Summaries of recent New York City Office of Administrative Trials and Hearings decisions

Summaries of recent New York City Office of Administrative Trials and Hearings decisions

Source: New York City Office of Administrative Trials and Hearings 

Excessive absences

Office of Administrative Trials and Hearings , OATH Index No. 108/18

OATH Administrative Law Judge Kara J. Miller sustained a charge of excessive absence for a New York City  eligibility specialist [Respondent] who was absent 149 days during a 15-month period.

ALJ Miller noted that even if Respondent's absences were authorized or documented, they still counted towards her total number of absences because she was charged with excessive absenteeism, not unauthorized absences.

Although the agency’s rules do not define what constitutes excessive absence, relevant factors such as the Respondent’s absentee rate was 61 percent, that many of her absences were unplanned, that she exhausted her leave balances, that she received warnings about her attendance, and that her absences had a negative impact on her unit, established the charge of excessive absenteeism.

As Respondent was previously disciplined for similar misconduct, termination of her employment was recommended.

The decision is posted on the Internet at:
http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-108.pdf 

Employee's testimony concerning routes taken and time worked corroborated by GPS evidence

Office of Administrative Trials and Hearings , OATH Index No. 1417/18

Respondent, a New York City traffic device maintainer, was found to have failed to secure his tools and failed to keep his truck clean.

OATH Administrative Law Judge Joycelyn McGeachy-Kuls dismissed a charge that Respondent failed to timely report to his field work assignment.

Further, Judge McGeachy-Kuls found Respondent's testimony regarding routes taken and time worked, corroborated by GPS evidence, was credible. A three-day suspension was imposed for the proven misconduct.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-1417.pdf 

Termination recommended worker who refused to submit to a drug test following an accident at work and was found guilty of other charges

Office of Administrative Trials and Hearings , OATH Index No. 1566/

A New York City sanitation worker [Respondent] was charged with refusing an order to take a drug test following an accident, under Department rules which require a test after an accident causing “significant equipment or property damage.”

The evidence showed that the Respondent drove a front-end loader which hit a salt spreader. The spreader had to be taken out of service and was repaired by two metal repair technicians.

Four supervisors examined the damage and all concluded it was significant. ALJ Spooner found the Department had a sufficient basis to order the drug test. He also credited a supervisor’s testimony that after he ordered the Respondent to take the test, the Respondent left the garage.

The Respondent also failed to submit documentation for emergency leave, used an ethnic slur in a report, and failed to report to the clinic as directed.

The ALJ recommended that the appointing authority terminate the Respondent.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-1566.pdf

Selected Links to featured Employment Law News items from WK Workday

Selected Links to featured Employment Law News items from WK Workday

Posted September 6, 2018

Click on text highlighted in color to access the full report

Top labor and employment developments for August 2018

Chart of nonunit positions showed information requested by union—and withheld by employer—was relevant

FCRA class action revived because lost opportunity to respond to background check was concrete injury

Requiring applicant BNSF perceived had a back impairment to pay for MRI, revoking job offer when he refused, showed disability bias

Former police dispatcher who received bad references after she sued can proceed with 1st A retaliation claim

Dispute over retiree healthcare benefits not subject to arbitration as retirees are not ‘employees’ under CBA

Email to board of directors, letter from attorney don’t ‘remotely’ support FLSA reprisal case

The shifting burdens of going forward in cases alleging unlawful discrimination

The shifting burdens of going forward in cases alleging unlawful discrimination

Haughton v Town of Cromwell, Cromwell Police Department, USCA, Second Circuit, Docket 17-2412-cv [2018]

Robert Haughton, a Town of Cromwell, Connecticut, police officer, alleged that the Town refused to assign to the position of Detective because of racial or ethnic discrimination in violation of Title VII of the Civil Rights Act.

While it is unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin," the Circuit Court explained that an aggrieved employee is required to demonstrate a prima facie case of disparate treatment, at which point the burden shifts to the employer to demonstrate that the employment decision was made for 'legitimate, nondiscriminatory' reasons."

Further, said the court, if the employer meets this burden, the plaintiff must then “offer evidence sufficient to support a reasonable inference that . . . the defendant intentionally discriminated against the plaintiff.”

In this instance the court assumed, without deciding, that Haughton met his prima facie burden. However, the Circuit Court held that the Town met its burden in demonstrating a legitimate, non-discriminatory reason for its assignment decision and Haughton failed to demonstrate that reasons offered by the Town in support of its decision "was merely pretext."

Haughton failed to identify admissible evidence that would permit a jury to find that the Town acted with discriminatory intent when it chose to promote another officer instead of Haughton to Detective and employers are entitled to set their own legitimate, nondiscriminatory requirements for open positions.

The decision is posted on the Internet at:

https://www.courtlistener.com/opinion/4529422/haughton-v-town-of-cromwell/