Petitioner was terminated from his employment with the Respondent Village following a Section 75 Civil Service hearing. The single charge against the Petitioner alleged a pattern of excessive absences over an 18 month period.^[FN1] It is the Petitioners contention that his absences were all for valid reasons and that his termination was contrary to law and was arbitrary and capricious. The Respondent contends that the excessive absences rendered the Petitioner unreliable and, therefore, incompetent to perform his duties.

The Section 75 Hearing Officer who heard the matter found there was "...substantial evidence to support the charge of incompetence based upon Petitioner's excessive absences,..."^[FN2] but that the Petitioner's absences did not affect the morale of the department to the extent that it was "...asserted in conclusory fashion by the witnesses who testified."^[FN3] The Hearing Officer recommended that the Petitioner be suspended for a period of 90 days without pay and that upon his return the Respondent place him on an appropriate period of probation with the terms and conditions of said probation to be reflective of the findings in the Hearing Officer's report. The Hearing Officer also found that termination of employment, as suggested by Respondent, would be "...disproportionate to the facts presented."^[FN4]

The issue before this Court is whether the penalty of termination imposed on Petitioner by Respondent was "disproportionate as to shock one's sense of fairness?"

Judicial review of an administrative penalty is limited to whether the measure or mode of penalty of discipline imposed constitutes an abuse of discretion as a matter of law. Matter of Featherstone v. Franco, 95 NY2d 550, 2000.

In Pell v. Board of Ed. of Union Free School Dist. No. 1 of Towns of Scarsdale and [*2]Mamaroneck, Westchester County, [^[FN5]] the Court of Appeals articulated the standard for determining the appropriate penalty when a finding of guilt has been found in an administrative proceeding and punishment imposed. The test is whether such punishment is "...so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness."

In McKinnon v. Board of Educ. of North Bellmore Union Free School Dist. 273 AD2d 240, 241, 2nd Dept.,2000, petitioner's termination was upheld where petitioner had excessive absences and failed to comply with established call-in procedures.

In Alston v. Morgan 245 AD2d 287, 2nd Dept.1997, petitioner's termination was upheld where petitioner had a number of unauthorized absences over a period of approximately 15 months, had failed to provide medical authorization for some of her absences and had neglected to advise her supervisors in advance that she would be absent.

In Romano v. Town Bd. of Town of Colonie, 200 AD2d 934, 3rd Dept.,1994, termination for excessive absenteeism was upheld where the employee had received repeated warnings about excessive absences including a 30-day suspension.

In Wallis v. Sandy Creek Cent. School Dist. Bd. of Educ., 79 AD3d 1813, 914 N.Y.S.2d 806, 4th Dept., 2010, termination was upheld where the petitioner had received numerous warnings about her excessive absenteeism, her absentee rate was over 60% for a period of a year and one-half and she had been found to be insubordinate.

Mitigating factors, if present, are also a proper consideration for a court. In Schnaars v. Copiague Union Free School Dist., 275 AD2d 462, 2nd Dept.,2000, the Appellate Division reversed the termination of an employee where the Petitioner had been employed for 13 years, had received numerous accolades and had no prior disciplinary problems.

It is also important to note that the Appellate Division has reversed the dismissal of employees whose behavior involved more severe misconduct than that presented by the facts in this case. In Muraik v. Landi, 19 AD3d 697, 2nd Dept., 2005, the Court overturned the termination of a supervisor who had, on many occasions, knowingly submitted false time records for subordinates and had been previously disciplined.

In Goudy v. Schaffer, 24 AD3d 764, 2nd Dept., 2005, the Appellate Division also overturned the termination of an employee where forty-two (42) separate specifications of misconduct were documented and incompetence had been sustained. [*3]

The record before this Court supports a finding that Petitioner had received authorization from the employer for his absences, followed the appropriate call-in procedures and obtained appropriate medical documentation when necessary. Furthermore, he was never warned about his excessive absences or charged with insubordination or other misconduct. He was employed by Respondent for ten years and had no prior disciplinary problems. The problems with frequent absences only began after Petitioner had gallbladder surgery in May 2008 and later suffered an employment related back injury. In February 2009, Petitioner was even promoted from Motor Equipment Operator I to Motor Equipment Operator II.

Upon review of the relevant law and the facts, the Court finds that the facts presented here are distinguishable to the various cases in which termination has been imposed for excessive absenteeism. When absenteeism has been authorized by an employer and properly documented according to procedure, termination for excessive absenteeism has not been imposed upon an employee unless it was coupled with more aggravating factors, including insubordination, progressive discipline and other incidents of poor performance at work. Respondent should have given due weight to mitigating factors when deciding the appropriate penalty to impose. The penalty of termination imposed upon Petitioner by Respondent is disproportionate to the offense charged.

Accordingly, the Respondent's termination is hereby annulled and the matter is remitted to the Village Board for the imposition of a penalty other than termination.

Settle order.

Dated:New City, NY

May 4, 2011

ENTER:

____________________________

Hon. Alfred J. Weiner JSC