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May 24, 2012

Employee terminated for cause entitled to back pay for the period she was suspended without pay in excess of 30 days


Employee terminated for cause entitled to back pay for the period she was suspended without pay in excess of 30 days

The Westchester County Health Care Corporation adopted the recommendation of a hearing officer, made after a hearing pursuant to Civil Service Law §75, finding the employee guilty of certain charges of misconduct and insubordination. It then terminated the individual from its employ.

Te Appellate Division sustained Supreme Court’s dismissal of an Article 78 petition challenging the disciplinary termination of an employee with respect to the merits of the appeal. The court held that contrary to the individual’s contention, Westchester’s determination that the individual was guilty of certain charges of misconduct and insubordination was supported by substantial evidence in the record.

The court also rejected the individual’s claim that she was denied a fair hearing due to the alleged bias of the hearing officer as being without merit, finding that there was no evidence in the record to support her contention that the hearing officer was biased.

As to the penalty imposed, dismissal, the court ruled that termination was “not so disproportionate to the offenses committed by the petitioner as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law.”

Although the Appellate Division sustained Supreme Court’s dismissal of an Article 78 petition challenging the disciplinary action, the court remanded the matter to the lower court for its determination regarding any back pay due the dismissed individual.

Here, said the court, the individual “correctly contends that she is entitled to back pay for the period she was suspended without pay in excess of 30 days, excluding delay, if any, occasioned by her, and less unemployment insurance benefits received for that period, if any,” citing Civil Service Law §75[3].

The decision is posted on the Internet at:

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