Hearing officer recommends employee’s termination based on circumstantial evidence that was corroborated by other evidence

Hearing officer recommends employee’s termination based on circumstantial evidence that was corroborated by other evidence
NYC Department of Sanitation v O’Neill, OATH Index #2632/10

The New York City Department of Sanitation’s General Order No. 2001-19 addressing “trade waste” prohibits its employees from removing material originating from a home renovation performed by a contractor.*

OATH Administrative Law Judge Alessandra Zorgniotti found that circumstantial evidence,** supported by other evidence, proved the charge brought against Brian O’Neill, a sanitation worker employed by the Department.

Significantly, the ALJ found that a telephone tip from a man who called a Department Superintendent on July 30, 2007, was corroborated by other evidence gathered by the agency such as the caller’s description of the two sanitation workers involved. The descriptions matched O’Neill and his partner, and the caller’s reporting that “he saw these men loading construction debris onto a sanitation truck at a location at the end of [O’Neill’s] route in Brooklyn.”

The Department’s Borough Chief went to the location and he saw a house under renovation with signs of recent construction activity.

Additional circumstantial evidence consisted of the contents of O’Neill’s truck when it was “dumped.” The last material loaded came out first and it included construction debris, including carpet the Borough Chief had seen at the house.

In addition, there was testimony by a supervisor that the tonnage reports for July 30, 2007, for the section indicated that “most trucks picked up between nine and ten tons and that [O’Neill’s] truck was the only truck over thirteen tons” if waste,

Although the ALJ found that there was insufficient evidence to prove O’Neill had accepted a gratuity from anyone in connection with the removal of the “trade waste,” she recommended that O’Neill be terminated in view of his “short tenure and the absence of mitigating circumstances.”

* Even if collected materials have not been generated by a contractor for a fee, the trade waste directive can be violated if a sanitation worker services a residential stop which contains construction debris in excess of six bags, bundles, boxes, and cans. If the material exceeds this six-container limit, the sanitation worker is permitted to complete the collection only by notifying and procuring the approval of his or her supervisor.

** A finding of misconduct may be established in a disciplinary proceeding solely by circumstantial evidence. Dep’t of Sanitation v. Guastafeste, OATH Index No. 658/00, at 10, aff’d, 282 A.D.2d 398

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2632.pdf
NYPPL

Contractor to indemnify the agency for the agency's liabilities only if the liability resulted from activities that were among its contractual duties

Contractor to indemnify the agency for the agency's liabilities only if the liability resulted from activities that were among its contractual duties
Ramos v City of New York, 2010 NY Slip Op 07821, Decided on November 4, 2010, Appellate Division, First Department

Tristar provided security services at the premises pursuant to a contract between it and the City whereby Tristar personnel were to check ID’s of people who worked at the premises, scanning people who did not work there, checking bags for weapons, and patrolling the exterior of the building.

The contract between the City and Tristar required Tristar to provide unarmed and armed uniformed guard services at the City's premises and included a provision that Tristar was to indemnify the City for "claims arising out of or in any way related to this Contract . . . resulting or alleged as resulting from the negligence of the Contractor . . . in its performance of this Contract."

Guillermo Ramos was employed by Tristar as a security guard and was injured while working at premises owned by the City of New York. Ramos claimed that he was directed by an employee of the City, who supervised him at the premises, to turn off the heater/fan that was located in a closet on the main floor of the premises and allegedly received a severe electric shock in so doing. Ramos sued the City and the City commenced a third-party action against Tristar for contractual indemnification.

The Appellate Division dismissed the City’s action seeking indemnification from Tristar, noting that although Tristar had a duty to indemnify the City for Tristar's negligence in the performance of its duties, it was not obligated to indemnify the City for the City’s negligence.

Here, said the court, Ramos’ “injuries arose when he attempted to turn off the switch for the heater/fan which was an activity clearly outside of the scope of his duties as a security guard.”

Accordingly, Tristar was not obligated to indemnify the City as a matter of law as there was no proof that Ramos’ injuries arose from Tristar's breach of a duty of care owed to the City or from the work Tristar performed under its contract with the City.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07821.htm
NYPPL

Employee’s dismissal after refusing to participate in a counseling program held reasonable under the circumstances

Employee’s dismissal after refusing to participate in a counseling program held reasonable under the circumstances
Siciliano v Safir, 259 AD2d 366

Matthew Siciliano, a New York City police officer, was dismissed from his position after he refused to enter the department’s counseling program. Siciliano had been given at least four direct orders to do so within six months.

Siciliano claimed that his refusal to participate in the program (1) “was based upon his good faith reliance on his private psychiatrist’s advice that such would be harmful to his mental health,” and (2) that the Department had never explicitly warned him that he faced termination if he continued to disobey such orders.

