FILED: JEFFERSON COUNTY CLERK 02/05/2021 12:30 PM INDEX NO.

EF2021-00000293
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/05/2021

STATE OF NEW YORK

SUPREME COURT COUNTY OF JEFFERSON

In the Matter of the Application of,

ERIN GARDNER, VERIFIED PETITION

Petitioner, Index No.:

For a Judgment Pursuant to Article 78 of the

Civil Practice Law and Rules,

-against-
CITY OF WATERTOWN,

Respondent.

Petitioner, ERIN GARDNER, by her attorneys, Gleason, Dunn, Walsh & O’Shea, as and

for her Verified Petition, respectfully alleges as follows upon information and belief:

INTRODUCTION

1. This is a proceeding brought pursuant to Article 78 of the New York Civil Practice

Law and Rules (“CPLR”) challenging the acts of Respondent, the City of Watertown (“City”), in

terminating Petitioner, Erin Gardner (“Gardner” or “Petitioner”). This proceeding seeks to vacate

and annul the City’s Final Determination (“Determination”) to terminate Gardner’s employment,

reinstate her to the position of Superintendent of Parks and Recreation for the City of Watertown

and immediately reinstate her to the payroll with full back pay and benefits.

2. Petitioner asserts that Respondent’s Determination of guilt and its imposed penalty of

termination made by the City’s Manager, Kenneth A. Mix (“Mix”), is based on error of law, is

arbitrary, capricious, an abuse of discretion and not supported by substantial evidence.

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3. In addition, Petitioner asserts that Respondent failed to meet its burden to prove any

of the charges upon which Respondent found her guilty, and that the charges did not state facts upon

which discipline could be based. Based on all of these above-mentioned problems, the penalty of

termination shocks the conscience and should be annulled.

4. Petitioner further asserts that she was terminated as Superintendent of Parks and

Recreation in retaliation for her filing a complaint with the City alleging inappropriate actions by her

immediate supervisor, Richard A. Finn (“Finn”). This retaliatory termination violates New York Civil

Service Law §75-b.

JURISDICTION AND VENUE

5. The New York State Supreme Court is a court of general and original jurisdiction

pursuant to the New York State Constitution, Article 6, §7, and New York Judiciary Law §140-b.

This Court has jurisdiction to determine the claims under Article 78 of the CPLR and Civil Service

Law §75-b herein described.

6. Venue lies in Jefferson County where the Respondent has its offices and where

Respondent’s acts that are being challenged (termination of Petitioner) actually took place.

PARTIES

7. Petitioner, Erin Gardner, was named Superintendent of Parks and Recreation for

the City of Watertown in April 2012. She remained in this position until Respondent terminated

her employment effective November 10, 2020.

8. At all relevant times herein, Petitioner was a “public employee” within the meaning

of that term as defined in Civil Service Law §75-b.

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9. Upon information and belief, Respondent, City of Watertown, is a municipal

corporation and/or political subdivision formed and existing under the laws of the State of New

York with offices located in Watertown, NY.

10. At all relevant times herein, Respondent was a “public employer” within the

meaning of that term as defined in Civil Service Law §75-b.

11. At all relevant times, the City was Petitioner’s employer.

RELEVANT STATUTES

12. Civil Service Law §75(1) provides that:

1. Removal and other disciplinary action. A person described [in this

subdivision herein] shall not be removed or otherwise subjected to any
disciplinary penalty provided in this section except for incompetency or
misconduct shown after a hearing upon stated charges pursuant to this
section.

13. Civil Service Law §75(2) provides in relevant part that:

2. The burden of proving incompetency or misconduct shall be upon

the person alleging the same.

