Summaries of recent New York City Office of Administrative Trials and Hearings decisions

Summaries of recent New York City Office of Administrative Trials and Hearings decisions

Source: New York City Office of Administrative Trials and Hearings 

Excessive absences

Office of Administrative Trials and Hearings , OATH Index No. 108/18

OATH Administrative Law Judge Kara J. Miller sustained a charge of excessive absence for a New York City  eligibility specialist [Respondent] who was absent 149 days during a 15-month period.

ALJ Miller noted that even if Respondent's absences were authorized or documented, they still counted towards her total number of absences because she was charged with excessive absenteeism, not unauthorized absences.

Although the agency’s rules do not define what constitutes excessive absence, relevant factors such as the Respondent’s absentee rate was 61 percent, that many of her absences were unplanned, that she exhausted her leave balances, that she received warnings about her attendance, and that her absences had a negative impact on her unit, established the charge of excessive absenteeism.

As Respondent was previously disciplined for similar misconduct, termination of her employment was recommended.

The decision is posted on the Internet at:
http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-108.pdf 

Employee's testimony concerning routes taken and time worked corroborated by GPS evidence

Office of Administrative Trials and Hearings , OATH Index No. 1417/18

Respondent, a New York City traffic device maintainer, was found to have failed to secure his tools and failed to keep his truck clean.

OATH Administrative Law Judge Joycelyn McGeachy-Kuls dismissed a charge that Respondent failed to timely report to his field work assignment.

Further, Judge McGeachy-Kuls found Respondent's testimony regarding routes taken and time worked, corroborated by GPS evidence, was credible. A three-day suspension was imposed for the proven misconduct.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-1417.pdf 

Termination recommended worker who refused to submit to a drug test following an accident at work and was found guilty of other charges

Office of Administrative Trials and Hearings , OATH Index No. 1566/

A New York City sanitation worker [Respondent] was charged with refusing an order to take a drug test following an accident, under Department rules which require a test after an accident causing “significant equipment or property damage.”

The evidence showed that the Respondent drove a front-end loader which hit a salt spreader. The spreader had to be taken out of service and was repaired by two metal repair technicians.

Four supervisors examined the damage and all concluded it was significant. ALJ Spooner found the Department had a sufficient basis to order the drug test. He also credited a supervisor’s testimony that after he ordered the Respondent to take the test, the Respondent left the garage.

The Respondent also failed to submit documentation for emergency leave, used an ethnic slur in a report, and failed to report to the clinic as directed.

The ALJ recommended that the appointing authority terminate the Respondent.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-1566.pdf

Selected Links to featured Employment Law News items from WK Workday

Selected Links to featured Employment Law News items from WK Workday

Posted September 6, 2018

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Top labor and employment developments for August 2018

Chart of nonunit positions showed information requested by union—and withheld by employer—was relevant

FCRA class action revived because lost opportunity to respond to background check was concrete injury

Requiring applicant BNSF perceived had a back impairment to pay for MRI, revoking job offer when he refused, showed disability bias

Former police dispatcher who received bad references after she sued can proceed with 1st A retaliation claim

Dispute over retiree healthcare benefits not subject to arbitration as retirees are not ‘employees’ under CBA

Email to board of directors, letter from attorney don’t ‘remotely’ support FLSA reprisal case

The shifting burdens of going forward in cases alleging unlawful discrimination

The shifting burdens of going forward in cases alleging unlawful discrimination

Haughton v Town of Cromwell, Cromwell Police Department, USCA, Second Circuit, Docket 17-2412-cv [2018]

Robert Haughton, a Town of Cromwell, Connecticut, police officer, alleged that the Town refused to assign to the position of Detective because of racial or ethnic discrimination in violation of Title VII of the Civil Rights Act.

While it is unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin," the Circuit Court explained that an aggrieved employee is required to demonstrate a prima facie case of disparate treatment, at which point the burden shifts to the employer to demonstrate that the employment decision was made for 'legitimate, nondiscriminatory' reasons."

Further, said the court, if the employer meets this burden, the plaintiff must then “offer evidence sufficient to support a reasonable inference that . . . the defendant intentionally discriminated against the plaintiff.”

