ALJ Faye Lewis sustained charges that an eligibility specialist used threatening, ethnically charged, and sexually explicit language in the workplace. Evidence that the employee had entered a rehabilitation program and was being treated for bipolar disorder, established he has a disability, but disability does not in and of itself preclude discipline for misconduct. Discipline is permissible where, as here, the employee did not establish his disabilities caused the misconduct. ALJ Lewis considered respondent's disabilities in mitigation of the penalty, finding termination inappropriate given respondent's positive response to treatment. Recommended penalty is a 60-day suspension. Human Resources Admin. v. Anonymous (in PDF), OATH Index No. 1242/10 (May 4, 2010).
The Department of Sanitation sought discipline against a sanitation worker for improperly wearing his seatbelt. A safety inspector observed the worker driving with his shoulder belt tucked behind his left arm, and issued a ticket when the driver became belligerent after receiving a warning. ALJ Ingrid Addison found the charge sustained and recommended a fine of two days' pay. Dep't of Sanitation v. Parker (in PDF), OATH Index No. 1923/10 (May 19, 2010).
ALJ Kevin Casey found that a 311 complaint, corroborated by the chief inspector's investigation, was sufficiently reliable to prove that a water use inspector drove a department truck, with a passenger, after hours and off-route. A citizen had called 311 and reported that while crossing a street in Brooklyn, after 5 p.m., he was almost hit by a truck driven by a DEP worker. The complainant provided the license plate number and noted that the passenger in the vehicle had “given him the finger.” The license plate number provided matched the one on the truck assigned to respondent. Respondent's route was in the Bronx, and his shift ended at 4:30 p.m. The inspector testified respondent had logged 56 miles that day for an 18 mile route. Respondent tried to explain the discrepancy by suggesting he drove extra miles to keep his truck cabin cool, to avoid extra idling and check fire hydrants or that he made an erroneous log entry. ALJ Casey rejected the explanations as unlikely and his recommended penalty was a 12 day suspension. Dep't of Environmental Protection v. Johnson (in PDF), OATH Index No. 1330/10 (May 13, 2010).