Recent Decisions

The following is a summary of some recent OATH decisions decided in *February 2020*.  To ascertain whether the OATH judges' recommendations were adopted by the referring agency, please call OATH's calendar unit at 1-844-628-4692.

Trials Division – COVID-19 Update

Trials scheduled between now and May 4, 2020, have been adjourned with the exception of priority cases mandated by court order, such as Police Department Vehicle Forfeitures and Taxi and Limousine Commission Summary Suspension cases. The Trials Division ALJs are currently conducting settlement conferences and trials for these cases via telephone, WebEx, and ZOOM. Please contact OATH’s Calendar Unit at OATHCalUnit@OATH.nyc.gov if you have a question about scheduling cases, obtaining adjournments, or calendaring future cases. If you would like to schedule a settlement conference for another type of case, the Calendar Unit can assist you with scheduling. Please continue to check the OATH website at nyc.gov/oath for the most current information on office closures and alternative hearing and conference options. To learn more about City’s response and most current guidance related to the COVID-19 outbreak please visit the City’s dedicated website at click here

Licensing

The Department of Buildings (“DOB”) brought a proceeding against respondent, a licensed master plumber and fire suppression piping contractor, who was also registered with DOB as a construction superintendent and general contractor, seeking to revoke all of respondent’s licenses and registrations. ALJ Astrid B. Gloade recommended revocation of respondent’s licenses and registrations, finding that he was negligent, incompetent or disregarded applicable laws and regulations in 14 instances, including having 52 percent of his gas authorization requests and nearly 39 percent of his plumbing signoff requests rejected by DOB during a two-year period, and finding that respondent falsely certified plumbing work when he knew it did not comply with relevant law. Dep’t of Buildings v. Buono, OATH Index No. 1899/18 (Feb. 28, 2020), adopted, Comm’r Dec. (Mar. 9, 2020).

The Taxi and Limousine Commission (“TLC”) summarily suspended respondent’s TLC driver license after being notified of her arrest for leaving the scene of an accident causing personal injury. The TLC sought to continue the suspension pending the outcome of the criminal case. ALJ Noel R. Garcia found that the TLC met its burden of establishing a public safety threat and recommended continuation of the suspension. Taking the criminal charge to be true supported an inference that respondent either knew or should have known that she caused personal injury to a cyclist. Further the incident occurred while respondent was driving a TLC-licensed vehicle. Taxi & Limousine Comm’n v. Farnsworth, OATH Index No. 1198/20 (Feb. 21, 2020).

The Taxi and Limousine Commission (“TLC”) brought a fitness proceeding seeking to revoke a TLC driver’s license because of his positive drug test result for marijuana use. ALJ Kevin F. Casey recommended that the charge be dismissed because respondent proved that he unknowingly ingested marijuana. Respondent presented evidence that he suffered from post-traumatic stress disorder as a result of his military service and respondent’s sister testified that during a dinner at her home less than a week before his drug test she had poured liquid marijuana into his drinks, without his knowledge, in an attempt to calm him down. Taxi & Limousine Comm’n v. Anonymous, OATH Index No. 1310/20 (Feb. 5, 2020), adopted, Comm’r Dec. (Feb. 12, 2020).

The Taxi and Limousine Commission (“TLC”) summarily suspended respondent’s TLC driver license upon notification of his arrest for assault in the third degree and reckless endangerment in the second degree. At a trial requested by respondent, he admitted that he “flung” his cell phone in his wife’s direction, inadvertently causing her injury. ALJ Ingrid M. Addison assessed that respondent’s reckless conduct was the result “of his exasperation at his wife’s incessant probing into what he was doing,” but his testimony was, however, consistent with two contemporaneous narratives in the NYPD complaint form, which used terms such as “accidental” and “reckless,” as opposed to “intentional,” to describe respondent’s conduct. Judge Addison found that, even assuming that the criminal charges against respondent, upon which his license suspension was predicated, are true, petitioner failed to prove that respondent poses a direct and substantial threat to public health and safety. The judge therefore recommended that the suspension of respondent’s license be lifted. Taxi & Limousine Comm’n v. Ahmad, OATH Index No. 1573/20 (Feb. 26, 2020).

Personnel

The Department of Social Services (Human Resources Administration) brought disciplinary charges against respondent, a job opportunity specialist, alleging he committed insubordination by repeatedly refusing to attend mandatory Lesbian, Gay, Bisexual, Transgender, Questioning, and Intersex (“LGBTQI”) training. Respondent testified and identified himself as a Southern Baptist Christian and quoted Bible excerpts that disapproved of homosexuality and insisted that he refused to attend the training because of his religious beliefs, but that he had no problem serving LGBTQI clients. ALJ Kevin F. Casey found that petitioner established a compelling need for the training program, and found that petitioner issued orders to respondent to attend, which he was required to obey, and sustained the insubordination charge. Petitioner sought a 45 day suspension without pay. Judge Casey noted that respondent had no prior disciplinary record and found a 45-day suspension to be excessive and inconsistent with principles of progressive discipline, and instead recommended a 10 day suspension. Dep’t of Social Services (Human Resources Admin.) v. Aurel, OATH Index No. 1094/20 (Feb. 21, 2020).

The Department of Health and Mental Hygiene brought an employee disability proceeding pursuant to section 72 of the Civil Service Law alleging that respondent, a school nurse, was unfit to perform the duties of her position due to schizoaffective disorder. ALJ Joycelyn McGeachy-Kuls found that the Department failed to prove that the respondent was currently unfit to perform the duties of a school nurse and recommended that the petition be dismissed. Respondent submitted reports from her psychiatrist and therapist demonstrating that she had been under their care for more than a year, attended regular appointments with each of them, that she was aware of her mental health condition, and she was diligent about taking her medication. Based on the doctor’s reports, ALJ McGeachy-Kuls found that it was clear that respondent was actively engaged in her treatment with each of them. Further respondent’s psychiatrist and therapist both expressed “unequivocally” that she was fit to resume her duties as a school nurse and that she is not a danger to herself or to the students. Dep’t of Health and Mental Hygiene v. Anonymous, OATH Index No. 2002/19 (Feb. 11, 2020).

The Department of Environmental Protection brought disciplinary charges against two sewage treatment workers, alleging that they neglected their duty by failing to check that a waste sludge pump was working properly and for falsifying agency records. ALJ Garcia found that petitioner established that respondents failed to check that the waste sludge pump was in operation, when in fact it was off during their shifts, and each respondent falsely indicated on the “Hypo Log” that the pump was working properly. ALJ Garcia recommended a 10-day suspension for each respondent. Dep’t of Environmental Protection v. Pepe & Weeks, OATH Index No. 1415/19 & 1719/19 (Feb. 18, 2020).

Worker Protection

The Department of Consumer Affairs brought a proceeding alleging respondent had violated the Earned Safe and Sick Time Act by failing to pay for authorized use of sick time for one day to one employee, failing to timely pay that employee for authorized use of sick leave, and failing to provide information requested in the Department’s Notice of Investigation. ALJ Kara J. Miller sustained the charges and ordered respondent to pay the employee $450 for one day of unpaid sick leave, equivalent to three times her lost wages minus the portion belatedly paid by respondent, and also ordered respondent to pay $1,500 in civil penalties and fines. Dep’t of Consumer Affairs v. International Market Recruiters, OATH Index No. 140/20, mem. dec. (Feb. 12, 2020).