Dep't of Correction v



Dep’t of Sanitation v. Banton

OATH Index No. 336/07 (Dec. 1, 2006)

Sanitation supervisor charged with instructing two sanitation workers to collect trash from his home and also charged with various failures to perform supervisory duties. ALJ sustains charges concerning trash collection and failure to account for EZ passes and dismisses the other eight charges. Penalty of 35 days’ suspension recommended.

______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF SANITATION

Petitioner

- against -

DODRICK BANTON

Respondent

______________________________________________________

REPORT AND RECOMMENDATION

ALESSANDRA F. ZORGNIOTTI, Administrative Law Judge

This employee disciplinary proceeding was referred by petitioner, the Department of Sanitation, pursuant to section 16-106 of the Administrative Code. Respondent Dodrick Banton, a sanitation supervisor, is charged with instructing two sanitation workers to collect a mattress from his home. In addition, respondent is charged with failure to perform his supervisory duties with regard to a variety of assignments including: failing to follow an order to chain nine trucks; failing to record the amount of fuel and lubricants consumed during his shift; failing to safeguard a radio; failing to certify that two sanitation workers were present; failing to account for EZ passes; failing to inspect the garage for pornographic materials; failing to file an unusual incident report; failing to print the list of allocations performed during his shift; and failing to sign two dump receipts.

A hearing was conducted before me on October 13, 20, and 27, 2006. Petitioner called eleven witnesses. Respondent called five witnesses, testified himself and denied the misconduct. I find the charge that respondent instructed a sanitation worker to collect a mattress from his home and the charge that respondent failed to account for EZ passes should be sustained. The other eight charges that respondent failed to perform his supervisory duties should be dismissed because petitioner did not show that the alleged failures constitute misconduct. I recommend that respondent be suspended for 35 days.

ANALYSIS

Respondent is a supervisor/garage foreman at Brooklyn East 14 Garage assigned to the 4:00 p.m. to 12:00 a.m. shift. As part of his duties, respondent is responsible for supervising sanitation workers, overseeing the garage and equipment, and preparing routine paperwork.

The most serious charge concerns the allegation that on April 21, 2006, respondent instructed Sanitation Workers (“SW”) George LeSaine and Frank Respoli to service his home for collection, which was not on their assigned route (ALJ Ex. 7). This charge is sustained.

SW Respoli testified that prior to going out on his collection route with SW LeSaine, respondent spoke to him about picking up a mattress which had been left on the street in front of respondent’s house. Respondent’s home is not on the designated route (Pet. Ex. 15). SW Respoli, a probationary employee, was unsure what to do and went to his supervisor, Alfred Santarpia, for guidance (Tr. 114-16). Supervisors Santarpia and Vernon Sissons testified that when advised about respondent’s request, they both told SW Respoli not to go to respondent’s house. Supervisor Sissons also told SW Respoli that if he did the pick-up, he would be given a written complaint (Tr. 142-43, 152). Respondent then asked Supervisor Santarpia if he could do him this favor and was told that the pick-up was not possible (Tr. 152-53). SWs Respoli and LeSaine did not pick up the mattress.

Chief Joseph Montgomery and Superintendent James Proscia each testified as to the improper nature of respondent’s request and respondent admitted that it would be inappropriate for a supervisor to order a subordinate worker to make a personal pick-up at his residence (Tr. 108-09, 166-67, 234). I did not find credible respondent’s testimony that the issue of the mattress came up in a casual conversation with SW Respoli or that the sanitation worker volunteered to deviate from his route to pick it up (Tr. 232-33). Immediately following his conversation with respondent, SW Respoli went to his supervisor to verify whether such a pick-up was proper. Moreover, respondent, upon learning that SW Respoli could not go to his house, asked Supervisor Santarpia to authorize the pick-up. I also reject respondent’s claim that since his conversation with SW Respoli was not framed as an order, it was not misconduct. Regardless whether the word “order” was used, respondent, a supervisor, made it known to a subordinate employee that he wanted something done. Such a request would reasonably be construed by an employee as an order. Accordingly, I find that respondent ordered SW Respoli to deviate from his assigned route to pick up a mattress at respondent’s house in violation Department rules. To the extent petitioner charges that respondent also made this request to SW LeSaine, this portion of the charge should be dismissed because the record contains no proof that respondent spoke to SW LeSaine about this matter (Tr. 128, 218-19).

