Dep’t of Correction v Serrao
Dep’t of Environmental Protection v. Danko
OATH Index No. 1060/08 (Apr. 11, 2008)
Machinist charged with threatening to “go postal” and to act like “the Virginia Tech shooter,” with failing to notify the agency of his arrest, with failing to appear at an OATH conference, and with being AWOL for ten days. Administrative law judge found undisputed evidence proved the threats, the failure to provide notice regarding an arrest, and the failure to appear at a conference. Proof also found sufficient to sustain eight of the absences due to the insufficiency of the employee’s initial telephone notification to cover all ten days of being out. Penalty of 55 days recommended.
______________________________________________________
NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
DEPARTMENT OF ENVIRONMENTAL PROTECTION
Petitioner
- against –
PAUL DANKO
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 Environmental Protection, filed charges against respondent Paul Danko, a machinist. The five charges alleged that respondent threatened to “go postal,” to act like “the Virginia Tech shooter,” failed to notify the agency of his arrest, failed to appear at an OATH conference, and was AWOL for ten days.
A hearing on the charges was scheduled to be conducted before me on February 13, 2008. On that date, petitioner appeared with five witnesses and respondent’s attorney also appeared. Respondent’s attorney sought an adjournment because respondent was allegedly unable to travel to the hearing from his home in Hopewell Junction, New York, due to the weather. Petitioner opposed the adjournment. Due to the fact that the case had been adjourned twice before, that two of the witnesses and also respondent’s attorney had been able to travel to the hearing from locations near respondent’s residence, and that respondent had been expressly warned by the judge at the previous conference that the hearing would go forward in his absence if he failed to appear as directed, the adjournment was denied and petitioner was permitted to call its five witnesses. However, the case was continued until February 28 to permit respondent a further opportunity to testify if he chose to. An expedited transcript of the February 13 proceeding was provided to respondent’s attorney on February 25, 2008, to assist him in preparing for the continued trial date. Respondent’s attorney was also given the opportunity to recall any of petitioner’s witnesses for further testimony if a need for further examination questions was demonstrated. At the February 28 hearing, respondent appeared with his attorney and testified. Respondent’s attorney did not request any further testimony.
For the reasons provided below, I find that the evidence was sufficient to sustain all but two of the charges and recommend that respondent be suspended for 55 days.
ANALYSIS
Respondent has worked at the Department for 15 years, beginning as a maintainer and later becoming a machinist. During that time, he has been assigned to various locations in upstate New York. During the months prior to July 2007, it was undisputed that respondent was complaining to management about his current work assignment and was seeking an assignment closer to his residence in Hopewell Junction, New York. The two charges arise out of remarks made during this period. As a result of a complaint made by the Department to the local police, respondent was arrested on July 12, 2007, and suspended for 30 days. When he returned to work, it was to a different location and supervisor. Charges III, IV, and V allege time-and-leave violations during this later period.
Threats and Failure to Notify Employer of Arrest
Charge I alleges that respondent made remarks in March, May, and July 2007 to supervisors and co-workers which constituted threats of violence. In a related charge, charge II alleges that respondent failed to notify the Department of his arrest on July 12, 2007, on criminal charges arising out of remarks made to a supervisor.
The first specification concerned remarks made by respondent in March 2007 as he repeatedly asked management to assign him to a location near his home. Deputy Commissioner Paul Rush recalled that, on March 2, 2007, respondent left a message on Mr. Rush’s cell phone regarding questions about a reassignment. Mr. Rush called respondent back and spoke to him at some length. During the call, respondent immediately began complaining about the adverse effects of the assignment change and the low morale in the agency generally. He then stated that he “could understand if someone could go postal around here” (Tr. 19). Mr. Rush assumed that the phrase “go postal” referred to the publicized instances where disgruntled postal employees had used firearms to shoot co-workers. Respondent continued the conversation, saying that he would not cause any trouble if he were to be assigned to a location near his home. Mr. Rush received several more messages from respondent indicating that all of the problems would go away if Mr. Rush would just assign respondent to his preferred location. Mr. Rush later received a letter from one of the machinists at the Croton Falls shop expressing concerns about working with respondent (Tr. 19-20).
