Human Resources Admin



Human Resources Admin. v. Allen

OATH Index No. 212/06 (June 28, 2006)

Agency proved that supervisor sexually harassed three women security guards under his direction, misused the agency van for personal travel, logged excessive mileage, failed to submit daily route sheets, and knowingly submitted a false affidavit and other false statements about using the van for official purposes. Respondent was also insubordinate. Charge that respondent was intoxicated on the job not proved. Termination of employment recommended.

______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

HUMAN RESOURCES ADMINISTRATION

Petitioner

- against -

WAYNE ALLEN

Respondent

______________________________________________________

REPORT AND RECOMMENDATION

JOAN R. SALZMAN, Administrative Law Judge

Petitioner, the Human Resources Administration, brought this disciplinary proceeding pursuant to section 75 of the Civil Service Law. The petition alleges that respondent, a captain in the agency’s Office of Security Services, misused his office in the following ways: (1) by sexually harassing four women who were subject to his supervision as security guards employed by a firm that was under contract to the agency, by abusing official position, and by using sexually charged, abusive language with them; (2) by misusing a City-issued van for personal travel, and conducting non-agency activity during working hours[1]; (3) by falsifying related documentation of his use of the van; (4) by failing to submit daily route sheets for three weeks in June 2004; (5) by consuming alcohol during working hours; (6) by being insubordinate when he failed to report despite instructions from superiors; and (7) by failing to conduct himself in a manner which would reflect favorably upon himself, the agency and the City and generally engaging in conduct prejudicial to good order and discipline, and bringing discredit upon the agency and undermining his own effectiveness as an employee (ALJ Ex. 2).

Following a three-day hearing, and extensive post-trial briefing, and upon consideration of the full record of this matter, I find that petitioner has proved all the charges by a preponderance of the credible evidence, except the intoxication charge and a portion of one charge involving the van, and recommend termination of respondent’s employment. The agency proved that in a stunning variety of ways, respondent abused the power, authority and trust the agency placed in him.

ANALYSIS

Inappropriate Sexual Comments to Subordinate Security Workers

Although respondent denied having made the alleged sexually charged comments to four female workers under his supervision and the agency had no witnesses other than the complainants to the alleged offensive statements by respondent, I found three complainants’ specific, detailed testimony convincing in comparison to respondent’s wan, blanket denials. The fourth complainant did not appear at trial, and I was, therefore, unable to assess her credibility. His conduct was intimidating to these workers, who rationally feared that if they crossed respondent, he could cause them to lose their jobs by complaining to John C. Mandel Security (“Mandel”), their employer, a private firm under contract to provide security personnel to the agency.

A. Lillian Bland

Petitioner alleges that on January 4, 2004, respondent stated to security officer Lillian Bland: “I can imagine you in the Pocono’s in a Jacuzzi with you[r] breast exposed. Oh your breasts are so beautiful” (ALJ Ex. 2). Ms. Bland made a record of the comment in a February 22, 2005, statement, which she handwrote, indicating that respondent said to her in January 2004: “I could image [sic] your breast in a hot tub with me” (Pet. Ex. 1). Ms. Bland stated that she was in the locker room in the basement of the agency offices at 210 Livingston Street, where she worked for Mandel. Ms. Bland worked for Mandel for 20 months and was no longer in Mandel’s employ at the time of the hearing. Respondent was a captain at 210 Livingston Street when Ms. Bland began to work for Mandel. As captain, respondent supervised a chain of command including Mandel security guards, Mandel security supervisors, and City employed sergeants. Respondent was the “head of the whole site.” Respondent was Ms. Bland’s supervisor for about two or three months, and he would check that “everything was correct” at the site, check that the guards’ uniforms were up to par, and make sure the building was running correctly (Tr. 11-12).

Ms. Bland was in the security locker room, or lounge area, and respondent came up and sat next to her. She was sitting on one edge of a long table, and he was sitting next to her and introduced himself. Ms. Bland described the conversation:

He introduced hisself [sic] to me. He told me that I’m a very beautiful young lady, or whatever, and then he said something that I felt wasn’t right when he said he could imagine my breasts being in a hot tub with him.

(Tr. 13-14). Ms. Bland did not respond; she got up and left and resumed her post, and reported the incident to her supervisor, Kim McFarland, and one of her co-workers, a guard named Ms. Pemberton (Pet. Ex. 7A; Tr. 14). Ms. Bland testified credibly that Ms. McFarland told her she could either write notes to herself about the incident or complain to Mandel. Ms. Bland did not initially complain formally because she had just started the job and did not want to jeopardize it (Tr. 14). After the Christmas holiday, Ms. Bland spoke to Captain Bellamy of the agency about the comment, in response to inquiries Ms. Bellamy was making of all the guards at 210 Livingston Street about whether respondent had sexually harassed or said “anything wrong” to them (Tr. 15). She told Captain Bellamy on February 18, 2005, that on January 4, 2005 (though this is likely a reference to January 4, 2004), respondent made a comment to her about seeing her in a hot tub, in the Poconos with her breast out, then asked her if that could happen, to which Ms. Bland replied, “No” (Pet. Ex. 3). Ms. Bland’s employment with Mandel was terminated for leaving her post and being insubordinate, but it was a Sgt. Chase, not respondent who filed a disciplinary complaint against her (Tr. 16-17). I credit Ms. Bland’s testimony that she waited more than a year to write the comment down because she did not want to lose her job, and only wrote her memorandum in response to an inquiry from Captain Bellamy (Tr. 22). Ms. Bland testified that she knew two of the other complainants, Tyeasha Jones and Talia Joseph, and socialized with them when they worked at Mandel, but no longer does. Ms. Bland talks with Ms. Jones from time to time, but no longer with Ms. Joseph (Tr. 22-23). There was no basis to believe that because these women knew each other, they conspired against respondent, and there was no basis to conclude that Ms. Bland was motivated by animus or wanted to retaliate against respondent, who, according to the proof, had nothing to do with her firing.

Respondent testified that Ms. Bland was very “attitudal [sic]” in that she “had an attitude about everything,” and was “very unprofessional” and acted as if she was out in the street (Tr. 352). He flatly denied that he commented on her breasts (Tr. 354): “Never happened. I’m sick of this” (Tr. 354).

I find that respondent made the inappropriate comments about visualizing Ms. Bland’s breasts in a hot tub, and inquired whether he could really see her naked in that setting.

B. Tyeasha Jones

Petitioner alleged that on December 23, 2004, respondent said to security officer Tyeasha Jones: “[Y]ou look good and I know a lot of guys like you because you’re bowlegged. Don’t let them get you in trouble,” then approached her and said, “That’s what I’m talking about” (ALJ Ex. 2). Ms. Jones appeared visibly shaken at trial. She cried throughout her testimony. She was still employed by Mandel, respondent remains an agency supervisor, and she reasonably feared for her job. She continued to be fearful that her trial testimony could get her fired “because I know he know a lot of people and he might try to get me fired” (Tr. 31). Ms. Jones’ version of events was entirely credible. Her fear derives in part from her situation as a single parent with two children and no other income than her own to provide for them (Tr. 31).

Ms. Jones has worked at 210 Livingston Street since she began working for Mandel, beginning in April 2004 (Tr. 26, 32). Ms. Jones knew respondent to be the agency Captain in charge at that location (Tr. 26). She testified credibly that she had a problem with respondent at a Christmas party in December 2004. She was dancing and he called her, saying, “Tenth Floor, Tenth Floor. Come here for a minute” (Tr. 27). He did not know her name, and so called her by the floor where she worked. She testified further that she went over to him when he called her and he said: “Don’t let these guys get you in trouble, even though you’re bowlegged. You know I could fire you.” Ms. Jones asked “Why would you fire me?” and “just walked away crying because he made [her] very uncomfortable” (Tr. 27). Ms. Jones testified credibly that respondent was not joking with her, either about his comment on her body or about his threat that he could get her fired (Tr. 29-30). She took what he said seriously (Tr. 30). Although there were other people at the party, the music was loud and others could not hear what respondent was saying to Ms. Jones (Tr. 28). Ms. Jones went and told her Mandel supervisor, one Shaunda, of the conversation and Shaunda told Ms. Jones to calm down because she was crying. Then Shaunda and Ms. Jones went and told Sgt. Keyes of the incident (Tr. 28).

Ms. Jones was understandably hesitant initially to complain further. At first, she wanted only that respondent stay away from her, but she realized that as the Captain in charge, he would have to talk to her. After speaking with Sgt. Keyes, however, Ms. Jones decided to write a report on the incident and she gave it to Mr. Lemons from the Equal Employment Opportunity Office (“EEO”) at the agency: “But I felt it’s best to put it on file, you know, to go to EEO with it just in case if he ever mess with me, again” (Tr. 35). Ms. Jones complained to both Mr. Lemons and Captain Bellamy about the incident after Christmas 2004, in the early part of 2005 (Tr. 30). She did not believe she waited long to file her complaint: “I don’t think that I waited long. I don’t think that was long. I don’t think like, really, a situation like that, I don’t think it’s like the principle of waiting long at the time a person be scared. That’s what it is” (Tr. 35). Ms. Bellamy asked the women security officers if any of them had problems, and advised Ms. Jones to write the complaint to Mr. Lemons, saying “‘Just to put it on record’” (Tr. 31, 36). Ms. Jones regarded herself as one of the women who had a problem with respondent (Tr. 36). She told Captain Bellamy that respondent approached her again at the party and said: “That’s what I’m talking about” (Pet. Ex. 3). Ms. Jones told agency investigators that a month or two after the party, respondent threatened to fire her on the basis that there are always a lot of people around her post. She was upset by this because the accusation, she said, was untrue (Pet. Ex. 7A). Ms. Jones knows the other complainants, Lillian Bland and Talia Joseph, but does not socialize with them outside work. Ms. Jones testified that she does not get along with Ms. Joseph, and she credibly denied discussing with Ms. Bland the incident with respondent (Tr. 38). There is no basis in this record to conclude that Ms. Jones fabricated her complaint.

