Dep’t of Sanitation v



Dep’t of Sanitation v. Griffith

OATH Index No. 308/07 (Feb. 9, 2007), modified on penalty, NYC Civ. Serv. Comm’n Item No. CD07-91-M (Sept. 21, 2007), appended

Sanitation worker charged with some 15 violations. ALJ found evidence sufficient to prove five of the charges and recommended that respondent be suspended for 31 days. On appeal, the CSC reduces the penalty to a 20 day suspension without pay.

______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF SANITATION

Petitioner

- against -

PHILLIP GRIFFITH

Respondent

______________________________________________________

AMENDED REPORT AND RECOMMENDATION

JOHN B. SPOONER, Administrative Law Judge

This disciplinary proceeding was referred to me pursuant to section 16-106 of the Administrative Code by petitioner, the Department of Sanitation. Respondent Phillip Griffith, a sanitation worker, is charged with 15 specifications of misconduct, ranging from insubordination and failing to follow Department collection rules to loitering.

A hearing on the charges was conducted before me on October 3, 18, and 24, November 14, and December 7, 2006. Petitioner relied primarily upon the testimony of respondent’s immediate supervisor, Louis Gallotta, and called five other supervisors as witnesses. Respondent testified himself, admitting most of the factual allegations but denying that he failed to perform any of his duties, and called ten other workers to corroborate his accounts.

For the reasons provided below, I find that the evidence was sufficient to sustain five of the charges and recommend that the other 10 charges be dismissed. I recommend that respondent be suspended for 31 days.

ANALYSIS

Respondent has worked for the Department since 1993. The charges here concern incidents which occurred in late 2004 and 2005, when respondent was assigned to the Brooklyn North garage.[1] During this period, respondent’s regular supervisor, Louis Gallotta, regularly filed complaints against respondent, mostly alleging various minor infractions regarding respondent leaving his route a few minutes early or taking excessive breaks. Respondent, who served as a shop steward for 2004 through 2005 (Tr. 821), asserted that Supervisor Gallotta issued the complaints out of spite for respondent’s union activities, although he offered no convincing evidence of this. As discussed below, problems with Supervisor Gallotta’s testimony and the other proof required that all but five of the charges be dismissed.[2]

Insubordination (F113771)

Complaint No. F113771 alleges that, on October 4, 2004, Supervisor Louis Gallotta ordered respondent to complete garbage collection at seven houses and respondent refused. In support of this charge, Supervisor Gallotta testified that, on that day, respondent was the loader and Worker Bobby Hines was the driver. At roll call, Supervisor Gallotta told respondent that he was expected to pick up “everything” off the route, including all baskets and all drop-offs on the street (Tr. 237). Respondent mentioned that he would not be completing the route in order, but would take lines out of order to be more efficient, a plan approved by Supervisor Gallotta (Tr. 300). Around 9:00 a.m., Supervisor Gallotta was checking respondent’s route and noticed that respondent and Mr. Hines were “bouncing around,” not doing the route in order. Some stops and baskets on the route had not been collected (Tr. 236-38), although at trial the supervisor indicated he was uncertain how many stops were missed or where the missed stops were located (Tr. 302-03).

Around 9:50 a.m., Supervisor Gallotta came across respondent’s truck at the last line on the route on Fulton Street. Supervisor Gallotta had a list of missed stops and told respondent to go back and pick them up. Respondent said he would “go back and get them Wednesday” (Tr. 239). Supervisor Gallotta stated that was unacceptable and that respondent had time to complete these stops that day. Respondent said he would discuss it with the driver and was going into the garage for lunch (Tr. 243). Supervisor Gallotta told respondent he “can’t do it” and then called into the garage and told the supervisor that respondent had to complete picking up the missed stops (Tr. 317). Respondent and Mr. Hines returned to the garage and Supervisor Gallotta called his superintendent for guidance (Tr. 243). Supervisor Gallotta later heard that Mr. Hines reported that he was sick and that respondent took the truck to the dump and emptied it (Tr. 244).

Respondent and Mr. Hines both admitted that they did not obey Supervisor Gallotta’s order about the missed stops but agreed that this was due to Mr. Hines’s anger at the manner in which the order was given. Respondent recalled that, while he and Mr. Hines were completing collections on the last line, Supervisor Gallotta pulled up in front of them and spoke with Mr. Hines. Mr. Hines then came to respondent and told him that Supervisor Gallotta said they had missed some stops and needed to go back. Although respondent denied that the workers missed any stops (Tr. 827), respondent said to Mr. Hines, “All right. No problem. Let’s go get them.” Mr. Hines said, “No, I’m not going back because I know I do my work. I always do my work, and I’m not going to go back” (Tr. 826). Although respondent tried to persuade Mr. Hines to return to the route, Mr. Hines refused. Respondent then went over to Supervisor Gallotta and said he himself was willing to go back but that he needed to speak further with Mr. Hines about it. Supervisor Gallotta commented that Mr. Hines was “hot” and “upset” while respondent was “cool.” Respondent promised again to speak further with Mr. Hines and the two workers returned with their truck to the garage (Tr. 826). On the way back, Mr. Hines said that he would not be caught in the middle of the argument between Supervisor Gallotta and respondent. At the garage, Mr. Hines reported that he was sick (Tr. 826).

Mr. Hines recalled that respondent had been told by Supervisor Gallotta to do the route in order. Mr. Hines remembered seeing Supervisor Gallotta around 9:00 a.m. at Fulton Street as Mr. Hines and respondent were finishing up the last line of their route (Tr. 457). Supervisor Gallotta told Mr. Hines that the workers had left some material out on Grand Avenue. Mr. Hines denied that any stops had been missed and suggested that the garbage was placed out after the truck had gone by (Tr. 457). Supervisor Gallotta insisted that the workers had, in fact, missed these stops and ordered the workers to go back and collect the garbage from the missed stops (Tr. 458-59). When Mr. Hines continued to insist that the garbage was late put-out and asked whether Supervisor Gallotta was calling him a liar, Supervisor Gallotta said, “Yes” (Tr. 459). Mr. Hines stated that it was this remark which angered him so much that he refused to pick up the missed stops. Instead he dumped the truck and returned to the garage (Tr. 459). Mr. Hines insisted that Supervisor Gallotta never spoke directly to respondent (Tr. 460). Mr. Hines received a complaint from Supervisor Gallotta but it was later “thrown out” and he was given a written reprimand (Tr. 460).

I found the testimony of respondent and Mr. Hines to be credible and largely consistent with the version offered by Supervisor Gallotta. This testimony established that Supervisor Gallotta ordered Mr. Hines and respondent to pick up the missed stops. Mr. Hines became indignant at Supervisor Gallotta’s remarks and refused to obey and either Mr. Hines or respondent conveyed this refusal to Supervisor Gallotta. The workers drove back to the garage, where Mr. Hines reported sick, leaving respondent without a partner.

Because it was undisputed that respondent could not do the additional pickups by himself, respondent had no alternative but to return to the garage with Mr. Hines. After Mr. Hines then reported that he was sick and was permitted to leave, respondent still had no obligation to return to the collection route until he was assigned a new partner. Since neither Supervisor Gallotta nor the garage foreman ever assigned a different partner, respondent was clearly unable to obey Supervisor Gallotta’s order. Respondent was therefore not in violation of the cited Department rules, requiring employees to obey the orders of their supervisors. See Department Code of Conduct rule 3.1. This charge must therefore be dismissed.

Leaving Route without Authority (F116001)

Complaint F116001 alleges that, on January 25, 2005, respondent was missing from his route at various times during the day and inaccurately reported that his route was completely clean. Superintendent Richard Guttieri was a temporary superintendent for the day on the charged date, which was a snow day. Supervisor Gallotta was the snow inspector, responsible for assigning snow clearing duties to the workers. Respondent had been assigned to clear snow with a shovel at the crosswalks, fire hydrants, and bus stops (Guttieri: Tr. 157).

