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Employee terminated after being AWOL for six months

By Harvey Randall, Esq.

Employee terminated after being AWOL for six months
Matter of Berry and the NYC Commission on Human Rights, OATH Index No. 1537/07

James Berry, Human Rights Specialist with the New York City Commission on Human Rights, was charged with being absent without authority for six months.

New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judge John B. Spooner found Berry?s excuses for failure to supply medical documentation related to his absence as requested ?incredible and insufficient.?

Berry, who admitted being absent as charged, contended that he could not work due to an on-the-job injury and that he was unable to obtain medical documentation for much of the time period because he ?lacked medical benefits.? [As Berry had suffered a work-related injury, his medical expenses would typically have been paid under Workers? Compensation. He filed a claim for Workers? Compensation benefits on May 24, 2006] If substantiated, such acts would be a violation of the City Conflicts of Interest Law and constitute a misdemeanor (New York City Charter, Ch 68, § 2604[b][6]; § 2606[c]).

ALJ Spooner found Berry guilty of the charges preferred against him. Before deciding a penalty to be recommended to the appointing authority, the ALJ considered Berry?s employment history with his agency. In the words of Judge Spooner:

I requested and received a summary of respondent?s personnel history in order to make an appropriate penalty recommendation. He has worked for the agency since 1992. ? in 2003 he accepted a penalty of 40 days? suspension and loss of five days? vacation for using a counterfeit parking plaque and falsely accusing a coworker of creating the plaque. He has been given repeated warnings about accurate timekeeping and attendance.

All of these past problems should serve to increase any further disciplinary penalties.

On the other hand, respondent?s file contains some mitigatory evidence.

His file includes five letters commending his training efforts, including a lengthy letter from a middle school teacher who regarded Mr. Berry as a ?vital part? of the school community.

After considering Berry?s personnel record, the Administrative Law Judge, recommended that Berry be terminated from his position.

For the full text of the opinion, go to:

http://nypublicpersonnellawarchives.blogspot.com/2007/06/employee-terminated-after-being-awol.html

Full post as published by New York Public Personnel Law on March 24, 2008 (boomark / email).