Dep’t of Correction v



Dep’t of Housing Preservation and Development v. Saliba

OATH Index No. 1577/06 (July 19, 2006), aff’d in part, rev’d in part, Comm’r Dec. (Nov. 30, 2006), appended, penalty imposed, Com’r letter (Mar. 22, 2007), appended

Secretary charged with several incidents of disruptive behavior. Based upon employee’s admissions, ALJ found that two of the charges, concerning outbursts that her supervisors generally lacked “balls” and that one supervisor was a “faggot” whose “dick” should fall off, should be sustained. Based upon respondent’s prior history and various mitigating factors, penalty of 10 suspension days recommended.

Commissioner sustains all five specifications brought against secretary; he imposes the penalty of a four week suspension, but gives the secretary the opportunity to avoid two weeks suspension if she agrees to counseling. Commissioner subsequently imposes a ten day suspension.

______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF HOUSING PRESERVATION

AND DEVELOPMENT

Petitioner

- against -

MARY ROSE SALIBA

Respondent

______________________________________________________

REPORT AND RECOMMENDATION

JOHN B. SPOONER, Administrative Law Judge

This disciplinary proceeding was referred to me in accordance with section 75 of the Civil Service Law. Petitioner, the Department of Housing Preservation and Development, charged that respondent Mary Rose Saliba, a secretary, engaged in five instances of disruptive behavior with her co-workers and supervisors.

A hearing on the charges was conducted before me on June 13, 2006. Petitioner presented the testimony of an investigator and four employees who worked with respondent. Respondent testified on her own behalf, admitting most of the remarks ascribed to her by co-workers but denying that the remarks were misconduct.

For the reasons provided below, I find that only two of the charges have been proven and recommend that respondent be suspended for 10 days.

ANALYSIS

Respondent is employed as a secretary in the Department’s Emergency Services Bureau. The five specifications allege that on June 14, July 6, July 8, August 12, and December 15, 2005, respondent engaged in angry and disruptive conversations with various co-workers. At the hearing, respondent admitted the remarks alleged in three of the charges and vehemently denying one of the alleged statements. She explained that, on each occasion, her anger was provoked by the actions of her co-workers.

Even fully crediting the accounts given by respondent’s co-workers, at least two of the incidents do not rise to the level of misconduct. Specification A of charge I alleges that, on June 14, 2005, respondent “interrupted an altercation” between two other employees about the use of roach spray and refused to obey a direction from her supervisor to calm down and come into his office. In support of this allegation, petitioner called Dorothea Nedwell, who was assigned to a cubicle close to respondent’s cubicle. Ms. Nedwell recalled that, on June 14, 2005, a co-worker named Andrea Johnson asked Ms. Nedwell to spray under Ms. Johnson’s desk for roaches. As Ms. Nedwell began to spray, respondent walked over and asked what she was doing. When Ms. Nedwell said she was spraying for roaches, respondent said she should not be spraying. Ms. Nedwell told respondent to “go back to your area before you get some spray.” Respondent asked Ms. Nedwell what she was saying and said to another worker that this was “a black and white situation” because respondent and the other worker were the only white workers in the office (Tr. 28).

Supervisor Percival Young testified that he recalled respondent coming into his office to complain about Ms. Nedwell’s use of roach spray (Tr. 25). In an email (Pet. Ex. 5) sent on June 14, Mr. Young wrote that respondent told him that Ms. Nedwell had threatened to put roach spray into the mouth of another worker. Later, Mr. Young heard respondent saying something “on top of her lungs [sic]” and Mr. Young asked her to calm down and come to his office. Respondent initially refused but later came to Mr. Young’s office and apologized for her behavior.

Respondent was asked no questions as to this incident.

Neither Ms. Nedwell’s nor Mr. Young’s testimony nor Mr. Young’s somewhat confusing email established that respondent committed misconduct during the roach spray incident. It was not discourteous or improper for respondent to ask Ms. Nedwell what she was doing. Given the proximity of Ms. Nedwell’s cubicle to her own, respondent also had a right to protest Ms. Nedwell’s use of the roach spray. Notably, in her testimony, Ms. Nedwell admitted that she threatened to spray respondent with roach spray. Respondent’s complaint to Mr. Young about Ms. Nedwell threatening to spray a co-worker with roach spray was reasonable and appropriate, since such an argument between two co-workers should be dealt with by a manager. The fact that respondent became so upset that she initially refused to obey Mr. Young’s direction to calm down did not establish misconduct, where respondent’s anger was caused by the discourteous threat by Ms. Nedwell to use the roach spray on respondent. Once respondent was able to collect herself, she went to Mr. Young’s office and apologized. I find that, under these circumstances, respondent’s actions were not deliberately discourteous or abusive and that this specification should be dismissed.

Ms. Nedwell described another incident with respondent on August 12, 2005. On that day, Ms. Nedwell and some co-workers were talking about children returning to school and at one point stated “a mind is a terrible thing to waste.” Respondent came over to Ms. Nedwell’s cubicle, pointed at her, and said, “Dorothea, if you’re speaking about me you need to stop it.” Ms. Nedwell denied that she was speaking about respondent and called “disciplinary” to report the incident (Tr. 30).

