Proceeding with a disciplinary hearing notwithstanding the employee's failure to appear at the hearing

New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judge [ALJ] Seon Jeong Lee recommended termination of employment for a community coordinator [Respondent] who was excessively absent, attempted to engage a client in an inappropriate personal relationship, failed to appear for a mandatory interview, and submitted false documents.

Respondent did not appear at disciplinary hearing and following the ALJ granting Respondent's attorney’s motion to withdraw as counsel, the disciplinary hearing proceeded notwithstanding the Respondent’s absence.*

The ALJ found that Respondent was absent for approximately 148 work days over a period of 11 months. Respondent was also found to have sent an inappropriate and unauthorized text message to a shelter client in an attempt to engage the client in a personal relationship, and when the employer attempted to investigate the incident, Respondent ignored multiple notices to appear for a mandatory interview.

Judge Lee, noting that Respondent was given multiple opportunities to refute the charges filed against him and, or, provide explanations in his defense, but Plaintiff  ignored the employer’s repeated inquiries; failed to appear at disciplinary hearing; and had expressed no remorse for Respodent's proven misconduct, recommended dismissal "as the only appropriate penalty." 

In the words of the ALJ: "This tribunal typically applies the principles of progressive discipline, which aims to achieve employee behavior modification through increasing penalties for repeated or similar misconduct. See Health & Hospitals Corp. (Woodhull Medical & Mental Health Ctr.) v. Ford, OATH Index No. 2383/09 at 11 (July 10, 2009). But certain acts of misconduct are so egregious that termination of employment is the only appropriate penalty. Here, the proven misconduct against [Respondent] specifically involving sexually predatory behavior toward a vulnerable client and submission of fraudulent documents warrants termination, despite [Respondent’s] lack of any prior discipline".

* New York courts have held that a disciplinary hearing may proceed and the employee tried in absentia provided, however, the appointing authority has complied with a number of procedural steps, including the following:

1. The appointing authority must properly serve the employee with the disciplinary charges and advise him or her, among other things, of the date, time and place of the hearing.

2. That a diligent effort was made to contact the individual to determine if he or she has a reasonable explanation for his or her absence before the hearing officer proceeds with holding the hearing in the absence of the accused employee.

3. A formal hearing must be conducted and the appointing authority is required to introduce evidence proving its charges to the hearing officer.

4. A formal record of the hearing must be made and a transcript provided to the appointing authority and, if requested, to the employee.

5. The employee must be advised of the appointing authority’s determination and of the employee's right of appeal if he or she has been found guilty of one or more of the charges.

Click HERE to access Judge Lee's findings and recommendation to Commissioner Molly Wasow Park posted on the Internet.