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August 20, 2010

Burden of proof of the charges of alleged misconduct never shifts to the individual served with disciplinary charges

Burden of proof of the charges of alleged misconduct never shifts to the individual served with disciplinary charges
NYC Department of Sanitation v Torrence, OATH Index #2015/10

Leo Torrence, a New York Department of Sanitation, worker was required to possess a valid commercial driver's license. His commercial driver’s license was suspended for over one year while he was on a long-term line-of-duty injury leave.

The Department charged Torrence with violating its rule that all required licenses must be kept valid at all times based on its General Order 2008-14 which provides that a disciplinary complaint will be filed if, after ten calendar days from the date of notification that an individual’s license has been suspended, the employee “fails to restore it.”

Although Torrence testified that he was unaware that his license had been suspended while he was on leave and did not learn of the suspension until he applied to have it renewed, Sanitation contended that it is not required to prove that Torrence had received notice of the suspension his license to sustain the charges it had filed against him.

Rather, argued the Department, Torrence was required to prove that he did not receive any notice from Motor Vehicles that his license was suspended to rebut the charge. In other words, Sanitation contended that Torrence had the burden of "proving a negative."

Oath Administrative Law Judge Faye Lewis disagreed, ruling that placing the burden of proof on Torrence in this instance would impermissibly shift the burden of proof in the disciplinary action to the accused in contrast to its being the burden of the charging party. Lewis said that Sanitation was required to show that Torrence had received appropriate notice from Motor Vehicles that his license was suspended and then did nothing within the time permitted to renew it.

Simply stated, the burden is always on the employer to prove the allegations set out in the disciplinary charges filed against the employee.

ALJ Lewis also rejected the Department’s argument that the valid license requirement is a strict liability rule as contrary to the basic precept that a finding of misconduct requires some showing of fault by the employee.

Lewis recommended that the charges filed against Torrence be dismissed.

The text of the decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2515.pdf

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