Recent Decisions

The following is a summary of some recent OATH decisions decided in *July 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 Taxi and Limousine Commission (“TLC”) can immediately suspend a license “for good cause shown relating to a direct and substantial threat to public health or safety”. The TLC summarily suspended a driver’s TLC license alleging he discontinued a ride because of the passenger’s and her girlfriend’s sexual orientation and that he grabbed the passenger’s arm, and yelled at her. An OATH trial was held to determine whether to continue the suspension until a revocation hearing was scheduled. After hearing testimony from the complainants and the driver, and reviewing the complainant’s cell phone video, ALJ Joycelyn McGeachy-Kuls found that TLC had not shown that restoration of the driver’s license would pose a direct and substantial threat to public safety. The evidence, including the video, did not show that the driver grabbed anyone, yelled at or mentioned the sexual orientation of either passenger. She recommended that the suspension be lifted. Taxi & Limousine Comm’n v. El Boutari, OATH Index No. 2729/18 (July 9, 2018), adopted, Comm’r Dec. (July 18, 2018).

A TLC driver was charged with being unfit to retain his license because he tested positive for marijuana. At trial, the driver contended that the charge should be dismissed because he did not knowingly ingest the drug. ALJ Noel R. Garcia noted that the burden is on the driver to prove the affirmative defense of innocent or unknowing ingestion. He credited the driver’s testimony that he ate a chocolate candy given to him by a customer at a bar where he worked and then he felt dizzy. That testimony was corroborated by a bar patron who was present at the time, and by a friend that the driver called the next morning. Dismissal of the unfitness charge recommended. Taxi & Limousine Comm’n v. Fall, OATH Index No. 2302/18 (July 3, 2018), adopted, Comm’r Dec. (July 18, 2018).

Personnel

Respondents, two correction officers, were charged with making false reports about a use of force incident. They were part of a team sent to search for contraband in a housing area. During the search, another officer sprayed an inmate with a chemical agent. In their reports, respondents wrote that the inmate, who was facing a wall, turned around or spun away from the wall in an aggressive manner before he was sprayed. Video of the incident showed that the inmate turned his head to look at a struggle involving another inmate. But the inmate did not aggressively turn his body or spin away from the wall. ALJ Faye Lewis sustained the false statement charges relating to the characterization of the inmate acting aggressively. One of the officers was also charged with making a second false statement in his use of force report, relating to another inmate. ALJ Lewis dismissed that portion of the charge as insufficiently supported by the evidence. ALJ Lewis also denied a request by petitioner, made on the second day of trial, to expand the scope of its redirect examination of its primary witness and amend the charges to conform to any testimony derived from the expanded questioning. She concluded that amendment of the charges at that juncture would cause substantial prejudice to respondents who had already spent a full day defending against the charges. A 15-day suspension recommended for one respondent and a 45-day suspension for the other, based upon the second officer’s prior disciplinary record involving similar misconduct. Dep’t of Correction v. Hamil & Villodas, OATH Index Nos. 1213/18 & 1215/18 (July 9, 2018).

A correction officer who tested positive for morphine and codeine denied that he had used illegal drugs and claimed that the test result was a false positive. ALJ John B. Spooner found the officer had made out the defense and he recommended dismissal of the charge. He credited the officer’s testimony that he had eaten poppy seed bagels prior to the drug test. ALJ Spooner found the qualifications of the officer’s expert, a toxicologist, were superior to those of petitioner’s expert, the lab manager. The toxicologist testified that the relatively low levels of the drugs found in the officer’s urine could only be explained by eating poppy seed bagels because the quantities were at non-therapeutic doses and the relative proportions were inconsistent with heroin or morphine or codeine ingestion. Dep’t of Correction v. Paz, OATH Index No. 1717/18 (June 6, 2018).

ALJ Kara J. Miller sustained a charge of excessive absence for an eligibility specialist who was absent 149 days during a 15-month period. ALJ Miller noted that even if the employee’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 employee’s absentee rate was 61 percent, many of her absences were unplanned, she exhausted her leave balances, she received warnings about her attendance, and her absences had a negative impact on her unit, established the charge of excessive absenteeism. Since the employee was previously disciplined for similar misconduct, termination of her employment was recommended. Human Resources Admin. v. McCaskill-Bourdeau, OATH Index No. 108/18 (July 26, 2018).

A sanitation worker was charged with submitting a substituted urine sample during a random drug test because no creatinine was detected in his sample. The federal government has determined that when creatinine drops below 20 milligrams per deciliter, it is a diluted sample; when it drops below two milligrams per deciliter, it is a substituted sample. Petitioner’s expert noted that the worker had six prior negative/dilute results and she opined that he was trying to beat the test by drinking lots of water. ALJ Alessandra F. Zorgniotti sustained the charge. The worker was also found to have committed time and leave violations and insubordination. Termination of employment recommended. Dep’t of Sanitation v. Anonymous, OATH Index No. 1880/18 (July 11, 2018).

