
As to the penalty imposed, termination, the court said that it did not find dismissal “so disproportionate to the multiple specifications upheld [the employee] with verbal and physical abuse of students and faculty members as to shock our sense of fairness, even considering the mitigating factors of [the employee’s] recurrent health issues.
The decision is posted on the Internet at: