Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Sunday, August 18, 2013

Dismissal of disciplinary charges recommended because superior condoned the employee's alleged failure to follow department policy

OATH Index No. 866/13
A New York City juvenile counselor was charged with failing to conduct three inspections during a tour or duty as required. 
At the disciplinary hearing, however, the counselor proved that the ”three inspections” requirement had not been enforced by management for many years. 
OATH Administrative Law Judge Alessandra F. Zorgniotti recommended dismissal of charges.
The counselor admitted that she did not make three tours of inspection and testified that the failure to do so was a regular practice caused by an excessive work load.
Judge Zorgniotti found that the counselor had proved heraffirmative defense of condonation and waiver by showing that her not making three inspections each tour of duty was condoned by supervisors. Further, said the ALJ, the employer did not show that it placed the counselor on notice that the “three inspection” during a tour of duty policy would be enforced
The decision is posted on the Internet at:

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

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