Recent Decisions - August 2014

The following is a summary of some recent OATH decisions decided in August 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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Human Rights Law

Employment agency and its owner which match nannies to job opportunities were charged with violating the City Human Rights Law because their online application contained questions about the applicant's health conditions and prior arrests. ALJ John B. Spooner found that the City Commission on Human Rights (CHR) has jurisdiction because an agency employee contacted the complainant, a New York City resident, and asked her to complete an application for a nanny position in New York City, and because the agency's website advertised itself as an employment agency operating nationwide as well as within New York City. ALJ Spooner found that respondents violated the law by asking applicants about health conditions which might constitute a disability, including alcoholism, emotional illness, and physical and mental impairments and about prior arrests. ALJ Spooner found several factors which mitigated the penalty, including respondents' small size and its cooperation with the Commission and recommended a $3,000 civil penalty.  Comm'n on Human Rights v. A Nanny on the Net, LLC, OATH Index No. 1364/14 (Aug. 8, 2014).

Personnel

A research assistant was charged for conduct which resulted in off-duty, off-premises arrests and convictions. Petitioner presented certificates of conviction which proved that respondent committed the crimes of assault, resisting arrest, intentional property damage and public intoxication. ALJ Kevin F. Casey found respondent could be disciplined for such off-duty conduct which fundamentally conflicted with the agency's mission. Respondent also failed to notify the agency of his arrest and conviction and was absent without leave. Termination of employment was recommended.  Admin for Children's Services v. Hane, OATH Index No. 1460/14 (Aug. 27, 2014), adopted, Comm'r Dec. (Aug. 29, 2014).

A food service manager was found to have failed to report for scheduled medical examinations, that he was ordered to attend pursuant to section 2568 of the Education Law, on three occasions. Respondent had not been at work for more than two years. He did not appear at his hearing, nor avail himself of the opportunity to participate at the hearing via telephone. ALJ Faye Lewis recommended termination of employment.  Dep't of Educ. v. Naguib, OATH Index No. 1402/14 (Aug. 14, 2014).

In a disability proceeding brought under section 72 of the Civil Service Law, respondent argued that petitioner failed to comply with the law because she was examined by doctors who were selected by a private entity and not by the Department of Citywide Administrative Services (DCAS). ALJ Casey found that there was no improper delegation. DCAS hired the private entity to provide qualified medical specialists to perform fitness-for-duty exams. Although the private entity retained the doctors who examined respondent, DCAS maintained control over the process by specifying minimum criteria for each specialty and retaining, in its the sole discretion, the authority to bar a doctor from performing other evaluations. Respondent failed to show prejudice as the doctors who examined her were independent and well-qualified.  Financial Information Services Agency v. N.P., OATH Index No. 866/14 (Aug. 22, 2014), adopted, Comm'r Dec. (Sept. 17, 2014).

Following an investigation of several complaints of workplace violence involving a machinist, he was referred to a psychiatrist for evaluation. The psychiatrist found that respondent presented a risk of danger in the workplace and he was placed on pre-hearing involuntary leave. At disability hearing, petitioner presented testimony from the investigator and both sides presented medical expert testimony. Respondent's expert initially opined that respondent demonstrates a paranoid personality disorder but that it did not interfere with his ability to work as a machinist. Respondent's expert later modified his diagnosis to find that although respondent has paranoid tendencies his responses were based on cultural differences and that he was fit to return to work. ALJ Alessandra F. Zorgniotti found the opinion of respondent's expert to be conclusory. He did not explain how respondent’s culture would cause him to be paranoid and aggressive with others. The judge recommended that respondent remain on involuntary leave. She also found that petitioner properly placed respondent on pre-hearing involuntary leave based upon documented instances of threats, hostility and anger to co-workers, and the evaluation of an independent psychiatrist.  Dep't of Environmental Protection v. Anonymous, OATH Index No. 2443/14 (Aug. 20, 2014), adopted, Comm'r Dec. (Sept. 25, 2014).

A hospital special officer was charged with taking an unauthorized break, abandoning his post, being disrespectful to a supervisor, and causing a loud disruption in the work area. ALJ Kara J. Miller found all of the charges were proven except for causing a loud disruption. A 25-day suspension was the recommended penalty.  Health & Hospitals Corp. (Coler Memorial Hospital) v. McDougal, OATH Index No. 1182/14 (Aug. 18, 2014), adopted, Exec. Dir. Dec. (Sept. 9, 2014).

Licensing

The Administrative Code requires that at least 51 per cent of a plumbing contracting business be owned by a licensed master plumber. A licensed master plumber was charged with falsely stating on several filed documents that he owned a 51 per cent share in a plumbing business. ALJ Spooner found that the evidence, including a letter signed by the plumber which indicated that a transfer of stock was "for Building Department use only," that the shares had "no financial value" to him, that he had "no claim" on any company earnings, and that upon his "demise" his shares would be returned to the company "without any further consideration," showed that the plumber did not own 51 per cent of the company. License revocation recommended.  Dep't of Buildings v. Reingold, OATH Index No. 2375/13 (Aug. 5, 2014), adopted, Comm'r Dec. (Aug. 14, 2014).

Taxi driver was found to have verbally threatened or harassed a passenger and used force against the passenger for pulling the passenger out of the taxicab and threatening to break his nose after the passenger told him he should not be using his cell phone while he is driving. ALJ Kara J. Miller recommended the penalty of license revocation and a $2,500 fine.  Taxi & Limousine Comm'n v. Marandi, OATH Index No. 2433/14 (Aug. 29, 2014).

Practice and Procedure

Misidentification of the respondent in the petition as "Scullari Corporation Contractor" rather than "Scullari Construction" did not affect the timely notice of the proceeding otherwise provided by having mailed notice of the hearing and the Notice of Violation (NOV) to the address provided on the vehicle's liability insurance card. In a default proceeding, ALJ Tynia D. Richard ruled that petitioner established that respondent collected trade waste consisting of dirt and rocks, without a license. The recommended penalty is a $5,000 fine.  Business Integrity Comm'n v. Scullari Corporation Contractor, OATH Index No. 192/15 (Aug. 5, 2014).