| Matter of Sindoni v County of Tioga |
| 2009 NY Slip Op 08126 [67 AD3d 1183] |
| November 12, 2009 |
| Appellate Division, Third Department |
| In the Matter of Penny Sindoni, Petitioner, v County of Tioga et al.,Respondents. |
—[*1] Hogan, Sarzynski, Lynch, Surowka & DeWind, L.L.P., Johnson City (Edward J. Sarzynskiof counsel), for respondents.
Stein, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of theSupreme Court, entered in Tioga County) to review a determination of respondent County ofTioga which terminated petitioner's employment.
Petitioner, a senior typist for respondent County of Tioga (hereinafter respondent), wassuspended and charged with misconduct and incompetence in accordance with Civil ServiceLaw § 75. The charges against petitioner included creating a "hostile, intimidating,disruptive, uncomfortable or some or all of the above, work environment" and her allegedviolation of respondent's Policy 53,[FN*]all [*2]allegedly stemming from her animosity towards anotheremployee (hereinafter the coworker), and the formation of a club known as the "I Hate TeenaClub," referring to the coworker. Following a hearing pursuant to Civil Service Law § 75,a Hearing Officer found that petitioner was a central player in the "I Hate Teena Club," wore aribbon to demonstrate membership in this club and made threatening and intimidating commentsto other coworkers who informed the administration of the existence of such club. Upon theHearing Officer's recommendation, respondent terminated petitioner's employment. Petitionerthen commenced this proceeding in Supreme Court, seeking reinstatement to her position, andthe proceeding was transferred to this Court pursuant to CPLR 7804.
In our view, the Hearing Officer's findings with regard to the six specifications of whichpetitioner was found guilty were supported by substantial evidence. The first specificationalleges that petitioner and the coworker were engaged in a "loud verbal exchange" that wasdisruptive to the work place. Despite petitioner's allegations that the altercation was not her fault,petitioner admitted that she had participated in such an exchange. Petitioner also admitted thefactual allegations of other charges, such as keeping a calendar of the coworker's late arrivalsand early departures from work, being a member of a group that became known as the "I HateTeena Club" and wearing a ribbon. While petitioner claims that she wore the ribbon merely toshow her support of two colleagues who were supervised by the coworker and that she neverasked anyone to join the group, other witnesses testified that it was well known that the ribbonsymbolized membership in the "I Hate Teena Club," that petitioner was aware of therepresentation and that she attempted to recruit others to join. There is also record evidence thatpetitioner solicited assistance in monitoring the coworker's activities.
The two most serious charges of misconduct involved allegations that petitioner had madethreatening comments to certain coworkers. These individuals testified that they were concernedabout their physical safety and the safety of their personal property as a result of speaking outagainst petitioner. Other employees testified that petitioner was known to be vindictive and hadmade threats of retaliation if anyone spoke out.
Although there is evidence that could support a different result from that reached by theHearing Officer, this Court may not substitute its own judgment for that of the Hearing Officerand, to the extent that conflicting versions of the dispute exist, we defer to the Hearing Officer'scredibility determinations (see Matter ofLongton v Village of Corinth, 57 AD3d 1273, 1274 [2008], lv denied 13 NY3d709 [2009]; Matter of Clarke vCleveland, 53 AD3d 894, 896 [2008]; Matter of Peters v County of Rensselaer, 28 AD3d 854, 854[2006]; Matter of Rounds v Town ofVestal, 15 AD3d 819, 822 [2005]). Our review of the record reveals sufficient evidenceof petitioner's misconduct to support the Hearing Officer's determination sustaining the relevantcharges against her (see CPLR 7803 [4]; Matter of Mapp v Burnham, 8 NY3d 999, 1000 [2007]; Matter of Perryman v Village of SaranacLake, 64 AD3d 830, 833-834 [2009]).
Nor do we find merit to petitioner's argument that the penalty of termination was excessive.A penalty will be disturbed only if it is "so disproportionate as to be shocking to one's sense offairness" (Matter of Collins v Parishville-Hopkinton Cent. School Dist., 274 AD2d 732,734, [2000]; see Matter of Bottari vSaratoga Springs City School Dist., 3 AD3d 832, 833 [2004]; accord Matter ofLongton v Village of Corinth, 57 AD3d at 1275). Here, the Hearing Officer specificallydistinguished [*3]petitioner from the other participants in theactivities constituting the misconduct and recommended petitioner's dismissal, in part, becauseshe was "the only employee who made threats to the person or property of others." The HearingOfficer also determined that petitioner was the main player in the hate club and noted that shehad not expressed any remorse regarding her conduct. Irrespective of her "excellent" workrecord and 11 years of service, "petitioner's poor judgment and lack of remorse, the disturbingnature of her comments . . . and [respondent's] strict policy concerns regardingthreats of violence" warrant her termination (Matter of Bottari v Saratoga Springs CitySchool Dist., 3 AD3d at 833; seeMatter of Wagner v Roth, 9 AD3d 583, 585 [2004]).
Rose, J.P., McCarthy and Garry, JJ., concur. Adjudged, that the determination is confirmed,without costs, and petition dismissed.
Footnote *: Policy 53 requires allemployees to "maintain a work environment free from violence, threats of harassment,intimidation or coercion," as well as disruption. It also prohibits "[a]ny verbal or physicalconduct that has the purpose or effect of substantially interfering with the employee's ability todo his or her job."