April 26, 2022

Employee found guilty of charges of excessive absences from work and latenesses terminated from the position

In this CPLR Article 78 action challenging the termination of an employee found guilty of incompetence and misconduct due to excessive absences caused by physical incapacity, the Appellate Division, citing Romano v Town Bd. of Town of Colonie, 200 AD2d 934, observed that although the employee may offer "a valid" reason for each one of the individual absences set out in the disciplinary charges at issue that fact "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."

Citing Matter of Cupo v Uniondale Fire Dist., 181 AD3d 594, the court explained that judicial review of factual findings made after a hearing pursuant to Civil Service Law §75 "is limited to consideration of whether the determination was supported by substantial evidence." Further, the Appellate Division noted that "A reviewing court 'may not weigh the evidence or reject the choice made by [the administrative agency] where the evidence is conflicting and room for choice exists.'"

Finding that substantial evidence* in the record supports the determination that the employee was guilty of incompetence and misconduct as charged, with the employee's failure to give more than a few hours of advance notice for any of these absences, was disruptive and burdensome in that the employee's supervisor was forced to perform the employee's work in addition to the supervisor's own tasks. Further, opined the Appellate Division, the fact that the employee received "retroactive authorization" for some of these absences is "irrelevant to the ultimate issue" here: the employee's unreliability had a disruptive and burdensome effect, rendering the employee incompetent.

Applying the Pell doctrine,** the Appellate Division found that on the record before it, imposing the penalty of termination was not "'so disproportionate to the offense as to be shocking to one's sense of fairness" and this did not constituting an abuse of discretion as a matter of law.

* Substantial evidence has been defined as such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact [Matter of Berenhaus v Ward, 70 NY2d 436].

** See Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222.

Click HERE to access the Appellate Division's ruling.

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
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 in this blog is presented with the understanding that neither the publisher nor members of the staff are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is advised to seek such advice from a competent professional.