Introduction of evidence of a finding of guilt in a prior disciplinary action in the course of a disciplinary hearing
OATH Index No. 300/13*
As a general rule, evidence of prior disciplinary action taken against an employee may not be admitted at his or her disciplinary hearing to show that the employee “has a propensity to commit the charged misconduct.”
In this case, where the employee was charged with threatening and assaulting a supervisor, OATH Administrative Law Judge Faye Lewis admitted evidence that the employee had earlier pled guilty to prior charges of time and leave violations for the purpose of impeaching or rebutting the employee’s claim that he his supervisor was “scapegoating” him for “non-existent time and leave issues.”
ALJ Lewis noted that there is an exception to the rule barring the introduction of evidence of “prior disciplinary action” taken against the individual. Such evidence may be may be admitted and considered when  it is offered for a different reason or another purpose;  where prior violations have independent relevance and  the fact-finder is an attorney or a judge trained to consider potentially prejudicial evidence introduced for limited purposes.
Judge Lewis also observed that “four different sets of charges, each with multiple specifications,” were served on the employee. Some of the charges, said the ALJ, were duplicative in that they alleged the same misconduct while citing an alleged violation of a different rule.
Such duplicative pleadings are “confusing and verbose” said the ALJ. The better practice is to plead misconduct as “a single factual allegation, with citation to the agency rules that are alleged to have been violated
* The decision is posted on the Internet at:http://archive.citylaw.org/oath/13_Cases/13-300.pdf