The remaining charges concern allegations that respondent failed to perform his duties with regard to a variety of assignments. 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 (see Reisig v. Kirby, 62 Misc.2d 632, 635, 309 N.Y.S.2d 55, 58 (Sup. Ct. Suffolk Co. 1968), aff’d, 31 A.D.2d 1008, 299 N.Y.S.2d 398 (2d Dep’t 1969)), or negligently (see McGinigle v. Town of Greenburgh, 48 N.Y.2d 949, 951, 425 N.Y.S.2d 61, 62 (1979)). Mere errors of judgment, lacking in willful intent and not so unreasonable as to be considered negligence, are not a basis for finding misconduct. See Ryan v. New York State Liquor Auth., 273 A.D. 576, 79 N.Y.S.2d 827, 832 (3d Dep’t 1948); Dep’t of Correction v. Messina, OATH Index No. 738/92 (July 9, 1992). In order to sustain a finding that respondent was negligent, petitioner must show that respondent 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 (1950). The degree of carelessness must be more than de minimus, since minor and inconsequential errors do not rise to the level of misconduct. See Dep’t of Sanitation v. Williams, OATH Index No. 386/03, at 19 (May 29, 2003); Dep’t of Sanitation v. Frank, OATH Index No. 465/03, at 8 (Feb. 28, 2003).

Failure to Chain Trucks (116529)

Respondent is charged with failing to follow orders to place chains on nine trucks on February 23, 2005 (ALJ Ex. 3). At 2:27 p.m., a teletype message was sent from headquarters notifying the garage that trucks had to be outfitted with plows and chains until “Plan B” was achieved, that updates be made in the computer, and that the task be completed by 8:00 a.m. the following day (Pet. Ex. 7). Respondent was responsible for supervising the placement of plows and chains on the nine trucks for the up-coming snow removal. Superintendent Nicolas Rossini testified that it generally takes two men approximately 20 to 30 minutes to install a plow and 20 minutes to chain the wheels of a truck (Tr. 73-74, 82-83).

That day, respondent was working from 4:00 p.m. to 12:00 a.m. and worked an extra four hours because of snow operations (Tr. 78; 286). At the garage, respondent had the assistance of SW John Miley working the same shift with four hours of overtime and SW Floyd McCoy working 12:00 to 8:00 a.m. At 4:00 p.m., respondent asked Superintendent Charles Casillo for additional men and was told that there was no one available but that the order to install the plows and chains did not need to be completed until 8:00 a.m. the next day (Tr. 287).

Respondent testified that he decided to begin by attaching the plows since this job had to be completed by two men and to finish with chaining the trucks, which could be done by one man. By midnight the required nine trucks had been outfitted with plows and respondent updated the computer (Tr. 287-89). At 12:15 a.m., respondent called Superintendent Rossini and advised him that nine trucks had plows. Superintendent Rossini stated that the teletype order required that the trucks have both plows and chains. Respondent stated that he would do the best that he could (Tr. 79; 290). Respondent then ordered SW McCoy to chain the trucks. When he left at the end of the shift, respondent placed a notation in the shift-to-shift book that: “4x12 shift put plows on 9 trucks on O/T. Did not have time to put chains on trucks. Supervisor Banton told SW McCoy to put chains on trucks that was [sic] plowed. Also informed Supv. Sissons that SW McCoy was told to put chains on” (Resp. Ex. P). After respondent left, Supervisor Sissons reversed respondent’s order and told SW McCoy to stop chaining the trucks (Tr. 179, 289). SW McCoy testified that when he received the order, he had chained two or three trucks. Respondent gave SW McCoy a complaint for failing to follow his order which was never pursued by management (Tr. 202-09; Resp. Ex. D).

