Dep’t of Sanitation v



Dep’t of Sanitation v. Lugo

OATH Index No. 1634/05 (Nov. 17, 2005), aff'd, NYC Civ. Serv. Comm'n Item No. CD06-65-SA (July 10, 2006)

Respondent found to have used a racial slur in violation of Department policy; ten-day suspension recommended.

______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF SANITATION

Petitioner

- against -

RONALD LUGO

Respondent

____________________________________________________

REPORT AND RECOMMENDATION

FAYE LEWIS, Administrative Law Judge

This is a disciplinary proceeding referred by petitioner, the Department of Sanitation, pursuant to section 16-106 of the Administrative Code. The charge alleges that respondent, sanitation worker Ronald Lugo, committed misconduct in that he used a racial slur in violation of Department policy.

Trial was held on June 8, 2005. Petitioner produced four witnesses. Respondent testified on his own behalf. As set forth below, I find that the charge is sustained, and I recommend that he be suspended for ten days.

ANALYSIS

It is undisputed that on the morning of September 23, 2004, respondent uttered the term “nigger” or “nigga” in a Department facility in the presence of three other Department employees, all of whom are African-American, one of whom took offense and filed the complaint underlying this proceeding. Respondent, who is half black and half Hispanic, argued that the term “nigga” is socially acceptable, depending on context. He maintained that he used the term while joking with another sanitation worker who has been his work partner and friend for almost fifteen years.

Sanitation worker Gaynell Howard, who filed the complaint underlying this proceeding, provided the following account. She was working in the Department’s Manhattan 10 garage on September 23, 2004. She finished her work and entered the facility’s office between 5:00 and 5:30 a.m. to help Supervisor Sam Ervin with administrative tasks. Respondent came into the office at 5:45 a.m. and asked that his assigned truck be changed; Ms. Howard referred him to Supervisor Ervin; respondent then approached Supervisor Ervin, who told Ms. Howard to make the switch. At that point respondent left to change his clothes. Sanitation worker Frank Miller then appeared, looked at the board, and said that he wanted his truck changed to that just recently assigned to respondent. Ms. Howard referred him to Supervisor Ervin, who told her to switch the trucks again. As a result, she assigned respondent to the truck that he had had when he first came in. Respondent then re-appeared, and was none too happy when he saw that the original re-assignment had been revoked. He asked why the truck had been changed and Ms. Howard told him to ask Supervisor Ervin. At this point, respondent was looking toward the operations board, as were Supervisor Ervin and Ms. Howard. However, as respondent was standing to the rear of both individuals, neither was facing him (Tr. 59-60, 63-66, 76-77, 81). Respondent then said, “All you niggers stick together” (Tr. 66). Ms. Howard was offended, and said that she was not a “nigger,” to which respondent replied that he was only joking (Tr. 67, 83). Respondent then took his assignment package and left the office. After she went home, Ms. Howard still felt “very hurt” by the incident, so she wrote a complaint and submitted it to Supervisor Ervin (Tr. 68, 84). She acknowledged using the word “nigger,” albeit among family, when she was angered, but indicated that she finds the word offensive and inappropriate in an office setting, and does not believe it is commonly used in the district. She assumed respondent to be Hispanic (Tr. 71, 73, 89, 82).

Supervisor Ervin largely corroborated Ms. Howard’s testimony. He testified that on September 23, 2004, respondent did not like his truck and equipment assignment, and stated, “You niggers stick together” (Tr. 13, 16-21, 45-48). Supervisor Ervin was sitting in the back of the room, so he did not see respondent’s face, but he heard the remark, which respondent made in a loud voice, although not louder than normal (Tr. 22). In a statement written soon after the incident, Supervisor Ervin characterized respondent’s demeanor as “joking” (Pet. Ex. 1). On cross-examination, he testified that he did not initially find the remark offensive and that the term is often used in a friendly manner among the men on the garage floor, albeit not in the garage office. He also indicated that he would consider the term offensive if used toward him by a Caucasian or by someone who was cursing, but not if used by another African-American in a joking fashion. He noted that the majority of sanitation workers assigned to the garage are African-American (Tr. 23, 24, 26, 54, 57).