In describing the August 12 incident, respondent indicated that she was very much aware that Ms. Nedwell and others did not like her and made fun of her, complaining that she did nothing but “stuff envelopes all day.” On that day, respondent was at her cubicle and overheard Ms. Nedwell, seated two cubicles over, loudly yell, “Hey, a mind is a terrible thing to waste.” Believing that the comment was a mocking attack upon her, respondent became upset. Respondent could not initially recall exactly what she said in reply (Tr. 52-53). She ultimately stated that she “believed” she said something to Ms. Nedwell like “you can take these words and shove them down your throat” (Tr. 55).

In every respect, I found respondent a more credible witness than Ms. Nedwell. Even though respondent had a compelling interest in denying the allegations, the circumstances here made it apparent that Ms. Nedwell was far from a neutral witness. As Ms. Nedwell euphemistically admitted, she did not “get along with” respondent (Tr. 31). In fact, the hearing evidence indicated that Ms. Nedwell harbored a deep-seated resentment of respondent and, based upon the apparent frequency with which Ms. Nedwell complained about respondent’s actions to the disciplinary unit, was anxious to have respondent penalized. Respondent’s admission that she used the phrase “shove them down your throat,” a stronger phrase than that quoted by Ms. Nedwell, gave her testimony a particularly credible ring. On the other hand, Ms. Nedwell’s vague testimony about the incident persuaded me that her original complaint to management was probably embellished.

In addition, I did not credit Ms. Nedwell’s insistence that the loud remark overheard by respondent was part of a conversation about children returning to school. Ms. Nedwell supplied no believable context for the statement, other than to indicate that it had to do with listening to the radio and remarking that “a mind is a terrible thing to waste” while discussing the commencement of the school year. Neither of these subjects seemed unlikely to generate such a clichéd observation, which is far more commonly used as a sarcastic reference to challenge someone’s sanity. Given the manifest ill will which Ms. Nedwell felt toward respondent and the volume at which the remark was delivered, respondent’s interpretation seemed more plausible -- that Ms. Nedwell and the other worker were making the loud comments to mock respondent, whom they were aware had recently taken sick leave to deal with mental health issues.

Respondent’s reply to Ms. Nedwell, that if Ms. Nedwell was referring to respondent she could shove the comment down her throat, was discourteous. However, respondent’s anger was clearly provoked by the teasing of Ms. Nedwell. Under these facts, where an employee responded to an insult going to a sensitive issue such as the employee’s mental health by telling the co-worker to “stick it down her throat,” and used neither profanity nor a threat, I find that the employee’s remark cannot be sustained as misconduct. See Fire Dep't v. Donofrio, OATH Index No. 2042/96 (Oct. 23, 1996) (ALJ found employee's mild statement of "stop busting my balls" in response to supervisor's initial profanity not insubordination). This specification should also be dismissed.

Another incident involved respondent’s complaints to Director Joseph Scarpula about mice in an office closet. The charge alleges that, on December 15, 2005, respondent yelled at Mr. Scarpula that he had “no balls” because he did not order for a closet to be cleaned and, like the two previous incidents, the facts were not disputed. Mr. Scarpula testified that he was speaking on the telephone with a councilman's office when respondent entered his office with a dust pan. She told him that the dust pan contained mouse droppings from a closet. Mr. Scarpula told her he was on an important call and would deal with the matter when he was done. Respondent replied that if he would not take action she would go to the Associate Commissioner Mustaciuolo (Tr. 16-17).

In her account, respondent stated that, on December 15, 2005, she fell for “the trap” set by her co-workers. A co-worker named Ed Blank opened a closet door and yelled at respondent to come look inside. When respondent walked over, Mr. Blank said that mice had shredded paper and made a nest. Respondent retrieved a broom and started sweeping up mouse feces from the bottom of the closet. When she was done, she asked, “Oh, look at this. You want some chocolate sprinkles on your ice cream?” She also remarked that the closet was “unhealthy.” Although respondent did not directly mention confronting Mr. Scarpula, she did state that she told a co-worker that the supervisors had “no balls.” Later, around noon, someone from the inspector general’s office came to respondent’s desk and ordered her to leave. She was suspended for two days (Tr. 53-54).

Like her protests about the roach spray, respondent’s actions during the mouse incident showed her to be reacting, albeit in an unnecessarily emotional way, to a legitimate work-related concern. The discovery of mouse feces in an office closet could be understandably upsetting to anyone who either worked in proximity to the closet or used the closet to hang a coat as respondent apparently did. Respondent’s complaint to Mr. Scarpula concerning this condition was therefore proper. The fact that respondent had a brief conversation with Mr. Scarpula while he was on the telephone did not, in and of itself, establish misconduct, since respondent said nothing discourteous and apparently complied with his request to defer the discussion until he completed his conversation. Her stated intention of going to a higher level manager if something was not done immediately also violated none of the rules prohibiting discourtesy.

