February 25, 2021

An employee found guilty of excessive absences may be terminated where such unreliability is shown to have a disruptive and burdensome impact on the employer

The Director of Security [Petitioner] employed by the School District [District] had repeatedly been warned, in person and in writing, that the number and frequency of his absences was unacceptably high in consideration of his position and that his failure to improve his attendance could lead to the termination of his employment.

Petitioner subsequently was served with disciplinary charges pursuant to §75 of the Civil Service Law alleging that he was guilty of "excessive absenteeism". The parties had reached a tentative settlement of these disciplinary charges when Petitioner again absented himself from work without notice. Ultimately a §75 disciplinary hearing was conducted and the hearing officer found Petitioner guilty of "certain charges of incompetence and insubordination." The District adopted the hearing officer's findings and terminated Petitioner's employment.

Petitioner commenced a proceeding pursuant to CPLR Article 78 seeking judicial review the District's determination. The Appellate Division, however, sustained the District's decision, explaining that:

1. In 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;

2. Courts may not weigh the evidence or reject the choice made by an administrative agency where the evidence is conflicting and room for choice exists;

3. A municipal employee may be terminated for incompetence and misconduct due to excessive absences caused by physical incapacity after a disciplinary hearing; and

4. The fact that the employee may have had "a 'valid' reason for each one of the individual absences is irrelevant to the ultimate issue of whether his [or her] unreliability and its disruptive and burdensome effect on the employer rendered him [or her] incompetent to continue his [or her] employment."*

Finding substantial evidence in the record supporting the hearing officer's determination that the Petitioner was guilty of incompetence and insubordination as charged and that the record showed that Petitioner "had repeatedly been warned ... his absences was unacceptably high in light of his position as head of security for the district," the Appellate Division, citing Matter of Waldren v Town of Islip, 6 NY3d 735, opined that under the circumstances the penalty of termination was not so disproportionate to the offense as to be shocking to one's sense of fairness.

The Appellate Division then confirmed the District's determination and dismissed the Petitioner's appeal on the merits.

* In Wallis v. Sandy Creek Cent. School Dist. Bd. of Educ., 79 A.D.3d 1813, the  termination of the employee was upheld where the employee had received numerous warnings about her excessive absenteeism, her absentee rate was over 60% for a period of a year and one-half and she had been found to be insubordinate.

Click HERE to access the Appellate Division's decision in the instant appeal.

 

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