Recent decisions by Administrative Law Judges posted on the Internet by New York City's Office of Administrative Trials and Hearings

Accommodating a disability

OATH Administrative Law Judge Christine Stecura recommended an agency engage with its employee in a cooperative dialogue to discuss potential accommodations for the employee’s disability.

In a Civil Service Law Section 72 proceeding regarding the employee’s fitness to perform her duties, Judge Stecura found the agency established that the employee has a disability which rendered her unfit to perform her duties when working physically in the office.

The ALJ found the employee had requested a reasonable accommodation to work from home and the agency failed to engage in a cooperative dialogue with her to determine if her disability could be reasonably accommodated by employee working at home.

The ALJ also found the agency failed to establish that it had probable cause to place the employee on one of two emergency leaves and recommended restoration of salary or leave balance to the employee for that period of emergency leave.

Click HERE to access Judge Stecura's findings and recommendations posted on the Internet.

 

Inability to perform the duties of the position

OATH Administrative Law Judge Julia Davis recommended dismissal of disciplinary charges filed against an employee she found suffered a disability that resulted in frequent outbursts at work, interfered with her ability to interact with colleagues and supervisors, prevented her from completing the training required for her position, and resulted in other disruptive behavior at work. 

Judge Davis indicated that disciplinary penalties cannot be imposed "if the alleged acts of misconduct were caused by a disability."

Finding the employee has neither acknowledged her issues nor sought help and there is no present possibility that her medical condition will improve, the ALJ recommended placing the employee on an involuntary leave of absence as the employee’s disability renders her "unable to perform the functions of her job".

Click HERE to access Judge Davis' findings and recommendations posted on the Internet.

Woman pleads guilty to stealing her deceased grandmother’s state pension payments

On November 30, 2023, a 55-year-old Buffalo woman pleaded guilty to stealing more than $54,715 in state pension payments meant for her deceased grandmother. Comptroller Thomas P. DiNapoli and Erie County District Attorney John J. Flynn announced "the defendant, Bernadette Russell, was convicted of grand larceny,"

“Bernadette Russell schemed to hide her grandmother’s death in order to steal from the state retirement system,” DiNapoli said. “Thanks to the work of my investigative team and the Erie County District Attorney’s Office, her crime was exposed, and she has been held accountable. My office will continue to vigorously root out attempts to defraud the state pension system and its members.”

“By defrauding the state retirement system, this defendant stole from the taxpayers of New York. I want to thank the New York State Comptroller’s Office for their work on this case and their partnership with our office. Together, we will continue to investigate fraudulent activity and hold any offenders accountable,” said Erie County District Attorney John J. Flynn.

Russell’s grandmother, Lorraine Stenclik, retired in 1985 from the City of Buffalo and was receiving a pension via direct deposit into her bank account. She passed away in October 2019 and her pension payments should have stopped then. However, her family did not notify the state retirement system of her death, and the system did not learn she was deceased until July 2022, at which time it stopped payments.    

The investigation of Russell began after the Comptroller’s Office received a phone call from someone purporting to be Lorraine Stenclik, asking why she had not received her July 2022 pension payment. The call came from a phone number that was registered to Russell.

There were 33 monthly pension deposits totaling $54,715 into Stenclik’s bank account after she died. Investigators determined numerous ATM withdrawals were made with Stenclik’s debit card in the years since. They also found payments from Stenclik’s bank account to one of Russell’s utility accounts.

Russell pleaded guilty in Erie County Court before Judge Paul Wojtaszek. Her sentencing is scheduled for Feb. 8, 2024.

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Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.ny.gov, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

Hearsay evidence can be the basis for an administrative determination

The Appellate Division unanimously affirmed, without costs, a ruling by Supreme Court which denied the Plaintiff's petition to annul a determination of the City of New York Reasonable Accommodation Appeals Panel [Citywide Panel] denying [1] Plaintiff's  request for a reasonable accommodation from the New York City Board of Education's [DOE] COVID-19 vaccine mandate, [2] Plaintiff's motion for limited discovery, and [3] dismissed the proceeding brought pursuant to CPLR Article 78.

The court said the Citywide Panel's finding — that the DOE demonstrated that granting petitioner an accommodation of masking, testing, and social distancing, or alternatively teaching remotely, when the DOE was returning to in-person instruction, would impose an undue hardship — was not arbitrary and capricious or made in violation of lawful procedure.

Opining that it "need not limit [its] review to the language in the Citywide Panel's decision, as the Panel noted that it had 'carefully reviewed (the DOE's) determination' as well as 'all of the documentation submitted to the agency,' and that it had based its decision on that review", the Appellate Division found "The DOE's Position Statement explained in detail why granting the accommodation would create an undue hardship for the DOE, in conformity with the factors listed in the New York City Human Rights Law (City HRL) including 'identifiable cost of the accommodation' due to, among other things, 'retaining or hiring employees or transferring employees ... in relation to the size and operating cost of the employer,' and '(t)he number of individuals who will need the particular accommodation'," citing the "Administrative Code of City of NY §8-107(3)(b).

Noting Matter of Gray v Adduci, 73 NY2d 741, and other decisions, the Appellate Division explained the fact that the Position Statement was unsigned and undated, or amounted to hearsay, was of no moment, as "(h)earsay evidence can be the basis for an administrative determination".

Citing the decision in Matter of Marsteller, 217 AD3d 543, the Appellate Division said "(t)he affirmation of Eric J. Eichenholtz, Chief Assistant Corporation Counsel for Employment Policy and Litigation, who served as a final reviewer for Citywide Panel determinations," was appropriately considered by Supreme Court, as "there was no administrative hearing" and the affirmation "explain(ed) the information that was before the agency," including it noting that the DOE Position Statement was submitted to the Citywide Panel and was relied upon for the final appeal determination.