Sanitation worker Frank Miller also corroborated Ms. Howard’s account of the incident, with some slight differences. He testified that he arrived at the office at 5:45 a.m., but he did not recall asking to change trucks (Tr. 92-93). Respondent mentioned the truck assignment to Mr. Ervin and, after that, looked at Supervisor Ervin and stated, “You all niggers stick together” (Tr. 98). His voice was not raised (Tr. 105). Mr. Miller did not believe that respondent was talking about the truck assignment when he made the comment (Tr. 103). Ms. Howard looked “offended,” but Mr. Ervin laughed (Tr. 98). Like Supervisor Ervin, Mr. Miller characterized respondent’s manner as “joking” in his written statement (Tr. 102-103; Pet. Ex. 4). Although he characterized the term as a “slur” (Tr. 98), he was not offended at its use and did not believe that it was directed at anybody in particular (Tr. 103). He also acknowledged having used the word itself, albeit not in the workplace (Tr. 98). Mr. Miller did not recall if respondent was able to use the truck that he had requested (Tr. 96).

Respondent testified that on September 23, 2004, he arrived at the garage at 5:40 a.m. (Tr. 122). When he arrived, he signed in and looked at the assignment board, and went upstairs to change. He came back downstairs, noticed that his assignment was being changed by Ms. Howard, and asked her not to make the change. She said – with “attitude” – that Supervisor Ervin had told her to make the change, and referred respondent to him. Supervisor Ervin confirmed that he had directed Ms. Howard to change the truck assignment (Tr. 124). In the course of their conversation, respondent was re-assigned the truck that he wanted (Tr. 133). Respondent then began talking to Mr. Miller, his work partner for almost fifteen years, thinking the discussion with Ms. Howard was over (Tr. 124). They were “laughing and joking,” about “something totally different,” when respondent said, “You all niggas is crazy” (Tr. 124), or words to that effect. At that time he was about 22 feet from Ms. Howard, who had her back turned toward him. Ms. Howard responded, “I hope you weren’t talking to me because I’m not a nigga” (Tr. 125). Respondent replied he was not talking to her, that he was sorry if she was offended, that he was joking, and that was the way he and Mr. Miller talk to each other (Tr. 125). Respondent denied directing the term toward Ms. Howard, or saying anything about the “niggers in the district stick[ing] together” (Tr. 132, 133). He provided a written statement explaining that he had been “joking and goofing off” with Supervisor Ervin and Mr. Miller, and that, “as black and Latino brothers,” they used the “slang word ‘nigga’” among themselves. He added that he “did not realize” that Ms. Howard was listening to their conversation (Resp. Ex. A).

Respondent has been charged with violating the Department’s Code of Conduct, specifically Rules 3.1 (requiring employees to obey all “Rules, Regulations, orders, messages, and direct orders given to them by their superiors”), 3.14 (requiring employees to treat all other persons “fairly and with respect,” and not discriminate against any person in the conditions of employment on the basis of race, and requiring employees to obtain, become familiar and comply with the Department’s Equal Employment Opportunity (“EEO”) policy), and 3.22 (requiring employees to be courteous and act in a professional manner at all times, and prohibiting employees from using offensive language or ethnic slurs toward a fellow employee).

I credit the testimony of Supervisor Ervin, Mr. Miller, and Ms. Howard that, following a discussion with Mr. Ervin over a truck assignment, respondent looked at Mr. Ervin and said, “All you niggers stick together,” or words to that effect. It was unclear whether respondent looked at Mr. Ervin as he made the comment, as Mr. Miller testified, or whether he made the statement to the room at large, as Mr. Ervin seemed to indicate, but it is clear that Ms. Howard was in the room, heard the statement and took offense. I do not credit respondent’s testimony that he made a statement only to Mr. Miller, along the lines of “You all niggas is crazy” (Tr. 22), because it runs contrary to the testimony of every other witness, including Mr. Miller. I also find respondent’s argument that he used the word “nigga,” as opposed to “nigger,” and that “nigga” is less offensive, to be absurd in light of his admission that he did not spell the word (Tr. 131), as well as Ms. Howard’s testimony and written statement that she heard respondent say “all you niggers stick together” (Pet. Ex. 3).

