Recent decisions issued by the New York City Office of Administrative Tribunals and Hearings

Recent decisions issued by the New York City Office of Administrative Tribunals and Hearings

Click on text highlighted in color to access the complete text of the decision.

Failure to provide a urine sample for a drug test

Dep't of Sanitation v. E. V., OATH Index No. 805/16

 

A sanitation worker was charged with refusing to undergo a drug test after he could not provide sufficient urine within the requisite three hour period for the test.

The employee argued that his blood pressure medication limited his ability to produce urine. Two doctors, testifying for the appointing authority, concluded that it is unlikely that the particular medication could have had such an effect. The employee did not offer any medical documentation showing his difficulty with urinating prior to the date of the contested drug test and had no trouble producing enough urine in subsequent drug tests.

OATH Administrative Law Judge John B. Spooner sustained the charge and recommended 30-day suspension without pay.   

Physical altercation with a co-worker

Health & Hospitals Corp. (Renaissance Health Network) v. James, OATH Index No. 2085/15

OATH Administrative Law Judge Kara J. Miller recommended termination of an administrative associate at a health clinic who was alleged to have been both excessively late to work and having had a physical altercation with a co-worker.

The appointing authority alleged that the employee approached a co-worker and pushed him without provocation, using obscenities and attracting the attention of various other staff members. Multiple witnesses confirmed the co-worker's testimony. The employee argued that the incident stemmed from the co-worker sexually harassing her but provided no evidence to indicate that the alleged harassment actually took place. Moreover, the ALJ found that employee's testimony contained significant inconsistencies and implausible assertions.

Judge Miller sustained the physical altercation charge along with an uncontested charge of excessive lateness. 

Confrontation with a superior

Dep't of Sanitation v. Anonymous, OATH Index No. 056/16

The Department of Sanitation charged a sanitation worker with misconduct after he had a confrontation with a superior at work.

The worker had yelled at a Deputy Chief and pushed a car door into him, fracturing his finger. The worker also refused a drug test after being ordered to take one immediately after the incident.

OATH Administrative Law Judge Faye Lewis weighed the testimony of both parties along with medical documentation and photographs of the Deputy Chief's injury and sustained the charges, recommending termination of employment.  

Initiation of an unauthorized investigation

Dep't of Sanitation v. Serrano, OATH Index No. 813/16

OATH Administrative Law Judge Kevin F. Casey sustained charges of misconduct against a sanitation worker who completed an unauthorized investigation on behalf of a friend.

The employee was alleged to have questioned private security personnel about their procedures for issuing littering summonses while he was on duty. This inquiry following a complaint from the employee’s friend that she was being harassed by the security officers in her housing complex. The employee did not record or report his actions.

Judge Casey concluded that the employee used his position in the Department improperly to assist a friend, failed to document his activities, and acted unprofessionally. A 30-day suspension without pay was recommended.   

Failure to submit documentation justifying emergency leave and sick leave

Dep't of Sanitation v. Adkinson, OATH Index No. 2170/14

The Department of Sanitation proved that on multiple occasions a sanitation worker failed to submit documentation for emergency and sick leave, was inaccessible for home visits while on sick leave and failed to report to a clinic for examination when required.

Given the number of violations, OATH Administrative Law Judge Ingrid M. Addison recommended termination of employment but suggested that the Department consider the employee's expressed desire to retire shortly as a viable alternative to termination.    

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Tax Guide to U.S. Civil Service Retirement Benefits

Tax Guide to U.S. Civil Service Retirement Benefits

IRS has published its latest tax guide for preparing tax returns involving U.S. Civil Service Retirement benefits. It is posted on the Internet at: https://www.irs.gov/publications/p721/

Unless an administrative agency explains why it is deviating from its past decisions in making its ruling, courts take a dim view of departures from its precedent

Unless an administrative agency explains why it is deviating from its past decisions in making its ruling, courts take a dim view of departures from its precedent

Zaremski v New Visions, 2016 NY Slip Op 01220, Appellate Division, Third Department

In Zaremski, the Appellate Division reminded the Workers’ Compensation Board that a decision of the Board would be deemed arbitrary "if it departs from prior Board precedent and fails to explain the reasons for its departure".

In January 2012, James Zaremski suffered an injury to his lower back during the course of his employment as a general maintenance repairperson for the employer and did not return to that employment. At the time of his injury, claimant was also solely operating a self-owned appliance repair business and in June 2012 he resumed operating that business on a part-time basis but with physical restrictions.

Zaremski’s claim for workers' compensation benefits was established December 2012 and, following a hearing on the issue of reduced earning benefits, a Workers' Compensation Law Judge [WCLJ] found that he was entitled to tentative reduced earnings of $300 per week based upon the difference between his average weekly wage from his employment as a general maintenance repairperson and his weekly earnings subsequent to his return to work at his self-employment business.

Upon review, the Workers' Compensation Board modified the WCLJ’s decision and ruled that Zaremski had no compensable claim for reduced earnings after January 22, 2013.

The court said that the Board has previously determined that although wages from a noncovered concurrent employment cannot be included in the calculation of a claimant's average weekly wage pursuant to Workers' Compensation Law §14(6), such wages must be taken into account when computing a claimant's reduced earnings under Workers' Compensation Law §15(5-a).

Thus in Zaremski’s case the Board apparently ignored its precedent when it held that that  Zaremski's self-employment did not qualify as concurrent employment to increase his average weekly wage, the earnings from his self-employment could not be considered in determining his “reduced earnings.”

The Appellate Division held that because the Board failed to explain its departure from this precedent, the decision must be reversed and the matter remitted for further proceedings before the Board.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_01220.htm