Respondent testified that he barely knew Ms. Jones and that the guards were very undisciplined. He thought she seemed very unstable (Tr. 348). His testimony that it was he who requested that the guards have a holiday party because he felt “[t]hey deserved the party” made little sense, given his contradictory testimony that they were so clique-ish and undisciplined, and were, in his words, such an “unsavory lot” (Tr. 393). He simply denied that he made the comments Ms. Jones attributed to him (Tr. 349-50, 392-93). He speculated that Ms. Jones fabricated her testimony because he made it known that jobs were going to be cut, and she wanted to preserve her job, and also that he warned her in March or April of 2004 that if she had other guards continuing to gather around her post, he would request that she be transferred (Tr. 350-51).

I find that respondent made the inappropriate sexual comments to Ms. Jones.

C. Charlene Dunlop

Petitioner alleges that respondent sexually harassed security officer Charlene Dunlop by asking her on July 16, 2004 if she was a “dyke”; by saying to Ms. Dunlop on August 18, 2004, in reference to a banana that was on her desk that his banana was bigger than that; by bringing his face close to her while she was filling in her log book and saying “Come on and give me a kiss”; and by sitting on her desk and leaning towards her face and attempting to kiss her on September 14, 2004 (ALJ Ex. 2).

July 16, 2004

Ms. Dunlop has worked for Mandel for more than six years as a security officer (Tr. 41). She has worked at 151 Lawrence Street in Brooklyn for about three years. She met respondent in June or July of 2004. She was a supervisor and he would come to the site to check that the security work was being done correctly (Tr. 4, 57). Ms. Dunlop reported to Borough Commander Harris of Mandel. Respondent was above Mr. Harris in rank (Tr. 42). Ms. Dunlop would see respondent once a day when he would come to 151 Lawrence Street. At first, their working relationship was good, but it changed when he made certain statements to her. Ms. Dunlop told EEO investigators that respondent said he thought she was a lesbian because she never smiles (Pet. Ex. 7A). She testified that on July 16, 2004, “[h]e asked me was I a dyke. He said I had an aura about me. I have this attitude where I maintain, you know, I don’t smile, I don’t laugh, you know, I don’t joke around. Okay. No, I do not. I take my job very serious. I love what I do. I’m here to do a job and that’s it” (Tr. 43). Ms. Dunlop testified that respondent was standing by the desk where she was sitting (Tr. 44). She responded to the question posed by telling respondent, “‘I love men’” (Tr. 44). Although other people were around, Ms. Dunlop could not say whether anyone heard the conversation between her and the respondent. He was not speaking loudly, so that she believed nobody else could hear; nobody ever said anything about the conversation in any event (Tr. 44).

Ms. Dunlop told her guards, including Alvin Rushin (Tr. 60) “everything that was going on” and also told a girlfriend about the incident (Tr. 44). She told EEO investigators that respondent has an “I can get any woman type of attitude” and that her whole family knows what she had “gone through at work,” because she told them about respondent’s actions (Pet. Ex. 7A). She also said she complained to Captain Lisa Looby, who took a statement from Ms. Dunlop at the Euclid Center on Pine Street, where Ms. Dunlop had been sent after she was subsequently demoted, but nothing came of that complaint, as far as Ms. Dunlop knew (Tr. 156-67; Pet. Ex. 7A). A colleague from Mandel, Lorainne Rembert, advised Ms. Dunlop that respondent’s comments were actionable (Tr. 45).

August 18, 2004

Ms. Dunlop testified that on the morning of August 18, 2004, respondent came to the site where Ms. Dunlop worked and filled out the captains’ logbook. Ms. Dunlop went downstairs and purchased two bananas and coffee, which she placed on her desk in a basket, because it was not yet break time. Respondent said: “Well, my banana is bigger than those two that you have on your desk” (Tr. 46). Ms. Dunlop was standing behind her desk and respondent was on his way out the door. Ms. Dunlop credibly testified that she heard respondent clearly (Tr. 47). Ms. Dunlop clearly understood that respondent was comparing the bananas to his penis (Tr. 47). She told co-worker Alvin Rushin, who was posted at the front desk, about the incident at the time (Tr. 48). She also told Ms. Rembert she would speak with her mother and other family about this incident, but she said nothing to respondent (Tr. 47-48). Ms. Dunlop consulted her mother, who advised her to keep silent because Ms. Dunlop has four children and needs her job -- that she had to decide if she would lose her job by complaining or keep it by saying nothing (Tr. 48). Ms. Dunlop told her mother she would “fight this thing to the end” because she “felt disrespected” (Tr. 48). She also spoke with her husband and her children (Tr. 65).

Ms. Dunlop reported respondent’s comment about the bananas to Ms. Hambright, Deputy Assistant Director of the Burial Claims Unit on Lawrence Street by entering her office and asking how she could file a complaint (Tr. 49). Ms. Hambright did not want to get involved and directed Ms. Dunlop to the State Division of Human Rights, to what Ms. Dunlop understood to be the Equal Employment Opportunity Office (Tr. 50). Ms. Dunlop filed a complaint with the State (Tr. 50). The State Division of Human Rights advised Ms. Dunlop to file a complaint with the Equal Employment Opportunity Office of the Human Resources Administration (Tr. 50).

September 14, 2004

Ms. Dunlop also credibly described in her testimony her third run-in with respondent, on September 14, 2004. Respondent arrived at her worksite again. Ms. Dunlop was working at her desk and she followed her practice and gave respondent her seat because he is a captain. She then went to do her rounds and returned to the desk. He got up, filled out the log book, and on his way out, he leaned down to her and said: “Come on, now. Give me a kiss.” Ms. Dunlop described respondent as being very close to her: “His face was in my face, just like that” (Tr. 51). She did not kiss him. She said: “Ooh, no” and got up and left her desk, and respondent walked out the door, saying nothing else (Tr. 51). There is no reason to believe respondent was joking or teasing. Ms. Dunlop said she did not “stay around long enough to find out” whether he was kidding (Tr. 52). She reported this incident to “[her] guard” and Lorainne Rembert (Tr. 52). The agency summoned her three times to hear her complaints, and Mandel also called her once to follow up. Joanne Orr, Director of Burial Claims at 151 Lawrence Street, called Ms. Dunlop on the phone and asked for an explanation of respondent’s actions towards her. Ms. Orr told Ms. Dunlop that she was going to make a recommendation to respondent’s boss (Tr. 52-53). Ms. Dunlop also went to the 250 Church Street office of the agency, in response to a call from that office, and spoke with a man whose name she did not recall and with Borough Commander Harris. Thereafter, Mr. Lemons of the agency’s Equal Employment Opportunity Office called her to 180 Water Street in Manhattan. Mr. Lemons was with a Borough Commander Watson from Queens (Tr. 53). A Mr. Rossi from Mandel also summoned her to explain respondent’s conduct toward her (Tr. 53).

On November 22, 2004, Ms. Dunlop made a handwritten, sworn memorandum of the three incidents. The statement was consistent with respondent’s testimony (Pet. Ex. 2). Ms. Dunlop gave this statement to the State Division of Human Rights at 55 Hanson Street, to the Human Resources Administration Equal Employment Opportunity Office at 180 Water Street, and to Mr. Conley, of the 250 Church Street office of the Administration (Tr. 54). The complaint is dated July 16, 2004, the date of the first incident. Ms. Dunlop testified that as part of her job, she kept a daily journal in which she wrote everything down on the date of each occurrence (Tr. 55). She transferred her notes to the document marked Petitioner’s Exhibit 2 on each of the dates noted in that Exhibit and kept adding to the complaint until she learned where she could make a claim. Ms. Dunlop completed the written complaint on September 14, 2004, and had it notarized on November 22, 2004 (Tr. 56; Pet. Ex. 2). Petitioner submitted Ms. Dunlop’s original daily notebook, which contains the entries, which she testified she made daily, and which fully supports her testimony (Pet. Ex. 19):

7-16-04 Capt. Allen visit [site] ask was I a Dyke.

8-18-04 To S/S Dunlop his banana bigger than the two I had.

Sept. 14, 2004 Capt. Allen visited site and said Gimme Kiss. NO!

I find these contemporaneous notes reliable and credible. Although respondent’s counsel at first demanded to see the notebook, she then objected to its introduction as unnecessary on the last day of the hearing (Tr. 64, 409-11). The notebook was accepted as evidence. It strengthens the agency’s case and supplies a running, chronological account in some detail of respondent’s inappropriate comments and actions toward Ms. Dunlop.

I find Ms. Dunlop’s testimony and her actions entirely credible. She complained right away and kept records of the incidents. Respondent made much of Ms. Dunlop’s demotion from supervisor on November 19, 2004 (Tr. 58) as a motive for her to retaliate against respondent by inventing all her claims. While respondent’s defense was colorable, I did not find it persuasive. Ms. Dunlop complained immediately to co-workers and family, but did not immediately go to Borough Commander Harris about the “dyke” comment because there was no literature about harassment of which she was aware at that time, “So I had to figure out on my own and do it the hard way” (Tr. 61). In addition, she conceded on cross-examination that she did not complain to the agency at first for fear of losing her job because she knew that Mr. Harris had worked with respondent to try to get her removed from 151 Lawrence Street (they had told her so), but she also stated that she did not know how she got demoted and removed ultimately (Tr. 60).

Although she conceded that she was very angry and agitated about her demotion, I credit her testimony that these events happened as she said they did, and that she cannot say whether respondent caused her demotion because she does not know. She filed the complaint with the State on the same day she was demoted, November 19, 2004, though she had attempted to lodge the complaint the day before she learned of her demotion, on November 18th, but was too late arriving at the relevant office (Tr. 65-67). While she did not initially complain to supervisors, for lack of information on how to make a complaint, she did talk to co-workers, her friend, her family, and she also called a lawyer (Tr. 69). Mr. Headley of Mandel, not respondent, demoted Ms. Dunlop. She denied that she was testifying against respondent to exact revenge against him (Tr. 75). I credit her testimony that she complained because she “wanted to stop this. I wanted my respect back. I’m not going to sit and let anybody say and do what they want to me” (Tr. 72). Although Ms. Dunlop was angry about her demotion, I do not conclude that she fabricated her claims to retaliate against respondent. She documented her claims contemporaneously, and sought help. Although she may have sensed that she was going to be demoted because of tensions in the workplace, and her perception that she was being treated unfairly may have impelled her to take action, I find her complaints credible, and her victimization real.

