Employee who retreated from confrontation should not be disciplined.

ALJ Kara Miller recommended dismissal of charges brought against a highway repairer where the proof showed that she attempted to avoid a confrontation with a co-worker by leaving the area.   The co-worker followed respondent to a different location and initiated physical contact.  The force used by respondent, if any, was defensive.  On a separate charge, respondent was insubordinate when she initially refused her supervisor’s instructions to repair a pothole.  While respondent ultimately complied, her failure to do so promptly was deemed misconduct.  A penalty of eight days’ suspension was recommended.  Dep’t of Transportation v. Solli (in PDF), OATH Index No. 2888/10 (Jan. 26, 2011).

Taxi driver overcharged passengers on 91 trips.

A taxi driver was alleged to have overcharged passengers on 98 occasions in a nine-month period.  The driver did not deny overcharging the passengers, but claimed it was not intentional and that he refunded the overcharge in every case.  ALJ Faye Lewis found that respondent’s testimony that the cab was dark, causing him to press the button for the higher fare accidentally each time, was not credible, and she sustained 91 of the overcharges.  She recommended the revocation of respondent’s taxicab license and an $850 fine. Taxi & Limousine Comm’n v. Ajoku (in PDF), OATH Index No. 408/11 (Jan. 14, 2011), adopted, Comm’r Dec. (Feb. 3, 2011).

Contractor failed to pay prevailing wages and benefits to janitorial employees.

The Comptroller alleged that a company that provided janitorial services to the Human Resource Administration failed to pay the prevailing wage and benefits to three employees.  Evidence, including paystubs and the testimony of two former employees, showed that the employees received roughly half the pay required.  ALJ Zorgniotti also found the underpayments to be willful, and recommended that the employees be reimbursed in the amount of their underpayments, plus 16% interest.  ALJ Zorgniotti further recommended that a civil penalty of 25% of the total be assessed, and that the contractor be debarred from bidding on public works contracts within the state for five years. Office of the Comptroller v. Jetstream Maintenance Corp. (in PDF), OATH Index No. 997/11 (Jan. 24, 2011).

Police Department entitled to retain seized car.

ALJ Spooner found that the Police Department was entitled to retain a vehicle that it had seized as an instrumentality of a crime. Police found a loaded gun inside the car when they searched it after arresting the driver, and the driver pleaded guilty to attempted possession of a weapon. The owner of the car (who was not the driver) challenged the retention by asserting she did not know of the illegal activity. After considering a number of factors, including that the owner did not have a driver’s license, admitted the arrestee drove the car exclusively, and the vehicle was registered in the arrested driver’s name, ALJ Spooner found that the driver was the person actually in control of the car, negating the owner’s “innocent owner” defense.  Police Dep’t v. Brown (in PDF), OATH Index No. 1329/11, mem. dec. (Jan. 4, 2011).

Refusal to accept section 8 housing voucher violated City law.

ALJ Lewis found that a managing agent refused to accept Section 8 housing vouchers, in violation of the New York City Human Rights Law, and that the building owners are strictly liable for the discriminatory acts of their agent. However, ALJ Lewis found insufficient proof that respondents engaged in a pattern and practice of discrimination, as also alleged. She recommended a civil penalty of $7,500.  Comm’n on Human Rights v. Tantillo (in PDF), OATH Index Nos. 105/11, 106/11 & 107/11 (Feb. 24, 2011).

CDRB dismisses vendor’s claims as time-barred.

An elevator maintenance and repair company filed a claim against the Department of Correction alleging it was not paid for work it performed in Department facilities. The Department moved to dismiss the claim as time-barred. The Contract Dispute Resolution Board (CDRB), chaired by ALJ Lewis, granted the motion. The CDRB found that the company filed its petition to the Board more than one year after the deadline to do so.   Start Elevator, Inc. v. Dep’t of Correction (in PDF), OATH Index No. 1160/11, mem. doc. (Feb. 28, 2011).