OATH Recent Decisions and News

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OATH News

Court order requires increase in DOC case filings: On November 19, Judge Laura Taylor Swain issued an order in the Nunez v. City of New York litigation in the U.S. District Court for the Southern District of New York, requiring the NYC Department of Correction to file an increased volume of disciplinary matters alleging excessive use of force.

OATH enters into agreement to conduct special education hearings: OATH, the NYS Education Department, and the NYC Department of Education signed a memorandum of agreement to transfer the adjudication of special education impartial hearings to OATH.

New Trials Division rule: On December 6, OATH published a final rule regarding pre-conference and pre-trial settlement negotiations in proceedings before the Trials Division, including a rule mandating such negotiations in cases filed by the Department of Correction. The rule takes effect January 5, 2022.

COVID-19 update

Pursuant to an order of the Chief Administrative Law Judge, hearings, trials, and other OATH operations are being conducted by telephone, videoconferencing, online, or mail, and in-person appearances are also available. For more information, visit OATH’s website at www.nyc.gov/oath.

OATH Trials Division

Personnel

ALJ Noel R. Garcia recommended termination of employment for a Department of Correction officer who punched an inmate four or five times while the inmate was in leg restraints, had one arm cuffed to the wall, and was being held by two other officers. Further, when inmate was brought to the floor, officer kneeled on the inmate’s back. The officer subsequently filed a false report in connection with the event. ALJ Garcia also recommended a 30-day suspension for a second officer who witnessed the event and filed a report that omitted the use of force he had observed. Dep’t of Correction v. Woodburn & Familiare, OATH Index No. 266/21 & 543/21 (Oct. 18, 2021).

ALJ Kevin F. Casey recommended termination of employment for a Department of Environmental Protection sewage treatment worker who engaged in more than a dozen acts of misconduct, including telling co-workers that he “kept a nine” in his car because supervisors were “out to get” him, while simultaneously gesturing with his hand to imitate possession of a weapon. The worker continually refused to carry out his duties and, despite repeated suspensions, showed no willingness to change his behavior. Dep’t of Environmental Protection v. Reynolds, OATH Index No. 851/21 (Oct. 15, 2021), adopted, Comm’r Dec. (Nov. 19, 2021).

ALJ Joycelyn McGeachy-Kuls recommended termination of employment for a Department of Transportation assistant city highway repair worker who improperly performed his assigned duties on two separate occasions, one resulting in the death of a co-worker. In both instances, the worker failed to properly guide a truck driver who was driving the truck in reverse. Dep’t. of Transportation v. Carranza-Piscoy, OATH Index No. 893/21 (Oct. 8, 2021), adopted, Comm’r Dec. (Nov. 12, 2021).

ALJ Joan R. Salzman recommended the termination of an Emergency Medical Services Lieutenant employed by the Fire Department who failed to follow agency protocols for disciplining a subordinate, prepared a counterfeit memorandum purporting to discipline the subordinate, and solicited a bribe from the subordinate that he pretended would be used to influence a non-existent disciplinary action. ALJ Salzman found that the Lieutenant’s decorated career with the FDNY was outweighed by the dishonesty and poor judgment proven by the department. Fire Dep’t v. Allas, OATH Index No. 899/21 (Oct. 12, 2021).

Following her denial of respondent correction officer’s adjournment request, ALJ Ingrid M. Addison found that respondent used excessive force on and unjustifiably discharged chemical agents at inmates on at least two occasions. Respondent also filed false and misleading reports, failed to comply with a supervisor’s order to remain at his post, and brandished an unauthorized firearm while entering a New York City Housing Authority building, resulting in his arrest. Based on her findings, ALJ Addison recommended respondent’s termination from his employment as a correction officer. Dep’t of Correction v. Ramos, OATH Index No. 1283/21 (Oct. 6, 2021).

ALJ Kara J. Miller recommended termination of a Department of Consumer and Worker Protection tobacco inspector for arguing with a store owner who had followed her out of the store and started recording their interaction on a crowded sidewalk. Although the store owner admitted to deleting portions of the video, he captured respondent using profanity and a racial epithet as she threatened him with physical harm. ALJ Miller noted that the store owner's edits deleting what he had said to provoke respondent impacted his credibility. Nevertheless, ALJ Miller admitted the video into evidence over respondent's objection because respondent corroborated that the remaining portion of the video showing her profanely threatening the store owner while acknowledging that she worked for the City was an accurate depiction of what she had said. In spite of having an opportunity to retreat and remove herself from the situation, respondent testified that she had to stand her ground and say these things to protect herself, and if confronted in a similar fashion would respond the same way. Respondent additionally failed to submit a written report about the incident as required. Dep’t of Consumer & Worker Protection v. Smith, OATH Index No. 1524/20 (Oct. 22, 2021), adopted, Comm’r Dec. (Dec. 7, 2021).

Procedure

ALJ Addison denied a correction officer’s request to adjourn and invalidate a disciplinary proceeding which had previously been adjourned on multiple occasions and at which respondent failed to appear. Respondent claimed that under the Americans with Disabilities Act, he is a qualified individual with a disability, who must be afforded an opportunity to participate in the trial as a form of reasonable accommodation under the State and City Human Rights Laws. ALJ Addison acknowledged respondent’s disability but noted that he offered no date in the foreseeable future as to his availability. Thus, given petitioner’s overriding interest in resolving the charges against respondent, it would not be reasonable for the proceedings to languish indefinitely. Dep’t of Correction v. Ramos, OATH Index No. 1283/21, mem. dec. (Oct. 6, 2021).

Appeals Division
(appeals from the Hearings Division)

The Appeals Division reversed a hearing officer’s decision and dismissed a charge of idling a bus engine longer than one minute while adjacent to a school. At the hearing, the bus company’s attorney provided evidence that the bus had delivered a student to the school and kept its engine on while waiting for the bus in front of it to depart. The Appeals Division concluded that bus was in line to depart from the school, with two other school buses stopped ahead of it, and the period of time it had its engine running without moving was therefore “necessary to avoid conflict with other traffic,” which is allowed by the City’s anti-idling law. DEP v. Reliant Transportation Inc, Appeal No. 2100804 (October 21, 2021).

The Appeals Division reversed a hearing officer’s decision and found a deli had unlawfully sold a pack of cigarettes to a person under 21 years of age without requesting ID, after a prior violation for the same conduct. The hearing officer had dismissed the summons because a video purportedly showed that the Department of Consumer and Worker Protection’s inspector was not present at the time. However, the Appeals Division noted that the deli manager had admitted that the inspector’s legs were in fact visible in the video. The Appeals Division found that although there was a prior violation against respondent within three years, license revocation was not warranted because the deli proved it trains each employee on tobacco law compliance and that it had fired the employees who committed the violations. A $2,000 fine was imposed. DCWP v. Majesty Deli & Grocery Inc., Appeal No. 70052624 (October 27, 2021).

The Appeals Division reversed a hearing officer’s decision and found that a licensed second-hand dealer had failed to keep electronic records of second-hand purchases and sales as required by the City’s laws. The hearing officer had found that the dealer was not technically acting as a second-hand dealer because it engaged only with jewelers and made second-hand purchases of only the same materials it sold. However, the Appeals Division found that the record showed that the dealer also sold to the general public and melted precious metals for re-sale, as the City’s laws include in the definition of a second-hand dealer. DCWP v. Myron Toback Inc., Appeal No. 21M00423 (October 8, 2021).