Supervisor Gallotta recalled that respondent’s assigned shoveling route included Smith Street from Warren Street to Jay Street, from Jay Street to Tillary, then from Adams into Boerum (Tr. 339). Around 9:40 a.m., Supervisor Gallotta checked respondent’s route, beginning at Smith and Warren Streets. Only one of the corners was shoveled and no bus stops or fire hydrants had been cleared of snow (Tr. 341-42). He then spent 15 minutes driving the entire route without finding respondent (Tr. 343-44). Supervisor Gallotta reported respondent’s absence to Superintendent Guttieri, who told him to document his observations. At around 10:55 a.m., Supervisor Gallotta spied respondent at the beginning of the route, leaving his vehicle (Tr. 346). Supervisor Gallotta asked where respondent had been and he said he had gone to the bathroom (Tr. 348). Supervisor Gallotta pointed out to respondent the significant areas which remained covered with snow, including many fire hydrants. Supervisor Gallotta then returned to his general snow duties (Tr. 349). At 12:20 p.m., Supervisor Gallotta again failed to find respondent on the route and waited at Warren and Smith Streets. At around 12:45 p.m., respondent returned to the route and told Supervisor Gallotta that he had been to a bathroom on Baltic Street (Tr. 352, 366).

At 1:25 p.m., Supervisor Gallotta again returned to respondent’s route and could not find him. Supervisor Gallotta called Supervisor Newland and asked him to assist in locating respondent (Tr. 353-55). Supervisor Gallotta recommended that respondent be taken off the clock (Tr. 357). Around 2:20 p.m. Supervisor Gallotta finally found respondent at the last hydrant on Jay Street (Tr. 358, 372). He told respondent he had cleaned only one corner, to which respondent said that he had completed all of the work and the route was clean (Tr. 361). Supervisor Gallotta pointed to a fire hydrant which remained covered with snow, and respondent walked over and shoveled snow around it (Tr. 362). He then ordered respondent to report immediately to the Borough Commissioner (Tr. 358-59). Respondent was docked salary for 2 hours and 30 minutes and issued a complaint (Tr. 361).

Superintendent Guttieri recalled that, on the morning of January 25, Supervisor Gallotta contacted him to say that he could not find respondent on his route. Supervisor Gallotta said he had checked the first line on respondent’s route and the snow had not been cleared. Superintendent Guttieri instructed Supervisor Gallotta to search the entire route. A while later, Supervisor Gallotta reported that he had searched the entire route and had not found respondent (Tr. 153-54). Upon receiving the third report, Superintendent Guttieri called the borough command and was told to order respondent to report to the borough commissioner (Tr. 158-59). Respondent returned to the garage at 2:40 p.m. (Pet. Ex. 2), and was later ordered to shovel snow in front of the garage (Tr. 160). Superintendent Guttieri told Supervisor Gallotta to dock respondent for all the time he could not be found on his assigned route (Tr. 161).

Superintendent Guttieri conceded that during the initial call Supervisor Gallotta reported that some snow had been cleared, although not along the route to which respondent had been assigned (Tr. 172).

At the request of Supervisor Gallotta, Supervisor William Newland also looked for respondent on route 5 for about 20 minutes, starting at the beginning of the route, and failed to find him (Tr. 188-89, 195).

Respondent testified that, after being assigned to spread salt using a haulster, he left the garage just after 8:00 a.m. and went first to Smith Street (Tr. 832-33). Because Smith Street is a busy one-way street, he double-parked his truck and shoveled and salted the walkways, bus stops, and hydrants. He stated that he “might have” left the route in order to move his truck and permit buses to go by (Tr. 834-35). Around 2:00 or 2:15 p.m., he saw Supervisor Gallotta, who said, “That’s it; that’s the end of the day. That’s it for you” (Tr. 835-36). Although respondent did not recall exactly when he took his lunch, he did indicate that during snow removal days lunch breaks were staggered so some workers were always in the field (Tr. 836). Back at the garage, respondent discovered that the other workers had been authorized for overtime. He therefore asked Supervisor Gallotta why he was not being given overtime. Supervisor Gallotta told respondent to speak with ABS Saggese. Respondent called the union to explain what had happened and then spoke with ABS Saggese, who told respondent to wait. After a few minutes, Supervisor Gallotta told respondent to shovel snow by hand in front of the garage, an assignment which respondent argued was intended to humiliate him (Tr. 841).

Worker Charles Garito recalled seeing respondent on January 25 shoveling snow on Pacific Street for approximately five minutes at sometime after 12:00 p.m. (Tr. 729).

This charge rests primarily upon the credibility of Supervisor Gallotta. I found the testimony of Supervisor Gallotta both reliable and credible. His account was corroborated by the testimony of Superintendent Guttieri and Supervisor Newland. On the other hand, respondent’s testimony seemed suspiciously vague. Respondent offered no explanation as to why he would have been absent from his route at the times that Supervisor Gallotta and Supervisor Newland were searching for him or why various locations on the route were not shoveled. His suggestion that he was temporarily absent because he must have been moving his vehicle sounded contrived and based more upon speculation than actual recollection. Nor did he dispute or explain why so little of the snow removal on the route had been completed.

Based upon the testimony of the three supervisors, I find that this charge should be sustained, since respondent failed to complete his work assignment as required by Department rules. See Department Code of Conduct rules 3.1 and 3.23.

Charges for February 11, 2005 (F116019, F116021, F116078, and F116018)

Respondent was charged with four specifications for February 11, 2005: failing to collect garbage at seven stops on his route; improperly sorting plastic and glass bottles for personal use; leaving his route without authority at 10:55 a.m.; and leaving his route without documenting this departure.

Supervisor Gallotta testified that, on this date, respondent was assigned to collection route 2 with Worker Delvin Lewis. Due to past problems, Supervisor Gallotta required respondent to drive his route in the exact order listed on the route sheet (Tr. 401-02; Pet. Ex. 3; Resp. Ex. A). At some point, Supervisor Gallotta saw respondent’s truck outside the route on Vanderbilt Avenue crossing Atlantic Avenue, headed in the direction of the garage. Supervisor Gallotta pulled alongside the truck at a stop light and asked why the workers were leaving the route early. One of the workers said they were going in for lunch and Supervisor Gallotta said they were early (Tr. 382-84). According to Supervisor Gallotta the cutoff time to leave the route for lunch was 11:10 a.m. (Tr. 382).

After lunch, Supervisor Gallotta noticed that material had been left uncollected at a number of stops and wrote down these locations on a route sheet (Pet. Ex. 3). Supervisor Gallotta then saw respondent’s truck on Gates Avenue. At this point, he observed respondent loading and “sorting through the garbage for plastic bottles, metal cans, things like that” (Tr. 385). Supervisor Gallotta insisted he saw respondent rip bags open after they were in the hopper, remove some four to six bottles and cans, and put the items in the right side bin (Tr. 385, 441). Supervisor Gallotta said nothing to respondent, although Supervisor Gallotta said he had told respondent on prior occasions not to do this (Tr. 386). Supervisor Gallotta asked Mr. Lewis, “What is going on?” Mr. Lewis replied, “You know how he is” (Tr. 387).

Supervisor Gallotta drove ahead to the next block and waited some 5 to 10 minutes until the truck caught up, with respondent now driving. He told the workers that they had left material on the route and that they should follow him (Tr. 389). Supervisor Gallotta then turned right but the truck turned left. Supervisor Gallotta circled back and caught up to the truck double-parked at Fulton Street and Clinton Avenue. He got out and asked why the workers had not followed him as ordered. Respondent said he had to go to the bathroom. Supervisor Gallotta asked for the DS 350 card to see if respondent had written anything about a bathroom break on it, and saw nothing (Tr. 390-91). Supervisor Gallotta told respondent he should have noted any bathroom break on the card and also have mentioned going to the bathroom when Supervisor Gallotta gave him the order to follow him (Tr. 567). When Supervisor Gallotta saw the card again at 2:55 p.m., respondent had made a notation about taking a bathroom break at 2:07 p.m. (Tr. 392).

