Recent Decisions by OATH Administrative Law Judges

Recent Decisions by OATH Administrative Law Judges

Source: NYC Office of Tribunals and Hearings

Dismissal of disciplinary charges recommended

OATH Index Nos. 1417/17 & 1418/17

OATH Administrative Law Judge Astrid B. Gloade recommended dismissal of charges that sanitation workers used department equipment without authorization to collect refuse from a home not on their assigned route.

The ALJ found that the home was across the street from workers' assigned route and that they were scheduled to service it the next day. The workers collected refuse from the home after they completed their assigned work and there was no evidence that the refuse they collected was trade waste.

Judge Gloade found that the fact that the workers failed to obtain authorization before collecting the refuse was too minor to warrant a sanction.  

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-1417.pdf

Termination of hospital dietician recommended

OATH Index No. 282/17

OATH Administrative Law Judge Noel R. Garcia recommended termination of a hospital dietician for "misconduct and/or incompetence" after finding that the dietician failed to competently perform nutrition assessments for several patients over a six-month period, including recommending oral diets for patients who were on “nothing by mouth” status, recommending a tube feeding formula with insufficient calories for a patient who was severely malnourished, and failing to complete accurate assessments for high risk patients, placing patients’ health at risk.

Judge Garcia was not persuaded by the dietician's contention that he had a  "high volume of work," concluding that "To the extent [the dietician] attempted to justify any of [his acts, omissions or errors] by blaming an alleged high volume of work, such argument is without merit."

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-282.pdf

 _________________

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more information click on http://booklocker.com/books/5215.html

 _________________

Spoliation of evidence

Spoliation of evidence

Burke v Queen of Heaven R.C. Elementary Sch., 2017 NY Slip Op 04593, Appellate Division, Fourth Department

Kelly Burke commenced this action seeking damages for injuries that she sustained when she slipped and fell on stairs at a facility owned and operated by Queen of Heaven R.C. Elementary School [Defendant] and sought partial summary judgment as to liability against Defendant on the ground Defendant had destroyed and replaced the stairs after Burke had notified Defendants of her intent to have her expert inspect the stairs, contending that such destruction and replacement of the stairs in question constituted "spoliation of evidence".

With respect to "spoilage", the Appellate Division noted that "Where the evidence is determined to have been intentionally or wil[l]fully destroyed, the relevancy of the destroyed [evidence] is presumed." In contrast, if the evidence is determined to have been negligently destroyed, the party seeking spoliation sanctions must establish that the destroyed [evidence was] relevant to the party's claim or defense."

In order to obtain sanctions for spoliation of evidence, the plaintiff had the burden of showing that [1] the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, [2] the evidence was destroyed with a culpable state of mind, and [3] the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense.

Defendant conceded that the original condition of the stairway was relevant.

Noting that Defendant had an obligation to preserve the condition of the stairs existed because litigation had begun at the time the stairs were replaced, the Appellate Division agreed with Burke that she met her burden of establishing that Defendant destroyed the stairs with a culpable state of mind.

As Supreme Court had "properly concluded" that Defendant's culpable state of mind was evidenced by its destruction of the stairs during the parties' ongoing debate about whether Burke had to disclose the name of her expert to Defendant before Defendant would agree to the inspection, the Appellate Division said it agreed with Burke that the  imposition of a sanction against Defendant for spoliation of evidence was warranted here.

As to granting Burke partial summary judgment on liability based on Defendant's destruction of the stairway, the Appellate Division, citing Sarach v M & T Bank Corp., 140 AD3d 1721, explained that  in deciding to impose sanctions, and what particular sanction to impose, courts look to the extent that the spoliation of evidence may prejudice a party, and whether a particular sanction is necessary as a matter of elementary fairness.