This tribunal has stated that a respondent can not be sanctioned simply by a showing, without more, that a task was not completed. See Dep’t of Sanitation v. Bryant, OATH Index No. 999/04 (Apr. 14, 2005); Dep’t of Sanitation v. Richards, OATH Index No. 1579/01 (Nov. 16, 2001). The record shows that respondent took steps to complete the teletype order. Respondent worked through his 12-hour shift with two men, up-dated the computer as required, and spoke to his superiors about the job. There was no evidence that respondent’s judgment to begin by placing plows on the trucks followed by chaining them was improper or that he should have done something else to get this order completed prior to leaving at 4:00 a.m. Moreover, nothing in the record indicates why Supervisor Sissons reversed respondent’s order that SW McCoy chain the trucks. There is no evidence that but for Supervisor Sissons’s order, SW McCoy, a 13-year veteran, could not have completed chaining the remaining trucks by 8:00 a.m., as required by the teletype order. Since petitioner failed to show that respondent acted willfully or negligently, the charge that he did not chain nine trucks should be dismissed.

Failure to Enter Data in Gas Book (118135)

Respondent is charged with failing to enter in the gas book the fuel and lubricants that were consumed during his shift on June 13, 2005 (ALJ Ex. 8). The gas book is used to keep track of how much fuel and oil is consumed in the garage (Tr. 180-81; Pet. Ex. 24).

Respondent testified that he could not complete the gas book at the end of his shift due to a particular time consuming task with a high priority. Respondent testified that Superintendent Proscia asked him to call five garages to get the names, list numbers, and appointment dates of 19 sanitation workers who were coming to the garage the next day. According to respondent, this task is usually handled by the 12:00 to 8:00 shift supervisor and it was difficult to get the information between 4:00 p.m. and 12:00 a.m. because the garage personnel that he called were busy performing their regular duties and were not responsive to his information request (Tr. 269-71). In the shift-to-shift book, respondent asked that the next supervisor complete the gas book because he did not have time based on these additional duties (Resp. Ex. H).

I find that respondent’s failure to complete the gas book does not constitute misconduct because he was given a priority assignment which needed to be completed for the next day and he referred this particular task to the supervisor on the next shift. Petitioner did not offer proof that respondent’s failure to complete the gas book by the end of his shift created adverse consequences for garage management. Moreover, petitioner did not rebut respondent’s testimony that other supervisors who failed to complete the gas book were not disciplined and that it was proper for him to delegate this task to someone else (Tr. 284-86). Nor is this a situation where respondent was trying to hide that he had not completed one of his required duties. Accordingly, this charge should be dismissed.

Failure to Safe Guard Radio (123107)

Respondent is charged with failing to safeguard a radio on February 15, 2006 (ALJ Ex. 2). Portable radios are distributed to sanitation workers and supervisors for use in the field. It is the responsibility of the garage foreman to account for radios at the start and end of each shift and to note in the radio log when one is out and when it has been returned (Pet. Ex. 3). Radios are valued at $1,500. At Brooklyn East 14 Garage, radios are kept in a locked cabinet inside the garage office (Tr. 19-22).

Respondent testified that on February 15, 2006, he worked an 8:00 p.m. to 8:00 a.m. shift because it was snowing. When he arrived, he inspected the radios and all were accounted for (Tr. 254-55). Supervisor Santarpia testified that when he came in for his 7:00 a.m. shift, he saw radio 2298 in the cabinet (Tr. 159-60; ALJ Ex. 2). When respondent conducted his end-of-shift inspection at 7:50 a.m., he saw that radio 2298 was missing and that it was not signed out to anyone. Respondent immediately notified Superintendent Proscia and they searched the entire garage with the help of Supervisor Santarpia. Respondent also called workers in the field but no one could locate the radio. Respondent stayed an extra hour to look for the radio and completed the necessary paperwork, including an unusual incident report, a notation in the telephone log, and a police report (Resp. Exs. L & M). The radio was never found (Tr. 254-58). Petitioner claims that misconduct was established based upon the loss of the radio and respondent’s duty to safeguard the equipment (Tr. 22, 33, 175).

