HRA v



Human Resources Admin. v. Agran

OATH Index No. 515/07 (Jan. 26, 2007), aff’d, NYC Civ. Serv. Comm’n Item No. CD07-81-A (July 27, 2007), appended

ALJ found employee guilty of continuously and repeatedly refusing to perform any of her assigned work, making insubordinate demands that her supervisors make written requests that she do her work, engaging in non-work pursuits during work hours, and violating autotime procedure by swiping her card on floors where she was not assigned to work. Despite agency’s request for 30-day penalty, ALJ recommended termination.

On appeal, the Civil Service Commission (CSC) noted that respondent had moved to vacate her default and petitioner denied the motion to reopen. The CSC affirmed the denial of the motion to reopen.

___________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

HUMAN RESOURCES ADMINISTRATION

Petitioner

- against -

MATILDA AGRAN

Respondent

____________________________________________________

REPORT AND RECOMMENDATION

TYNIA D. RICHARD, Administrative Law Judge

This employee disciplinary proceeding was referred by petitioner Human Resources Administration ("HRA") pursuant to section 75 of the Civil Service Law. Respondent Hilda Agran is employed by petitioner as a supervisor I. She is charged with failing and refusing to do any work over the course of several months, insisting that her supervisors put in writing their requests that she do work, reading, listening to music, and completing puzzles during work hours, and violating procedure by failing to swipe her time card on the floor where she works.

The hearing on the charges was conducted before me on November 29, 2006. At trial, petitioner presented the testimony of Supervisors Debbie Best, Stanley Rubin, Morris Mayo, and Vito Lipari. Respondent failed to appear and, upon a showing of adequate service of the notice of hearing, she was held in default and the hearing proceeded as an inquest. Petitioner requests that an adverse inference be taken against respondent for her failure to defend against the charges.

Based upon the record of the proceeding, I find that petitioner established the charges, and I recommend a penalty of termination.

ANALYSIS

Petitioner charges respondent with 14 separate instances of misconduct centered in respondent’s failure and refusal to perform assigned work. Respondent’s job is to process reimbursements received from the state for welfare benefits. Four supervisors in respondent’s chain of command appeared and testified to her steadfast refusal to perform her work assignments, which began in February 2006 and continued unabated at least through June 2006. All four supervisors were credible witnesses who provided unembellished accounts of respondent’s repeated refusals to do her work. The credibility of these witnesses is a sharp counterpoint to respondent’s failure even to appear.

Adverse inference

Petitioner seeks an adverse inference against respondent for her failure to appear at the hearing. Having been properly served with the charges and notice of the hearing, respondent’s failure to appear is properly deemed to be voluntary. Here, respondent did not appear to defend, deny, or explain her conduct, as would be expected if she were wrongly accused. Therefore, this tribunal may properly infer that respondent committed the acts of misconduct charged by petitioner. See Dep’t of Homeless Services v. Harrison, OATH Index No. 396/98, at 7-8 (Dec. 19, 1997). Respondent's failure to defend herself against the misconduct charges allows this tribunal also to draw against her “all adverse inferences which one may fairly infer from the facts proved.” Gongola v. Szado, 85 A.D.2d 853, 446 N.Y.S.2d 491 (3d Dep’t 1981). Where a party does not testify, the strongest inference that the opposing evidence permits may be drawn against her. See, e.g., Commissioner of Social Services v. Philip DeG., 59 N.Y.2d 142, 463 N.Y.S.2d 761 (1983); Dep't of Correction v. Jones, OATH Index No. 393/04, at 9 (May 3, 2004); Dep’t of Correction v. Brookins, OATH Index No. 193/97 (Apr. 21, 1997). I agree that such an inference should be drawn here.

Refusal to work on special project involving 60-month cases

Mr. Rubin, Director of the Office of Case Integrity for 31 years, testified that in September 2005, he was overseeing a month-long project in which his units were assigned to review a group of “60-month” cases (Tr. 24-26). These were cases in which federal welfare funds had expired and the caseworkers were assigned to find alternative federal funds eligibility. Mr. Rubin said that respondent refused to do the work and processed no cases the entire month. Toward the end of the month when he realized she was not performing, he spoke to her about it. He said that, without turning around to look at him, she stared at the wall and stated that she would not do the work. Mr. Rubin wrote a memo to her documenting her refusal to work and warning her that disciplinary action would result if her conduct continued (Pet. Ex. 9).

The following day, concerned that the work would not get done, Mr. Rubin reassigned her cases to other workers (Tr. 26).