Observing that "It is well established that a less drastic sanction than dismissal of the responsible party's pleading may be imposed where [, as here,] the loss does not deprive the nonresponsible party of the means of establishing his or her claim or defense ... the record does not demonstrate that [Burke] has been left 'prejudicially bereft' of the means of prosecuting her action." Accordingly, the Appellate Division ruled that "given that [Burke] has in her possession, among other evidence of the condition of the stairs, photographs of the stairs taken after the commencement of this action, "an appropriate sanction is that an adverse inference charge be given at trial with respect to any now unavailable evidence of the condition of the stairs."

In contrast, in some instances the destruction of records will not be deemed to be subject to sanctions for "spoilage."

In Matter of Klikocki (NY Department of Corrections, Mount McGregor), 216 AD2d 808, the Appellate Division decided that evidence Klikocki claimed would be helpful in his defense in a disciplinary action that the employer had destroyed had not been destroyed in an effort to conceal something but rather occurred in accordance with the normal procedure concerning the retention or destruction of certain records after they had been retained for a specified period of time.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_04593.htm

New York courts use a "two-prong" test to determine if a dispute between a public sector employer and public sector employees may be submitted to arbitration

New York courts use a "two-prong" test to determine if a dispute between a public sector employer and public sector employees may be submitted to arbitration

Village of Garden City v Professional Firefighters Assn. of Nassau County, Local 1588, 2017 NY Slip Op 04849, Appellate Division, Second Department

The Village of Garden City sought to permanently stay arbitration of an alleged violations of a collective bargaining agreement [CBA] demanded by the employee organization, contending that the grievance at issue was not subject to arbitration because [1] the provisions alleged to have been violated were not a part of the parties' CBA; [2] the provisions involved did not contain its own arbitration clause; [3] the matters in dispute were not binding due to improper execution or expiration; and [4] public policy barred arbitration of the dispute.

In contrast, the Association moved to compel arbitration, arguing that the agreements it relied upon in its demand for arbitration constituted an addendum to the CBA and, thus, were subject to arbitration.

The Supreme Court determined that [1] arbitration of the dispute was not against public policy and [2] that the dispute was subject to the arbitration provisions in the parties' CBA. The Village appealed Supreme Court's granting the Association's motion to compel arbitration.

Citing Locust Val. Cent. Sch. Dist. v Benstock, 144 AD3d 758, the Appellate Division said that "The determination of whether a dispute between a public sector employer and [its] employee is arbitrable is subject to [a] two-prong test."

First, the court must determine whether there is any statutory, constitutional or public policy prohibition against arbitration [of] the grievance."

Second, should the court determine that there is no such prohibition against arbitrating the dispute, it must examine the parties' collective bargaining agreement and determine if they, in fact, agreed to arbitrate the particular matter in dispute.

The Appellate Division then explained that in examining the collective bargaining agreement the court merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the agreement. Should the court rule the matter arbitrable, the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the CBA and whether the subject matter of the dispute fits within them.

Further, the Appellate Division observed that a court "may not consider whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute."

In this instance the Appellate Division ruled that Supreme Court correctly held that public policy does not prohibit arbitration of the Association's grievance alleging that the Village violated certain procedures and that it also correctly held that the Association's grievance was reasonably related to the general subject matter of the CBA. Thus, the question of the scope of the substantive provisions of the CBA is a matter of contract interpretation and application reserved for the arbitrator.

Accordingly, the Appellate Division sustained the lower court's granting the Association's motion to compel arbitration.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_04849.htm

Should an entity grants a request to postpone an administrative hearing, it is required take appropriate action to reschedule the hearing

Should an entity grants a request to postpone an administrative hearing, it is required take appropriate action to reschedule the hearing

Doe v Onondaga County, 2017 NY Slip Op 04697, Appellate Division, Fourth Department

Jane Doe initiated an Article 78 action against Onondaga County and the Onondaga County Department of Social Services [Onondaga County].

Onondaga County asked Supreme Court to dismiss Doe's complaint contending Doe failed to comply with the provisions set out General Municipal Law §50-h as she failed to comply with its demand for a hearing pursuant to General Municipal Law §50-h.

Supreme Court denied Onondaga County's motion and the County appealed.

