Employee dismissed because of habitual lateness Dept. of Corrections v Gardner, OATH 1096/99 Disciplinary charges were filed against Darell Gardner, a New York City corrections officer, alleging various time and leave violations such as failing to call in to report illness as required and reporting to work late 17 times in a one-year period. Administrative Law Judge [ALJ] Donna R. Merris found Gardner guilty of failing to call in sick one hour before his scheduled tour of duty, failure to report for duty following a grant of personal emergency leave, and of excessive lateness. Judge Merris then reviewed Gardner's personnel record. Noting that Gardner had been previously disciplined for infractions involving time and attendance, the ALJ recommended that he be terminated. According to Judge Merris, "the charges here reflect a seemingly incorrigible pattern of thirty-four proven instances of lateness over a period of fifteen months." As to the justification for her recommendation that Gardner be dismissed, Judge Merris said: Thus, by his conduct, [Gardner] continues to demonstrate an inability to conform his behavior to the Department's standards. In light of the continued history of excessive lateness demonstrated here, the only appropriate penalty is that [Gardner] be terminated from his position.
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