IN RE: Dennis ALVES (2020)

Determination of respondent, dated February 10, 2017, which, after a hearing, sustained charges of misconduct brought against petitioner and terminated his employment, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Nancy M. Bannon, J.], entered May 18, 2018), dismissed, without costs.

The determination is supported by substantial evidence (see generally 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180–181, 408 N.Y.S.2d 54, 379 N.E.2d 1183 [1978]). Petitioner did not contest one of the two charges of misconduct. Concerning the other charge, the testimony of petitioner's supervisor established that petitioner left a work assignment without authorization and then refused to return to the location when instructed to do so. The supervisor's testimony and time records submitted at the hearing also showed that the supervisor called petitioner shortly after petitioner left the work location, that petitioner was either still at the location or nearby at the time of the call, and that petitioner was dishonest when he said he was already at another work location approximately 40 minutes away and could not return.

Respondent's consideration of uncharged conduct to refute petitioner's defense, that he left the work location in good faith to perform work at another location closer to his home, was not improper (see Matter of Rounds v. Town of Vestal, 15 A.D.3d 819, 822, 790 N.Y.S.2d 561 [3d Dept. 2005]). Respondent properly considered such conduct when assessing petitioner's motivation for leaving the work location without authorization, lying to his supervisor about his whereabouts, and then refusing to return (see Matter of Rodriguez v. State Bd. for Professional Med. Conduct, 110 A.D.3d 1268, 1272–1273, 973 N.Y.S.2d 464 [3d Dept. 2013]).

The termination of petitioner's employment does not shock one's sense of fairness (see generally Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 233, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974]). The sustained charges against petitioner involved findings of dishonesty and either neglect of petitioner's job responsibilities or refusal to report to a work assignment. For one of the two charges, petitioner's misconduct resulted in a hazardous condition that posed a significant risk of physical danger to residents or visitors at respondent's building.