Disciplinary charges based on employee’s failure to appear at the disciplinary hearing

Disciplinary charges based on employee’s failure to appear at the disciplinary hearing

OATH Index No. 1633/14

An employee was charged with being absent without leave and insubordinate when she mistakenly appeared for an OATH hearing at 10:00 a.m. instead of 2:00 p.m.

OATH Administrative Law Judge Kevin F. Casey recommended dismissal of the charges because the proof did not show that the employee was given a clear directive to report to her worksite in the morning and for trial in the afternoon.

Judge Casey found there was some miscommunication and the employee had made “an honest mistake” that did not constitute misconduct.  

However, if the employee’s absence is determined to be deliberate in an effort to avoid participating in the hearing, the hearing may be conducted in absentia after the charging party has made a good faith effort to locate the individual and ascertain if his or her absence is reasonable under the circumstances.

In such cases the charging party is required to prove the alleged acts of misconduct and, or, incompetence as though the employee were present. Mari v Safir, 291 AD2d 298, sets out the general standards applied by the courts in resolving litigation flowing from challenges to the charging party going forward with a disciplinary hearing held in absentia. 
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Collective bargaining under the Taylor Law contemplates negotiations will be an executive rather than a legislative process.

Collective bargaining under the Taylor Law contemplates negotiations will be an executive rather than a legislative process.

Matter of the Town of Dresden, PERB decision U-7383

The genesis of this decision was the Town Supervisor refusal to sign the negotiated Taylor Law agreement because he contended that he lacked the authority to reach a final agreement without the prior approval of the Town Board. As a result, the Union filed an improper practice charge with PERB.

Distinguishing between the different roles played administrators and legislators in Taylor Law negotiations. PERB said that the Taylor Law contemplates negotiations will be an executive rather than a legislative process.* Thus an agreement is between the administrative and the Union negotiating teams is binding on the parties.

However, certain provisions set out in the agreement may require the approval by the legislative body having jurisdiction such as a County Legislature, a Town Board or a School Board before they may take effect  Typically these provisions requiring the appropriation of funds necessary to implement the terms and conditions of the agreement and such terms and conditions agreed upon are not enforceable until the necessary legislative action is taken.

§204-a.1 of the Civil Service Law provides that “Any written agreement between a public employer and an employee organization determining the terms and conditions of employment of public employees shall contain the following notice in  type not smaller than the largest type used elsewhere in such agreement:

"It is agreed by and between the parties that any provision of this agreement requiring legislative action to permit its implementation by amendment of law or by providing the additional funds therefor, shall not become effective until the appropriate legislative body has given approval."

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PERB has also determined that a legislative body may not unilaterally reserve the power to ratify the entire agreement although the parties may agree that the result of their negotiations will be subject to the legislative body's ratification.

Further, in the event members of the legislative body actually participates in the negotiations, such members' agreements are binding as to them and such persons cannot later vote against the agreement on the theory that they are now wearing their "legislative" hat as PERB’s decision in Matter of Jeffersonville-Youngsville CSD, U-6341, demonstrates.

In this instance the School District’s team consisted of the School Superintendent and three School Board members. The District’s negotiating team and the Union’s negotiating teams had agreed upon all terms of a proposed collective bargaining agreement except a "2nd year salary offer." The District’s team obtained authority to place an additional $2,000 "on the table" from the seven member School Board. However, during the final day of negotiations the Union accepted a "2nd year salary offer." offer that provided for more money than the additional $2,000 earlier authorized by the Board.

Although the Union's member subsequently ratified the agreement, the full School Board did not, with two to the three Board members of the District's negotiating team voting against the "ratification."

When the Superintendent refused to execute a "memorandum agreement," the Union filed an improper employer practice claim with PERB. PERB directed the Superintendent to sign the memorandum agreement with the Union and, if requested, to sign "a formal ... contract" reflecting the salary agreements the District’s team had reached with the Union.

In addition, PERB indicated that as to the two Board Members on the District’s negotiating team voting against ratification in their "Board Member" capacity, "each member of a negotiating team is obligated to support every part of an agreement unless the other party has been advised that he (or she) dissented from the part of the agreement which he subsequently opposed" in the course of negotiations.