This tribunal has held that where the circumstances surrounding the loss of equipment do not evince a showing of carelessness or recklessness on the part of the respondent and respondent cooperated with the search and followed instructions on how to proceed, charges of misconduct should not be sustained. See Dep’t of Sanitation v. Matthews, OATH Index No. 686/03 (Mar. 14, 2003); Police Dep’t v. O’Reilly, OATH Index No. 296/89 (June 21, 1989); cf. Transit Auth. v. Canty, OATH Index No. 336/92 (Jan. 7, 1992), aff’d, 216 A.D.2d 463, 628 N.Y.S.2d 754 (2d Dep’t 1995) (bullet-proof vest and radio left in lunchroom for long period of time and was lost, constituted misconduct).

Here, the circumstances do not support a finding that respondent engaged in careless or reckless behavior. First, this was a snow day. Respondent testified that he was focused on getting trucks ready and dispatched for snow removal (Tr. 254). Indeed, Superintendent John Lavin acknowledged that at the time the radio went missing, the garage would have been busy with shifts changing and trucks coming in and out for snow removal (Tr. 27-28). Second, there was no history, according to the evidence before me, of thefts within the garage office. Instead the evidence showed that even though the radios are kept in a cabinet with a lock, they are not really secure. The keys to the cabinet are kept in an open box above the cabinet and the key is on a large metal rod which is about six inches long (Resp. Ex. G). Respondent testified that the key ring is designed to prevent supervisors from putting the key in their pocket and walking away. This is especially true when there is a snow storm and a supervisor may be in another area of the garage when another supervisor needs to get into the cabinet (Tr. 259). Both Supervisors Santarpia and Sissons testified that other supervisors need to have access to the cabinet and that it is not always practical for a foreman to stay in the office or to keep the keys with him when he leaves (Tr. 160-61, 145, 149). Here, the radio went missing between 7:00 and 7:50 a.m. during a hectic time in the garage. Respondent immediately reported the radio missing and summoned Superintendent Proscia. Respondent stayed an hour past his shift to search for the radio, he completed the required reports, and reported the incident to the local police precinct. These are not actions that would be consistent with reckless or careless behavior. Accordingly, I conclude that this charge should be dismissed.

Failure to Certify the Sanitation Workers at Roll Call (123111)

Respondent is charged with failing to sign the attendance sheet on March 2, 2006, certifying that two sanitation workers were present at roll call (ALJ Ex. 9). Under General Order 2003-06, the shift supervisor is responsible for signing time records (Pet. Ex. 20). It is undisputed that respondent did not sign the attendance sheet showing that two sanitation workers had signed in and out for their shift (Pet. Ex. 18).

Respondent testified that on that day he was focused on equipping trucks with plows and chains for a snow storm. He stated that typically Night District Supervisor Acosta signs the payroll at the end of the shift and that Acosta probably did not sign it because he was working an 8:00 p.m. to 4:00 a.m. shift due to the snow. Respondent stated that he was unaware that Supervisor Acosta had not signed the payroll and that this unsigned form “just slipped by” (Tr. 251-54).

When asked why respondent received a compliant, Superintendent Casillo testified that he had no discretion because this matter involved payroll (Tr. 123). This tribunal has held that strict liability is not a basis for finding misconduct in a disciplinary proceeding. Dep’t of Sanitation v. Guzman, OATH Index No. 1498/05, at 4 (June 13, 2005). Here, respondent testified candidly that his failure to sign the attendance sheet was an oversight. Moreover, there was no evidence that this single omission resulted in any payroll errors or other adverse consequences. Cf. Dep’t Sanitation v. Rizzo, OATH Index, 1423/06, at 3-4 (Sept. 26, 2006) (supervisor’s repeated time book errors were significant and resulted in complaints and payroll adjustments). Since respondent’s failure to certify that two sanitation workers had signed in and out for their shift was minor and inconsequential, this charge should be dismissed.