Respondent testified that he supervised Ms. Dunlop for eight or nine months and that she was a poor supervisor (Tr. 342). Asked if he was “strict,” he described himself as a “soldier” (Tr. 343). Respondent recommended that Ms. Dunlop be transferred because she “was a mess” – always outside smoking (Tr. 343). He stated that she was giving out the combination to the door locks and he could not stand for it, “couldn’t deal with it anymore” (Tr. 343). But with all this supposed serious misconduct on her part, he produced no documentation of her faults, not a single piece of paper or corroborating testimony of an allegedly outrageous security breach concerning the door locks, and these glaring omissions detracted greatly from his defense. He claimed she had “illicit” literature on her desk, for example, “Homo Thug,” and that “he couldn’t deal with it anymore” (Tr. 344). That testimony, rather than being exculpatory, tended to lend some credence to Ms. Dunlop’s testimony that he was focused on her sexual orientation, although he denied asking her if she was a dyke when he visited 151 Lawrence Street on July 16, 2004 (Tr. 344). Respondent submitted a copy of the agency logbook for that site for August 18, 2004 (Resp. Ex. A). He testified that this book is maintained by the security supervisor to log any unusual occurrences or incidents. He contended that he signs this book upon arriving at and departing from the facility (Tr. 345-46). His signature appears at 2:30 p.m. to mark his arrival and 3:25 p.m. to mark his departure. Thus, he denies that he was at that site at the time Ms. Dunlop claims he made the banana comments, but I do not find it significant what time of day they spoke to each other. Ms. Dunlop’s contemporaneous record did not list a time of day on August 18 that he spoke to her of bananas (Pet. Ex. 19), and she could have been mistaken about whether it was earlier in the day that respondent made the comments. Or, given that he was so careless and dishonest about his record keeping as it related to the agency van, as will be seen, infra, it is also possible that he was lackadaisical with the logbook, as he nearly conceded on cross-examination (Tr. 388), and likely that his denials are false. He flatly denied asking Ms. Dunlop for a kiss on September 14, 2004, and said she was “retaliating against me because she was moved from the facility. Plain and simple” (Tr. 347).

I find that respondent made the inappropriate sexual comments to Ms. Dunlop.

D. Talia Joseph

Petitioner’s case concerning Ms. Joseph was based solely on hearsay. Agency Equal Employment Opportunity (“EEO”) counselor Donald Lemons interviewed Ms. Joseph, who told him that she is gay, that respondent said inappropriate things to her girlfriend, and that this upset Ms. Joseph (Tr. 153). Ms. Joseph filed a written complaint on February 22, 2005. It states:

Captain Allen has said three inappropriate things to me before that made me very uncomfortable. First thing was when I changed out of my uniform into my street clothes and he was like “dam[sic] girl why you doing that to me.” Second thing was he told me he wants to take me and my girlfriend out in a limo to hang out. Third thing was when I told him that I was gay he told me is there anything he can do to change my mind and asked me am I sure.

(Pet. Ex. 8). In her interview with Mr. Lemons, Ms. Joseph stated that respondent made these types of statements since he started supervising her. She added to her written complaint: “He knows that I am gay. He told me that he wants to take my girlfriend and I out on a limo ride. He has made these types of statements as soon as he started in December 2004. One day he saw me in my street clothes and said, ‘Damn, I didn’t know that you had it like that.’ He told me that my girlfriend is pretty and he wants to take us out . . . . [L]ast week he approached my girlfriend, who came to visit me at work, and placed his hand on her shoulder. I immediately removed his hand and told him that I did not like that. I think that he is a pervert. He does not think about things before he says them. He later apologized to me for putting his hands on her shoulder” (Pet. Ex. 7A). Respondent admitted that he told Ms. Joseph that he found her girlfriend attractive, but denied that he was flirting with Ms. Joseph’s girlfriend (Pet. Ex. 7A at 3-4). Respondent denied all of Ms. Joseph’s allegations and said she was “[t]he worst” type of employee because she could not adhere to any instructions, she would be unprofessional and off-post, but she had the protection of some supervisors who were “clique-ish” and they would petition him to keep her (Tr. 350, 352).

There is insufficient proof of the allegations concerning Ms. Joseph.

Respondent’s Defense

Respondent’s overall defense was directed at all the complainants and, therefore, is worth some additional discussion. I have considered and rejected as unconvincing this two-pronged defense: that respondent is of good character and that the guards fabricated their testimony in a conspiracy against him because he is strict with them. Respondent contends that he has been victimized because he is a “[b]lack [m]ale in a position of authority,” and that if he says anything to the guards “outside of the scope of work, it is considered sexual harassment” (Pet. Ex. 7A at 4). He claims that the guards knew that he had to cut staff and that they filed these complaints to protect their jobs (Pet. Ex. 7A at 4). He denied that he commented on Ms. Jones’ bowlegs; claimed Ms. Joseph misunderstood him; said he did not recall the conversation with Ms. Bland; and said Ms. Dunlop was lying because he demoted her for leaving her post uncovered (Pet. Ex. 7A). Respondent claimed that the guards were inordinately friendly with each other at 210 Livingston Street and that he was sent there to clean the place up (Tr. 352-53).

Respondent asserts that Mandel guards are of low quality because Mandel was selected for its low bid on the security contract (Tr. 341). He testified that he consistently found the guards either not performing their duties or engaging in some type of misconduct (Tr. 341). Being “a stickler on troop leading procedures” as a retired captain in the U.S. Army Reserves (Tr. 318), he would complain to the Mandel supervisors or the agency sergeant (Tr. 341). He contended that the guards knew about his complaints (Tr. 342), but readily conceded that since he was not present when Mandel supervisors issued disciplinary complaints to guards he could not be sure the supervisors conveyed his involvement to the guards (Tr. 386). He even admitted that Ms. Dunlop could be correct when she testified that she did not know if respondent was involved in her transfer because Mandel would not give her an explanation (Tr. 386).

Respondent offered a number of character witnesses, but I did not find their testimony sufficient to overcome the credible complaints, particularly because most of these witnesses work under his supervision and had something to gain from assisting him; others were co-equal colleagues, captains who sympathized with respondent; and none of them was in a position to see or hear the events at issue. They were clearly heavily biased in his favor. Their testimony was largely irrelevant, because they had no personal knowledge of the alleged incidents. Moreover, their testimony was often vague, contradictory, and unreliable. Several of these witnesses offered a conspiracy theory: either the agency or the security guards were “out to get respondent” (Captain Agbaje: Tr. 269). I found this conspiracy defense (that the complainants manufactured evidence) highly speculative and implausible, and reject it. Human Resources Admin. v. Dare, OATH Index No. 1806/99, at 7-9 (Nov. 8, 1999), modified on penalty, Comm’r Dec. (Nov. 23, 1999) (rejecting unproved conspiracy defense to charges of sexual harassment). It was not only the female guards in this conspiracy, according to respondent. There was also John Watson, a Borough Commander with Mandel, who, respondent testified, was present when Mr. Lemons interviewed the witnesses (Tr. 360-61). Respondent asserted that Mr. Watson was also out to get him because respondent interviewed him for an agency captain job, which Mr. Watson did not get (Tr. 362).

Respondent’s witnesses offered, at best, hearsay or double hearsay, to the effect that guards other than the complainants were overheard to say that they “got Captain Allen” (Tr. 260), meaning, one surmises, that the sexual harassment complaints would harm his career, but these supposed declarants were either not identified at all, or so poorly described as to put their actual existence in grave doubt. For example, Jacqueline Gonzalez, a Mandel security guard who belittled Ms. Dunlop as a “street person” and a “chronic alcoholic,” but exalted respondent, told nobody about her supposedly having heard Ms. Dunlop threaten respondent’s career until she learned of this hearing -- when “the problem became visual to my ears” (Tr. 293, 298-99, 302). I did not credit this testimony because it was hyperbolic, contrary to Ms. Dunlop’s demeanor at trial, and too convenient and self-congratulatory to be believed. The one purported declarant identified by name who supposedly articulated the notion that the guards were going to “get” respondent, impliedly by manufacturing evidence against him, one Elisha Walton, was not produced at the hearing, even though she was available to respondent because she was still working for the agency at its Livingston Street location (Tr. 260). In short, the character/conspiracy witnesses offered unreliable hearsay that was self-contradictory, vague, incredible, and thoroughly unconvincing.

I credit in full the testimony of the three complainants who appeared at the hearing and find that petitioner has proved sexual harassment and improper conduct by respondent in violation of agency rules with respect to three complainants, Ms. Bland, Ms. Jones and Ms. Dunlop. These three complainants are the sole witnesses to the alleged harassment, but “[t]his factor alone . . . does not defeat their claim. Acts of a sexually harassing nature are frequently committed in secret, beyond the eyes and ears of potential witnesses.” Dep’t of Sanitation v. Soto, OATH Index No. 227/01, at 18-19 (June 29, 2001). If respondent’s grotesque remarks to these women do not constitute sexual harassment for purposes of imposing discipline on an employee in administrative proceedings, then the term sexual harassment has no meaning.

Executive Order No. 651, section III(34) (Dec. 17, 1998) provides:

Employees shall not use offensive, obscene or sexual language or

gestures or ethnic slurs toward any participant, employee or private

citizen. Employees shall not sexually harass any participant,

employee or private citizen.