The second specification concerned a hearsay account of remarks allegedly made by respondent to a co-worker. Acting Regional Manager James Keesler testified that he became aware in May 2007 that several of respondent’s co-workers were complaining about respondent’s behavior and requesting that he be transferred to a different location (Tr. 32). Machinist Vincent Francia spoke with Mr. Keesler on May 24, 2007, about an earlier conversation with respondent. According to Mr. Keesler, Mr. Francia told him that respondent saw Mr. Francia’s signature on an employee petition complaining about respondent and said “nice signature.” Respondent then said to Mr. Francia, “I’m not here to make friends,” and “Everyone better watch their backs, especially management” (Tr. 33). Mr. Keesler recommended that Mr. Francia put his complaint into writing, which he did (Pet. Ex. 2). According to counsel for petitioner, Mr. Francia later refused to testify about the remarks by respondent, asserting that he did not remember them (Tr. 36).
Specifications 3, 4, and 5 of charge I concerned remarks allegedly made by respondent as his complaints about unfair treatment became more heated. Assistant Commissioner Gerould McCoy stated that he had picked up several messages left by respondent on an employee complaint hotline. On July 9, 2007, when Mr. McCoy spoke with respondent, respondent mentioned a letter he had written complaining about being transferred. Respondent remarked that, “if someone had seen that letter, then perhaps they would have understood what happened at Virginia Tech” (Tr. 46).
Daniel Baumgardner, supervisor of watershed maintenance, stated that, on July 10, 2007, he was supervising respondent. At the time, respondent was using large amounts of leave and complaining about his assigned work location. Respondent discussed with Mr. Baumgardner management’s refusal to transfer him to his old work location, stating, “[M]anagement is screwing with me and my job now is to screw them back” (Tr. 57). Mr. Baumgardner later quoted respondent’s remarks in an e-mail to his superiors dated July 10, 2007 (Pet. Ex. 4).
The following day, Mr. Baumgardner had another conversation with respondent when respondent arrived at work around 7:45 a.m. Respondent told Mr. Baumgardner that Fox 5 News had contacted him about an interview concerning his allegations of retaliation. He continued, “You know I have a doctor’s note saying I’m under a lot of stress because of the transfer here. Management knows that all they have to do is transfer me back to Croton Falls and all this stress will go away.” He then stated, “You know the guy who shot all those people at Virginia Tech was under a lot of stress and all it would have taken was a doctor to help him out! Well, I have a doctor’s note for my stress and management isn’t doing nothing to help me out! I don’t know what I’m gonna do, I really don’t! If I came in here with an Uzi and laid people out it’s because of management.” In a less excited tone, respondent said, “I [am] not saying I’m going to come in here and shoot anybody but you just never know.” With this remark, respondent “ran out of the office” (Tr. 59-60).
Even though Mr. Baumgardner testified that respondent’s third menacing remark did not make him concerned for his safety or feel endangered (Tr. 65), he was extremely troubled by respondent’s remark and, that evening, commemorated respondent’s statements in a letter (Resp. Ex. 5) which he addressed to Director of Waste Water Divisions Mike Keating and personally delivered to a mailbox the following day because he was not able to come in. Mr. Baumgardner also telephoned the facility and asked them to retrieve the letter from the mailbox and ensure that it was delivered promptly to Mr. Keating (Tr. 61-62).
After someone from the Department contacted the Port Jervis police department, respondent was arrested on July 12, 2007, and charged with attempted coercion in the first degree under Penal Law section 135.65 (1). The written criminal complaint (Pet. Ex. 13), based upon the sworn statement of a local police officer, indicated that it was founded upon the remarks recounted by Mr. Baumgardner in his July 11 letter. It was undisputed that respondent did not notify the Department of his arrest on July 12, despite his obligation to do so within three days, under a memorandum (Pet. Ex. 11) distributed to respondent and the other Department staff in 2005. The criminal charges were still pending at the time of the hearing.
For his part, respondent chose not to testify about the alleged threats due to the pending criminal case.