Failure to Verify EZ Passes (123113)

Respondent is charged with failing on March 25, 2006, to verify that all EZ passes issued at the start of his tour had been returned (ALJ Ex. 10). At the start of each shift, the supervisor verifies that all EZ passes are present and accounted for (Pet. Ex. 13). EZ passes are issued to trucks traveling to Staten Island and New Jersey by the supervisor on duty. They are valued at $175 each and are kept locked in the same cabinet as the radios. When an EZ pass is issued, the supervisor makes a notation in the EZ pass log entering the pass number, the truck number, and the name of the person to whom the pass was issued (Pet. Ex. 17). At the end of each shift, the supervisor must account that all passes have been returned and then sign the log.

Supervisor Sissons testified that when he began his 12:00 to 8:00 a.m. shift on March 27, 2006, he checked the EZ pass log and saw that seven passes were not signed in. When he looked in the cabinet, he found six of the seven passes. The pass which had been issued to truck 591 was missing. He went to truck 591 and found the EZ pass attached to windshield. Supervisor Sissons made a notation in the EZ pass log and verified that the seven EZ passes had been returned (Tr. 147; Pet. Ex. 17).

Even though respondent made a notation in the daily blotter that all EZ passes had been returned, I did not find credible respondent’s testimony that he accounted for them as required (Tr. 244; Resp. Ex. F). Respondent admitted that he “just didn’t get around to completing the EZ pass log” (Tr. 246). No matter how busy he was, it would have taken but a moment for respondent to sign the log if he had in fact verified that all EZ passes had been returned. There was no basis to doubt Supervisor Sissons’s testimony that he found an EZ pass the following day in truck 591. Finally, I did not find credible SW Jason Pazo’s testimony that he returned the EZ pass from this truck at the end of his tour given that an admission that he failed to do so would probably result in a complaint (Tr. 216-18). Based on the evidence, it seems more likely than not that respondent failed at the end of his tour to check the total number of EZ passes in the cabinet and to verify that they were all returned. Accordingly, this charge should be sustained.

Failure to Find Pornographic Tapes (123118)

Respondent was charged with failing to thoroughly inspect the garage at the end of his shift after pornographic tapes were found in the lunchroom on May 1, 2006 (ALJ Ex. 6). As part of his duties, respondent is required to inspect the garage at the beginning and end of his shift and to note anything unusual in the daily blotter (Pet. Ex. 13). Pornographic materials are not permitted on Department property (Pet. Ex. 12). Chief Montgomery testified that when pornographic materials are found in the garage, it is customary to hold the supervisor from the prior shift responsible (Tr. 99-100).

Supervisor Sissons testified that when he arrived for his 12:00 to 8:00 a.m. shift at 11:35 p.m., he was told to check whether the lunchroom was clean because there was a blood drive the next morning. When he entered the lunchroom at 11:55 p.m., he found two pornographic tapes next to the television. At 12:25 a.m., he wrote a notation in the daily blotter and called the borough office at 12:45 a.m. (Tr. 134-37; Pet Ex. 14, Resp. Ex. C).

Respondent testified that he conducted his end-of-shift inspection, including the lunchroom, and did not see any pornographic materials. Respondent’s testimony is corroborated by his notation in the daily blotter at 11:40 p.m. which states that “at the end of shift garage area was clean and secure . . .” (Pet. Ex. 14). Respondent testified that sanitation workers from the 12:00 to 8:00 a.m. shift usually begin arriving at 11:30 p.m., and sit in the lunchroom until the start of their tour. When respondent left the garage at 12:00 a.m., Supervisor Vernon Sissons did not advise him that he had found pornographic tapes (Tr. 225-27).

I found respondent’s testimony that he inspected the lunchroom prior to 11:40 p.m. credible. Even though Supervisor Sissons was adamant that he found the tapes at 11:55 p.m., I question whether the tapes were in fact found on respondent’s shift based on Sissons’s notation in the daily blotter at 12:25 a.m. and his call to the borough command at 12:45 a.m. Moreover, it seems reasonable that if a supervisor found pornographic tapes on another supervisor’s tour he would let the out-going supervisor know before he left for the night. Regardless whether the tapes were found before or after midnight, both Supervisor Sissons and Chief Montgomery agreed that it was possible that workers on the 12:00 to 8:00 a.m. shift could have brought the pornographic materials into the lunchroom (Tr. 104, 138).

