Post-hearing conduct of the employee not considered by the hearing officer in making an administrative decision

Post-hearing conduct of the employee not considered by the hearing officer in making an administrative decision

OATH Index No. 1233/14

OATH Administrative Law Judge Tynia D. Richard presided at a Civil Service Law §72 disability proceeding initiated by the appointing authority. The employer alleged that the individual was “mentally unfit to perform the duties of his position.” The employee denied the allegation.

Judge Richard found the evidence supported the medical opinion of a board certified psychiatrist that the individual was unfit to perform the duties of his position due to a psychotic condition, known as delusional disorder of a persecutory nature, that impeded his ability to make basic engagements with reality and recommended that the employee be placed on leave pursuant to Civil Service Law §72.

The employer subsequently submitted an e-mail requested an “expedited decision” based on the employee’s conduct after the hearing had been closed. The employee’s attorney sent an e-mail objecting to the employee’s post hearing conduct being made a part of the record in this case so as to form the basis for expediting a decision.

The ALJ advised the parties that “it was not proper to put additional facts before me as the record of the case is closed.”  Judge Richard also noted the procedure that the parities were to use in seeking an expedited decision. However, said Judge Richard, a formal request for an expedited decision was never filed.

Although Judge Richard entered the e-mails into the record, she advised the parties that she had not taken the new allegations into account in her analysis of the case nor in making her determination.

The determination: Judge Richard found that the employee was unfit to remain in his position and recommended that he be placed on leave pursuant to §72 of the Civil Service Law, which recommendation was adopted by the appointing authority.

The decision is posted on the Internet at:

 http://archive.citylaw.org/oath/11_Cases/14-1233.pdf
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Filing fraudulent documents to obtain a benefit

Filing fraudulent documents to obtain a benefit

OATH Index No. 229/14

A New York City correction officer was charged with tendering fraudulent documents to obtain subsidized housing benefits, establishing residency in another state for purposes of engaging in unauthorized outside employment, and engaging in unauthorized outside employment.

OATH Administrative Law Judge Astrid B. Gloade found that the officer underreported her income to obtain Section 8 housing benefits*and that although this misconduct   occurred when the employee was “off-duty” an employer may discipline an employee for off-duty misconduct where there is sufficient nexus between the conduct to be

sanctioned and the employee’s job position, citing Villanueva v. Simpson, 69 N.Y.2d 1034.

Judge Gloade also found the the employee had an unauthorized job while on a leave of absence from the Department.

The residency charge was dismissed by the ALJ, who found that the employer failed to prove that the correction officer established residency in another state for purposes of engaging in outside employment..

Judge Gloade, however, recommended that the correction officer be terminated from her position on the basis of charges that were proven by the agency.

* The employee “plead guilty to disorderly conduct (Penal Law §240.20) and agreed to pay restitution in the amount of $19,127 to the federal government within one year” with respect to her obtaining Section 8 housing benefits.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/14-229.pdf

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The doctrine of respondeat superior

The doctrine ofrespondeat superior

Selmani v City of New York, 2014 NY Slip Op 02764, Appellate Division, Second Department

In this action the Appellate Division sets out the basics regarding the doctrine of respondeat superior.

Essentially, said the court, the doctrine of respondeat superior will hold an employer vicariously liable for torts committed by an employee acting within the scope of the individual’s employment. Pursuant to this doctrine, the employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the individual’s employment.

The Appellate Division indicated that:

1. "An employee's actions fall within the scope of employment where the purpose in performing such actions is to further the employer's interest, or to carry out duties incumbent upon the employee in furthering the employer's business'.”

2. "An act is considered to be within the scope of employment if it is performed while the employee is engaged generally in the business of the employer, or if the act may be reasonably said to be necessary or incidental to such employment."

3. “Where, however, an employee's actions are taken for wholly personal reasons, which are not job related, the [employee’s] actions cannot be said to fall within the scope of employment.”

4. “In instances where vicarious liability for an employee's torts cannot be imposed upon an employer, a direct cause of action against the employer for its own conduct, be it negligent hiring, supervision, or other negligence, may still be maintained.”

In this actions certain patrons at restaurant alleged that the individual defendants named in their compliant, who were members of the employer’s Fire Department, entered the restaurant with coworkers, including supervisors. The group of firefighters had allegedly come from a Fire Department annual dinner held at another location and continued celebrating and drinking at the restaurant.

One of the injured plaintiffs allegedly accidentally spilled a drink on a firefighter and was allegedly attacked and assaulted by the named defendant-firefighters. The employer moved for summary judgment dismissing the complaint insofar as asserted it. The Supreme Court granted the motion.

The Appellate Division modified the Supreme Court’s order by deleting the provision granting that branch of the employer’s motion for summary judgment dismissing the causes of action alleging negligent hiring, supervision, training, and retention insofar as asserted against them. The court, instead, substituted a provision denying that branch of the motion; as so modified, affirmed the Supreme Court’s order.

The Appellate Division explained that although Supreme Court properly granted” the employer’s motion for summary judgment dismissing the causes of action alleging vicarious liability, as the employer had established its prima facie entitlement to judgment as a matter of law by demonstrating that the tortious conduct of named defendant-firefighters was not within the scope of their employment,* it failed to rebut the plaintiffs’ claims of alleged “negligent hiring, supervision, training, and retention,” and thus the employer did not establish its entitlement to summary judgment as a matter of law on that branch of the plaintiffs' complaint.

The employer, said the court, failed to submit any evidence demonstrating that it did not know or have reason to know of defendant-firefighters’ alleged “propensity for assaultive conduct” nor did the employer submit evidence demonstrating that any such alleged negligence was not a proximate cause of the injured plaintiffs' injuries.

* This finding suggests that the defendant–firefighters can neither claim “defense nor indemnification” from their employer.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_02764.htm

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