Human Resources Admin



Human Resources Admin. v. Nwogu

OATH Index No. 682/09 (Jan. 9, 2009)

Respondent eligibility specialist engaged in multiple acts of misconduct over a two year period including intimidating and threatening supervisors, using profane and inappropriate language, insubordination, being absent without leave, and inefficient performance of his duties. Based on respondent’s disciplinary record and his persistent refusal to conform to agency rules, ALJ recommended termination of respondent’s employment.

______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

HUMAN RESOURCES ADMINISTRATION

Petitioner

- against -

EMMANUEL NWOGU

Respondent

______________________________________________________

REPORT AND RECOMMENDATION

ALESSANDRA F. ZORGNIOTTI, Administrative Law Judge

This is a disciplinary proceeding referred by petitioner, the Human Resources Administration (“HRA” or “Administration”), pursuant to section 75 of the Civil Service Law. The charges consist of multiple specifications alleging that between 2006 and 2008 respondent, Emmanuel Nwogu, violated various provisions of the Administration’s Code of Conduct. The charges set forth numerous instances where respondent failed to timely process client cases, failed to follow supervisor’s orders, was absent without leave and was absent from his desk without authorization, intimidated and threatened supervisors and co-workers, used inappropriate and profane language, fell asleep and/or was intoxicated during work hours, used the telephone excessively for personal use, and brought a knife to a training session and acted in a threatening and discourteous manner (ALJ Ex. 1).

A hearing was conducted before me on October 27, November 12 and 17, 2008. In support of the charges, petitioner presented documentary evidence and four of respondent’s supervisors: Gwen Wallace, Rita Richards, Teresa Rivera, and Sheila Johnson who testified by telephone. Respondent denied the charges and testified on his own behalf. I find that petitioner proved most of the charges and recommend that respondent be terminated from his employment.[1]

ANALYSIS

Respondent has been an employee at the Administration for 17 years and is currently an eligibility specialist III (“ES III”). Between 2006 and 2008, respondent was assigned to the Family Call Center 17 in Queens (“Center 17”) which handles cases involving children who are recipients of public assistance. Respondent was first assigned to the Fair Hearing Unit which reviews public assistance disputes and resolves them before they go to a hearing. Respondent was responsible for processing settled client requests which usually involved restoring or providing benefits retroactively. Respondent would be given a “270 form” with instructions for each case. Generally, respondent would go into the paperless office system (“POS”) to make the changes so that disputed benefits would be issued. There are strict deadlines to be followed (Tr. 63-63, 145) and most cases must be completed within 5 days (Pet. Ex. 14). The failure to provide benefits in a timely manner could cause undue hardship to children who rely on public assistance for food, rent, and other necessities (Tr. 78). In June 2007 respondent was moved to the Processing Unit which also administers client benefits (Tr. 144).

The Department “has the burden of proving its case by a fair preponderance of the credible evidence.” Dep’t of Correction v. Hall, OATH Index No. 400/08, at 2 (Oct. 18, 2007), aff’d, NYC Civ. Serv. Comm’n Item No. CDO8-33-SA (May 30, 2008). Because respondent denied engaging in any misconduct, resolution of these charges rests on a determination of the credibility of the witnesses. 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 in determining credibility. 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).

I found petitioner’s witnesses to be credible. They provided consistent and detailed testimony which was supported by documentary evidence made contemporaneously with the alleged misconduct. Contrary to respondent’s claim, I did not find that his supervisors were biased against him. Rather, I found that they were trying to manage an insubordinate, volatile, and unproductive employee. Although respondent denied the misconduct, when confronted with irrefutable proof he acknowledged it. With regard to most of the other charges, respondent made generalized comments and denials which were nonsensical and did not address the actual misconduct charged. Essentially, respondent claimed that prior to his assignment at Center 17, he never had any problems and that his supervisors created a “toxic” environment and harassed him (Tr. 216-19, 278-79). These assertions were incredible and contrary to the weight of the evidence. Indeed, respondent acknowledged that prior to working at Center 17, he was disciplined for similar misconduct and since his transfer from Center 17 has had confrontations with new supervisors (Tr. 317-24).

Inappropriate Conduct and Intoxication

Respondent is charged with multiple instances of acting in a discourteous, threatening, or inappropriate manner, using obscene, abusive, or discriminatory language, and being intoxicated at work. Respondent denied any misconduct and claimed that he is “very calm and professional at work” (Tr. 263, 275). Respondent also testified that he never consumed alcohol at work and that his supervisors smelled his cologne, which has an alcohol base and can smell differently depending on a person’s body chemistry or “pheromones” (Tr. 218).

June 17, 2008 - Discourteous and Threatening Behavior and Intoxication

Ms. Wallace testified that on June 17, 2008, Center 17 was conducting its monthly training. When she entered the conference room respondent looked at her and stated, “There goes that bitch.” Ms. Wallace sat down five feet away from respondent. She observed that he was mumbling, making hand gestures, and pointing at her. During the training, respondent looked at Ms. Wallace and stated, “suck my dick.” Ms. Wallace shook her head and noted his comment on a piece of paper. Shortly after, Ms. Demedineceli, the instructor, printed a directive on a printer near respondent. Ms. Wallace testified that when Ms. Demedineceli went to the printer, respondent “jumped out of his seat” and said, “what are you doing here, get away from me because I am about to blow up.” When respondent stood, Ms. Wallace observed a brown handle sticking out of his waistband. She immediately left the room and called security because she thought respondent had a weapon. She returned with security and asked respondent to step outside but he refused. The sergeant waited outside since the group was about to take a break. At the break, the sergeant asked respondent if he had anything on him. Respondent removed a knife from the back of his pants. The sergeant told him that he was not allowed to have a knife at work and respondent offered it to him (Tr. 35-45).

Ms. Wallace identified a photograph of a security captain holding the knife taken from respondent (Pet. Ex. 6). The knife had a four to six inch serrated blade, a long wooden handle, and it was dirty with blood. Ms. Wallace gave a statement to the police and respondent was arrested. She also obtained an order of protection which is no longer in effect. Ms. Wallace testified that she felt threatened by respondent and after the incident he was transferred from Center 17 (Tr. 45-50).

Following the incident, Ms. Wallace obtained statements from four people at the meeting. Ms. Seth wrote that she heard respondent make loud comments when Ms. Demedineceli walked to the printer, that respondent refused to leave the room with Ms. Wallace, and that she observed him arguing with a security guard. Ms. Rivera wrote that she heard respondent cursing and talking in a threatening tone when Ms. Demedineceli walked to the printer and that respondent refused to leave the room with Ms. Wallace. She thought that respondent appeared intoxicated. Ms. Demedineceli wrote that, when she walked to the printer, respondent got up suddenly, stared at her and stated, “Get away from me, I am about to explode.” Ms. Williams wrote that when the trainer went to the printer respondent “became rude and disruptive using offensive language” and that this behavior continued and the police were summoned (Pet. Ex. 5).

Respondent testified that he woke up that morning and “felt that there was something wrong” because he had two meetings, including a disciplinary hearing. It took him two hours to travel to the hearing, but he went to the training in the afternoon anyway. He was sitting in the conference room and Ms. Wallace came in and sat by the door. Everyone was listening to the instructor, who called a break at 3:00 p.m. When he got up to go to the men’s room he had a fishing knife from the previous day which he forgot. He had been carrying it in a plastic bag and it punched a hole in the bag. When he went to the bathroom, he wrapped the knife in an envelope and tied it up. The wooden handle of the knife was showing from his back pocket because his sweater was not tucked in. He testified that Ms. Wallace is “constantly watching me, you know, she gives me the ebby-geebies sometimes.”

