Friday, October 02, 2015

Finding an individual guilty of disciplinary charges and imposing a penalty must be supported by substantial evidence


Finding an individual guilty of disciplinary charges and imposing a penalty must be supported by substantial evidence
2015 NY Slip Op 06924, Appellate Division, Second Department

An employee was served with disciplinary charges pursuant to Civil Service Law §75  alleging excessive absence and abuse of the employee’s leave privileges by the employee’s utilization of sick and personal leave on days that fell immediately before or after weekends, holidays, vacations, or other pre-approved absences on leave.

The hearing officer who conducted a hearing on the charges recommended that all of the charges and specifications be dismissed, and that the employee's 30-day suspension be nullified with full back pay. The employer, however, rejected the findings and recommendation of the hearing officer and determined that the employee was guilty of one charge of misconduct and neglect of duty.* The penalty imposed: suspension without pay for 30 calendar days.

The employee was served with disciplinary charges alleging excessive absence, abuse of leave privileges “utilizing sick and/or personal leave on days that fell immediately before or after weekends, holidays, vacations, or other pre-approved leave.

The employee initiated a CPLR Article 78 proceeding against the employer contending that the employer’s determination was not supported by substantial evidence. The Appellate Division agreed.

The Appellate Division explained that a court’s review of a determination rendered by an administrative body following "a hearing at which evidence is taken pursuant to direction of law is limited to a consideration of whether that determination was supported by substantial evidence upon the whole record." Citing 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, the court said that substantial evidence, "consists of proof within the whole record of such quality and quantity as to generate conviction in and persuade a fair and detached fact finder that, from that proof as a premise, a conclusion or ultimate fact may be extracted reasonably—probatively and logically."

Noting that “the quantum of evidence that rises to the level of substantial' cannot be precisely defined, the court indicated that the inquiry is whether in the end “the finding is supported by the kind of evidence on which responsible persons are accustomed to rely in serious affairs."

The court decided that the employer’s determination that the employee had engaged in misconduct and neglect of duty by abusing her leave time privileges, and was excessively absent from work was not supported by substantial evidence.

Accordingly, the Appellate Division granted the employee’s grant the petition, annulled the employer’s determination, vacate the penalty imposed on the employee, and remit the matter to the employer to determine the amount of back pay and benefits owed to the employee.

* Presumably the allegation of “neglect of duty” was recited in the charges and, or, specifications served on the employee as an individual cannot be found guilty of allegations not set out in the charges or the specifications. Case law has long held that an employee may not be found guilty of acts of alleged misconduct or incompetence that have not been charged [see, for example, Shuster v Humphrey, 156 NY 231].

The decision is posted on the Internet at:

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The Discipline Book, - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html
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