As noted above, the Taylor Law provides that any provision of an agreement that requires action by the relevant legislative body such as the allocation of necessary funds is not to take effect until the legislative body concerned acts to provide the required monies. In this instance presumably all three "District negotiating team/Board members" are required to vote in favor of the allocation of additional funds ultimately agreed upon by the District and employee negotiating teams consistent with their "District team position" in their capacity as a member of the School Board.

The Jeffersonville-Youngsville CSD decision illustrates the " unintended consequences" that could result when a member of the relevant legislative body serves on the employer's negotiating team.. 

* Civil Service Law §201.12 provides as follows: 12. The term "agreement" means the result of the exchange of mutual promises between the chief executive officer of a public employer and an employee organization which becomes a binding contract, for the period set forth therein, except as to any provisions therein which require approval by a legislative body, and as to those provisions, shall become binding when the appropriate legislative body gives its approval." [See, also, Civil Service Law §204-a.1]

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Judicial deference to PERB’s expertise in providing a remedy after it sustains an improper employer practice charge is not absolute

Judicial deference to PERB’s expertise in providing a remedy after it sustains an improper employer practice charge is not absolute
Town of Islip v New York State Pub. Empl. Relations Bd., 2014 NY Slip Op 06322, Appellate Division, Second Department

The Town of Islip had discontinued assigning vehicles to certain employees for their use in commuting between home and work. The employee organization filed an improper practice charge with the Public Employment Relations Board [PERB] and PERB issued a decision requiring the Town to [1] "restore the vehicle assignments for commutation between home and work to those unit members who enjoyed the benefit prior to April 4, 2008," and [2] “make whole unit employees for the extra expense incurred as a result of the unilateral withdrawal of the vehicle assignments, if any, together with interest as the maximum legal rate.”

The Appellate Division issued a judgment dated March 13, 2013 confirming PERB’s determination.* The Town appealed and the Court of Appeals modified the Appellate Division’s decision and judgment** “with directions to remand the matter to the New York State Public Employment Relations Board for further proceedings in accordance with its opinion.

The Court of Appeals had determined that the remedial order issued by PERB in this matter was "unduly burdensome under the circumstances, and d[id] not further the goal of reaching a fair negotiated result." 

The Court of Appeals explained that courts review “the remedies imposed by PERB with deference to its expertise” and courts should sustain a remedy fashioned by PERB for an improper practice “if reasonable.” However, said the court, “[i]t is for the courts to examine the reasonable application of PERB's remedies.”

In this instance the Court of Appeals determined PERB's remedial order requires the Town to “[f]orthwith restore the vehicle assignments for commutation between home and work to those unit members who enjoyed the benefit prior to April 4, 2008.” However a PERB injunction was not sought to preserve the status quo ante, and” the Town sold some or all of the cars formerly permanently assigned to blue- and white-collar unit employees.” Accordingly, PERB order, said the court, would force the Town to invest significant taxpayer dollars to replace these vehicles, holding that this would be “unduly burdensome under the circumstances, and does not further the goal of reaching a fair negotiated result.”

The court cited Matter of Manhasset Union Free School Dist., 61 AD3d 1231, in explaining its ruling.

In Manhasset the Appellate Division held that enforcing a PERB order for the school district to restore the personnel and facilities of its former transportation department was unreasonable where the district had sold its buses and leased its garage, and compliance with the order might require taxpayer approval. The Appellate Division then remitted the matter to PERB so that it “may fashion a remedy that grants commensurate, practical relief to the employees subject to the improper practice without requiring the school district to purchase a whole new fleet of vehicles with an uncertain future."

As to the Islip appeal, the Appellate Division held that “in light of the determination of the Court of Appeals, we remit the matter to PERB for further proceedings in accordance with that determination.”

* Town of Islip v PERB, 104 AD3d 778.

** Town of Islip v PERB, 23 NY3d 482

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_06322.htm
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Only an appeal filed pursuant to §310 of the Education Law by an entity having "standing" will be considered by the Commissioner of Education

Only an appeal filed pursuant to §310 of the Education Law by an entity having "standing" will be considered by the Commissioner of Education

Appeal of United Federation of Teachers, Local 2, and the New York City Department of Education, Decisions of the Commissioner of Education, Decision  No. 16,668

United Federation of Teachers, Local 2, American Federation of Teachers, AFL-CIO [Local 2], the exclusive Taylor Law collective bargaining representative for library media specialists (“LMSs”) and assistant library media specialists (“ALMSs”), filed an appeal with Commissioner of Education pursuant to 310 of the Education Law in which it alleged that the New York City Department of Education (“NYCDOE”) failed to comply with the staffing requirements set forth in §91.2 of the Commissioner’s regulations, [8 NYCRR 91.2].