14. Civil Service Law §75-b(2) provides in relevant part that:

3. 2.(a). A public employer shall not dismiss or take other

disciplinary or other adverse personnel action against a public employee
regarding the employee’s employment because the employee discloses to a
governmental body information: (i) regarding a violation of a law, rule or
regulation which violation creates and presents a substantial and specific
danger to the public health or safety; or (ii) which the employee reasonably
believes to be true and reasonably believes constitutes an improper
governmental action…

15. Civil Service Law §75-b(3)(a) provides in relevant part that:

4. 3.(a). Where an employee is subject to dismissal or other

disciplinary action under…section seventy-five of this title…and the
employee reasonably believes dismissal or other disciplinary action would
not have been taken but for the conduct protected under subdivision two of
this section, he or she may assert such a defense before the
designated…hearing officer. The merits of sch defense shall be considered

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or determined as part of the …hearing officer decision of the matter. If

there is a finding that the dismissal or other disciplinary action is based
solely on a violation by the employer of such subdivision, the …hearing
officer shall dismiss or recommend dismissal of the disciplinary proceeding,
as appropriate, and if appropriate, reinstate the employee with back pay….

FACTS

16. Petitioner was employed by the City as Superintendent of Parks and Recreation

since April 2012 (Hearing Transcript [“T.”] 257).1 She never received any discipline of any kind

prior to this 2020 disciplinary proceeding.

17. As Superintendent of Parks and Recreation, Petitioner was a department head

whose job responsibilities included inter alia, reserving facilities, contracting with different people

for events that were being held on the City grounds or in the City facilities, attending City Council

meetings, generating reports, and supervising staff (T. 258).

18. The position of Superintendent of Parks and Recreation is created by and subject to

the protections found in the New York State Civil Service Law.

19. Respondent suspended Petitioner without pay from her position as the

Superintendent of Parks and Recreation on May 27, 2020 when City Manager Mix sent a letter to

Petitioner notifying her of the suspension (Hearing Officer Ex. 2) and served documentation

entitled “Charge and Specifications” (“Charge”) against Petitioner, pursuant to New York State

Civil Service Law §75. Attached hereto as Exhibit “A” is a copy of the May 27, 2020 letter with

Charges and Specifications containing the allegations made against her.

                                                            
1
The City’s record produced on its return will include the hearing transcript and exhibits. References to the transcript
will be referred to as T.___. References to the hearing exhibits will be referred to as Respondent Gardner Ex. __,
Hearing Officer Ex. ___, and City Ex. ___.

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20. The Charge and Specifications allege conduct of insubordination and misconduct

due to Petitioner’s direct contact with City Council members and those outside her chain of

command, as well as her alleged disclosure of her complaint to the media (Id.).

21. Petitioner submitted an Answer to the Charge dated June 5, 2020, and then on June

25, 2020, an Amended Answer containing a Demand for Hearing was filed by Petitioner’s counsel

on her behalf. The Answer and Amended Answer containing the Demand for Hearing are attached

hereto as Exhibit “B” and Exhibit “C”.

22. Petitioner remained employed as the Watertown Superintendent of Parks and

Recreation including being placed on administrative following suspension until she was terminated

on November 10, 2020.

THE EMPLOYEE HANDBOOK

23. Portions of the City of Watertown’s Employee Handbook are relevant to the Charge

and Specifications at issue given that they allege improper contacts and discussions with members

of the City Council. The Employee Handbook is attached hereto as Exhibit “D”.

24. Section 1006 of the Employee Handbook provides in pertinent part:

Policy Statement – Any employee who witnesses or becomes aware of an

inappropriate action, improper financial circumstance, inappropriate use
of City funds or property, safety issue, or other matter that appears to be
improper, should immediately make his or her Department Head or
supervisor, the City Manager, or any City Council member aware of the
issue. When an imminent and serious danger to public health or safety
exists, an employee may see fit to immediately report violations to law
enforcement or other applicable governing body. Even if you are in doubt
about what you witnessed or were made aware of you should report the
matter.

