New York City
Office of Administrative Trials and Hearings Administrative Law Judge [ALJ] Julia H.
Lee recommended the termination of the employment of an administrative manager [Respondent] the ALJ found guilty of disciplinary charges that alleged Respondent had assaulted a
co-worker [Co-worker] by striking him on the head with a metal pipe.
Co-worker did not testify at the trial* but the Appointing
Authority [Employer] presented the
testimony of six employees who "heard a commotion and arrived on scene" and witnessed the interaction between Respondent and Co-worker.
The failure of Co-worker to testify triggered the Respondent's asking the
ALJ to apply the sanction of "adverse inference"** based on Employer’s failure to call Co-worker
as a witness.
Judge Lee opined that "An adverse/negative inference based on
a missing witness may be appropriate where the moving party has laid a
foundation that the witness has knowledge about a material issue, that he would
naturally be expected to give testimony favorable to the party who failed to
call him, and that the witness is available to that party," citing Comm’n on
Human Rights ex rel. Brehshiek Marquez v. Fresh & Co., OATH Index No.
434/22 at 24-25.
Considering the particular facts of this case and the ALJ's credibility
determinations with respect to the testimony of the Respondent and the testimony of the Employer’s witnesses, Judge Lee:[1] Declined to
draw an adverse inference as the result of Co-worker’s refusal to testify
at the disciplinary hearing or
the Employer’s failure to call Co-worker as a witness, noting "The
factfinder’s drawing of an adverse inference is permissive, not
required", citing People v. Gonzalez, 68 N.Y.2d at 431, and LLC v. Ward, 276 A.D.2d 277, 278; and
[2] Did not credit the Respondent’s testimony that Co-worker had struck her first.
Judge Lee, duly noting Respondent's employment by the
agency for 36 years, concluded that the gravity of the "violent
conduct" of Respondent which resulted in the instant disciplinary action, and that Respondent had been involved in "four prior incidents of disruptive behavior", warranted
termination and recommended that the penalty of dismissal be imposed on Respondent by the Employer.
* The disciplinary hearing
was conducted via WebEx videoconference.
** The "adverse
inference" sanction is based on the theory that if a litigant fails
to present certain known evidence or testimony, such evidence or testimony would not be helpful, or might even be harmful, to the litigant. In Varriale v City of New York, 148 AD3d 650, the Appellate Division opined the failure of
a defendant in an administrative disciplinary procedure to testify
concerning an event permits a disciplinary hearing officer
to draw the strongest inference against the defendant permitted by the
record.
Click HERE to access Judge Lee's findings and
recommendation posted on the Internet.
* * *
A Reasonable Disciplinary Penalty Under the Circumstances. NYPPL's
public personnel law handbook focusing on determining an appropriate
disciplinary penalty to be imposed on an officer or an employee in the public
service of the State of New York and its political subdivisions in instances
where the individual has been found guilty of misconduct or incompetence. For
more information and access to a free excerpt of the material presented in this
e-book, click HERE.