O'Rourke & Degen, PLLC, New York (Ronald D. Degen of counsel), for petitioner.
John W. McConnell, Office of Court Administration, New York (Shawn Kerby of counsel), for respondent.
Renwick, J.P., Manzanet-Daniels, Gische, Clark, JJ.
Determination of respondent Deputy Chief Administrative Judge for the New York City Courts, dated March 6, 2012, which confirmed the report and recommendation of a Judicial Hearing Officer ("JHO") finding petitioner, a Senior Court Officer, guilty of misconduct and terminating his employment, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR Article 78 (transferred to this Court by order of the Supreme Court, New York County [Joan B. Lobis, J.], entered July 9, 2012), dismissed without costs.
Substantial evidence supports respondent's determination that petitioner engaged in the misconduct alleged (Matter of Nelk v Department of Motor Vehs. of the State of N.Y., 79 A.D.3d 433 [1st Dept 2011]). Petitioner's argument that his conduct was involuntary because it was the result of illnesses, Tourette's Syndrome and obsessive-compulsive disorder, from which he suffers, and therefore does not constitute misconduct is unavailing. The JHO found that petitioner's conduct was only partially attributable to these disorders. To the extent that his conduct was attributable to his illness, the law does not immunize disabled employees from discipline or discharge for incidents of misconduct in the workplace (Hazen v Hill Betts & Nash, LLP, 92 A.D.3d 162, 170-171 [1st Dept 2012], lv denied 19 N.Y.3d 812 ).
Petitioner's claim that, even if the determination is supported by substantial evidence, he is entitled to back pay under the governing agreement, was not presented to or resolved by the agency. Accordingly, petitioner's failure to exhaust his administrative remedies precludes this Court's review of this claim (see Clark v New York City Tr. Auth., 46 A.D.3d 360 [1st Dept2007], lv denied 10 N.Y.3d 706 , cert. denied 555 U.S. 1012 ).
Under the circumstances, the penalty of termination is not "so disproportionate as to be shocking to one's sense of fairness" (Pell v Board of ...