Monday, April 18, 2016

Recent decisions by New York City Office of Administrative Tribunals and Hearings Administrative Law [OATH] Judges

Recent decisions by New York City Office of Administrative Tribunals and Hearings Administrative Law [OATH] Judges

Failure to report to work during a snow emergency
OATH Index No. 106/16

The New York City Department of Corrections filed charges alleging a correction office was absent without leave [AWOL] when the officer failed to report to work “during a snowstorm.” The Department had denied officer’s request for emergency leave, indicating that the officer “had notice of the storm and should have made other travel arrangements.”

The correction officer testified that she did not report to work during a snowstorm because [1] there was a travel ban in place and [2] she could not get her car out of her driveway.

OATH Administrative Law Judge Susan J. Pogoda dismissed AWOL charges against filed against a correction officer. Judge Pogoda ruled that, based on the evidence in the record in this disciplinary action, the Department had failed to failed to prove that the officer’s absence rose to the level of misconduct.

The decision is posted on the Internet at:

Failure to submit to a random drug test
OATH Index No. 806/16

A sanitation worker was charged with misconduct after he failed to submit to a random drug test when ordered to do so.

The worker had “called in sick on the morning of the test” after the testing unit personnel had arrived at his garage. He was then directed to report to the Department of Sanitation's clinic for drug testing that afternoon. He failed to appear at the clinic as directed.

OATH Administrative Law Judge Astrid B. Gloade ruled that the worker had failed to prove that he had been too ill to travel and recommended that the individual be suspended without pay for thirty days.

The decision is posted on the Internet at:

A co-worker’s demeaning behavior towards an employee charged with using expletives and a racial slur deemed sufficient to mitigate the penalty proposed by the appointing authority
OATH Index No. 801/16

The New York City Transit Authority filed disciplinary charges against an employee alleging that he had used expletives and a racial slur towards a co-worker. It sought to have  the penalty of termination from employment imposed if the employee was found guilty of such misconduct.

In the course of an investigation by the Authority’s Office of Equal Employment Opportunity [EEO], and at the disciplinary hearing, the co-worker admitted that he had repeatedly cursed at and used demeaning language towards the employee charged with misconduct.

ALJ Ingrid M. Addison explaining 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 non-existence,” found that in this instance a preponderance of the evidence, including testimony of the co-worker and the investigating EEO officer at the disciplinary hearing, as well as documentary submissions, supported a finding that the employee had, indeed, used the racial slur and expletives.

However, said Judge Addison, the employee’s behavior was the result of his being subjected to a protracted period of insults and demeaning behavior based on his perceived disability and ethnic origin.

Noting that employee had no disciplinary record and was reacting to his co-worker demeaning behavior towards him, ALJ Addison found the the Authority’s request for termination to be disproportionate to the offense, given the circumstances and  recommended the employee be suspended without pay for 20 days, with credit for time served. In light of his 30-days pre-trial suspension. Accordingly, Judge Addison recommended that the Authority “restore” the employee to his job and reimburse him 10 days’ pay.*

The decision is posted on the Internet at:

Employee disciplined after threatening supervisors with physical harm
OATH Index No. 1099/16

OATH ALJ Noel R. Garcia sustained the disciplinary charges filed against an assistant manager [Manager] by the appointing authority that alleged she had made oral threats to two supervisors and had failed to follow a directive “to report directly to the Assistant Personnel Director at the Human Resources Office the day after the alleged [oral] threats were made.”

Manager, after an alleged theft of money from her purse, telephoned two supervisors and threatened physical harm in the course of her demanding to speak to a “higher-up because no one has followed through with her request to be transferred.” Administrative Law Judge Noel Garcia found that there was evidence that in the course of the telephone calls Manager stated that if this did not happen “she would have to get physical,” and “something to the effect of would fists have to fly before anything would happen.”

As both supervisors provided credible testimony consistent with contemporaneous written reports of the incident, Judge Garcia found Manager guilty of making the oral threats. The ALJ, however, dismissed the charge that Manager failed “to follow a directive,” finding that was an apparent miscommunication between a supervisor and manager and Manager did not intend to disregard the order. Judge Garcia explained that he found the relevant instruction given to Manager was “ambiguous” and that Manager “did not willfully refuse to obey” the directive.

Accordingly, Judge Garcia recommended that, under the circumstances, the appointing authority impose a penalty of a 30 day-suspension without pay.

The decision is posted on the Internet at:

* Civil Service Law §75.3 provides that "that the time during which an officer or employee is suspended without pay may be considered as part of the penalty."


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