OATH Recent Decisions

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Personnel

ALJ Seon Jeong Lee recommended termination of employment for a community coordinator who was excessively absent, attempted to engage a client in an inappropriate personal relationship, failed to appear for a mandatory interview, and submitted false documents. Respondent did not appear at trial and after the ALJ granted his attorney’s motion to withdraw as counsel, the trial proceeded in respondent’s absence. The ALJ found that respondent was absent for approximately 148 work days over a period of 11 months. Respondent also sent an inappropriate and unauthorized text message to a shelter client in an attempt to engage in a personal relationship, and when the agency attempted to investigate the incident, respondent ignored multiple notices to appear for a mandatory interview. Respondent also submitted false documents for a long-term medical leave request that extended his leave eligibility by 12 days. Noting that the proven misconduct involved sexually predatory behavior toward a vulnerable client and the submission of fraudulent documents, the ALJ determined that respondent’s conduct was so egregious that termination of employment is the only appropriate penalty. Dep’t of Social Services (Dep’t of Homeless Services) v. Pena, OATH Index No. 874/24 (Sep. 3, 2024).

ALJ Faye Lewis recommended termination of employment for a sanitation worker who misused or misappropriated Department collection trucks for personal use, used racist and profane language toward police officers, and engaged in other misconduct. Respondent had used the Department’s sanitation trucks to collect furniture and refuse outside his house. In a separate incident, after being arrested for driving while intoxicated, respondent directed multiple racial slurs and obscenities to police officers and a Department supervisor. Although respondent was off-duty at the time of his arrest, the ALJ determined that respondent may be disciplined for the misconduct because there is a sufficient nexus between respondent’s comments toward the Department supervisor and his position as a city employee, as well as respondent’s comments to the police officers and his public-facing job as a sanitation worker. The ALJ further found that respondent’s intoxication was not a defense, noting that while intoxication may have been a contributing factor, respondent did not establish that it was the sole cause for his multiple racist statements. Respondent also failed to report another arrest to the Department and inappropriately took sick leave for the time he was in police custody. The ALJ also sustained charges for being absent without leave and committing sick leave violations. Taking into account respondent’s substantial disciplinary history, the ALJ found that termination is the only appropriate penalty. Dep’t of Sanitation v. Anonymous, OATH Index No. 525/24 (Sep. 9, 2024), adopted, Comm’r Dec. (Oct. 9, 2024).

ALJ Michael D. Turilli recommended a 10-day suspension for a correction officer charged with excessive force for spraying chemical agents at a person in custody. Respondent deployed chemical agents after the person in custody, who was secured in a recreation yard pen, began urinating in the direction of a captain and other officers. The person in custody then attempted to spit at respondent, and respondent sprayed chemical agents two more times. The ALJ determined respondent’s three successive sprays of chemical agents were unreasonable because there were practical alternatives available, such as maintaining a safe distance and awaiting instructions from her captain. Noting that the Disciplinary Guidelines provide for a 10-day minimum suspension for the first substantive use of force violation, the ALJ found the Department’s request for a 20-day suspension to be excessive. Given that respondent had no prior record of use of force violations and there was no evidence of concealment or deception by respondent or of injury to the person in custody, the ALJ found no reason to deviate from Disciplinary Guidelines. Dep’t of Correction v. Mervin, OATH Index No. 0058/25 (Sept. 17, 2024).

Contracts

The Contract Dispute Resolution Board, chaired by ALJ Faye Lewis, remanded a contractor’s claim for additional compensation to re-excavate a cofferdam because the agency determination failed to consider facts and arguments that had been previously raised by the contractor. Pursuant to a contract with the Department of Transportation (“DOT”) to replace the Unionport Bridge, the contractor excavated and constructed a cofferdam. Four months after the cofferdam was excavated, the soil at the bottom of the cofferdam heaved in a relatively uniform fashion by seven to ten feet, requiring the cofferdam to be re-excavated. The contractor claimed that the soil heave qualified as a differing site condition for which it is entitled to additional compensation while DOT claimed that the heave had been caused by the contractor’s over-excavation of the cofferdam and failure to maintain adequate water levels within the cofferdam. In its notice of dispute, the contractor provided expert reports refuting DOT’s arguments regarding the cause of the heave, which DOT did not address in its agency determination. The Board found that the contractor failed to satisfy the elements of a differing site condition because it could not establish what caused the heave. However, because DOT did not address the contractor’s counterarguments as to why over-excavation and inadequate water levels could not have caused the heave, and the Board has insufficient information to determine the cause of the heave, the Board remanded the matter to the agency for further fact-finding. Unionport Constructors JV v. Dep’t of Transportation, OATH Index No. 2404/23, mem. dec. (Sept. 30, 2024).

The Contract Dispute Resolution Board, chaired by ALJ Jonathan Fogel, denied a contractor’s claim for additional compensation for providing temporary cooling. Under a contract with the Department of Citywide Administrative Services (“DCAS”), the contractor was to replace the chillers for the air conditioning system in a building occupied by various city agencies as office space, which required deactivation of existing chillers while the work was performed. In October 2019, a DCAS employee notified the contractor that if the work extended through the cooling season, the contractor would be obligated to provide temporary cooling for the building. In March 2021, while the work on the cooling system was ongoing, DCAS directed the contractor to provide temporary cooling to the fourth floor. The contractor complied, then filed a change order seeking additional compensation, claiming that providing temporary cooling was extra work under the contract. DCAS sought to dismiss the case, arguing the contractor should have filed a notice of dispute in 2019 when the DCAS employee notified the contractor that temporary cooling may be required. The Board rejected this argument, finding that the DCAS employee was not authorized to issue a determination under Article 27 of the contract which would trigger the contractor’s need to file a notice of dispute. However, the Board denied the contractor’s claim, finding the contractor failed to comply with its contractual obligation to maintain daily records of the work in dispute. Citnalta Construction Corp. v. Dep’t of Citywide Administrative Services, OATH Index No. 1135/24, mem. dec. (Sept. 12, 2024).