July 9, 2021

Mitigating circumstances set out in the record held insufficient to justify imposing a lesser penalty than termination under the circumstances

In a disciplinary proceeding brought by the Department of Education [DOE], New York City Office of Administrative Trials and Hearings ALJ Joycelyn McGeachy-Kuls recommended that an employee be terminated for failure:

1. To comply with her supervisor’s instructions;

2. Refusing to work cooperatively with co-workers; and

3. Excessive use of the Internet during business hours for non-work related matters.

It is well settled that the charging party "... bears the burden of proving the charged misconduct by a preponderance of the credible evidence.

Finding that DOE proved that the employee browsed the internet for non-work-related matters for over 33 hours over a period of less than a month, failed to clock out for lunch, made false time-card entries, and spoke to a co-worker in a rude and insulting manner.

Noting that DOE sought to impose the penalty of termination, the ALJ concluded that notwithstanding certain mitigating considerations set out in the record, termination was appropriate under the circumstances and so recommended.

Click HEREto access Judge McGeachy-Kuls' determination in this matter. 

 

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