Tuesday, July 07, 2015

Recent decisions by New York City’s Office of Administrative Tribunals and Hearings Administrative Law Judges


Recent decisions by New York City’s Office of Administrative Tribunals and Hearings Administrative Law Judges
The material highlighted inblue links to the full text of the decision

Absence on Family Medical Leave - In 2008 respondent was granted leave under the Family Medical Leave Act (FMLA) and was instructed to provide a certificate of clearance from his doctor before returning to duty. After his leave was exhausted, respondent failed to return to work. He was charged with being AWOL and was demoted without a hearing. Respondent subsequently reported to work in 2009 and presented medical documentation that he was fit to return to work. Respondent was advised that he was not cleared for duty and that the agency would get back to him. Five years later, the agency charged respondent with being AWOL between 2009 and 2014. Administrative Law Judge Alessandra F. Zorgniotti found that the agency did not prove the charges because respondent made several attempts to return to work and that the agency left his employment status in an indeterminate state.   DOITT v. Anonymous, OATH Index No. 051/15.

Off-duty assault - Respondent, a civilian employee working as a cement mason in a City jail, was charged with misconduct for two alleged off-duty assaults. Respondent presented testimony from his therapist showing that he suffers from bipolar disorder, and he has taken substantial steps to keep his disorder under control with medication and therapy. Administrative Law Judge [ALJ]. Kevin F. Casey found that only one of the assaults was proven. ALJ Casey found that termination of employment would be excessive, since misconduct was attributable to respondent's disability. He recommended a 45-day suspension without pay, with credit for time served.   Dep't of Correction v. A.A., OATH Index No. 2757/14.

Use of excessive force by a correction officer -  A correction officer was charged with using excessive force against an inmate on two occasions. Administrative Law Judge John B. Spooner found that one set of charges was barred by the 18-month statute of limitations in the Civil Service Law. Regarding the second set of charges, which were timely, the Department proved that the officer hit an inmate in the head, while escorting him on a gurney, and had submitted a false report denying that he had used force. The recommended penalty was a forty-day suspension without pay.   Dep't of Correction v. Arias, OATH Index No. 920/15, [adopted.] 

Making a false statement - A correction officer was charged with failing to comply with the Department's undue familiarity rules and making false statements. Respondent notified the Department that a "family member" was housed in a City jail and that she would be posting his bail and sending mail and money to him. The inmate was later transferred to a state prison and, for a year, respondent failed to notify the Department that she would have similar contact with the inmate while he was in the state facility. At trial respondent acknowledged that the inmate is her significant other with whom she had lived with for more than seven years. Administrative Law Judge [ALJ] Tynia D. Richard recommended that false statement charges be sustained but the undue familiarity charges be dismissed. The ALJ found that respondent provided sufficient notification to comply with the undue familiarity rules, and her identification of the inmate as a "family member" was not misleading since Department rules do not require a more detailed description. The ALJ recommended a penalty of 15-day suspension for false statements.   Dep't of Correction v. Caldwell, OATH Index No. 2702/14.

Throwing an object at a co-worker - An employee was charged with raising her voice to a co-worker stating "you messed up" and "I am tired of this", and throwing a binder clip at the co-worker. The employee admitted that she had raised her voice and that she threw the binder clip in the co-workers' direction, but did not mean to hit her with the clip. Administrative Law Judge [ALJ] Kara J. Miller found the employee's testimony to be credible and ruled that she could only be disciplined for throwing the binder clip in the co-workers' direction. Statements made during the argument did not constitute misconduct as it was not shown that the disagreement, which was brief, disrupted the office. ALJ Miller recommended a five-day suspension, with credit for time served in pre-hearing suspension.   Dep't of Education v. Collins-Jackson, OATH Index No. 832/15. 

Videotape evidence - Administrative Law Judge [ALJ] Faye Lewis found that a correction officer used unnecessary and excessive force against an inmate. Videotape evidence, documentary proof of the inmate's head injuries and testimony from an officer who witnessed the incident, proved that the officer struck the inmate in the head without provocation and stomped the inmate's head two times while he was lying on the floor. Respondent's claim that he used force because he reasonably believed that the inmate had a weapon and he feared for his life, was not supported by any evidence other than respondent's testimony, which ALJ Lewis found to be incredible. Termination of employment was recommended.   Dep't of Correction v. Victor, OATH Index No. 388/15, [adopted,]

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/

Challenging Adverse Personnel Decisions 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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