Recent Decisions

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

Licensing

The City Clerk alleged respondent failed to file an annual registration statement as a lobbyist and sought $37,810 in fees and penalties. Respondent argued that he was not required to register because he did not meet the threshold of $5,000 in lobbying compensation. ALJ Kevin F. Casey found that respondent’s participation in public hearings did not constitute lobbying, and that while some of his other activities might be considered lobbying, petitioner did not show that respondent had received or expected to receive the $5,000 of lobbying fees necessary to require him to file an annual registration statement. Dismissal of petition recommended.   Office of the City Clerk v. Gaia Strategies,LLC, OATH Index No. 2377/17 (May 18, 2018), adopted, Clerk’s Dec. (June 13, 2018).

A taxi cab driver was charged with harassing, using force against, and refusing service to the complainant. The complainant testified that at the start of the ride the light was green but respondent did not drive through the intersection and the light turned red. The complainant told respondent he should not expect to be paid for waiting while “spinning the meter.” The respondent then called the complainant a drug dealer, slapped his cell phone, and removed him from the taxi. Respondent denied that he insulted the complainant or used force against him. According to the respondent, the complainant told him to not turn on the meter and turn right. Respondent replied that would be illegal and he told the complainant to find another taxi. ALJ Casey found the complainant to be more credible that respondent, for the most part. He sustained the harassment and use of force charges, but he dismissed the service refusal charge. Respondent was not required to drive without engaging the meter because such action would have violated petitioner’s rules. ALJ Casey recommended $2,500 in fines and revocation of respondent’s TLC license.   Taxi & Limousine Comm’n v. Anazonwu, OATH Index No. 1283/18 (May 10, 2018).

Personnel

Respondent, an EMT, was charged with failing to generate a patient care report after observing an injured male and with making false statements about the incident. Respondent contended that he was not required to write a report because the person refused treatment and did not show signs of injury. After a two-day trial, ALJ Astrid B. Gloade found that the patient’s injuries were visible and that the EMT’s statement to the contrary was false. She also found that respondent’s failure to complete a patient care report and document that the patient had refused medical treatment violated the Department’s rules. ALJ Gloade recommended that respondent be suspended without pay for 40 days.  Fire Dep’t v. Johnson, OATH Index No. 1147/18 (May 3, 2018), adopted, Comm’r Dec. (June 12, 2018).

Based on statements customer service representative made to co-workers, management placed him on emergency involuntary leave due to safety concerns about his presence at the work place. The employee timely objected to the leave. After a two-day trial, ALJ John B. Spooner found that petitioner did not prove that the employee was unfit and unable to perform his job duties, was a danger to those around him or that the employer had a sufficient basis to place the worker on pre-trial involuntary leave. ALJ Spooner recommended that the petition be dismissed and that the employee be awarded back pay for the period of pre-trial leave. The Authority rejected the ALJ’s recommendation, finding that petitioner had proved that, due to his psychiatric disorders, the employee was unfit to work. The Authority also found that the employee was not entitled to back pay for the period of pre-trial leave as it had a sufficient basis to institute emergency leave.  Housing Auth. v. Anonymous, OATH Index No. 1865/18 (May 3, 2018), rejected, Auth. Dec. (May 16, 2018).

A correction officer was charged with using excessive force and sexually assaulting an inmate, submitting a false report and lying to investigators about his conduct. Respondent denied wrongdoing and claimed the victim lied to pursue a civil suit. ALJ Casey credited the complainant's claim that respondent repeatedly kicked complainant in the ankles, groped him, and used sexually suggestive and demeaning language towards him. ALJ Casey found that respondent falsely denied that he used force in his report and investigatory interview in an effort to conceal his misconduct. He recommended a penalty of 60 days’ suspension without pay, with credit for time served. The Commissioner adopted Judge Casey’s findings of fact, but she imposed the penalty of termination of employment.  Dep’t of Correction v. Sinacore, OATH Index No. 1244/18 (May 4, 2018), modified, Comm’r Dec. (May 24, 2018).

Petitioner alleged that respondent, a service aide: 1) made disrespectful comments to her supervisor; 2) announced that there was going to be a fight and instigated a verbal altercation with a co-worker; 3) used profanity while snatching a meal tray from a patient; and 4) took a meal tray from a patient before he had finished eating and rudely commented to the patient that he was inadvertently exposed. After a three-day trial, ALJ Joycelyn McGeachy-Kuls found that petitioner had proven the charged misconduct. Taking into consideration respondent’s history of misconduct, the disruption that she caused in the workplace and her inappropriate treatment of patients, termination of employment was recommended.  Health & Hospitals Corp. (Queens Hospital Ctr.) v. Whitaker, OATH Index No. 486/18 (May 11, 2018), adopted, Hosp. Dec. (June 1, 2018).

A sanitation worker was charged with leaving his route without authorization, loitering, and insubordination. After a four-day trial, ALJ Casey found that respondent had failed to carry the proper tools, was insubordinate, misused Department equipment, had loitered and failed to timely perform his work. Twice, respondent took over an hour to drive to and use a particular bathroom maintained by the Department, despite other having access to bathrooms nearer to his route. But petitioner failed to prove that respondent had loitered or was insubordinate on other occasions. Petitioner adopted the recommended penalty of a 26-day suspension without pay.  Dep’t of Sanitation v. Duke, OATH Index No. 740/18 (May 30, 2018), adopted, Comm’r Dec. (June 4, 2018).