The Commissioner dismissed Local 2’s appeal for a number of procedural reasons, including:

1. Lack of standing to represent an individual or class of individuals: The Commissioner said that Local 2’s appeal must be dismissed to the extent Local 2 attempted to assert claims on behalf of students. The Commissioner explained that “Standing is a jurisdictional prerequisite to maintaining an appeal pursuant to Education Law §310” and while Local 2 may have, under certain circumstances, standing to assert claims on behalf of its members, it lacks standing to assert the rights of others, in this instance “students” in certain schools.

2. Lack of organizational standing. Here, said the Commissioner, Local 2 failed to demonstrate that it met the first requirement of the three-part test for "organizational standing" required to assert claims on behalf of its members.  In order to establish organizational standing, Local 2 was required to demonstrate [1] that one or more of its members has standing to sue, [2] that the interests advanced in the matter “are sufficiently germane to the individual members’ purposes” such that the organization is an appropriate representative of those interests, and [3] that the participation of the individual members is not required to assert the claim.

With respect to the first test, the Commissioner found that Local 2 failed to allege that any of its individual members had, in fact, suffered harm but, rather, alleged only that such members cannot “seek placement” in certain schools.

3. Mootness. The Commissioner noted that Local 2 challenged NYCDOE’s compliance with the Commissioner’s regulation for the 2011-2012 school year. Thus, said the Commissioner, the appeal must also be dismissed as moot as that school year had since ended. In the words of the Commissioner, “[t]he Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest.”*

However, the Commissioner said that although he was “constrained to dismiss the appeal” for procedural reasons, he was troubled by the fact that NYCDOE had admitted only “substantial” compliance with the regulation and asserted that "it is in the midst of developing a waiver process” through which its schools “could request the Commissioner to approve an ‘alternate arrangement,’ pursuant to §91.2.”** Further, said the Commissioner, the record indicates that NYCDOE has failed to staff certain secondary schools with the required number of LMSs or ALMSs or to provide an alternative arrangement approved by the Commissioner. 

The Commissioner then took administrative notice*** that, subsequent to the commencement of the instant appeal, NYCDOE had submitted a request to the State Education Department for a waiver but subsequently withdrew its request with assurances that it would be submitting a comprehensive strategic plan for libraries that would address the need to properly staff schools with LMSs and ALMSs. To date, said the Commissioner, no such comprehensive plan has been submitted.  

In view of this, the Commissioner directed NYCDOE to comply with the requirements of 8 NYCRR §91.2 in the 2014-2015 school year and thereafter.

In addition, the Commissioner directed the State Department of Education’s Office of Curriculum and Instruction to provide guidance and technical assistance to NYCDOE to this end.

*The Commissioner noted that the appeal did not fall within an exception to the “mootness doctrine” as the determination of issues involving the NYCDOE’s compliance with the regulation’s staffing requirements “are necessarily fact-specific and can be addressed in a subsequent appeal that presents a live controversy.”

** 8 NYCRR 91.2

*** See * NYCRR 276.6.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume54/d16668
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Handbooks focusing on New York State and Municipal Public Personnel Law

Handbooks focusing on New York State and Municipal Public Personnel Law

The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State set out in a 2100+ page e-book. For more information click on http://booklocker.com/books/5215.html

A Reasonable Disciplinary Penalty Under the Circumstances - a 442-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on http://booklocker.com/books/7401.html

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

General Municipal Law§§ 207-a and 207-c - Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html

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Probationary employee’s refusing to sign an agreement extending his or her probationary period not disqualifying misconduct for the purpose of determining eligibility for unemployment insurance benefits

Probationary employee’s refusing to sign an agreement extending his or her probationary period not disqualifying misconduct for the purpose of determining eligibility for unemployment insurance benefits

Matter of Jackson (Commissioner of Labor), 2014 NY Slip Op 06237, Appellate Division, Third Department

The employer chose not to grant a probationary teacher [Probationer] tenure but did offer to extend Probationer’s probationary term for one year if she executed an agreement requiring her to "waive any rights, claims or causes of action" related to tenure or the extension of her probationary period.*  Despite being aware that she could lose her job if she did not sign the agreement, Probationer refused to do so. The employer then told her that it was not “certifying completion” of her probationary period so her employment was terminated.**

In response to Probationer’s applying for unemployment insurance benefits following her termination, the Unemployment Insurance Appeal Board ruled that Probationer's refusal to sign the agreement constituted “insubordination that rose to the level of misconduct" so as to disqualify her from receiving benefits.