Respondent testified that when he came back from the men’s room he was “greeted” by the security guard and Ms. Wallace. The guard asked what he had and respondent took out the knife. Respondent testified that Ms. Wallace had “planned already in her mind” to call the police. He denied that he told Ms. Wallace to “suck my dick” or that he jumped up and told Ms. Demedineceli that he was about to “blow” or “explode,” claiming such a thing “was impossible” because he did not speak to anyone that day (Tr. 277-78, 307). Moreover, respondent claimed that there was no printer in the conference room and denied being intoxicated (Tr. 268-73). Respondent also testified that he was arrested (Tr. 273). The menacing charge was dismissed but the charge for possession of a weapon was still pending (Tr. 316). Respondent testified that he did not see a problem with having a knife at work (Tr. 313).

It is well settled that not every disagreement with a supervisor rises to the level of misconduct. The disagreement, however, must remain within the bounds of decorum and discretion. See Human Resources Admin. v. Bichai, OATH Index No. 211/90 (Nov. 21, 1989), aff'd, N.Y. Civ. Serv. Comm’n Item No. CD 90-54 (June 15, 1990); Dep't of Correction v. Martin, OATH Index No. 431/95 (Jan. 17, 1995). It is impermissible for respondent to scream at his supervisor, regardless of his feelings for the supervisor or the directives that are given. Dep’t of Transportation v. Jones, OATH Index No. 1517/07, at 3 (Aug. 10, 2007). Similarly, intimidating and threatening conduct towards a co-worker is misconduct. Dep’t of Transportation v. Ferstler, OATH Index No. 593/07 (June 25, 2007).

There is no dispute that respondent brought a knife to work which he carried with the handle sticking out of the back of his pants. The knife was large and covered with blood. Moreover, I credit the testimony of Ms. Wallace that respondent called her a “bitch” and told her to “suck my dick.” I further credit the testimony of Ms. Wallace as corroborated by the written statements of four people who were at the meeting that respondent stood up when Ms. Demedineceli approached the printer and stated in a threatening manner, “get away from me because I am about to blow up.” Respondent’s explanation for why he was carrying the knife in his pants rather than leaving it in the plastic bag was bizarre and his denial that he cursed at Ms. Wallace and threatened Ms. Demedineceli was incredible. Respondent admitted that he was out of sorts because of the disciplinary hearing earlier that day which had been initiated by his supervisors. Therefore, it seems more likely than not that respondent was angry when he got to the training session, cursed at Ms. Wallace, and acted in a threatening manner. However, Ms. Rivera’s comment that respondent appeared intoxicated was insufficient to sustain a charge that respondent was intoxicated.

This tribunal has held on multiple occasions that the smell of alcohol alone is insufficient to establish that an employee was intoxicated or under the influence of alcohol. Health & Hospitals Corp. (Correctional Health Services) v. LaSane, OATH Index No. 1165/02 (Aug. 8, 2002); Human Resources Admin. v. Adams, OATH Index No. 342/02 (Jan. 16, 2002), modified on penalty, Admin. Determination (Feb. 25, 2002); Human Resources Admin. v. Prescott, OATH Index No. 1775/01 (Dec. 10, 2001); Human Resources Admin. v. Honey, OATH Index No. 435/89 (Oct. 20, 1989). Rather, “such a determination would require more specific observations about respondent’s physical condition, such as incoherence, slurred speech, stumbling or odd behavior.” Adams, OATH 342/02 at 8.

April 10, 2008 - Discourteous Conduct and Improper Use of Agency Telephone

Ms. Richards testified that when she got back from lunch at 1:45 p.m. on April 10, 2008, respondent was on the phone. At 3:50 p.m. respondent was still on the telephone and had his feet on his desk. When Ms. Richards told him to get off the telephone, respondent told the person on the line, “There is a crazy lady here.” Respondent refused to get off the phone. Ms. Richards testified that she knew it was a personal call by the tone and length of the conversation (Tr. 125-27). She gave respondent a memo the next day about his conduct (Pet. Ex. 30).

Ms. Wallace testified that on April 10 she also noticed respondent talking on the phone with his feet on the desk. She went to Ms. Richards who advised her that he had been in that position for sometime and had ignored her requests to hang up. Ms. Wallace went to respondent’s cubicle and told him to hang up the phone. He ignored her. Respondent was not on an agency related call and said to the person on the line that Ms. Wallace was in his cubicle and that he was “Not paying her no [sic] mind.” Ms. Wallace stayed in the cubicle for about ten minutes. When he hung up the phone she asked him to take his feet off the desk. Respondent “smirked” and removed his feet. Ms. Wallace returned to her office, documented the incident, and had the phone removed from his cubicle. While she was writing a memo to respondent advising him why the phone had been removed and providing him with contact numbers for his family to call in an emergency, respondent came to her office and flung a note in the shape of a paper airplane at her (Tr. 29-31). The note was addressed to Ms. Wallace and stated that she and her “cohorts” are “biased and nothing but low life niggers” (Pet. Ex. 3). Ms. Wallace testified that she felt demoralized by the note (Tr. 31). She prepared a memo documenting the incident and wrote that respondent did not complete any of the cases assigned to him that day (Pet. Ex. 4).

On April 16, 2008, respondent wrote Ms. Wallace another memo regarding his telephone use. Respondent accused Ms. Wallace of harassing and taunting him and claimed that she and “her cohorts are delusional.” Respondent ended the memo by telling Ms. Wallace to “get off my CASE!” (Resp. Ex. A, emphasis in original). Respondent claimed that he has no one to call. Other workers are on the phone and he has been singled out. When he is on the phone, which is rare, he usually speaks to Ms. Rodriguez, who he used to work with (Tr. 244-45).

Respondent admitted that he wrote the memo calling his supervisors “low-life niggers” and testified that it was a “bad choice of words.” He claimed he was upset that Ms. Wallace sat in his cubicle while he was on the phone instead of telling him to hang up and that she took his phone. He stated he was very sorry, he did not want to offend anyone, and would never do it again (Tr. 264-66). Respondent denied having his feet on the desk and testified they were propped up on the chair. He denied saying anything to Ms Wallace while she was in the cubicle. Moreover, when he went to give her the memo, he went to her in a “professional” manner. She was on the phone and did not want to see him. He did not throw the memo at her but “laid it down” (Tr. 267) “on the floor nice and smoothly and left” (Tr. 315). On cross-examination, respondent admitted he stayed on the telephone for a non-work related call after Ms. Wallace told him to terminate the call but claimed it was only for two minutes (Tr. 296).

I credit the testimony of Ms. Wallace and Ms. Richards that respondent was on the telephone making personal calls with his feet on the desk, that he refused their orders to hang up the phone, and that he spoke rudely about them to the person on the line. Moreover, there is no dispute that respondent wrote Ms. Wallace a memo calling his supervisors “low life niggers.” I further credit the testimony of Ms. Wallace that respondent flung the note at her in the shape of a paper airplane. Respondent admitted that he was angry with Ms. Wallace at the time he gave her the note and his testimony that he laid it on the floor in a professional manner was incredible.

