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January 09, 2012

Employee who was arrested and was absent from work for 10 months because he failed to “make bail” terminated for absenteeism

Employee who was arrested and was absent from work for 10 months because he failed to “make bail” terminated for absenteeism
Dep’t of Transportation v. Pierrteeisme (in PDF), OATH Index No. 2112/11 (Oct. 3, 2011), adopted, Comm’r Dec. (Oct. 24, 2011)

A New York City assistant highway repairer was arrested. Unable to make bail, he was absent from work for 10 months.  

The New York City Department of Transportation filed disciplinary charges against the individual, alleging excessive absenteeism and absence without authorization, as well as conduct prejudicial to good order based on the arrest. 

OATH Administrative Law Judge Faye Lewis sustained the absenteeism charges on an incompetence theory, finding that his lengthy absence, with no showing he would return soon, rendered him incompetent to perform the duties of his position. 

Judge Lewis, however, recommended dismissal of the “conduct prejudicial to good order based on the arrest” charge, noting that an arrest, without any evidence of the underlying misconduct, amounts to an accusation only. 

As to the penalty to be imposed based on the employee’s being found guilty of the absenteeism, Judge Lewis recommended the individual be terminated from employment.

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