OATH Administrative Law Judge Kevin F. Casey found a probation officer guilty of insubordination and conduct prejudicial to good order and discipline as the result of her wearing business attire to work "instead of a polo shirt required by a new dress code" and other clothing required by the Employer's new dress code.
The probation officer, whose duties included regular courtroom appearances, was charged with misconduct for not wearing a Department-issued polo shirt with the agency’s logo. In addition, the new dress code required the probation officers required to provide, at their own expense, "blue cargo pants, black shoes, and lightweight jackets with the Department’s logo" that was to be worn.
Citing Ferreri v. NYS Thruway Authority, 62 N.Y.2d 855, the ALJ's observed that employees "were required to obey a supervisor’s order; if the employee believes that an order is improper, the employee can later grieve it through appropriate channels". Judge Casey also noted that the Probation Officer "failed to show that the order to wear the shirt was unlawful, clearly beyond management’s authority, or imminently threatening to health or safety."
However, Judge Casey also found that the Department improperly retaliated against the officer for complaining about the new "dress code" to the Commissioner’s representative and the Department’s General Counsel.
The ALJ said that the record, the Probation Officer’s credible testimony and other evidence indicated that less than one week after complaining about the new policy, the Department took adverse employment action against the officer by transferring her to another unit, in a different borough, without following Department procedures for involuntary transfers and imposing an unlawful 30 work-day pre-trial suspension without pay.
The ALJ recommended the that the Appointing Authority dismiss all of the disciplinary charges filed against the Probation Officer.
Click HERE to access Judge Casey's findings and recommendation posted on the Internet.