OATH Recent Decisions

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Personnel

ALJ Michael D. Turilli recommended termination of a hospital investigator for engaging in a pattern of discourteous conduct, insubordination, and unsatisfactory work performance. At trial, respondent’s co-workers, subordinates, and supervisors testified to her behavior at work, which included instances of name-calling, yelling, failing to supervise her employees, making false statements, and refusing to perform certain assignments. Respondent denied the allegations and testified that she believed she was being harassed and targeted by management. In sustaining over 35 specifications, the ALJ found that petitioner adequately proved respondent was discourteous, insubordinate, and incompetent over the course of 18 months, and recommended termination of respondent’s employment. Because the employee had ample notice that her unprofessional conduct could result in discipline and still failed to change her performance, choosing instead to blame management and deny accountability, the ALJ determined that termination was the appropriate remedy, despite her minor disciplinary record over her long tenure within the hospital system. Health & Hospitals Corp. (Elmhurst Hospital Center) v. Scott-Petty, OATH Index. No. 1318/24 (Nov. 6, 2024), adopted, CEO Dec. (Nov. 18, 2024).

Human Rights

ALJ Jonathan Fogel recommended assessing $10,000 in mental anguish damages, along with a $20,000 civil penalty, against real estate brokers for unlawful source of income discrimination. The ALJ found that respondents denied complainant the opportunity to rent a housing accommodation once complainant informed them that she had a housing voucher. Petitioner also had a discrimination tester contact respondents with a request to rent an apartment with a housing voucher and was informed that respondents did not accept vouchers. However, the ALJ determined that these two acts of discrimination, separated by ten months, were insufficient to establish that respondents engaged in a pattern or practice of unlawful discrimination. Comm’n on Human Rights ex rel. Morgan v. NY Pyramid Group, OATH Index No. 1588/24 (Nov. 7, 2024).

Worker Protection

ALJ Kevin F. Casey denied respondents’ and intervenor’s motions to dismiss a prevailing wage proceeding, finding that Article 9 of the Labor Law was applicable to workers who cleaned and disinfected subway cars during the COVID-19 pandemic. The ALJ determined that Article 9, which required that prevailing wage be paid to any person performing work in connection with the care or maintenance of an existing building, was applicable to workers who cleaned and disinfected the subway cars because the work was performed while the subway cars were inside a terminal station. Therefore, the work met the definition of work performed “in connection with” the care and maintenance of a building. The ALJ noted that Article 9 is expansive and applies to an array of service workers not limited to building cleaners, and that the history of Article 9 supports a broad reading of “in connection with.” Therefore, the subway car cleaners must be paid a prevailing wage. Office of the Comptroller v. LN Pro Services, LLC & Fleetwash, Inc., OATH Index Nos. 2376/24, 2377/24, mem. dec. (Nov. 18, 2024).

ALJ Seon Jeong Lee recommended assessing $2,550 in civil penalties and $500 in employee relief against respondent for depriving her employee, a childcare worker, of her right to use earned paid sick time. Respondent employed a nanny in her home and informed the employee that she would not get paid for time not worked. During a default trial, the employee credibly testified that she did not schedule doctor’s appointments during her work hours because she worried that she would not get paid for that time if she did. The ALJ found that respondent’s actions violated the Earned Safe and Sick Time Act because she failed to allow her employee use of earned paid sick time. The ALJ also found that respondent failed to inform her employee of the right to earned paid sick time and maintain the required employee records, both of which violated the Earned Safe and Sick Time Act. Dep’t of Consumer & Worker Protection v. Gray, OATH Index No. 1049/24 (Nov. 27, 2024).

Contracts

The Contract Dispute Resolution Board, chaired by ALJ Orlando Rodriguez, denied a contractor’s petition challenging the Department of Environmental Protection’s (“DEP”) rejection of plate material for the installation of stainless steel piping because it did not meet DEP’s thickness requirement. The contractor claimed that their plate material satisfied standard thickness requirements and they sought a determination from the Board that they were not required to replace the rejected piping or, if they were required to do so, they were entitled to a change order for the costs. DEP maintained that the plate material did not conform with contract requirements and that the contractor failed to timely file its notice of dispute. The Board found that the notice of dispute was timely, but rejected the contractor’s claim on the merits because the contract specified the required thickness of the piping material and DEP’s right to reject non-conforming piping. The Board also noted that the contractor was obligated to discover and resolve any ambiguities as to the piping material prior to submitting their bid. Walsh Construction Company II, LLC v. Dep’t of Environmental Protection, OATH Index No. 1870/23, mem. dec. (Nov. 27, 2024).