Recent Decisions - April and May 2015

The following is a summary of some recent OATH decisions decided in April and May 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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Contracts

OATH is accepting applications from qualified persons who would like to serve on Contract Dispute Resolution Board (CDRB) panels. Each CDRB panel consists of an OATH ALJ, as chair, a representative of the Mayor’s Office of Contract Services, and a third member selected from a pre-qualified roster of individuals, established and administered by OATH, who has appropriate expertise and is unaffiliated with the City. We are looking for persons with a background and experience in government contracting, construction, engineering or related law. Please do not apply if you currently work for the City, have a contract or dispute with the City, or regularly represent persons, companies or organizations having disputes with the City.

For more information go to: CDRB Notice 2015.  For an application form go to: CDRB Panelist Application 2015.

Practice and Procedure

Applicant in a marriage license case requested that his name and the names of witnesses who submitted affidavits on his behalf be removed from the report and recommendation and that public access to documents submitted be restricted. ALJ Astrid B. Gloade noted that under this tribunal's rules of practice hearings are presumptively open to the public and decisions are issued without redaction unless legally recognized grounds exist to omit information from a decision. ALJ Gloade denied respondent's request to remove the names from the report and recommendation, finding that respondent failed to identify an applicable law or rule that requires such redaction. ALJ Gloade noted that restriction of public access to the documents submitted by the parties is within the control of the City Clerk.  Office of the City Clerk v. Andino, OATH Index No. 1970/15 (May 22, 2015).

Personnel

In 2008 respondent was granted leave under the Family Medical Leave Act (FMLA) and was instructed to provide a certificate of clearance from his doctor before returning to duty. After his leave was exhausted, respondent failed to return to work. He was charged with being AWOL and was demoted without a hearing. Respondent subsequently reported to work in 2009 and presented medical documentation that he was fit to return to work. Respondent was advised that he was not cleared for duty and that the agency would get back to him. Five years later, the agency charged respondent with being AWOL between 2009 and 2014. ALJ Alessandra F. Zorgniotti found that petitioner did not prove the charges because respondent made several attempts to return to work and that the agency left his employment status in an indeterminate state.   DOITT v. Anonymous, OATH Index No. 051/15 (May 6, 2015).

Respondent, a civilian employee working as a cement mason in a City jail, was charged with misconduct for two alleged off-duty assaults. Respondent presented testimony from his therapist showing that he suffers from bipolar disorder, and he has taken substantial steps to keep his disorder under control with medication and therapy. ALJ Kevin F. Casey found that only one of the assaults was proven. ALJ Casey found that termination of employment would be excessive, since misconduct was attributable to respondent's disability. He recommended a 45-day suspension without pay, with credit for time served.   Dep't of Correction v. A.A., OATH Index No. 2757/14 (May 22, 2015).

A correction officer was charged with using excessive force against an inmate on two occasions. ALJ John B. Spooner found that one set of charges was barred by the 18-month statute of limitations in the Civil Service Law. Regarding the second set of charges, which were timely, the Department proved that the officer hit an inmate in the head, while escorting him on a gurney, and had submitted a false report denying that he had used force. The recommended penalty was a forty-day suspension without pay.   Dep't of Correction v. Arias, OATH Index No. 920/15 (Apr. 21, 2015), adopted, Comm'r Dec. (June 4, 2015).

A correction officer was charged with failing to comply with the Department's undue familiarity rules and making false statements. Respondent notified the Department that a "family member" was housed in a City jail and that she would be posting his bail and sending mail and money to him. The inmate was later transferred to a state prison and, for a year, respondent failed to notify the Department that she would have similar contact with the inmate while he was in the state facility. At trial respondent acknowledged that the inmate is her significant other with whom she had lived with for more than seven years. ALJ Tynia D. Richard recommended that false statement charges be sustained but the undue familiarity charges be dismissed. ALJ found that respondent provided sufficient notification to comply with the undue familiarity rules, and her identification of the inmate as a "family member" was not misleading since Department rules do not require a more detailed description. ALJ recommended a penalty of 15-day suspension for false statements.   Dep't of Correction v. Caldwell, OATH Index No. 2702/14 (May 27, 2015).

An employee was charged with raising her voice to a co-worker stating "you messed up" and "I am tired of this", and throwing a binder clip at the co-worker. The employee admitted that she had raised her voice and that she threw the binder clip in the co-workers' direction, but did not mean to hit her with the clip. ALJ Kara J. Miller found the employee's testimony to be credible and ruled that she could only be disciplined for throwing the binder clip in the co-workers' direction. Statements made during the argument did not constitute misconduct as it was not shown that the disagreement, which was brief, disrupted the office. ALJ Miller recommended a five-day suspension, with credit for time served in pre-hearing suspension.   Dep't of Education v. Collins-Jackson, OATH Index No. 832/15 (Apr. 10, 2015).

