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).

The Taxi and Limousine Commission may suspend a license prior to hearing when it finds emergency action is required to insure public safety. A licensee may request a prompt hearing to seek to have the suspension lifted. By Commission rule, when the summary suspension is based on the driver's arrest, the issue at the hearing is whether the arrest charges, if true, demonstrate continued licensure while criminal charges are pending would pose a direct and substantial threat to public safety. Here, the Commission sought to continue the suspension of a taxi driver's license pending the outcome of a desk appearance ticket for leaving the scene of an accident. Two disinterested witnesses testified on behalf of the driver that no accident took place. Noting that in summary suspension hearings the Commission interprets its rule to require the OATH ALJ to consider the arrest charges as true, ALJ Lewis ruled continued suspension was warranted. She urged the Commission to reconsider its interpretation, particularly for those arrested on desk appearance tickets which would not be subject to any preliminary evaluation of the merits for weeks or months. ALJ Lewis proposed that in such cases licensees should be given an opportunity to rebut the presumption that the arrest charges are true. Taxi & Limousine Commission v. Kamal (in PDF), OATH Index No. 2607/10 (May 26, 2010).

The NYPD sought to retain possession of a car seized as an instrumentality of a crime. Respondent was in the car when he was arrested in connection with a shooting in Brooklyn along with two other men, and pled guilty to disorderly conduct. ALJ Alessandra Zorgniotti found the NYPD showed they had probable cause for the arrest, that respondent allowed his car to be used in conjunction with a crime, and that the threat to public safety justified the retention; respondent's testimony that his involvement was innocent was not credible. Police Dep't v. Songui (in PDF), OATH Index No. 2420/10, mem. dec. (May 6, 2010).

ALJ Casey found that because the NYPD failed to comply with its notice obligations, a vehicle seized by them must be released. Petitioner sought to retain a vehicle seized as an instrumentality of a crime, after respondent was arrested for driving while intoxicated. ALJ Casey found the Department did not prove respondent was notified of his right to a hearing at the time of his arrest or by mail within five days, as required by federal court order. ALJ Casey rejected the Department's argument that respondent was not prejudiced by the lack of notice, finding the delay in scheduling the hearing (more than one month after seizure) was directly attributable to the Department's failure to provide respondent with written notice of his rights. Police Dep't v. Douguengar (in PDF), OATH Index No, 2690/10, mem. dec. (May 26, 2010).