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Thursday, November 13, 2014

Deleting e-mails sent by the supervisor


Deleting e-mails sent by the supervisor
OATH Index No. 2553/14

The appointing authority filed disciplinary charges against an employee charging the individual with having deleted 27 of the 29 of the e-mails sent by her supervisor without having read them and disobeying an order not to delete e-mails transmitted by the supervisor.

Testimony presented at the hearing included a statement by the employee’s supervisor that he had “received via e-mail notices that [the employee] had deleted without reading … e-mails on which he had copied [the individual].

OATH Administrative Law Judge Astrid B. Gloade found that misconduct was not proven and recommended dismissal of the charges as the evidence in the record did not establish that the employee was given an order to retain the e-mails. Further, explained the ALJ, the appointing authority “failed to prove that even if [the employee] had deleted the e-mails it would have constituted misconduct. Misconduct may be premised on carelessness or negligence, as well as willful or intentional conduct.”

In the words of the Administrative Law Judge: “I find that [the employer] failed to establish by a preponderance of the evidence that [employee] committed misconduct and recommend that the charges be dismissed.”

Among Judge Gloade's finding: 27 of the 29 of the emails were deleted on a Sunday morning and that the appointing authority failed to present any evidence that the employee was at work, or had remotely accessed her e-mail account, at that time.

The decision is posted on the Internet at:
http://archive.citylaw.org/wp-content/uploads/sites/17/oath/14_Cases/14-2553.pdf
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Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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