Surveillance video used to support disciplinary charges alleging patient abuse served on an employee at a geriatric facility

Petitioner, a certified nurse's aide at a geriatric facility, was observed on a surveillance video force-feeding a patient in a rushed and rough manner. Petitioner was charged by the New York State Department of Health [DOH] with patient abuse and neglect as defined under 10 NYCRR 81.1(a) and (c), respectively, in violation of Public Health Law §2803-d. 

Then Commissioner Zucker adopted the Administrative Law Judge's findings and recommendations and sustained the charges of patient abuse and neglect. Petitioner commenced this CPLR article 78 proceeding to challenge the Commissioner's determination.

The Appellate Division opined that contrary to the Petitioner's contention, the ALJ providently exercised her discretion in admitting into evidence the surveillance video footage, citing Walker v Zucker, 146 AD3d 789. Further, said the court, substantial evidence in the record supports the Commissioner's determination that the charges were substantiated by a fair preponderance of the evidence presented at the hearing.

The decision states "DOH's evidence showed the petitioner feeding the patient heaping spoonfuls of food at a rapid pace and in an extremely rough manner, not allowing the patient sufficient time to swallow. Even the [Petitioner], herself, testified that she fed the patient at a rapid pace and that she should have been "more gentle."

The Appellate Division confirmed the Commissioner's determination, denied the petition, and dismissed the proceeding on the merits.

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

 

From the Blogs: GovTech Today's postings on August 7, 2023

GovTech Today's postings on August 7, 2023, included the following items:

Why Should Young People Work in Government IT? On the record: State technology leaders share their pitches to get fresh faces into state and local government IT shops. READ MORE

The Hidden Costs of Robotic Process Automation in Government Robotic process automation is increasingly popular as a way to speed up government work. But this isn't always the answer — and at times, it may cause an agency unforeseen headaches down the road. READ MORE

Administrative Law Judge recommended termination of Correction Officer found guilty of failing to report for duty on numerous occasions and certain other acts of misconduct

New York City Office of Administrative Trials and Hearings Administrative Law Judge Julia H. Lee recommended termination of employment for a New York City Correction Officer [Officer] found guilty of certain charges of failing to report for duty and being absent without leave on numerous occasions.

Judge Lee found Officer had repeatedly refused lawful orders to work overtime, arrived late to work on over 200 dates, and failed to perform her duties in a timely and efficient manner.

Officer did not deny the time and leave violations but contended that being ordered to work beyond her regular hours damaged her health and well-being. The ALJ rejected this argument, finding that Officer’s health concerns were not a defense and did not amount to a medical emergency under the health and safety exception to the “obey now/grieve later” principle.

Although the charges served on Officer were sustained in part and were dismissed in part, and the fact that Officer had no prior disciplinary history, Judge Lee recommended Officer's termination, opining that dismissal was warranted due to the number of violations and the officer’s unwillingness to accept responsibility for her those acts of misconduct for which the ALJ found her guilty.

Click HERE to access Judge Lee's decision and recommendation posted on the Internet.

 

Probationary teacher denied tenure following two extensions of her probationary period

The New York City Department of Education [DOE] appointed an individual [Plaintiff] as an educator effective March 2014 subject to the satisfactory completion of a three-year probationary period. In January 2017, Plaintiff agreed an extension of her probationary period for another year, "in order to give her more time to develop additional evidence in support of a grant of tenure" in lieu of termination.

During the 2017-2018 school year Plaintiff received an unsatisfactory observation rating and a disciplinary "letter to file." In January 2018, Plaintiff again agreed to extend her probationary service for another year, again in lieu of termination. 

During the 2018-2019 school year Plaintiff received two more "letters to file" and in January 2019 DOE denied Plaintiff a certification of satisfactory completion of probation and discontinued her employment as a probationary teacher. 

Petitioner commenced a CPLR Article 78 procedure seeking a review the DOE's dismissing her from her employment as a probationary teacher. Supreme Court denied the petition and dismissed the proceeding and Plaintiff appealed the Supreme Court's decision.

Citing Matter of Feinerman v Board of Coop. Educ. Servs. of Nassau County, 48 NY2d 491, the Appellate Division sustained the Supreme Court's ruling, explaining that that contrary to argument that she "had acquired the right to a hearing pursuant to  Education Law §3020-a with respect to the discontinuation of her probationary employment pursuant to the terms of the relevant collective bargaining agreement [CBA], the record shows that:

1. Plaintiff "freely, knowingly, and voluntarily waived her rights to tenure;

2. DOE "did not coerce or place Plaintiff under duress to induce her to sign the probation extension agreements;" and

3. Although Plaintiff contended that she had acquired the right to a hearing under Education Law §3020-a upon discontinuation of her probationary employment pursuant to the terms of the relevant CBA, the record indicated that Plaintiff failed to file a grievance pursuant to the procedure set forth in the CBA to dispute DOE's failure to  provide her with a Education Law §3020-a hearing.

Further, the Appellate Division opined that a probationary teacher "may be terminated during his or her probationary period for any reason, or no reason at all, and without a hearing, unless the teacher establishes that his or her employment was terminated for a constitutionally impermissible purpose, in violation of a statutory proscription, or in bad faith." In any event, said the court, "The [Plaintiff] bears the burden of establishing bad faith or illegal reasons by competent evidence".

Noting that the evidence demonstrated that the Plaintiff "received multiple letters to file, that she received an unsatisfactory observation rating, and that she lacked professionalism during her probationary employment", the Appellate Division concluded that such evidence demonstrated that the DOE's decision denying Plaintiff a grant of tenure and discontinuing her probationary employment was made in good faith and that DOE's determination was rationally based and not arbitrary and capricious. 

Thus, said the court, Supreme Court "properly, inter alia, denied the petition and dismissed the proceeding".

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

 

Recent posts on the Internet concerning the use of Artificial Intelligence [A.I.] in a government setting

 Click on the text in color to access the item described.

The City of San Jose, California, has joined a growing number of cities addressing generative AI tools, doing so with a set of new guidelines for using the tech, which city officials consider a living document. 

What Does Generative AI Mean for the Justice System? (Part 1)

What Does Generative AI Mean for the Justice System? (Part 2)

AI in Action: Who’s Leading the Way in Generative AI 

 

N.B. As NYPPL's masthead notes "Artificial Intelligence [A.I.] is not used, in whole or in part, in the preparation of summaries of judicial and quasi-judicial decisions posted on the Internet by NYPPL."