None of the comments made by respondent to his supervisors are alleged to be expressly insubordinate, in that the form of the remarks was not discourteous or profane. Rather, petitioner contends that all five remarks are misconduct because they contain veiled threats of violence intended to coerce the supervisors into acceding to his demands about changing his work location. Respondent’s May 2007 remark, observing that supervisors better “watch their backs,” was ambiguous in two ways. Such an oblique remark about watching their backs, made to a co-worker regarding others not present, seemed at least as likely to be a complaint as a threat. See Health and Hospitals Corp. (Woodhull Medical and Mental Health Center) v. Alexis, OATH Index No. 1373/03 (July 11, 2003) (employee’s statement, “That’s why some people come back and hurt people,” which was not addressed to her supervisor, not found to constitute a threat). In addition, the proof of the statement was double hearsay, with Mr. Keesler testifying to what Mr. Francia told him about a remark made by respondent. Consequently, it is difficult to make findings on either the exact remark made or the context in which it was uttered. I therefore found that this remark was not proven to constitute misconduct.
For similar reasons, I also find that the July 10 remark to Mr. Baumgardner about “screwing” management back was not misconduct. Nothing in the remark referred to physically harming anyone. Respondent clearly made the remark in anger while discussing the on-going dispute he was having about his job assignment and other matters he regarded as unfair treatment. In this context, the remark could be interpreted as a statement of respondent’s resolve to generally pursue his rights in whatever forums were available.
As to the other three remarks, however, the proof suggests that they were deliberate threats of violence, calculated to force management into granting respondent’s request to be relocated. As to the March remark alluding to “going postal,” the general import of the comment to Mr. Rush was to point up the low morale at the agency. However, the context in which the remark was made demonstrates that it was also intended as an implicit threat. The remark was made in the midst of a dispute about respondent’s work assignment, and respondent immediately followed the remark with assurances as to how the supervisor could make the problem disappear by reassigning him to the closer work location. It is true that there was very little proof to establish that respondent truly intended to harm any of his supervisors. However, under these circumstances, I find that the “going postal” remark was intended to incite fear in Mr. Rush that respondent might harm his fellow workers if his demands were not met. Regardless of whether respondent actually intended to “go postal,” his announcement of the possibility of doing so, in the context of pressing Mr. Rush for a transfer, was a threat and improper. See Health and Hospitals Corp. (Woodhull Medical and Mental Health Center) v. Alexis, OATH Index No. 1373/03 (July 11, 2003) (employee’s remark to supervisor that "you're going down with me” and will “not be around here too very long" found to be a threat and to constitute misconduct); Dep’t of Sanitation v. Kingwood, NYC Civ. Serv. Comm’n Item No. CD 91-115 (Sept. 16, 1991) (employee’s remark to supervisor that “you better stay away from me from now on or you will get yours” held to be a threat and misconduct).
I also find that respondent’s remarks made on July 9 and 11, concerning Virginia Tech and laying co-workers out with an Uzi, were also proven to be deliberate threats, intended to induce management to accede to his complaints. Both remarks were evidently made by respondent while he was angry and suggested the possibility that respondent himself might resort to shooting his co-workers if his employment demands were not met. It is no wonder that Mr. Baumgardner was haunted by the last statement to the point he felt compelled to relay it his own supervisor later that evening. Even though Mr. Baumgardner did not perceive respondent as posing an immediate physical threat, respondent’s suggestion that he would be justified in shooting his co-workers due to unfair treatment by management was a calculated attempt to obtain a transfer and unquestionably a violation of Department rules on decorum.
It was undisputed that respondent failed to notify the Department of his July 12 arrest. According to a 2005 Department memorandum (Pet. Ex. 11), any Department employee who is arrested must provide “the location supervisor” with the date, time, location, and arrest charges within three days of being arrested. The memo states that failure to provide notification “will serve as the basis for disciplinary charges.” Respondent’s attorney contended that the fact that respondent’s arrest was already known to respondent’s supervisor because the arrest was evidently instigated by management at the Department should relieve respondent from the notification requirement altogether. However, the notification rule provides no such exception. I therefore find that, while management’s knowledge of respondent’s arrest may mitigate the effect and the penalty for his notification failure, it cannot excuse it entirely. Charge II must be sustained.