In this instance the court assumed, without deciding, that Haughton met his prima facie burden. However, the Circuit Court held that the Town met its burden in demonstrating a legitimate, non-discriminatory reason for its assignment decision and Haughton failed to demonstrate that reasons offered by the Town in support of its decision "was merely pretext."

Haughton failed to identify admissible evidence that would permit a jury to find that the Town acted with discriminatory intent when it chose to promote another officer instead of Haughton to Detective and employers are entitled to set their own legitimate, nondiscriminatory requirements for open positions.

The decision is posted on the Internet at:

https://www.courtlistener.com/opinion/4529422/haughton-v-town-of-cromwell/

Duty of fair representation

Duty of fair representation

Staten v Patrolmen’s Benevolent Ass’n.,  et al, USCA, Second Circuit, Docket 17-3764

In this action Claude A. Staten, pro se, sued his union, the Patrolmens’ Benevolent Association [PBA] for breach of contract, violation of the duty of fair representation, and discrimination and retaliation under Title VII of the Civil Rights Act of 1964. The district court dismissed Staten’s complaint for failure to state a claim. The Circuit Court, sustaining the lower court's ruling, said the district court had correctly dismissed Staten’s breach of contract claim.

The Circuit Court explained that:

1. A union member may sue his union for breach of a collective bargaining agreement, citing United Steelworkers of Am., AFL-CIO-CLC v. Rawson , 495 U.S. 362;

2. The union member “must be able to point to language in the collective-bargaining agreement specifically indicating an intent to create obligations enforceable against the union by the individual employees; and

3. Staten failed to cite any language from the CBA that obligated the PBA to provide legal representation to him in his discrimination lawsuits against the police department.

The Circuit Court noted that Staten alleged that the PBA’s website listed "the legal benefits the PBA offered active-duty police officers" for his or her legal representation. However, as the district court observed, however, those benefits "do not include representation in affirmative discrimination suits against the police department."

Further, the district court had dismissed Staten’s duty of fair representation claim as untimely, noting that there is a six-month statute of limitations for duty of fair representation claims and the PBA had denied Staten's request for representation eleven months before he filed his initial complaint in federal district court.

Although Staten argued that the PBA’s actions "were part of a continuous violation and that his lawsuit was therefore timely," the Circuit Court pointed out that "the continuous violation doctrine, which permits a plaintiff to raise challenges to otherwise time-barred events because they are a part of a pattern of illegal activity, does not apply to duty of fair representation claims," citing Buttry v. Gen. Signal Corp., 68 F.3d 1488.

Another element noted in the decision was that Staten’s Title VII claims ran afoul of a failure to exhaust administrative remedies as "[b]efore a plaintiff can file a federal court complaint under Title VII, he [or she] must exhaust his [or her] administrative remedies by filing a charge with the EEOC and receiving a right-to-sue letter.  Apparently Staten failed to obtain a right-to-sue letter before filing his original and amended complaints.

The decision is posted on the Internet at: http://www.ca2.uscourts.gov/decisions/isysquery/6d5f1df6-ca6c-4372-9e16-1954ef0e5b03/6/doc/17-3764_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/6d5f1df6-ca6c-4372-9e16-1954ef0e5b03/6/hilite/

School bus safety

School bus safety

Source: Office of the State Comptroller

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On August 30, 2018 the New York State Comptroller, Thomas P. DiNapoli, announced the following report on school bus safety was issued.

State Comptroller Thomas P. DiNapoli released an audit that examined seven upstate school districts and their compliance with school bus safety requirements. The audit found school districts are not confirming all school bus drivers are completing required training and drug testing, and that school bus safety drills and inspections are done.

“When parents place their children on school buses each day, they do so with the expectation that every safety measure possible has been fulfilled,” said DiNapoli. “Failing to ensure that school bus drivers are properly trained and vetted, and safety drills take place could endanger students. With the upcoming school year upon us, superintendents and school boards need to act quickly to address their district’s shortcomings identified in our audit.”

DiNapoli’s audit focused on seven districts in upstate New York during the 2016-17 school year: Clarence Central School District (Erie County), Cornwall Central School District (Orange), Horseheads Central School District (Chemung), Rome City School District (Oneida), Saratoga Springs City School District (Saratoga), Watertown City School District (Jefferson) and the West Irondequoit Central School District (Monroe).

Of the seven districts examined, five contracted out with eight different vendors for some or all of their student transportation needs. Three of those five also provided some in-house transportation. The remaining two districts provided all in-house transportation.

