Opinion
January 31, 1992
Appeal from the Supreme Court, Ontario County, Wesley, J.
Present — Callahan, J.P., Doerr, Green, Balio and Lawton, JJ.
Determination confirmed without costs and petition dismissed. Memorandum: There is substantial evidence to support respondent's determination that petitioner, the senior custodian at the School District's primary building, engaged in misconduct by falsely reporting and verifying his time sheets and those of another employee and by reentering the building and removing a folder of documents. Further, the penalty of dismissal is not excessive in light of petitioner's supervisory position, the fact that petitioner had falsified the records for some time, and respondent's need to deter similar false reporting in the future (see, Matter of Pell v. Board of Educ., 34 N.Y.2d 222; Matter of Antignano v. Gunn, 134 A.D.2d 344, lv denied 71 N.Y.2d 804).
All concur, except Doerr and Green, JJ., who dissent in part and concur in part in the following Memorandum.
Although we agree with the majority's conclusion that the school district's determination that petitioner engaged in misconduct is supported by substantial evidence, in our view, the penalty imposed — termination of petitioner's employment — is so grossly disproportionate to the offenses committed by petitioner as to be shocking to one's sense of fairness (see, Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 233-234). Although petitioner credited another employee for having worked on two days when that employee was on sick leave, the evidence demonstrates that this error was the result of an ambiguous direction from petitioner's supervisor. Moreover, petitioner failed to use sick time when he went home early due to sickness on three occasions. However, petitioner testified that he had worked beyond his normal working hours many times and he felt that he was entitled to "comp time". There was no evidence to demonstrate that petitioner had not worked extra hours without compensation. In light of petitioner's otherwise unblemished 16-year record with the district and the rather trivial nature of the charges here, dismissal was too harsh a penalty (see, Matter of Harris v. Mechanicville Cent. School Dist., 45 N.Y.2d 279, 285; Matter of Mitthauer v. Patterson, 8 N.Y.2d 37, 42; Matter of Gross v. Mariglio, 149 A.D.2d 922, 923). In our view, the penalty recommended by the Hearing Officer is appropriate under the circumstances presented here.