Recent Decisions - December 2014 & January 2015

The following is a summary of some recent OATH decisions decided in 
December 2014 & January 2015.  To ascertain whether the OATH judges' recommendations were adopted by the referring agency, please call OATH's calendar unit at 1-844-628-4692.

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Personnel

Computer systems manager who was assigned the task of developing a technical design document for the agency's new training application, was charged with plagiarism after he submitted a template which he had downloaded from the internet and modified in part. ALJ Ingrid M. Addison recommended dismissal of the charge. Evidence showed that the manager's work was not in final form, he did not conceal that he was using a template, and the use of templates were not forbidden by petitioner's rules. Testimony suggested that downloading templates was common practice in the industry. ALJ Addison also recommended dismissal of the charge that respondent was incompetent because he failed to meet project deadlines. The ALJ found that the delay was caused by other factors not created by the manager. Charges that the manager was paid for work not performed and was excessively absent were also not proven.   Office of Payroll Management v. Hassan, OATH Index No. 308/15 (Jan. 26, 2015).

Firefighter was charged with creating a hostile environment by repeatedly wearing an offensive t-shirt at the firehouse, while on and off-duty, instead of Department-issued attire. ALJ Alessandra F. Zorgniotti found that petitioner established the charge and the additional charge that the firefighter disobeyed orders to wear only authorized clothing in the firehouse. The Department showed that the potential workplace disruption caused by the firefighter's conduct outweighed the firefighter's First Amendment right to wear non-Department issued t-shirts in the firehouse. Termination of employment was recommended and imposed.   Fire Dep't v. Buttaro, OATH Index No. 2430/14 (Jan. 13, 2015), adopted, Comm'r Dec. (Feb. 10, 2015).

Ship carpenter was charged with testing positive for alcohol during random test administered under federal regulations. ALJ Addison rejected carpenter's claims that he was not randomly selected or that the technician who performed the test did not comply with federal regulations or that the positive result was caused by acid reflux. Termination of employment was recommended.   Dep't of Transportation v. Anonymous, OATH Index No. 147/15 (Dec. 8, 2014), adopted, Comm'r Dec. (Jan. 5, 2015).

Petitioner alleged that an environmental police officer was mentally unfit to perform his job under Civil Service Law Section 72, subjected the officer to examinations by psychiatrists employed by the Police Department who found him mentally unfit, and placed him on an immediate leave of absence, following an incident in which the officer engaged in a religious practice known as "speaking in tongues" in the workplace. ALJ Tynia D. Richard granted respondent's motion to dismiss the proceeding, finding petitioner failed to comply with statutory requirements and the officer was not afforded due process. Written notice that should have been provided to the employee to advise him of the facts that gave rise to the Department's belief that he was unfit and of its intent to place him on a Section 72 medical leave was untimely, occurring five months after psychological testing commenced; the exams were not conducted by doctors designated by the Citywide Administrative Services as required by statute; and an involuntary leave was imposed prior to hearing without probable cause to believe that the officer's presence at the job would present a danger or severely interfere with operations.   Dep't of Environmental Protection v. J.B., OATH Index No. 321/15 (Dec. 19, 2014), rejected and remanded, Comm'r Dec. (Feb. 13, 2015) (Commissioner ruled that Section 72 procedures were inapplicable because the purpose of the exams was not to evaluate the officer for a leave of absence and remanded the case to the ALJ for a recommendation regarding the officer's mental fitness).

ALJ Kara J. Miller found that a job opportunity specialist submitted a fraudulent medical note and was absent without authorization for two weeks. After the employee's request for summer vacation had been denied in part, he failed to report to work for two weeks and then submitted a medical note requesting that his absence be excused for the entire period due to poison ivy. Noting irregularities in the note, petitioner checked with medical office employees, who indicated that the note was valid for only one day excusal. Termination of employment recommended.   Human Resources Admin. v. Lopez, OATH Index No. 496/15 (Jan. 12, 2015).

ALJ Richard recommended dismissal of a disciplinary charge based upon sanitation worker's positive drug test, where worker had admitted his drug problem and sought in good faith to obtain rehabilitation. The positive test occurred after worker had voluntarily entered a drug and alcohol rehabilitation facility, and he was referred to the Department's Employee Assistance Unit for testing and monitoring. He was told that he would have to take a drug test to establish a baseline level of usage and he would not be punished for a positive test.   Dep't of Sanitation v. Petosa, OATH Index No. 758/15 (Jan. 23, 2015).

