December 28, 1998
Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.
It is well established that in order to annul an administrative determination, made after a hearing, the court must be satisfied, after reviewing the record as a whole, that the record lacks substantial evidence to support the determination ( see, Matter of Lahey v. Kelly, 71 N.Y.2d 135, 140). Substantial evidence has been defined as "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" ( 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176, 180). Thus, it is more than a mere surmise, conjecture, or speculation, but less than a preponderance of the evidence ( see, 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, supra, at 180-181).
It is also well settled that an administrative decision made after a hearing is given great weight because: (1) the Hearing Officer's assessment of credibility is based on observing the demeanor of the witnesses ( see, Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443-444); and (2) in matters involving internal discipline, the administrative agency is assumed to possess a "special proficiency and experience" ( Matter of Ahsaf v. Nyquist, 37 N.Y.2d 182, 184). In this case, there was substantial evidence of the petitioner's guilt of the charges against her and we discern no reason to disturb the findings.
Further, the petitioner claims that her termination from employment violates Executive Law § 296 which prohibits discrimination in employment based on disability. The petitioner argues that the conduct which resulted in the charges which were brought against her was caused by her alcoholism.
To establish a prima facie case of discrimination under Executive Law § 296, a petitioner must show that he or she "suffers from a disability and the disability caused the behavior for which the individual was terminated" ( Matter of McEniry v. Landi, 84 N.Y.2d 554, 558). "Once a prima facie case is established, the burden of proof shifts to the employer to demonstrate that the disability prevented the employee from performing the duties of the job in a reasonable manner or that the employee's termination was motivated by a legitimate nondiscriminatory reason" ( Matter of McEniry v. Landi, supra, at 558). The relevant time for assessing whether the employee is capable of performing the duties of the job is when he or she is actually terminated, rather than when the misconduct which formed the stated basis for the dismissal occurred ( see, Matter of McEniry v. Landi, supra, at 560). Under the circumstances of this case, while the petitioner established a prima facie case of discrimination based on her alcoholism, the respondents established by substantial evidence that the petitioner's termination was motivated by a legitimate nondiscriminatory reason ( see, Matter of McEniry v. Landi, supra, at 558).
The punishment of dismissal is not so disproportionate to the misconduct charged as to be shocking to one's sense of fairness ( see, Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 234).
The petitioner's remaining contentions are without merit.
Miller, J. P., Ritter, Sullivan and Pizzuto, JJ., concur.