IN RE: Gerald MINCKLER (2023)

MEMORANDUM AND JUDGMENT

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Sullivan County) to review a determination of respondent Sheriff of Sullivan County terminating petitioner's employment.

Petitioner was a jail division deputy sheriff/sergeant for respondent Sullivan County.  In November 2020, petitioner was served with a notice and statement of charges, containing six charges of misconduct for alleged violations of the County's sexual harassment policy and of respondent Sullivan County Sheriff's Office's Rules, Regulations and Code of Conduct.  Petitioner denied the charges and demanded a hearing pursuant to Civil Service Law § 75.  Following a disciplinary hearing, respondents withdrew charge three.  The Hearing Officer concluded that the remaining charges were founded and ultimately recommended that petitioner's employment be terminated.  On March 19, 2021, respondent Sullivan County Sheriff reviewed the record and Hearing Officer's recommendation, found petitioner guilty of the five remaining charges of misconduct and terminated his employment.

In July 2021, petitioner commenced this CPLR article 78 proceeding in Supreme Court seeking annulment of the determination, reinstatement to his position and back pay to the date of his termination.  Respondents moved pre-answer to dismiss the petition.  Supreme Court (Schick, J.) denied respondents’ motion, allowed them to answer and transferred the proceeding to this Court (see CPLR 7804[g]).

Contrary to petitioner's arguments, we find that the charges are supported by substantial evidence.¹  “Pursuant to Civil Service Law § 75(1), a civil service employee shall not be removed or otherwise subjected to any disciplinary penalty except for incompetency or misconduct shown after a hearing upon stated charges” (Matter of Blamah v. New York Off. of the State Comptroller, 207 A.D.3d 905, 906, 172 N.Y.S.3d 509 [3d Dept. 2022] [internal quotation marks, ellipsis and citations omitted];  see Matter of Kohn v. County of Sullivan, 214 A.D.3d 1058, 1059, 185 N.Y.S.3d 361 [3d Dept. 2023]).  “ ‘The standard of review of such a determination made after a disciplinary hearing is whether it is supported by substantial evidence’ ” (Matter of Kiyonaga v. New York State Justice Ctr. for the Protection of People With Special Needs, 204 A.D.3d 1351, 1353 [3d Dept. 2022], quoting Matter of Scuderi–Hunter v. County of Delaware, 202 A.D.3d 1309, 1314, 163 N.Y.S.3d 664 [3d Dept. 2022], lv denied 39 N.Y.3d 903, 2022 WL 16984425 [2022]).

The disciplinary hearing consisted of the testimony of four witnesses – two female deputies, the County's Commissioner of Human Resources and the County's undersheriff;  the receipt of 13 exhibits offered by respondents including the statement of charges, the County's employee handbook, the County's sexual harassment policy, the Sheriff's Office's Rules and Regulations;  and 15 character letters offered by petitioner.  The first deputy's testimony included her account of an incident outside of the workplace wherein petitioner, who appeared intoxicated and was armed, grabbed her breast in an effort to, as he explained, “see if they were real.”  He further stated that he “wasn't getting any at home and had to look somewhere else.”  She further testified that petitioner threatened her at the workplace, stating, “I'll shoot your dogs and take what I want from you.”  A second deputy testified that petitioner put his hand into her hip pocket and reached up toward her vagina, and, on another occasion, forcefully attempted to pull her onto his lap, hurting her wrist in the process.  She testified to a third occasion when petitioner, after seeing her in civilian clothing told her, “if you keep dressing like that, I'm going to have you sit on my face.”  She also stated that she kept an account of petitioner's offensive comments and actions in a calendar that she kept in her coat, but that the pages concerning petitioner had been removed by someone after she left her coat at work.  Both deputies testified that they avoided petitioner and did not report the incidents for many years because they were afraid of retaliation and retribution from petitioner.  Although petitioner asserts that the credibility determinations made by the Hearing Officer and the Sheriff were flawed, credibility determinations are within the province of the Hearing Officer and are entitled to deference (see Matter of Shanahan v. Justice Ctr. for the Protection of People With Special Needs, 198 A.D.3d 1157, 1160, 157 N.Y.S.3d 121 [3d Dept. 2021];  Matter of Nygard v. County of Warren, 79 A.D.3d 1354, 1356, 913 N.Y.S.2d 389 [3d Dept. 2010]).  Accordingly, substantial evidence supports each of the charges for which petitioner was ultimately found guilty (see Matter of Salatel v. New York State Police, 98 A.D.3d 1214, 1216, 951 N.Y.S.2d 263 [3d Dept. 2012];  Matter of Bayer v. New York State Dept. of Labor, 28 A.D.3d 865, 867, 812 N.Y.S.2d 691 [3d Dept. 2006];  Matter of Wade v. Town of Ticonderoga Town Bd., 256 A.D.2d 860, 861, 681 N.Y.S.2d 833 [3d Dept. 1998], lv. denied 93 N.Y.2d 804, 689 N.Y.S.2d 16, 711 N.E.2d 201 [1999]).

Petitioner's challenge to the penalty of termination of his employment as excessive is unavailing.  “In evaluating whether the penalty imposed is excessive, this Court must consider whether, in light of all the relevant circumstances, the penalty is so disproportionate to the charged offenses as to shock one's sense of fairness” (Matter of Scuderi–Hunter v. County of Delaware, 202 A.D.3d at 1317, 163 N.Y.S.3d 664 [internal quotation marks, brackets and citations omitted]).  We recognize that petitioner worked for respondents for nearly 25 years with no prior disciplinary issues and that he submitted 15 letters by individuals acclaiming their belief in his good character.  However, “sexual harassment in the work[ ]place is among the most offensive and demeaning torments an employee can undergo” (Matter of Oare v. Coughlin, 133 A.D.2d 943, 946, 520 N.Y.S.2d 658 [3d Dept. 1987] [internal quotation marks, brackets and citation omitted], lv denied 70 N.Y.2d 615, 526 N.Y.S.2d 436, 521 N.E.2d 443 [1988]).  Given that the record establishes numerous incidents of sexual harassment by petitioner, “we cannot conclude that the penalty of termination was so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness” (Matter of Blamah v. New York Off. of the State Comptroller, 207 A.D.3d at 911, 172 N.Y.S.3d 509 [internal quotation marks and citations omitted];  see Matter of Scuderi–Hunter v. County of Delaware, 202 A.D.3d at 1318, 163 N.Y.S.3d 664).

ADJUDGED that the determination is confirmed, without costs.

FOOTNOTES

1.   Although petitioner contends that one of the deputies lodged her complaint in response to an unrelated dispute and that the investigation of the complaints biased the hearing, these matters are unpreserved as petitioner failed to raise an objection or cross-examine the witnesses as to these issues at his disciplinary hearing (see Matter of Wales v. City of Saratoga Springs, 200 A.D.3d 1262, 1263, 160 N.Y.S.3d 389 [3d Dept. 2021];  Matter of Shanahan v. Justice Ctr. for the Protection of People With Special Needs, 198 A.D.3d 1157, 1160, 157 N.Y.S.3d 121 [3d Dept. 2021]).

Reynolds Fitzgerald, J.

Clark, J.P., Aarons, Pritzker and McShan, JJ., concur.