The Appellate Division disagreed, holding that although “[r]efusing to comply with an employer's reasonable directive to sign a document can constitute insubordination” and thus support a finding of “disqualifying misconduct” for the purposes of eligibility for unemployment insurance benefit, Probationer’s situation did not constitute such misconduct under the circumstances.

The court explained that unlike situations in which an employee is asked, and refuses, to sign a document that was necessary to the operation of the employer's business, in this instance the employer chose not to grant Probationer tenure and, instead, offered her an extension of probation. In contrast to refusing to perform a job duty, here Probationer merely declined to enter into a new contract with the employer under the terms it offered.

The court pointed out that Probationer’s refusal to sign the extension agreement could possibly be classified as her voluntarily leaving employment without good cause while the employer was offering continuing work, which would be a basis for the Board's denying her application for unemployment insurance benefits. However the employer did not contend that Probationer had quit her job but testified that Probationer had been terminated by the employer.

In any event, the Unemployment Insurance Appeals Board did not rely on the ground of “voluntarily leaving employment” in denying Probationer’s claim for benefits but rather based its denial on “misconduct” for alleged insubordination in refusing to agree to an extension of her probationary period as offered by the employer. This, said the Appellate Division was “factually incorrect” under the circumstances as the employer's termination letter indicated that Probationer was “based on the operation of law … not based on insubordination.”

Observing that “[r]efusing to renew a contract does not constitute employee insubordination or misconduct, the court explained that even if the employer would have been warranted in firing Probationer for not signing the extension agreement, her refusal to sign would not constitute disqualifying misconduct if she had a legitimate reason to refuse to do so. Finding that Probationer had not engage in any act of insubordination and, therefore, did not commit disqualifying misconduct, the Appellate Division ruled that “the Board's decision cannot stand.”

* The decision stated that Probationer “was concerned that those provisions would cause her to waive her rights to argue that the denial of tenure and proffered extension were retaliation for her pursuing a sexual harassment claim.”

** Education Law §2573 (1) provides that the employer must either [1] grant the teacher tenure, [2] terminate the teacher’s employment or [3] agree to an extension of the teacher’s probationary term once he or she has completed the three year probationary period.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_06237.htm

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Providing confidential information to a drug dealer

Providing confidential information to a drug dealer

OATH Index No. 556/14; adopted, Bd. Dec. COIB Case No. 2013-258

The New York City Conflicts of Interest Board (COIB) adopted in full OATH Administrative Law Judge Kara J. Miller’s finding that a former clerical associate [Accused] employed by the Staten Island District Attorney's Office violated the Conflicts of Interest Law by offering confidential information to a drug dealer.

The drug dealer asked Accused if he was under investigation in exchange for providing cocaine to Accused's husband. On another occasion Accused  displayed her District Attorney’s Office identification to detectives in an attempt to prevent her husband's arrest.

The ALJ found that although Accused submitted an answer denying the charges, the record established that Accused was properly served with the notice of hearing and advised of the consequences of a failure to appear at the hearing. Notwithstanding being so advised, Accused failed to appear at a settlement conference and her attorney filed a motion to withdraw as counsel, stating that Accused was not responding to her telephone calls or letters.

After further conversations with Accused, Judge Miller ultimately proceeded to hold the hearing in absentia*when Accused failed to appear for a scheduled hearing. The ALJ found Accused was in default based upon her written and actual notice of the hearing, her demonstrated reluctance to participate, and her failure to appear. The Administrative Law Judge also granted Accused’s attorney’s motion to be relieved as counsel.

The ALJ sustained the charges, setting out the following findings and conclusions:

1. Accused was properly served with charges and notice of the hearing.

2. COIB proved that Accused attempted to use her position for personal advantage by offering to provide confidential information to a drug dealer in exchange for narcotics, in violation of §2604(b)(3) of the City Charter.

3. COIB proved that Accused displayed her employee identification for a non-City purpose in violation of §2604(b)(2) of the City Charter.