Respondent’s final complaint, however, making a sexually embarrassing reference about her supervisors’ lack of fortitude, went beyond registering a complaint. The impact of the insult was qualified, since there was no evidence that respondent made the comment directly to her supervisors. Mr. Scarpula’s failure to mention hearing respondent make the remark confirmed her own statement that she made the comment not to Mr. Young or Mr. Scarpula but to an unnamed co-worker. While complaining to co-workers about her supervisors’ inaction would not be misconduct, phrasing that inaction in a vulgar manner with a sexual reference to the supervisors’ genitalia was profane and discourteous. I find that respondent’s complaint about her supervisors violated the Department code of conduct rule 23, requiring that employees communicate in a “courteous and considerate manner” and refrain from “profane or abusive language.”

The remaining two incidents raised factual disputes between the version offered by respondent and that of her co-workers. Specification B alleges that, on July 6, 2005, respondent accused co-workers of being racist, called co-worker Gladys Jones a “racist bitch,” and stated, “I’m on Prozac, so I can kill you motherfuckers.” Ms. Nedwell also recalled that she and two other workers were talking about the rapper L'il Kim, whose mother was employed at the office. When Ms. Nedwell stated that the sentence given to Li'l Kim was more than that given to Martha Stewart for a similar offense, she attributed this to the difference in the two women’s respective races. Respondent started “hollering” that the three women were “racist” (Tr. 29-30).

Worker Gladys Jones recalled that, on July 6, 2005, Ms. Jones was walking by respondent’s cubicle and heard her “ranting and raving.” As Ms. Jones passed by, respondent said, “Here comes another prejudiced bitch” (Tr. 34, 35). Respondent also said, “I’m on Prozac so I can kill you mother-fuckers.” Ms. Jones did not reply and kept walking (Tr. 34). Ms. Jones was later interviewed by Mr. Halliday and provided much the same details concerning the July 6 incident (Tr. 34; Pet. Ex. 4).

As to this incident, respondent admitted that she was offended when she overheard Ms. Nedwell suggesting that the rapper Little Kim received a heavier criminal sentence than Martha Stewart due to the difference in their races. Respondent indicated that this was not the first “racial tone conversation” she had heard from these same women (Tr. 48-49). Although respondent admitted that she had taken Zoloft in November (Tr. 49), she vehemently denied telling Ms. Jones she was on Prozac and would “kill you mother-fuckers” (Tr. 47).

I found respondent’s testimony more credible than that of Ms. Nedwell or Ms. Jones. Like Ms. Nedwell, Ms. Jones was a biased witness who seemed to dislike respondent. She stated that respondent was “often ranting and raving” on that date (Tr. 34) and admitted that she did not “get along” with respondent (Tr. 35). Although Ms. Jones insisted that respondent’s use of the word “bitch” and threat to kill her was uttered “within earshot” of everybody in the office (Tr. 35), no other witness, including Ms. Nedwell, corroborated it. Indeed, Ms. Nedwell testified that respondent used the word “racist,” a word Ms. Jones did not recall hearing. As analyzed above, respondent’s testimony seemed highly credible primarily because of the remarkable number of angry remarks she admitted to making, several of which were nearly as vulgar as the one quoted by Ms. Jones. I thus conclude that the evidence supports a finding that respondent told Ms. Jones and Ms. Nedwell only that they were “prejudiced.” Such a comment did not violate the rules regarding discourtesy.

Specification C alleges that, on July 8, 2005, respondent entered the office of Supervisor Clara Moody, told co-worker Richard Lipari that she knew he did not like her, and, upon being forcibly removed from the office by Mr. Lipari, called him a “dickless faggot” and stated that she hoped his “dick falls off.” Investigator Robert Holliday interviewed respondent and co-worker Clara Moody concerning the July 8 incident. According to Mr. Holliday, as confirmed by his notes (Pet. Ex. 1), respondent told him that, on July 8 she went into co-worker Clara Moody's office to show her some new boots. Richard Lipari was already in Ms. Moody's office speaking with her. He told respondent to "get out of here before I hurt you myself." When respondent did not leave, Mr. Lipari picked respondent up, let her down outside the door, and slammed the door. Respondent later came back into Ms. Moody's office and said, "I hope his dick falls off, that faggot" (Tr. 8).

Mr. Holliday also interviewed Ms. Moody. According to his notes (Pet. Ex. 3) of this interview, Ms. Moody told him that she was speaking with Mr. Lipari when respondent came into Ms. Moody's office to show off her shoes. Respondent left and then returned a few moments later. Respondent asked Mr. Lipari, "What are you looking at me for? I know you don't like me but I know who you like.” Mr. Lipari then "escourted [sic]" respondent out of the office. Respondent later told Ms. Moody, "I hope Richard's dick falls off.” Ms. Moody commented that Mr. Lipari had accused respondent of kicking him some three weeks before.