ALJ Faye Lewis found that a correction officer used unnecessary and excessive force against an inmate. Videotape evidence, documentary proof of the inmate's head injuries and testimony from an officer who witnessed the incident, proved that the officer struck the inmate in the head without provocation and stomped the inmate's head two times while he was lying on the floor. Respondent's claim that he used force because he reasonably believed that the inmate had a weapon and he feared for his life, was not supported by any evidence other than respondent's testimony, which ALJ Lewis found to be incredible. Termination of employment was recommended.   Dep't of Correction v. Victor, OATH Index No. 388/15 (Apr. 2, 2015), adopted, Comm'r Dec. (June 4, 2015).

Vehicle Retention

Police Department sought to retain car seized in connection with car owner's arrest for patronizing a prostitute and possession of a weapon. ALJ Spooner ordered the car be returned to the owner, finding the Department failed to prove that return of the car would present a risk to public safety. The car owner had no prior criminal record and was candid regarding the facts relating to his arrest.   Police Dep't v. Lutovic, OATH Index No. 2108/15, mem. dec. (Apr. 16, 2015).

Human Rights

Under the City Human Rights Law (HRL), it is unlawful for an employer to discriminate in hiring based on gender. It is also unlawful for an employer to circulate an advertisement which expresses a direct or indirect limitation based on sex. ALJ Zorgniotti found that a restaurant violated both HRL provisions when it placed an ad for a "female bartender" and a "pizza man" and it failed to interview a male applicant for the bartender position. Penalty recommended was a civil penalty of $7,500 and affirmative relief.   Comm'n on Human Rights v. Cu29 Copper Restaurant & Bar, OATH Index No. 647/15 (Apr. 7, 2015).

ALJ Casey found that a restaurant had placed a discriminatory ad for an "experienced Indian Waiter or Waitress." He recommended a $5,000 civil penalty and affirmative relief, noting that unlike in Cu29 Copper, the Commission did not show that the restaurant discriminated in hiring as it produced no evidence that the restaurant refused to consider qualified applicants on the basis of sex, race or national origin.   Comm'n on Human Rights v. Shalom Bombay 2, LLC, OATH Index No. 544/15 (Apr. 23, 2015).

Car service and its owner violated the HRL when it refused service to a disabled customer because of his service dog. ALJ Spooner recommended compensatory damages of $8,000 and a civil penalty of $15,000.   Comm'n on Human Rights v. Rodriguez v. A Plus Worldwide Limo Inc., OATH Index No. 905/15 (Apr. 16, 2015).

Real Property

Petitioner sought closure of a lot in Queens allegedly being used for dead storage of motor vehicles, to store junk salvage, and for illegal auto repairs in a residentially zoned district. Respondents did not appear and the hearing proceeded by inquest. ALJ Susan J. Pogoda found the proof established the premises was being used for commercial purposes, in violation of the zoning resolution and recommended closure of the premises.    Dep't of Buildings v. 159-08 132 Avenue Queens, New York, OATH Index No. 2026/15 (May 19, 2015).

In coverage application, petitioners failed to prove a building was an interim multiple dwelling that had two residentially occupied units during the applicable window period. Petitioners, a married couple, argued that they residentially occupied the fourth floor as two separate families. The record demonstrated that, following petitioners' marital separation, the husband resided elsewhere and that the fourth floor was residentially occupied by the wife only. Petitioners also failed to show that owner residentially occupied a unit on the fifth floor. ALJ Zorgniotti recommended that petitioners' application be denied.    Matter of Nazor, OATH Index No. 2570/14 (May 29, 2015).

Four tenants filed an application with the Loft Board seeking findings that two buildings constitute a horizontal multiple dwelling (HMD) and that they are the protected occupants of their units. The owner failed to appear at the hearing. ALJ Spooner found that the applicants proved that the building is an HMD and that they are protected under Loft Board rules. Three of the applicants had leases and are currently in possession. The fourth applicant, who did not have a lease, has been in possession since 2005 and has paid rent directly to the landlord since 2009. The acceptance of direct rent payments demonstrates consent to the fourth tenant's occupancy and all four applicants found to be protected.    Matter of Tenants of 979-987 Dean Street, OATH Index No. 1714/14 (Apr. 30, 2015).

In a Loft Law coverage proceeding, the tenant-applicants and the building owner both made pre-trial motions for summary judgment. The owner conceded all necessary elements for the claim except for asserting that the building has incompatible uses that preclude Loft Law coverage, including woodworking and food manufacturing, packaging and warehousing. Judge Lewis found that there are disputed issues of material fact which require trial and she denied the motions.    Matter of Tenants of 100 Metropolitan Avenue, OATH Index No. 2346/13, mem. dec. (May 19, 2015).

Licensing

Respondent taxicab driver was charged with using force against a passenger who was eight months pregnant. Respondent did not appear and the hearing proceeded by inquest. ALJ Gloade credited the complaint's testimony that when she told respondent that she wanted to go to Brooklyn, respondent stopped the cab and ordered the complainant to get out. When she refused to do so, respondent got out and opened the passenger door, pulled the complainant out of the cab, threw her down onto the side walk, and drove off. The complainant sustained a fractured shoulder, and trauma to her hip. ALJ Gloade recommended revocation of respondent's taxicab license and a fine of $2,500.   Taxi and Limousine Comm'n v. Issah, OATH Index No. 1879/15 (May 18, 2015).