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


Decided: July 01, 2005

PRESENT:  HURLBUTT, J.P., SCUDDER, MARTOCHE, PINE, AND LAWTON, JJ. Service Employees International Union, Local 200 United, Syracuse (Melanie Wlasuk of Counsel), for Petitioner. David M. Pellow, Syracuse, for Respondent.

Petitioner commenced this proceeding pursuant to CPLR article 78 contending, inter alia, that the determination with respect to the penalty of dismissal from his employment as a maintenance worker for respondent was an abuse of discretion.   This proceeding arises from the charge that petitioner was incompetent because he struck and displaced a 100-pound manhole cover while snowplowing the parking lot of an elementary school.   In support of the charge, respondent alleged that petitioner failed to investigate what had occurred and thus failed to discover that he had displaced the manhole cover.   A teacher at the elementary school fell through the open manhole approximately 13 hours later, and the manhole cover was thereafter found in an adjacent snowbank.   Following a hearing pursuant to Civil Service Law § 75, the Hearing Officer found that the evidence established that petitioner was incompetent and recommended dismissal of petitioner, and respondent “approved” that finding and recommendation.

 Although we agree with petitioner that the Hearing Officer mischaracterized some of the hearing testimony, we nonetheless conclude that there is substantial evidence supporting the determination that petitioner was incompetent (see generally 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 181-182, 408 N.Y.S.2d 54, 379 N.E.2d 1183), notwithstanding the fact that the evidence in support thereof is circumstantial (see Matter of Correia v. City of Rochester, 299 A.D.2d 854, 749 N.Y.S.2d 449;  Matter of Motell v. Napolitano, 186 A.D.2d 989, 990, 588 N.Y.S.2d 452).   In particular, there is substantial evidence supporting the Hearing Officer's findings that petitioner displaced the manhole cover, that he knew he had struck something heavy with the snowplow, and that he failed to undertake the necessary investigation to discover that he had indeed displaced the manhole cover.   The record of the hearing also establishes that, after leaving the parking lot and meeting with other snowplowers during a break from their snowplowing duties, petitioner was advised by the snow watch supervisor to be careful of the manhole cover at issue because it previously had been displaced.   Although there was testimony that petitioner informed the snow watch supervisor that he might have hit something, it is undisputed that petitioner did not return to the parking lot to check the manhole cover.   In our view, there is substantial evidence “of some dereliction or neglect of duty” to support the determination with respect to petitioner's incompetence (Matter of Weatherlow v. Board of Educ. of Jamestown City School Dist., 236 A.D.2d 855, 856, 653 N.Y.S.2d 778;  see Matter of Phillips v. Le Page, 4 A.D.3d 704, 705, 772 N.Y.S.2d 422;  see also Civil Service Law § 75[1] ).

 We agree with petitioner, however, that respondent abused its discretion in terminating petitioner's employment.   The penalty of dismissal is so disproportionate to the offense, in light of all the circumstances, as to be shocking to 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, 234-235, 356 N.Y.S.2d 833, 313 N.E.2d 321).  “[W]e are not unmindful of the special obligation that school districts have with respect to safeguarding the well-being of their students” (Matter of Benson v. Board of Educ. of Washingtonville Cent. School Dist., 209 A.D.2d 693, 694, 619 N.Y.S.2d 153, appeal dismissed 85 N.Y.2d 847, 624 N.Y.S.2d 366, 648 N.E.2d 785, lv. denied 85 N.Y.2d 809, 628 N.Y.S.2d 51, 651 N.E.2d 919;  see Matter of Will v. Frontier Cent. School Dist. Bd. of Educ., 97 N.Y.2d 690, 739 N.Y.S.2d 90, 765 N.E.2d 293).   Nevertheless, in light of mitigating factors such as petitioner's length of service and the absence of evidence of prior incidents of incompetence, we conclude that the penalty of dismissal is too harsh (see Matter of Comins v. Camden Cent. School Dist., 214 A.D.2d 1032, 626 N.Y.S.2d 615, lv. denied 86 N.Y.2d 708, 634 N.Y.S.2d 441, 658 N.E.2d 219;  Benson, 209 A.D.2d at 693-694, 619 N.Y.S.2d 153).   We therefore modify the determination and grant the petition in part in accordance with our decision herein, and we remit the matter to respondent for imposition of an appropriate penalty less severe than dismissal from employment (see Matter of Johnson v. Town of Arcade, 281 A.D.2d 894, 895, 721 N.Y.S.2d 888;  Comins, 214 A.D.2d at 1032-1033, 626 N.Y.S.2d 615;  Benson, 209 A.D.2d at 694-695, 619 N.Y.S.2d 153).

It is hereby ORDERED that the determination be and the same hereby is unanimously modified on the law and the petition is granted in part by vacating the penalty and as modified the determination is confirmed without costs, and the matter is remitted to respondent for further proceedings.


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