In describing the incident with Mr. Lipari, respondent testified that she had given away the boots to a co-worker because she found the heels to be too high. The co-worker returned them. Upon receiving the boots, respondent put them on and walked around the office “like a little girl would do if she was playing with her mother’s high heels” (Tr. 40). When respondent walked into Ms. Moody’s office and saw Mr. Lipari, he gave her a “horrible dirty look.” She told him, “Don’t look at me like that unless you have something to give me” (Tr. 40). Respondent insisted that she delivered this remark out of nervousness due to Mr. Lipari being friendly with women that had been creating trouble for respondent.

Mr. Lipari threatened to “hurt” respondent. Respondent told him to “go ahead.” At this, Mr. Lipari grabbed respondent by her arms, picked her up, and set her down outside Ms. Moody’s office (Tr. 40-41). He then slammed the door in her face. Respondent was “in shock” and spoke with co-worker Lawrence Burton about what Mr. Lipari had done to her (Tr. 41). In her testimony, respondent was never asked whether she made the remarks testified to by Mr. Holliday.

I fully credited the uncontroverted testimony of Mr. Holliday, indicating that respondent admitted to him that she referred to Mr. Lipari with an insulting epithet and voiced the hope that his penis would fall off, as alleged. However, I also credited respondent’s testimony that, prior to making this remark, she had been grabbed by Mr. Lipari and forcibly lifted out of Ms. Moody’s office. The only contrary evidence consisted of the hearsay statement by Ms. Moody that Mr. Lipari “escorted” respondent out of the office. Given the vagueness of Ms. Moody’s use of the word “escort,” a word which is consistent with Mr. Lipari having used some physical force on respondent, and the possibility that Ms. Moody would have been reluctant to accuse Mr. Lipari of misconduct, I found that Ms. Moody’s hearsay remark did not rebut the credible version provided by respondent. Based upon respondent’s statements, both in her interview with Mr. Holliday and in her testimony, I therefore find that Mr. Lipari lifted respondent up and carried her out of Ms. Moody’s office. Several minutes later, respondent spoke with Ms. Moody about the incident, using insulting and sexually explicit language.

There can be no doubt that being set upon in this way by a fellow employee would be humiliating and profoundly upsetting. Certainly, respondent’s remarks must be considered with this in mind. Also to be considered is the fact that respondent’s comments to Ms. Moody were not spontaneous but were delivered some time after respondent was forced out of the office by Mr. Lipari. Weighing these factors, I find that respondent’s vulgar language, even though provoked by Mr. Lipari’s misbehavior, violates the Department rules requiring courtesy and prohibiting “profane or abusive language.” See Department Code of Conduct Rules 6 and 23; Human Resources Admin. v. Savoca, OATH Index No. 1524/01 (Jan. 14, 2002); Dep't of Buildings v. Cortes, OATH Index No. 577/90 (Feb. 9, 1990) (strong profanity directed toward a supervisor is arguably misconduct per se). I therefore find that this charge should be sustained.

One final matter warrants discussion. As part of respondent’s defense, her attorney insisted that her mental condition constituted a “disability” which, pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C.A. § 12101 et seq., requires employers to provide ‘reasonable accommodation” to workers suffering from disabilities. The proof relied upon to establish a disability consisted of a written evaluation (Resp. Ex. D) from Dr. Antal Borbely, a psychiatrist who examined respondent in March 2004. At that time, he concluded that respondent had a “Bipolar Disorder with psychotic features” and was in need of “psychiatric treatment with mood stabilizers and antipsychotics.”

The record here undermines any ADA defense because more recent medical evidence indicates that respondent does not have a psychological disorder. In a March 25, 2004 letter (Resp. Ex. E), Dr. Oscar Rodriguez found that respondent was “not acutely psychotic, manic or clinically depressed” and that there was “no need for further psychiatric intervention.” Most recently, Dr. Azariah Eshkenazi examined respondent in January 2006 at the request of the Department and, in a January 19, 2006 report (Resp. Ex. C), found that respondent had an “Anxiety Disorder” which made her quick to anger and difficult to work with. He concluded, however, that she was otherwise “mentally fit” and could perform her duties as a secretary. Significantly, Dr. Eshkenazi’s examination and diagnosis of respondent was closer in time to the July and December 2005 incidents. Due to the contradictory evidence on the issue of respondent’s mental state, there is insufficient proof to establish that respondent suffered from a bipolar condition or other psychological disorder at the time of the incidents. There is therefore no need to consider whether the ADA precludes disciplining respondent for behavior caused by a psychological disorder because the record does not support a finding that respondent suffered from a disability.[1]

In sum, I find that the evidence was sufficient to sustain the allegations concerning the July 8 and December 15, 2005, incidents and recommend that the remainder of the charges be dismissed.

FINDINGS AND CONCLUSIONS

1. Specification A should be dismissed in that petitioner failed to prove by a preponderance of the evidence that respondent was discourteous or insubordinate on June 14, 2005.

2. Specification B should be dismissed in that petitioner failed to prove by a preponderance of the evidence that respondent made profane threats to a co-worker on July 6, 2005.

