Employee's dismissal for "excessive absenteeism" failed to survive judicial scrutiny where such absences were authorized by the employer and properly documented Matter of Iarocci v Incorporated Vil. of W. Haverstraw, 2011 NY Slip Op 50794(U), Supreme Court, Rockland County, Judge Alfred J. Weiner [Not selected for publication in the Official Reports.] Michael Iarocci was served with disciplinary charges pursuant to §75 Civil Service. He was found guilty a pattern of excessive absences over an 18-month period.* Iarocci contended that his absences were all for valid reasons and that his termination was contrary to law and was arbitrary and capricious. The Village, on the other hand, argued that Iarocci's "excessive absences" made him unreliable and, therefore, incompetent to perform his duties. The §75 Hearing Officer found there was "…substantial evidence to support the charge of incompetence based upon [Iarocci's] excessive absences but that [his] absences did not affect the morale of the department to the extent that it was … asserted in conclusory fashion by the witnesses who testified." The Hearing Officer recommended that Iarocci be suspended for a period of 90 days without pay and that upon his return placed on disciplinary probationary for an appropriate period of time. West Haverstraw accepted the findings of the Hearing Officer but imposed the penalty of dismissal. Iarocci appealed that Judge Weiner said that the issue before him was whether the penalty of termination was "so disproportionate as to shock one's sense of fairness?" Citing Matter of Featherstone v. Franco, 95 NY2d 550, Judge Weiner said that "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." Further, the court observed, in Pell v Board of Education, 34 NY2d 222, the Court of Appeals set out the standard for determining the appropriate penalty is whether the punishment imposed is "…so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness." Judge Weiner then set out a number of decision in which courts have upheld the termination of a public employee found guilty of "excessive absence" including McKinnon v. Board of Educ. of North Bellmore Union Free School Dist. 273 AD2d 240, Alston v. Morgan 245 AD2d 287, and Romano v. Town Bd. of Town of Colonie, 200 AD2d 934. Here, however, the record indicated that Iarocci had received authorization from his employer for his absences, followed the appropriate call-in procedures and obtained appropriate medical documentation when necessary. Further, the court found that he was never warned about his excessive absences or charged with insubordination or other misconduct. Other mitigating circumstances considered by Judge Weiner included Iarocci employment for ten years and no prior disciplinary problems; his frequent absences commenced only began after he had gallbladder surgery and later suffered an employment related back injury; and his promotion from Motor Equipment Operator I to Motor Equipment Operator II by West Haverstraw. Distinguishing Iarocci's situation from the facts underlying the several cases in which termination has been imposed for excessive absenteeism, Judge Weiner noted that "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, [following] progressive discipline and other incidents of poor performance at work." Rulling that penalty of termination imposed upon Iarocci by West Haverstraw was "disproportionate to the offense charged …" Judge Weiner said that the Town "should have given due weight to mitigating factors when deciding the appropriate penalty to impose." Annulling the penalty of dismissal, Judge Weiner remanded the matter to the Village Board "for the imposition of a penalty other than termination." The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_50794.htm
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