Petitioner sustained its specification that respondent refused to complete the work assigned to her on this project.

Refusal to work, accessing unauthorized computer data, and using co-workers’ computers without authorization

Debbie Best was respondent’s direct supervisor for the year and a half preceding trial (Tr. 7-10). She testified that she assigns work to respondent, signs off on cases that she has completed, and checks them off a master list that she keeps. Because the work often involves deadlines and reimbursement of funds, overdue cases are closely monitored. On March 10, 2006, Ms. Best spoke with respondent and advised her that she had failed to process any cases since February 16, 2006, and had eight cases that were overdue (Pet. Ex. 3). Respondent told her that her cases would not be overdue until they were two to three months old. Ms. Best explained that her cases should be processed as quickly as possible, unless there was a problem completing them. She also advised her that cases were considered old after 30 days and there was no such thing as a two- to three-month timeline.

Ms. Best told respondent that it was unfair to the other workers in the unit because their caseloads increased when respondent’s cases had to be reassigned (Tr. 11-12). Respondent never completed the cases and Ms. Best reassigned them to other workers (Tr. 9).

Also on March 10, Ms. Best observed respondent working at her computer on a screen that was unfamiliar to her (Tr. 12). She consulted a computer technician who told her that the screen that respondent was viewing was an administrative screen unauthorized to her. Ms. Best told respondent to exit the screen and she did. A half hour later, Ms. Best saw respondent on the same screen again.

On another date in March 2006, Ms. Best saw respondent on a co-worker’s computer (Tr. 13). She asked respondent why she was on that computer and respondent said she was “looking for a password.” Ms. Best told her she was not authorized to be on another worker’s computer, and respondent left. Ms. Best saw respondent on other workers’ computers several times after that during the year.

Petitioner established all three specifications by proving that respondent refused to complete her work on March 10, 2006, as she had since February 16th, viewed unauthorized data on her computer, and accessed co-workers’ computers without authorization.

March 2006 meeting with respondent

Mr. Rubin testified that he called a meeting with respondent and his supervisor, Mr. Reilly, on March 15, 2006, to discuss respondent’s refusal to work (Pet. Ex. 10; Tr. 28). Both Mr. Rubin and Ms. Best testified that, since February 16, 2006, respondent had refused to do any work. At the meeting, respondent insisted that she had two to three months to complete cases (Tr. 31). She protested that she was given more cases than her coworkers so Mr. Rubin showed her the office statistics which showed that she was the lowest producing employee of the 35 employees he supervised. He explained that her cases were piling up, but she continued to give excuses for her conduct.

At one point, respondent went on for 20 minutes complaining about her current pay status (Tr. 29). Apparently, she had received a pay differential at a prior assignment, which HRA erroneously continued to pay her after she left that assignment. When they realized their mistake over two years later, they began docking her paycheck to reimburse the Agency for the overpayment. She felt that she was being unfairly penalized for their mistake and said that she should not have to do the work because she was not being paid. In a conversation that lasted perhaps 25 minutes, Mr. Reilly suggested she seek help from the union for counseling or for help with her complaint about her compensation (Tr. 32).

Mr. Rubin said the meeting went on for two hours during which respondent was very angry (Tr. 32). He said she looked up at the ceiling as she spoke, never looking them in the eye (Tr. 29). Mr. Rubin told her that he would monitor her future casework, and if she started to complete her cases, it would all end there (Tr. 33-34). Despite his offer, respondent continued to refuse to do her work.

Refusals to work, engagement in non-work pursuits, and insubordinate demands to put work requests in writing

Ms. Best testified that she observed respondent at her desk reading and playing puzzles on March 20, 2006 (Tr. 14-15). She asked respondent if she had any intention of working on her cases, and respondent told her “from now on if you or any one wants to ask her anything put it in writing” or else she would not respond (Pet. Ex. 4). Ms. Best said she did so. When she sent written requests to respondent to do her work; however, respondent still did not respond. As a result, there was very little communication between them.

Morris Mayo, the Assistant Director of Case Integrity, is three levels of supervision above Ms. Agran (Tr. 40-42). He is the direct supervisor of Vito Lipari, Ms. Best’s supervisor. He testified that, on March 20, 2006, Ms. Best asked him to speak to respondent about her refusal to do work. When he approached respondent at her cubicle, she told him that he was not her supervisor and she would not speak with him directly. Further, if he wanted to speak with her, he would have to put it in writing. He said he did. He later wrote an email memo describing his encounter with respondent (Pet. Ex. 14). He testified that respondent’s tone and demeanor were insubordinate and dismissive. Because of her conduct, her co-workers are afraid of Ms. Agran and what she might do. They are also demoralized by being assigned work that she refuses to do.

