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Annulling four of forty-one specifications of alleged misconduct, court sustains finding the employee guilty of the surviving charges and the penalty

Annulling four of forty-one specifications of alleged misconduct, court sustains finding the employee guilty of the surviving charges and the penalty
Matter of Levi v Lauro, 2009 NY Slip Op 00542, Decided on January 27, 2009, Appellate Division, Second Department

Thomas Lauro, Commissioner of the Westchester County Department of Environmental Facilities, adopted the report and recommendation of a hearing officer finding Miriam Baht Levi guilty of 41 specifications of incompetence and/or misconduct, and suspended her from employment without pay for a period of 60 days.

Levi appealed, and although the Appellate Division annulled specifications 14, 18, 40, and 41 of the disciplinary charges filed against her, confirmed the Commissioner?s determination and the penalty he imposed.

Levi, a receptionist at the Westchester County Department of Environmental Facilities, was charged with arriving late to work on 35 occasions over a period of 15 months, and with having failed to call in ahead of time on four of those 35 occasions.

The Appellate Division ruled that:

1. The hearing officer properly admitted into evidence time sheets indicating the dates and times Levi was late to work.

2. Although Levi alleged that her tardiness was due to arthritic knees and thus she was entitled to a reasonable accommodation, which was not provided, she ?did not present any medical evidence to substantiate her claim that she suffers from a "physical impairment" such as arthritis.?

3. There was no evidence that during the period in question Levi informed the Deparetment of her alleged disability or that she requested a reasonable accommodation of her alleged disability.

Finding that the 37 surviving specifications of alleged misconduct were supported by substantial evidence and that the penalty imposed was not so disproportionate as to shock the judicial conscience as a matter of law, the so-called Pell standard, [Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222], the Appellate Division dismissed Levi?s appeal.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_00542.htm

Full post as published by New York Public Personnel Law on February 05, 2009 (boomark / email).