Here, there is no reasonable basis to impose a strict liability standard and hold respondent responsible for the presence of pornographic materials brought in by other people because respondent was the supervisor on the prior shift. Since petitioner has not demonstrated that respondent failed to perform his inspection as required and because it is possible that the pornographic materials were placed in the lunchroom after respondent inspected the area, this charge should be dismissed.

Failure to File Unusual Incident Report (128271)

Respondent is charged with failing to file an unusual incident report on June 7, 2006, concerning a truck that was missing export sticker (ALJ Ex. 4). An export sticker allows a sanitation truck to dump in New Jersey. Each truck is issued a sticker with a serial number which is placed inside the truck.

According to Superintendent Vincent Palazzola, all export stickers in the garage were replaced in the beginning of June 2006 because they were expiring at the end of the month (Tr. 56-57). Supervisor James Murray testified that he is responsible for placing export stickers in the trucks. When he arrived on June 7, at 8:00 a.m., Supervisor Murray saw that one of the trucks was missing an export sticker. He notified the borough command and filed an unusual incident report (Pet. Ex. 10). When he checked the shift-to-shift book, he saw that respondent had made a notation about the missing sticker and that he had notified the borough command (Tr. 43-44; Pet. Ex. 11). Both Supervisor Murray and Superintendent Palazzola testified that when an export sticker is missing, the supervisor should also file an unusual incident report (Tr. 42, 53-55). An unusual incident is defined as something that is “out of the ordinary” and includes thefts and vandalism (Pet. Ex. 9). Supervisor Murray testified that the truck in question was “slow” and there was speculation that the sticker had been deliberately removed so that the truck could not be driven to New Jersey (Tr. 50-51).

Respondent testified that prior to this incident, on May 20, 2006, he made a notation in the shift-to-shift book to Supervisor Murray that the export sticker for truck 25CF272 was missing (Tr. 262; Pet Ex. B). Respondent testified that he was not told that a new sticker was placed on truck 25CF272 and that when he noticed that the sticker for the truck was still missing on June 7, 2006, he notified Superintendent Casillo who gave him permission to dump the truck in Long Island City. Respondent notified the borough command and made a notation in the shift-to-shift book that the sticker was missing (Tr. 262-65; Pet. Ex. 11). Superintendent Casillo testified that he was on-duty when respondent discovered that the export sticker for truck 25CF272 was missing, and that they had a conversation about it. This same truck had a sticker missing in May and Superintendent Casillo did not know whether it was the same sticker which was still missing or a new one (Tr. 65; 67).

“DM 2005-2161,” entitled Equipment and Facility Inspection, requires that a supervisor inspect all vehicles at the start of each tour to make sure, among other things, that they have export stickers. The directive provides that: “Each supervisor will enter into the blotter when each inspection is completed. Any exceptions will be noted at that time. Any missing or damaged items will be reported through proper channels” (Resp. Ex. I). Here, respondent followed these procedures by notifying the borough command and by making a notation in the shift-to-shift book that the export sticker for truck 25CF272 was missing. Nothing in this directive requires that respondent also file an unusual incident report. While it may have been proper to fill-out an unusual incident report because this may have been a case of vandalism or theft, there was no proof offered that respondent had been counseled or warned on May 20, 2006, when he initially discovered the missing sticker, that it was necessary to also complete an unusual incident report. Moreover, Superintendent Casillo was advised that the sticker was missing and he did not direct respondent to write an unusual incident report. Finally, there was no evidence presented that management suffered any adverse consequences as a result of respondent’s omission or that respondent was seeking to cover-up a problem on his tour. Accordingly, respondent’s failure to complete an unusual incident report does not constitute misconduct.