Petitioner also attacked the sufficiency of respondent’s medical documentation to excuse his ten-day absence. As argued by petitioner’s counsel in her closing, that Dr. Rosen’s recommendation that respondent remain out of work “until he was able to handle the stress of his job” was not a medical diagnosis. Indeed, it was tantamount to letting respondent remain at home if he did not feel like going to work. It was for this reason that Mr. Warne gave respondent an opportunity to provide more specific medical documentation as to the reasons for respondent’s alleged inability to work. Respondent’s refusal to offer any further medical documentation means that his entire ten-day leave request must rest upon Dr. Rosen’s vague reference to “stress and anxiety” as a basis for remaining absent. Because Mr. Warne conceded that a similar note had been accepted for a previous absence of one or two days, I find that the Rosen notes were sufficient to excuse the absences of January 3 and 4. However, the vagueness of the notes, accompanied by respondent’s refusal to provide any more medical evidence of an inability to work, leads me to find the notes insufficient to excuse the remaining eight days of absence and to find that this is an independent grounds, in addition to the failure of advance notice, to find that the eight days should be treated as an absence without authorization.
For these reasons, I find that charge I, specifications 1, 3, and 5, and charge II, specification 1, should be sustained. The remainder of the specifications in charge I should be dismissed as unproven.
Failure to Appear at Conference and AWOL’s
Charges III and IV allege that respondent failed to appear for a conference on January 7, 2008, despite being ordered to do so. The conference in question was one of three scheduled at this tribunal and respondent’s failure to appear can only be fully understood by reviewing the procedural history of this case. Respondent was served with the initial disciplinary charges on July 13, 2007. Thereafter, on November 15, 2007, the case was calendared with this tribunal and a conference scheduled for December 5, 2007. On November 21, 2007, respondent’s attorney requested and obtained an adjournment of the conference to December 10 based upon his actual engagement in another matter. Petitioner did not object to this adjournment. On December 10, the same attorney requested a second adjournment because respondent had allegedly had an “anxiety attack” and could not travel. Petitioner objected to this second adjournment and requested that a trial date also be set. The presiding judge adjourned the conference to January 7, 2008, at 2:00 p.m. and also scheduled a trial for January 16, 2008.
The notice of the adjourned conference (Pet. Ex. 6) from petitioner’s attorney instructed respondent that “your presence is required.” According to respondent’s supervisor Matthew Warne, chief of engineering and regulatory review, he delivered this notice to respondent on December 28, 2007, and the service was witnessed by another employee. Respondent refused to sign for the document and indicated he wished to consult with his attorney (Tr. 71-74).
On January 7, 2008, respondent did not appear, although his attorney did. Petitioner’s attorney informed the conference judge that respondent was currently absent without leave. The assigned conference judge granted the adjournment request by respondent’s attorney to adjourn the conference to January 16, just before the currently scheduled trial. On January 16, respondent appeared and a conference was held, although the trial was adjourned once more to February 16, 2008.
It was undisputed that respondent was notified of the January 7 conference at OATH and failed to appear. In his testimony, respondent did not deny being aware of the scheduled conference, but offered no excuse for his failure to appear other than the general statements about not going to work due to stress. I find that, while it may have been reasonable for Mr. Warne to rely upon respondent’s doctor’s note for “stress” to excuse his work absences, this note was insufficient to excuse his absence at the OATH conference. Respondent’s attorney, who appeared at the January 7 conference, had apparently had no communication from respondent concerning his alleged sickness and no advance adjournment request was ever made. Respondent’s failure to seek an adjournment of the conference and his subsequent failure to appear was in direct contravention of the direction from the Department advocate to appear. Nor was respondent’s voice message of January 3 to Mr. Warne sufficient to indicate that he would not be appearing at a conference scheduled four days later in New York City. Furthermore, in his testimony, respondent provided no explanation as to why he was unable to appear. The opinion of Dr. Rosen that respondent may have been under stress at his job was inadequate to excuse his absence at a conference scheduled as part of a disciplinary proceeding. Charges II and IV must be sustained.