March 21, 2007- Intoxication

On March 21, 2007, Ms. Rivera wrote to Ms. Campbell complaining that respondent often smelled of alcohol, was moody, and unproductive at work. She requested that he be removed from her supervision (Pet. Ex. 19). This evidence is insufficient to establish respondent was intoxicated on March 21, 2007. See Adams, OATH 342/02.

March 29, 2007 - Intoxication and Discourteous Conduct

Ms. Rivera testified that on March 29, 2007, she went to respondent with a correction for a client check. When she tried to explain what needed to be done, respondent became loud, waved his hands, and stated she “did not know what [she] was talking about and wasn’t playing with [her] anymore” (Tr. 86). That day Ms. Rivera sent Ms. Campbell a memo reporting the incident and stating that respondent smells of alcohol on a daily basis (Pet. Ex. 20). This evidence is sufficient to establish that respondent was discourteous and hostile to Ms. Rivera as charged but is insufficient to establish respondent was intoxicated. See Adams, OATH 342/02.

April 5, 2007- Intoxication, Discourteous Conduct, and Improper Use of Agency Telephone

Ms. Johnson testified that on April 5, 2007, she heard respondent speaking loudly on the phone. She asked him if he was on agency business and to tone it down. Respondent continued to speak loudly. Ms. Johnson went back to respondent’s desk and told him if he was on a personal call to hang up. Respondent terminated the call. The next day, Ms. Johnson heard respondent speaking loudly and laughing on a personal phone call. On April 6, Ms. Johnson gave respondent a memo regarding his excessive use of the agency telephone for personal reasons and noted that on that day she smelled alcohol on his breath (Tr. 164-65; Pet. Ex. 34).

On April 9, respondent wrote Ms. Johnson a “rebuttal” memo regarding his phone use. Respondent noted that he wears musk cologne which has an alcohol base and that she should “get the lies right” (Pet. Ex. 35). Respondent admitted submitting a memo on April 9, 2007, to Ms. Johnson telling her to get the lies right. He claimed that people are constantly accusing him of things when all he wants is to get his work done and be left alone. He cannot think effectively when he is worried about being charged with false accusations. Respondent asked “what’s bad about” saying get your lies right (Tr. 276-77). Respondent also testified that he is Nigerian and that as a cultural matter he has a tendency to speak loudly. He does not make personal calls at work and never had a conversation with Ms. Johnson about his phone use (Tr. 214-26).

Respondent’s claim that he never had a conversation with Ms. Johnson about his telephone use is contrary to the record. I further find petitioner’s proof sufficient to demonstrate that respondent was on the telephone for non-agency business and that he failed to follow Ms. Johnson’s order not to use the telephone for personal reasons. Moreover, respondent’s rebuttal memo to Ms. Johnson accusing her of lying was discourteous and inappropriate. However, the proof is insufficient to demonstrate that respondent was intoxicated. See Adams, OATH 342/02.

July 29, 2007- Intoxication and Discourteous Conduct

Ms. Wallace testified that late in the day on July 29, 2007, she was talking to Ms. Allen, another worker, who had recently lost her father. Ms. Wallace had just given her a sympathy card from the staff when respondent came out of the men’s room and approached them. He was wearing dark glasses. Respondent had the smell of alcohol on his breath, was rocking back and forth, and appeared to be intoxicated. Respondent looked at Ms. Wallace and stated, “Why don’t you go back to your god damn office.” She was shocked and surprised and responded, “excuse me?” Respondent repeated, “Why don’t you go back to your god damn office.” Ms. Wallace immediately documented the incident in an email (Tr. 18-22). Ms. Wallace also obtained a statement from Ms. Allen who wrote that respondent approached Ms. Wallace and stated, “why are you standing there looking at me go back to your god damn office” (Pet. Ex. 1).

Ms. Wallace’s description that respondent smelled of alcohol and was rocking back and forth was sufficient to demonstrate that he was intoxicated. The fact that respondent was wearing dark glasses inside and made an unprovoked comment to Ms. Wallace provides further support for this conclusion. Moreover, I find that respondent was discourteous to Ms. Wallace.

July 2007- Discourteous Conduct and Sleeping At Work

Ms. Wallace testified that on July 2, 2007, she was advised by Ms. Johnson that respondent was sleeping at his desk. When she got there, he had apparently awakened (Tr. 27). Ms. Richards also testified that she observed respondent sleeping at his desk around 3:15 p.m. She knew he was sleeping because his eyes were closed and he was drooling (Tr. 123-24). On July 3, Ms. Richards gave respondent a memo advising that sleeping is not allowed (Pet. Ex. 29).

Ms. Wallace testified that on July 12, 2007, Ms. Richards advised her that respondent was again asleep at his desk. Also, on July 27, Ms. Wallace went to respondent’s desk and saw him sleeping. She testified that she knocked on his desk but he would not wake up. Ms. Wallace did not touch respondent because she did not know what state of mind he would be in when he awoke. She called security. Respondent woke up after security arrived and stated he was not sleeping (Tr. 27-28). Ms. Wallace documented in a memo that respondent was sleeping on these occasions in July and that he refused to come to her office for a meeting on July 27 to discuss this matter (Pet. Ex. 2). According to Ms. Johnson, at 3:30 p.m. that day, she asked respondent to come to Ms. Wallace’s office to discuss his sleeping. Respondent replied, “I’m not listening to you. Ms. Wallace did not tell me anything. Why are you on this floor? I am not listening to you.” Respondent did not attend the meeting as instructed. Ms. Johnson gave respondent a memo regarding this conduct (Tr. 190-192; Pet. Ex. 42).

Respondent denied sleeping at his desk and claimed that no one can see his eyes when he is facing the computer. Moreover, people have told him that his eyes are “lowered” and that they think he is sleeping when he is not. Respondent also testified that if Ms. Wallace had asked him to go to a meeting he would not have gone without a union representative.

I find credible the testimony of respondent’s supervisors that respondent was sleeping at his desk on July 2, 12, and 27, 2007, that he was rude to Ms. Johnson when she asked him to attend a meeting regarding his sleeping, and that he refused to attend the meeting as directed. To establish that respondent failed to obey a direct order, petitioner must show that an order was communicated to respondent and respondent heard the order, that the content of the order was not ambiguous, and that respondent willfully refused to obey the order. Dep’t of Correction v. Graham, OATH Index No. 1380/03, at 16 (Feb. 25, 2004). I credit the testimony of Ms. Johnson as documented by Ms. Wallace that respondent was given an order to attend a meeting about his sleeping which he refused to comply with it.

June 14, 2007 – Discourteous Conduct

Ms. Johnson testified that on June 14, 2007, she observed respondent wearing a baseball cap in the office. She testified that HRA does not allow people to wear hats unless they have a medically documented condition or are wearing them for religious reasons. When respondent advised her that he was wearing a hat for medical reasons she asked him to provide medical documentation and a memo explaining the need. Respondent became “agitated” and stated, “I’m not writing Jack.” Ms. Johnson advised him that he would be written up. Respondent started to walk away. When Ms. Johnson asked respondent if his supervisor knew that he was leaving the floor respondent stated, “You need to take your ass upstairs.” Respondent entered the elevator and repeated, “Yes, I said, take your ass upstairs.” Staff members were present. On June 22, Ms. Johnson gave respondent a memo documenting the incident (Tr. 187-90; Pet. Exs. 41, 2).

