Recent Decisions

The following is a summary of some recent OATH decisions decided in *March 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

Emergency medical technician ("EMT") twice struck a handcuffed, emotionally disturbed patient after the patient had spat at her. The EMT also failed to report the incident to a supervisor. ALJ Kevin F. Casey found that the EMT was provoked but that did not excuse her reaction. He credited EMT’s testimony that she did not intend to injure the patient and found the act to be an aberration. Recommended penalty is sixty-day suspension without pay with credit for pre-hearing suspension time served.  Fire Dep’t v. Serrano, OATH Index No. 584/18 (Mar. 21, 2018).

A carpenter was charged with disobeying supervisors’ instructions for filling out timesheets, not properly documenting overtime availability, failing to report for an overtime assignment, and disobeying orders to refrain from making non-work related comments on work forms. ALJ Joycelyn McGeachy-Kuls sustained most of the charges. Since the carpenter had previously been disciplined for similar misconduct, a 45-day suspension without pay was recommended.  Fire Dep’t v. Toner, OATH Index No. 2310/17 (Mar. 28, 2018).

Practice and Procedure

Petitioner must notify the charged worker with the date, time and place of the trial. ALJ Susan J. Pogoda dismissed charges without prejudice where the notice gave the wrong address for the trial location. The notice informed the worker, incorrectly, that the trial would be held at 40 Rector Street in Manhattan. Neither the worker nor any representative appeared. ALJ Pogoda noted that OATH moved from the Rector Street address to 100 Church Street, in Manhattan, more than three years ago.  Dep’t of Sanitation v. Gaudin, OATH Index No. 1676/18, mem. dec. (Mar. 26, 2018).

Evidence of prior discipline is not admissible to prove an employee engaged in the charged misconduct. However, prior discipline may be used to rebut employee’s testimony that he was unaware of work rules. ALJ McGeachy-Kuls admitted evidence of prior discipline for failure to complete forms in accordance with procedure to rebut employee’s testimony that he lacked notice of the procedure. The evidence was admitted solely for that purpose and not to prove that the employee had committed the charged misconduct.  Fire Dep’t v. Toner, OATH Index No. 2310/17 (Mar. 28, 2018).

Contracts

Dispute arose out of a contract to construct bioswales adjacent to City sidewalks to improve drainage of storm water runoff. Contractor sought an additional $329,235, when quantity of stone column greatly exceeded engineer’s estimate. The Contract Dispute Resolution Board ("CDRB"), chaired by ALJ Alessandra F. Zorgniotti, found that the contractor had waived its claim when it failed to reserve it in its application for a time extension. The CDRB also found that the increase in quantity was an overrun to which the contractor was entitled to payment on the unit price basis, and not extra work to be paid on a time and material basis.  Rocco Agotino Landscape & General Contractor Corp. v. Dep’t of Design & Construction, OATH Index No. 2456/17, mem. dec. (Mar. 12, 2018).

Vehicle Retention

Respondent sought return of car seized by the Police Department following his arrest for driving while ability impaired by alcohol. Reports indicated that the arresting officer saw him strike another car while driving the wrong way down a one-way street. Respondent refused to take a breath test but when he exited his car, he was unable to stand up straight, had bloodshot eyes and had the odor of alcohol on his breath. Respondent also had a prior record of alcohol-related offenses. ALJ Ingrid M. Addison ruled that the Department proved that it is entitled to retain the car.  Police Dep’t v. Bernard, OATH Index No. 1838/18, mem. dec. (Mar. 12, 2018).