Retaliation – Under Section 75-b of New York State Civil Service Law,
New York State Public Sector Whistleblower Law, an employee, who in
good faith, discloses to a governmental body information regarding a
violation of law, a substantial and specific danger to the public health or
safety, or an improper governmental action which the employee reasonably

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believes to be true, shall be protected from any adverse personnel action

including, but not limited to: termination, disciplinary action, or changes in
compensation. Any City employee or officer who commits or condones any
form of retaliation against anyone who in good faith reports alleged
misconduct will be subject to discipline up to, and including, termination
(Ex. D).

25. Further, Section 1001 of the Employee Handbook provides:

The City Council is committed to assuring effective communications

between the Council and employees. The success of the organization is
dependent upon a set of common interests and goals that are achieved
through teamwork, sharing of ideas, and effective communications of our
short-term and long-term plans. From time to time, information and updates
will be distributed to employees. All employees are encouraged to discuss
this information with their Department Head should there be any questions
(Ex. D).

26. The Provisions of the City’s Employee Handbook gave Petitioner the legally

protected right to contact City Council members to discuss and disclose misconduct by the City

Manager.

27. Despite the protection afforded by the City Employee Handbook, the City’s claim

against Petitioner is that she was prohibited from going outside her “chain of command” and

speaking to Council Members about her supervisor Finn’s inappropriate conduct towards her.

Almost all of the City’s Specifications allege that Petitioner’s “direct contact with a member of

the City Council” constituted either insubordination or misconduct.

PETITIONER’S COMPLAINT2

28. The main focus of the City’s Charge and Specifications against Petitioner stems

from her November 6, 2019 complaint.

                                                            
2
Petitioner’s November 6, 2019 complaint (Respondent Gardner Ex. 2) was sealed at the hearing.

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29. Finn was hired by as the City Manager in and around July 2018 (T. 258-259). As

City Manager, Finn became Petitioner’s direct supervisor (T. 258-259).3

30. On or about September 4, 2019, Petitioner met with Matthew Roy (“Roy”), the City

of Watertown’s Human Resource Manager, to advise him of concerns she was having regarding

the way Finn was treating her (T. 262-263). Despite this actual notice that a claim of discrimination

existed in the workplace, nothing was done to investigate Petitioner’s claims (T. 116, 263).

31. On September 12, 2019, Petitioner once again communicated with Roy about

Finn’s inappropriate conduct and she put her complaint in writing via an email to Roy (Respondent

Gardner Ex. 1). Roy never responded to Petitioner’s email, nor were any of her concerns

investigated (Respondent Gardner Ex. 1; T. 126, 264).

32. On November 6, 2019, Petitioner filed a formal complaint via a “City of Watertown

Discrimination or Harassment Complaint Form” with Roy (Respondent Gardner Ex. 2).4 The

complaint set forth significant allegations regarding Finn’s inappropriate conduct towards her on

multiple occasions. Specifically, Petitioner complained that Finn created a hostile work

environment and engaged in discriminatory behavior (Respondent Gardner Ex. 2). These were the

same concerns that Petitioner had notified Roy about on both September 4, 2020, and September

12, 2020 (Respondent Gardner Ex. 1). Her complaint also advised that several other employees,

mostly females, felt discriminated against (Respondent Gardner Ex. 2).

33. Petitioner had made statements to her longtime friend, Jeffrey Cole (“Cole”),

involving her concerns of the discrimination and hostile work environment that she was suffering

at work (T. 274-275, 277-278, 314). Ultimately, it was Council Member Cody Horbacz

                                                            
3
 Mr. Finn subsequently resigned from this position as City Manager following Petitioner’s complaint.
4
The hearing record does not include evidence establishing the outcome of the subsequent investigation that was
conducted at Roy’s request in response to Petitioner’s complaint. At the hearing, Petitioner’s counsel requested
production of the entire investigation report that had been prepared, which the City has refused to produce.

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(“Horbacz”) and not Petitioner that disclosed information related to her complaint to the media. In

fact, Horbacz agreed to speak to the media and did so out of his own free will (T. 65, 68-69).

