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July 13, 2012

Failure to perform found to result from incompetence rather than misconduct


Failure to perform found to result from incompetence rather than misconduct
Transit Auth. v. Wong, OATH Index No. 1866/08

In a disciplinary proceeding, a computer specialist was charged with both incompetence and misconduct. ALJ Kara Miller sustained the incompetence charge, finding that the respondent had overstated his qualifications and experience on his resume and lacked the requisite skill set to perform his job functions.

The ALJ, however, dismissed the three misconduct charges, finding that as to the first, the respondent was not given a clear and unambiguous order that he violated; as to the second, the Department relied on hearsay that was so attenuated as to have no value at all in order to establish the charge; and as to the third, the respondent's failure to perform an assignment was a reflection of his incompetence rather than misconduct.

ALJ Miller recommended demotion.

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