A school district [Employer] adopted the finding a §75 disciplinary action hearing officer holding that the employee [Plaintiff] was guilty of certain charges of misconduct and the hearing officer's recommendation that the Petitioner be terminated from his position. Petitioner appealed the Employer's decision but the Appellate Division sustained the Employer's action and dismissed Plaintiff's Article 78 petition on the merits, with costs.
Petitioner, a motor equipment operator, sustained injuries on August 11when the ride-on lawn mower he was using while at work overturned. Petitioner obtained a doctor's recommendation that he not return to work until September 8. After Plaintiff returned to work on September 8, the Employer filed fourteen Civil Service Law §75 disciplinary charges against the Petitioner alleging misconduct that occurred between August 12, and September 8, which charges the Appellate Division characterized as alleging the Plaintiff was "out of work on workers' compensation even though he was able to perform the essential functions of his job as a motor equipment operator."
The Appellate Division, explaining that a court's review of an administrative determination in an employee disciplinary proceeding made after a hearing pursuant to Civil Service Law §75 is limited to considering whether the determination was supported by substantial evidence, said where there is conflicting evidence or different inferences may be drawn from the evidence, "the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]" and the 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, noting the Court of Appeals decision in Berenhaus v Ward, 70 NY2d 436.
As any credibility issues were resolved by the hearing officer, the Appellate Division said it found "no basis upon which to disturb the determination that the [Plaintiff] was guilty of the misconduct alleged, which was supported by substantial evidence."
Noting 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", the Appellate Division opined that "[u]nder the circumstances here, the penalty of termination of the [Plaintiff's] employment was not so disproportionate to the offense committed as to be shocking to one's sense of fairness," citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222.
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