UNTIMELY CHARGES

34. Civil Service Law §75(4) provides in relevant part that:

Notwithstanding any other provision of law, no removal or disciplinary

proceeding shall be commenced more than eighteen months after the
occurrence of the alleged incompetency or misconduct complained of and
described in the charges . . . provided, however, that such limitations shall
not apply where the incompetency or misconduct complained of and
described in the charges would, if proved in a Court of appropriate
jurisdiction, constitute a crime.

35. Civil Service Law §75 does not permit the issuance of charges for conduct that

occurred more than 18 months prior to the date of the charges, absent the charges amounting to a

crime.

HEARING

36. Pursuant to Civil Service Law §75(3), a post-suspension hearing to review and

determine Petitioner’s disciplinary charges was held on June 26, 2020 before Respondent’s

designated Hearing Officer, Timothy A. Farley (“Farley”).

37. A factual record was created with exhibits and the sworn witness testimony of six (6)

witnesses, including that of Petitioner who testified on her own behalf. Farley also allowed the parties

to submit closing briefs. 5

38. The record established that the City’s Employee Handbook explicitly allowed for

Petitioner to speak to City Council members and to notify them of Finn’s improper actions (Ex.

D; T. 53-54, 189-191, 245-246, 250, 253-256, 266, 286-287).

                                                            
5
 Mix’s Determination confirmed that he did not consider the parties’ closing briefs. 

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39. The hearing record established that various members of the City Council as well as

the Human Resource Manager testified that Petitioner’s actions were exactly what the Employee

Handbook explicitly encourages and permits (Id.).

40. Witness testimony confirmed at the hearing confirms that Petitioner had a right to

file her complaint against Finn. (T. 56, 140, 202, 247).

41. The record established that the City violated the section of its Employment

Handbook that prohibits retaliation for Petitioner’s permitted conduct (Ex. D).

42. The record established that upon Petitioner’s initial discussions with Roy regarding

her concerns about Finn, Roy failed to advise Petitioner that there was an official City complaint

form that she needed to file (T. 313-314). It also established that it was Councilwoman Lisa

Ruggiero (“Ruggiero”) that advised her about the official complaint form that she needed to file

(T. 266).

43. The record testimony established that Petitioner did not have the intention to

deceive or embarrass Finn, as she did not want to publicize her complaint that she had filed against

him (T. 274-276, 279).

44. The record established that Petitioner’s alleged “disparaging remarks” about Finn

and other employees were not actually disparaging and/or were not confirmed by the testimony of

others (T. 73, 77, 79-80, 278-279, 283, 317).

45. The record did not establish that Petitioner’s alleged actions regarding disparaging

remarks were within the required 18-month period (T. 77, 78)

46. The record established that no other employees other than Petitioner were

disciplined upon speaking to Council Members about complaints they were having in the

workplace (T. 55-56, 70, 189, 193-194, 286-288).

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47. In summary, the record proof established that none of the proven conduct warranted

a penalty of termination, as Respondent’s determination is not based on substantial evidence, was

arbitrary, capricious, an abuse of discretion, and otherwise affected by errors of law.

HEARING OFFICER DECISION

48. On November 4, 2020, Hearing Officer Farley issued a Report setting forth his

recommendations for each of the ten (10) Specifications that were addressed during the hearing.

Farley found that each Specification appeared to turn on the issue of insubordination. A copy of

the Hearing Officer Report is attached hereto as Exhibit “E”.

49. Overall, Farley concluded that decisions proposed by management and not

Petitioner’s claims of discrimination appeared to be the primary reason behind her actions that

resulted in the Charge filed against her.

50. Farley found that Specification 5, which alleged that Petitioner attempted to lay

blame for a leak to the media, did not constitute misconduct. Farley recommended that for the first

three Specifications (1, 2, 3), Petitioner’s employment should be terminated. However, he

concluded that the remaining six Specifications (4, 6, 7, 8, 9, and 10) did not warrant termination,

and he recommended a lesser penalty of either reprimand or demotion (Ex. E).

