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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of James BROWN, Petitioner, v. Margaret MURPHY, President, and Michael Christensen, Robert Cirencione, Walter Guild, Thomas Rakovan, Richard Rickman, Robert Scharf, Nancy Scher and Derek Wilber, as Members of Board of Education, Penn Yan Central School District, Respondents.

Decided: September 29, 2000

PRESENT:  PIGOTT, JR., P.J., PINE, HURLBUTT, SCUDDER AND KEHOE, JJ. Alan P. Reed, Bath, for Petitioner. Jennifer G. Speller, for Respondents.

Petitioner commenced this CPLR article 78 proceeding seeking to annul a determination finding him guilty of charges two, three in part and four and terminating his employment as a custodian for the Penn Yan Central School District.   The determination finding him guilty of those charges is supported by substantial evidence (see generally, Matter of Suitor v. Keller, 256 A.D.2d 1140, 684 N.Y.S.2d 454).   The penalty of dismissal, however, is so disproportionate to the offense as to shock one's sense of fairness (see, Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 234-235, 356 N.Y.S.2d 833, 313 N.E.2d 321).   The three charges of which petitioner was found guilty were failing to clean his assigned rooms adequately;  sweeping orange peels from the side of the cafeteria for which he was responsible to the side for which a co-worker was responsible;  and leaving work 20 minutes early.   Each charge involved a single occurrence on three separate dates.   Even considering the prior incidents of similar misconduct for which petitioner had received warnings, we conclude that the termination of petitioner, a 12-year employee, is an excessive penalty and that the maximum penalty warranted in this case is suspension without pay and benefits for 12 months, retroactive to October 21, 1999.   Thus, in the exercise of our discretion, we modify the determination, grant in part the petition, and reduce the penalty accordingly (see, Matter of Mitthauer v. Patterson, 8 N.Y.2d 37, 42, 201 N.Y.S.2d 321, 167 N.E.2d 731;  Matter of Suitor v. Keller, supra).

Determination unanimously modified in the exercise of discretion and as modified confirmed without costs.


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