By April 28, there were 28 cases on respondent’s case list (Tr. 16). Again, Ms. Best asked respondent to process her cases, and she gave respondent a memo documenting her repeated refusals to do her work and advising her that her conduct was insubordinate and could lead to disciplinary action (Pet. Ex. 5). Mr. Rubin also wrote a memo on April 28, 2006, noting that respondent had 28 cases outstanding, continued to refuse to do work, and sat in her cubicle listening to the radio and doing puzzles all day (Pet. Ex. 11).

Quite apart from her general refusal to do work, I found respondent’s insistence upon receiving written requests to do work from her supervisors to be insubordinate and disrespectful. The record uncovered no basis for needing written requests and indeed they appear not to have been used for any purpose, except perhaps to demean and humiliate her supervisors. Not only was respondent not entitled to written requests to do the work that she was hired and paid to do, but a written request was beside the point since she steadfastly refused to perform her work under any condition or circumstance.

Accordingly, petitioner has proved that respondent committed misconduct by refusing her supervisors’ requests that she do work on March 20 through April 28, 2006, by reading, listening to music, and playing puzzles instead of doing her work, and by insisting that her supervisors make written requests that she do her work and to speak with her.

Improper use of swipe card

HRA policy provides that employees must use a card swipe device to swipe in and out at work, and they must do so on the floor on which they work (see Everything You Always Wanted to Know About Autotime, p. 4). HRA charges respondent with failing to do so. The goal of such a policy is to ensure that employees are reporting timely to their proper workstations and remain there during their work hours (Tr. 21, 36). In this case, respondent was reporting to her workstation an hour after she swiped and she often failed to return to her desk after lunch (Tr. 36).

The autotime records entered in evidence show that respondent, who worked on the 10th floor of the building, swiped in on other floors on June 19, 20, 21, 22, and 23, 2006 (Pet. Ex. 6; Tr. 21). Ms. Best spoke to respondent and gave her a copy of the written policy, but respondent continued her behavior (Tr. 22). Mr. Rubin also told her not to do it (Tr. 36). Despite the warnings, respondent continued to swipe in on other floors on March 31, April 3 through 7, April 19 through 21, and April 24 through 28 (Pet. Exs. 7, 8 & 12).

Accordingly, petitioner sustained its charge that respondent failed to comply with departmental policy requiring timely and appropriate swipe card usage, in contravention of her supervisor’s directives.

June 2006 refusals to perform work

Respondent is charged with refusing on June 19, 2006, to return two cases to her supervisor unless the supervisor gave her a written request, and with refusing to return two other cases to her supervisor on June 26, 2006.

After reviewing the overdue case list, on June 19, 2006, Mr. Rubin asked Mr. Lipari to retrieve from respondent her two oldest cases, which were over four months old, because he wanted to reassign them to another worker due to their age (Tr. 37). Respondent insisted on being given a memo in writing requesting the cases, so they gave her one. She returned the cases to them, uncompleted. On June 26, 2006, Mr. Rubin again asked respondent for her two oldest cases and gave her a written request (Tr. 38). Mr. Lipari testified that she refused to give them to him, and that Mr. Reilly had to recreate the files by other means (Tr. 44-45; Pet. Ex. 15).

Mr. Rubin documented these encounters in a memo dated June 27, 2006, which stated that respondent “continues to do no work” and requesting that disciplinary action be taken (Pet. Ex. 13).

I find that respondent committed misconduct by her refusal to return the cases and by her insistence upon receipt of a written request to return other cases. Respondent also committed misconduct by her ongoing refusal to complete her case work.

FINDINGS AND CONCLUSIONS

1. Petitioner proved by a preponderance of the credible evidence that respondent committed misconduct by her failure to do any work during a month-long project in September 2005, and by explicitly refusing the project supervisor’s requests that she do the work.

2. Petitioner proved that respondent committed misconduct by refusing to do any work from February 16, 2006, through at least June 27, 2006.

3. Petitioner proved that respondent committed misconduct, on March 10, 2006, by refusing her supervisor’s request that she complete her work, viewing unauthorized data on her computer, and accessing her co-workers’ computers without authorization.

