January 28, 2019

Elements considered by courts in reviewing an individual's appeal of an adverse disciplinary decision by an appointing authority


Elements considered by courts in reviewing an individual's appeal of an adverse disciplinary decision by an appointing authority
Thomas v Town of Southeast, 2019 NY Slip Op 00446, Appellate Division, Second Department

In an employee disciplinary matter conducted pursuant to §75 of the Civil Service Law, judicial review of factual findings made after a hearing is limited to consideration of whether that determination was supported by substantial evidence. Further, in the event there is conflicting evidence, or different inferences that may be drawn from the evidence, the duty of weighing the evidence and making the choice rests solely upon the appointing authority and courts may not weigh the evidence or reject the choice made by the appointing authority where the evidence is conflicting and room for choice exists.

Timothy Thomas, an employee of by the Town of Southeast Highway Department was served with disciplinary charges pursuant to §75 alleging that he had committed various acts of misconduct over a period of some 10 months including instances of disobeying the orders of a superior, including one instance in which his failure to follow the directions of the highway department Superintendent allegedly placed the Thomas, a coworker, and the general public in danger; being absent from work for two days without obtaining prior approval for such absence; and threatening and physically confronting the Highway Department Superintendent in the Department's garage.

At the disciplinary hearing Thomas denied the alleged charges of misconduct while a number highway department employees testified to the contrary. In addition, relevant camera surveillance footage, as well as audio recordings, was introduced into evidence by the Town in support of charges it had filed against Thomas and was made part of the record by the hearing officer.

At the conclusion of the hearing, the hearing officer found the Thomas guilty of some, but not all, of the charges filed against him. The hearing officer recommended Thomas be terminated from his employment "given the nature of the incidents, [Thomas'] lack of credibility and lack of remorse, and his previous disciplinary suspension of five days for harassing a co-worker and improper performance of his duties, as well as previous reprimands."

The appointing authority adopted the hearing officer's findings and recommendation and terminated Thomas' employment, whereupon Thomas filed a petition pursuant Article 78 of the CPLR seeking a judicial review of the Town's action.

The Appellate Division dismissed Thomas' appeal, explaining that any credibility issues were resolved by the hearing officer (see Matter of Reed v Raynor, 151 AD3d 730), and substantial evidence in the record supported the determination that the Thomas was guilty of the misconduct alleged in the surviving charges of misconduct.

The Appellate Division noted that a court may set aside an administrative disciplinary penalty only if it is so disproportionate to the offense as to be shocking to one's sense of fairness (see Matter of Walden v Town of Islip, 6 NY3d 735), and although "reasonable minds might disagree over what the proper penalty should have been," such a consideration does not provide a basis for a court to "refashioning the penalty," citing City School Dist. of the City of N.Y. v McGraham, 17 NY3d 917

The Appellate Division decided that the penalty imposed on Thomas' by the appointing authority, dismissal from his employment, "is not so disproportionate to the offenses as to be shocking to one's sense of fairness, especially in light of the number of incidents and the petitioner's prior disciplinary record."

The decision is posted on the Internet at:

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