IN RE: Christopher CUPO (2020)

DECISION & JUDGMENT

ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.

The petitioner began his employment with the respondent, Uniondale Fire District (hereinafter the Fire District), as a firehouse maintainer in April 2016.  In October 2017, the Fire District commenced a disciplinary proceeding against the petitioner pursuant to Civil Service Law § 75, charging him with misconduct and/or incompetence.  In addition to charges alleging, inter alia, excessive socializing and failure to complete assigned duties, the most serious charge, charge V, specification 1, alleged that on August 8, 2017, the petitioner stated that he “wanted to get a gun and go postal on this place.”

At a hearing in November 2017, the petitioner testified and denied the charges.  In addition, several Fire District employees and one of the commissioners testified at the hearing.  At the conclusion of the hearing, the hearing officer found that the Fire District sustained specifications 3 and 4 of charge II, a portion of specification 1 of charge IV, and a portion of specification 1 of charge V. Regarding charge V, specification 1, the hearing officer found that the petitioner used the phrase “go postal” or “going postal,” but he did not find that the petitioner used the word “gun.”  The hearing officer determined that the petitioner understood the meaning of the phrase “going postal,” and that the phrase reasonably could be interpreted as threatening.  He recommended terminating the petitioner's employment.

On December 21, 2017, the Board of Fire Commissioners of the Fire District adopted the findings of the hearing officer and terminated the petitioner's employment.  The petitioner thereafter commenced this proceeding pursuant to CPLR article 78 to review the Fire District's determination.

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 (see CPLR 7803[4];  300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 179–180, 408 N.Y.S.2d 54, 379 N.E.2d 1183;  Matter of Thomas v. Town of Southeast, N.Y., 168 A.D.3d 955, 956–957, 93 N.Y.S.3d 72;  Matter of Owens v. County of Dutchess, 162 A.D.3d 1040, 1041, 80 N.Y.S.3d 350;  Matter of Harris v. City of Poughkeepsie, 162 A.D.3d 663, 665, 79 N.Y.S.3d 57).  “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].  The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists’ ” (Matter of Grimaldi v. Gough, 114 A.D.3d 679, 680, 979 N.Y.S.2d 682, quoting Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 444, 522 N.Y.S.2d 478, 517 N.E.2d 193).

Here, any credibility issues were resolved by the hearing officer (see Matter of Reed v. Raynor, 151 A.D.3d 730, 730, 56 N.Y.S.3d 259), and substantial evidence in the record supports the determination that the petitioner was guilty of the misconduct and/or incompetence alleged in specifications 3 and 4 of charge II, a portion of specification 1 of charge IV, and a portion of specification 1 of charge V (see Matter of Thomas v. Town of Southeast, N.Y., 168 A.D.3d at 957, 93 N.Y.S.3d 72;  Matter of Owens v. County of Dutchess, 162 A.D.3d at 1041, 80 N.Y.S.3d 350;  Matter of Harris v. City of Poughkeepsie, 162 A.D.3d at 665, 79 N.Y.S.3d 57).

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 (see Matter of Waldren v. Town of Islip, 6 N.Y.3d 735, 736, 810 N.Y.S.2d 408, 843 N.E.2d 1148;  Matter of Harris v. City of Poughkeepsie, 162 A.D.3d at 665, 79 N.Y.S.3d 57).  “That reasonable minds might disagree over what the proper penalty should have been does not provide a basis for ․ refashioning the penalty” (City School Dist. of the City of N.Y. v. McGraham, 17 N.Y.3d 917, 920, 934 N.Y.S.2d 768, 958 N.E.2d 897;  see Matter of Bolt v. New York City Dept. of Educ., 30 N.Y.3d 1065, 1068, 69 N.Y.S.3d 255, 91 N.E.3d 1234).

Here, the penalty of termination was not so disproportionate to the offense so as to be shocking to one's sense of fairness (see Matter of Mapp v. Burham, 8 N.Y.3d 999, 1000, 839 N.Y.S.2d 439, 870 N.E.2d 678;  Matter of Rutkunas v. Stout, 8 N.Y.3d 897, 898, 834 N.Y.S.2d 73, 865 N.E.2d 1239;  Matter of Kennedy v. New York State Off. for People with Dev. Disabilities, 173 A.D.3d 1755, 1758, 104 N.Y.S.3d 803;  Matter of Owens v. County of Dutchess, 162 A.D.3d at 1041;  Matter of Armbuster v. Cassano, 149 A.D.3d 729, 730–731, 51 N.Y.S.3d 573), especially in light of the disturbing nature of the petitioner's statement about “going postal” (see Matter of Sindoni v. County of Tioga, 67 A.D.3d 1183, 1184–1185, 889 N.Y.S.2d 285;  Matter of Bottari v. Saratoga Springs City School Dist., 3 A.D.3d 832, 833, 771 N.Y.S.2d 261;  see also Matter of Cheeseboro v. Board of Educ. of Port Chester–Rye Union Free School. Dist., 82 A.D.3d 760, 760–761, 917 N.Y.S.2d 909).

The petitioner's remaining contentions are without merit.

BALKIN, J.P., AUSTIN, LASALLE and IANNACCI, JJ., concur.