Summaries published by the NYC Office of AdministrativeTribunals and Hearings
Employee alleged to have refused to work overtime
A hospital special officer was charged with insubordinationafter refusing to work mandatory overtime on 42 occasions. The employee did not appear at the hearing and the matterproceeded by inquest.*
Administrative Law Judge Kara J. Miller found that on eachoccasion the officer was given a form ordering him to work mandatory overtimeand warning him that non-compliance could result in disciplinary action. Each formwas signed and dated by special officer and a supervisor.
ALJ Miller found that this documentation proved theinsubordination. She recommended that the special officer be suspendedwithout pay for 45 days.
* Courtshave held that the appointing authority or its designee may proceed with thedisciplinary action even though the employee is not present. Where theindividual is to be tried in absentia,a diligent effort to contact the employee to inform him or her that thedisciplinary hearing had been scheduled and would take place even if he or shedid appear at the appointed time and place. Notwithstanding the absence of theindividual, the burden is on the charging party to present and prove thedisciplinary charges filed against the worker.
The decision is posted at Health & Hospitals Corp. (Jacobi Hospital Ctr.) v.Cooper (in PDF), OATH Index No 1748/12.
Supervisor charged with leave violations, failure tosupervise subordinates, sleeping on duty and misuse of agency property.
Following a 7-day hearing, ALJ Kevin F. Casey sustained someof the leave violations, the sleeping on duty charge and the misuse of propertycharge, but he dismissed the failure to supervise charges.
Noting that it was undisputed that some of supervior’sabsences may have been due to medical conditions that he developed after hisservice at Ground Zero, and that the most serious disciplinary penalty previously imposed onemployee was the loss of 10 vacation days, Judge Casey found termination ofemployment to be an overly harsh penalty and recommended a 48-day suspensionwithout pay, based on principles of progressive discipline.
The decision is posted on the Internet at Dep’t of Sanitation v. Harris (in PDF),OATH Index No. 760/12
Employees alleged to have ignored directives to stop distributing union literature whilenot on duty
Three New York City correction officers were charged with anumber of allegations of misconduct, chief among them refusing to comply with orders to stopdistributing union literature on Rikers Island while not on duty and refusing to obey orders to leave the secured island.
The individuals denied they were ever given such orders andasserted a First Amendment right to distribute union information whileoff-duty. They also offered videos of some of the incidents into evidence.
ALJ Alessandra F. Zorgniotti sustained the charges that correctionofficers refused to obey orders to stop distributing their materials and orders to leave theisland, as well as charges that one officer filed a false report and anotherfailed to turn over his parking pass promptly.
Other allegations were dismissed.
ALJ Zorgniotti noted that a correctional facility presentsspecial circumstances under the First Amendment, and that the employees hadfailed to prove that their First Amendment rights outweighed the compellinginterest of the Department in maintaining a secure facility.
Judge Zorgniottirecommended that each officer be suspended for 10 days without pay.
The decision is posted on the Internet at Dep’t of Correction v. Reuter (in PDF),OATH Index Nos. 1497/12, 1499/12, 1707/12
Motor vehicle operator alleged mentally unfit to perform herduties
Administrative Law Judge John B. Spooner found that the individualhad a mental disability but that the proof presented at the hearing was insufficient to sustain theallegation that she was presently unfit for her job as a driver.
The ALJ noted that [1] neither of the two incidents proven attrial established that employee was an unfit driver, [2] the individual hadrecently received favorable evaluations of her driving performance, and[3] there had been no complaints about the employee since January 2011.
Judge Spooner recommended that the disciplinary charges bedismissed.
The decision is posted on the Internet at Admin. for Children’s Services v. Anonymous(in PDF),OATH Index No. 1546/12
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