3. Specification C should be sustained in that, on July 8, 2005, respondent referred to co-worker Richard Lipari as a “faggot” and stated she hoped his “dick fell off,” in violation of Department Code of Conduct rules 6, 23, and 28.

4. Specification D should be dismissed in that petitioner failed to prove by a preponderance of the evidence that respondent was discourteous to a co-worker regarding her comment made on August 12, 2005, that “a mind is a terrible thing to waste.”

5. Specification E should be sustained in that, on December 15, 2005, respondent loudly told co-workers that Director Joseph Scarpulla and other supervisors had “no balls,” in violation of Department Code of Conduct rules 6, 23, and 28.

RECOMMENDATION

Upon making the above findings, I requested and received a summary of respondent's personnel history in order to make an appropriate penalty recommendation. She was appointed as a secretary in 1992 and has two prior disciplinary penalties: in 1995 she was suspended for one day for being disruptive and insubordinate and in 1999 she was suspended for one week for assaulting a co-worker. These prior disciplinary penalties should enhance the penalty in the instant case, involving similar types of misconduct.

The fact that respondent has been disciplined twice before for angry and disruptive behavior indicates that a firm penalty is called for. The hearing evidence here demonstrated that respondent has a quick temper, a somewhat immature and volatile personality, and a very loud voice. All of these factors make her difficult to work with, as respondent herself acknowledged. She stated that she was “not an angel,” but was not “what they’re saying I am” (Tr. 56). She provided some insight into her inclination to be outspoken when hearing opinions with which she disagreed and sarcastically referred to herself as “Ms. Nosey, Ms. Big Mouth, . . . , Ms. Got-to-Get-Her-Point-Across” (Tr. 60).

At the same time, respondent exhibited a distorted perception that none of her actions should be subject to disciplinary action because her co-workers could also be loud and vulgar. Respondent believed that she had to “fight” for her rights because the people she worked with “want to bury me alive” (Tr. 47). Upon prompting by her attorney, respondent stated that she made some effort to get along with her co-workers. But upon being asked whether she had learned from the incidents to be quiet and behave, respondent stated that she was “nothing compared to some of those big mouths there.” She suggested that the misconduct charges were “fabrications” and would never have been brought against her had her skin been black instead of white (Tr. 67). She lamented that the various incidents with her co-workers had shown her she had “to be an actress” and could not “be myself” (Tr. 66). Respondent’s history of acting out on the job, as well as her belief that punishing her for her outbursts is unfair, suggest that another more severe penalty is called for.

On the other hand, several factors provide reason for mitigation of the penalty. Both respondent’s prior evaluations from 1992 and 1993 are “good.” In her 1993 evaluation, her supervisor commented that her relationships with her co-workers had improved because she had “toned down her loud and aggressive manner.”

Moreover, as discussed above, the most improper remarks about Mr. Lipari were provoked by Mr. Lipari’s own improper ejecting of respondent from an office. Mr. Lipari’s actions would have reasonably caused respondent distress and humiliation and her comments about him must be assessed with this in mind.

One further factor warrants mention. The testimony established that nearly all of the charged incidents were the products of strained relationships between respondent and her co-workers which were not entirely the fault of respondent. A major part of this tension was racial – respondent’s co-workers believed that respondent was a white woman who did not respect black women and respondent believed that some of her black co-workers hated all whites. Respondent’s large, loud personality was a major factor in each of the incidents, but the hearing evidence made it clear that respondent was not solely responsible for creating the cauldron of racial animosity or for permitting it to boil over and spill scalding remarks. At this point, some form of management intervention seems called for, which might involve techniques such as a transfer, mediation between respondent and her co-workers by a trained mediator, or anger management training for respondent and some of her co-workers.

Petitioner’s counsel recommended that respondent receive a penalty of a 30-day suspension for the five violations alleged in the charges, or six days per charge. Since only two charges were sustained here, this recommendation would logically result in a 12-day suspension. In weighing all of the factors noted above, I find that some further mitigation is warranted due to the provocation involved in the Lipari incident and the minor nature of the Scarpulla comment. I therefore recommend that respondent be suspended for 5 days each for the two acts of misconduct proven here. This penalty is severe enough to provide another significant penalty for respondent to persuade her that she must exercise greater self-control, yet limited enough to take into account the significant mitigating factors which exist.

In sum, I recommend that respondent be suspended for 10 days for the two instances of misconduct which were proven to have occurred in this case.

John B. Spooner

Administrative Law Judge

July 19, 2006

SUBMITTED TO:

SHAUN DONOVAN

Commissioner

APPEARANCES:

PAUL SCHREIBER, ESQ.

Attorney for Petitioner

MARTIN DRUYAN, ESQ.

Attorney for Respondent

Department of Housing Preservation and Development’s Decision, November 30, 2006

__________________________________________________

DEPARTMENT OF HOUSING PRESERVATION

AND DEVELOPMENT

Petitioner

- Against -

MARY ROSE SALIBA

Respondent

__________________________________________________

SHAUN DONOVAN, Commissioner

DECISION I

I have received and reviewed the Report and Recommendation dated July 19, 2006, issued by John Spooner, Administrative Law Judge (“ALJ”) of the City of New York Office of Administrative Trials and Hearings (“OATH”), the transcript of the hearing held before the ALJ and the exhibits introduced at the hearing. I have also reviewed the letters exchanged by counsel for the HPD Disciplinary Unit and counsel for the respondent, dated September 7 and 11, 2006, setting forth their respective arguments for my consideration in this matter.