Respondent testified that he “doubted” he told Ms. Johnson “to take your ass upstairs” because he would never say anything like that “out of the blue” (Tr. 226). When it was pointed out that the allegation was that he was responding to Ms. Johnson’s request to provide a memo concerning his baseball cap, respondent testified that he remembered the incident “nice and clearly” (Tr. 226). Respondent then claimed that he had his hat on because he was going outside and the sun hurts his eyes. He could not recall whether he said anything to Ms. Johnson and claimed he had no reason to say such a thing. I found respondent’s denial of the incident incredible and the charge should be sustained.

May 3, 2007- Discourteous Conduct

Ms. Rivera testified that on May 3, 2007, she asked respondent a question about a case. Respondent became very hostile, loud, and angry. He stood and waved his hands and she felt threatened (Tr. 88). Ms. Rivera wrote Ms. Johnson a memo about the incident and asked to have respondent reassigned (Pet. Ex. 21). She stopped supervising respondent in June 2007 (Tr. 89).

Respondent denied being hostile to Ms. Rivera and said that when he is upset he is not going to “say anything to you.” If he is trying to explain something his “intonation may be too feveretly [sic] . . . but that does not mean [he is] upset” (Tr. 264). Respondent’s claim that he will not speak to someone when he is upset is contrary to the weight of evidence in the record. I credit the testimony of Ms. Rivera that respondent was loud and threatening when she asked him about a case and the charges should be sustained.

June 28, 2006 – Discourteous Conduct

Ms. Rivera testified that on June 28, 2006, she went to speak to respondent. As she approached him, respondent called Ms. McManawa “bitch.” Ms. McManawa was the Deputy Director at Center 17. At the time respondent was walking out of Ms. McManawa’s office and was facing Ms. Rivera (Tr. 83). Ms. Rivera documented the incident that day (Pet. Ex. 18).

Respondent denied calling Ms. McManawa a bitch and claimed that she came to his desk to tell him she was being transferred and that all he said was good luck (Tr. 261-62).

I credit the testimony of Ms. Rivera that respondent called Ms. McManawa a bitch. Given respondent’s repeated testimony that the supervisors at Center 17 created a toxic environment and harassed him, I find it more likely that he called the Deputy Director a bitch rather than bid her good luck in her new job. Although this incident involved multiple charges, petitioner failed to put forward proof that respondent continued to call Ms. McManawa a bitch after he left her office or that he failed to follow Ms. Rivera’s order to stop cursing. Therefore, only the charge for which proof was offered should be sustained.

November 24, 2006 - Discourteous Conduct and Unauthorized Absence from Desk

Ms. Johnson testified that on November 24, 2006, she advised respondent that if he left his desk for more than 15 minutes without authorization he would have to put in a leave request for the time. Respondent’s lunch hour was from 12:00 to 1:00 p.m. At 1:40 p.m., Ms. Johnson noticed that respondent was not at his desk and that he returned sometime before 2:30 p.m. She sent respondent an email reiterating their prior conversation and advised him to put in a leave request for 50 minutes (Tr. 173-76; Pet. Ex. 37).

Predictably, respondent claimed that he never received Ms. Johnson’s email and that he did not commit misconduct (Tr. 276). Regardless whether respondent got the email, he was given a verbal instruction not to leave his desk for more than 15 minutes without authorization. I further credit Ms. Johnson that respondent was away from his desk for 50 minutes.

Ms. Johnson also testified that later that day there was an incident between respondent and Ms. Cooper relating to his absence. Respondent accused Ms. Cooper, another worker, of “being in cahoots with management.” He cursed at Ms. Cooper, claimed she was a “spy” and a “snitch,” and yelled, “I’m tired of you.” The confrontation escalated and security was called. Ms. Johnson was concerned that Ms. Cooper would be hurt. After security arrived, respondent left the building in a “rage.” Ms. Johnson wrote a memo to the Regional Manager about the incident and asked to have respondent removed from Center 17 (Tr. 194-96; Pet. Ex. 43).

Respondent testified that security was called for Ms. Cooper who is always “loud” and wants to “fight.” Respondent has seen Ms. Cooper with “other girls” and “sometimes they’re literally about to fight.” When he sees a fight he just walks away (Tr. 228-29). Respondent’s testimony on this charge was bizarre and non-responsive. I found Ms. Johnson to be more credible than respondent and the charge that he threatened Ms. Cooper should be sustained.

Leaving Work Early and AWOL Charges

Respondent is charged with failing to comply with agency time-and-leave regulations including being absent without leave and leaving work early without authorization.

Ms. Johnson testified that she had authority to approve respondent’s time and leave and that he would often leave work early without his supervisor’s knowledge or approval. Afterwards, respondent would request leave without an explanation. In September 2006, respondent was conferenced in the presence of a union representative about his violation of the time-and-leave rules. Respondent did not improve and his supervisors started to monitor him closely (Tr. 167-69). According to Ms. Johnson, despite the conference, she observed that respondent left work early without approval as follows: on September 12, he left 45 minutes early; on September 20, he left 30 minutes early; and on October 4, he left 60 minutes early. When asked to explain his whereabouts respondent had no response (Tr. 170-71; Pet Ex. 36). On October 3, 2006, Ms. Johnson sent a memo to the Office of Staff Resources asking that respondent be brought up on disciplinary charges for time-and-leave violations (Pet. Ex. 36).

Respondent testified that his mother had knee surgery in 2008 and that he had a long commute (Tr. 297). He claimed that his supervisors would approve his early departures and then disprove them later on. He denied asking for leave after he had already taken the time (Tr. 298). On cross-examination respondent admitted that he would leave early without approval because he had a “dire situation” which would require him to “just pick up and go” (Tr. 219-20).

I credit the testimony of Ms. Johnson as corroborated by respondent’s admission that he would leave work early without approval. Moreover, his explanation that his mother had surgery in 2008 was utterly insufficient to excuse early departures in September and October 2006.

Ms. Johnson also testified that on the 2007 Memorial Day weekend, respondent left four hours early on Friday without authorization. Monday was a holiday and respondent was approved to have Tuesday off. Respondent did not come to work on Wednesday or Thursday and failed to notify his supervisor of his absence. When he returned to work, respondent told Ms. Johnson that he had prior approval to take off these days. She asked for documentation but respondent did not provide any. Vacation schedules for holidays are done in advance and there is no record that respondent requested these days off (Tr. 179-87; Pet. Ex. 39). On June 4, 2007, Ms. Johnson gave respondent a memo regarding his unauthorized absences (Pet. Ex. 40).

Respondent admitted that on Friday his request to leave early was not approved. Respondent claimed that he left early anyway because he had to “take care of the business that I know I had to take care of” and that his departure was “warranted” (Tr. 225). He claimed that after the holiday he was “most likely sick” (Tr. 224) even though he made a request for annual leave. He claimed that sometimes his supervisor changed his time (Tr. 301-02).

There is no dispute that respondent left early on May 25, 2007, without authorization. Respondent’s testimony that he was sick on May 30 and 31 was incredible, undocumented, and contrary to his claim that he had prior approval for annual leave. Therefore, I find respondent was absent without leave as charged.

Work Performance and Productivity

Respondent is charged with multiple instances of failing to perform the duties imposed by his tasks and standards, failing to carry out his assignments as efficiently as possible, making false entries in agency records, failing to notify his supervisors about his inability to complete his work, failing to follow his supervisors’ orders, failing to devote his work time to official business, and being away from his work location without authorization.