According to Supervisor Gallotta, respondent and Mr. Lewis left out seven stops and a ton of material (Tr. 392). Since the cutoff time for returning to the garage was 2:20 p.m., and since he estimated it would take 25 to 30 minutes to pick up the missed stops, Supervisor Gallotta stated it would have been “close” for the workers to be able to collect all of the material before they were obliged to return to the garage (Tr. 392).

Supervisor Gallotta conceded it would be acceptable for a worker to place loose recyclable items left out on the street into the side bin (Tr. 399). The supervisor himself speculated that the workers could have declined to pick up some of the bags because they suspected hazardous waste or materials left by a commercial contractor (Tr. 561). However, when he examined the bags, Supervisor Gallotta saw only household garbage and could discern no basis for not picking them up (Tr. 562).

Respondent testified that, on February 11, he and Mr. Lewis were assigned to regular collection. He conceded that the workers began lunch a few minutes early at 11:00 a.m. instead of at 11:10 a.m. because they knew “we wouldn’t have a problem with the route” and leaving for lunch a few minutes early might permit them to “beat the traffic” (Tr. 845-46). Respondent recalled seeing a bag with wood which had nails in it. He was also aware of an abandoned building, bordering on Clinton Hill and Bedford Stuyvesent. Referring to such locations, supervisors had warned workers “tis the season,” meaning that workers should not pick up construction materials at these sites for fear of being fired (Tr. 850). Respondent contended that that his route was completed that day at around 2:00 p.m. (Tr. 846).

Respondent acknowledged that he may have been throwing blue recycling bags into the side bins to help out the recycling crew, but denied that he was sorting through recyclable materials to retrieve recycling materials for personal profit (Tr. 849). He referred to the practice of retrieving valuable recyclables, such as aluminum or iron, as “mongo” and conceded that some workers would collect these materials in the side bin of the truck and later sell them to a metal yard. He denied, however, that he was looking for such materials (Tr. 854), arguing that it would be foolhardy given the proclivity that Supervisor Gallotta displayed in issuing complaints for any observed violation (Tr. 858).

At 2:07 p.m., respondent went into a diner on Fulton Street to use the bathroom. He tried to note this on the DS 350, but his pen was skipping. When he returned to the garage, he used another pen to complete the entry on the form (Tr. 848). Respondent conceded that workers assigned to a regular collection route were not allowed to pick up recyclables (Tr. 844).

Worker Delvin Lewis recalled nothing unusual happening for most of that day. He denied that the workers passed up any collection stops (Tr. 760) and insisted that he and respondent left the route at the cutoff time of 11:10 a.m. and not before (Tr. 760). He also denied that he saw respondent opening recycling bags and sorting bottles (Tr. 759). At the end of the shift around 2:10 p.m., Supervisor Gallotta ordered the two workers to collect a drop-off. As he and respondent followed Supervisor Gallotta’s vehicle, respondent said he wanted to use the bathroom. Respondent then turned left at the next intersection, while Supervisor Gallotta turned right (Tr. 756-58). Supervisor Gallotta came up behind them and asked why they had turned. After being told that respondent needed to use the bathroom, Supervisor Gallotta said he would see the workers back at the garage and left (Tr. 759). Mr. Lewis stated that he and other workers were fearful of working with respondent because they believed that they would get complaints without justification (Tr. 761).

Supervisor Allen Kurland testified that sanitation workers should not pick up bags of construction material in front of a garage which they knew to be owned by a commercial establishment because the materials would be considered trade waste (Tr. 766). He stated that the only exception to this rule would be where a supervisor informed the workers that there was an “action center complaint” for the stop (Tr. 767). Supervisor Kurland indicated that drop-offs are identifiable because they consist of a large pile of rubbish which appear to have been pushed from a truck or pickup bed (Tr. 775). There are also locations, such as abandoned buildings, which are known as frequent drop-off locations (Tr. 775).

These charges turned upon the credibility of Supervisor Gallotta, whose testimony presented a number of contradictions. On the one hand, he appeared to be essentially truthful, providing an account that was largely corroborated both by respondent and by Mr. Lewis as to his encounters with the two workers, their slightly early departure for lunch, and his order that respondent’s truck follow him. Supervisor Gallotta conceded various facts which might undermine the charges, such as the possibility that some of the garbage bags might have appeared to contain construction debris or have been put out after respondent’s truck passed by. As to the allegedly missed stops, Supervisor Gallotta’s testimony was corroborated by handwritten notations on a route sheet.

However, even a finding that Supervisor Gallotta was credible fails to quell my doubts that respondent and Mr. Lewis either deliberately or negligently missed garbage at these seven stops. Supervisor Gallotta had no recollection of what was left out, other than what he wrote down on the route sheet. As to two stops, Supervisor Gallotta himself noted that “wood” was left behind, and offered no assurance that the wood was properly bundled, as required. As to the five other notations of “bag” or “bags,” he offered no assurance that the bags could not have been put on the curb after respondent and his partner serviced the stop. I therefore concluded that Supervisor Gallotta’s observations of the wood and bags after the lunch break was insufficient to establish that respondent or Mr. Lewis missed or failed to service the stops. This complaint should be dismissed.

Supervisor Gallotta was vague about a number of critical details involving necessary elements of the other charges. In his testimony, he did not mention a time when he observed respondent and Mr. Lewis returning to the garage for lunch. Although he insisted that he saw respondent sorting through recycling bags and placing items in the truck side bin, he offered no clear statement as to what the items in the bin were, suggesting that it was both bottles and metal. It seemed implausible that a sanitation worker would be collecting general recycling materials, such as bottles, for the few pennies they might bring on redemption. It also seemed notable that the evidence in terms of the quantity of loose bottles in the truck side bin at the end of respondent’s shift would have been highly probative in establishing that respondent was engaged in collecting the bottles for personal profit, the supervisor apparently made no effort to investigate the contents of the side bin.

While, on the one hand, Supervisor Gallotta’s numerous concessions as to the weakness of the various charges enhanced my confidence in the accuracy of most of the observations he made, it also gave some weight to the argument by respondent’s counsel that many of the charges were brought against respondent due to supervisory bias against him and similar charges would never be filed against other workers. In fact, it seemed to be around this time that most of the personnel at the garage become aware that respondent and Supervisor Gallotta had a very hostile work relationship. Several workers commented about their reluctance to be partnered with respondent for garbage collection due to the frequency with which Supervisor Gallotta targeted him for misconduct complaints. Respondent offered a credible account of a meeting between himself and Supervisor Gallotta scheduled by Deputy Chief Frank Feeney at which Supervisor Gallotta did not appear. According to respondent, Deputy Chief Feeney reported that the supervisor felt that it would be a “waste of time for him to even come” (Tr. 864). Whatever Supervisor Gallotta’s intentions,[3] his proclivity for issuing complaints to respondent for at best minor and at worst frivolous violations undermined my general confidence in some of his interpretations as to respondent’s actions.

Respondent’s account of his picking up recycling bags seemed credible, since Supervisor Gallotta himself confirmed that workers on regular collection were, on occasion, ordered to pick up recycling which was left uncollected, and placed these materials in the side bins. Neither Supervisor Gallotta nor petitioner’s attorney alluded to any other evidence which might support an inference that respondent intended to take the materials for personal profit. I thus find that petitioner failed to prove that respondent was collecting the recycling materials “for personal use” and find that this charge should be dismissed.

For this complaint, respondent’s admission that he and Mr. Lewis left their route ten minutes early was sufficient to sustain a finding that they violated the understood rule of not leaving for lunch until 11:10 a.m. This charge should be sustained.

Finally, it was undisputed that Supervisor Gallotta ordered respondent to follow him in the truck and that, instead of following, respondent parked along the way and went into a bathroom. Respondent claimed that this stop was for the purpose of using a nearby bathroom and even petitioner conceded that, if true, this claim would foreclose a finding of misconduct.