In the Report and Recommendation, the ALJ recommends that two of the five specifications against Respondent Mary Rose Saliba be sustained, and that the remaining three specifications of misconduct be dismissed. As the Commissioner of the City of New York Department of Housing Preservation and Development

(“Department”), I have the authority, pursuant to Section 75 of the New York State Civil Service Law, to accept or reject the recommendation. For the reasons set forth below, I have determined to accept the ALJ's recommendation as to the two specifications on which Ms. Saliba was found guilty, and not to accept the ALJ's recommendation as to the three specified acts which he felt were not sustained. I have determined to suspend respondent Saliba for four weeks without pay for the misconduct charged, but I am giving Ms. Saliba the opportunity to avoid two weeks of the suspension.

Respondent Saliba, a Secretary employed by the Department, was charged with engaging in conduct prejudicial to good order and discipline, and engaging in discourteous, inconsiderate and abusive behavior, in violation of Rules 6, 23, and 28 of the Code of Conduct.[2] Five acts of misconduct were specified in the charge:

A. On June 14, 2005, Ms. Saliba interjected herself into a conversation between two co-workers, and disrupted the workplace by loudly shouting. She had to be restrained by her supervisor.

B. On July 6, Ms. Saliba interjected herself into a discussion between some of her African-American co-workers, and loudly accused them of being racists. She later accosted another African-American co-worker, called her a “prejudiced bitch,” and said “I'm on Prozac, so I can kill you motherfuckers.”

C. On July 8, Ms. Saliba entered into the office of Clara Moody, a supervisor who is outside of her chain of command. She was ushered out of that office by Richard Lipari, another HPD employee who was in Ms. Moody's office. Afterwards, she called Mr. Lipari “a dickless faggot” and told Ms. Moody “I hope his dick falls off.”

D. On August 12, Ms. Saliba overheard a discussion between African American co-workers who were joking over the slogan “A mind is a terrible thing to waste,” heard on a radio station. Ms. Saliba approached Dorothea Nedwell and said “Why do you keep saying that? Are you directing those words at me? Because if you are, you can take those words and shove them down your throat.”

E. On December 15, Ms. Saliba barged into the office of her Director, Joseph Scarpulla, and interrupted him while he was on the phone to the office of a City Councilman. She demanded he immediately address a problem of rodent droppings she found in a closet. When he did not, and asked her to leave his office, because he was on the phone, she stood in the work area and loudly stated that Mr. Scarpulla and Percival Young (her supervisor) have “no balls.”

A hearing at OATH was held on June 13, before Administrative Law Judge John Spooner. On July 19th, ALJ Spooner issued his findings and recommendations. His decision, attached to this memorandum together with the record in this case, concluded that Ms. Saliba was guilty of only two of the five specified acts of misconduct, those lettered C and E above. Weighing the severity of Ms. Saliba's conduct, against what the Judge felt were mitigating factors, Judge Spooner recommended that Ms. Saliba be suspended for ten days. I have determined not to accept Judge Spooner's report and recommendations as to Specifications A, B, and D for the following reasons:

Specification A

Dorothea Nedwell testified that Ms. Nedwell and Zebonnesa Eltezam, a co-worker who sits adjacent to Ms. Nedwell, were engaged in discussion concerning the use of roach spray several cubicles removed from Ms. Saliba's workstation. Ms. Saliba interrupted them, and interjected into their conversation. Ms. Nedwell and Percival Young both testified that Ms. Saliba then began to shout, disrupting the workplace and necessitating supervisory action. Respondent, in turn, stated that she was only talking, but admitted, “I talk loud.” (See p. 65, lines 22 - 29).[3]

Dismissing specification A, ALJ Spooner found that Ms. Saliba's workplace disruption was excusable. He found that Ms. Saliba reacted to a threat from Dorothea Nedwell to spray her with insecticide. I find that this was based on an error in the transcript of the hearing. In her testimony, Dorothea Nedwell stated that she was speaking with an employee nicknamed “Zeba”[4] (p. 28 line 7). However, in this, the first reference to “Zeba,” the transcriber of the audiotape mistakenly entered “Ms. Saliba.” The context of the testimony, however, and Percival Young's contemporaneous recording of the incident (Pet. Ex. 5), makes it clear that the transcript is erroneous. Since the Judge's recommended finding is based on this misapprehension, it cannot be accepted.

Ms. Saliba's conduct was objectionable because she interjected herself into a conversation, and disrupted the workplace over a matter of no concern to her. I recognize that this incident is minor, and in and of itself would not be worthy of formal disciplinary proceedings. However, this kind of misconduct is typical of respondent's conduct, it is important that the record be accurate, and I believe that HPD's policies should be clearly announced and enforced.