Failure to Print-out “32” (127222)

Respondent is charged with failing to print out a “32” showing truck allocations during his shift on June 21, 2006 (ALJ Ex. 1). A “32” is a triplicate report that is printed out daily and the top copy is left folded in the material-outbook for the superintendent who arrives the next morning. The “32” report shows dump information for each truck. Superintendent Dominick Pensabene testified that he received a call on the morning of June 22, advising him that respondent had not placed the “32” report in the material-outbook (Tr. 12).

Respondent testified credibly that he printed the “32” report at the end of his shift and inserted the top copy in the material-outbook (Tr. 238-40). At trial, respondent produced one of the duplicate copies of the “32” report, which shows that it was printed at 23:17:02 on June 21, 2005 (Resp. Ex. A). In addition, Supervisor John Hector testified that he saw respondent print and place the “32” report in the book (Tr. 198-200). The fact that the “32” report was not in the material-outbook when Superintendent Pensabene examined the book at 5:30 a.m., does not mean respondent failed to print it out and place it there the night before. Superintendent Pensabene conceded that anyone on the 12:00 to 8:00 a.m. shift had access to the “32” report (Tr. 13). Moreover, respondent was not under any obligation to staple the report into the book because the order to do so was given after this incident (Tr. 16; Pet. Ex. 1). Accordingly, the charge that respondent failed to print out the “32” report should be dismissed.

Failure to Sign Dump Receipts (127225)

Respondent is charged with failing to sign two dump receipts after allocating two trucks on July 6, 2006 (ALJ Ex. 5). Dump receipts are provided by private dumps and show that the truck dumped waste at that facility. Superintendent Proscia testified that when a truck returns to the garage, the supervisor on duty “allocates” the truck and records the dump information in the computer and signs the receipts. The supervisor who allocates the truck is responsible for processing the paperwork for the dump receipts. When Superintendent Proscia reviewed dump receipts on the morning of July 7, 2006, he saw that respondent had failed to sign two of them (Tr. 187-89).

Respondent testified that he was authorized by Superintendent Casillo to be absent from the garage on July 6 from 7:30 to 9:00 p.m. to attend the wake of a sanitation worker (Tr. 274). The daily blotter confirms that respondent was signed out of the garage during this period (Resp. Ex. O). Respondent testified that he was not present when the two trucks returned and that he did not allocate them (Tr. 279). According to the dump receipts, the two trucks left the dump at 6:51 and 6:55 p.m. (Pet. Ex. 22). Superintendent Proscia testified that it takes about an hour to drive from the dump to the garage (Tr. 189-91) making it more likely than not that the trucks returned to the garage at 8:00 p.m. while respondent was on an authorized absence. Petitioner was unable to locate the “DS350” cards showing when the trucks actually returned to the garage and who allocated them (Tr. 280-84). Although Superintendent Proscia testified that no one substitutes for a garage foreman in their absence, respondent testified that, while he was at the wake from 7:30 to 9:00 p.m., Supervisor Acosta filled in for him (Tr. 278). According to the daily blotter, Supervisor Acosta was on duty that night (Resp. Ex. O).

The evidence shows that it is more likely than not that the trucks were allocated by someone else during respondent’s absence and that the person who did so did not sign the dump receipts. Superintendent Proscia could not adequately explain the negative consequences of a supervisor’s failure to sign a dump receipt for a truck which has been allocated and logged into the computer. In any event, this omission was partially remedied the next morning by the Superintendent’s own signature (Tr. 187-88; Pet. Ex. 22). Since petitioner failed to demonstrate that respondent was obliged to sign dump receipts for trucks that were returned and allocated by someone else during his authorized absence, this charge should be dismissed.

FINDINGS AND CONCLUSIONS

1. Charge No. 123119 should be sustained in that on February 4, 2006, respondent requested that a sanitation worker deviate from his assigned route to pick-up a mattress in front of respondent’s home.

2. Charge No. 116529 should be dismissed in that petitioner failed to meet its burden of proving that respondent failed to follow orders to place chains on nine trucks on February 23, 2005.