FINAL DETERMINATION

51. On November 10, 2020, City Manager Mix issued a letter addressed to Petitioner,

which constituted his Final Determination. Mix stated that for the reasons stated in Farley’s Report,

he adopted Farley’s findings that Charge 1, Specifications 1, 2 and 3 were proven, along with his

recommendation of termination for these Specifications. Mix thus terminated Petitioner effective

November 10, 2020. A copy of the letter constituting Mix’s Final Determination is attached hereto

as Exhibit “F”.

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52. Mix acknowledged that Farley did not find that Specification 5 was proven. Mix

admitted that he did not consider the Hearing Officer’s recommendations of suggested discipline

for the other Specifications, which included penalty less than termination (Ex. F).

CITY OF WATERTOWN’S EMPLOYEE HANDBOOK

53. Petitioner challenges the City’s determination to terminate her employment based

on the Hearing Officer’s recommendations, as they were arbitrary, capricious, an abuse of

discretion, and otherwise affected by errors of law.

54. Basing the imposition of discipline on Specifications that alleged insubordination

or misconduct for Petitioner’s direct contact with City Council Members was not supported by the

record evidence.

55. The City’s Employee Handbook allows all City employees to report inappropriate

conduct directly to “any council member” and even encourages such communication (Ex. D). The

hearing testimony of various City Council members including Horbacz, Ruggiero, Mayor and

former Council member Jeffrey Smith, as well as that of Human Resource Manager Roy support

that Petitioner’s actions of direct contact were allowed by the Employee Handbook (T. 53-55, 119,

190-191, 245-246). This testimony is consistent with Petitioner’s own testimony regarding her

understanding of the Handbook (T. 315).

56. Although Farley did acknowledge in his Report the fact that Petitioner’s direct

contact with City Council Members could arguably be allowable pursuant to the Employee

Handbook, he found this fact immaterial (Ex. D).

57. This fact regarding the Employee Handbook is material to the analysis of whether

Petitioner’s actions were proper. The wording of the Employee Handbook itself, together with

witness testimony, demonstrate that Petitioner’s actions in speaking to Council members about

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Finn’s inappropriate conduct was appropriate and even encouraged (Respondent Gardner Ex. 7;

Sec. 1001; T. 53-54, 190-191). As such, the City’s conclusion to terminate Petitioner is not

supported by the record evidence.

58. The recommendation to terminate Petitioner is arbitrary and capricious given that

no other employees, including Council Members, were disciplined in any way for reporting Finn’s

inappropriate conduct (T. 55-56, 70, 189, 193-194, 286-288). Respondent’s termination of

Petitioner was clearly discipline.

59. The recommendation to terminate Petitioner was also affected by error of law in

that Farley disregarded the significance and timing of Petitioner’s repeated verbal and emailed

complaints to Roy about Finn’s creation of a hostile work environment and his discriminatory

actions (Respondent Gardner Ex. 1). Farley improperly stating in his Report that Petitioner had

direct contact with City Council Members, while at the same time she was “declining” to make a

formal complaint with the Human Resource Manager (Ex. E). Farley also improperly stated that

Petitioner failed to file her complaint in accordance with the City’s procedures.

60. What the evidence actually demonstrates is the fact that after Petitioner expressed

her concerns about Finn’s behavior both verbally and via email, Human Resource Manager Roy

failed to advise her that there was an official complaint form that she needed to file (T. 265), and

it was actually Councilwoman Ruggiero who eventually made her aware of the form and how to

fill out the form (T. 266). Roy’s own testimony supports that he expressly offered Petitioner the

opportunity to go outside of her chain of command, and that he would facilitate the complaint

process of her filing her complaint against Finn (T. 95, 118-119, 154). Thus, the City’s imposition

of discipline based on allegations claiming Petitioner improperly went outside her chain of

command is unsupported by the evidence.

