Administrative Law Judge holds that termination of the employee was "reasonable under the circumstances"

New York City Office of Administrative Trials and Hearings Administrative Law Judge [ALJ] Julia H. Lee recommended termination of the employment for a patient care associate [Respondent] who has been excessively absent since November 2020 and absent without leave (“AWOL”) since May 2022.

Respondent did not dispute that she has been absent without leave from May 2022 to the present but contended that her absence was due to her Agency [Employer] reassigning her to the operating room in retaliation for her taking Paid Family Leave and the Employer’s failure to grant her reasonable accommodation request. The ALJ found that Respondent’s absence from work since May 2022 was not obviated by her submission of a reasonable accommodation request and that she was not entitled to an accommodation where she would not be performing the essential functions of her job. Judge Lee also found that the Employer had proved Respondent was excessively absent on 34 dates from November 2020 through February 2022, and was AWOL on numerous occasions.

In contrast, the ALJ found Respondent was on bereavement leave following the death of her father. As a full-time employee, Judge Lee opined that Respondent was entitled to a “maximum of four workdays with pay for a death in the immediate family”. In addition, Judge Lee dismissed an AWOL charge for Respondent’s absence from September 2, 2021 through November 5, 2021, explaining that the Employer cannot prove that Respondent was AWOL if the Employer had placed Respondent on leave for failure to comply with the COVID-19 vaccine requirement and then charged her with being AWOL for the same period.

Finding that Respondent was excessively absent on 34 dates from November 9, 2020, through February 2, 2022; was AWOL from February 18, 2021, through April 18, 2021; was AWOL on March 28, 2022, and from March 30, 2022, through May 10, 2022; and was AWOL from May 12, 2022, "to the present", Judge Lee, and noting that Respondent has no prior disciplinary history and was a long-time employee with the Employer are "mitigating factors", the ALJ concluded that the Employer's seeking Respondent's termination "is appropriate" and so recommended.

Click HERE to access Judge Lee's decision.

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A Reasonable Disciplinary Penalty - for information and access to a free excerpt of the material presented in this NYPPL e-book, click HERE

 

 

Correction officer terminated after being found guilty of using excessive force against an inmate and filing a false report concerning the event

A former employee [Petitioner] of the New York City Department of Correction [DOC] challenged his being terminated after being found guilty of excessive use of force against an inmate and submitting a false use of force report. The Appellate Division unanimously dismissed his appeal, opining that substantial evidence supported the findings of the Administrative Law Judge [ALJ] that Petitioner used "excessive and unjustified force against an inmate" in the form of video footage showing Petitioner run up behind the inmate and punch the inmate in the side of the head, "all while the inmate was in restraints and compliant with two escort officers".

At his disciplinary hearing the Petitioner admitted that he struck the inmate as "emotional response" to the inmate's verbal taunts about having thrown a tray of food at Petitioner minutes earlier. The Appellate Division said that this evidence "sufficiently supports the ALJ's determination that [Petitioner] violated DOC's Use of Force Directive, which prohibits the use of high impact force, including [s]trikes or blows to the head" unless a staff member "is in imminent danger of serious bodily injury or death," and prohibits the use of any force to retaliate against an inmate or in "response to an inmate's verbal insults, threats, or swearing."

Accordingly, the Court said DOC's decision to terminate Petitioner's employment was not an abuse of discretion considering the severity of Petitioner's conduct, which created "a needless risk of serious injury to the inmate" and, citing Matter of Harp v New York City Police Dept., 96 NY2d 892, held that the penalty imposed does not shock one's sense of fairness, "notwithstanding [Petitioner's] lack of disciplinary record."

Click HERE to access the Appellate Division's decision posted on the Internet.

 

New York State Comptroller DiNapoli releases municipal and school audits

On March 29, 2024, New York State Comptroller Thomas P. DiNapoli announced the following local government and school audits were issued.

Click on the text highlighted in color to access both the summary and the complete audit report

 

Village of Cato – Water Financial Operations (Cayuga County)

The board and officials did not effectively manage the financial operations of the water fund, establish adequate reserves or develop long-term financial and capital plans until the Cayuga County Health Department forced the board to submit a plan. In addition, $42,696 in unauthorized billing adjustments were made. Of 464 water bills reviewed (totaling $134,852), 71 had calculation errors totaling $7,903 which included $6,607 that should have been billed and collected and $1,296 in overbillings. Auditors found 27% of the water produced (at a cost of approximately $20,000), or 9.4 million gallons, is considered unauthorized non-revenue water or lost water. In addition, long-term capital water needs were not appropriately planned for. 