Specification B

Both Specifications B and D involve Ms. Saliba's ongoing poor relationships with her colleagues. Ms. Saliba testifed that in her opinion Caucasian employees at HPD are disadvantaged, and that African-American employees benefit from a double standard (p. 66-67). Indeed, Specifications B and D involve her interjecting into discussions amongst African-American colleagues whom she believes are racially biased. However, Judge Spooner excluded testimony from HPD's witnesses concerning experiences with Ms. Saliba, specifically excluding a proffer of testimony that Ms. Saliba had a history of making offensive comments to African American co-workers, stating “I don't care if there's one. I don't care if there's 200.” (p. 33, line 15). Having determined that HPD could not introduce testimony in this area, the Judge then discredited the largely uncontradicted testimony of two African-American employees, Dorothea Nedwell and Gladys Jones, on the ground that they were unreasonably biased by their dislike of the respondent. Having ruled that he would not hear a reasonable explanation why two employees might dislike the respondent, I do not agree that the Judge could properly conclude that their testimony was unreasonably biased.

The misconduct alleged in Specification B involved a discussion amongst co-workers of the different prison sentences given to Martha Stewart and “Lil' Kim,” two well known personalities who were convicted of similar offenses. On July 6, 2005, Ms. Saliba interjected herself into this conversation and began “hollering” that her co-workers were “racists.” Thereafter, another coworker, Gladys Jones, walked past Ms. Saliba and respondent stated, unprovoked, “here comes another prejudiced bitch.”

Dorothea Nedwell testified that Lil' Kim's mother works at HPD, is friends with her, and that Lil' Kim had just been sentenced in a criminal proceeding. If this testimony were true, then there was an obvious reason for employees to be discussing the case irrespective of race. On cross examination, Ms. Saliba acknowledged that this was the case (p. 60, lines 8 - 14). She admitted her interjection: “Yes. Ms. nosey, Ms. big mouth, Ms. whatever, Ms. go[t] to get her point across got involved. Yes.” (Id., lines 22 - 23). Respondent testified that she felt justified in interjecting in her co-workers' discussion and calling them “prejudiced.” Ms. Saliba justified her action by stating “People of lighter skin are treated differently. People of darker skin are treated differently. It's a two-way street with HPD.” (p. 66, lines 27 - 30), and later that “Well, they claim they're factors. To me they're just fabrications. ... But I bet you if I was a darker color or if I was black I wouldn't be going through such hassles.” (p. 67, lines 3 - 14). ALJ Spooner discredited the admitted testimony that the employees were discussing the daughter of a colleague. He recommended that I find that Ms. Saliba acted properly in interrupting her co-workers, interjecting into their conversation, and hollering at them that they were “racists” or “prejudiced.”

Similarly uncontested was Gladys Jones' testimony that on the same day Ms. Saliba said “here comes another prejudiced bitch.” Ms. Jones testified that: “I was either walking to ... or from the ladies room and Ms. Saliba was already heated ... She was ranting and raving about something or other which didn't concern me. In my commute to ... or either from the ladies room she said here comes another racist bitch.” (pp. 33 - 34, lines 34 - 4). While Ms. Jones later agreed that Ms. Saliba's statement was “here comes another prejudiced bitch.” (p. 35, line 3), I find that this unprovoked statement was offensive, unprofessional, and disruptive of the workplace. Ms. Jones' testimony that Ms. Saliba was “already heated” was fully corroborative of Ms. Nedwell's testimony. Ms. Nedwell, in turn, was corroborative of Ms. Jones, “Mary Rose started hollering and claimed that we are racist and stop calling us racist. Then she went over to Ms. Gladys Jones and started calling her racist also.” (p. 30, lines 10 - 12). Mary Rose Saliba denied the portion of Specification B alleging that she said “I'm on Prozac, so I can kill you motherfuckers.” (p. 47, lines 22 - 28). However, she neither denied that she accused her colleagues of racism or that she accosted Gladys Jones (p. 48 - 49).

Judge Spooner's recommendation that Specification B be dismissed in its entirety cannot be accepted. It ignores the admitted fact that Lil' Kim's mother does, indeed, work at HPD and that this was a totally sufficient basis for employees to engage in a non-racial discussion of that case. Also ignored by Judge Spooner are the numerous admissions made by respondent to an examining physician, Azariah Eshkenazi, M.D., in a report dated January 19, 2006 and proffered by Ms. Saliba as her Exhibit “C”:

She felt that if she were black, nobody would complain. Essentially, she attributed all the tension to a racial issue. ... People are just jealous of her, she stated, because she is a wonderful person.

As the evaluation continued, Ms. Saliba admitted that she does get loud and loses her temper. She also admitted that she called people “bitches” and that people do not like her because she is outspoken. ... Again, she continued and stated “I do have a problem with outbursts and losing my temper.”

(Respondent Exhibit "C" p. 2).

Ms. Saliba's loud interjection was unwelcome, and unprovoked. Moreover, I do not accept the recommendation that HPD overlook an incident where one employee, without provocation, looks at another walking past her and states “Here comes another prejudiced bitch.”