This provision has been interpreted to encompass offensive sexual comments. Human Resources Admin. v. Dare, OATH Index No. 1806/99, at 4, 9-10 (Nov. 8, 1999), modified on penalty, Comm’r Dec. (Nov. 23, 1999) (respondent told co-worker, inter alia, that he wanted her “to be his concubine”). The other provisions of the same Executive Order on which the agency relies require employees to be courteous and considerate with the public and other employees and to conduct themselves “in a manner which will reflect favorably upon them, upon the Agency and the City,” and not “in a manner prejudicial to good order and discipline” (section III(1)); to commit no act relating to agency office “which constitutes an unauthorized and abusive exercise of the employee’s official functions” (section III(11)); to use no “obscene, abusive or inappropriate language with a participant, supervisor, fellow employee or private citizen” (section III(33)); and to engage in no conduct “detrimental to the Agency or which would undermine the effectiveness of the employee in the performance of his/her duties” (section III(36)). Respondent has broken all of these rules.

Respondent cites a number of federal and state cases in support of his argument that the proof here was insufficient to show a hostile work environment. Those cases are inapposite because they typically involve suits against an employer, brought under Title VII of the Civil Rights Act of 1964. This is not a suit against an employer where it must be shown that the employer knew of and condoned or tolerated sexual harassment. Here, by contrast, “[i]n an administrative disciplinary proceeding, such as this, in which it is the employer who seeks to discipline an employee for sexual harassment, it need only be shown that the conduct complained of was sexually motivated, regardless of whether it was persistent or part of a pattern.” Fire Dep’t v. McFarland, OATH Index No. 230/86, at 15 (Aug. 21, 1986). Accord Dep’t of Correction v. Andino, OATH Index No. 492/95, at 7-8 (Dec. 13, 1994); Dep’t of Personnel v. Rago, OATH Index No. 471/92, at 8 (Apr. 22, 1992); Dep’t of Parks & Recreation v. Aronoff, OATH Index No. 366/87, at 33 (Mar. 24, 1988).

It is too difficult, however, to evaluate the relative credibility of respondent and Ms. Joseph, whose allegations were presented solely in hearsay form through the agency investigator and documents alone, and the charge relating to Ms. Joseph is dismissed. See Triborough Bridge and Tunnel Auth. v. Simms, OATH Index No. 1303/97, at 19 (May 30, 1997), aff’d, N.Y.C. Civ. Serv. Comm’n Item No. CD 98-123-SA (Dec. 30, 1998) (complainant could not be cross-examined, nor could the reliability of her perceptions, her motivations and biases be tested); Human Resources Admin. v. Dare, OATH Index No. 1806/99, at 10 (Nov. 8, 1999), modified on penalty, Comm’r Dec. (Nov. 23, 1999). I find that respondent’s comments were meant to “embarrass and humiliate” the complainants “and thereby to exercise one of the crudest forms of power over [them] that one human being can exercise over another,” Triborough Bridge and Tunnel Auth. v. Roberson, OATH Index No. 753/94, at 21 (Mar. 13, 1995), aff’d, 232 A.D.2d 200, 648 N.Y.S.2d 18 (1st Dep’t 1996) (repeated sexually suggestive requests for dates).

These charges are sustained in part.

Misuse of Agency Vehicle for Personal Travel and False Statements About Official Business

Respondent misused the agency van, plate number HRA3641690 (Pet. Ex. 6; Tr. 118), that was issued to him strictly for City business purposes, in that he logged excessive mileage on it and, it can be inferred, used it for his own personal travel, both during and after work hours, for an extended period of time. He also misrepresented his use of the van on official documents, and admitted to investigators that he used the van for personal travel.

Sgt. Robert Davis, a Senior Special Officer and agency police sergeant in the Office of Security Services, testified that his duties include the keeping of the transportation records for the agency and supervising security staff at the various buildings of the agency (Tr. 113-14). As transportation liaison, Sgt. Davis notifies employees who are given vehicles where to pick them up and where to find the keys. He also gives these employees a procedural manual for how to operate and maintain the vehicles according to agency procedure also found on the agency’s website (Tr. 114-15). The manual or policy is entitled “Assignment and Use of City-Operated Vehicles,” Procedure No. 00-30 (June 9, 2000). At the time respondent was assigned the vehicle, sometime in 2003, Sgt. Davis handed to the respondent a copy of this manual, together with the daily route sheets required to be completed, with instructions for how to keep records of his use of the vehicle (Tr. 115-16, 125). Respondent was assigned the van for use while on duty (Tr. 125). He was required to record on the daily route sheets every time he moved the agency van, each point of departure and point of arrival, and the daily starting and ending odometer readings (Tr. 116, 119, 199). The sheets must be completed daily and submitted weekly (Tr. 116). Sgt. Davis provided respondent with instructions about how to complete the form and advised that if he had any questions, he should call Stanley Ruszkowski, head of the agency’s Department of Transportation. Sgt. Davis supplied respondent with a completed sample form and advised him to fill the forms out completely (Tr. 118). Respondent’s denial that he received the manual until a year after he got the van is not believable (Tr. 369). Though he testified that he was a “stickler” when it came to following procedure as applied to the guards and their uniforms, he was completely inconsistent when it came to his own requirements to follow agency procedure with respect to the City van. He should have known better because he himself worked in the agency’s Office of Staff Resources, which develops agency policy (Tr. 369-70).[2]

Procedure No. 00-30 is relevant to all the charges of misappropriating the agency van and is worth quoting in pertinent part:

Introduction

The Human Resources Administration (“HRA”) (“Agency”) fleet of motor vehicles represents a substantial investment of New York City (“City”) funds and is one of the most visible aspects of its operations. To ensure protection and efficient use of this property, it is the policy of HRA that its vehicles, whether owned or leased, be used only for the conduct of official City business by duly authorized personnel who exercise all reasonable care and caution to prevent accidents and injuries, in accordance with the policies and procedures set forth in this document. * * *

I.A. 4.0 Use of a Personal Vehicle for Agency Business

Employees may not use a personally owned vehicle on City business/operations, unless authorized to drive for the Agency according to the procedures outlined in this document. . . . An employee using a personal vehicle for business without proper authorization is not considered to be driving on City business and in the event of a vehicular accident will not be afforded employee benefits as otherwise might be available.

IV.A.10 Daily Route Sheets

Daily Route Sheets must be maintained for all vehicles that are assigned on a temporary (i.e., daily) basis. Daily Route Sheets must include the name of the driver, time, designation, purpose of the trip and odometer readings. Drivers are responsible for completing the Daily Route Sheet entry at the time of each trip. Failure to complete the trip Daily Route Sheets may disqualify the employee from future use of City-operated vehicles.

IV.A.11 Vehicle Use

All employees, including those with commuting privileges, are restricted to the use of the vehicle for the performance of official duties. Only stops incidental to the conduct of official business, such as for meals en route to or from a destination, are permitted. The following are examples of personal business that are not permitted:

a) Traveling on nights, weekends or holidays unless conducting City business.

b) The transportation of family members, other persons or materials except as required in the course of City business.

c) Commuting between employee’s home and office unless authorized according to the guidelines for commuting . . . .

VII.D. Official Business Defense

The Official Business Defense Unit (OBD) was established by the Parking Violations Operations (PVO) in order to provide a just and efficient mechanism for the adjudication of parking violation summonses issued to vehicles owned or utilized by government agencies, when such vehicles are performing an official function.

(Introduction, sections I, IA.4.0, IV.A.10, IV.A.11, VIID, emphasis in original; Pet. Ex. 5) (emphasis supplied).

Petitioner placed in evidence a collection of respondent’s daily route sheets (Pet. Ex. 6). Sgt. Davis checks the mileage on the sheets to see whether the odometer readings are in sequence daily (Tr. 121-23).

A. False Document (Charge I, Specification I): January 20, 2004 and March 12, 2004

As a captain, respondent is required to visit three or four different agency locations per day to see that the guards are performing their security work according to contract. For example, captains must walk around each location and check that the guards are on their posts and are in proper uniform; captains also meet with the local director and sergeant to discuss any problems (Weston: Tr. 87-88). Captains’ assignments are generally to locations in close proximity to each other, meaning usually in the same borough (Tr. 89). Respondent works the 9 a.m. to 5:30 p.m. shift and was never assigned to locations situated very far from each other (Tr. 90). At the relevant times, he was assigned to about ten locations in Brooklyn (Tr. 103). Captains have discretion to decide which sites to visit on any given day; they visit on average three to four locations per day, more if they have the time (Tr. 106). Joanne Weston, Acting Director of the Office of Security Services, as his supervisor, was not aware that respondent sometimes stays and works overtime without seeking overtime pay, as he claimed he did (Tr. 106). I do not believe that respondent worked overtime without even advising his supervisor that he was doing so.

Respondent must use Autotime, an electronic time sheet on an agency computer, by entering his hours worked (Tr. 91). If he worked late, he needed approval of his supervisor for overtime pay (Tr. 91). Ms. Weston knows the Linden Job Center at 210 Livingston Street in Brooklyn to be open until about 7 p.m. That center has a food stamp office and a training office (Tr. 92). The official hours of that center are 8:30 to 5 p.m. in general, 6 p.m. closing at the food stamp office. Respondent did not request overtime to work at 210 Livingston Street on January 20, 2004 (Tr. 93). He had an agency-issued van, but the agency took the van from him in August 2004, after he had received tickets and had an accident (Tr. 93). Although respondent claimed he was working overtime without seeking pay for the extra time on January 20, 2004, his supervisor, Ms. Weston, testified that there was no need for a captain to stay at the 210 Livingston Street center until 9:00 in the evening with the eligibility specialists (Tr. 110).