In order to sanction civil service employees for misconduct, there must be some showing of fault on the employee’s part, either that he acted intentionally or negligently. Mere errors of judgment, lacking in willful intent and not so unreasonable as to be considered negligence, are not a basis for finding misconduct. Dep’t of Sanitation v. Banton, OATH Index No. 336/07, at 3 (Dec. 1, 2006). In order to sustain a finding that respondent was negligent, petitioner must show that he failed “to employ reasonable care - the care which the law’s reasonably prudent man should use under the circumstances of a particular case.” McLean v. Triboro Coach Corp., 302 N.Y. 49, 51, 96 N.E.2d 83, 83 (1950). The degree of carelessness must be more than de minimus, since minor and inconsequential errors do not rise to the level of misconduct. Banton, OATH 336/07, at 3. I find the proof sufficient to conclude that respondent failed to carry out his assigned duties and that he was often away from his desk or on the phone for non-work related reasons.

Ms. Rivera, who supervised respondent in 2006 and 2007, provided extensive testimony and documentary evidence regarding respondent’s failure to complete cases on a timely basis. When she first started working with respondent, he was fine. When she started enforcing deadlines, the atmosphere changed and respondent became argumentative and uncooperative (Tr. 84-85). Also, respondent spent too much time making personal calls or taking unauthorized breaks. Ms. Rivera was seated in the cubicle next to respondent and was able to monitor him closely (Tr. 78). As respondent’s supervisor she would assign him cases on a weekly basis and he would receive approximately 40 cases a month (Tr. 60). Generally it takes about one hour to complete a case but some cases may take up to one day. Respondent was an experienced worker and should have been able to complete 10 cases a day. Moreover, respondent’s work required little phone contact and if any was necessary, the conversation would not be long (Tr. 69-70).

Ms. Rivera testified that she had numerous supervisory conferences with respondent and a union representative about his lack of productivity. When respondent complained about problems with the computer, she arranged for him to get assistance from someone in MIS but respondent never contacted her. When respondent asked for assistance she would make an effort to help him. Sometimes respondent would go to other workers for help (Tr. 93-95).

Similarly, Ms. Richards, who supervised respondent in 2007 and 2008, testified that respondent failed to timely complete his work and was often making personal calls or was away from his desk. Mr. Richards sat in a cubicle near respondent. Despite conferences and giving respondent multiple memos, his performance did not improve (Tr. 101-03). Ms. Richards had to reassign respondent’s work to other workers who thought this was unfair (Tr. 110).

Respondent denied the charges and claimed that he was a good worker who came to work and did his job without bothering anybody. Respondent alleged that delays were usually caused by his supervisors who held his cases and did not understand how to use POS (Tr. 206-08). Respondent also denied that he would leave his desk for long periods of time and claimed that when his supervisors were looking for him he was either in the bathroom or speaking to co-workers about his cases (Tr. 221, 250-51). Moreover, respondent testified that he smokes. Ms. Rivera, a chain smoker, smokes more than he does. Ms. Rivera was exaggerating about his smoking breaks but admitted that “once or twice,” “I sneak out, I had a smoke” (Tr. 260). On cross-examination respondent admitted that he was told to tell his supervisors when he was leaving his desk but that he “didn’t think that was necessary” (Tr. 299).

September 2006 – Failure to Timely Complete Cases and Extended Absences from Desk

Ms. Johnson testified that when she became the Deputy Director at Center 17 in July 2006, she was asked to investigate the Fair Hearings Unit because it had been identified as a problem. An audit found that respondent was not meeting his case deadlines and that the cases had to be reassigned. Respondent was conferenced about his unsatisfactory work performance (Tr. 148-49). On October 3, 2006, Ms. Johnson wrote to the Office of Staff Resources requesting that respondent be brought up on disciplinary charges because the audit revealed that, despite the five-day deadline, respondent had seven cases overdue in August and two cases overdue in September. On September 15, respondent was given a memo to complete the nine cases by September 19. As of September 21, three cases remained incomplete. The cases had to be reassigned to another worker (Tr. 150-52; Pet. Ex. 31).

Ms. Rivera testified that on September 13, 2006, she gave respondent a memo regarding his unauthorized breaks. The memo stated that on September 11, respondent was not at his desk at 2:00 p.m. and that when she left at 4:30, he had not yet returned but saw him on the first floor. On September 12, respondent was seen walking on Northern Boulevard during his 3:30 break even though he is only allowed to leave the premises during his lunch hour. Ms. Rivera gave respondent a written warning that continued violations would lead to discipline (Pet. Ex. 16).

Ms. Rivera also testified that on October 2, 2006, she sent respondent a memo regarding his unauthorized extended breaks. Ms. Rivera noted that they had discussed this matter before. According to Ms. Rivera, respondent was away from his desk on the following afternoons: September 26 for 30 minutes; September 27, for one hour; September 28 for three hours and 30 minutes; and September 29 for one hour and 30 minutes (Tr. 79-80; Pet. Exs. 15, 36).

Except for general denials, respondent failed to rebut these allegations and I find petitioner’s proof to be reliable. Therefore, the charges should be sustained.

November and December 2006 – Failure to Timely Complete Cases

Ms. Rivera testified that she assigned respondent the Eldridge S. case on October 31, 2006, with a due date of November 3, 2006. Respondent failed to complete the case on time. On November 13, 2006, Ms. Rivera sent respondent an email advising that the case was still overdue and his claim that she had given him the case on November 6, 2006, was not possible since she was on vacation that day (Tr. 57-59; Pet. Ex. 7).

With regard to the Eldridge case, respondent testified that everyone was looking for the file. Ms. Rivera had the file and “then later in it popped up at my desk.” He testified that the case was already completed when he gave it to her (Tr. 246-47) but did not specify when it was completed. I credit Ms. Rivera’s testimony that respondent failed to complete the Eldridge S. case on time.

Ms. Johnson testified that respondent was assigned the Christine Q. case and was given a 270 form with instructions to re-open the case, issue missing benefits, schedule a new recertification appointment for the client, and reopen food stamps after the client came in for a face-to-face interview. The case was assigned on November 8, 2006, with a due date of November 15 (Tr. 155; Pet. Ex. 32). When Ms. Johnson reviewed the file on November 22, she discovered that information was missing which an experienced eligibility specialist should have included. She returned it to respondent and asked him to provide the additional information. Respondent claimed that there was not enough room on the 270 form to include the missing information and that he input it in POS. When Ms. Johnson checked POS there was no information in the system. Ms. Johnson advised respondent that there was nothing in POS and that he should enter the information in POS and add it to the bottom of the 270 form (Tr. 157-60). On November 28, 2006, Ms. Johnson wrote respondent a memo documenting his work on the Christine Q. case and the problems he caused (Pet. Ex. 33). When the client came to Center 17 on November 27, the case had not been completed. Respondent claimed that he did not have the file but later that day claimed he found the file. It took him four more days to complete the cases even though, according to Ms. Johnson, there was no more than two days worth of work (Tr. 160-61; Pet. Ex. 33).

Respondent testified that he started the Christine Q. case on November 13 and finished it. The case became “stale” because it sat on Ms. Rivera’s desk for a long time. The case came back to him three times due to errors. Respondent does “not do errors” he is “a circle, what we call a tide, to indicate where the error is stemming from” (Tr. 212). The person who inputs the errors does not “know what he is doing.” At another point he testified that “actually that case came back four times” and he had “other cases [he] was working on at the same time.” He “doubted” that he did anything wrong on the case and the Johnson memo is untrue (Tr. 212-14).