Citing Legal Servs. for the Elderly, Disabled, or Disadvantaged of W. N.Y., Inc. v County of Erie, 125 AD3d 1321, the Appellate Division said that "It is well settled that a plaintiff who has not complied with [the requirements set out in] General Municipal Law §50-h(5) is precluded from maintaining an action against a [county]."

However, §50-h(5) also provides, as here relevant, that "[t]he action, however, may not be commenced until compliance with the demand for examination if the claimant fails to appear at the hearing or requests an adjournment or postponement beyond the ninety day period. If the claimant requests an adjournment or postponement beyond the ninety day period, the city, county, town, village, fire district or school district shall reschedule the hearing for the earliest possible date available."

The Appellate Division pointed out that Doe was in compliance with the statute as after Onondaga County demanded a General Municipal Law §50-h(5) hearing, Doe requested and was granted an adjournment of that hearing.

Contrary to the Onondaga County's contention, the Appellate Division said that it was incumbent upon the County to reschedule the adjourned hearing. Accordingly Supreme Court correctly denied Onondaga County's motion to dismiss Doe's petition.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_04697.htm

Determining if a complaint alleging sexual harassment based a claim of a continuing violation of New York State's Human Rights Law is timely

Determining if a complaint alleging sexual harassment based a claim of a continuing violation of New York State's Human Rights Law is timely

Lozada v Elmont Hook & Ladder Co. No. 1, 2017 NY Slip Op 04845, Appellate Division, Second Department

Beatrice Lozada, a former volunteer firefighter with the Elmont Hook and Ladder Company No. 1 [Elmont], filed administrative complaints against Elmont with the New York State Division of Human Rights [DHR] alleging that she had been subjected to a hostile work environment as the result of sexual harassment.

After a hearing, the DHR Adjudication Counsel [AC] determined that although the acts of sexual harassment that occurred during Lozada's early service with Elmont "clearly" constituted a hostile work environment, those acts occurred outside of the applicable one-year statute of limitations period set out in Executive Law §297(5). In addition, the AC determined that Lozada had failed to establish a continuing violation concluding that her hostile work environment claim was time-barred.

The Commissioner adopted the AC's findings and recommendation that Lozada's complaint be dismissed. In response, Lozada initiated an Article 78 proceeding challenging the Commissioner's decision with respect to the Commissioner's finding that her hostile work environment claim based upon sexual harassment was untimely.

The Appellate Division sustained the Commissioner's decision, which it found was supported by substantial evidence and was not arbitrary and capricious. The court explained that a review of the record demonstrated that the Commissioner's determination that Lozada failed to establish a continuing violation and thus her sexual harassment claim based a hostile work environment relying the Doctrine of Continuing Violation was misplaced. 
    

Although Lozada did establish the existence of a hostile work environment based on incidents of sexual harassment, the court noted that those incidents occurred outside the limitations period and Lozada failed to prove that a specified related incident took place within the limitations period required to invoke the Continuing Violation Doctrine.

The court explained that a hostile work environment claim is subject to a one-year statute of limitations and a hostile work environment claim, by its very nature, is predicated on a series of separate acts that collectively constitute an unlawful discriminatory practice.

Case law considering the Doctrine of a Continuing Violation indicates that the Doctrine is triggered even though one or more of those unlawful acts might have occurred outside of the limitations period so long as at least one of unlawful acts occurred within the limitations period.

Considering the viability of relying on the Doctrine of Continuing Violation in adjudicating a hostile work environment claim, in Strauss v New York State Dept. of Educ., 26 AD3d 67, the court held that "[i]n the case of a hostile work environment claim, the statute of limitations requires that only one sexually harassing act demonstrating the challenged work environment occur within [the statutory period]" and that "once that is shown, a court . . . may consider the entire time period of the hostile environment in determining liability."

Finding that there was no basis to vacate the Commissioner's determination in this instance, the Appellate Division dismissed Lozada's appeal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_04845.htm