An employee of the New York Department of Correction [Employee] was served with disciplinary charges pursuant to §75 of the Civil Service Law alleging Employee was guilty of insubordination and inefficient work performance as the result of his leaving his assigned work tasks before their completion on two occasions.
With respect his leaving work on one of the two occasions charged Employee testified that he had asked his supervisor to reassign him to a different work assignment when he felt unsafe working in an inmate area without another employee present.
New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judge Joycelyn McGeachy-Kuls credited the Employee’s testimony that he was reassigned to another task that day over the supervisor’s testimony that Employee "did nothing for the rest of the day."
With respect to the second occasion, Employee told his supervisor that he objected to his assignment which required him to work in an inmate area. His supervisor then offered Employee two options:
[a] Employee could request a transfer; or
[b] Employee could return to work.
Employee elected to request a transfer.
Judge McGeachy-Kuls found that the appointing authority had failed to prove any of the §75 disciplinary charges filed against Employee. Accordingly the ALJ recommended that the Appointing Authority dismiss all disciplinary charges filed against Employee
ALJ McGeachy-Kuls explaining that in this disciplinary proceeding the Appointing Authority had the burden of proving its case by a fair preponderance of the credible evidence and that preponderance has been defined as “the burden of persuading the triers of fact that the existence of the fact is more probable than its non-existence.”
Citing Rinaldi & Sons, Inc. v Wells Fargo Alarm Service, Inc., 39 N.Y.2d 191, Judge McGeachy-Kuls observed that in earlier OATH proceedings the presiding ALJ had ruled that "where the evidence is equally balanced, the charges must be dismissed."
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