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61. The record testimony of Councilman Horbacz established that Petitioner’s alleged

“disparaging” comments were not disparaging but rather expressions of Petitioner’s concerns

about inappropriate behavior, which is consistent with and allowed by the Employee Handbook

(T. 73, 77, 79-80; Respondent Gardner Ex. 7).

62. Petitioner’s actions also did not constitute any intentional insubordination or willful

disobedience. Rather, Petitioner’s actions were specifically authorized by the language of the

City’s Employee Handbook (Respondent Gardner Ex. 7).

PROTECTED FIRST AMENDMENT SPEECH

63. The recommendation and decision to terminate Petitioner was affected by error of

law because she was disciplined for exercising her First Amendment Rights. Petitioner spoke to

her longtime friend Jeffrey Cole in the capacity of a personal friend, and not as the media, about

her various problems regarding Finn’s discrimination against her and his creation of a hostile work

environment (T. 274-275, 277-278, 314). Notably, she declined to speak to the media about these

problems, and the record is devoid of evidence that Petitioner purposely sought to “publicize her

complaint” or sought to embarrass City Manager Finn. She made her statements to Cole as a

private citizen about a matter of public concern, which included the discrimination and harassment

that both she and some of her other co-workers were experiencing. It was an error of law to base

discipline against Petitioner on her action of having expressed protected speech under the First

Amendment of the United States Constitution.

64. Section 803 of Respondent’s policy in the City’s Employee Handbook seeks to

prevent disclosure of information relevant to discrimination and harassment charges. Pursuant to

N.Y. Gen. Obligations Law §5-336, Section 803 is void and unenforceable because it seeks to

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prevent Petitioner’s disclosure of the information related to Finn’s discriminating actions against

her and other employees.

65. The record testimony confirms that it was Councilman Horbacz who ultimately

agreed to speak to the media about Petitioner’s work-related complaint (T. 68-69).

UNTIMELINESS

66. Respondent exceeded its jurisdiction in bringing disciplinary Charge 1,

Specification 4 against Petitioner, as it concerned alleged conduct that occurred beyond the 18-

month statute of limitation pursuant to Civil Service Law §75(4).

67. Specification 4, which alleges that Petitioner’s conversation with City Councilman

Horbacz involved “disparaging remarks’ about other City employees, was untimely. Testimony

supports that the conduct being alleged occurred more than 18 months after the Respondent’s Charge

(T. 77, 78).

68. Hearing Officer Farley’s Report fails to include any discussion as to whether the

Charge and its Specifications are timely pursuant to the 18-month statute of limitations.

69. It was an error of law, arbitrary, capricious, an abuse of discretion for Mix to issue a

determination that failed to dismiss Specification 4 due to its untimeliness in violation of Civil Service

Law §75(4).

DISCRIMINATION COMPLAINT

70. Farley’s conclusion that Petitioner filed her complaint against Finn as part of “an

on-going campaign” to influence Council members regarding Finn’s planned administrative

policies is arbitrary, capricious, an abuse of discretion and unsupported by substantial evidence.

Petitioner had significant and ongoing complaints about Finn’s actions that resulted in

discrimination and a hostile work environment, and she had very valid reasons for filing her

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complaint, regardless of the alleged timing of such filing. Petitioner’s complaint expressed various

reasons for filing a formal complaint against Finn, and any existing policy issues are distinct and

separate from Petitioner’s justified right to file her claim (Respondent Gardner Ex. 2).

EXCESSIVE PENALTY

71. The termination of Petitioner by Respondent was affected by error of law, was

arbitrary and capricious, was made in an irrational manner, constitutes an abuse of discretion in

recommending a penalty of termination for the proven conduct, and is not supported by substantial

evidence.

72. Respondent’s termination of Petitioner also shocks one’s sense of fairness.

Petitioner had been employed by the City since 2012 and had a clean disciplinary record, never

having faced any disciplinary allegations before (T. 258). Respondent’s claims of Petitioner’s

insubordination stem from legitimate concerns that she had and complaints that she made of a

hostile work environment and discrimination in the workplace. These complaints are serious in

nature and should have been given immediate attention. Both Farley’s and Mix’s disregard for the

significance of these issues was clearly error of law.

