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January 23, 2012

Videotape admitted as evidence in a disciplinary hearing alleging fighting on the job

Videotape admitted as evidence in a disciplinary hearing alleging fighting on the job
NYC Dept. of Homeless Services v Murray, OATH Index #2149/11

A dispute at the entrance of a homeless shelter led to disciplinary charges being filed against a New York City Department of Homeless Services employee.

The employee, a special officer who was stationed at the shelter’s security screening checkpoint, got into a physical altercation with her partner, another special officer, in view of clients.

A videotape showed that the officer and her partner exchanging words. The officer threw latex gloves at her partner, who threw a punch at her. The Officer than charged her partner, and had to be restrained by a third officer.

OATH Administrative Law Judge Kevin F. Casey found that the officer’s use of offensive language in front of clients and co-workers was misconduct. He also found the fight to be misconduct because it could have been avoided, but that the provocation did mitigate the penalty he would have otherwise recommended.

Noting that “[f]ighting with a colleague at the workplace is misconduct, even if there is provocation.” ALJ Casey said that “workplace fight between colleagues is misconduct by both employees regardless of who starts the fight, as long as both parties demonstrated a willingness to participate.”

As to a participants claim of “self-defense, self-defense can justify participation in a fight only if the employee had no reasonable means to avoid the altercation said the ALJ.

Judge Casey, sustaining two of the charges filed against the officer, recommended a 30-day suspension without pay as the penalty to be imposed.

The decision is posted on the Internet at:

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