ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS

April 13, 2020

The penalty of termination held not so disproportionate to the offense so as to be shocking to one's sense of fairness” in light of the employee’s statement about “going postal”

A hearing officer, after a hearing conducted pursuant to Civil Service Law §75, found a “firehouse maintainer” [Petitioner] guilty of certain charges of misconduct and/or incompetence and recommended that the Petitioner be terminated from his position. The Fire District [District] adopted the findings and recommendation of the hearing officer and dismissed Petitioner from his position. Petitioner filed an appeal pursuant to CPLR Article 78 challenging the District’s decision.

The Appellate Division, sustaining the District’s action, noted that in addition to charges alleging excessive socializing and failure to complete assigned duties, Charge V, Specification 1, alleged that Petitioner stated that he "wanted to get a gun and go postal on this place."

Addressing Charge V, Specification 1, the hearing officer found that Petitioner had used the phrase "go postal" or "going postal," but he did not find that Petitioner used the word "gun." However, said the court, the hearing officer also determined that Petitioner understood the meaning of the phrase "going postal," and that the phrase reasonably could be interpreted as threatening.

Citing Matter of Thomas v Town of Southeast, N.Y., 168 AD3d 955 and other decisions, the Appellate Division explained that with respect to employee disciplinary cases, “judicial review of factual findings made after a hearing pursuant to Civil Service Law §75 is limited to consideration of whether that determination was supported by substantial evidence.”

Further, opined the court, "When there is conflicting evidence or different inferences may be drawn, the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists.”*

Further the court explained that any credibility issues were resolved by the hearing officer and substantial evidence in the record supported the determination that Petitioner was guilty of the misconduct and/or incompetence alleged some, but not all, of the Charges and Specifications filed against him.

Finally the Appellate Division noted that a court may set aside an administrative penalty only if it is so disproportionate to the offense as to be shocking to one's sense of fairness, citing Matter of Waldren v Town of Islip, 6 NY3d 735 and indicated that although “... reasonable minds might disagree over what the proper penalty should have been does not provide a basis for . . . refashioning the penalty." Here, said the court, “the penalty of termination was not so disproportionate to the offense so as to be shocking to one's sense of fairness”, especially in light of the disturbing nature of the Petitioner's statement about “going postal”.

* See Matter of Grimaldi v Gough, 114 AD3d 679, 680, quoting Berenhaus v Ward, 70 NY2d 436 at 444.

The decision is posted on the Internet at: 
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Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL. For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf. Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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