Dep t of Sanitation v. Antrobus OATH Index No. 460/11 (Oct. 29, 2010)

Transcription

1 Dep t of Sanitation v. Antrobus OATH Index No. 460/11 (Oct. 29, 2010) Sanitation worker guilty of time and leave violations. ALJ recommends four days suspension. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of DEPARTMENT OF SANITATION Petitioner - against - ANDRE ANTROBUS Respondent REPORT AND RECOMMENDATION TYNIA D. RICHARD, Administrative Law Judge This employee disciplinary proceeding was referred by petitioner, the Department of Sanitation ( Department ), pursuant to section 75 of the New York Civil Service Law. Petitioner alleges that respondent, a clerical associate, violated various time and leave rules. The hearing was conducted before me on October 6, Petitioner presented the testimony of Supervisor Smith and Deputy Chief McLean. Respondent presented the testimony of Sanitation Worker Roach and testified on his own behalf. Based upon the record of the proceeding, I find respondent guilty of misconduct and recommend a four-day suspension. ANALYSIS Respondent is a clerical associate charged with three violations of Department rules: failing to sign out on August 14, 2006, and failing to substantiate emergency leave on August 10, 2006 and September 14, Respondent asserts that the Department has chosen to selectively enforce its rules against him because he is a victim of racial discrimination, which even if true is not a proper defense to disciplinary action.

2 - 2 - Charge No Failure to Submit Proof of Emergency It is undisputed that on August 10, 2006, respondent left work at lunchtime and did not return to work that afternoon. He testified, unrebutted, that he went home for lunch and later called the office and requested emergency leave due to a plumbing problem that caused a flood in his apartment (Tr. 17, 36, 84). His call was recorded in the Telephone Order Book (Pet. Ex. 1). Department rules require an employee submit proof of the emergency for which he seeks emergency leave within 48 hours of his return to work (Tr. 17, 37). Petitioner contends that respondent failed to produce evidence of an emergency, so the Department denied his request for leave, docked him for the hours he did not work, and eventually served him with this charge (Tr. 18, 40). Respondent produced at trial a letter which, he testified, he presented to Supervisor Smith and (then) Superintendent McLean, who both refused to accept the letter and instead insisted he produce a plumbing receipt (Tr. 85, 90). Supervisor Smith and (now) Deputy Chief McLean disputed this testimony, both testifying that they never saw the letter and were not approached by respondent with a letter (Tr. 18, 33, 39). The letter claims to be written by owner Steven D Antonio and states there was a plumbing emergency in respondent s apartment on August 10 (Pet. Ex. 2). Respondent testified that he obtained the letter from his landlord immediately after the incident, although it is dated September 14, 2006, a month later (Tr. 86). Respondent, who is African-American, explained that his supervisors refused to take the letter from him because they have long targeted him for discriminatory treatment because of his race. Supervisor Smith also is African-American. Respondent contends that he has filed numerous complaints alleging racial discrimination by various supervisors at the Department, including Mr. McLean; Mr. McLean was aware a complaint was filed against him (Tr. 67). One of respondent s earliest complaints was filed in 2006 with the New York State Division for Human Rights ( SDHR ) (Tr. 80). Respondent produced one page of the Determination issued by SDHR on a complaint he filed August 7, 2006, days before this disciplinary charge was filed by the Department (Resp. Ex. A). The page indicates that SDHR found no probable cause to proceed on respondent s claim of discrimination which was based on sex or national origin. It was unclear that this Determination related to Mr. McLean as it did not mention racial discrimination. Respondent attributed the no-probable-cause determination to his attorney s failure to file the proper supporting papers (Tr. 118). He repeatedly asserted that the disciplinary

