June 24, 2019

Employee's conduct following an acrimonious end of a romantic relationship with a coworker basis for disciplinary action and termination


An employee [Petitioner] was involved in a romantic relationship with a coworker that ended acrimoniously. The appointing authority [Respondent] thereafter served Petitioner with an notice of discipline pursuant to Civil Service Law §75 alleging that Petitioner had "made numerous prank telephone calls to the coworker, mailed letters disparaging the coworker to other employees and mailed packages containing underwear and notes disparaging the coworker to one particular individual." The Petitioner was also charged that when questioned by representatives of the Respondent, Petitioner made numerous false statements to the interviewers.

Following a hearing, the Hearing Officer dismissed all but one of the allegations of harassment as untimely under Civil Service Law §75(4)* but determined that petitioner was guilty of the sole remaining allegation of harassment involving sending a package to another employee that contained underwear with a note suggesting that the employee may have contracted a sexually transmitted disease from the coworker. In addition, the Hearing Officer determined that Petitioner made three false statements during his questioning by the interviewers.

Based on these findings the Hearing Officer recommended that Petitioner be terminated, which findings and recommendations were adopted by the appointing authority, resulting in Petitioner's dismissal from the position.

Petitioner appealed, contending that efforts to questions the Hearing Officer "to determine if there was any basis to argue that the Hearing Officer was biased" and objected to Respondents' opening statements as being  improper as they "referenced conduct underlying charges that were ultimately dismissed as well as conduct for which no charges were filed."

The Appellate Division ruled that contrary to Petitioner's claim of a right to inquire as to whether the Hearing Officer was biased, Petitioner was not entitled to question the Hearing Officer to determine if there was any basis to argue that the Hearing Officer was biased, explaining that "There is a presumption of integrity on those serving as adjudicators . . . and hearing officers are presumed to be free from bias," citing Donlon v Mills, 260 AD2d 971, leave to appeal denied, 94 NY2d 752 . The court then opined that since Petitioner "failed to establish any reason to question the Hearing Officer's impartiality, [it found] no basis to annul the determination on that ground."

Addressing Petitioner's contention that Respondents' opening statements were improper inasmuch as they referenced conduct underlying charges that were ultimately dismissed as well as conduct for which no charges were filed, the court reject those contention's, indicating that with respect to statements concerning conduct underlying the charges that were ultimately dismissed as untimely, there was no impropriety because, had Respondents established that such conduct would have constituted a crime, they would not have been untimely. 

With respect to Petitioner's objections to statements concerning uncharged conduct, the Appellate Division said that the record "establishes that references to uncharged conduct were 'necessary to refute petitioner's attempts to explain his behavior' and his denials of guilt of the charged misconduct." Further, the decision indicates that the Hearing Officer "based his determination on specific and distinct findings as to each [specification] sustained; the dismissal recommendation was based on his finding that [Petitioner] was guilty of [four] very serious [specifications] of misconduct' . . . There is no record support for the contention that the determination or penalty recommendation was based on uncharged conduct."

In contrast, the Appellate Division found that Petitioner correctly contended that the Hearing Officer erred in relying on the preponderance of the evidence standard. However, opined the court, that error does not require it to annul the determination, explaining that the "preponderance of the evidence standard" used by the Hearing Officer "is a higher standard than the substantial evidence" standard Petitioner asserts should have been employed. Accordingly, the court found that Respondents satisfied a higher, rather than lower, standard of proof."

Concluding that Respondent's determination was supported by substantial evidence and the penalty of termination is not "so disproportionate to the offense as to be shocking to one's sense of fairness," the Pell Doctrine**, there was no abuse of discretion as a matter of law and unanimously confirmed Respondent's determination and dismissed Petitioner's complaint.


* Section 75.4, in pertinent part, provides that "no removal or disciplinary proceeding shall be commenced ... more than more than one year after the occurrence of the alleged incompetency or misconduct complained of and described in the charges, provided, however, that such limitations shall not apply where the incompetency or misconduct complained of and described in the charges would, if proved in a court of appropriate jurisdiction, constitute a crime."

** See Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, 34 NY2d 222, generally referred to as the "Pell Doctrine."  Essentially the Pell Doctrine instructs that any permissible disciplinary penalty may be imposed on an employee found guilty of one or more disciplinary charges and specifications by an appointing authority or arbitrator unless the court finds that, considering the circumstances underlying the disciplinary action, such a penalty is "shocking to one's sense of fairness."

The decision is posted on the Internet at:

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