Recent decisions issued by New York City Office of Administrative Trials and Hearings Administrative Law Judges

ALJ Julia H. Lee recommended termination of employment for a correction officer who unjustifiably struck an inmate in the face and torso. The correction officer’s claim that he used “soft hand“ techniques in response to a threat from the inmate was contradicted by video evidence and testimony. Click HEREto access Judge Lee's decision and recommendation.

 

ALJ Christine Stecura recommended a 30-day suspension for a correction officer who submitted a false, misleading, incomplete, and inaccurate report regarding a use of force incident by failing to report that she observed another officer headbutt an inmate where the video evidence established that respondent observed the incident from close range and with an unobstructed view. Click HEREto access Judge Stecura's decision and recommendation.

 

ALJ Joan R. Salzman recommended termination of employment for a Department of Correction captain who delivered clothes in a brown paper bag to an inmate after midnight, a few hours before the inmate died of a heart attack due to drug overdose, was unduly familiar with the inmate, and failed to submit an Unusual Incident Report regarding the death. The captain was also found to have used impermissible force when he put another inmate in a chokehold while that inmate was handcuffed, to have submitted a false or misleading report, and to have given false or misleading information about this second incident in an investigatory interview. Click HEREto access Judge Salzman's decision and recommendation.

 

ALJ Salzman recommended a 50-day suspension for a correction officer who she found, had failed to exercise self-control and used impermissible force against an inmate who provoked her. ALJ Salzman also found that the officer filed a misleading report about the incident, omitting important information and minimizing facts unfavorable to her. Click HEREto access Judge Salzman's decision and recommendation.

 

ALJ Ingrid M. Addison recommended a thirty-five-day suspension without pay for a Triborough Bridge & Tunnel Authority lieutenant who sent text messages to a subordinate that violated the MTA All Agency Policy Directive against sexual and other harassment. ALJ Addison also found that respondent regularly referred to subordinates using derogatory, discriminatory language but the evidence did not establish that respondent made unsolicited sexual advances towards the complaining subordinate. Click HEREto access Judge Addison's decision and recommendation.

 

ALJ Joan R. Salzman recommended a 20-day suspension, with credit for five days pre-trial suspension served, finding a correction officer negligently failed to supervise an inmate who slipped off his handcuffs unseen by the officer and his partner and escaped from a group of inmates the officer had driven to a Department of Correction facility parking lot in an agency bus. ALJ Salzman found that the officers did not maintain constant visual supervision of the inmates as they walked into the facility, and that the officer stayed with the bus while his partner walked ahead of the inmates, contrary to agency protocol for escorting inmates. The inmate hid in the parking lot for seven or eight minutes, sometimes under a parked bus, and then was captured and secured into custody. The officer, who had no prior record of discipline in his eight years of DOC service, gave forthright testimony and admitted his error. Click HEREto access Judge Saltzman's decision and recommendation.

 

ALJ Kevin F. Casey recommended termination of employment for a correction officer who engaged in a sexual relationship with an inmate, provided the inmate with contraband, and told the inmate to delay reporting a rape committed by another officer. Click HEREto access Judge Casey's decision and recommendation.

 

ALJ Michael D. Turilli recommended termination of employment for a correction officer who was excessively absent and found to be medically incompetent to perform his duties as a correction officer. The officer called out sick on 295 days from mid November 2020 through the date of trial in February 2022. Click HEREto access Judge Turilli's decision and recommendation.

 

Five-year collective bargaining agreement between the State and CSEA negotiated pursuant to Article 14 of the Civil Service Law ratified

On August 3, 2022 New York State Governor Kathy Hochul announced the ratification of a five-year collective bargaining agreement by the members of the Civil Service Employee Association [CSEA] applicable to more than 52,000 New York State employees serving in a wide variety of positions. The agreement, which runs until April 1, 2026, won the approval of more than 80 percent of CSEA members who cast ballots.

"This contract fairly compensates the hard-working men and women of the Civil Service Employee Association who help to deliver critical services to New Yorkers every day," Governor Hochul said. "I thank [CSEA] President Sullivan for her partnership in getting this agreement over the finish line and ensuring that it acknowledges the valuable contributions of CSEA members to our great state."

Civil Service Employee Association President Mary E. Sullivan thanked the CSEA negotiating team "for their hard work and dedication to delivering this new state contract. The agreement was overwhelmingly ratified by our membership and across all four of our executive branch bargaining units."

The ratified collective bargaining agreement [CBA] includes raises in each year of the agreement of 2% for the first two years and 3% for the remaining three years. In addition, the CBA provides for other increases in compensation such as a one-time lump sum bonus of $3,000 and changes in longevity as a result of changes in the health insurance program that will encourage in-network employee participation and help control health insurance costs. The CBA also includes funding of labor-management committees.

 

Smart ways to help control health insurance costs and root out waste and abuse

Steve Cohen's most recent article in MedPage Today observes "Everyone knows how expensive healthcare is. There are smart ways to help control costs and root out waste and abuse. But prior authorization by health insurance companies is not one of them."