It is true that, in assessing respondent’s uncorroborated testimony on this charge, consideration should be accorded his interest in avoiding a penalty for any misconduct. On the other hand, the evidence did not suggest any likely motive for the stop other than the one offered by respondent – that he needed a bathroom break. Since respondent was aware he was being followed by Supervisor Gallotta, it seemed unlikely he would attempt to circumvent a direct order by driving a few blocks away and parking the truck. Nor did the evidence support a finding that respondent would have done this as an act of open defiance against Supervisor Gallotta’s authority. While the numerous observations by Supervisor Gallotta made it clear that respondent would win no citations for outstanding productivity, there was no evidence that he verbally abused or even argued with his supervisors. It therefore seemed improbable that he stopped the truck as he did for the sole purpose of inviting yet another complaint from Supervisor Gallotta, who by this time had already issued two complaints for similarly minor infractions.

I therefore find that the evidence was insufficient to sustain an insubordination charge and recommend that this charge also be dismissed.

Leaving Route without Authority (F116023)

Complaint F116023 alleges that, on February 14, 2005, respondent left his route with materials out. Deputy Chief Frank Feeney recalled that, when he was assigned to supervise the Brooklyn North 2 garage in February 2005, he spoke with Supervisor Gallotta about respondent’s work performance. Supervisor Gallotta indicated that respondent had been warned by the previous superintendent about doing his route in order, picking up everything on the route, and taking breaks at the scheduled times. Deputy Chief Feeney then spoke to respondent himself, telling him that he should always do his route in the required order, completely pick up every stop, and take all breaks on time (Tr. 104-08). He told all of his crews about the procedure for taking bathroom breaks, whereby they must note the departure and return from the break and the location on the DS 350 (Tr. 109-10).

Supervisor Gallotta testified that, on February 14, he was touring the area with Deputy Chief Feeney, showing him problems with the district. At around 9:00 a.m. as they examined respondent’s route (Tr. 575), Supervisor Gallotta saw that a block on Grand Avenue had a number of bags at the curb at a drop-off location even though respondent and his partner, James Galvin, had already serviced it (Tr. 571-72). Supervisor Gallotta stated that he had noticed these bags there “the day before” (Tr. 571), although when told that February 14 was a Monday and that the previous day would have been Sunday, Supervisor Gallotta stated that he probably made the previous observation of the bags on Saturday (Tr. 580). At around 11:00 a.m., Supervisor Gallotta observed respondent’s truck driving toward the garage, even though the cutoff time to leave the route is 11:10 a.m. (Tr. 576). Deputy Chief Feeney said that he would speak with respondent about leaving for lunch early (Tr. 577).

Supervisor Gallotta stated that workers at the Brooklyn North 2 garage have a standing order to pick up garbage left at known drop-off points (Tr. 587-88). Supervisor Gallotta testified that one drop-off site where there is an abandoned garage was owned by a commercial business across the street (Tr. 593). He stated that workers should not pick up garbage at the garage if it looked like refuse from the commercial business, rather than garbage dropped off by someone else (Tr. 596). On this day, respondent and his partner completed their route (Tr. 600).

Later that month, Supervisor Gallotta asked Deputy Chief Feeney to accompany him on a tour of respondent’s route. Supervisor Gallotta indicated that respondent was once more leaving his route without authority and leaving material behind (Tr. 113). Deputy Chief Feeney recalled accompanying Supervisor Gallotta to examine respondent’s route. At one of the stops on respondent’s route, Deputy Chief Feeney observed some pieces of furniture (Tr. 113). Deputy Chief Feeney was told by Supervisor Gallotta that the wood had been at the stop before respondent began his route (Tr. 114).

Deputy Chief Feeney spoke with respondent later that day about the wood which was left out. Respondent said that he did not pick up the wood because he wanted to make sure there was room in the hopper for the remainder of the garbage on the route. In reply, the deputy chief instructed respondent to return and pick up the wood (Tr. 137). Deputy Chief Feeney seemed to agree that, if the workers were leaving bulky items because they might fill the truck hopper and prevent collection of all the garbage on the route, this would not be improper or a violation of accepted procedure (Tr. 147).

Respondent recalled that he spoke with Deputy Chief Feeney during lunch about leaving materials at some of the stops due to fears of charges being initiated, and ABS Feeney said, “It’s all right for you to take them.” Respondent replied, “All right, boss. After lunch we’ll go out and take them.” Respondent and his partner then picked up the materials from the missed stops after lunch (Tr. 851-52, 860-61). Respondent denied leaving any other material out on this day (Tr. 862-63). Supervisor Gallotta confirmed that, when he examined respondent’s route after lunch, all of the outstanding material had been picked up (Tr. 577).

Worker James Galvin recalled that he and respondent decided not to pick up some wood and two large garbage bins of what appeared to be commercial garbage or trade waste in front of an abandoned brownstone at Gates and Green. Supervisor Gallotta later told the workers that they had missed some stops on their route and would have to go back to get it (Tr. 749). Respondent and Mr. Galvin retrieved the materials as ordered but were still issued complaints (Tr. 750). Mr. Galvin insisted that, even in front of abandoned buildings, workers were required to pick up no more than six bags of materials appearing to be trade waste (Tr. 752).

Respondent and Mr. Galvin both admitted leaving some wood and garbage bags for fear that they might be trade waste. The testimony was contradictory as to whether the Grand Avenue address was a known drop-off location where workers are always expected to pick up all garbage bags. What was not disputed was that workers can be terminated for picking up more than six bags of anything resembling trade waste. The testimony of respondent and Mr. Galvin that they had reason to believe that the bags might contain trade waste was not refuted. Furthermore, it seemed uncontroverted that workers were not obliged to pick up loose wood unless it was bundled, which Supervisor Gallotta indicated this wood was not. When ordered to return for the garbage by Supervisor Gallotta, respondent and his partner did so, as confirmed by Supervisor Gallotta who observed that the site was clean by the end of the workers’ shift.

Under these facts, I find that respondent’s failure to pick up the wood and the bags was not proven to be misconduct and recommend that the charge be dismissed.

Failure to Collect Material (F116085)

This specification charges that, on February 28, 2005, respondent failed to collect material at 87 St. James Place and the contents of a garbage basket at the corner of Washington Avenue and Gates Avenue. Supervisor Gallotta testified that, in October 2004, he had spoken with respondent about his obligation to collect all garbage which was put out (Tr. 225). As Supervisor Gallotta checked respondent’s route on February 28, 2005, he noticed some broken furniture, consisting of some 15 pieces of wood (Tr. 621), at 87 St. James Place which had not been picked up by respondent, whose truck was visible about half way up the block. Supervisor Gallotta notified Superintendent Shari Pardini by cell phone (Tr. 606-07. Superintendent Pardini met Supervisor Gallotta at the building and told him to write a complaint for both respondent and his partner, George Bennett (Tr. 610).

Supervisor Gallotta later noticed a full and overloaded basket at the corner of Gates and Washington Avenue, a location that respondent’s truck should have passed by (Tr. 611-12). According to Supervisor Gallotta, this basket was never emptied that day (Tr. 616).

Deputy Chief Shari Pardini testified that, on the charged date, she was the district superintendent of the Brooklyn North 2 Garage. She recalled that she did a tour of the area with Supervisor Gallotta and observed some pieces of furniture at a St. James Place stop which had not been collected. She also recalled seeing an overflowing basket at Washington Avenue and Gates Avenue which was not collected (Tr. 12-18). Supervisor Gallotta told her that the basket was full earlier before respondent and his partner reached it (Tr. 19). She indicated that a supervisor would not be obliged to record a collection location out on the DS 350 just because one stop or basket was not collected (Tr. 18).