Auditors reviewed the districts’ and vendors’ compliance with five state and federal requirements. Specifically, they examined whether drivers were subject to random drug testing, completed required safety training and were annually approved by the district superintendent. Auditors also looked into whether or not districts and vendors conducted and documented bus safety drills and bus inspections were completed and reviewed.

Horseheads met three of the five requirements, while Rome and Saratoga Springs met none. Clarence, Cornwall, Watertown and West Irondequoit only met one of the requirements.

Not All Drivers Were Subject to Drug and Alcohol Testing

Drivers for Cornwall and West Irondequoit were all documented as subject to random drug and alcohol tests. The other five districts and vendors did not have processes in place to ensure that their current roster of drivers were included on the random drug and alcohol testing list.

In West Irondequoit, neither the district nor the vendor could provide documentation to support that two of its drivers, who began transporting students in 1999 and 2006, completed mandatory drug and alcohol tests.

Safety Drills Not Always Properly Conducted

Students are required to participate in a minimum of three bus safety drills each school year. These drills are required for all students, not only those who consistently ride the bus. The drills are to address various topics, including emergency evacuation, safe boarding and exiting, seasonal weather hazards, bus behavior and rules, and seat belt usage.

Of the 864 required drills required during the period examined, 324 (38 percent) either lacked evidence that they were conducted or lacked a district official’s signature indicating they were observed. Two districts – Horseheads, which provides in-house transportation, and Watertown, which contracts out for a majority of its transportation needs − completed and adequately documented all required safety drills.

The remaining five districts either could not provide documentation to support that all safety drills were conducted or provided documentation that lacked a district official’s signature.  

Bus Inspections Fall Short

Buses should have daily pre-trip inspections conducted prior to each run, whereby the driver indicates that they have observed various aspects of the bus and that all is in proper working order.

While the majority of the districts and vendors examined did conduct pre-trip inspections, there was no documented review of all pre-trip inspections reports by the head mechanic or another designated official, as recommended by the State Education Department. Therefore, districts may lack assurance that all pre-trip inspections are performed. This could result in hazardous issues not being identified on the buses or that identified hazards are not corrected in a timely manner.

For example, auditors observed that Rome’s 11 in-house drivers did not conduct the pre-trip inspections; however, the auditors did find documentation indicating the inspections had been completed.

Not All Drivers Trained as Required

While all districts and vendors had individuals who were responsible for facilitating training and ensuring that drivers met all requirements, auditors found that all but one district had deficiencies. Of the 777 district and vendor drivers reviewed, 169 (22 percent) did not complete the required training. In Rome, 53 percent of drivers lacked proper training documentation. Horseheads was the only district to have documentation to support that each of the district drivers attended all required training.

Complaints Not Adequately Documented

None of the school districts examined were properly recording, investigating or following up on complaints made by citizens, parents and employees with regard to drivers, monitors, attendants, bus stops or any other safety concerns. The lack of a centralized complaint log and process could result in specific dangers not being identified or resolved. This creates a risk that issues and problems could go unnoticed and result in safety risks for students.

Not All Superintendents Annually Approved Drivers

While Clarence and Horseheads superintendents annually approved all their drivers, Cornwall, Rome, Saratoga Springs, Watertown and West Irondequoit superintendents did not. Failure to annually approve drivers creates a risk that any known issues regarding a driver may not be considered in evaluating the driver’s fitness.

DiNapoli recommended school officials take immediate steps to address the deficiencies identified in the audit, including:

Ensuring that the superintendent annually approve all drivers that transport district students, including contracted transportation vendor drivers.

Taking an active role in overseeing transportation department and contracted vendors’ activities and their compliance with requirements. This should include ensuring that:

All drivers meet the minimum training requirements to transport district students;

All drivers are included on the random drug and alcohol testing list;

All drivers are subject to observation by a trained official to ensure that they are not under the influence of drugs or alcohol prior to starting a run;

All bus safety drills are actively observed and all safety drill forms are signed; and

All buses have pre-trip inspections conducted, reviewed timely and adequately documented.

Establishing procedures for the intake, documentation and resolution of complaints.

The final reportcan be found online at https://www.osc.state.ny.us/localgov/audits/swr/2018/School-Bus-Safety/global.pdf.