Human Resources Admin. v. Greene

Human Resources Admin. v. Greene

OATH Index No. 390/17 (Nov. 7, 2016)

Principal administrative associate charged with clocking out five minutes early every day for over a year, disobeying an order to stop spraying air freshener near her cubicle, and incompetence in failing to complete the minimum amount of required work. ALJ found that the charges should be sustained and recommended that the employee be demoted. _______________________________________________________

NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of HUMAN RESOURCES ADMINISTRATION

Petitioner - against SHARON GREENE 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. Respondent Sharon Greene is a principal administrative associate (PAA)

level I employed by petitioner, the Human Resources Administration (HRA). Respondent is

charged with clocking out five minutes early every day for over a year, disobeying an order to

stop spraying air freshener near her cubicle, and incompetence in failing to complete the

minimum amount of required work.

A hearing on the charges was held before me on October 20, 2016. Petitioner presented

the testimony of two supervisors and a timekeeper manager. Respondent testified on her own

behalf, denying any misconduct.

For the reasons explained below, I find that the charges should be sustained and

recommend that respondent be demoted.

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ANALYSIS Respondent has worked at HRA for some 16 years, first as an eligibility specialist and since 2011 as a PAA I (Tr. 130). She is currently assigned as a level 1 supervisor at an HRA center which approves and processes applications for food stamp benefits. Her work schedule is from 11:00 a.m. to 7:00 p.m. daily for 35 hours per week (Tr. 141). Respondent's immediate supervisor is Assistant Center Manager Badhan. From 2014 to 2016, the center director was Ms. Gooding.

Clocking Out Five Minutes Early The charges allege that for approximately the past year respondent has clocked out and

departed from her work location five minutes before the end of her work day. Respondent clocked out using HRA's automated electronic timekeeping system called CityTime. Employees enrolled in CityTime use a hand scanner to record the time that they log in and out of work. According to an HRA timekeeping analyst, the CityTime program adjusts to the nearest quarter of an hour in computing the amount of an employee's work hours (Tr. 68). Thus, where an employee clocks out at 6:55 p.m., in computing how many hours that employees worked, CityTime will use the time of 7:00 p.m. If the employee clocks out at 6:52 p.m., CityTime uses the time of 6:45 p.m. Mr. Aynlender testified that, despite this rounding off in calculating work hours, employees are still obliged to work a full seven-hour day or submit a leave request to cover any time not worked (Tr. 66-68).

It was undisputed that, beginning on October 6, 2015, and continuing up until the time of the trial, respondent used CityTime to log out of her work location five minutes early at 6:55 p.m. (Pet. Ex. 1). Several levels of supervision ordered respondent remain at work until the end of her shift at 7:00 p.m. Ms. Badhan and other supervisors noticed respondent's early departures and instructed her to log out only at 7:00 p.m. and not before. When Ms. Badhan told respondent that leaving five minutes early was a violation of HRA time-and-leave policies, respondent said that the "system" was "allowing her to do it" (Tr. 81). Ms. Gooding stated that she met with respondent on March 23, 2016, and told her to remain at work until 7:00 p.m. (Tr. 26-27). On March 25, 2016, Ms. Gooding sent respondent a memo (Pet. Ex. 2) noting that she had "personally" instructed respondent to wait until 7:00 p.m. to clock out because clocking out earlier was a violation of the HRA rules. In the memo, Ms. Gooding wrote that respondent must

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"cease" leaving before the end of her shift and that a failure to follow this order "will result in a request for disciplinary action."

Ms. Gooding wrote respondent a second memo (Pet. Ex. 4) on April 15, 2016, stating that her "blatant defiance" of rules requiring her to work until the end of her assigned work schedule was "a willful act of insubordination." She ordered respondent to submit a leave request of 15 minutes, the minimum time that CityTime would accept. She attached a copy of the CityTime training materials.

Respondent replied to Ms. Gooding's memo in an e-mail (Pet. Ex. 4) on the same day. Respondent stated that her timesheets were "legal" and that she would "not be entering any time." She stated that she was contacting her union about filing a "grievance/harassment" lawsuit. She also noted that other employees were leaving five minutes early and asked for an "investigation into random timesheets."

On May 4, 2016, Ms. Badhan sent a memo (Pet. Ex. 9) to Ms. Gooding reporting that respondent continued to clock out five minutes early. On May 5, 2016, Ms. Badhan sent an email (Pet. Ex. 10) to respondent directing her to submit an unplanned absence, or M301E form, for each day she left work early. When respondent did not submit the forms, Ms. Badhan wrote her another memo noting that she was in violation of HRA rules in being absent during her scheduled work hours.

On June 3, 2016, Ms. Badhan sent another memo (Pet. Ex. 11) to respondent stating that she continued to violate HRA time-and-leave policy and that disciplinary action would be taken.

Ms. Badhan stated that respondent's refusal to obey orders to remain until her scheduled departure time had a "negative impact" upon the other staff members, particularly the workers respondent was assigned to supervise. Because respondent leaves early, Ms. Badhan is forced to assume her supervisory duties at the end of the day and check in with her subordinates (Tr. 9091).