Although respondent, Supervisor Ervin, and Mr. Miller testified that they believed respondent used the word “nigger” in a joking manner, and despite respondent’s protestations that he said “nigga” instead of “nigger,” it must be recognized that the word “nigger” is at its core an ugly racial epithet, which “. . . ranks as perhaps the most offensive and inflammatory racial slur in English. . . . . [It is] a word expressive of racial hatred and bigotry.” Merriam-Webster’s Collegiate Dictionary, at 784 (10th ed. 1995). Although there was testimony that many sanitation workers at the garage used the word among themselves in a joking fashion, and although respondent insisted that the term “is used by blacks and Latinos as a sign of friendship” (Resp. Ex. A), clearly Ms. Howard was offended and upset. Notably, all the witnesses, including respondent, acknowledged that usage of the term may be considered offensive. Even respondent, who insisted that the word was appropriate depending on context, admitted that “it probably wasn’t an acceptable word” to use in front of Ms. Howard (Tr. 24, 54, 57, 72, 89, 98-99, 101, 104, 126-128).

Respondent argued in closing that the Department’s policy regarding abusive language is vague, in that the Department has not published a comprehensive list of offensive terms (Tr. 135-36). This argument is mistaken. The word is indisputably a racial slur, even if it may not always be used with that intent, as respondent himself acknowledged. Respondent is deemed to have notice of the Department’s rules, including Rule 3.22, prohibiting the use of offensive language or ethnic slurs, and Rule 3.14, requiring employees to treat all other persons fairly and with respect. Department of Correction v. Galarza, OATH Index Nos. 348/90 & 433/90, at 11 (June 11, 1990) (employees are charged with notice of all rules that are properly published or posted); Dep’t of Correction v. Hodges, OATH Index No. 222/82, at 17 (June 30, 1983) (to be held liable for violating an employer’s rules and regulations, employee must have actual or constructive notice of agency rules; constructive notice requirements are satisfied if the employer posts or publishes the rule in a manner reasonably calculated to provide the employee with notice; presumption of regularity attaches to distribution of institutional orders to personnel). Thus, he may not be heard to argue that he can not be held accountable for violating these rules by using a racial slur.

Moreover, even if respondent’s assertion that he did not mean the word in a derogatory fashion is credited, his utterance of the epithet is nonetheless misconduct, as prior decisions of this tribunal have uniformly held. See Transit Auth. v. Kerr, OATH Index No. 1234/00 (May 10, 2000), modified on penalty, NYC Civ. Serv. Comm’n Item No. CD03-22-M (Feb. 5, 2003) (finding that use of the term “nigger” is misconduct, even where uttered by an African-American employee without malicious intent); Police Dep’t v. Kilroy, OATH Index No. 1096/91 (July 10, 1991) (finding that the term “nigger” is an ethnic slur and its use in the workplace constitutes misconduct, regardless of whether it was uttered in a casual conversation and not directed at the person who was offended); Dep’t of Correction v. Andino, OATH Index No. 430/89 (Aug. 10, 1989) (finding that the word “nigger” is a racial slur and its use in the workplace is subject to disciplinary sanction). See Medvik v. Ollendorff, 772 S.W.2d 696, 700-02 (Mo. App. 1999), cert. den., 493 U.S. 1071, 110 S.Ct. 116 (1990) (agency workplace rule prohibiting “unwanted” or “imprudent” speech of a sexual, racial, ethnic, or religious nature was not unconstitutionally vague when applied to city worker who called coworker a “nigger”).

Finally, although not dispositive, it should be noted that the Department issued a memorandum dated January 22, 1998, expressly prohibiting the use of “ethnic / racial / lifestyle / gender slurs,” even if used by persons “from the same ethnic or racial group,” who “are only referring to themselves” or who claim that they did not “mean” the word to be taken in a derogatory way (Pet. Ex. 2). The memorandum was issued by Francis Landers, the Department’s Director of Cleaning and Collection, and was addressed to all Chiefs and Borough Superintendents. The testimony established that the memorandum had been posted on the bulletin board prior to September 2004, although it might not have been posted on the day in question (Tr. 72, 111, 112).[1] The posting of this notice put respondent on at least constructive knowledge of its contents. See, e.g., Galarza, OATH Index Nos. 348/90 & 433/90 (June 11, 1990); Hodges, OATH Index No. 222/82, at 17 (June 30, 1983).

