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October 21, 2015

After recommending the termination of the employee the Hearing Officer urges the appointing authority to consider imposing a penalty less drastic than termination


After recommending the termination of the employee the Hearing Officer urges the appointing authority to consider imposing a penalty less drastic than termination
Department of Sanitation v Anonymous, OATH Index No. 1853/15

A New York City sanitation worker admitted that he refused to submit to a drug test. As The worker had tested positive in 2003 and again in 2004, but did not violate the policy again until 2014.  However, as this was the worker's third violation, the Department asked that the penalty to be imposed be termination from service.

At the penalty hearing, the individual testified and presented testimony from a supervisor and the director of the Employment Assistance Unit [EAU]. Significantly, the director of EAU recommended that the worker remain with the Department under EAU observation, given the long gap between the second and third violations.

Although OATH Administrative Law Judge Faye Lewis recommended termination of employment, she urged the Department to agree to a less drastic penalty requiring drug and alcohol testing for the rest of the worker's career, explaining that she had found the sanitation worker's testimony to be sincere and the opinion of the EAU head to be worthy of considerable weight.

In the words of the ALJ, “… the charge is sustained. Considering the options available under the Administrative Code, I recommend termination of respondent’s employment. However, based upon the mitigating evidence presented at trial, I urge the Department to consider an alternative penalty involving a period of suspension, substance abuse testing for the duration of respondent’s employment with the Department, compliance with EAU treatment referrals, and any other conditions the Department feels are appropriate.

The decision is posted on the Internet at:

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