Recent Decisions - April 2014

The following is a summary of some recent OATH decisions decided in April 2014.  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

A special officer was charged with engaging in an off-duty fight with a co-worker, making harassing phone calls to that co-worker, and striking a handcuffed homeless shelter resident in the face. ALJ Kevin F. Casey found that respondent was a willing participant in a fight with a co-worker at an off-duty event where many current and former agency employees were present. He recommended dismissal of the harassment charge because petitioner did not prove that harassing phone calls were made or that respondent was the caller. As for the charge that respondent hit a resident, ALJ Casey found the testimony from petitioner’s witness, that he saw respondent strike a seated resident with a closed fist, more credible than respondent's claim that she pushed the resident after he charged at her with a head-butt motion. For the misconduct proven, ALJ Casey recommended a 60-day suspension. Dep't of Homeless Services v. Smith, OATH Index No. 518/14 (Apr. 25, 2014).

A computer programmer analyst was charged with misconduct, incompetence, and leaving her work station early on at least 165 occasions. ALJ Ingrid M. Addison found that the Agency condoned respondent’s practice of scanning out at 4:53 p.m., and recommended dismissal of that charge, but she sustained the charge that on each occasion that she scanned out at 4:53 p.m., respondent left her work station without authorization at least 18 minutes prior, in order to scan out on a different floor. ALJ Addison found that petitioner proved that respondent is incapable of performing the duties of her title. Although the Agency sought termination of respondent's employment, ALJ Addison found that petitioner must assume some responsibility for its failure to evaluate and assess respondent’s qualifications before assigning her to her position. She recommended demotion of respondent to her previous title. Financial Information Services Agency v. Leung, OATH Index No. 2115/13 (Apr. 9, 2014), adopted, Comm'r Dec. (May. 6, 2014).

A correction officer was found to have been excessively absent for missing 198 days of work in a nine-month period. Although respondent provided valid documentation for her continued absence, she still may be disciplined for failure to perform the duties of her position because of excessive absence. Respondent was also found to have disobeyed orders on two occasions and to have filed a false report. Based on the high number of absences and the other misconduct proven, ALJ Alessandra F. Zorgniotti recommended the officer's termination from employment. Dep't of Correction v. Vives, OATH Index Nos. 1162/14, 1163/14 & 1164/14 (Apr. 17, 2014).

ALJ Faye Lewis found that an assistant civil engineer committed misconduct by leaving a training class early without authorization and by failing to participate in the class and instead reviewing other work material. Petitioner's proof failed to establish that respondent was disruptive in class or that he committed misconduct because he had absented himself from class for two hours to attend a scheduled meeting with a supervisor. Dep't of Environmental Protection v. Frenzel, OATH Index No. 611/14 (Apr. 15, 2014), adopted, Comm'r Dec. (May. 5, 2014).

Contracts

A contractor brought a dispute, which arose from a contract for the construction of a sanitation garage, for additional payment of $154,102.95 to cover the cost of excavating and removing large portions of brick foundation walls. The Contract Dispute Resolution Board (CDRB), chaired by ALJ Raymond E. Kramer, found that the contract only required the contractor to incur the cost of excavating anticipated obstructions. And, based on the contract documents, the contractor could not have reasonably anticipated it would be required to excavate the obstructions encountered. Thus, the Board awarded the contractor the additional compensation sought. DeMatteis/Darcon, J.V. v. Dep't of Design & Construction, OATH Index No. 884/14, mem. dec. (Apr. 11, 2014).

A contractor claimed that it had performed $2,447,821 of extra work when it built temporary work platforms to paint Staten Island Rapid Transit Operating Authority (SIRTOA) bridges as hoped-for track outages were not available. The CDRB, chaired by ALJ Joan R. Salzman, determined the contractor had waived its claim for additional compensation for building the temporary decks when it failed to reserve the claim in an extension of time agreement, and that even if the claim had not been waived, the contractor was solely responsible for the means and methods of construction under the terms of the contract. Further, the monetary claim was not documented in the record before the CDRB. Commodore Maintenance Corp. v. Dep't of Transportation, OATH Index No. 1118/14, mem. dec. (Apr. 3, 2014).

Licensing

Petitioner proved that respondents operated a food service establishment without a permit and obstructed department inspections. Petitioner also proved that respondents continued to operate the establishment after the Commissioner had declared the operation to be a nuisance and ordered respondents to cease operation. Pursuant to the Health Code, ALJ Astrid B. Gloade recommended that the premises be sealed and padlocked. Dep't of Health & Mental Hygiene v. The Amelio Russo Civic Ass'n, Inc., OATH Index No. 1133/14 (Apr. 25, 2014).

A marriage license applicant requested a review of the Office of the City Clerk's denial of her application for a marriage license and a determination that she was not a party to the 1994 marriage in her name. ALJ John B. Spooner found respondent’s evidence, consisting of a prior divorce judgment, records of past addresses, and her signature, supported a finding that the previous applicant was fraudulently impersonating respondent and recommended her appeal should be granted. Office of the City Clerk v. Williams, OATH Index No. 1275/14 (Apr. 16, 2014).

Human Rights

The Commission on Human Rights (CHR) alleged that an employee terminated from his position as a patient escort was discriminated against based on his disability. The employee's claimed disability was strep throat. On motions for summary judgment, ALJ Tynia D. Richard found that strep throat was not a disability under the Human Rights Law, and even if it were, CHR failed to show that the articulated reasons for the employment action were pretextual or that discrimination was a motivating factor for the termination of the complainant's employment. The hospital showed that the employee had a pattern of excessive absence for which he had been progressively disciplined in accordance with hospital policy and was issued a Last Chance Agreement months prior to the termination. CHR's motion for summary judgment was denied and respondent's motion for summary judgment was granted. Comm'n on Human Rights ex rel. Glaude v. New York Downtown Hospital, OATH Index Nos. 1769/13 & 1770/13 (Apr. 8, 2014).