In a disciplinary hearing the employer bears the burden of proving the charges filed against an employee by a preponderance of the credible evidence
OATH Index No. 789/14
A New York City correction officer was charged with leaving her residence while on sick leave without permission and without having logged out with the employer's Health Management Division.
The City’s Department of Corrections alleged that an Absence Control Investigator had visited the employee's home during her sick leave, telephoned her five times, knocked on the door of Apartment 2I, the apartment number listed in the Department’s records, twenty times and “slipped a notice” under the door of that apartment.
In rebuttal, the employee provided evidence and testimony that she had never left her apartment and that the Absence Control Investigator had never entered her apartment building that day.
Further, the employee testified that she lived Apartment 2L and also testified that she had provided her employer with the correct information as to her residence, i.e., Apartment 2L. In addition, the ALJ, noted that the record shows the only other apartment on the floor was Apartment 2R.
OATH Administrative Law Judge Kara J. Miller found the employee’s testimony to be more credible than the testimony of the employer’s witness.
Noting that in a disciplinary proceeding, the employer bears the burden of proof by a preponderance of the credible evidence and that a preponderance has been defined as the burden of persuading “the trier of fact to believe that the existence of a fact is more probable than its nonexistence,” Judge Miller recommended that the charge brought against the employee be dismissed..