4. COIB proved that Accused attempted to use her position for personal advantage in violation of §2604(b)(3) of the City Charter when she identified herself to the police as an employee of the District Attorney’s office in the course of their investigation of her husband for his allegedly participating in a drug transaction.

COIB adopts Judge Miller's recommended penalty of imposing a $10,000 fine on the former associate clerk.

By law, an OATH report and recommendation in an enforcement action brought by the Conflicts of Interest Board is confidential until the Conflict of Interest Board determines that a violation has occurred.

* Mari v Safir, 291 AD2d 298, sets out the general standards applied by the courts in resolving litigation resulting from conducting a disciplinary hearing in absentia. The decision demonstrates that an individual against whom disciplinary charges have been filed cannot avoid the consequences of disciplinary action being taken against him or her by refusing to appear at the disciplinary hearing. The decision also provides an opportunity to explore a number of factors that should be kept in mind when involved in a disciplinary or other administrative action held “in absentia.” [Source: The Discipline Book, http://booklocker.com/books/5215.html ]

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/14_Cases/14-556.pdf
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A municipality may discontinue a retiree’s health insurance benefit in the absence of a contract or provision of law granting the retirees a vested right to such a benefit

A municipality may discontinue a retiree’s health insurance benefit in the absence of a contract or provision of law granting the retirees a vested right to such a benefit

Iasillo v Pilla, 2014 NY Slip Op 06056, Appellate Division, Second Department

Former mayors and former members of the Board of Trustees of the Village of Port Chester [Plaintiff] continued to receive health care benefits payable by the Village pursuant to Board of Trustee resolutions dated June 1, 1988, and November 2, 1994 upon retirement.

On April 21, 2010, the then Board rescinded both the June 1, 1988, and November 2, 1994, resolutions, thereby terminating the post-retirement health care benefits being provided to Plaintiff by the Village.

Plaintiff sued, seeking a court decision declaring that the resolution dated April 21, 2010, “null and void and without legal effect” as to them. In addition, Plaintiff sought a “permanent injunction enjoining the [Village] from terminating or otherwise modifying [Plaintiff’s] post-retirement health care benefits.”

Plaintiff argued that [1] the Village was contractually obligated to provide them with post-retirement health care benefits, and that [2] the Village was estopped from terminating those benefits.

Supreme Court dismissed Plaintiff’s complaint, holding that the Village’s resolution dated April 21, 2010, was neither “null and void” nor “without legal effect.”

The Appellate Division affirmed Supreme Court’s ruling, holding that the Village had established, prima facie, its entitlement to judgment as a matter of law by demonstrating that the then sitting Board was entitled to terminate the post-retirement health care benefits afforded by the June 1, 1988, and November 2, 1994, resolutions. Those resolutions, said the Appellate Division, did not establish a vested interest in those post-retirement health care benefits, explaining that "A municipal resolution is, in general, a unilateral action that is temporary in nature and, thus, it does not create any vested contractual rights."

The court also noted that the Village was not barred by the doctrine of equitable estoppel from terminating Plaintiff’s post-retirement health care benefits.

In McDonald PBA v City of Geneva, 92 N.Y.2d 326, the Court of Appeals concluded that "there is no legal impediment to the municipality's unilateral alteration of the past practice" regarding its providing health insurance benefits to its retirees and their dependents where there was neither a Taylor Law agreement nor some other contract or provision of law granting retirees a vested right to such a benefit.

The Court of Appeals has also ruled that health insurance for retirees is not a retirement benefit protected against being diminished or impaired by the State's Constitution [see Lippman v Sewanhaka Central High School District, 66 NY2d 313].

The Iasillo decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_06056.htm

Selected reports and information published by New York State's Comptroller

Selected reports and information published by New York State's Comptroller

Click on text highlighted in color  to access the full report

On Friday, September 12, 2014, New York State Comptroller Thomas P. DiNapoli announced that the following audits have been issued by his office:

Office of Children and Family Services (OCFS): Day Care Licensing (2013-S-66)

OCFS’s licensing and inspection activities assure licensed and registered child care facilities are in compliance with applicable laws and are safe for children. Although the office investigates complaints about unlicensed or unregistered child care providers, it does not have proactive measures in place to identify illegal child care providers and otherwise mitigate illegal operations.

