Administrative Law Judge holds that intent is a pre-requisite for a finding of misconduct

Administrative Law Judge holds that intent is a pre-requisite for a finding of misconduct

OATH Index No. 802/12

A sanitation worker was charged with committing misconduct for being absent without leave (“AWOL”).

The worker, however, established that he was absent on the days charged because voices told him he would be killed if he attended in the course of the disciplinary hearing. The worker also submitted medical records documenting a history of his mental disability.*

Because intent is a pre-requisite for a finding of misconduct, OATH Administrative Law Judge Faye Lewis recommended dismissal of the charges.

In the words of Judge Lewis, “Where respondent’s disability caused him to have a sincere belief that he would be killed if he went to work, he cannot be blamed for not doing so. Respondent lacked the intent that is a prerequisite under section 75 of the Civil Service Law for a finding of misconduct. Therefore, his absence without authorization did not constitute misconduct.”

The ALJ also noted that the agency is not precluded from seeking to place the employee on disability leave [see Civil Service Law §72.

* In an administrative disciplinary action the accused “may defend against the charges by showing that he [or she] lacked the requisite intent to commit the charged misconduct because he was mentally incapacitated. Such a defense is in the nature of an affirmative defense which respondent bears the burden of proving by a preponderance of the evidence.” Health & Hospitals Corp. (Lincoln Medical & Mental Health Ctr.) v. Bruce, OATH Index No. 138/10

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-0802.pdf

Changing payroll-payment mode a mandatory subject of collective bargaining

Changing payroll-payment mode a mandatory subject of collective bargaining
United College Employees of Fashion Institute of Technology and Fashion Institute of Technology, PERB U-27057

The Board affirmed the decision of the ALJ that FIT violated §209a.1(d) of the Act when it unilaterally changed a past practice of paying day adjunct faculty represented by UCE on the basis of 16 weeks of work, thereby reducing their salaries by one-sixteenth.

Finding that a cognizable past practice of payment for 15 weeks of instruction and one week of registration had existed for almost 30 years established a reasonable expectation that it would continue unchanged, the Board rejected FIT's argument that it had no actual or constructive knowledge of the practice.

The amount in the annual budget represented by the 16th week, the actions of management employees in approving both payroll and the budget along with the longevity of the practice were considered by the Board.

The Board also found that the practice involved wages and the method for calculating the payment of salary, both mandatory subjects of negotiations.

Finally, the Board rejected FIT's argument that the payment for the 16th week, during which little or no duties might be performed, was an unconstitutional gift of public monies.

Discrimination complaint dismissed because law did not require an accommodation at the time the request for an accommodation was made

Discrimination complaint dismissed because law did not require an accommodation at the time the request for an accommodation was made

Rappo v NYS Division of Human Rights, 57 AD3d 217

The New York State Division of Human Rights dismissed Frances V. Rappo’s claim that she had been unlawfully discriminated against by her former employer, the New York City Human Resources Administration (HRA). Rappo alleged that HRA had failed to reasonably accommodate her disability.

The Appellate Division dismissed Rappo’s petition, explaining that at the time she made her request for a reasonable accommodation of her disability Executive Law §292(21) -- New York State’s Human Rights Law -- did not require an employer to provide "reasonable accommodations" of an applicant’s or an employee’s disability.

Further, the court said that substantial evidence supports the determination that HRA was not required to provide Rappo with a job transfer as a reasonable accommodation, since she failed to demonstrate that she could not perform the essential duties of her then present job and that she would be able to perform the essential duties of another job.

The full text of the decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09447.htm