Respondent denied leaving any materials out at either St. James Place or failing to empty a basket on Washington Avenue (Tr. 87). He specifically recalled that Mr. Bennett was concerned about getting a complaint and insisted they did a particularly thorough job with their collections (Tr. 872). He noted that baskets on this commercial block could easily fill up again in an hour (Tr. 873).

Mr. Bennett recalled being asked by Superintendent Pardini as to why he had not picked up a basket and he told her he had not noticed it (Tr. 734-35). He did not recall passing up any stops, but stated that he and other workers would not pick up wood which was not bundled and free from nails (Tr. 735).

The proof as to this charge was similar to that for the missed stop charge of February 14 with the exception that, on this occasion, Supervisor Gallotta observed respondent’s truck just leaving the stop where the wood was left. His testimony was also corroborated by that of Superintendent Pardini in terms of the timely reporting of the violation, the wood, and the overflowing basket.

As to the wood, there was still insufficient evidence to support the contention that workers were obliged to pick up 15 loose pieces of wood, as described by Supervisor Gallotta and Superintendent Pardini. Although it was undisputed that there was a written Department rule requiring that some loose wood be bundled, none of the supervisors who testified were familiar with the exact wording of this rule, with Supervisor Gallotta insisting that the rule applied to tree limbs only and other supervisors indicating that it applied generally to pieces of wood over a certain quantity or over a certain length, such as four feet. Neither party introduced the rule itself into the record. The record is therefore insufficient to sustain a charge that respondent’s failure to pick up the wood was misconduct and this charge should be dismissed.

As to the basket, I generally credited the testimony of Supervisor Gallotta and Superintendent Pardini that the basket was full both during and at the end of the day. However, these observations did not foreclose the possibility that the basket filled up after respondent and Mr. Bennett serviced it. Moreover, the observations of the basket, unlike the observation of the wood, were not made just after respondent’s truck pulled away from the stop. This proof thus failed to establish that respondent and Mr. Bennett neglected to empty the basket because I find it equally possible that the basket filled up after it was emptied. This charge should also be dismissed.

Loitering (F116086 and F116320)

Complaint No. F116086 alleges that, on March 1, 2005, respondent was observed in a parked truck from 5:45 p.m. to 5:55 p.m. Supervisor Gallotta testified that on this date he was the snow inspector and respondent was assigned to overtime in order to drive trucks to the dump. At around 5:45 p.m., Supervisor Gallotta observed respondent’s truck parked on Court Street between Schermerhorn and State Streets. Supervisor Gallotta watched the truck for ten minutes as respondent remained inside. He then came over and asked respondent what is was doing there. Respondent replied that he was “going to the bathroom.” Supervisor Gallotta stated that he had been watching respondent inside the truck for ten minutes. He then ordered respondent to go to the garage (Tr. 649). The dump receipt (Pet. Ex. 8) indicated that respondent left the dump in the truck at 4:56 p.m. According to Supervisor Gallotta, it would have taken about 40 minutes to drive from the dump to the garage (Tr. 652). He also stated that the only authorized afternoon break would have been 4:00 to 4:10 p.m.

Respondent admitted that he parked his truck on Court Street for several minutes in order to use the bathroom at the nearby Barnes and Noble store (Tr. 875). Respondent noted on the DS 350 (Pet. Ex. 8) that he used the bathroom at 5:45 p.m. as a way of protecting himself in case his truck was spotted by a supervisor (Tr. 877).

I found Supervisor Gallotta’s testimony that respondent was inside the parked truck for some ten minutes more credible than that of respondent for several reasons. First, respondent’s insistence that he used the bathroom was not inconsistent with Supervisor Gallotta’s observation, since respondent could have used the bathroom and returned to the truck before Supervisor Gallotta arrived, and then remained parked for another 10 minutes. Respondent’s failure to mention speaking with Supervisor Gallotta seemed odd, since it was clear Supervisor Gallotta typically confronted respondent on the other occasions where loitering was observed. Respondent’s motive to avoid a penalty was more compelling than that of Supervisor Gallotta to punish respondent for petty infractions. Respondent’s notation on the DS 350 established little except a desire to document taking an extended break.

I therefore found the evidence sufficient to prove that respondent remained inside a parked truck for 10 minutes without authorization. This violated the general prohibitions against loitering while on duty. See Department Rules of Conduct 3.19.

Complaint No. F116320 alleges that, on March 11, 2005, respondent again parked for 10 minutes without authorization. Supervisor Gallotta testified that, on this date, respondent and his partner, Kenneth Abel, were assigned to collections on route 2 for the 7:00 a.m. to 3:00 p.m. shift. Workers are scheduled to take their lunch at the garage from 11:30 a.m. to 12:00 p.m. At 12:30 p.m., Supervisor Gallotta observed respondent and Mr. Able inside their parked truck. Supervisor Gallotta asked them what they were doing and they told him they were waiting for a sweeper to dump in their truck. Supervisor Gallotta noted that the workers were behind on completing their collection route and told the two workers that waiting for the sweeper was not allowed and that they should return to their route. According to Supervisor Gallotta, sweepers were required to dump in a basket truck, an MLP truck, or the garage, and were not permitted to dump in collection trucks without express authorization by a supervisor (Tr. 669-73). Supervisor Gallotta later confirmed that a worker named Reuter had, indeed, spoken to respondent and Mr. Able about unloading his sweeper in their truck (Tr. 672). According to Mr. Reuter, the two workers offered to let him dump the sweeper because they told him they needed the extra weight to justify not completing their route (Tr. 681-82). Supervisor Gallotta issued Mr. Reuter a warning (Tr. 672).

The DS 350 for that day (Pet. Ex. 11) indicated that respondent’s truck left some 3 tons of material out from the collection route (Tr. 677).

Respondent and Worker Kenneth Abel testified that, as they were returning to their route after lunch, Broom Operator Mark Reuter signaled them that he needed to dump his broom. They pulled over and waited for the broom operator to go around the block. As they were waiting, Supervisor Gallotta drove up beside them and ordered them to return to the garage. They drove back to their route as ordered (Griffith: Tr. 881-83; Abel: Tr. 805). Mr. Reuter testified that he had no recollection of March 11, 2005, but confirmed that, when broom operators fill their brooms, it was common practice for them to look for the closest sanitation truck to dump their load (Tr. 809-10).

Thus, while it was undisputed that respondent parked his truck for ten minutes, he and witnesses provided a justification for doing so. I fully credited the testimony of respondent, Mr. Abel, and Mr. Reuter that respondent’s purpose in parking the truck was to permit Mr. Reuter to empty his broom. I further credited the three workers’ testimony that permitting broom operators to empty their brooms was common practice at the garage and did not require the express approval of a supervisor. This charge should thus be dismissed.

Failure to Complete Assignment (F116344)

Complaint No. F116344 alleges that, on March 24, 2005, respondent failed to wash and dump two haulsters as ordered and left his assigned route without permission from 2:20 p.m. to 3:00 p.m. As to the first charge, Supervisor Teddy Bland testified that he was the garage supervisor on the charged date. He recalled respondent reporting for work around 10:00 a.m. When respondent arrived, he was assigned to dump and wash two haulsters (Tr. 504). In Supervisor Bland’s view, this assignment should have been completed before 12:30 p.m., the beginning of respondent’s lunch hour (Tr. 506). Just after noon Supervisor Bland asked respondent about the cleaning assignments and respondent reported that one of the haulsters had a mechanical problem and could not be dumped or cleaned (Tr. 507). Upon learning this, Supervisor Bland checked the haulster and asked a mechanic what was wrong. Neither the mechanic nor Supervisor Bland found anything wrong with the haulster (Tr. 508).

Respondent testified that he first dumped both haulsters as instructed, but that the hoist of the second truck got stuck in the up position. He sought help from the garage foreman, who said, “Okay, I’ll have the mechanic check it out” (Tr. 887).