Respondent, traffic device maintainer was found to have failed to secure his tools and failed to keep his truck clean. ALJ McGeachy-Kuls dismissed a charge that respondent failed to timely report to his field work assignment. She found his testimony regarding routes taken and time worked, corroborated by GPS evidence, was credible. A three-day suspension was imposed for the proven misconduct. Dep’t of Transportation v. Rabuse, OATH Index No. 1417/18 (June 1, 2018), adopted, Comm’r Dec. (June 20, 2018).

A sanitation worker 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 worker 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 worker to take the test, the worker left the garage. The worker also failed to submit documentation for emergency leave, used an ethnic slur in a report, and failed to report to the clinic. Termination of employment recommended. Dep’t of Sanitation v. Rudden, OATH Index No. 1566/18 (July 12, 2018).

Real Property

Loft tenant brought an application alleging that owner unlawfully reduced services by demanding that he vacate a parking space, which had been provided by the previous owner for a monthly fee. ALJ Zorgniotti recommended that the application be granted. She found that the tenant proved that the former owner had permitted him to park in the space for the past eight years. The applicable Loft Board rule barred the reduction of a service that had been “supplied by mutual agreement” even though the service was not specified in the lease. Matter of Ohanesian, OATH Index No. 359/18 (June 14, 2018).

Owner’s motion to dismiss Loft Law coverage and protected occupancy applications granted where applicant did not show that she had possession or right to possession of the premises. ALJ Spooner found that dismissal was appropriate because the applicant lacked standing to seek coverage or protected occupancy status. Petitioner’s repeated, willful refusal to participate in proceedings at OATH and her refusal to obey orders of the assigned judge, as well her disrespectful comments during two on-the-record conferences, provided an independent reason to dismiss her applications. Matter of Hillstrom, OATH Index Nos. 290-91/18 (July 24, 2018).

A residential unit must be at least 400 square feet in size to qualify for Loft Law coverage. The parties agreed that the tenant’s unit would not meet the size requirement unless the floor area of exterior terrace/balcony space is included in the calculation. ALJ Zorgniotti ruled that the exterior terrace cannot be included in the calculation of unit size and she recommended that the tenant’s coverage application be denied. Matter of Coventry, OATH Index Nos. 357/18 & 361/18 (July 12, 2018).

Contracts

The Contract Dispute Resolution Board (“CDRB”), chaired by ALJ Zorgniotti, awarded an electrical contractor $67,800, plus permissible markups, for the cost to repair damaged HVAC ductwork insulation, finding the city did not show that the electrical contractor caused the damage after the City accepted the HVAC contractor’s work. The CDRB dismissed a second claim made by the electrical contractor as time-barred. Siemens Electrical, LLC v. Dep’t of Environmental Protection, OATH Index No. 1359/18, mem. dec. (July 23, 2018).

The CDRB, chaired by ALJ Kevin F. Casey denied a contractor’s claim for additional payment for repair of ramp where contractor had chosen the methods and means of construction that caused the damage. Prismatic Development Corp. v. Dep’t of Sanitation, OATH Index No. 1013/18, mem. dec. (June 19, 2018).

Paid Sick Leave Law

A cleaning service and its manager were charged with violating the City’s Earned Sick Time Act (“ESTA”) by failing to provide workers with paid sick leave, failing to pay an employee for the use of sick time, and failing to post or distribute a written sick time policy and required notices. Respondents were also charged with retaliating against a worker for asserting his rights under ESTA. ALJ Garcia sustained charges that respondents failed to distribute the required Notice of Rights and written sick time policy and failed to provide paid sick time to 82 qualified employees. Petitioner also proved charge that respondents failed to pay one qualified employee for her use of sick time. He dismissed a charge of failure to provide sick leave to another employee because petitioner did not prove that employee had worked enough days to be eligible for leave. ALJ Garcia also found that petitioner did not prove that respondents retaliated against that employee. ALJ Garcia imposed a civil penalty of $26,100 and he ordered $250 relief for the qualified employee who was not paid when she took sick leave. ALJ Garcia denied petitioner’s request that each of the 82 eligible employees be awarded $500 in the absence of proof that any of them had requested sick leave that was denied or that any had taken sick leave but were not compensated. Dep’t of Consumer Affairs v. PCC Cleaning Service, Inc., OATH Index No. 0088/18, mem. dec. (June 26, 2018).

Respondent restaurants were charged with multiple violations of ESTA. After a trial at which respondents defaulted and the complaining witness testified via video, ALJ Ingrid M. Addison sustained charges that respondents violated ESTA by failing to provide employees with a Notice of Employee Rights, failing to post or distribute a written sick time policy, by not permitting employees to use accrued sick time and by retaliating against the complainant who attempted to assert his rights under the law. Respondents were ordered to pay $3287.50 in relief to the complainant and $5500.00 in civil penalties to petitioner. Dep’t of Consumer Affairs v. Smoke BBQ Pit Restaurant & Merrick Blvd. BBQ Restaurant & Catering, Inc., OATH Index No. 944/18, mem. dec. (June 27, 2018).