3 - 3 - charges lodged against him confirm his belief that he has been targeted by Mr. McLean and others in the Department for unfair treatment because other employees have not been charged for such minor offenses (Tr. 93). However, a claim of selective enforcement is no defense to charges asserted in a disciplinary proceeding. See Dep t of Sanitation v. Yovino, OATH Index No. 1209/96 (Oct. 9, 1996), aff d in part, rev d in part, NYC Civ. Serv. Comm n Item No. CD O (Dec. 4, 1997) (selective enforcement as a defense can only be asserted upon judicial review of an adverse administrative determination). Therefore, the tribunal may not try his claims of discrimination in this context. Nevertheless, it is appropriate to make observations of the witnesses against respondent for evidence of bias, and I did not find any. Dep t of Sanitation v. Menzies, OATH Index No. 678/98 at 2-3 (Feb. 4, 1998), aff d, NYC Civ. Serv. Comm n Item No. CD A (Sept. 9, 1998) (in making credibility determinations, the tribunal looks to witness demeanor, consistency of a witness testimony, supporting or corroborating evidence, witness motivation, bias or prejudice, and the degree to which a witness testimony comports with common sense and human experience. ). His supervisors testified in a sober and straightforward manner. They displayed no bias and I found them to be credible. Respondent, on the other hand, I found to be distracted by and excessively focused on explanations of discrimination when much simpler nondiscriminatory explanations were more likely. In addition, he admitted filing similar complaints of discrimination against several different supervisors over the years at various assignments within the Department (Tr ). Based on my credibility findings, I credited the supervisors testimony that they were never presented with the owner letter in Rather, I believed the letter to be a more recent creation that was belatedly offered at trial as an excuse for respondent s absence. Given respondent s propensity toward written complaints against the Department, I doubted that he would have allowed them to reject his proof without filing a grievance or otherwise creating a paper trail. He claimed that he asked the union to file a grievance on his behalf and they never did (Tr. 88, 91). This claim was not corroborated. Under the Department s Operations Order 98-04, a failure to submit satisfactory proof that an emergency existed may subject an employee to disciplinary action. Operations Order (July 15, 1998). I find that respondent failed to submit proof of an emergency here. Thus, petitioner has sustained its charge of misconduct.

4 - 4 - Charge No Failure to Sign Out Rule 1.2 of the Department s Code of Conduct states that employees must sign in when they arrive at their work location, and must sign out at the end of their work shift. It is undisputed that respondent failed to sign out on August 14, 2006 (Pet. Ex. 3). Petitioner did not dispute, however, that respondent worked until the end of his shift that day. He was paid for the full day and would have been docked salary if the Department suspected he had left work early (Tr , 41). The charge merely asserts misconduct by respondent s failure to sign out. Respondent said he forgot to sign out but was at work until the end of his shift at 4:00 p.m. (Tr. 82, 93). Although respondent s failure to sign out is a technical violation of the rules, I find it a de minimis violation that does not warrant a sanction. See Dep t of Correction v. Callabrass, OATH Index No. 1981/10 at 7 (July 23, 2010) (absence from post for a seven-minute bathroom break without obtaining permission was de minimis violation of rule); Transit Auth. v. Nixon, OATH Index No. 2131/96 at 21 (Mar. 31, 1997), modified on penalty, Auth. Dec. (May 16, 1997) (ALJ found conduct leaving her post to eat soup before her scheduled lunch hour and immediately returning to work when confronted by her supervisor too trivial to warrant a sanction). There was no allegation that his failure created any administrative cost or resulted from insubordination. There was nothing alleged or proven other than the mistake itself. Respondent, on the other hand, claims that he was docked pay and, again, asserts that the charge was lodged against him in retaliation for his complaints of discrimination (Tr. 93, 132). Respondent offered no proof that he was docked pay and produced not even a pay stub to substantiate the assertion. By contrast, petitioner supported its contention that respondent was paid the full day with the official time sheet which showed he was not docked any pay for the day (Pet. Ex. 5). Although respondent s failure to sign out is a technical violation of the rules, I recommend dismissal because it is a de minimis violation. 1 Charge No Failure to Submit Proof of Emergency An entry in the Department s Telephone Order Book indicates that, on September 14, 2009, respondent called in several hours before the beginning of his shift and requested 1 Petitioner s advocate indicated that a charge for failing to sign out would typically settle for a reprimand (Tr. 154).