Respondent admitted that she had been clocking out five minutes early since October 2015 and was aware that this practice "would be considered insubordination" (Tr. 142). When asked why she did so, respondent stated, "[o]nly because CityTime adjusts the time" (Tr. 143). Respondent also admitted being ordered to submit leave requests for the missing time but stated that she could not because "the system hasn't asked for any leave requests" and, in fact, "would not allow" her to make such requests (Tr. 145). At the same time, she admitted that she had

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made leave requests, including requests for leave without pay, in CityTime (Tr. 149). She also admitted that she was given orders by Ms. Badhan to submit an unplanned absence form, called a M301E form, and did not do so (Tr. 149-50).

Respondent's admitted practice of clocking out and leaving work five minutes before her scheduled departure time on each and every day from October 2015 to date is a flagrant violation of agency rules. HRA Code of Conduct section III (5) requires that employees "comply with all Departmental time and leave regulations." HRA Code of Conduct III (6) requires that employees "shall not be absent from or leave assigned work locations without appropriate authorization." Other rules provide that full-time employees work at least 35 hours per week, see HRA Time and Leave Procedure No. 726 II (standard workweek for full-time employees is generally either 35, 37 ?, or 40 hours) and that any absences during their scheduled work hours must be authorized and excused. See HRA Time and Leave Procedure No. 726 III (F) ("Employees who are absent without leave will be referred to the Employee Disciplinary Unit. . . . Any unauthorized and unexcused early departures can be considered AWOL. . . .").

Respondent's refusal to submit leave requests for the approximately 25 minutes per week that she was absent violated the time-and-leave rules above, as well as the requirement that all supervisory orders be obeyed. See HRA Code of Conduct III (21) ("Employees shall obey all regulations and orders of their supervisors.").

As to respondent's claim that some other employees also clocked out early, she did not identify any specific employee who did so or offer any proof whatsoever to show that anyone else in her unit followed her practice of departing early. In any event, a failure to bring charges against other employees who committed similar misconduct is not a defense to respondent's admitted violations of agency rules. Dep't of Transportation v. Abad, OATH Index No. 242/12 at 9 (Mar. 12, 2012) ("[A] selective enforcement or retaliation claim is not a defense in an administrative proceeding on misconduct charges."); Human Resources Admin. v. Ali, OATH Index No. 2380/09 at 3 (July 20, 2009).

Specification 1 of charge no. 0501796-03 and specification 3 of charge no. 0501796-04 should be sustained.

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Refusal to Stop Spraying Air Freshener Respondent's cubicle is next to the cubicle of another staff member who, due to certain

health issues for which she is receiving a reasonable accommodation, occasionally smells of urine. Ms. Badhan testified that on May 3, 2016, she saw respondent spraying air freshener over the partitions of her cubicle toward the adjacent cubicles, particularly that of the employee with the disability. Ms. Badhan stated that respondent sprayed the air freshener "almost ten times" (Tr. 75). Two co-workers complained to Ms. Badhan that the air freshener was triggering their allergies or asthma (Tr. 76). Ms. Badhan spoke to respondent and directed her to stop spraying the air freshener. Respondent answered that she would "minimize it" (Tr. 75). Ms. Badhan also reported the problem to Ms. Gooding (Tr. 76-77). Ms. Gooding then wrote an e-mail (Pet. Ex. 6) to respondent at 7:25 p.m. stating that respondent should "cease" the spraying "immediately" due to the staff complaints.

As stated in a memo to Ms. Gooding (Pet. Ex. 8), the following day at 11:30 a.m. Ms. Badhan saw respondent once more spray air freshener 10 times around her cubicle (Tr. 76).

Respondent admitted that she sprayed air freshener "over my cubicle" due to the "odor" coming from the other side (Tr. 140). She insisted that she stopped spraying after Ms. Badhan spoke with her and told her to "keep it to a minimum" (Tr. 136).

The determination as to the air freshener charge requires a finding as to whether Ms. Badhan or respondent was the more credible witness. To evaluate credibility, this tribunal has looked to "witness demeanor, consistency of a witness' testimony, supporting or corroborating evidence, witness motivation, bias or prejudice, and the degree to which a witness' testimony comports with common sense and human experience." Dep't of Sanitation v. Menzies, OATH Index No. 678/98 at 2-3 (Feb. 4, 1998), aff'd, NYC Civ. Serv. Comm'n Item No. CD 98- 101-A (Sept. 9, 1998) (citation omitted).

I found Ms. Badhan to be a more credible witness than respondent. Unlike respondent, Ms. Badhan had no interest in the outcome of the hearing. Ms. Badhan testified clearly and succinctly about directing respondent to stop spraying air freshener and then observing respondent the next morning again spraying air freshener in the direction of the other cubicles. Ms. Badhan's account was corroborated by respondent's testimony as to conversation with respondent on the memo she wrote that same day reporting her observation to Ms. Gooding. Respondent's account, on the other hand, sounded defensive and evasive. She offered no reason

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