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ALTHOUGH SUBSTANTIAL EVIDENCE SUPPORTED DISCIPLINARY FINDINGS AGAINST PETITIONER, A SCHOOL BUS DRIVER WHO SLAPPED AN UNRULY STUDENT, TERMINATION WAS TOO SEVERE A PENALTY, TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department determined substantial evidence supported the guilty findings on three disciplinary charges against petitioner, a driver of a school bus for special needs children. Petitioner had slapped a nine-year-old student who had become unruly. However, the majority determined the termination of the petitioner, a long-time employee with an unblemished record, was too severe a penalty. The two dissenters argued termination was appropriate:

… [I]n light of petitioner’s otherwise unblemished disciplinary record during her 20 years as a school bus driver, including five years driving special needs students, we conclude that termination, absent any other previous progressive disciplinary steps, is so disproportionate to the offense committed as to shock one’s sense of fairness  … . Although we are mindful of our limited role in evaluating the discipline imposed here … , we nevertheless conclude that the circumstances of this unfortunate occurrence, viewed in the specific context of petitioner’s background, establish that the harsh penalty of termination was disproportionate and shocking to our sense of fairness. Petitioner was confronted by a student who, due to his special needs, lost control of his behavior and was significantly disrupting the other students on the bus, some of whom were also struggling to behave. Petitioner’s was not premeditated and, under these circumstances, appears to be the result of a momentary lapse of judgment. There is nothing in petitioner’s employment history to suggest that she will ever engage in similar conduct again.

Although termination in these circumstances shocks our sense of fairness, we do not condone petitioner’s behavior, and only conclude that some form of discipline short of termination would be appropriate. We therefore modify the determination by granting the petition in part and vacating the penalty imposed, and we remit the matter to respondent for the imposition of an appropriate penalty less severe than termination … . Matter of Ansley v Jamesville-DeWitt Cent. Sch. Dist., 2019 NY Slip Op 05439, Fourth Dept 7-5-19

 

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