Licensing

Respondent taxi driver was charged with assaulting another taxi driver. ALJ Spooner credited the complaining witness's testimony that he was assaulted by another taxi driver after an argument over a parking space. ALJ Spooner found, however, that the complainant's identification of his assailant was not reliable because the complainant failed to pick respondent out of a police lineup, the photo array which resulted in a positive identification was not entered into evidence, and the presence of other Bengali taxi drivers at the scene made a misidentification possible. The ALJ recommended dismissal of the charge.  Taxi & Limousine Comm'n v. Hassan, OATH Index No. 170/15 (Jan. 14, 2015), adopted, Comm'r Dec. (Feb. 23, 2015).

Evidence established "Disel" was a dangerous dog based on evidence showing two unprovoked attacks where the dog used "bite and hold," in one instance causing severe injury to a shelter employee, who required emergency surgery. Petitioner presented expert opinion evidence from a doctor who determined that Disel is too dangerous to re-train. ALJ Richard recommended humane euthanasia as the only available option.  Dep't of Health & Mental Hygiene v. Stanley, OATH Index No. 636/15 (Jan. 8, 2015).

ALJ Faye Lewis sustained charges that a for-hire vehicle driver had repeatedly cursed at a passenger but held that petitioner did not prove that he threatened the passenger or used force against her. Penalty recommended is a 30-day suspension and $1000 fine.  Taxi & Limousine Comm'n v. Garcia, OATH Index No. 722/15 (Jan. 22, 2015), adopted, Comm'r Dec. (Feb. 11, 2015).

Contracts

Contractor who had performed emergency home repairs following Hurricane Sandy, and had received $1,500,000 bonus under a bonus incentive provision in the contract, sought an additional $2,500,000 bonus payment for work completed prior to the start of the bonus incentive period. The Contract Dispute Resolution Board (CDRB), chaired by ALJ John B. Spooner, ruled that the contractor was not entitled to additional compensation under the applicable contract terms and the claim was denied.   Gilbane Building Co., Inc. v. Dep't of Environmental Protection, OATH Index No. 108/15, mem. dec. (Dec. 10, 2014).

Contractor hired to perform general construction work in connection with the upgrade of the Flushing Town Hall Building in Queens, sought $89,987 in additional compensation for claimed extra work. The CRDB, chaired by ALJ Astrid B. Gloade, determined that the contractor had waived the claim when it had failed to reserve it in its application for a time-extension, as required by the contract. The contractor's appeal was denied.   NorthE Group, Inc. v. Dep't of Design & Construction, OATH Index No. 158/15, mem. dec. (Dec. 23, 2014).

Real Property

Owner of a hotel located on the Upper West Side, applied for a certificate of no harassment (CONH). At the time of the application, 150 units were occupied by single room occupancy (SRO) tenants and 75 other units were occupied by market rate tenants. ALJ Kevin F. Casey found that petitioner proved that the owner had engaged in harassment, including repeated failure to make timely repairs, repeated failure to timely credit rent payments, and posting false demands for rent and legal fees on tenants' doors. Other allegations were dismissed as unproven. ALJ Casey recommended denial of the CONH application.   Dep't of Housing Preservation & Development v. Bezzant, OATH Index No. 1529/14 (Jan. 5, 2014), adopted, Comm’r Dec. (Jan. 7, 2015).

Vehicle Retention

Police Department seized a car in connection with the owner's arrest. Owner moved for return of the car on the ground that the Department did not serve her with notice of her right to a hearing at the time of seizure or by mail thereafter as required by the federal court order in Krimstock v. Kelly. Under the court order, the Department must serve the notice on the person from whom the car was seized at the time of the seizure and mail a copy of the notice to the owner within five business days. ALJ Raymond E. Kramer credited the owner's testimony that she was not served with the notice at the time of the seizure where the Department did not present documentary proof that it served respondent at that time. ALJ Kramer directed the Department to return the car to the owner forthwith.   Police Dep't v. Davis, OATH Index No. 1297/15, mem. dec. (Dec. 26, 2015).

The Police Department seized a car in connection with the arrest of the driver, who had been speeding on the Henry Hudson Parkway, was visibly intoxicated and resisted arrest when he stopped. The car owner, who was not in the car at the time, sought return of the car, claiming she is an innocent owner who should not be penalized for the driver's wrongdoing. ALJ Casey determined that the owner made out an innocent owner defense. The car is registered, titled and insured in the owner's name. She is the primary driver and there was only one set of keys, which she kept in her pocketbook. Although the owner lived with the driver, the owner was aware of the driver's conviction for drunk driving eight years ago, and she rarely allowed him to drive the car. The driver had asked to borrow the car to drive to a memorial service. Assuming there would be no drinking at the service, she allowed him to use it. She was surprised when notified on the driver's arrest. ALJ Casey found there was little risk that the owner would allow the driver to drive the car again, given her demonstrated need to use the car to commute to work and drive her ailing mother to medical treatment. He ordered return of the car to the owner.   Police Dep't v. Cruz, OATH Index No. 1341/15, mem. dec. (Dec. 26, 2015).