Cohen's article, “Denying essential medical care doesn’t save money — or lives,” in KevinMD.com discusses why.

Read the article here.

Disciplinary action based on the employee's allegedly making false statements and, or, submitting false or misleading reports in the course of EEOC investigations

42 U.S.C. §2000e-3(a) provides that “It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this sub-chapter”.

Most federal courts that have addressed this issue have found that the statute protects employees from being subjected to discipline for filing discrimination claims or participating in EEOC investigations, “regardless of whether the allegations in the original charge were valid or reasonable.”

A New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judge, Kevin F. Case, recommended dismissal of certain Specifications that alleged that a New York City Comptroller’s Office computer associate [Associate] obstructed an investigation by making false statements and submitting false documentation.

ALJ Casey found that Associate engaged in a protected activity when she filed an Equal Employment Opportunity [EEO] retaliation claim and suffered being served with disciplinary charges stemming her filing that claim. The ALJ opined that this could deter the Associate or others from filing discrimination claims, contrary to New York City’s Human Rights Law. 

The ALJ the held that with respect to one Specification filed against the Associate, Specification IV, the Associate was not entitled to such protection, finding that the Associate lacked a reasonable belief that Specification IV was true and thus she may be subject to disciplinary action with respect to Specification IV.

Judge Casey found that the Associate’s false or misleading statement to the Department of Investigation cited in Specification IV constituted misconduct and was not a protected activity, and recommended the imposition of a penalty of a 20-day suspension without pay. 

Click HERE to read the text of the ALJ's opinion.

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 about this electronic handbook, click HERE.  Click to Read a FREE excerpt (requires Adobe Reader). 

 

An administrative determination by the Public Employment Relations Board made following an administrative hearing will be sustained if it is supported by substantial evidence

In response to a threat by an individual that "I'm coming tomorrow with a gun to shoot up this ...." school, a teacher at the school and the building delegate chairperson for employee organization [Union] representing the teachers announced that there was going to be a meeting in her classroom. During that meeting or shortly thereafter, 10 teachers called "out of work for the following day" and ultimately, a total of 23 teachers employed at the school called in sick and were absent from work the next day.

The district conducted an investigation and concluded that 16 of the 23 teachers absent from work had engaged in an unlawful strike. The district then filed a notice and a charge with the Public Employment Relations Board [PERB] alleging the Union had violated Civil Service Law §210(1) by engaging in an unlawful strike against the district.

Following a hearing, a PERB Administrative Law Judge [ALJ] sustained the charge, determining that Union had engaged in an unlawful strike in violation of Civil Service Law §210(1). PERB ultimately affirmed the ALJ's decision, holding that the Union had "engaged in, caused, encouraged, instigated, and condoned an unlawful strike by unit members." The Union challenged the PERB's ruling and initiated a CPLR Article 78 proceeding, contending that PERB's determination was not supported by substantial evidence.

Noting that Civil Service Law Article 14, commonly referred to as the Taylor Law, provides that "[n]o public employee or employee organization shall engage in a strike, and no public employee or employee organization shall cause, instigate, encourage, or condone a strike," the Appellate Division opined that "an employee who is absent from work without permission, or who abstains wholly or in part from the full performance of his [or her] duties in his [or her] normal manner without permission, on the date or dates when a strike occurs" is presumed to have engaged in such strike on such date or dates.

The issue before the Appellate Division was whether PERB's administrative determination, which was "made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law," was "supported by substantial evidence."

Citing Matter of Haug v State Univ. of N.Y. at Potsdam, 32 NY3d 1044, the Appellate Division explained that "[T]he substantial evidence standard is a minimal standard" that is "less than a preponderance of the evidence, and demands only that a given inference is reasonable and plausible, not necessarily the most probable."

Further, said the court, "[I]t is the responsibility of the administrative agency to weigh the evidence and choose from among competing inferences therefrom and, so long as the inference drawn and the ultimate determination made are supported by substantial evidence, it is not for the court to substitute its judgment for that of the administrative agency," citing Matter of Watson v New York State Justice Ctr. for the Protection of People with Special Needs, 152 AD3d 1025.

Deferring to PERB's credibility determinations, the Appellate Division said that although there is evidence that could support an alternate conclusion, "there is substantial evidence in the record to support PERB's determination that the Union caused, encouraged, instigated, and/or condoned an unlawful strike by 16 of its unit members at the school" and thus "there is no basis upon which to disturb the determination" made by PERB.

Significantly, to the extent that PERB and, or, the ALJ suggested that a finding of an unlawful strike may be negated by a "justification defense" or excepted by a "bona fide fear of personal injury," the Appellate Division opined that it did not find such a defense or exception to have been created by the Article 14 of the Civil Service Law or relevant case law, citing Local 252, Transp. Workers Union of Am. AFL-CIO v New York State Pub. Empl. Relations Bd., 58 NY2d 354. 

Click HEREto access the text of the Appellate Division's decision.