Consideration of mitigating circumstanses tempers the typical penalty - termination - imposed on an employee who submits a fraudulent medical notes after being absent from work

Although termination is frequently the penalty imposed on a wrongdoer for submitting a fraudulent medical notes to excuse an absence, New York City Office of Tribunals and Hearings Administrative Law Judge Faye Lewis found that in this case it would be excessive. Instead Judge Lewis recommended that the employee be give a penalty of a 60-day suspension without pay.

The employee submitted fraudulent medical notes regarding a seven-day absence from work acknowledged that he altered medical notes to show doctor’s appointments on some of the dates that he was absent from work.

ALJ Lewis credited the employee’s testimony that he fabricated the notes using Write-Out in a panicked, emotional state after his supervisor denied his request for emergency personal leave, which respondent sought because his wife was suicidal and he needed to be home to care for his young daughter.

Although termination is often the penalty imposed for the submission of fraudulent medical notes, the ALJ found that in this case it would be excessive, noting that although the employee’s conduct was a serious error in judgment, his otherwise flawless 16-year record and the extraordinary mitigating circumstances made her recommendation of a penalty of 60 days suspension more appropriate.

Click HEREto access Judge Lewis' findings and recommendation.

 

Appointing an employee to a different position and title following a disabiling injury or disease that was not job related

In a proceeding brought pursuant to §72 of the Civil Service Law, OATH of Administrative Law Judge Ingrid M. Addison recommended that the New York City Police Department [NYPD] place a Traffic Enforcement Agent [TEA] on an involuntary leave of absence, finding the TEA was unfit to perform her job duties due to a medical disability not incurred in the performance of the duties of her position.

The TEA did not dispute the fact that she could not stand or walk for long periods, conceding that effects of an earlier surgery prevented her from performing the duties required of a TEA.

Although the TEA had been temporarily assigned to a clerical job as a reasonable accommodation, the NYPD determined that she was unfit to perform the duties of a TEA. Judge Addison agreed, finding that the NYPD proved the employee was currently unfit to perform the essential duties a TEA due to her disability and recommended the TEA be placed on involuntary leave consistent with the provisions of Civil Service Law §72.5.

The appointing authority of the NYPD adopted the ALJ’s recommendation subject to the approval of NYPD’s pending application for a change in title of the TEA's position to Clerical Associate, presumably as the result of the reclassification of the TEA position then encumbered by the employee to "Clerical Associate."

On a similar note, General Municipal Law §207-c, providing for the payment of salary, wages, medical and hospital expenses of police officers disabled as the result of injuries or illness incurred in the performance of duty, authorizes appropriate municipal officials to transfer a police officer on disability leave pursuant §207-c to another position, including a position with another agency or department where he is able to perform the duties of such position consistent with [1] the applicable civil service law requirements, [2] provided the police officer consents to the change and [3] the agency to which the employee will transfer approves the transfer.

General Municipal Law §207.5, applicable to firefighters on disability leave as the result of suffering an injury or illness incurred in performance of official duties,  similarly authorizes the appointment of the disabled firefighter to another position or title in the same or another agency with the consent of the injured firefighter and the approval of the department or agency involved.

Click HERE to access Judge Addison's decision and recommendation.

Finding of unlawful discrimination supported by substantial evidence results in imposition of a civil fine and the payment of compensatory damages to the employee

The New York State Division of Human Rights [DHR], adopting the findings and recommendation of an Administrative Law Judge determined following a hearing, held that the New York State Unified Court System, Office of Court Administration [OCA] had unlawfully discriminated against one of a staff member [Employee] based on a disability and directed OCA to: 

1. Cease and desist from subjecting the Employee to blanket exclusions from the court officer-trainee job title based on hearing loss or the use of hearing aids;

2. Pay a civil fine and penalty of $30,000; and

3. Pay Employee $5,000 in compensatory damages.

OCA appealed DHR's decision.

The Appellate Division unanimously confirmed DHR's decision and dismissed OCA's appeal finding that DHR's finding of unlawful discrimination was supported by substantial evidence.

Noting that the Employee had established a prima facie case that OCA discriminated against him because of his hearing and "sufficiently demonstrated that upon the provision of reasonable accommodation, the use of a hearing aid, he can perform in a reasonable manner the essential functions of a court officer-trainee."

The record indicated that Employee had passed the written test for the court officer-trainee position and was conditionally hired. However, OCA bans the use of hearing aids on the job or for the audiometric test to medically qualify for the position of court officer-trainee. Further, opined the Appellate Division, Employee was not obligated to be evaluated for and purchase a hearing aid, and to retake the audiometric test, at his expense, to further make his prima facie case as OCA had made clear it still would deem him unqualified and reject such test results.