HPD has a well known and well used procedure for the investigation of bias incidents in the workplace. If respondent feels she is the victim of bias amongst her co-workers, she has ample recourse. Accosting co-workers and loudly accusing them of racism is highly inflammatory and is clearly disruptive to the workplace. I find that Ms. Saliba violated HPD's Code of Conduct by interjecting herself into a conversation amongst others, loudly accusing others of racism, and then accosting Gladys Jones and stating “here comes another prejudiced bitch.”

Specification D

Specification D alleges that on August 12, 2005 Ms. Saliba overheard Dorothea Nedwell jokingly repeat the phrase “A mind is a terrible thing to waste,” that she accused Ms. Nedwell of implicitly mocking her, and she admittedly told Ms. Nedwell “You can take those words and shove them down your throat.” (p. 55, line 7). In support of the allegation, Ms. Nedwell testified that the employees listen to “98.7 KISS FM.” Ms. Nedwell's uncontradicted testimony is that “The kids was going back to school and it was on 98.7 KISS about a mind is a terrible thing to waste. The same group of us, because our cubicles are close enough to each other and we were speaking about it. And Mary Rose came over on my cubicle and started pointing her hand in my face and said, “Dorothea, if you're speaking about me you need to stop it. I said I'm not speaking about you. So I picked the phone up to call -- to make a call to Disciplinary and she said I don't care who you call, because I don't --- scared of no one and she said you can take it and shove it up your...” (p. 30 - 31, lines 26 - 1).

The recommended dismissal of this Specification is based on a determination to discredit uncontradicted testimony, and cannot be accepted. In his discussion of the matter, Judge Spooner stated:

I do not credit Ms. Nedwell's insistence that the loud remark overheard by respondent was part of a conversation about children returning to school. Ms. Nedwell supplied no believable context for the statement other than to indicate that it had to do with listening to the radio and remarking that “a mind is a terrible thing to waste” while discussing the commencement of the school year.

(Report and Recommendation, p. 4).

I believe this analysis is clearly erroneous. I take official notice of the fact that “A mind is a terrible thing to waste” is the widely known and often repeated slogan of the United Negro College Fund (“UNCF ”), one of the best known and highly regarded charities in the country. Ms. Nedwell's testimony was not contradicted. Moreover, it is fully consistent with the likelihood that the UNCF's slogan would, in fact, be heard on 98.7 KISS FM during the weeks immediately preceding the start of a school year. There was no reason for Judge Spooner to speculate over Ms. Nedwell's motive. Ms. Saliba admittedly told Ms. Nedwell to “take those words and shove them down your throat.”

I find that Ms. Saliba interjected herself into the conversation of others, and violated HPD's Code of Conduct by engaging in discourteous, inconsiderate and abusive behavior that is prejudicial to good order and discipline. Accordingly, Specification D is sustained.

REMEDY

Judge Spooner recommended that Ms. Saliba receive a ten day suspension for the violations found by him in his Report. I have found Ms. Saliba guilty of all Specifications. I note that respondent has a prior record of formal discipline inclusive of a one week suspension for conduct similar to that at issue. Accordingly, I am imposing a suspension of four weeks. However, I believe that this employee can benefit from counseling for her outbursts and temper. Therefore, I will allow the HPD Office of Administration to hold two weeks of the suspension in abeyance, to be waived in the event that Ms. Saliba seeks aid through the City of New York Employee Assistance Plan (“EAP”) and stays under the treatment proscribed by the EAP until the sooner of one year, or her release from treatment.

I authorize the Deputy Commissioner for Administration of the Department to implement the above remedy.

SHAUN DONOVAN, Commissioner, Department of Housing Preservation

and Development

Department of Housing Preservation and Development’s Additional Decision March 22, 2007

SHAUN DONOVAN, Commissioner

DECISION II

In accordance with section 75 of the Civil Service Law and pursuant to the recommendation of Administrative Law Judge John B. Spooner following the disciplinary hearing held at the Office of Administrative Trials and Hearings on June 13, 2006, Respondent is hereby suspended from her position with the Department without pay for 10 work days. This suspension is to be served in two separate five day periods.

SHAUN DONOVAN, Commissioner, Department of Housing Preservation and Development

DAWN NAIDU-WALTON, Director, Disciplinary Unit, Department of Housing Preservation and Development

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[1] Even assuming that the 2004 diagnosis by Dr. Borbely was sufficient to establish that respondent was bipolar in July and December 2005, there is reason to question whether the ADA would bar an employer from disciplining an employee under the ADA for making profane and insulting remarks to or about her supervisors.

[2] A new Code of Conduct was issued in May 2006. While the numeration of the Code provisions has been changed in the new Code, the conduct alleged in this matter remains prohibited.

[3] All references to “p” and “line” are to the transcript of the hearing held June 13, 2006, submitted herewith.

[4] “Zeba“ is Zebonnesa Eltezam, the employee whose workstation is next to Ms. Nedwell.

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