I credit Ms. Johnson’s testimony that respondent mishandled the Christine Q. case and failed to complete it in a timely manner. Respondent’s testimony about the case and his claim that it was not handled properly by other people was illogical and incredible.

Ms. Johnson testified that on November 27, 2006, she advised respondent that if he left his desk for more than 15 minutes without authorization he would have to put in a leave request. Respondent’s lunch hour was from 12:00 to 1:00 p.m. At 3:30 p.m. Ms. Johnson noticed that respondent was not at his desk and that he did not return until 4:30 p.m. At 4:34 p.m., Ms. Johnson sent respondent an email reiterating their prior conversation and advising him to make a leave request for 60 minutes. Ms. Johnson testified that respondent’s approved break was from 3:30 to 3:45 p.m. and that his absence for an additional 45 minutes was unauthorized (Tr. 177-78; Pet. Ex. 38). Respondent offered no evidence to rebut this proof.

Ms. Rivera submitted into evidence lists of cases which were reassigned to other workers because respondent failed to complete them in a timely manner. The lists included 11 cases reassigned on November 3, 2006, and seven cases due between December 7 and 12, 2006 (Pet. Ex. 14). Respondent was given two memoranda about the reassigned cases. Ms. Rivera reminded respondent that there was a five-day deadline and that his actions were causing hardship to co-workers and clients. Respondent was warned that continuing disregard for his work would lead to discipline (Pet. Ex. 14). Respondent claimed that these cases were never assigned to him in the first place because everyone shares the cases (Tr. 257-58). I find respondent’s claim that cases are shared by the workers and that these cases were not assigned to him to be incredible. Based on the credible and detailed statements by Ms. Rivera, the charges should be sustained.

January 9, 2007- Extended Absence from Desk

Ms. Rivera testified that on January 9, 2007, respondent did not return at 1:00 p.m. from lunch, was seen in a cafeteria at 1:30 p.m., and that he did not return to his desk until 2:00 p.m. (Tr. 82). Respondent was given a memorandum on January 12 about this conduct and was advised that his lunch hour is from 12:00 to 1:00 p.m., that he did not have approval for a two hour lunch, and that one hour would be deducted from his annual leave (Pet. Ex. 17). Respondent denied taking a two-hour lunch and claimed that this accusation is concocted (Tr. 261-62). I credit Ms. Rivera’s testimony that respondent took a two hour lunch as charged.

March 2007 – Failure to Timely Complete Cases and Extended Absences from Desk

Ms. Rivera testified that she assigned respondent the Lee N. and Lino C. cases with due dates of March 6, and 9, 2007, respectively. Respondent failed to complete them on time even though each case should have taken five minutes. On March 14, 2007, she went to respondent with instructions to complete the cases and submit them by the next morning. As of March 16 neither case had been completed (Tr. 65-67). According to a memo Ms. Rivera prepared that day, respondent had spent most of the morning on the telephone and was on the phone most of the previous day (Pet. Ex. 8).

Moreover, the memo stated that on March 2, respondent got to his desk at 10:30 a.m., sat there all day and completed no work. On March 5, he submitted one case and one “tad” (a turnaround document). On March 6, respondent submitted one case and was out sick the next two days. On March 9, respondent submitted one case and spent most of the afternoon on the telephone. On March 12, 13, 14, and 15, respondent submitted one case each day (Pet. Ex. 8).

Ms. Rivera also testified that on March 16, 2007, when respondent was supposed to be working on the Lino C. and Lee N. cases, he was on the telephone from 9:15 to 10:50 a.m. and was again on the phone at 3:50 p.m. and was still on the phone when Ms. Rivera left at 4:20 p.m. Moreover, respondent was away from his desk from 3:00 until 3:50 p.m. even though his break was from 3:00 to 3:15 p.m. (Tr. 67; Pet. Ex. 9).

Respondent testified with regard to March 2, 5, and 9, 2007, “each case has its difficulties.” If the system goes down there is a delay. Sometimes there are interruptions like conferences and meetings. There may be multiple cases to work on with different problems (Tr. 258-59). On March 16, 2007, respondent wrote a memo (Resp. Ex. B) that all his cases were completed (Tr. 249).

I credit Ms. Rivera’s testimony as corroborated by her memo that respondent failed to complete his March cases in a timely manner over respondent’s claims that he completed them on time. I did not credit his uncorroborated assertions that any delays were the result of system failure or the fault of his supervisor.

Petitioner also charged that respondent’s March 16, 2007, memo was abusive, obscene, or inappropriate. Since there is nothing in respondent’s memo which is abusive, obscene, or inappropriate, this charge should be dismissed.

Ms. Rivera testified that on March 30, 2007, the only work respondent completed was to issue a client check which should take five minutes (Tr. 70-71). Ms. Rivera memorialized this in a memorandum that day (Pet. Ex. 10). Respondent testified that it is impossible that he wasted the whole day on March 30, 2007, to work on a client check (Tr. 252). I credit Ms. Rivera’s testimony that respondent completed only one case on March 30, 2007, as charged.

April 2007 - Failure to Timely Complete Work

Ms. Rivera testified that on April 19, 2007, she returned the Josephina R. case to respondent. She instructed him to correct the file and return it by the end of the day. Respondent was on the phone most of the afternoon and failed to do the assigned case. On April 20 the file had not been completed and was returned to her on April 23 (Tr. 71-74; Pet. Exs. 11, 12). The only work that respondent completed on April 23 was the Josephina R. case and he was on the telephone all afternoon making personal calls (Tr. 75; Pet. Ex. 13).

With regard to the Josephina R. case, respondent testified that often he was not given clear instructions about what needs to be done. “Basically, they just write, you know, small sentences and leave it up to you” (Tr. 253). Respondent testified that on April 23, 2007, he had to reopen the Josephina R. case which probably took at least three hours to do but he could not remember the specifics of the case. He contended that if there was a delay, it was probably Ms. Rivera who let the case sit on her desk for a long time (Tr. 255-56).

Ms. Rivera submitted into evidence a memo to respondent dated April 26, 2007, identifying eight cases which were overdue with directions that they be completed by the next day. On April 27, Ms. Rivera wrote a memo to Ms. Johnson advising that respondent had made no attempt to work on the overdue cases. Ms. Rivera stated that respondent arrived at his desk that day at 9:57 a.m., had been away from his desk on breaks or talking on the telephone, and that he was scheduled for training in the afternoon (Pet. Ex. 14).

Respondent testified that on April 26, 2007, the delay was caused by Ms. Rivera. She was usually on the phone constantly and it was difficult to get a response from her on a case. He claimed that she had a habit of keeping cases for a long time and this is what happened here (Tr. 241-42). Respondent denied not working the morning of April 27, and contended that when he gets to work he sees what needs to be done (Tr. 242).

I credit Ms. Rivera’s testimony that respondent did not complete his cases including the Josephine R. case over respondent’s self-serving claims that Ms. Rivera would hold his cases after they were completed.

June and July 2007- Failure to Timely Complete Cases

On June 27, 2007, Ms. Richards gave respondent a memo regarding seven cases which were overdue with instructions that he complete them by close of business that day (Pet. Ex. 23). Respondent failed to do so and the cases were reassigned to other workers (Tr. 105-08). On July 2, 2007, respondent was given a memo regarding the seven reassigned cases and a warning that his poor work performance could result in discipline (Pet. Ex. 24).

