Recent Decisions

The following is a summary of some recent OATH decisions decided in March 2016.  To ascertain whether the OATH judges' recommendations were adopted by the referring agency, please call OATH's calendar unit at 1-844-628-4692.

The documents below are in PDF format. Download the Adobe Reader now.


Personnel

ALJ Susan J. Pogoda dismissed AWOL charges against a correction officer who did not report to work during a snowstorm. Respondent testified that there was a travel ban in place and she could not get her car out of her driveway. The Department denied respondent’s request for emergency leave and alleged that respondent had notice of the storm and should have made other travel arrangements. On the facts of the case ALJ Pogoda found that the Department failed to prove that the officer’s absence rose to the level of misconduct.   Dep't of Correction v. Hernandez, OATH Index No. 106/16 (Mar. 23, 2016).

A sanitation worker was charged with misconduct after failing to submit to a random drug test when ordered to do so. Respondent had called in sick on the morning of the test after the testing unit had arrived at his garage and was ordered to report to the Department's clinic for drug testing that afternoon. He did not appear at the clinic and failed to prove that he had been too ill to travel. ALJ Astrid B. Gloade recommended a 30-day suspension without pay.   Dep't of Sanitation v. R.L., OATH Index No. 806/16 (Mar. 16, 2016).

Petitioner charged respondent, a 23-year employee, with using expletives and a racial slur towards a co-worker. During an EEO investigation and at trial, the co-worker admitted that he had repeatedly cursed at and used demeaning language towards respondent, who has a stutter. ALJ Ingrid M. Addison found that the trial testimony of the co-worker and the investigating EEO officer, as well as documentary submissions, preponderated in favor of a finding that respondent had indeed used the racial slur and expletives, but that his behavior was the result of him being subjected to a protracted period of insults and demeaning behavior based on his perceived disability and ethnic origin. Noting that respondent had no disciplinary record and was reacting to his co-worker, ALJ Addison recommended a 20-day suspension, with credit for time served.    Transit Auth. v. Shahbaz, OATH Index No. 801/16 (Mar. 23, 2016).

ALJ Noel R. Garcia upheld charges against a hospital assistant manager who made verbal threats to two supervisors over the phone. Following an alleged theft of money from her purse, respondent called the supervisors and threatened to physically harm someone in her department. Both supervisors provided credible testimony along with contemporaneous written reports of the incident. ALJ Garcia recommended a 30 day-suspension. He dismissed an additional charge of failure to follow a directive because there was an apparent miscommunication between a supervisor and respondent and respondent did not intend to disregard the order.    Health & Hospitals Corp. (Harlem Hospital Ctr.) v. Walker, OATH Index No. 1099/16 (Mar. 14, 2016).


Licensing

A professional engineer submitted construction plans and applications for several worksites proposing work in violation of the applicable laws and codes, and containing misrepresentations about the nature of the work. ALJ Spooner found that the engineer acted negligently and without knowledge of the law, therefore falling below the standard of professional conduct required by the Department of Buildings. ALJ Spooner recommended revocation of the engineer’s self-certification privileges. Based on the finding that the engineer made material false statements, the Commissioner imposed a heavier penalty. He revoked all of the engineer’s filing privileges with the Department.    Dep't of Buildings v. Ali, OATH Index No. 2751/15 (Mar. 16, 2016), modified on penalty, Comm'r Dec. (Mar. 21, 2016).

A taxi cab driver was charged with smoking a cigarette in his vehicle and making threatening remarks to a passenger. The passenger credibly testified that during their trip the driver made repeated references to a terrorist group and stated that he wanted to blow up the cab. The passenger's testimony was supported by a complaint report made shortly after the incident. The passenger had also promptly called the police who did not question the driver until more than one month after the incident. Based on mitigating evidence presented at trial, including testimony from the driver's neighbor and the fact that the police did not consider the driver to be a serious threat, ALJ Kevin F. Casey found that the driver's behavior was out of character and did not recommend license revocation. Instead, ALJ Casey recommended a six-month license suspension and a $1,150 fine.    Taxi & Limousine Comm'n v. Ahmed, OATH Index No. 1182/16 (Mar. 16, 2016).


Real Property

A resident of an interim multiple dwelling building applied for protected occupant status under the Loft Law. The owner argued that a sale of rights and improvements took place prior to the petitioner's tenancy, therefore removing the unit from rent regulation and depriving the resident of protected occupant status. As evidence of the alleged sale, the owner submitted emails sent between the owner and the former tenant's estate discussing fixtures in the unit. ALJ Kara J. Miller found this proof insufficient because the emails made no reference to the selling of rights or improvements under the Loft Law and the owner did not provide any evidence that a sale actually took place. Finding that petitioner moved into a covered unit pursuant to a lease, ALJ recommended that petitioner's application for protected occupant status be granted.    Matter of Waid, OATH Index No. 345/15 (Mar. 7, 2016).


Vehicle Retention

Respondent's vehicle was seized following his arrest for possession of drugs and a weapon. ALJ Kara J. Miller found that respondent received timely notice of his right to a retention hearing and so the vehicle could not be released on procedural grounds. However, ALJ Miller found that the Police Department failed to establish probable cause for the arrest. There were notable inconsistencies between the arrest and complaint reports and the criminal court complaint as to whether there was marijuana in plain view justifying a search. ALJ Miller therefore ordered the vehicle released. Police Dep't v. Walker, OATH Index No. 1462/16, mem. dec. (Mar. 25, 2016).


Human Rights

ALJ John B. Spooner found sufficient evidence to prove that a building maintenance company engaged in age discrimination when it terminated the complainant, a security guard, based upon a policy of mandatory retirement at the age of 65. Although ALJ Spooner did not reach the issue of whether all mandatory retirement policies are unlawful under the City Human Rights Law, he found discriminatory conduct where, as here the company failed to appear at trial or offer any evidence in support of the reasonableness of its policy. ALJ Spooner also found that the company and its owner retaliated against the complainant when they told him he would "regret" it when they learned that he had contacted the Human Rights Commission regarding his termination. Compensatory damages, including back pay, mental anguish, and future pay, of $72,808, a civil penalty of $15,000 and direction that respondents undergo antidiscrimination training were recommended.  Comm'n on Human Rights ex rel. Joo v. UBM Building Maintenance, Inc., OATH Index No. 384/16 (Mar. 25, 2016).


Contracts

The Department of Parks filed a motion to dismiss 29 different claims in a contract dispute with a construction company working on McCarren Park Pool and Bathhouse in Brooklyn. The Contract Dispute Resolution Board, chaired by ALJ Alessandra F. Zorgniotti, granted the motion with respect to 22 claims based on the timeliness and waiver. Three additional claims were dismissed because the agency had not yet issued a determination and so the claims were not ripe for review. The City was directed to file an answer for the remaining claims. Commodore Construction Corp. v. Dep't of Parks & Recreation, OATH Index No. 2040/15, mem. dec. (Mar. 22, 2016).