New York City Department of Education (DoE): Accuracy of Reported Discharge Data (2014-F4)

An initial audit issued in March 2011 found DoE classified some students as discharged without sufficient documentation under state guidelines to support a discharge classification. By classifying them as discharged, DoE’s reported graduation rate was higher than the actual rate and the reported dropout rate was lower than actual. In a follow-up, auditors found DoE has made significant progress in addressing the issues identified in the initial report and has implemented the report’s three recommendations.

Office of General Services (OGS): ReStacking Occupancy Initiative (2013-S-68)

OGS’ implementation of the ReStacking initiative, aimed at decreasing the amount of leased property occupied by State agencies, was successful in achieving - and in fact exceeding – the cost savings expectations established by the SAGE commission and the Division of the Budget. OGS has achieved about $51 million in lease costs savings which, after adjusting for move costs that total about $18 million, resulted in about $33 million in net savings. However, OGS calculated cost savings separately from expenses and only accumulated costs on an agency by agency basis, not at a statewide level.

Department of Health (DOH): Multiple Same-Day Procedures on Ambulatory Patient Groups Claims (2012-S-163)

The Medicaid program, run by DOH, reimburses outpatient services through the use of the Ambulatory Patient Groups (APG) payment methodology, which is based on patient condition and complexity of service. Auditors found Medicaid made $1,083,836 in actual and potential APG claim overpayments. Of this amount, payments of $614,260 were made for the same medical procedure billed multiple times on the same date of service, and $469,576 was paid for rehabilitation services beyond the allowed limits. Medicaid also made questionable APG claim payments totaling $10,195,755 for dental clinic claims that were processed without sufficient scrutiny of the propriety or frequency of the services billed.

State Education Department (SED): Controls over Cash Advance Accounts (2014-S-11)

Cash advances are issued to state agencies for purposes such as petty cash, travel and other funding needs. Advances are issued from agency appropriations and the cash is transferred from the State Treasury to a local bank account for use by the agency. SED was authorized to have three advance accounts with a total value of $300,000 as of March 31, 2012. Auditors found SED no longer issues checks for travel advances and infrequently issues checks for petty cash expenses. However, SED does not routinely resolve old outstanding items or review any paid checks and consequently has no assurance that potentially improper or fraudulent transactions are detected.

New York State Thruway Authority: Travel Plaza Revenues and Capital Improvements (Follow-Up) (2014-F-8)

In an initial audit report from January 2010, auditors found that the authority’s efforts were adequate to ensure fuel and food concessionaires pay full rent on time and make required capital improvements. Auditors also found some improvement opportunities and discovered that a fuel concessionaire under reported its fuel deliveries in one month tested, and as a result underpaid its rent for that month. In a follow-up, auditors found six of seven recommendations had been implemented while another was no longer applicable.
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Circumstantial evidence used to establish employee’s misconduct

Circumstantial evidence used to establish employee’s misconduct

OATH Index Nos. 587/14 & 1545/14

A laboratory assistant was charged with committing errors in processing specimens. OATH Administrative Law Judge Astrid B. Gloade found that the hospital met its burden of proving that the laboratory assistant had [1] sent a patient's specimen for testing which was accompanied by the documentation for a different patient and that the laboratory assistant and [2] had entered the wrong code on a requisition form for the testing of a patient’s specimen, which resulted in the wrong test being performed on the specimen, based solely on circumstantial evidence.*

The ALJ noted that although there was no direct evidence that the laboratory assistant was responsible for the errors underlying the charges, “circumstantial evidence supports finding that [the laboratory assistant] made the error." Judge Gloade then explained that “In a disciplinary proceeding, where the burden of proof is by a preponderance of the credible evidence, misconduct may be established solely by circumstantial evidence" [citations omitted]. 

Further, said the ALJ, “[i]n order to establish a fact in issue by circumstantial evidence, the inference sought to be drawn must be based on proven facts. The inference must be reasonably taken from the proven collateral facts.” Although the charging party “need not disprove all other possible explanations or inferences in order to sustain its case, it must show that the inference drawn is the only one that is fair and reasonable.”

Judge Gloade recommended that the laboratory assistant be terminated in view of her prior disciplinary history and because her misconduct endangered the safety of others.

* The ALJ's decision notes that "Circumstantial evidence is defined as ‘evidence of a collateral fact, that is, of a fact other than a fact in issue, from which, either alone or with other collateral facts, the fact in issue may be inferred,’" citing Richardson on Evidence §4-301.

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