The hearing officer concluded that Siciliano’s “proof concerning his precarious mental condition” tended to support rather than undermine his unfitness to serve. Further, the hearing officer noted, Siciliano was suspended after each time he disobeyed the order to participate in counseling, and “that should have made it clear to petitioner that continued disobedience would not be tolerated indefinitely.”

The Appellate Division said that Siciliano was found guilty of charges that “are serious, involving [the] Department’s requirements for order, authority and discipline.” It ruled that the department’s determination to dismiss Siciliano is entitled to “great leeway.” Commenting that the penalty imposed did not shock its sense of fairness, the Court dismissed Siciliano’s appeal.
NYPPL

Designation of the hearing officer in an administrative disciplinary action

Designation of the hearing officer in an administrative disciplinary action
Stein v Rockland Co., 259 AD2d 552

William J. Stein was terminated from his position with the Rockland County Highway Department after he was found guilty of striking another employee. However, during the second day of hearing Stein had protested “the lack of a proper, written designation of the hearing officer” as required by Civil Service Law Section 75(2). Stein argued that omission meant that the hearing officer did not have jurisdiction to hear testimony in the matter.

According to case law, “in the absence of a written delegation authorizing a deputy or other person to conduct the hearing, the removing board or officer has no jurisdiction to discipline an employee” (Wiggins v Board of Educ. of City of New York, 60 NY2d 385).

The Highway Superintendent provided the hearing officer with a “new written designation,” and the hearing continued. However, the hearing officer “specifically stated in his recommendations that he credited the testimony of the two witnesses who testified on the first day of the hearing.

This, said the Appellate Division meant that the hearing officer’s report was “fatally defective.” The Appellate Division annulled the determination and remitted the matter to the county “for a new hearing and determination with respect to the charges.”

In addition, the Appellate Division said that the determination had to be annulled because the Highway Superintendent should have disqualified himself from making the final determination because of his personal involvement in the case.

The Superintendent was present when the incident leading to disciplinary action against Stein occurred and he made a statement as to what he heard and saw. Furthermore, he conducted the initial investigation, preferred the charges against the Stein, and appointed the hearing officer.

Such “personal involvement in the case,” said the Court, required the Superintendent to disqualify himself from reviewing the recommendation of the hearing officer and acting on any of the charges.
NYPPL

Summary dismissal during a disciplinary probation period

Summary dismissal during a disciplinary probation period
Williams v NYSOMH, 259 AD2d 623

Disciplinary charges were filed against Henry Williams, an employee of the New York State Office of Mental Health, alleging that he was guilty of excessive absenteeism.

The disciplinary action was settled when Williams agreed to serve a disciplinary probation period during which period he could be terminated “without recourse to Article 33 of the State-CSEA Agreement [a negotiated disciplinary grievance procedure] or any other provision of law.”

Williams was absent from work seven times during the six-month period following the execution of the settlement agreement. The department terminated him and he commenced an Article 78 proceeded seeking reinstatement to his former position. The Appellate Division dismissed Williams’ petition, commenting that “a probationary employee may be terminated without a hearing and without a statement of reasons provided that the termination is not in bad faith, or for unconstitutional or illegal reasons.” Further, the decision notes, Williams had the burden of proving that his dismissal was based on bad faith or unlawful conduct.

However, the specific terms of a disciplinary settlement could prove critical if the employee is terminated for his or her alleged failure to satisfy the terms of his or her disciplinary probation.

In Taylor v Cass, 505 N.Y.S.2d 929, a Suffolk County employee won reinstatement with full retroactive salary and contract benefits after a court found that he was improperly dismissed while serving a disciplinary probation. It seems that under the terms and conditions of the probation to which Taylor had agreed, the county could terminate him without any hearing if, in the opinion of his superior, his job performance was “adversely affected” by his “intoxication on the job” during the next six months.

Taylor, while subject to this probationary period, was terminated without a hearing for “failing to give a fair day’s work” and “sleeping during scheduled working hours.” He challenged his dismissal and won reinstatement with back salary. The Appellate Division decided that Taylor’s dismissal was improper because Taylor was not terminated for the sole reason specified in the settlement: intoxication on the job.

In contrast, a state corrections officer, Tina Ramos, agreed to pay a $1,000 fine and be placed on disciplinary probation for one year in settlement of disciplinary charges filed against her alleging improper behavior while escorting a prisoner. She was subsequently observed carrying her weapon in a hospital examination room in violation of departmental rules. The Appellate Division sustained her termination without a hearing, finding that Ramos had violated the terms of her disciplinary probation (Ramos v Coombs, App Div, 237 AD2d 713).
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