April 18, 2019

Evaluating conflicting testimony and the credibility of witnesses in a disciplinary hearing


A court may not weigh the evidence or reject the choice made by the hearing officer in a disciplinary proceeding where there is conflicting evidence and room for choice exists. Where  there is room for choice, the court may not substitute its judgment for that of the hearing officer regarding the credibility of the witness.*

In Crossman-Battisti v Traficanti, Appellate 235 A.D.2d 566, the Appellate Division rejected the employee's claim that all the witnesses had motives to lie and fabricate their testimony, finding that there was no basis "to disturb the resolution of issues of credibility implicit in [the employer's] determination [and] the duty of weighing the evidence and making the choice between conflicting inferences which can be drawn from the evidence is for the administrative agency, not the courts."

Citing  Matter of Di Vito v State of New York, Dept. of Labor, 48 N.Y.2d 761, the Appellate Division explained that considering "the broad discretion afforded to an administrative agency in cases involving internal discipline," it would not substitute its judgment for that of the appointing authority.

Addressing the employee's "retaliation defense" for whistle-blowing asserted in her answer [see Civil Service Law §75-b(3)], the court opined that the whistle-blowerdefense "applies only where the disciplinary proceeding is based solely on the employer's unlawful retaliatory action." Where, as here, explained the Appellate Division, "the employer presented evidence of specific incidents of inappropriate conduct which are found to demonstrate a separate and independent basis for the action taken, a defense under Civil Service Law §75-b cannot be sustained."

As to the penalty imposed by the appointing authority, termination of the employee, the court ruled that "there is no basis to disturb the penalty of dismissal imposed in this case, which we do not find so disproportionate to the offenses as to be shocking to one's sense of fairness," applying the Pell Doctrine.**

The Appellate Division sustained the agency's terminating the employee after finding her guilty of "unauthorized activity, altercations with other employees, unauthorized absences and abuse of leave time."

* Kolanik v Safir, 231 A.D.2d 720.

** Matter of Pell v Board of Educ., 34 N.Y.2d 222.

The decision is posted on the Internet at:


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