On July 3, 2007, respondent submitted his daily activity log which indicated that he had completed the Henry R. case that day. However, Ms. Richards verified in POS that the case was not completed until July 5 (Tr. 121-22). On July 12, 2007, Ms. Richards gave respondent a memo about his failure to complete the Henry R. case in a timely manner and his incorrect entry on his activity log (Pet. Ex. 28).

On July 16, 2007, respondent was given three cases and told by Ms. Richards to complete them by the end of the day. Ms. Rivera testified that when he failed to do so, he was given a memo and told to complete them by the end of the next day. Again he failed to do so. On July 27, 2007, Ms. Richards gave respondent a memo about his failure to complete the three cases timely, his failure to explain his reason for his incomplete cases, and warning him that he was spending too much time making personal calls and was often away from his desk without authorization (Tr. 104; Pet. Ex. 22).

Respondent testified that on July 27, 2007, “maybe” there was “something wrong with the machine” or that he “could probably have been at hearing.” As far as he is concerned when he sends work back to his supervisor it is completed. When an ES III gets work, they’ll “just push it out” and any delays are related to the supervisor (Tr. 237-38). Respondent could not recollect any specifics about these cases but claimed if they were not finished on time the system may have been down (Tr. 239).

I did not find respondent’s claims that the delays in completing his cases were not his fault and the charges should be sustained. As with the other charges, the supervisor’s detailed and highly credible testimony must prevail over the respondent’s vague and implausible denials.

March 2008 – Failure to Timely Complete Cases

Ms. Richards testified that on March 14, 2008, respondent failed to complete three cases and that she had to reassign them. All he had to do was change the landlord’s address (Tr. 109; Pet Ex. 25). In addition, respondent had another case, the Adam A. case due on March 14. Respondent indicated on his daily activity log that the Adam A. case was completed on March 14. Ms. Rivera reviewed POS and determined that respondent did not complete the case until March 17 (Tr. 109-20; Pet Exs. 26, 27). On April 11, 2008, Ms. Richards gave respondent a memo about his failure to timely complete the March 14 cases and his incorrect entry on his activity log (Pet. Ex. 25). I credit Ms. Richard’s testimony that respondent failed to complete cases in March 2008 as charged.

FINDINGS AND CONCLUSIONS

1. Petitioner demonstrated that on June 17, 2008, respondent was discourteous to Ms. Wallace when he called her a “bitch,” and told her to “suck my dick.”

2. Petitioner demonstrated that on June 17, 2008, respondent acted in a threatening manner when he stood up and asked Ms. Demedineceli, “what are you doing here, get away from me because I am about to blow up.”

3. Petitioner demonstrated that on June 17, 2008, respondent removed a large knife from his waistband during an agency training session.

4. Petitioner failed to demonstrate that on June 17, 2008, respondent was intoxicated.

5. Petitioner demonstrated that on April 10, 2008, respondent was using the phone excessively for non-agency purposes and that he refused an order from Ms. Richards to hang up the phone. Also, he was discourteous to her when he told the other person on the telephone “there is a crazy lady here.”

6. Petitioner demonstrated that on April 10, 2008, respondent refused an order from Ms. Wallace to hang up the phone.

7. Petitioner demonstrated that on April 10, 2008, respondent was discourteous to Ms. Wallace when he threw a memo at her in which he called her and her “cohorts” “biased and nothing but low life niggers.”

8. Petitioner demonstrated that respondent was asleep at his desk on July 2, 12, and 27, 2007.

9. Petitioner demonstrated that on July 27, 2007, respondent was discourteous to Ms. Johnson when she asked him to come to Ms. Wallace’s office to discuss his sleeping and he replied, “I’m not listening to you. Ms. Wallace did not tell me anything. Why are you on this floor? I am not listening to you.”

10. Petitioner demonstrated that on June 29, 2007, respondent was intoxicated.

11. Petitioner demonstrated that on June 29, 2007, respondent was discourteous to Ms. Wallace and stated, “why are you standing there looking at me go back to your god damn office.”

12. Petitioner demonstrated that on June 14, 2007, respondent was discourteous to Ms. Johnson when he told her he was “not writing Jack” and when he twice told her, “You need to take your ass upstairs.”

13. Petitioner demonstrated that on May 3, 2007, respondent acted in a threatening manner to Ms. Rivera.

14. Petitioner demonstrated that on April 5 and 6, 2007, respondent failed to follow Ms. Johnson’s order to not speak loudly on the telephone for personal matters.

15. Petitioner failed to demonstrate that on April 6, 2007, respondent was intoxicated.

16. Petitioner demonstrated that respondent’s April 9, 2006, memo to Ms. Johnson was discourteous in that he told her to “get the lies right.”

17. Petitioner demonstrated that on March 29, 2007, respondent was hostile and threatening to Ms. Rivera.

18. Petitioner failed to demonstrate that on March 29, 2007, respondent was intoxicated.

19. Petitioner failed to demonstrate that on March 21, 2007, respondent was intoxicated at work.

20. Petitioner demonstrated that on November 24, 2006, respondent acted in a threatening manner to Ms. Cooper.

21. Petitioner demonstrated that on June 28, 2006, respondent told Ms. Rivera that Ms. McManawa was a “bitch.”

22. Petitioner demonstrated that on March 14, 2008, respondent failed to complete three cases assigned to him.

23. Petitioner demonstrated that on March 14, 2008, respondent failed to complete the Adam A. case in a timely manner and noted in his daily activity log that it was completed even though the case was incomplete.

24. Petitioner demonstrated that respondent was assigned the Lee N. and Lino C. cases with due dates of March 6, and 9, 2007, and that despite a direct order given on March 14, 2007, to complete the cases by the next day, as of March 16, 2007, the cases were still overdue.

25. Petitioner demonstrated that on March 16, 2007, respondent extended his break by 35 minutes and that he utilized the agency telephone for non-work related matters for most of the day.

26. Petitioner failed to demonstrate that respondent’s March 16, 2007, rebuttal memorandum was abusive, obscene, or inappropriate.

27. Petitioner demonstrated that on March 2, 2007, respondent got to his desk at 10:30 a.m. and completed no work that day.

28. Petitioner demonstrated that on March 5, 2007, respondent submitted only one case and one “tad.”

29. Petitioner demonstrated that between March 9, and 15, 2007, respondent submitted only one case each day.

30. Petitioner demonstrated that on March 30, 2007, respondent completed only one assignment.

31. Petitioner demonstrated that on July 17, 2007, respondent failed to complete three cases as directed and failed to explain why he did not do so.

32. Petitioner demonstrated that on July 3, 2007, respondent failed to complete the Henry R. case in a timely manner and noted in his daily activity log that it was completed even though the case was incomplete.

33. Petitioner demonstrated that on June 27, 2007, respondent failed to complete seven overdue cases as directed and failed to explain why he did not do so.

34. Petitioner demonstrated that on April 19, 2007, respondent failed to complete the Josefina R. case as directed.

35. Petitioner demonstrated that on April 23, 2007, respondent completed only one case and was on the telephone for personal reasons all afternoon.

36. Petitioner demonstrated that on April 26, 2007, respondent had seven cases overdue and failed to follow his supervisor’s instructions to complete them by the following day.