Mechanic Christopher Camuso, who was on duty on March 24, and Mechanic Robert Ferenczi both testified that the garage shift-to-shift book had no entry for truck number AP107 for March 24, 2005 (Tr. 793-94). Neither of them could recall having looked at this truck.

Thus, although respondent admitted not dumping and washing the second haulster, he indicated to Supervisor Bland that he failed to do so due to a mechanical problem. Supervisor Bland confirmed that respondent reported a mechanical problem, although the supervisor himself was unable to confirm any problem. Supervisor Bland’s statement that the garage mechanics found nothing wrong with the truck would appear to be in error, since the records indicate the mechanics never examined this truck. Based upon this evidence, I find that respondent’s failure to finish cleaning the second haulster was not misconduct. This charge should be dismissed.

The second allegation that respondent left his assigned route rested upon respondent’s admittedly late arrival at his field assignment and yet another extended bathroom break. Respondent testified that the garage foreman told him to take his lunch and report back afterwards, which he did (Tr. 887). After lunch, the foreman told respondent to take out a spreader to do “MLP” (Tr. 888). In order to take the spreader out, respondent needed a plate, which he sought from Mr. DeSantos. Respondent waited as Mr. DeSantos looked for the plate. When the plate was found, respondent left the garage and, on his way out, went by Supervisor Gallotta (Tr. 889).

Worker Richard DeSantos recalled that respondent asked him to help locate a plate for a haulster. Neither worker could locate it (Tr. 816). Mr. DeSantos told respondent he could not take the haulster out without the plate because he could damage it (Tr. 817).

Respondent also admitted leaving his route in order to use a bathroom from 2:20 p.m. to 3:00 p.m. (Tr. 889).

Respondent’s absence from his work location was noted by Supervisor Gallotta, who testified that, at around 2:00 p.m., he was asked by Supervisor Newland to check on respondent, since Supervisor Newland’s shift was ending. At 2:20 p.m., Supervisor Gallotta went to Grand and Park, respondent’s assigned location, and could not find respondent (Tr. 635). He then rode the route two to three times and was unable to locate respondent (Tr. 636). At around 3:00 p.m., Supervisor Gallotta saw respondent arrive at Grand and Park (Tr. 638). Respondent stated that he had used the bathroom at Hall and Dekalb, although he had made no entry on his DS 350 card about a bathroom break (Tr. 639). According to Supervisor Gallotta, the authorized afternoon break would have been at 2:30 p.m. to 2:40 p.m. and workers were not permitted to leave their route for this break (Tr. 238).

I found respondent and Mr. DeSantos’s testimony credible in explaining why respondent was not able to arrive at his assignment until after 2:00 p.m., since it took several minutes to find and install the plate necessary for the designated truck to be used. However, respondent’s testimony that, after arriving at the site, he then took a 40-minute bathroom break supported a finding of not performing his work duties. Respondent offered no reason for such a prolonged break, particularly where he had just returned from his lunch break. I find that respondent’s absence was a violation of the Department rule regarding completing assignments. See Department Code of Conduct rules 3.1 and 3.6. This portion of the charge should be sustained.

Insubordination (F116345)

Complaint No. F116345 alleges that, on March 25, 2005, respondent failed to help his partner pick up some large bags at a stop and refused an order to place recycling bags in a side bin on his truck. Supervisor Gallotta testified that early on this date he observed respondent driving and his partner Kenneth Boroughs loading three stops on Clifton Place. The stops were adjacent to several large apartment buildings and had some 10 to 20 large garbage bags at each stop. Respondent did not get out to help at the first or second stops. At the third stop, he got out and loaded one bag into the hopper while Mr. Boroughs loaded the rest (Tr. 714-16). According to Supervisor Gallotta, both workers are required to get out and help load at “flats,” apparently a term for multiple dwellings with a high volume of garbage. He believed that respondent’s failure to help load these heavy stops constituted loitering and was partially responsible for the two workers’ failing to complete their route that day (Tr. 721).

At the third stop, Supervisor Gallotta saw two recycling bags which were either put out late or missed and directed respondent to place them in the side bin on the truck. Respondent refused. Supervisor Gallotta repeated his order and respondent told Supervisor Gallotta to put the order on the “ticket.” Supervisor Gallotta said he did not need to do so. At this point, Mr. Boroughs said, “Louie, I’ll get it,” and loaded the bags into the bin (Tr. 716-17).

Respondent testified that the practice among the workers was for the loader to request help if needed. Because Mr. Boroughs did not ask respondent to help with the stop in question, respondent was therefore not obliged to get out and help (Tr. 898-99). Respondent admitted that Supervisor Gallotta ordered him to put two recycling bags into the truck, and respondent pointed out that the bags were recycling and could not be mixed with the regular garbage. Supervisor Gallotta then said to put the bags into the side bin. At this point, respondent said that he “could have” said, “I’m not moving this truck any further.” Respondent asked the supervisor to write the order on the ticket and Supervisor Gallotta refused. Respondent then told Supervisor Gallotta to call FIAT safety and let them order him to put the recycling on the truck (Tr. 900-01).

Mr. Boroughs recalled that he and respondent were alternating loading and driving, switching positions on every line as they did the alternate sides of the street (which he termed “one up, one down”). On Clifton Avenue, they came upon bag stops of 10 to 15 bags, where both workers would load. Mr. Boroughs stated that he would call for help, even though he believed that respondent knew “what’s heavy and what’s not heavy” (Tr. 471-72). On that day, Mr. Boroughs chose to pick up some stops without asking for help from respondent (Tr. 473).

Mr. Boroughs recalled that Supervisor Gallotta went to the front of the truck and said to respondent, “By the way, put that recycling in the truck.” Respondent replied, “The recycling truck is still out. Why do I have to do it?” Supervisor Gallotta then said he was “ordering” respondent to put the recycling in the truck. At this point, Mr. Boroughs told Supervisor Gallotta he would pick up the recycling and carried the bag over to the truck and placed it in the side bin (Tr. 474; Griffith: Tr. 901).

Petitioner failed to establish that respondent’s admitted failure to assist Mr. Boroughs in loading a large number of bags constituted misconduct. First, while it was necessary for both workers to assist in some heavy collections in certain neighborhoods, it was also evident that there was no hard and fast rule about such situations. Workers observed different protocols as to when the driver would provide assistance and most waited for the loader to signal for assistance, either verbally or by means of a buzzer at the back of the truck. Second, it was undisputed that Mr. Boroughs did not seek assistance. Under these circumstances, there is no basis to find that respondent committed misconduct by remaining in the cab of the truck while Mr. Boroughs serviced the site.

The second charge concerning the order to pick up the recycling bags hinged upon whether respondent’s admitted delay in picking up the bags was insubordinate. Under the circumstances here, respondent’s reluctance to immediately pick up the recycling bags was warranted given the fact that misconduct charges for picking up recycling materials had been filed against him a few weeks earlier by Supervisor Gallotta. In those charges, respondent was accused of misconduct because he was picking up recycling bags and allegedly sorting out materials for later redemption. There was thus a rational basis for respondent to be concerned about picking up recycling and for his request that Supervisor Gallotta write down his order regarding picking up recycling on the DS 350, so that respondent could have some assurance that he would not again be charged with misconduct.

Following respondent’s initial refusal to pick up the bags, and Supervisor Gallotta’s refusal to make a written notation of his order, Mr. Boroughs evidently picked up the bags and placed them into the side bins on the truck. Thus, there is no evidence that respondent’s refusal to pick up the bags lasted for longer than the few seconds it took to discuss his request that Supervisor Gallotta write down the request.

For these reasons, I do not find that respondent’s failure to immediately comply with the order to pick up the recycling bags was insubordinate and recommend that this charge also be dismissed.

