Matter of Aiken v City of New York

Matter of Matter of Aiken v City of New York 2012 NY Slip Op 00824 Decided on February 7, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 7, 2012
Mazzarelli, J.P., Andrias, DeGrasse, Richter, Abdus-Salaam, JJ.
6721 105145/10

[*1]In re Geneva Aiken, Petitioner-Appellant,

v

City of New York, et al., Respondents-Respondents.




Glass Krakower LLP, New York (Bryan D. Glass of counsel),
for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Drake A.
Colley of counsel), for respondents.

Order and judgment (one paper), Supreme Court, New York County (Cynthia S. Kern, J.), entered August 2, 2010, which granted respondents' cross motion to confirm a post-hearing arbitration award finding that petitioner was guilty of three of the specifications charged, and that the Department of Education (DOE) had just cause for terminating her from her position as a tenured secretary, and to dismiss the petition brought pursuant to CPLR article 75 seeking to vacate said award, unanimously affirmed, without costs.

The evidence sufficiently supports the findings that petitioner, a secretary, whose duties included entering data into the DOE computers regarding hours worked by staff had entered hours in the system for herself in excess of the hours she was permitted to work, without authorization; that she did not work the additional hours; and that following her reassignment, she improperly reentered the computer system and changed the fraudulent numbers. There exists no basis for disturbing the credibility determinations of the Hearing Officer (see Lackow v Department of Educ. (or "Board") of City of N.Y., 51 AD3d 563, 568 [1987]).

Petitioner's denial of knowledge of the limit of hours she was permitted to work was refuted by the testimony of the school principal, petitioner's union representative and a letter of August 15, 2007, signed by petitioner. Such testimony and evidence supports the conclusion that petitioner admitted knowing what her proper hours were, as well as admitting that she had not worked the extra hours which she had given herself.

The conclusion that petitioner had not actually worked those hours was further supported by her inability to explain why she had allegedly used two different sets of timecards for the same days with the first set showing her proper working hours and the second set, which was photocopied and not turned over to DOE until the hearing, purporting to show that she worked the extra hours. The Hearing Officer reasonably concluded that petitioner had fabricated the photocopies of the second set of timecards, particularly since no other documents, such as the original timecards or petitioner's own timesheets, supported the photocopies. Moreover, petitioner did not attempt to dispute that, after being terminated, she reentered the DOE computer and changed her number of hours worked to reflect her proper work hours, in an apparent attempt to cover up her wrongdoing. [*2]

The penalty of termination was in accord with due process and was justified by petitioner's actions, particularly where petitioner refused to accept any responsibility for her actions and asserted her innocence in the face of the overwhelming evidence to the contrary (see Matter of Hegarty v Board of Educ. of City of N.Y., 5 AD3d 771 [2004]; see also Matter of Chaplin v New York City Dept. of Educ., 48 AD3d 226 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 7, 2012

CLERK