5 - 5 - emergency leave for the day (Pet. Ex. 4B). When respondent returned to work on September 16, he submitted a Request for Authorized Leave which states the reason for his request was a doctor s appointment on September 14 (Pet. Ex. 4A). Along with the request, he submitted a doctor s note which indicated he was seen by the doctor that day for a lumbar disc bulge (Pet. Ex. 4C). Petitioner found the proof insufficient, arguing that a scheduled doctor s appointment does not constitute an emergency and that doctor s appointments are properly chargeable to medical or sick leave but not emergency leave. According to Mr. McLean, emergency leave is taken from compensatory or annual leave accruals and may not be taken from sick leave accruals (Tr. 50, 53-55). Rule 1.5 of the Code of Conduct states that an employee who requests emergency leave must give a valid reason for the emergency leave and must submit verifiable proof of the emergency within 48 hours of the request.... Employees may not use emergency leave in lieu of medical leave. Respondent testified that, due to a back injury sustained in a 2008 automobile accident, he needed to visit his doctor to prepare the paperwork for an upcoming surgery, and his lawyer scheduled the appointment for September 14, 2009 (Tr. 97). He received word from his attorney on Sunday afternoon, the day before the appointment, and he called the Department to give notice around 1:00 a.m. Monday (Tr. 121). He conceded that September 15 was his regular day off but said he had personal engagements scheduled that day (Tr. 128). He claimed, unbelievably, that the doctor s visit could not have been held on any other day. Operations Order defines emergency as a sudden unforeseen situation that requires immediate action (Department Operations Order (July 15, 1998)), and petitioner contends that the doctor s visit was not an emergency. I agree. Petitioner also argues that respondent s request for emergency leave was intended to allow him to receive paid leave for the whole day when he was not entitled to it because he lacked sufficient sick time. The record shows that respondent had only one hour and 30 minutes of sick leave available (Pet. Ex. 4A, Tr ). Respondent argues that the request was a mistake for which he should not be punished. He said the Department allows others to amend their requests when they make mistakes but would not allow him to do so, although he admitted he never asked to amend his request (Tr. 103). Mr. McLean testified that respondent never informed the Department he had made a mistake on his leave request form (Tr. 65). Respondent also argued that Mr. McLean had

6 - 6 - discretion to grant the leave but would not do so for him, as a form of retaliation for his discrimination complaints (Tr. 99). I find that the evidence established that respondent had no emergency on September 14, therefore petitioner s denial of his request for emergency leave was appropriate. His scheduled doctor s visit entitled him to use sick leave but not emergency leave. According to the Department s rules, petitioner established misconduct. See Dep t of Sanitation v. Bello, OATH Index No. 1238/05 at 2 (Sept. 29, 2005), aff d, NYC Civ. Serv. Comm n Item No. CD SA (Feb. 17, 2006) (doctor s appointment was insufficient proof of emergency and substantiated misconduct). FINDINGS AND CONCLUSIONS 1. Charge No is sustained in that, on August 10, 2006, respondent failed to submit documentation for his emergency leave request, in violation of Department rules. 2. Charge No should be dismissed, as respondent s failure to sign out on August 14, 2006, was a de minimis violation of Department rules. 3. Charge No is sustained in that, on September 14, 2009, respondent failed to submit documentation for an emergency leave request, in violation of Department rules. RECOMMENDATION In connection with the above findings and conclusions, I obtained and reviewed a summary of respondent s disciplinary record, as provided to me by the Department. Respondent was appointed to his position as a clerical associate on May 21, Prior to that, he worked for the Department for four years as a college aide. He has no prior disciplinary history. He received superior, satisfactory and superior overall ratings on his performance evaluations for the years 2007, 2008, and 2009, respectively. His 2009 evaluation specifically credits him for a conscientious work ethic. The Department has requested a two-day penalty for each charge, and respondent has been found guilty of two of the three charges alleged. Past penalties for violations of the emergency leave or sick leave rules, or for other unauthorized absences, range from two to seven

7 - 7 - days of suspension. See, e.g., Dep t of Sanitation v. Sosa, OATH Index No. 1527/05 (Aug. 12, 2005) (four-day penalty per time and leave violation where employee had past record of similar misconduct); Dep t of Sanitation v. Ambrosino, OATH Index No. 1553/03 (Sept. 2, 2003) (two days AWOL resulted in four-day suspension), modified on penalty, NYC Civ. Serv. Comm n Item No. CD05-73-D (Sept. 20, 2005) (CSC reduces penalty to one-day suspension); Dep t of Sanitation v. Raheb, OATH Index No. 1529/03 (Aug. 29, 2003), aff d, NYC Civ. Serv. Comm n Item No. CD04-84-SA (Nov. 23, 2004) (seven-day suspension for taking emergency leave due to undocumented medical emergency). There were neither mitigating nor aggravating circumstances extant in this case. I therefore recommend, in accordance with the Department s request, two suspension days per charge sustained for a total of four suspension days. October 29, 2010 SUBMITTED TO: JOHN J. DOHERTY Commissioner APPEARANCES: CARLTON LAING, ESQ. Attorney for Petitioner MARTIN DRUYAN, ESQ. Attorney for Respondent Tynia D. Richard Administrative Law Judge