Charge V alleges that respondent was absent without authorization on ten days in January 2008. The proof of respondent’s ten-day absence was also largely uncontroverted. Mr. Warne testified that respondent was assigned to his supervision on December 12, 2007. He recalled that, on January 3, 2008, he received a voice mail message from respondent stating that he was not coming in today and was going to the doctor (Tr. 76-77). Respondent was absent from January 3 through January 16, 2008. He reported for work on January 17, and on January 22 provided Mr. Warne with a doctor’s note (Pet. Ex. 8) dated January 3 stating that respondent was diagnosed with “anxiety/stress all due to work” (Tr. 77-80).
Mr. Warne testified that he requested that respondent supply further documentation and respondent replied that “that’s what you’re going to get” and that similar notes “had been good for 15 years” (Tr. 84). Mr. Warne also called Dr. Rosen, the doctor who signed the note submitted by respondent, on January 22 seeking “clarity” as to the reason for respondent’s extended absence. A receptionist at the office confirmed that respondent was present for an appointment with the doctor on January 3 and indicated that she would see if the doctor could supply further documentation (Tr. 87-89). On January 23, the doctor’s office supplied another note (Pet. Ex. 9), labeled an “excuse slip” and stating that respondent should have “no work 1-3 to 1-17-08” (Tr. 89-90).
Mr. Warne indicated that in November 2007 respondent had obtained sick leave for one day based upon a similar note indicating “stress” (Tr. 101). Mr. Warne considered this prior approval in analyzing respondent’s sick leave request for January 2008. Ultimately, Mr. Warne evaluated the two Rosen notes and concluded that respondent’s three absences for January 3, 4, and 7 should be approved, but that respondent’s six days’ of absence for January 8, 9, 10, 11, 14, and 15 should be denied because the notes were insufficient to excuse this long a period of absence (Tr. 93).
Respondent testified that, in the past 10 years, he had been transferred 14 or 15 times to locations as much as 90 miles from his home in Hopewell Junction (Tr. 132-34). He claimed the repeated transfers “destroyed” his marriage and limited his visitation with his children following the divorce, which he indicated occurred in 2001 (Tr. 164). The transfers caused “stress and anxiety” for which he sought medical treatment (Tr. 136). He stated that he had frequently obtained approved sick leave by providing doctor’s notes demonstrating treatment of his stress (Tr. 137). He specifically recalled an absence of nine days which Mr. Warne approved based upon a doctor’s note for stress. Respondent also indicated that, since his arrest in July 2007, he had been given no work duties and was permitted to sit at a desk and do crossword puzzles (Tr. 141). [1]
Respondent stated that, on January 3, he called Mr. Warne, told him he had a doctor’s appointment, and that he would “be off until further notice” (Tr. 139). He then went to see Dr. Mitchell Rosen, who diagnosed him as having “work-related stress” and prescribed a drug called Lexapro (Tr. 139-40). Dr. Rosen told respondent to return to work “when you feel better and you can handle the stress” (Tr. 140). Respondent indicated that the stress was the result of “sitting here doing nothing” (Tr. 141). Respondent also indicated that he did not take any of the prescribed medication (Tr. 158).
As to the AWOL charge, it is apparently undisputed that respondent complied with the agency sick leave rules by calling in at the commencement of his illness on Thursday and Friday, January 3 and 4, and providing medical documentation soon after his return to work on January 17. I credited respondent’s statement that, based upon prior practice with regard to sick leave usage, he reasonably believed that, by calling in and providing a doctor’s note, he had complied with the agency rules on sick leave. Petitioner offered no evidence to rebut this contention. Indeed, Mr. Warne confirmed that he regarded respondent’s notification and subsequently supplied documentation as sufficient to excuse these absences in light of the past practice of approving respondent’s leave request in November for work-related stress.