Accordingly, the charge alleging that respondent used a racial slur, in violation of Rules 3.22 and 3.14, is sustained.[2] The charge that respondent’s use of a racial slur violated Rule 3.1, which requires that employees obey “all Rules, Regulations, Orders, messages, and direct orders given them by their superiors,” is also sustained. However, this charge is purely duplicative, as petitioner failed to prove that respondent committed insubordination by disobeying a direct rule. Rather, its proof on this charge is that respondent violated the disciplinary code, specifically Rules 3.22 and 3.14, by uttering an offensive racial slur.

FINDINGS AND CONCLUSIONS

Respondent violated the Department Code of Conduct, Rules 3.1, 3.14, and 3.22, by using a racial slur in the workplace, as alleged.

RECOMMENDATION

Upon making the above finding, I requested and received an abstract of respondent’s conduct record. The conduct record indicates that respondent was appointed as a sanitation worker in July 1987. His disciplinary record is limited to a five-day suspension imposed in 1993 for absence without authority, and a three-day suspension imposed in 2003 for the failure to submit medical documentation required by the medical leave unit.

Petitioner has asked for a recommendation of a 15-day suspension (Tr. 141). Given respondent’s eighteen-year tenure with the Department, and his minimal disciplinary record, I believe this penalty to be excessive for the one-time use of a racial slur. Without in any way accepting respondent’s argument that it was acceptable to use a racial slur in the workplace, it appears that respondent did not use the word with racial animus, but rather believed it to be a term of the vernacular. Thus, the penalty here should be less than the fifteen-day penalty imposed in Police Dep’t v. Kilroy, OATH Index No. 1096/91 (July 10, 1991), aff’d, 190 A.D.2d 530, 593 N.Y.S.2d 32 (1st Dep’t 1993) (respondent found to have uttered a racial slur to an administrative aide, although not aimed at the aide, asking if he had to use a bathroom that “that dirty nigger is going to use”). This case is also distinct on its facts from Transit Auth v. Kerr, Civ. Serv. Comm’n CD03-22-M, at 3, where among the factors considered by the Civil Service Commission in assessing a fifteen-day suspension was that a supervisor had used the racial slur toward a subordinate, and that a supervisor is “held to a higher standard to prevent a bias workplace.”

Nonetheless, the fact remains that respondent used a racial slur in the workplace. Given all these circumstances, I recommend that he be suspended for ten days, and that he be sent for EEO training. I would also urge that the Department consider conducting EEO training for all its employees in the Manhattan 10 garage, given the testimony that the particular slur in issue is used frequently among the sanitation workers.

Faye Lewis

Administrative Law Judge

November 17, 2005

SUBMITTED TO:

JOHN J. DOHERTY

Commissioner

APPEARANCES:

RITA R. BRACKEEN, ESQ.

Attorney for Petitioner

KIRSCHNER & COHEN, P.C.

Attorneys for Respondent

BY: ALLEN COHEN, ESQ.

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[1] Eugene Callan, the District Superintendent in Manhattan 10 in September 2004, testified that when he took over the district in October or November 2003, he put up this memorandum and that it remained on the bulleting board “for the most part” in the year prior to September 23, 2004 (Tr. 112). Candidly, he acknowledged that the document was “probably” not up on the board on the date in question (Tr. 111), and that documents on the board, including this notice, were often taken off and put back on as new documents were added, and that this document might have been removed “a half a dozen times” (Tr. 111, 112). Ms. Howard also testified that she had seen the document posted, but could not recall whether it was posted on the day of the incident (Tr. 72). Mr. Miller recalled seeing the document, but did not recall where or when (Tr. 105-106).

[2] Petitioner noted in summation that Rule 3.14 also prohibits discrimination by its employees and requires that employees comply with the Department’s EEO Policy, which prohibits discrimination. However, respondent is not charged with discriminating against a fellow employee, but with committing misconduct by using racially offensive language. Hence, I make no finding on the issue, other than to note that the EEO policy, Policy and Administrative Procedure, No. 2004-04, prohibits “discriminatory harassment, intimidation, ridicule or insults” (at 7), while case law analyzing federal and state anti-discrimination statutes look to whether the conduct in issue is sufficiently severe or pervasive to establish a “hostile work environment.” Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 298, 310-311, 786 N.Y.S.2d 382, 385, 394-395 (2004); Harris v. Forklift Systems, 510 U.S. 17, 21, 114 S. Ct. 367, 370 (1993); Brown v. Coach Stores, Inc., 163 F.3d 706, 713 (2d Cir. 1998).

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