Wednesday, March 11, 2015

Summaries of recent decisions posted on the Internet by the New York City Office of Administrative Trials and Hearings [OATH]

Summaries of recent decisions posted on the Internet by the New York City Office of Administrative Trials and Hearings [OATH]
Source: NYC Office of Administrative Trials and Hearings
Click on text highlighted in color to access the text of the decision.

Employee alleged to have engaged in plagiarism

Computer systems manager who was assigned the task of developing a technical design document for the agency's new training application, was charged with plagiarism after he submitted a template which he had downloaded from the Internet and modified in part. ALJ Ingrid M. Addison recommended dismissal of the charge. Evidence showed that the manager's work was not in final form, he did not conceal that he was using a template, and the use of templates were not forbidden by petitioner's rules. Testimony suggested that downloading templates was common practice in the industry. ALJ Addison also recommended dismissal of the charge that respondent was incompetent because he failed to meet project deadlines. The ALJ found that the delay was caused by other factors not created by the manager. Charges that the manager was paid for work not performed and was excessively absent were also not proven.  

Employee charged with creating a hostile environment by repeatedly wearing an offensive t-shirt at work
Fire Dep't v. Buttaro, OATH Index No. 2430/14

Firefighter was charged with creating a hostile environment by repeatedly wearing an offensive t-shirt at the firehouse, while on and off-duty, instead of Department-issued attire. ALJ Alessandra F. Zorgniotti found that petitioner established the charge and the additional charge that the firefighter disobeyed orders to wear only authorized clothing in the firehouse. The Department showed that the potential workplace disruption caused by the firefighter's conduct outweighed the firefighter's First Amendment right to wear non-Department issued t-shirts in the firehouse. Termination of employment was recommended and imposed.  Fire Dep't v. Buttaro, OATH Index No. 2430/14

Testing positive for alcohol during random test
Dep't of Transportation v. Anonymous, OATH Index No. 147/15.

Ship carpenter was charged with testing positive for alcohol during random test administered under federal regulations. ALJ Addison rejected carpenter's claims that he was not randomly selected or that the technician who performed the test did not comply with federal regulations or that the positive result was caused by acid reflux. Termination of employment was recommended.  

Employee alleged to be mentally unfit to perform his job

Petitioner alleged that an environmental police officer was mentally unfit to perform his job under Civil Service Law Section 72, subjected the officer to examinations by psychiatrists employed by the Police Department who found him mentally unfit, and placed him on an immediate leave of absence, following an incident in which the officer engaged in a religious practice known as "speaking in tongues" in the workplace. ALJ Tynia D. Richard granted respondent's motion to dismiss the proceeding, finding petitioner failed to comply with statutory requirements and the officer was not afforded due process. Written notice that should have been provided to the employee to advise him of the facts that gave rise to the Department's belief that he was unfit and of its intent to place him on a Section 72 medical leave was untimely, occurring five months after psychological testing commenced; the exams were not conducted by doctors designated by the Citywide Administrative Services as required by statute; and an involuntary leave was imposed prior to hearing without probable cause to believe that the officer's presence at the job would present a danger or severely interfere with operations.   

N.B. OATH Index No. 321/15 decision rejected and remanded, Commissioner ruled that Section 72 procedures were inapplicable because the purpose of the exams was not to evaluate the officer for a leave of absence and remanded the case to the ALJ for a recommendation regarding the officer's mental fitness.

Submission of a fraudulent medical note alleged
Human Resources Admin. v. Lopez, OATH Index No. 496/15

ALJ Kara J. Miller found that a job opportunity specialist submitted a fraudulent medical note and was absent without authorization for two weeks. After the employee's request for summer vacation had been denied in part, he failed to report to work for two weeks and then submitted a medical note requesting that his absence be excused for the entire period due to poison ivy. Noting irregularities in the note, petitioner checked with medical office employees, who indicated that the note was valid for only one day excusal. Termination of employment recommended.  

Positive drug test
Dep't of Sanitation v. Petosa, OATH Index No. 758/15

ALJ Richard recommended dismissal of a disciplinary charge based upon sanitation worker's positive drug test, where worker had admitted his drug problem and sought in good faith to obtain rehabilitation. The positive test occurred after worker had voluntarily entered a drug and alcohol rehabilitation facility, and he was referred to the Department's Employee Assistance Unit for testing and monitoring. He was told that he would have to take a drug test to establish a baseline level of usage and he would not be punished for a positive test.  

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at

Challenging Adverse Personnel Decisions at

The Disability Benefits E-book: at

Layoff, Preferred Lists at


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