Respondent’s claim that he clocked out of work at 5:30 p.m., but remained at work at 210 Livingston Street, the Linden Center, in Brooklyn until 9:30 p.m. on January 20, 2004, and continued to work there after hours on that date was uncorroborated and incredible. He claimed that there was a new model center or reconfiguration of the center “in play” and “[t]here was much security administration that needed to be procured regarding the safeguarding of the new configuration of that location” (Tr. 224-25, 324-26). There was no witness to his supposed departure from work between 9:00 and 9:30 p.m. (Tr. 325, 384). He called Sgt. Nolan Gamble, his subordinate, in his defense, but the sergeant could not fully or credibly account for respondent’s time that night either. Sgt. Gamble testified that, like respondent, he signed out at 5:30 p.m. on January 20, 2004, but remained at work with respondent until 8:00 p.m., to write post orders for a new center for 210 Livingston Street, without seeking overtime pay, but he left alone and could not account for respondent’s time after 8 p.m. He admitted he did not know what happened after 8:00 p.m. (Tr. 436-441). It was not credible that respondent would stay at work for four extra hours without pay, without even asking for overtime pay, simply for purposes of “keying down,” meaning reflecting on the work, as a “catharsis” to keep his mind off what was going on in his personal life (Tr. 373-75). Respondent acknowledged that he had no witness to his supposed departure from work between 9 and 9:30 p.m. on that night (Tr. 446). His defense that he forgets to log all of his stops on his daily route sheets is simply an admission that he failed to follow agency rules for official use of the vehicle that was entrusted to him and confirms his carelessness in abusing the privilege and responsibility of using the City vehicle. I find that at the time he ran a red light on January 20, 2004, at 10:19 p.m., respondent was not conducting official City business using the van.

Respondent was using the agency van when he committed traffic and parking violations more than once. In one instance, he attempted to disclaim responsibility for the driving violation of January 20, 2004, by claiming that he received the Notice of Violation (Pet. Ex. 10) while in the course of official City business. Respondent’s statement on an official form of affidavit on March 12, 2004, signed but not notarized, was false. Ms. Weston requested that disciplinary charges be brought against respondent for unauthorized use of his City van because of a number of questions raised about his use of the van and his driving record, following his submission of thi s March 12, 2004 affidavit (Tr. 77).

Stanley Ruszkowski, Fleet Administrator of the agency for 15 years, testified emphatically that an employee to whom an agency vehicle is issued, and who thus has sole custody of it, is not allowed to use the vehicle for personal reasons. Employees are not allowed to use their City cars to run errands, like going shopping or visiting a relative either during or after work hours (Tr. 128-30). Every location visited must be listed on the daily route sheet for each day (Tr. 130). Employees are honor-bound to list the true mileage and locations visited (Tr. 132). The official business defense is asserted on a sworn affidavit. If an agency employee receives a parking summons during the course of business, he can apply through the agency parking violations liaison for approval of a defense that can be submitted to an administrative judge. The defense is not available to an employee who received the ticket while conducting personal business (Tr. 132-33). I reject respondent’s explanation that Sgt. Davis advised him to try to invoke the official business defense and never explained it to him (Tr. 326-28), when respondent should have known better. Even if it were true that an underling gave him bad advice, he was in a position of authority in the agency and well knew or could be expected to understand from his having worked, as he testified, in “all facets” of personnel work (Tr. 318), that he could not swear falsely to gain an advantage for himself.

Michael Harris, Disciplinary Investigator Grade III, investigates fraud, misconduct, malfeasance and other acts of impropriety for the agency’s Special Investigations Division, and has done so for seven years (Tr. 189). Respondent received a parking ticket and appeared at the Special Investigations Division, which handles all requests to invoke the official business defense, to have the ticket processed. He falsely told Mr. Harris that the ticket was issued to him while he was on his lunch hour, and in the course of official business, paying for another, earlier Department of Finance ticket issued January 20, 2004, while he was purportedly conducting agency business (Tr. 191, 193, 226). Although respondent approached Mr. Harris, it was Mr. Kaufman, Assistant Deputy Commissioner, who normally reviewed official business affidavits, and Mr. Harris submitted the request to Mr. Kaufman (Tr. 191). Respondent submitted the parking summons with the affidavit (Pet. Ex. 10). The affidavit stated that on March 12, 2004, at approximately 11:30 a.m., respondent had parked on John Street “on official business . . . in order to have a ticket adjudicated at the 66 John Street business center” and received a ticket while parked to attend to the first ticket (Pet. Ex. 10). Mr. Harris questioned respondent’s listing of the lunch hour at 11:22 a.m. because official lunch hour is generally one hour from 12:00 to 2:00 p.m. More importantly, the earlier ticket was issued at 10:19 p.m. on January 20, 2004 (Tr. 194-95). Petitioner submitted the Notice of Liability for this January 20, 2004 violation with photographs of the violation and a narrative statement that respondent had run the red light in the vicinity of Eastern Parkway and Utica Avenue in Brooklyn (Pet. Ex. 10). The agency did not regard respondent’s invocation of the official business defense for March 12, 2004 as true because respondent had clocked out on January 20, 2004, at 5:30 p.m., and the summons was issued much later that night (Tr. 196). The official business defense was denied, not because of respondent’s claimed lunch hour, but because he was not acting on official business on either date (Harris: Tr. 234). Respondent knew that he could not invoke the official business defense for the January 20, 2004 ticket, because Sgt. Davis told him he had to pay that ticket himself, yet it made no sense for him to claim that defense later when trying to pay it on March 12, 2004 (Tr. 377-78). He admitted that he himself did not consider the January 20 ticket official business because he was paying for running the red light with his own money (Tr. 378). His expressed belief that he could claim the defense because he was using a City vehicle is illogical (Tr. 378). Mr. Harris testified sensibly that the affidavit was false and that it is not permissible to park the official van illegally to pay for a parking ticket respondent received for reckless driving in an official vehicle on his personal time. Illegal parking to pay a reckless driving summons incurred while misusing the agency vehicle is in no way an official act (Tr. 237).

This charge is sustained.

B. Personal Use of Van Shown by Excessive Mileage Readings and Admission of Personal Use: October 2003-January 2004 (Charge I, Specification II; Charge II, Specifications V and VII)

Mr. Harris rejected the business affidavit respondent had submitted, and conducted an audit of respondent’s daily route sheets to review his usage of the van for the period October 2003 to January 2004 (Tr. 197). Respondent has only himself to blame for the misconduct that properly led to the agency’s audit of his use of the City van. Petitioner alleged that in this period, respondent underreported his actual use of the agency vehicle (ALJ Ex. 2) on the theory that, in fact, he was using the van for personal, not purely official, purposes. Mr. Harris tested the distances respondent listed on 12 dates in the four-month period October 2003 to January 2004, and found that respondent’s odometer readings showed that he actually covered more than 400 miles more than he would have listed if he went only to the work locations he showed. The discrepancies averaged 39 miles on a daily basis, and ranged from 29 to 59 extra miles. Mr. Harris had a report made by his subordinate summarizing Mr. Harris’ investigation of respondent (Tr. 198; Pet. Exs. 6, 11). Mr. Harris concluded that respondent had accrued much greater mileage than the official visits he listed on his daily route sheets warranted (Tr. 198). I find that Mr. Harris’s conclusion that the mileage respondent listed on the sheets far exceeded that which would be used for the locations respondent listed supported by the proof. Mr. Harris did a random check of dates from each month in the four-month period October 2003 to January 2004, by using his own personal knowledge of agency office locations and by comparing the travel distances shown on the 12 dates to those available on the internet site (Tr. 199-204; Pet. Exs. 11-12).

Following an objection from respondent to Mr. Harris’ conclusions without the back-up documentation of the Mapquest search (Tr. 204), petitioner submitted actual Mapquest documentation showing the discrepancies between the mileage respondent listed and that necessary for the locations he said he visited on official business. Petitioner’s counsel replicated and printed the Mapquest searches Mr. Harris performed and found a discrepancy of 446.37 miles between the mileage respondent listed and the mileage necessary for official travel, compared with Mr. Harris’ tally of 466.37, a variation of only 4 per cent between Mr. Harris’ and counsel’s searches. Although respondent disputed the accuracy of Mapquest in post-trial briefing without specifying how Mapquest might be inaccurate, the actual geographical distances between the locations respondent listed on his daily route sheets were not seriously disputed; rather, respondent contended that he must have omitted locations of the agency he visited, and that these omissions must have accounted for the extra miles.

Pursuant to the rules of this tribunal, 48 RCNY § 1-48, official notice may be taken of geographic distances. That rule provides that: “In reaching a decision, the administrative law judge may take official notice, before or after submission of the case for decision, on request of a party or sua sponte on notice to the parties, of any fact which may be judicially noticed by the courts of this state.” The courts have taken judicial notice of geographic distances. See Hartford Fire Ins. Co. v. Orient Overseas Containers Lines (UK) Ltd., 230 F.2d 549, 556 (2d Cir. 2000), where the Court cited Boyce Motor Lines v. United States, 342 U.S. 337, 344, 72 S.Ct. 329, 333 (1952) (Jackson, J., dissenting), for the proposition that the courts “may, of course, take judicial notice of geography.” “The distance and time of travel between places is judicially noticed, flowing naturally as the result of noticing the location of cities and towns.” Prince, Richardson on Evidence, § 2-204(a), at 33 (Farrell 11th ed.). The courts have also held that they may take judicial notice of non-governmental internet material. Lan Lan Wang v. Pataki, 396 F.2d 446, 458 n.2 (S.D.N.Y. 2005) (Sweet, J.) (court took judicial notice of web-based newspapers like the Village Voice and of the web version of AOL in finding those businesses not similarly situated to plaintiffs for purposes of an equal protection claim); In re Bearingpoint, Inc. Securities Litigation, 232 F.R.D. 534, 540 & n. 9 (E.D. Va. 2006) (citing Wang with approval for the proposition that the court in Wang took judicial notice of the contents of a website, and referring to defendant company’s website to support a finding that defendant’s share price was followed by market professionals, but noting that “judicial notice of websites may not always be appropriate given their relatively ephemeral nature”). See also Dep’t of Correction v. Rodriguez, OATH Index No. 277/06, at 10 n. 2 (Mar. 29, 2006) (official or judicial notice may be taken of matters “of common and general knowledge, well established and authoritatively settled, not doubtful or uncertain. The test is whether sufficient notoriety attaches to the fact to make it proper to assume its existence without proof”) (citing Dollas v. W.R. Grace & Co., 225 A.D.2d 319, 320, 639 N.Y.S.2d 323, 324 (1st Dep’t 1996)). In Rodriguez, the judge found that the petitioner had no basis for attacking the authoritativeness of the National Institutes of Health to provide information about a particular disease on its website. In Dep’t of Consumer Affairs v. Speight, OATH Index No. 375/86, at 13 n.4 (Feb. 6, 1987), this tribunal took official notice of the addresses and layout of the streets in the Bronx, based on a New York City street map.

