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November 30, 2017

Appointing authority imposed a more severe penalty than the one recommended by the hearing officer



Appointing authority imposed a more severe penalty than the one recommended by the hearing officer
OATH Index No. 2230/17

The employer alleged that the employee was absent without leave [AWOL] for two weeks, that the employee falsely attributed her absences to pre-approved leave granted under the Family Medical Leave Act ("FMLA"), that the individual  failed to supervise her subordinates and that the employee failed to attend a mandatory training class.

New York City Office of Administrative Trials and Hearings Administrative Law Judge Alessandra F. Zorgniotti recommended dismissal of the AWOL and falsification of leave charges in part, explaining that the employer had failed to show that the employee was AWOL or that she falsely attributed her absences to FMLA for the first week of her absence. The ALJ found that the record supported the employee's claim that her supervisor had approved her request for leave without pay and that that leave was supported by a valid doctor's note.

In contrast, Judge Zorgniotti found that the employer did prove the charges with respect to the second week of the employee's absence. In addition, Judge Zogniotti sustained the charges filed against the employee alleging that she failed to supervise her subordinates and that she had failed to attend the mandatory training class.

The ALJ recommended that the employee be given a penalty of a 60-day suspension without pay. The appointing authority, however, sustained all charges filed against the individual and terminated the individual's employment.

In Gradel v Sullivan Co. Public Works, 257 A.D.2d 972, the Appellate Division sustained the appointing authority's imposing a greater penalty that the one recommended by the hearing officer, explaining that there was ample evidence in the record to support the appointing authority's decision.

As a general rule, courts are reluctant to substitute their judgment for that of the employer on the fairness of penalties, but will do so if the penalty appears grossly unfair -- the standard established in Pell v Board of Education, 34 NY2d 222.

The decision is posted on the Internet at:
http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-2230.pdf

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