3. Charge No. 1118135 should be dismissed in that petitioner failed to meet its burden of proving that respondent’s failure on June 13, 2005, to enter in the gas book the fuel and lubricants consumed during his shift constituted misconduct.

4. Charge No. 123107 should be dismissed in that petitioner failed to meet its burden of proving that respondent’s failure on February 15, 2006, to safeguard radios constituted misconduct.

5. Charge No. 123111 should be dismissed in that petitioner failed to meet its burden of proving that respondent’s failure on March 2, 2006, to certify that sanitation workers were present at roll call constituted misconduct.

6. Charge No. 123113 should be sustained in that on March 25, 2006, respondent failed to account that all EZ passes issued at the start of his tour had been returned.

7. Charge No. 123118 should be dismissed in that petitioner failed to meet its burden of proving that on May 1, 2006, respondent failed to thoroughly inspect the garage at the end of his shift and that this failure resulted in the subsequent supervisor finding pornographic tapes in the lunchroom.

8. Charge No. 128271 should be dismissed in that petitioner failed to meet its burden of proving that respondent’s failure on June 7, 2006, to file an unusual incident report concerning a missing an export sticker constituted misconduct.

9. Charge No. 127222 should be dismissed in that petitioner failed to meet its burden of proving that on June 21, 2006, respondent failed to print-out a “32” report showing the truck allocations during his shift.

10. Charge No. 127225 should be dismissed in that petitioner failed to meet its burden of proving that respondent’s failure on July 6, 2005, to sign two dump receipts constituted misconduct.

RECOMMENDATION

Respondent was appointed to the position of sanitation worker on April 1, 1987 and was promoted to sanitation supervisor on July 8, 1996. Respondent has an extensive disciplinary record.

In 1998, respondent accepted a three-day suspension in settlement of an allegation that he engaged in the use of threatening or obscene language. In 2002, respondent forfeited three vacation days in settlement of charges including AWOL, insubordination, failure to sign in/out, and failure to maintain Department files and records. Also in 2002, respondent pled guilty to an allegation of sexual harassment and received a penalty of thirty days. In 2003, after a hearing, respondent was suspended for 14 days for failure to call the clinic when he called in sick from Jamaica, West Indies. See Dep’t of Sanitation v. Banton, OATH Index No. 1136/03, at 7 (June 18, 2003). Also in 2003, respondent pled guilty to charges of engaging in the use of threatening or obscene language and accepted a penalty of two days.

Petitioner now seeks a penalty of a 30-day suspension for the trash collection charge and a five-day suspension for each of the charges sustained concerning respondent’s failure to perform his supervisory duties (Tr. 306). Based on respondent’s record and the nature of the misconduct, I do not find this penalty request excessive.

Here, respondent asked a probationary sanitation worker to deviate from his assigned route to pick-up a mattress in front of respondent’s home. In addition to seeking a personal favor, respondent placed a probationary employee in the difficult situation of having to choose between refusing the order of a superior and risking termination for collecting trash that was not on his route. SW Respoli was visibly uneasy testifying against respondent and following respondent’s request, he immediately sought guidance from his supervisor whether this was proper (Tr. 165-66). At trial, respondent testified that most of the men on his shift are new and that he tries to “show them the ropes” (Tr. 235). Yet this request was so antithetical to his obligation to set a good example for his subordinates that it makes me question his fitness to be a supervisor.

With regard to respondent’s failure to account for the EZ passes, I find that a five-day suspension is a fair and adequate punishment. Even though no EZ passes were lost, respondent was careless with valuable equipment and took no responsibility for his actions. A stern penalty is merited in order to send a clear message that respondent must take his administrative obligations more seriously.

Accordingly, I recommend that respondent be suspended for 35 days.

Alessandra F. Zorgniotti

Administrative Law Judge

December 1, 2006

SUBMITTED TO:

JOHN J. DOHERTY

Commissioner

APPEARANCES:

DAVID GOLDFARB, ESQ.

Attorney for Petitioner

BIAGGI & BIAGGI

Attorneys for Respondent

BY: RICHARD BIAGGI, ESQ.

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