With two distinguishable exceptions, eight tribunals around the country that have considered recently in published decisions the issue of whether Mapquest is sufficiently accurate to satisfy applicable formal rules of evidence concerning taking judicial notice of indisputable, non-trivial facts, have relied on Mapquest to establish approximate geographic distances. Thus, the weight of authority appears to favor the use of Mapquest as a legitimate source of facts susceptible to judicial or official notice to establish approximate travel distances. Compare Bose Corp. v. Sunshine Electronics of New York, Inc., 2006 U.S. Dist. LEXIS 18669, at 29 n. 12 (N.D. Tex. 2006) (court took judicial notice of distances between court districts and parties’ residences for venue purposes and “other similar information from , as it satisfies the standard set forth in” Rule 201 of the Federal Rules of Evidence[3]); Biomet, Inc. v. Stryker Howmedica Osteonics Corp., 2004 U.S. Dist. LEXIS 6195 (N.D. Ill. 2004) (court took judicial notice of the fact that Chicago is approximately 120 miles from Warsaw, Indiana, while Allendale, New Jersey is approximately 25 miles from the Newark federal court, for purposes of venue, citing and ); Richard v. Bell Atlantic Corp., 209 F. Supp. 2d 23, 27 n. 2 (D.D.C.) (“The court has the authority to take judicial notice of information contained within the public domain, such as the distance between two locations”; court took judicial notice that the distance between plaintiff’s home and place of employment was 32 miles according to , with respect to a claim that an employer failed to make a reasonable accommodation for plaintiff’s disability to ease plaintiff’s commute), appeal dismissed, 2002 U.S. App. LEXIS 12743 (D.C. Cir. 2002); Williams v. Terex Corp., 2001 U.S. Dist. LEXIS 19118, at 10 n. 3 (E.D. Pa. 2001) (“We take judicial notice of the distance between Philadelphia, Pennsylvania and Trenton, New Jersey, as verified by ” for purposes of assessing venue); In re Extradition of Gonzalez, 52 F. Supp.2d 725, 731 n. 12 (W.D. La. 1999) (deciding to release defendant on bond because he presented evidence that he could not have committed the crime of bank robbery based on his whereabouts, court took judicial notice that the driving distance between defendant’s home in Abbeville and Puebla, Mexico is approximately 1240 miles, and the trip would take more than 20 hours by car; court relied on : “Judicial notice can be taken of facts ‘capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned,’” citing Rule 201(b)(2) of the Federal Rules of Evidence; “While it is possible MapQuest’s exact computation might be questioned, the government concedes that there is a great distance between Abbeville and Puebla, and the mileage is not seriously disputed”); Calloway v. Principi, 2004 U.S. App. Vet. Claims LEXIS 378, at 16-19 (U. S. App. Vet. Cl. 2004) (relying on Mapquest to identify addresses in Fayetteville, North Carolina and finding defects in service of notice of an agency decision; “The Court has previously relied on information available to the public online,” including “driving distance between two particular cities” as shown on ); Crain v. Principi, 17 Vet. App. 182, 2003 U.S. App. Vet. Claims LEXIS 532, at 20-22 (U.S. App. Vet. Cl. 2003) (same); with State of Louisiana v. Young, 902 So. 2d 461, 466 & n. 6 (Ct. App. La., 5th Cir. 2005) (in evaluating distance between drug transaction and school, court declined to take judicial notice of maps from Mapquest because defendant never introduced the maps at the trial, the accuracy of the maps was never established, and driving distance was not material to the offense charged, but court noted that in different circumstances, courts have taken judicial notice of geographical distances); and Commonwealth v. Brown, 2003 PA Super 486, 839 A.2d 433, 435-37 & n. 1 (Pa. Super. Ct. 2003) (court refused to take judicial notice of Mapquest pursuant to Pennsylvania Rule of Evidence 201(b)(2): “Clearly, an internet site such as MapQuest TM, which purports to establish distances between two locations, is not so reliable that its ‘accuracy cannot reasonably be questioned.’ An internet site determining distances does not have the same inherent accuracy as do professionally accepted medical dictionaries, or encyclopedias, or other matters of common knowledge within the community”; therefore, trial court abused its discretion in taking judicial notice of a MapQuest distance determination in order to invoke a mandatory sentencing statute providing for an enhanced sentence for drug possession within 1000 feet of a school zone). Brown is distinguishable from the case at bar because there, the government proffering Mapquest conceded that it had conflicting evidence of an actual measurement of the distance from the crime site and the school by detectives using roll tape that differed with the Mapquest figure, and Mapquest uses driving distances, which were irrelevant to distance measured “as the crow flies.” Here, there was no contradictory evidence of the driving distances on Mapquest, and driving distances are highly relevant to the charges. Moreover, respondent’s counsel waived any objection to Mapquest when she agreed that Mr. Harris’ calculations could be received into evidence subject to the introduction of the actual Mapquest documentation of the Mapquest searches (Tr. 204, 218, 407). Petitioner did submit that documentation here.

There are a few decisions in which federal courts in New York, which adhere to the formal rules of evidence, have noted, in the absence of any objection from the parties, travel distances between two points by reference to . See Bogar Allax Monter v. Gonzales, 430 F.2d 546, 560 n.17 (2d Cir. 2005) (noting relative distances for purposes of motion for change of venue, citing Mapquest); Mannarino v. United States, 218 F.R.D. 372, 377 n.3 (E.D.N.Y. 2003) (in arriving at fees incurred by expert in traveling to his deposition, court relied on Mapquest for both estimated distance and travel time); Bisgnano v. Korff, 2001 U.S. Dist. LEXIS 12529 (S.D.N.Y. 2001) (citing Mapquest for both distance and travel time with respect to alleged breach of residency requirement for government job).

I rest my determination that the Department proved these charges of misuse of the van on two sets of separate and independent grounds: (1) respondent admitted to investigators that he used the van for personal errands; the agency investigator, who is familiar with the agency locations, all concentrated in Brooklyn and lower Manhattan, testified credibly and reliably of his own personal knowledge that the mileage respondent listed was patently excessive if he used the van only to do City business at the agency locations he listed on the specified dates; respondent ran red lights twice and had a vehicular accident in the van, where two of the incidents occurred at times when he was off-duty and was not supposed to be driving the van; and he submitted a false affidavit stating that he was conducting official business using the van when, in fact, he was not; and (2) the geographic distances and mileage necessary to travel to the points respondent listed on his daily route sheets, based upon the information available on the internet site , indicate that respondent habitually listed more mileage, by about 80 per cent, in a sample of the sheets the agency tested against Mapquest than was necessary for his official travel. In the sample of 12 dates tested with respect to these charges, respondent listed an average of about 50 miles on the car per day, but Mapquest showed that on average he was listing 40 miles more than one would drive to the official destinations he said he visited.

Respondent admitted to agency investigators on June 30, 2004, that he used the van for personal reasons such as visiting his father in Queens and shopping (Pet. Ex. 11). Mr. Harris, drawing upon his own personal knowledge of the agency’s offices in Brooklyn, gave coherent testimony, supported by his memorandum, that on certain dates respondent either was violating traffic laws with the City van or had logged mileage that was so blatantly in excess of the travel needed for him to make his official rounds in Brooklyn that he could not on those dates have been using the car exclusively for official agency business as he was required to do. Mr. Harris’ testimony on these points comported with common sense. Respondent’s denial that he told Mr. Harris that he used the van to go shopping (Tr. 365) was not credible and respondent did admit that he told Mr. Harris that he used the van to “stop off, get a cup of coffee or maybe get something, you know, at a store on my en route, you know, just like anybody else. I didn’t feel that there was anything unusual about that” (Tr. 331).

Respondent’s defense that he did not keep good records of the agency locations he visited and sometimes forgot and omitted official locations he actually visited, and failed to keep daily records but instead listed locations from a sketchy recollection if he was behind in record keeping for three-week periods, as he told Mr. Harris in a May 28, 2004 interview (Tr. 209),[4] in essence, is a defense of sloppy accounting (Tr. 230-31). That defense is unpersuasive. Respondent admitted that his record-keeping was not “up to par,” he “wasn’t very good with this,” “wasn’t a very good record-keeper with these things” and he just forgot to fill the sheets out other than Brooklyn and lower Manhattan because Brooklyn was “where most of my facilities were” (Tr. 365, 367-69). Although he contended that he had at least nine locations in Brooklyn, Queens and Far Rockaway such that he could visit up to nine in a day (Tr. 319), his testimony contradicted Ms. Weston’s credible testimony that he would visit fewer sites than that each day, and he failed to list these other locations on the sheets highlighted at trial. Mr. Harris testified that the daily route sheets are supposed to be “completed in their entirety” and submitted daily to the vehicle liaison of the division (Tr. 210). “They’re supposed to indicate their starting and ending mileages, starting and ending locations including each and every destination visited” (Tr. 210). Respondent claimed that he resided part-time in Canarsie and part of the time at his father’s home in Queens and was under a lot of strain in his personal life because his mother was in a coma for five years beginning in 1999 and his father needed his help (Tr. 230, 322). Respondent claimed that he had two official residences, his own in Canarsie and his father’s in Laurelton, Queens (Tr. 323). When he was at his own home in Canarsie, respondent would park at the 69th Precinct; when he stayed with his father, he would park at the 113th Precinct (Tr. 323-24). Respondent admitted that Mr. Harris advised him that he could not have two residences (Tr. 332). He had no cogent explanation, however, for why, if he was living with his father in Queens, nearby the 113th Precinct for five and a half years from May 1999 through December 2004, all of the daily route sheets for the period October 2003 to January 2004 show that he parked at the 69th Precinct in Brooklyn (Tr. 371-73; Pet. Ex. 6). Asked during a withering cross-examination why the 113th Precinct was not shown on any of these sheets, respondent at first claimed he would “reposition” the car and get his own car, but finally conceded “I don’t know” (Tr. 372-73). This was more than sloppy record keeping, this hemming appeared to this tribunal to be pure mendacity on respondent’s part.

