In Minckler v Sullivan County, No. 535390, 2023 N.Y. Slip Op. 02729, 2023 WL 3510841 (N.Y.A.D. 3d Dept. May 18, 2023), the court upheld a determination by the Sheriff of Sullivan County terminating the employment of the petitioner, a jail division deputy sheriff/sergeant due to alleged sexual harassment.
From the decision:
The disciplinary hearing consisted of the testimony of four witnesses – two female deputies, the County’s Commissioner of Human Resources and the County’s undersheriff; the receipt of 13 exhibits offered by respondents including the statement of charges, the County’s employee handbook, the County’s sexual harassment policy, the Sheriff’s Office’s Rules and Regulations; and 15 character letters offered by petitioner. The first deputy’s testimony included her account of an incident outside of the workplace wherein petitioner, who appeared intoxicated and was armed, grabbed her breast in an effort to, as he explained, “see if they were real.” He further stated that he “wasn’t getting any at home and had to look somewhere else.” She further testified that petitioner threatened her at the workplace, stating, “I’ll shoot your dogs and take what I want from you.” A second deputy testified that petitioner put his hand into her hip pocket and reached up toward her vagina, and, on another occasion, forcefully attempted to pull her onto his lap, hurting her wrist in the process. She testified to a third occasion when petitioner, after seeing her in civilian clothing told her, “if you keep dressing like that, I’m going to have you sit on my face.” She also stated that she kept an account of petitioner’s offensive comments and actions in a calendar that she kept in her coat, but that the pages concerning petitioner had been removed by someone after she left her coat at work. Both deputies testified that they avoided petitioner and did not report the incidents for many years because they were afraid of retaliation and retribution from petitioner. Although petitioner asserts that the credibility determinations made by the Hearing Officer and the Sheriff were flawed, credibility determinations are within the province of the Hearing Officer and are entitled to deference (see Matter of Shanahan v. Justice Ctr. for the Protection of People With Special Needs, 198 A.D.3d 1157, 1160, 157 N.Y.S.3d 121 [3d Dept. 2021]; Matter of Nygard v. County of Warren, 79 A.D.3d 1354, 1356, 913 N.Y.S.2d 389 [3d Dept. 2010]). Accordingly, substantial evidence supports each of the charges for which petitioner was ultimately found guilty
Petitioner’s challenge to the penalty of termination of his employment as excessive is unavailing. “In evaluating whether the penalty imposed is excessive, this Court must consider whether, in light of all the relevant circumstances, the penalty is so disproportionate to the charged offenses as to shock one’s sense of fairness” (Matter of Scuderi–Hunter v. County of Delaware, 202 A.D.3d at 1317, 163 N.Y.S.3d 664 [internal quotation marks, brackets and citations omitted]). We recognize that petitioner worked for respondents for nearly 25 years with no prior disciplinary issues and that he submitted 15 letters by individuals acclaiming their belief in his good character. However, “sexual harassment in the work[ ]place is among the most offensive and demeaning torments an employee can undergo” (Matter of Oare v. Coughlin, 133 A.D.2d 943, 946, 520 N.Y.S.2d 658 [3d Dept. 1987] [internal quotation marks, brackets and citation omitted], lv denied 70 N.Y.2d 615, 526 N.Y.S.2d 436, 521 N.E.2d 443 ). Given that the record establishes numerous incidents of sexual harassment by petitioner, “we cannot conclude that the penalty of termination was so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness. [Cleaned up.]
The court, accordingly, confirmed the determination dismissing petitioner’s Article 78 petition seeking annulment of the determination.