In this disciplinary action taken pursuant to Civil Service Law §75 the hearing officer found the Petitioner was guilty of 23 charges, consisting of 35 separate specifications of misconduct or incompetence* and recommended the Petitioner be terminated from service. The employer accepted the hearing officer's findings and recommendation of the hearing office with respect to the penalty to be imposed.
Petitioner appealed. However, the Appellate Division granted only so much of the petition submitted by the Petitioner as found the Petitioner "guilty of Specification 32".
The Appellate Division, noting that "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", explained that:
1. "Substantial evidence means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact;
2. "While substantial evidence is [m]ore than seeming or imaginary, it is less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt;
3. "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]" and
4. Courts 'may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists."
In the instant matter the Appellate Division held that "so much of the [Employer's] determination as adopted the hearing officer's finding that the [Petitioner] was guilty of specifications 1 through 4, 8, 9, 11, 13, 15, 16, 22 through 31, 33, and 34 was supported by substantial evidence."
While a court may set aside an administrative penalty, the Appellate Division noted that it may do so "only if it is so disproportionate to the offense as to be shocking to one's sense of fairness'", and explained that that "An administrative penalty is shocking to one's sense of fairness if the sanction imposed is so grave in its impact on the individual subject to it that it is disproportionate to the misconduct, incompetence, failure, or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the dereliction of the individual".
In the event there is no "grave moral turpitude and grave injury to the agency involved or to the public weal," the Appellate Division said relevant factors include the "employee's length of employment, the probability that a dismissal will leave the employee without any alternative livelihood, the employee's loss of retirement benefits, and the effect upon the employee's innocent family" but the fact that "reasonable minds might disagree over what the proper penalty should have been does not provide a basis for . . . refashioning the penalty."
Observing remittal for a new determination of the penalty imposed is usually required where this Court dismisses one of the specifications of which the petitioner was found guilty, the Appellate Division determined that "remittal is not necessary under the particular circumstances of this case" as the Petitioner acknowledges on appeal, the hearing officer's finding that the petitioner was guilty of this specification was "likely a typographical error" and the hearing officer's report and recommendation itself demonstrated that the employer did not rely upon specification 32 in determining the penalty".
The Appellate Division then found that the penalty of termination of employment was not so disproportionate to the remaining 22 offenses as to be shocking to one's sense of fairness, "in light of the number and serious nature of the incidents and the [Petitioner's] prior disciplinary record".
Accordingly, the Appellate Division granted Petitioner's petition to the extent that so much of the determination as found the Petitioner guilty of specification 32 "is annulled and dismiss that specification".
* These specifications alleged the Petitioner was guilty of "rude, inappropriate, and unprofessional behavior toward both clients and members of the public, and violations of agency rules related to [Petitioner's] work in six separate cases of misconduct or incompetence"
Click HERE to access the Appellate Division's decision posted on the Internet.