Citing Pimentel v Citibank, N.A., 29 AD3d 141, the Appellate Division observed that permitting court officers to wear a hearing aid is a reasonable accommodation and would not, as OCA argued, impose undue hardship on OCA by posing any "direct threat," i.e. "a significant risk of substantial harm to the . . . safety of the employee or others."

Addressing OCA's argument that the physical demands of the job and the risk that a hearing aid could become dislodged in a scuffle or fail to operate in an emergency, the court held that OCA's argument is undermined by its own policy permitting court officer-trainee candidates to meet its vision standard with or without corrective lenses or glasses, which could be lost or become dislodged in a scuffle.

Noting "OCA's preference for those with a minimal amount of hearing acuity" might be a bona fide occupational qualification the Appellate Division held that OCA's "preference for hearing acuity without the use of a hearing aid is not."
As to the $30,000 civil penalty imposed on OCA, the Appellate Division, observing that Executive Law §297[4][c] provides that a civil penalty below $50,000 may be assessed if an entity is found to have committed an "unlawful discriminatory act", concluded that considering OCA blanket policy barring hearing-impaired persons from employment as court officers and its failure to accommodate Employee who had an asymmetric hearing loss, the civil penalty of $30,000 was correctly assessed.

Similarly, the court found that the record contains substantial evidence to support DHR's finding that Employee was entitled to a compensatory damages award of $5,000.

Click HERE to access the Appellate Division's decision.

Important changes involving the Workers’ Compensation Board's operations

In light of the expiration of the State of Emergency necessitated by the COVID-19 pandemic, the Workers’ Compensation Board [Board] returned to more regular operations on June 29, 2021.  All of the guidance and modifications provided on the Board’s webpage relating to the State of Emergency are lifted, with the following exceptions:

• The suspension of the Labor Market Attachment requirement will expire on August 16, 2021. Visit the Board's website to view the guidance. 
• Relief from the original signature requirements on 27 Board prescribed forms will continue until August 16, 2021.
• Board offices remain closed for the time being and contact with Board employees will be by phone and email only.
• Remote-only attendance at hearings will continue, with parties and witnesses appearing by video through the Virtual Hearing Center or, as an option for claimants only, by telephone.
• Consideration of requests for the extension of the 30-day filing requirement will continue for appeals and rebuttals post-marked through July 6, 2021.
• Personal service on the Board still will not be permitted. Service will continue to be by mail only.
• Telehealth will remain in effect by Emergency Regulation. A permanent telehealth regulation is expected to be released for public comment shortly.

This information is also available on the Board’s website.

Questions? Email OfficeofGeneralCounsel@wcb.ny.gov.

Retired former police officer denied a "retiree service letter" which would assist in obtaining a special pistol carrying permit

Retired police officers often request a "retiree service letter" [RSL]to assist the retiree in obtaining a special pistol-carrying permit. 

In this CPLR Article 78 action, a retiree [Plaintiff] sought a court order annulling his former employer's [Agency] determination which denied Plaintiff's request for a RSL and asked the court to issue an order compelling that such a letter be issued. Supreme Court dismissed Plaintiff's petition and he appealed the court's ruling.

Citing Peckham v Calogero, 12 NY3d 424, the Appellate Division unanimously affirmed the lower court's ruling, without costs, holding that the Agency's denial of Plaintiff's request was neither arbitrary nor capricious.

The Appellate Division explained that Plaintiff conceded that he was not authorized to carry a firearm at the time of his separation from employment, as he had earlier surrendered his firearm due to an injury, and he had not sought reinstatement of such authorization. Accordingly, said the court, Plaintiff "had no right to issuance of" the RSL "since his authority to carry firearms had been revoked ... and had not been restored at the time he retired"

Further, opined the court, the Agency's decision not to issue the RSL did not violate Plaintiff's Second Amendment rights, since it did not preclude him from applying for a permit under normal legal procedures set out in §400.00 on New York State's Penal Law.

In addition, the Appellate Division observed that:

1. Assuming there is a private right of action under the Law Enforcement Officers Safety Act of 2004, Plaintiff "cannot demonstrate that he met the qualification standards within one year of retirement";

2. Plaintiff cannot demonstrate a violation of the Americans with Disabilities Act based on his former agency's refusal to issue the RSL as he concedes that his injury rendered him unable to perform his duties as a law enforcement officer; and

3. There is no factual basis to conclude that the Agency's decision refusing to provide Plaintiff with a RSL was made in bad faith rather than as part of an across the board policy.

Click HERE to access the Appellate Division's decision.