Loitering (F116351)

Complaint No. F116351 alleges that, on April 5, 2005, respondent was loitering by repeatedly waiting for the hopper to cycle. Supervisor Gallotta testified that, on this date, respondent was working collection route 2 with his partner, Mr. Kurland. Early in the morning, Supervisor Gallotta observed respondent cycling the hopper “frequently” and told him to fill the hopper to the lip before cycling it (Tr. 688). Sometime later, Supervisor Gallotta observed Mr. Kurland driving and respondent loading. As Supervisor Gallotta watched for some 30 stops, respondent repeatedly threw a couple of bags in the hopper and then cycled it (Tr. 689). According to Supervisor Gallotta, workers are instructed not to cycle the hopper until the garbage in side the hopper reaches water level (Tr. 686-87).

Respondent did not recall ever being told by Supervisor Gallotta as to how often he should recycle the hopper (Tr. 912). He indicated that the practice among the workers was to cycle the hopper whenever the garbage reached the lip of the hopper. No garbage can be thrown into the hopper while recycling is in progress (Tr. 903).

I found Supervisor Gallotta’s testimony insufficient to establish the charge that respondent was “loitering,” as prohibited by Department rules. See Department Code of Conduct rule 3.19. His testimony as to the frequency of respondent’s recycling of the hopper offered no specifics as to how much extra time was spent or how much, if any, work went uncompleted. Indeed, the frivolous nature of this particular charge only confirmed my impression that Supervisor Gallotta initiated charges against respondent that would never be considered against most other workers.

I find that this charge was unproven and should be dismissed.

Leaving Route Without Authority (F116363)

Complaint No. F116363 alleges that, on May 5, 2005, respondent was missing from his route for 10 minutes without permission. Supervisor Gallotta testified that, on this date, he was monitoring respondent on his collection route because he was well behind schedule. At around 1:10 p.m., ten minutes before the cutoff time for returning to the garage, Supervisor Gallotta looked for respondent and his partner, Anthony DosSantos, on the last three lines of the route. He could not find them (Tr. 696-97). Back at the garage, Supervisor Gallotta asked Mr. DosSantos where they had been for the last 10 minutes and he said they left the route because the truck was full (Tr. 697). Supervisor Gallotta noted that, according the DS 350 (Pet. Ex. 13), the truck weight was 9.5 tons and should not have been full (Tr. 698). Supervisor Gallotta and another supervisor checked the truck before it was dumped and noted that the blade in the hopper would still move, a sign that the truck was not yet full (Tr. 699).

Mr. DosSantos testified that he recalled being assigned to be respondent’s partner because all of the workers in the garage believed whenever they worked with respondent they got issued complaints. He testified that he and respondent worked through their morning break on the route. At lunch, they had no time to eat and simply drove into the garage and then straight back out. They also kept working through the afternoon break because they knew they were running behind (Tr. 739-40). At the last line, they picked up the houses first and left a large apartment complex for last, as they had been instructed (Tr. 740). They worked five minutes over the cutoff time but were unable to complete picking up the final stop (Tr. 740-41). He insisted that he had never before received a complaint (Tr. 740). He also insisted that he never told Supervisor Gallotta that the truck was full (Tr. 747).

Respondent simply denied leaving the route as charged (Tr. 913).

While I credited Supervisor Gallotta’s testimony that he could not find respondent from 1:10 p.m. to 1:20 p.m., this limited observation was insufficient to sustain the charge that respondent was absent from his route, as charged. Mr. DosSantos’s explanation that the workers, in fact, were at an apartment complex at 1:10 p.m. sounded plausible. While it was certainly possible that the workers left their route early, it seemed equally possible that they were working on the route and Supervisor Gallotta was unable to find them in the 10 minutes before they left for the garage. I therefore find that this charge should be dismissed.

Insubordination (117920)

Complaint No. F117920 alleges that, on June 11, 2005, respondent refused an order to take a truck to the dump. Supervisor Gallotta testified that, on that date, respondent and Worker Angel Vera were doing collection on route 2. At 12:15 p.m., Supervisor Gallotta observed the two workers finishing the last stop on the route. The cutoff time after which workers are not required to take a truck to the dump some three miles away is 12:50 p.m. Upon receiving the order, respondent first said he would not go to the dump. Mr. Vera then said, “Don’t worry . . . we’ll go, we’ll go” (Tr. 706-08). Respondent then stood outside the truck speaking on his cellphone while Supervisor Gallotta told him two more times he was required to go to the dump. Supervisor Gallotta then called the district for guidance and was told to order respondent into the truck and to suspend him if he refused to obey. While Supervisor Gallotta was getting the call from the District, respondent got into the truck and the two workers drove to the dump, with Supervisor Gallotta following behind (Tr. 708-09).

Respondent testified that Supervisor Gallotta told him to dump the truck and, in reply, respondent “might have said something like . . . all right, I’m going to take a five minute break” (Tr. 914). Supervisor Gallotta then ordered respondent to go back to the garage (Tr. 924). Respondent denied that he refused to obey the order to take the truck to the dump (Tr. 914) and indicated that he and Mr. Vera took a break and then left for the dump (Tr. 918).[4] When respondent returned to the garage, he told the superintendent that the dump was only five to ten minutes away, he had some two hours left in his shift, and there would therefore have been no reason to refuse to dump the truck (Tr. 916). Respondent denied that Supervisor Gallotta repeated the order to dump the truck three times, contending that he was “covering himself” in order to sustain the insubordination charge (Tr. 925).

As to this charge, I found respondent’s account more reliable than that of Supervisor Gallotta. As noted above, Supervisor Gallotta harbored considerable bias against respondent based upon their history of conflict concerning respondent’s productivity and work methods. The supervisor’s testimony concerning respondent’s outright refusal and abrupt, unexplained capitulation sounded odd and out of character for respondent, who, as the record here makes clear, was prone to lengthy justifications for his bending of various rules. Despite respondent’s considerable motive to avoid being disciplined, his account as to this charge suggested that he was being essentially truthful. He admitted being ordered to the dump and not immediately obeying the order. Moreover, respondent’s detail concerning yet another appeal to Superintendents Saggese and Guttieri sounded authentic and unlikely to have been fabricated.

Based upon respondent’s testimony, I thus found that Supervisor Gallotta ordered respondent to drive to the dump and that respondent, instead of voicing an outright refusal, sought to take a five-minute break. Supervisor Gallotta then told respondent that he could not take a break and called his command for further guidance, characterizing respondent’s actions as a refusal to go to the dump. While the supervisor was on the phone, respondent and Mr. Vera obeyed Supervisor Gallotta’s order by taking the truck to the dump.

Although it is a close case, I find that the five-minute delay in complying with Supervisor Gallotta’s order to take the truck to the dump was insubordinate. While it was not misconduct to delay in driving away by requesting a five-minute break, it was misconduct to take the break after permission to take it was denied by Supervisor Gallotta. Respondent provided no indication of any urgent need for the break and generally suggested that he thought it was reasonable because he and Mr. Vera had such a generous amount of time to dump the truck and return to the garage. While there is nothing here to suggest that respondent was wrong about this assessment, the authority to make this judgment belonged, not to respondent, but to his supervisor. Respondent’s refusal to abide by Supervisor Gallotta’s insistence that he leave for the dump without taking a break was insubordinate and in violation of rules requiring workers to comply with orders of their supervisors. See Department Code of Conduct rule 3.1.

FINDINGS AND CONCLUSIONS

1. Charge No. F113771 should be dismissed in that petitioner failed to prove by a preponderance of the evidence that respondent failed to service various stops.

2. Charge No. F116001 should be sustained in that, on January 25, 2005, respondent left his assigned route without authority for most of his shift and inaccurately reported to his supervisor that the entire route was clear, in violation of Department Code of Conduct rules 3.1 and 3.23.

3. Charge No. F116019 should be dismissed in that petitioner failed to prove by a preponderance of the evidence that respondent failed to service various stops.

4. Charge No. F116021 should be dismissed in that petitioner failed to prove by a preponderance of the evidence that respondent was improperly sorting plastic and glass bottles for personal use.

5. Charge No. F116078 should be sustained in that, on February 11, 2005, respondent left his route for lunch 10 minutes early and without authority, in violation of Department Code of Conduct rule 3.23.