37. Petitioner demonstrated that in January 2007 respondent had seven cases overdue from December 2006 which had to be reassigned to other workers.

38. Petitioner demonstrated that respondent was assigned the Eldridge S. case on October 31, 2006, with a due date of November 3, 2006, and that as of November 13, 2006, the case was still overdue.

39. Petitioner demonstrated that respondent failed to timely and properly process the Christine Q. case in November 2006.

40. Petitioner demonstrated that on November 3, 2006, 11 of respondent’s cases were overdue and had to be reassigned.

41. Petitioner demonstrated that in August and September 2006 respondent failed to complete nine cases in a timely manner.

42. Petitioner demonstrated that on May 30, and 31, 2007, respondent was absent without leave.

43. Petitioner demonstrated that on May 25, 2007, respondent left four hours early without approval.

44. Petitioner demonstrated that on January 9, 2007, respondent took a two hour lunch without authorization.

45. Petitioner demonstrated that on November 27, 2006, respondent extended his break by 45 minutes without authorization.

46. Petitioner demonstrated that on September 11, 2006, respondent was away from his desk without authorization for 30 minutes.

47. Petitioner demonstrated that on September 12, 2006, respondent left 45 minutes early without approval.

48. Petitioner demonstrated that on September 20, 2006, respondent left 30 minutes early without approval.

49. Petitioner demonstrated that on September 26, 2006, respondent took a 30 minute unauthorized break.

50. Petitioner demonstrated that on September 27, 2006, respondent took a one hour unauthorized break.

51. Petitioner demonstrated that on September 28, 2006, respondent took a 30 minute unauthorized break.

52. Petitioner demonstrated that on September 29, 2006, respondent took a 30 minute unauthorized break.

53. Petitioner demonstrated that on October 4, 2006, respondent left 60 minutes early without approval.

54. Petitioner demonstrated that on November 24, 2006, respondent took a 50 minute unauthorized break.

The following charges should be dismissed because no proof was offered:

55. Petitioner failed to demonstrate that on June 28, 2006, respondent stated “she’s a bitch” when Ms. McManawa walked by respondent’s desk.

56. Petitioner failed to demonstrate that on June 28, 2006, respondent spoke to co-workers about Ms. McManawa and said, “I know that bitch ain’t talking to me.”

57. Petitioner failed to demonstrate that on June 28, 2006, respondent failed to follow Ms. Rivera’s order to stop cursing.

58. Petitioner failed to demonstrate that on May 4, 2007, respondent acted in a threatening manner to Ms. Campbell.

59. Petitioner failed to demonstrate that on March 15, 2007, respondent acted in a threatening manner to Ms. Thomas.

60. Petitioner failed to demonstrate that on June 13, 2006, respondent was absent from his desk without authorization for two hours and 15 minutes.

61. Petitioner failed to demonstrate that on June 27, 2007, respondent utilized the agency telephone for non-work related matters for most of the day.

62. Petitioner failed to demonstrate that on March 14, 2008, respondent was observed several times in another worker’s cubicle without authorization.

RECOMMENDATION

Upon making these findings, I obtained and reviewed an abstract of respondent’s work history for purposes of recommending an appropriate penalty. Respondent has been employed by the Administration for 17 years.

Respondent has a lengthy disciplinary history. On December 16, 1998, respondent accepted a penalty of a one-day fine for leaving his work location without authorization on three occasions. On March 19, 2001, respondent accepted a 30-day pay fine with 15 days held in abeyance for a period of one year for cursing, insubordination, failure to timely complete cases, and sleeping on duty. On June 18, 2002, respondent accepted a five-day pay fine and a 30-day suspension which was held in abeyance for one year for being absent from his work location without authorization for extended periods 21 times and for being late on 54 occasions for a total of 602 minutes. On April 5, 2005, respondent accepted a 43-day penalty with 30 days held in abeyance for insubordination, cursing, threatening a supervisor, failing to perform his duties, propositioning a client, being absent from his work location without authorization on six occasions, and fraudulently swiping his time out of the building. On March 21, 2006, respondent agreed to a 60-day penalty with 30 days held in abeyance for one year for sleeping at his desk, insubordination, and being absent from his work location without authorization on nine occasions. According to the Department Advocate the 2005 and 2006 abeyance penalties were triggered because respondent engaged in similar misconduct within one-year.

Respondent has been found to have engaged in multiple acts of misconduct over a two year period which include threatening behavior, use of obscene, inappropriate and discriminatory language, intoxication at work, sleeping on the job, disappearing from his work station for long periods of time, leaving early and being AWOL, and failing to perform the basic functions of his job. I agree with the Department Advocate’s assessment that termination is more than warranted in this case.

Despite having been given multiple opportunities to reform his reckless ways, respondent has proven he is incapable of obeying the Administration’s rules and, in fact, appears to have openly defied them. Indeed, respondent admitted that while the hearing was pending, he was AWOL for two days (Tr. 322-23). Termination is certainly in accord with the relevant precedent regarding progressive discipline of employees who repeatedly violate agency rules. Dep’t of Correction v. Belgrave, OATH Index No. 1662/05, at 14 (Jan. 18, 2006), aff’d, NYC Civ. Serv. Comm’n Item No. CD06-115-SA (Nov. 8, 2006); Dep’t of Sanitation v. Feldmuth, OATH Index No. 1201/04, at 4 (Aug. 4, 2004), aff’d NYC Civ. Serv. Comm’n Item No. CD05-37-SA (Aug. 11, 2005); Dep’t of Sanitation v. Parrella, OATH Index No. 1252/02, at 10-11 (June 6, 2002); Dep’t of Sanitation v. Wilson, OATH Index No. 374/00 (Mar. 7, 2000), aff’d, NYC Civ. Serv. Comm’n Item No. CD00-99-SA (Nov. 15, 2000); see also Pell v. Bd. of Education, 34 N.Y.2d 222, 239, 356 N.Y.S.2d 833, 847 (1974).

In consideration of respondent’s proven misconduct, his prior disciplinary record, as well as the absence of any compelling mitigation evidence, I recommend termination of respondent’s employment with the Administration.

Alessandra F. Zorgniotti

Administrative Law Judge

January 9, 2009

SUBMITTED TO:

ROBERT DOAR

Commissioner

APPEARANCES:

JESSICA LEVIE, ESQ.

RAVEN RYAN, ESQ.

Attorneys for Petitioner

MARTIN DRUYAN, ESQ.

Attorney for Respondent

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[1] The 47 pages of pleadings consist of seven sets of charges with multiple specifications. Two of the charges allege the same misconduct and most of the charges are written in duplicative fashion. Disciplinary pleadings should be designed to simply and concisely place an employee on notice of what he has allegedly done wrong. Cross-referencing paragraphs and repeating specifications under multiple charges leads to confusing and overly verbose pleadings. The better practice is to provide a single factual allegation with citation to the agency rules alleged to have been violated. Admin. for Children’s Services v. Springer, OATH Index No. 665/05, at 1 n.1, (Jan. 5, 2006), modified on penalty, Comm’r Dec. (Feb. 3, 2006), modified on penalty, NYC Civ. Serv. Comm’n Item No. CD 07-17-0 (Feb. 7, 2007). Duplicative charges will be treated as one for purposes of penalty. Dep’t of Transportation v. Mendez, OATH Index No. 384/05 at 4 n.2 (Jan. 19, 2005).

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