73. Petitioner had the right to discuss her important complaints about Finn’s conduct

to City Council Members, and even the media if her actions are considered as having done so.

Farley improperly found that Petitioner’s actions were only due to her attempt to derail changes in

the City’s policies and recommended Petitioner’s dismissal for Specifications 1, 2 and 3. The

recommendation is disproportionate to Petitioner’s alleged misconduct and ignores the significant

nature of her complaint against Finn. Respondent’s decision to terminate Petitioner was harsh and

excessive.

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74. Mix on behalf of the City disregarded the Hearing Officer’s recommendations of

lesser penalties for other specifications, including his acknowledgement that he did not consider

Farley’s recommended discipline that included penalties that were less than termination. This

complete disregard shocks the conscience, and Respondent’s termination of Petition should be

annulled.

RETALIATION IN VIOLATION OF CIVIL SERVICE LAW 75-b(2)(a)

75. Petitioner began to experience retaliation from her coworkers after she filed her

formal complaint against the City Manager on November 6, 2019 (T. 149-152, 271-272). As a

result, Petitioner than filed a retaliation complaint with Roy, as well as a separate complaint dated

December 12, 2019, with the New York State Division of Human Rights (“NYSDHR”) (T. 271).6

Roy admitted that he had received the retaliation complaint Petitioner filed with him, and thus the

City had notice of the retaliation complaint.

76. The filing of Petitioner’s November 6, 2019 complaint constitutes “protected

activity” under Civil Service Law §75-b(2)(a).

77. Respondent’s termination of Petitioner from her position as Superintendent of

Parks and Recreation was an “adverse personnel action” within the meaning of that term as defined

in Civil Service Law §75-b.

78. Respondent terminated Petitioner based on her action of filing a discrimination

complaint against her manager.

79. There is a clear nexus between Petitioner’s protected legitimate statements she

made and the City’s adverse employment action of terminating her from her position as

Superintendent of Parks and Recreation.

                                                            
6
 Petitioner’s NYSDHR complaint remains pending. 

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FALURE TO ADMIT EXHIBITS

80. It was error of law for the Hearing Officer not to admit into evidence at the hearing

a copy of Petitioner’s December 12, 2019 New York State Division of Human Rights Employment

Complaint Form filed by Petitioner. It was also error of law for the Hearing Officer not to admit

into evidence at the hearing the City’s response to her Human Rights complaint.7 Both documents

were relevant to the disciplinary matter that was heard by the Hearing Officer, especially given the

fact that Petitioner asserted that Respondent’s act of terminating her employment was retaliation

for her act of filing a complaint against Finn. As such, Farley should not have excluded these

exhibits, which were offered into evidence by Gardner’s counsel.

RELIEF

WHEREFORE, Petitioner respectfully requests an ORDER and/or JUDGMENT pursuant

to Article 78 of the CPLR and/or Civil Service §75-b declaring as follows:

a) Annulling the Final Determination of Respondent dated November 10,

2020, terminating Petitioner;

b) Reinstating Petitioner to her position and title of Superintendent of Parks &

Recreation for the City of Watertown and reinstating her to the payroll;

c) Awarding Petitioner full back pay and other emoluments associated with

the position of Superintendent of Parks & Recreation, retroactive to November 10, 2020, including

all scheduled increases for similarly situated employees;

d) Awarding Petitioner the cost and disbursements associated with this proceeding,

including reasonable attorney’s fees; and

                                                            
 The marking of the exhibits in the hearing transcript does not correspond with the hard-copy exhibits that were
7

admitted.

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FILED: JEFFERSON COUNTY CLERK 02/05/2021 12:30 PM INDEX NO. EF2021-00000293
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/05/2021

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FILED: JEFFERSON COUNTY CLERK 02/05/2021 12:30 PM INDEX NO. EF2021-00000293
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/05/2021

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