6. Charge No. F116018 should be dismissed in that petitioner failed to prove by a preponderance of the evidence that respondent left his route without authority and without documenting his departure.

7. Charge No. F116023 should be dismissed in that petitioner failed to prove by a preponderance of the evidence that respondent left his route without servicing various stops.

8. Charge No. F116085 should be dismissed in that petitioner failed to prove by a preponderance of the evidence that respondent failed to service one stop and a garbage basket.

9. Charge No. F116086 should be sustained in that, on March 1, 2005, respondent, while assigned to relay duty, sat inside his parked truck without authority, in violation of Department Code of Conduct rules 3.19 and 3.20.

10. Charge No. F116320 should be dismissed in that petitioner failed to prove by a preponderance of the evidence that respondent was loitering.

11. Charge No. F116344 should be sustained in part in that, on March 24, 2005, respondent was absent from his route without authority from 2:20 p.m. to 3:00 p.m., in violation of Department Code of Conduct rules 3.1 and 3.6.

12. Charge No. F116345 should be dismissed in that petitioner failed to prove by a preponderance of the evidence that respondent improperly failed to assist his partner to service stops or that he refused an order.

13. Charge No. F116351 should be dismissed in that petitioner failed to prove by a preponderance of the evidence that respondent was loitering.

14. Charge No. F116363 should be dismissed in that petitioner failed to prove by a preponderance of the evidence that respondent was absent from his route without authority.

15. Charge No. F117920 should be sustained in that, on June 11, 2005, respondent refused to obey an order to drive to the dump in violation of Department Code of Conduct rule 3.1.

RECOMMENDATION

After making the above findings, I requested and received a summary of respondent’s personnel history in order to make an appropriate penalty recommendation. He was appointed as a sanitation worker in 1993 and has six prior penalties, all of which involved guilty pleas. In 1998, he was suspended for two days for sick leave violations and disobeying orders. In 1999, he accepted a five-day pay fine for sick leave violations. In March 2000 and in August 2000, he was suspended for other leave violations, accepting first a two-day suspension and then a one-day suspension. In June 2002 and August 2002, he pled guilty to two more sick leave violations and received penalties of a one-day suspension and a reprimand. These penalties, while small, should make any penalties for these latest three infractions slightly higher.

Petitioner has requested that respondent receive a penalty of 25 suspension days for the January 25, 2005, charge and penalties of three to five suspension days for each of the other 11 charges (Tr. 937-38). I agree that the January 25, 2005 charge is deserving of a significant penalty. The evidence established that, on this date, respondent was assigned to shovel snow along a specific route and, in fact, performed this job for only a fraction of his shift. What he did for the remainder of the time was not proven, but it seems clear that he occupied himself with something other than work. I believe that this failure to perform work is deserving of a 15-day suspension since, from all appearances, respondent used the occasion of a snow removal assignment to avoid working for several hours of his shift.

Two of the other charges, involving absences of far less duration, are deserving of 5 days’ suspension each. While the violations are minor, past penalties of one to two days’ suspension seem to have been ineffective in convincing respondent that he must obey the Department’s rules as to leaving collection routes and taking breaks. The charge involving leaving the route ten minutes early is deserving of only a three-day suspension, since the evidence indicated that respondent completed his route on that day and, although Supervisor Gallotta believed stops had been missed, I did not find that the evidence supported this allegation. Likewise, the charge involving the failure to go to the dump as ordered was mitigated by respondent’s compliance with the order within five minutes. This violation, too, is deserving of only a three-day suspension.

Accordingly, I recommend that respondent be suspended for 31 days for the five violations which were sustained here.

John B. Spooner

Administrative Law Judge

February 9, 2007

SUBMITTED TO:

JOHN J. DOHERTY

Commissioner

APPEARANCES:

CARLTON LAING, ESQ.

Attorney for Petitioner

KIRSCHNER & COHEN, PC

Attorneys for Respondent

BY: ALLEN COHEN, ESQ.

The City Civil Service Commission’s Decision, Item No. CD07-91-M, September 21, 2007

_______________________________________________________

THE CITY OF NEW YORK

CIVIL SERVICE COMMISSION

In the Matter of the Appeal of

PHILIP GRIFFITH

Appellant

- Against -

NYC DEPARTMENT OF JUVENILE JUSTICE

Respondent

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

_______________________________________________________

SIMON P. GOURDINE, Commissioner/Chairman

STATEMENT

On Thursday, May 31, 2007, the City Civil Service Commission heard oral argument in the appeal of PHILIP GRIFFITH, Sanitation Worker, NYC Department of Sanitation, from a determination by the NYC Department of Sanitation, finding him guilty of charges of misconduct and imposing a penalty of a SUSPENSION following an administrative hearing conducted pursuant to Civil Service Law Section 75.

DECISION

PHILIP GRIFFITH appeal from a determination of the City of New York Department of Sanitation (“DOS”) finding him guilty of incompetence and misconduct and imposing a penalty of thirty-one (31) days suspension without pay following disciplinary proceedings conducted pursuant to Civil Service Law Section 75. The Commission conducted a hearing on May 31, 2007.

Appellant, a Sanitation Worker was charged with 15 specifications of misconduct, ranging from insubordination and failing to follow Department collection rules to loitering from October 5, 2004 through June 13, 2005 while assigned to the Brooklyn North garage. The Administrative Law Judge (“ALJ”) sustained five charges and dismissed the remaining ten charges and recommended thirty-one days suspension without pay.

The Commission has carefully reviewed the record adduced below and considered the arguments on appeal. We note that Appellant has been with DOS since 1993 and has a prior disciplinary history. His disciplinary history includes, two days suspension for sick leave violations and disobeying orders in 1998, a five days pay fine for sick leave violations in 1999, a two days and one day suspension for other leave violations in March 2000 and August 2000, a one day suspension and a reprimand for sick leave violations in June 2002 and August 2002.

This Commission finds the penalty to be excessive, in light of the fact that Appellant’s prior history consist of minor infractions with a penalty of no more than five days and the ALJ dismissed 10 out of the 15 charges. Therefore, the Commission hereby modifies the determination of DOS to a suspension of twenty (20) days. Appellant is to be reimbursed within thirty (30) days from this determination.

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

DAVID S. LANDE, Commissioner, NYC Civil Service Commission

RUDY WASHINGTON, Commissioner, NYC Civil Service Commission

NORMA LOPEZ, Director/General Counsel, NYC Civil Service Commission

ALLEN COHEN, ESQ. CARLTON LAING, ESQ.

Representative for Appellant Representative for Respondent

-----------------------

[1]Three specifications (F116084, F116079, and F116309) were withdrawn during the hearing.

2Following the issuance of the original report on February 8, 2007, petitioner’s counsel sent this tribunal an email noting discrepancies between the number of charges sustained and the penalties recommended. This amended report reconciles the findings and conclusions with the analysis of the charges and adds penalty recommendations omitted from the original report, increasing the total recommended penalty from 25 days’ suspension to 31 days’ suspension.

[2] Respondent offered some evidence to explain this strained relationship. Worker Francisco Vera testified that respondent was elected shop steward because the previous shop steward had been “running” his route to finish all his assigned collections early and the other workers had resented this because they were physically unable to work this fast. Because Supervisor Gallotta and other managers wanted to encourage workers to work as rapidly as possible, he was often in conflict with respondent who resisted efforts by management to compel workers to finish their routes more quickly (Tr. 494-96). Mr. Vera recalled getting some 15 complaints himself which he settled for a reprimand (Tr. 497-98, 501).

[3] In his initial testimony, respondent stated that his partner actually dumped the truck while respondent met with the borough superintendent at the garage (Tr. 924). Since Supervisor Gallotta stated that the workers drove directly to the dump, and since respondent himself indicated as much on cross-examination, I found that respondent returned to the garage after dumping the truck, not before.

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