In addition, the Appellate Division noted DOE employees were informed how to apply for religious accommodations and appeal denials and Plaintiff "availed h(er)self of this process, (DOE) explained why h(er) application did not qualify for an accommodation [and the] parties further engaged in the administrative appeals process," and DOE "submitted evidence" that it received over 3,300 religious accommodation requests that needed to be "resolve(d) under a constrained timeline during an evolving public health emergency".

As Plaintiff "[had] not established that, under these circumstances, the City HRL required a more robust or individualized dialogue than the process (s)he received", the Appellate Division opined that Supreme Court properly denied Plaintiff's motion seeking leave for limited discovery in this special proceeding, as she failed to show "ample need" or "unusual circumstances".

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

 

Court finds the "heart presumption" set out in the Retirement and Social Security Law was "successfully rebutted" by the Retirement System

Petitioner, a correction officer, suffered a heart attack in 2007 and was diagnosed with and treated for high blood pressure. Petitioner returned to work in 2008, voluntarily joining a unit tasked with returning parole absconders to the counties of their convictions. In February 2017, Petitioner, complaining of fatigue and edema, sought treatment from a cardiologist, who diagnosed petitioner with coronary artery disease, heart failure and high blood pressure. Approximately one month later, Petitioner sought further treatment after experiencing chest pains and shortness of breath while at work, and he did not thereafter return to work.

Petitioner applied for performance of duty disability retirement benefits in September 2017, contending he was permanently incapacitated from the performance of his duties as the result of a heart condition. Although Petitioner was found to be permanently incapacitated, his application for benefits was denied upon the ground that his disability was not sustained as a result of the performance or discharge of his duties.

Following a hearing and redetermination, the Hearing Officer upheld the denial, finding that Petitioner's heart disease was not caused by his employment. The State Comptroller adopted the Hearing Officer's findings of fact and conclusions of law, and Petitioner commenced this CPLR Article 78 proceeding challenging the Comptroller's determination.

The Appellate Division affirmed the Comptroller's determination, noting that the New York State and Local Employees' Retirement System concedes that Petitioner is permanently incapacitated from the performance of his duties as a correction officer as a result of his heart condition and, further, that the "heart presumption"*  embodied in Retirement and Social Security Law §507-b(c) applies. However, said the court, citing  Matter of Park v DiNapoli, 123 AD3d 1392; Matter of Walters v DiNapoli, 82 AD3d 1487; and Matter of Rivera v DiNapoli, 78 AD3d 1295, "the issue distills to whether the Retirement System successfully rebutted the heart presumption, which, in turn, required the Retirement System to demonstrate -- through expert medical proof -- that Petitioner's cardiac condition was caused by risk factors other than his employment".

The Retirement System's medical expert [Expert] reviewed Petitioner's job description, together with numerous medical records, test reports and office notes, and conducted a physical examination of Petitioner in January 2018. After examining Petitioner, Expert diagnosed Petitioner with "nonobstructive coronary artery disease, very mild congestive heart failure and diabetes (not well controlled)". According to Expert, diabetes is "a major risk factor" for, among other things, heart attack and coronary artery disease; Petitioner's "additional risk factors for coronary artery disease included hypertension, dyslipidemia, obesity and a sedentary lifestyle."

In the words of the Appellate Division, "Although Expert agreed that Petitioner was permanently incapacitated from the performance of his duties as a correction officer as a result of his cardiovascular disease, Expert was adamant that Petitioner's correctional officer duties were not the cause of such disease, stating that '(c)oronary artery disease is not occupation specific.' Rather, Expert opined, there are 'well-defined risk factors for coronary artery disease,' including the various risk factors previously attributed to Petitioner. With respect to work-related stress, Expert acknowledged that stress could be a contributing factor to, for example, Petitioner's high blood pressure, but he made clear that stress was neither a recognized risk factor for developing coronary artery disease nor a cause of coronary artery disease or hypertension in the first instance (see Matter of Walters v DiNapoli, 82 AD3d at 1488). Expert further opined that the identified risk factors could not be viewed in isolation, i.e., no one individual risk factor may be said to have caused [Petitioner's] coronary artery disease; rather, such disease was the 'collective' effect of the recognized risk factors identified in Expert's report.

The Appellate Division said Expert's testimony, in its view, was sufficient to exclude Petitioner's employment as a causative factor in the development of his disabling coronary artery disease and, as such, the statutory presumption was effectively rebutted. Further, opined the court, "The testimony offered by Petitioner's treating cardiologist, which the Comptroller was free to reject ... does not warrant a contrary result, as such testimony -- at best -- establishes that stress "appears to" or may "possibl(y)" have some effect upon the development or progression of coronary artery disease. The decision then notes that Petitioner's remaining arguments on this point, to the extent not specifically addressed, had been examined and found to be "lacking in merit" by the Appellate Division.

* RSSL §507-b(c) provides as follows: c. Notwithstanding any provision of this chapter or of any general or special law to the contrary, any condition of impairment of health caused by diseases of the heart, resulting in disability or death to a member covered by this section, presently employed and who shall have sustained such disability while so employed, who successfully passed a physical examination on entry into service as a correction officer or security hospital treatment assistant, which examination failed to disclose evidence of any disease or other impairment of the heart, shall be presumptive evidence that it was incurred in the performance and discharge of duty, unless the contrary be proved by competent evidence.

Click HERE to access the Appellate Divisions decision posted on the Internet.