However, the proof demonstrated that respondent failed to provide the notice required by the Department rules for the remainder of his ten-day absence, from Monday, January 7 through Wednesday, January 16. I fully credited the testimony of Mr. Warne that, in his January 3 voice message, respondent stated that he would not be coming to work that day and was going to the doctor. Mr. Warne exhibited a great deal of candor and no animosity toward respondent. To the contrary, his willingness to approve sick leave for three days of the January absence demonstrated a good deal of generosity and sympathy for respondent’s circumstances. On the other hand, respondent’s testimony that he told Mr. Warne he would be out “until further notice” seemed suspect. Respondent demonstrated a high level of anger at his supervisors, whom he accused of destroying his marriage and limiting his contact with his children. This anger, compounded by respondent’s compelling interest in the outcome of the disciplinary case, made respondent’s uncorroborated rendition of his telephone message less credible than Mr. Warne’s.
Even assuming such an open-ended notification message was left, however, it would have been unreasonable for respondent to regard it as sufficient to excuse a ten-day absence unless further information was supplied. The notification of being unable to work due to stress “until further notice” would logically cover an absence for Thursday, January 3, and perhaps for Friday, January 4. However, by at least Monday, January 7, 2008, I find that some further notification was required. Unlike common illnesses such as a cold or the flu, which typically last a couple of days, the vague nature of respondent’s malady of stress provided no clue as to when his supervisor could expect him to return to work. Nor does the record here show any past history by which Mr. Warne could predict that respondent’s absence would last as long as ten days. Although the medical notes themselves establish that respondent was, in fact, unable to work, these notes were not provided until well after respondent returned to work.
I therefore find that respondent’s absence for January 3 and 4, 2008, was not misconduct because he notified his supervisor he would not be at work and subsequently provided medical documentation. However, I find that respondent’s absence from January 7 through 16, 2008, was misconduct because respondent failed to notify his supervisor on any of these days that he would not be coming to work. Specifications 1 and 2 of charge V should be dismissed, while specifications 3 through 10 should be sustained.
FINDINGS AND CONCLUSIONS
1. Specification 1 of charge I should be sustained in that, on March 2, 2007, respondent stated to his supervisor that he “could understand if someone could go postal around here” in discussing a complaint about his work assignment, in violation of rule E (6) of the Department code of discipline.
2. Specifications 2 and 4 of charge I should be dismissed in that petitioner failed to prove by a preponderance of the evidence that respondent’s remarks were misconduct.
3. Specification 3 of charge I should be sustained in that, on July 9, 2007, respondent told Assistant Commissioner Gerould McCoy that someone reading respondent’s letter of complaint about not being transferred “would have understood what happened at Virginia Tech,” in violation of rule E (6) of the Department code of discipline.
4. Specification 5 of charge I should be sustained in that, on July 11, 2007, respondent told Supervisor Daniel Baumgardner about “the guy who shot all those people at Virginia Tech and “if I came in here with an Uzi and laid people out it’s because of management,” in violation of rule E (6) of the Department code of discipline.
5. Charge II should be sustained in that respondent failed to notify the Department within three days of his arrest on July 12, 2007, as required by rule E (9) of the Department code of discipline and a May 16, 2005 memo from Assistant Commissioner Zoe Ann Campbell.
6. Charges III and IV should be sustained in that, on December 26, 2007, respondent was ordered to appear at a conference on January 7, 2008, and failed to do so, in violation of rule E (5) of the Department code of discipline.
7. Specifications 1 and 2 of charge V should be dismissed in that petitioner failed to establish that respondent’s absence on January 3 and 4, 2008, violated the Department time-and-leave rules.
8. Specifications 3 through 10 of charge V should be sustained in that respondent’s absence from January 7 through 16, 2008, was without authorization and in violation of the Department time-and-leave rules as analyzed above.
RECOMMENDATION
Upon making the above findings, I was provided personnel information by petitioner in order to make an appropriate penalty recommendation. Respondent was appointed as a maintainer in 1993 and became a machinist in 1997. He has been disciplined twice – in 2005, he was suspended for one day for being absent without authority and for making a false time sheet entry and, in 2006, he was suspended for two days for insubordinate remarks to a supervisor. Petitioner also submitted a copy of respondent’s 2003 evaluation in which he was rated as “good.” Certainly, respondent’s 15 years of service to the City and his favorable evaluation should mitigate any penalty to be levied for these charges. On the other hand, a slight exacerbation of penalty should be assessed for the two minor disciplinary penalties which he has already had.