Respondent’s generalized challenge to Mapquest suggests no way in which Mapquest is inaccurate, nor did he contend that the mileage that he listed on the route sheets correctly reflected the mileage necessary to make the trips he listed in writing. Rather, he conceded that his daily route sheets were wrong. It did not help his case that his credibility was seriously damaged by his false submissions with respect to the traffic tickets and accidents. I find that Mapquest adequately provides at least one measure of distance, reliable enough for these administrative proceedings, in which the technical rules of evidence do not necessarily apply, 48 RCNY § 1-46, to show that at least in terms of gross estimates, respondent was not using the van exclusively for City business.

Respondent’s excessive mileage and general abuse of the privilege of having the City vehicle dictates that this charge must be sustained. See Dep’t of Health, Office of the Chief Medical Examiner v. Fuseyamore, OATH Index No. 295/88 (Aug. 25, 1988) (respondent liable for having logged at least 300 extra miles during a weekend on an agency-issued vehicle, where he could not account for the usage and falsified documentation of mileage).

These charges are sustained.

C. Additional Charges of Excessive Mileage:

February 2 and 25, 2004 (Charge II, Specifications III and IV)

The agency demonstrated by a preponderance of the evidence that there were additional dates when respondent used the car at times he was not permitted to do so because he logged so many miles that it defied credulity that he was using the car strictly for agency business at those times. On February 2, 2004, respondent recorded 137 miles for one round-trip between two locations in Brooklyn: the 69th precinct on Foster Avenue in Brooklyn, where he parked the car, and 210 Livingston Street in Brooklyn, the Linden Center (Pet. Ex. 13). Mr. Harris testified that this mileage for travel to these two locations in Brookyn on one day was “excessive” without reference to Mapquest: “Based on my experience and knowledge of the borough of Brooklyn, this is far in excess of the actual mileage accrued” (Tr. 205-07). Respondent denied that he had supplied on the daily route sheets for February 2, 2004 all the locations he must have visited that day, but he offered no accounting for the extensive mileage except that he claimed he received no “real training” on these forms, that he tried to do the best he could “with keeping records with that, but in day[s] of calamity I had a hellacious life. I’m sorry. I was sold[i]ering through it all to the best of my ability” (Tr. 333-34). Respondent asserted that due to the work and personal pressures on him, he did not properly complete the daily route sheets to show every location he had visited (Tr. 338). This was not a valid excuse and conflicted point-blank with Mr. Harris’ credible testimony that respondent received the agency policy about use and accounting for the van, along with instructions from staff on how to account for the use of the van.

On February 25, 2004, respondent was charged with amassing 67 miles when his destinations did not warrant that much mileage. Mr. Harris testified that the actual mileage listed was 17 miles, and petitioner’s counsel amended the charge by stipulation (Specification IV of Charge II) at the hearing to read 17 miles (Tr. 335), due to the agency’s confusion of a “9” with a “4.” Mr. Harris testified nonetheless that this 17-mile distance was excessive in any event for the two Brooklyn stops shown (Tr. 208). Respondent did not contend that the 17 miles were not excessive, but rather that his own route sheets “may not be” an accurate description of what he did on those days (Tr. 337; Pet. Ex. 14).

This charge is sustained.

D. Running a Red Light on May 4, 2004 (Charge II, Specification II)

Respondent’s driving record with this City van is very poor. On May 4, 2004, respondent received another summons for running a red light, this time at Kings Highway and Remsen Avenue, at 6:11 p.m., and again showed excessive mileage for the travels he listed on his daily route sheet. The route sheet for that day showed that he had secured the vehicle at the 69th precinct and traveled only to the Office of Child Support Enforcement at 151 West Broadway in lower Manhattan and back to the precinct (Pet. Ex. 16), yet he logged 48 miles that day. Mr. Harris has been to both of those locations and he testified that it does not take 48 miles to make that trip. He regarded that mileage as excessive for those locations based on his own personal knowledge, including that garnered from having visited himself many of the locations listed in respondent’s route sheets (Tr. 204-06, 220-21; Pet. Exs. 11, 16). Respondent left work at 5:30 p.m., but ran the red light 41 minutes later (Pet. Ex. 16). Mr. Harris conceded on cross-examination that respondent left 151 West Broadway as his last official stop and could have taken up to an hour to get to the precinct to park for the night, depending on traffic (Tr. 228-29), and I find, therefore, that petitioner has not shown that the May 4th incident was a misuse of the agency car for personal business because it occurred only 41 minutes after respondent’s work day ended, but has demonstrated that the excessive mileage reflects personal use of the van not accounted for by the official business respondent listed on his route sheet for that day.

This charge is sustained in part.

E. Accident: June 22, 2004 While on Annual Leave (Charge II, Specification VI); and Dereliction: Failure to Submit Daily Route Sheets for June 3-24, 2004 (Charge IV)

When an employee takes a vacation, he is supposed to return the vehicle to the program so that it can be used while the employee is away (Tr. 134). Agency policy states that even full-time assignment of a vehicle “does not entitle an employee to take a vehicle home” (Procedure No. 00-30, § IVA.1, at 11, Pet. Ex. 5). Commuting privileges must be approved in writing by the Commissioner (Procedure No. 00-30, § IV.A.3, Pet. Ex. 5), and respondent failed to prove that there was any such approval. Even employees authorized to drive vehicles home, must park them at a City-owned or operated work site or facility (the police precinct nearest to one’s home), and “the regular parking location of any City vehicle must be logged by the Agency Transportation Coordinator” (Id.) Respondent testified that the van was assigned to him on a full-time basis and that he used the van to commute (Tr. 321), not that he was authorized to do so.

On June 22, 2004, respondent had a vehicular accident with the van, even though he was on vacation that day and was not supposed to be using the City van (Pet. Exs. 11, 15; Tr. 211). The agency obtained from the New York State Department of Motor Vehicles the accident report, which showed that the accident occurred at Linden Boulevard near Pennsylvania Avenue at 12:40 p.m. on respondent’s vacation day. The report indicates that respondent hit the rear end of another vehicle that either had slowed down for a traffic signal or stopped abruptly. Respondent parked the car after the accident in front of his father’s residence in Laurelton Queens, although respondent’s official residence is in Brooklyn (Pet. Exs. 11, 15).

Respondent was going on a trip on June 22, 2004 to Atlanta, Georgia. Respondent testified that he parked the van at the 69th Precinct on June 21, the night before. On June 22, 2004, his vacation day, respondent was supposedly going, about noon, to the 113th Precinct in the van (Tr. 379-80).

Following this accident, the agency had investigators, Messrs. Harris and Kaufman, make a field visit on June 24, 2004 to the parked van in Laurelton, and they noted that the exterior of the van was in “poor condition,” having been in several accidents (Pet. Ex. 11). They noted an odometer reading of 55,861 miles and photographed the odometer. Although respondent worked 12 days between June 3 and June 21, 2004, he failed to submit daily route sheets for that period, and his June 3, 2004 route sheet, the last one submitted before June 24th, showed a final odometer reading of 54,924 miles, indicating that he drove the van 937 miles in the 12-day work period, or an average of 78 miles per day, a number that exceeded by far his average listing of about 50 miles per work day shown in Mr. Harris’ audit. I credit Mr. Harris’ testimony that respondent failed to submit the daily route sheets for that time period and utterly failed to account for the use of the agency van for the three-week period (Tr. 216-17). Mr. Harris explained that based on the travel respondent listed as official work, he would need to drive 11 or 12 miles a day. To drive 937 miles, he would have had to work about 100 days in that three-week period if he were using the van exclusively for work (Tr. 237). Respondent testified that he was “almost sure,” then “sure” that he submitted these forms to Sgt. Davis, who, he said failed to keep track of them due to a failure of leadership on Sgt. Davis’ part (Tr. 339). Respondent admitted that he probably submitted the forms in “one shot” after a “two-week period” by leaving them on Sgt. Davis’ desk. He claimed Sgt. Davis is “rarely there” and that “[h]is desk is a mess” (Tr. 340).

Respondent has worked for the agency a dozen years and, by his own account, has worked in “all facets of the Personnel Department” (Tr. 318). In that case, he should be aware of the most basic rules of using City resources. He admitted as much on cross-examination. He knew he was not allowed to use City phones to make long distance calls, nor to use the agency computer or fax machine for personal use. As to how he knew that, he responded: “I just feel it was inappropriate to do that. I wasn’t told” (Tr. 364). Pressed further, he showed that he very well understood the rules he knew he was violating:

A. Because it’s a place of business where, you know, most of the internal, you know, those devices are used for the purposes of HRA business.

Q. So they should -- your understanding is that HRA property is to be used for HRA business only; is that correct?

A. That’s correct.

Q. So if an HRA employee is not allowed to use a telephone to make long distance phone calls or a fax to fax a personal fax or a computer for their own use, there must be some policy against the, against using agency equipment for personal use; is that right?

A. Yes.

Q. Have you read the Code of Conduct?

A. On occasions, yes, I have.

Q. Have you read the provision that says agency property is only to be used for agency purposes and not for personal use?

A. Yes.

(Tr. 365).

I do not accept respondent’s defense that he does not carefully or timely prepare the daily route sheets, that he could not find the missing sheets, or that the agency must have lost the daily route sheets he insists he did submit on time, as that self-serving contention is too convenient in this period when he used the van so heavily and was under scrutiny. I find that respondent parked and used the vehicle in violation of agency rules that he must secure it at the police precinct nearest to his residence (Tr. 231-32), including when he was on vacation, and there was no showing that he had commuting privileges, either to his home in Brooklyn or to his father’s home in Queens. Respondent admitted to investigators on June 30, 2004, that at the time of the accident, he was “pre-positioning the vehicle” so that upon his return from vacation, he could “boogie to his rounds in Rockaway” and have the convenience of access to it (Pet. Ex. 11; Tr. 211, 330). Although respondent categorically denied at trial that he made the statement about “boogie-ing” to Rockaway (Tr. 331), I credit Mr. Harris’ testimony and the contemporaneous memorandum, made within a week of the interview, over respondent’s self-serving and incredible denial at the hearing. Mr. Harris appeared to be unbiased. He simply delivered the facts about his investigation, and demonstrated no reason to fabricate his findings or the recording of respondent’s statements. Respondent was required to park the van at the precinct where he resides, the 69th Precinct, 4720 Foster Avenue on a daily basis, not at his father’s home in Douglaston, Queens (Harris: Tr. 214). His bland denial that he was never instructed on what to do with his vehicle while on annual leave (Tr. 330) is simply no excuse. The agency policy makes crystal clear that the vehicle is solely for official use, not for vacation use. Respondent did not keep a log book and was weeks behind in completing and submitting to Ms. Weston his activity reports, and otherwise could not account for his time to meet the charges that he was misusing the City van (Pet. Ex. 11).

