Recent Decisions

The following is a summary of some recent OATH decisions decided in *February 2018*.  To ascertain whether the OATH judges' recommendations were adopted by the referring agency, please call OATH's calendar unit at 1-844-628-4692.

Personnel

A highway transportation specialist was charged with being unfit to perform the duties of his position due to singing in the workplace and other disruptive behavior. ALJ Joycelyn McGeachy-Kuls found that petitioner’s proof was insufficient to prove respondent’s unfitness. The evidence established that respondent had been singing on the job for over 30 years, and when he was instructed to stop, he complied. In regard to the other allegations, ALJ McGeachy-Kuls determined that an isolated outburst in a meeting and an unsubstantiated complaint of unsafe operation of a city vehicle were not sufficient grounds to find respondent unfit. Dismissal recommended.   Dep’t of Transportation v. M.S., OATH Index No. 2524/17 (Feb. 2, 2018), adopted, Comm’r Dec. (Mar. 23, 2018).

An associate retirement benefits examiner was charged with incompetence for failing to complete the required daily number of cases. ALJ Noel R. Garcia found that the examiner was required to complete an average of three cases per day, but only averaged less than one case per day over a ten month period. He concluded that the examiner was consistently unable to perform her fundamental responsibilities. 30-day suspension recommended, agency imposed a 25-day suspension.   Employees Retirement System v. Murthy, OATH Index No. 2077/17 (Feb. 9, 2018), modified on penalty, Agency Dec. (Feb. 16, 2018).

A civil engineer failed to report for a mandatory overtime shift and a medical assessment of her fitness for duty, and refused to submit documentation when directed to do so. ALJ Astrid B. Gloade recommended a 40-day suspension without pay, with credit for any pre-trial suspension served. Petitioner contended that respondent should not be paid for pre-trial delays resulting from her adjournment request. The Civil Service Law limits an unpaid pre-trial suspension up to 30 days and an employee may recover back pay for any pre-trial suspension exceeding 30 days, provided that the delay is not the employee’s fault. ALJ Gloade concluded that it was unclear from the record whether the respondent was entitled to back pay and declined to undertake an accounting to determine how much, if any, back pay respondent would be entitled to receive as it was beyond the purview of the tribunal.   Transit Auth. v. M.K., OATH Index No. 1355/17 (Feb. 14, 2018), adopted, Auth. Dec. (Mar. 2, 2018).

ALJ John B. Spooner recommended a 15-day suspension for a job opportunity specialist who was insubordinate and discourteous towards a supervisor. The employee refused to obey an order to process benefits, and he threw paper and gestured with his fist at the supervisor. This conduct caused the supervisor, who suffered from a stroke-related disability, to request early retirement to avoid similar encounters which could adversely affect her health.   Human Resources Admin. v. Dixon, OATH Index No. 926/18 (Feb. 1, 2018).

A sanitation supervisor was charged with failing to carry out his supervisory responsibilities, failing to accurately prepare, record and maintain information, and with failing to cooperate with an official inquiry. ALJ Kara J. Miller found that many of the charges involved incidents that occurred five to six years ago, which ultimately deprived the supervisor of an opportunity to correct his conduct because petitioner did not timely address the alleged misconduct. ALJ Miller sustained some of the charges, finding that the supervisor failed to accept responsibility. A 19-day suspension without pay was recommended.   Dep’t of Sanitation v. Chau, OATH Index No. 1420/17 (Feb. 16, 2018).

Paid Sick Leave Law

In a default proceeding, ALJ Spooner found that an employer violated the Paid Sick Leave Law by failing to respond to two document demands and by failing to provide an employee with requested sick leave. He ordered the employer to pay a $2,000 civil penalty and compensation to the employee in the amount of three times the wages due, $1,296.  Dep’t of Consumer Affairs v. RHCG Safety Corp., OATH Index No. 1027/18, mem. dec. (Feb. 28, 2018).

Licensing

A taxi driver who tested positive for codeine claimed that he did not knowingly use the drug. At trial, the driver and his girlfriend presented credible testimony and evidence that he suffered from a chronic toothache and had inadvertently ingested Tylenol with codeine that had been prescribed for his girlfriend. The driver testified that his girlfriend had mistakenly given him her medication, which was stored in the same location as his over-the-counter medicine. ALJ Gloade found that the driver established that he innocently consumed codeine, and therefore did not knowingly use a controlled substance. She recommended dismissal of the charge.  Taxi and Limousine Comm’n v. Wakefield, OATH Index No. 1315/18 (Feb. 15, 2018).

In a default proceeding, respondent taxi driver was charged with punching the complainant, also a taxi driver. Complainant testified that respondent overtook his car and they exchanged profanities. Stopped at a traffic light, respondent exited his car and punched complainant in the face before returning to his car and driving off. Complainant followed respondent’s car and called the police. Respondent was subsequently arrested and his license was suspended for four months. ALJ Ingrid M. Addison found respondent violated TLC rules. Because of the lengthy pre-trial license suspension, she recommended a $1500 penalty.   Taxi and Limousine Comm’n v. Norbu, OATH Index No. 1230/18 (Feb. 5, 2018).

Vehicle Retention

The Police Department seized a vehicle in connection with the owner’s arrest for firearm possession. The owner sought return of the car following his conviction and sentence of five years’ probation. The owner admitted to the crime, but argued that the Police Department did not show that returning the car would pose a heightened risk to public safety. ALJ Alessandra F. Zorgniotti noted that possession of a weapon, standing alone, does not result in an automatic finding of heightened risk; such a policy would be contrary to the case-by-case analysis required by the Krimstock Order. She found that the evidence showed that the owner accepted responsibility for his crime, and led a law-abiding life with no criminal history or prior arrests before this incident. She also noted that the issuance of a certificate of relief from disabilities from the criminal court gave rise to a presumption of rehabilitation. Therefore, the owner did not pose a heightened risk to the public. The Police Department was ordered to release the vehicle.   Police Dep’t v. Nurse, OATH Index No. 1729/18, mem. dec. (Feb. 23, 2018).