Clymer Central School District – Payroll (Chautauqua County)

Employee compensation payments were not always accurate, approved or supported. District officials did not ensure pay rates were accurate or that compensation was paid in compliance with employment agreements. As a result, payroll errors went undetected and resulted in unnecessary and erroneous payroll payments. District officials made compensation errors totaling $28,500 because they used incorrect pay rates or incorrect hours/days worked to calculate 16 employees’ pay and paid five employees a total of $4,792 for retroactive raises that were not authorized by the board of education. Officials also paid 16 employees perfect attendance awards totaling $2,550 that they were not eligible for  and did not require written prior authorization for overtime work. Another 12 overtime payments totaling $1,858 were not supported with evidence of approval.

 

Deer Park Union Free School District – Fuel and Vehicle Inventory (Suffolk County)

District officials did not adequately maintain vehicle inventory or monitor fuel usage. As a result, vehicles and fuel were not properly accounted for. Officials did not maintain accurate inventory records of vehicle additions and disposals, and there were discrepancies with 19 vehicle inventory records. In addition. officials did not obtain board of education approval prior to disposing of vehicles, or promptly remove unused vehicles from insurance, resulting in $17,237 of unnecessary costs. Auditors also found 44,976 gallons of fuel was dispensed without identifying who pumped the fuel.

 

Green Tech High Charter School – Payroll (Albany County)

Officials did not accurately pay salaries and wages to 10 of the 67 employees reviewed and could not support payments made to 54 employees totaling $41,626. Officials made payroll calculation errors totaling $1,210 for 10 salaried employees and did not maintain time sheets or payroll status change forms documenting approved pay rates to support $7,220 in wages paid to three hourly employees reviewed. Official also could not support approvals for miscellaneous payments totaling $16,706 made to seven employees or support class coverage payments totaling $17,700 made to 44 employees.

 

Garden City Union Free School District – Information Technology (IT) Asset Management (Nassau County)

District officials did not properly track or inventory IT assets, maintain complete IT inventory records or safeguard IT assets. As a result, officials cannot assure taxpayers that IT assets are adequately accounted for and would be detected if lost, stolen or misused. Auditors selected 60 IT assets from invoices and device management reports to confirm their location and that they were inventoried and 10 additional IT assets to confirm they were inventoried. They determined that 23% of the assets were not properly accounted for.

 

Inlet Common School District – Claims Processing (Hamilton County)

The claims reviewed were supported and for appropriate purposes but did not have evidence that they were audited and approved before payment. As a result, the district has an increased risk that unauthorized claims could be paid. The board and district officials did not provide effective oversight of claim processing and payment. Board members did not document the date that they authorized claims to be paid. In addition, district officials used a debit card to pay for 60 purchases totaling $6,840 that were not subject to board approval.

 

Lewis County Court and Trust

Auditors reviewed the processes, procedures and records for the receipt and management of court and trust funds as well as estates in the treasurer’s custody and found that the treasurer generally established adequate procedures, maintained appropriate records, and properly reported court and trust funds. However, auditors identified $239 that improperly remained in the treasurer’s custody that should have been turned over to the State Comptroller as abandoned property.

 

Morley Volunteer Fire Company – Misappropriation of Funds (St. Lawrence County)

Company officials did not provide oversight of financial operations to ensure funds were safeguarded. As a result, the former treasurer was able to misappropriate $64,972 of company funds from January 2016 through Dec. 2019. The former treasurer was able to obtain cash totaling $45,400 by making inappropriate automated teller machine and in-bank withdrawals, writing unauthorized checks to herself and receiving cash from company funds presented for deposit and make 178 personal purchases totaling $19,572 using a company debit card. These improper transactions went undetected because company officials did not review monthly bank statements and canceled check images, receive monthly financial reports, audit bills prior to payment or compare cash collections to deposits. The former treasurer was arrested in July 2023 and pleaded guilty to grand larceny in the fourth degree in November 2023. She was sentenced to probation in January 2024 and ordered to pay $50,000 in restitution.

 

Shenendehowa Central School District – Longevity Payments (Saratoga County)

District officials did not ensure longevity payments for employees separating from service were accurate, supported and approved. District officials did not accurately calculate longevity payments for 26 of the 32 (81%) employees reviewed. As a result, 26 employees were underpaid a total of $9,214 in longevity for separation payments. Although employees covered by the Shenendehowa United Supervisors’ Association and Management Confidential collective bargaining agreements receive longevity payments, their agreements do not include language for these payments upon separation.

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