New York City Office of Administrative Hearings and Trials Administrative Law Judge [ALJ] Faye Lewis recommended a 45-day suspension without pay as the penalty to be imposed on custodial engineer [Respondent] found guilty of storing an air rifle in a Department of Education warehouse building and fired it in the trucking bays of the warehouse on a Saturday when no one else was in the building. Respondent did not deny this allegation and testified that he brought the air rifle into the building and fired it on one occasion for the sole purpose of scaring away pigeons that had been roosting in the bay areas of the building, defecating on plastic wrapped pellets of food trays that were distributed to schools, and disturbing asbestos installation on the pipes.
The ALJ found Respondent’s testimony to be clear, consistent, unrebutted, and corroborated by documentary evidence, such as emails and photographs documenting the significant health concerns posed by the pigeons. While the ALJ found that Respondent’s use of the air rifle was well-intentioned, she concluded that the storage and firing of the air rifle constituted misconduct as it showed poor judgment and was contrary to well-known standards of conduct.
The ALJ dismissed the remaining charges against Respondent for storing alcohol and parking his motorcycle on petitioner’s property because the Petitioner [Employer] failed to produce sufficient evidence linking Respondent to the alcohol and failed to establish that parking his motorcycle constituted misconduct.
Lastly, the ALJ dismissed a charge relating to the transfer or sale of Department property as time-barred. The ALJ rejected Employer’s argument that Respondent should be terminated for this misconduct, noting that there was significant mitigation underlying Respondent’s actions and that he has had a lengthy tenure with the Employer with high performance evaluations and no history of discipline.
Accordingly, the ALJ recommended a 45-day suspension with credit for a 30-day pretrial suspension served.