As found above, at least the first two of respondent’s three pointed comments to his supervisors about shooting incidents by other disgruntled employees were made in the heat of an argument and not premeditated. As to the third and most menacing of the remarks, respondent’s supervisor did not feel concerned for his safety or feel endangered, although he did feel obliged to report the remarks to his own supervisors. Nonetheless, all three comments were during conversations and meetings initiated by respondent with an intent to compel his supervisors to grant his request for a change of his work location. Having made the remarks, respondent did not apologize, retract them, or in any way dispel the suggestion that he might resort to similar violence if his transfer request was not approved. The final remark, in which respondent referred graphically to the possibility that he might use an Uzi to “lay out” his co-workers, left no room for equivocation. It was an express threat to commit mayhem if his demand for a transfer was not met. Unquestionably, such bullying disrupts the functioning of agency operations and is deserving of a very severe penalty.
Respondent’s failure to provide notice of his arrest and his unexcused absence is also deserving of some penalty in light of his prior disciplinary record for time-and-leave violations. However, any penalty should be mitigated by the minimal impact upon the agency due to the fact that respondent’s arrest was, in fact, instigated by his supervisors. Furthermore, at the time of the absences, respondent was being given no productive work to perform.
Ultimately, the question here is whether respondent’s remarks warrant his dismissal, as requested by petitioner’s attorney. For two reasons, I have concluded that they do not. First, past cases demonstrate that employees who have made similar remarks have not been terminated unless they had a history of serious misconduct, which respondent does not. Compare Human Resources Admin. v. Levitant, OATH Index No. 397/04 (Sept. 7, 2004), aff'd, NYC Civ. Serv. Comm'n Item No.CD06-59 (May 2, 2006) (20-day suspension for caseworker who told supervisor "You don't know who you are messing with. I will hurt you"); Dep't of Sanitation v. Mitchell, OATH Index No. 1823/00 (Nov. 3, 2000), aff'd, NYC Civ. Serv. Comm'n Item No. CD01-60-SA (July 27, 2001) (30-day suspension for threatening to sic rottweiler dog on supervisor and telling him that he knew where he lived and would "get" him); Human Resources Admin. v. Olafimihan, OATH Index No. 751/98 (Mar. 19, 1998) (45-day suspension for employee who threatened to kill supervisor) with Health and Hospitals Corp. (Woodhull Medical and Mental Health Center) v. Pawlowski, OATH Index No. 1836/00 (Oct. 4, 2000), aff’d, 299 A.D.2d 156, 753 N.Y.S.2d 357 (1st Dep’t 2002) (employee with lengthy disciplinary history terminated for threats to supervisors and co-workers).
Second, respondent’s remarks were made in anger, apparently in an effort to impress the supervisors with the intensity of his emotions. It seemed possible, at least as to the first two remarks, that respondent did not perceive them as improper at the time they were made. Certainly, from March through July 12, the supervisors here did not criticize respondent for making the remarks or warn him that such statements might be grounds for discipline. As disconcerting as respondent’s remarks seem in hindsight, it seems possible that respondent did not recognize, when he made the comments, the serious disciplinary consequences which might ensue. Given his long and generally good work record, he should be provided, under the principle of progressive discipline, with some opportunity to preserve his job if he can avoid any further misbehavior. He should understand that any further efforts to obtain a benefit from his supervisors by issuing threats of violence against his co-workers will undoubtedly result in his dismissal.
For all of these reasons, I recommend that respondent be suspended for 50 days for the three threats and for 5 days for the remainder of the misconduct, for a total of 55 days. Respondent should also be given credit for the 30 days’ of pretrial suspension following his arrest.
John B. Spooner
Administrative Law Judge
April 11, 2008
SUBMITTED TO:
EMILY LLOYD
Commissioner
APPEARANCES:
CARLA LOWENHEIM, ESQ.
Attorney for Petitioner
WILLIAM FRAME, ESQ.
Attorney for Respondent
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[1] Petitioner introduced proof (Pet. Ex. 14) indicating that, in 2005, respondent received a one-day suspension penalty for being absent without leave on two occasions and for making false entries on a time sheet (Tr. 151-53).
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