4. Petitioner proved that respondent committed misconduct by refusing her supervisors’ requests that she do work on March 20 through April 28, 2006, by reading, listening to music, and playing puzzles instead of doing her work, and by refusing to address her supervisors’ requests that she do her work unless and until they put such requests in writing.

5. Petitioner proved that respondent committed misconduct by disobeying her supervisor’s instructions and violating departmental policy requiring her to swipe her time card on the floor where she is assigned to work.

6. Petitioner proved that respondent committed misconduct by refusing to return two cases to her supervisor until she received a written request to do so on June 19, 2006, and by refusing to return two other cases to her supervisor on June 26, 2006, even after she was given a written request.

RECOMMENDATION

Upon making the above findings and conclusions, I obtained and reviewed portions of respondent's personnel record provided to me by HRA. Ms. Agran was appointed to her position with the Agency on November 9, 1992. She has no prior disciplinary history.

Respondent has been found guilty of a refusal to do any work for at least four months, insubordinately insisting upon receiving written requests from her supervisors to do her work, engaging in non-work activities during work hours, among other things. Despite her long tenure and lack of prior discipline, the charges sustained are serious indeed and justify a substantial penalty. The Agency seeks a penalty of 30 suspension days.

Despite the Agency’s request, this case appears uniquely to call for termination. Here, petitioner’s complaint is not that respondent does not perform her work timely, or correctly, or courteously, or without disturbing others in the workplace. Petitioner’s proof demonstrates that respondent starkly refuses do any of the work for which she is being paid -- perhaps the most fundamental demand of any employer. It may be unusual for the tribunal to recommend a penalty far in excess of the one requested by the agency, but I was brought to my recommendation by the sheer simplicity of the facts. Respondent’s failure to do any work, with no apparent excuse for poor health or lack of training or even good intentions, leads me to the inexorable conclusion that she wishes no longer to be employed by the Agency. Respondent’s complaint about the Agency’s reduction of her pay in order to correct its mistaken overpayment is no excuse for, nor does it even lend sympathy to, her conduct. Her misdirected anger may ultimately be her undoing. See Office of Management and Budget v. Perdum, OATH Index No. 998/91, at 27 (June 17, 1991) (termination recommended for employee “engaged in the functional equivalent of a one-man strike,” who, angered after being denied a promotion, did very little work, causing his supervisors and co-workers to be overworked and frustrated). On the record before me, I find a more than ample basis to recommend that respondent’s employment be terminated, and I so recommend.

Even so, the records received from the Agency include a number of respondent’s performance evaluations, some of which evidence “outstanding” and “very good” work in past years. In light of her past strong work performance, her 15 years’ tenure with the Agency, and the relative short period of non-performance, I would suggest that the Agency consider alternatives such as a probationary period and a lesser penalty if respondent has admitted responsibility and corrected her behavior since trial, or if she can establish that she can release the past and rededicate herself to her job. Respondent’s irrational insistence that she is justified in her actions regarding pay that she was not entitled to suggests that a required period of counseling might also be necessary.

Tynia D. Richard

Administrative Law Judge

January 26, 2007

SUBMITTED TO:

VERNA EGGLESTON

Commissioner

APPEARANCES:

HILIT KROMAN, ESQ.

Attorney for Petitioner

No appearance by Respondent

The City Civil Service Commission’s Decision, Item No. CD07-81-A,

July 27, 2007

_______________________________________________________

THE CITY OF NEW YORK

CIVIL SERVICE COMMISSION

In the Matter of the Appeal of

MATILA AGRAN

Appellant

- Against -

NYC HUMAN RESOURCES ADMINISTRATION

Respondent

Pursuant to Section 76 of the New York State Civil Service Law

_______________________________________________________

SIMON P. GOURDINE, Commissioner/Chairman

DECISION

MATILDA AGRAN appealed from a determination of the New York City Human Resources Administration finding her guilty of misconduct and dismissing her from her position as a Supervisor I following disciplinary proceedings conducted pursuant to Civil Service Law Section 75.

Appellant defaulted below and thereafter sought to reopen the hearing. After having had several opportunities to defend the charges against her, where she failed to appear at all hearings, the agency denied her application to reopen.

After review of the application and the agency’s response detailing the reason for denial, the Commission finds no reversible error. The determination denying the application to reopen is hereby affirmed.

SIMON P. GOURDINE, Commissioner/Chairman, Civil Service Commission

NICHOLAS A. LAPORTE, Commissioner, Civil Service Commission

DAVID S. LANDE, Commissioner, Civil Service Commission

RUDY WASHINGTON, Commissioner, Civil Service Commission

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