Respondent also admitted to agency investigators that when he was visiting his father in Queens, he would indicate on his daily route sheet that the van was secured at the 113th precinct, when in fact it was parked in front of his father’s home in Laurelton. He admitted that when he indicated on the route sheets that the van was secured at the 69th precinct, it was in fact parked in front of his home (Pet. Ex. 11). Mr. Harris recommended to Deputy Commissioner Ralph Permahos that respondent’s access to official vehicles be suspended because of his continued reckless behavior and misappropriation of the agency vehicle for his own personal use on the basis that he presented a great risk to the agency and to the public. The agency did revoke respondent’s privilege to use the City van and removed it from his possession.

I find that the agency proved that respondent misused the agency van for personal travel for which he failed to account to the agency. More than this, I find that respondent was reckless with the agency vehicle and deliberately obscured and misrepresented his actual use of the vehicle precisely because he was using the van for personal business and well knew that he was not allowed to do so.

The charges of misuse of the agency van and false statements concerning the van are sustained.

Consuming Alcohol During Working Hours

Petitioner presented the testimony of Sgt. Albert Zelaya, who began working for the agency in November 2004 and who worked at 210 Livingston Street under respondent’s supervision in November 2004 (Tr. 412-13). Although they “got along very well” (Tr. 413), Sgt. Zelaya had a problem with respondent on February 11, 2005. Sgt. Zelaya received a call at 10:15 a.m. that day to the third floor because there was a disorderly woman. He arrived and found the woman yelling, using profanity towards the security staff, and refusing to obey the staff or comply with Sgt. Zelaya’s request that she leave the building and return another day. He placed her in handcuffs, according to procedure (Tr. 414-15). He and others escorted her downstairs to the lobby security office. She sat there in handcuffs complaining about a member of the security staff having sprayed her eyes with some type of “chemical perfume” and about the staff having humiliated her by saying that she “kind of smelled bad” and calling her a “crackhead” (Tr. 415, 424). Sgt. Zelaya asked for her identification so that he could issue a summons for disorderly conduct, and called headquarters to obtain a return date for an appearance before a judge. Headquarters advised him to call the precinct for that information. Sgt. Zelaya, who was relatively new to the job at that time, then called respondent and left him a voicemail notifying him that he was holding “a disorderly conduct person” and was going to issue a summons (Tr. 415-16), according to procedure.

About 11:20 a.m., respondent walked into the security office. He approached Sgt. Zelaya and asked him to remove the handcuffs from the woman (Tr. 416). The sergeant complied and respondent walked the woman outside the building. After 10 or 15 minutes, respondent asked Sgt. Zelaya to meet him outside with the woman. Respondent asked Sgt. Zelaya to investigate the woman’s complaint that staff had used some chemical in her eyes. Sgt. Zelaya did attempt to identify the staff members involved, but the woman declined to pursue her complaint (Tr. 418). The woman left and the sergeant saw respondent again about 3 p.m. that day. Respondent called Sgt. Zelaya to come upstairs to see him. When the sergeant arrived, respondent was “upset, angry” and told Sgt. Zelaya, “I didn’t know that you had a skirt” (Tr. 421). Sgt. Zelaya testified that respondent was yelling at him, and his speech was different from the way it had been in the morning; it was “slurred” (Tr. 421). Sgt. Zelaya reported the matter to Ms. Weston in headquarters, and told her that respondent was “kind of loud and disrespectful, you know, towards me” (Tr. 422). It appeared that the incident had also come to the attention of headquarters because a sergeant from that office called Sgt. Zelaya to find out the summons number, but there was none, as he told the caller, because the person detained was being released. Asked what happened, Sgt. Zelaya explained that respondent came in and asked the sergeant to remove the handcuffs (Tr. 420, 427). I find that respondent was angry because his decision to release the woman was second-guessed by his superiors because of the explanation Sgt. Zelaya properly gave (Tr. 427). The two men disagreed about the handling of the detention of the woman and accused each other of being “out of line.” Sgt. Zelaya understood that headquarters had complained to respondent about his having released the woman (Zelaya: Tr. 425-26).

Sgt. Zelaya did not testify that he smelled alcohol on respondent’s breath, and petitioner failed to prove that he had consumed alcoholic beverages during working hours. Apart from the suggestion of slurred speech, the testimony was entirely about a disagreement between Sgt. Zelaya and respondent about the handling of the matter concerning an unidentified woman. Sgt. Zelaya’s testimony amounted to no more than innuendo and was too vague to supply the missing facts as to this charge of intoxication on duty. Respondent explained that the woman was distraught about losing her wallet and identification and that she was panicking and destitute, and upset about what she perceived as the guards’ humiliation of her (Tr. 442-43). Respondent concluded that she was not a threat and decided to release her. He described Sgt. Zelaya as new and overly eager to “put notches in his belt” (Tr. 444). Despite Sgt. Zelaya’s denial that the two men were arguing, I conclude that they were indeed arguing over this incident (Allen: Tr. 445). Respondent denied slurring his words that day. He was not charged with being discourteous in this instance; he was charged with being drunk. The proof with respect to this charge was simply too slight. See Human Resources Admin. v. Adams, OATH Index No. 342/02 (Jan. 16, 2002), modified on penalty, Comm’r Dec. (Feb. 25, 2002), aff’d, N.Y.C. Civ. Serv. Comm’n Item No. CD03-41-SA (Apr. 11, 2003); Human Resources Admin. v. Prescott, OATH Index No. 1775/01 (Dec. 10, 2001); Human Resources Admin. v. Honey, OATH Index No. 435/89 (Oct. 20, 1989).

The intoxication charge should be dismissed.

Insubordination and Failure to Report

Finally, the petition alleges that on April 15, 2005, respondent failed to call in to report he was on duty when a captains’ meeting was held, despite instructions to call in, and failed to respond to attempts to reach him on the agency-issued Nextel. Respondent also allegedly neglected to contact the Operations Desk to report his absence within 60 minutes after his expected reporting time. The agency issued to respondent a Nextel radio so that he could be contacted. Ms. Weston heads the captains’ meetings (Tr. 93). This charge depended upon Ms. Weston’s memorandum to file dated April 25, 2005 (Pet. Ex. 4) and her testimony. She wrote and testified that respondent had failed to call the desk on the morning of April 15, 2005, to advise that he was on duty, despite instructions, both verbal and via e-mail, to do so. Ms. Weston and Michael Ejemai met with respondent regarding this asserted failure to call in to try to determine why he had not done so. Respondent told them that he had spoken to Captain Granadis and Mr. Rothberg (Tr. 100). Ms. Weston’s memorandum, dated ten days after the incident and seven days after the meeting, states that Captain Allen failed to call in on April 15, 2005, despite specific instructions relayed from management by Sgt. Irving to all captains that they must call in that they were on duty. Captain Allen neither called in as instructed nor responded to attempts to reach him on his Nextel radio. During the meeting, Captain Allen told Ms. Weston and Mr. Ejemai that he had called the desk and had spoken with Sgt. Irving. He also told them he had spoken with Mr. Rothberg and Captain Granados. When informed that Mr. Rothberg was not in on April 15th, Captain Allen “stated sarcastically ‘ok yes Stanley was not here’” (Pet. Ex. 4). Ms. Weston described respondent’s posture and attitude during the meeting as hostile. His answer to Ms. Weston’s comment that there had been numerous complaints about an inability to reach respondent was that there were a number of complaints against him.

Respondent contends that he was not sure if he spoke to Sgt. Irving or Captain Granados on April 15, 2005, that Nextel radios do not always function properly, and that the desk phone he must call had no voicemail capacity. While Ms. Weston had no direct knowledge that respondent was informed of the meeting and conceded the mechanical limitations of the equipment, she was adamant that respondent did not indicate he was unsure of the identity of the person he had called (Tr. 108). Respondent testified that he did not recall receiving a call on his Nextel from Sgt. Irving or any of the other captains that day and claimed the device was “particularly problemsome” (Tr. 354-55). He conceded that he often calls the Operations Desk and is required to do so daily (Tr. 355). I reject respondent’s characterization of his conversation with Ms. Weston, that when he told her he had called and spoken with Stanley Rothberg, and she confronted him and told him Mr. Rothberg was not even in that day, he innocently offered that it must have been Captain Granados or someone else he reached. The problems with the innocent version of the events of the day are that it contradicts the sarcastic tone Ms. Weston credibly said respondent took, respondent’s claim that he did call is uncorroborated, and nobody vouches for him as to this supposed call. Thus, I find it more likely than not that respondent was caught in a lie. His defense that Ms. Weston too was out to get him and that he was not under her “umbrella of favoritism” (Tr. 358) did not ring true. He accused her of making discriminatory remarks at meetings to the effect that employees over the age of 30 should not even try to get the position of deputy commissioner, but he admitted that she never said such a thing to him and had no explanation for why, he perceived, she “would basically snarl at me” when he never “did anything to the woman” (Tr. 360). I was able to observe Ms. Weston’s demeanor and do not believe, as respondent contended that she too has “just consistently come after me” (Tr. 360). Respondent did complain to the EEO Director about Ms. Weston’s comments to the group of captains in September 2005, and the EEO office investigated and found in October 2005 that while Ms. Weston had made inappropriate statements, neither respondent nor any other person at the meeting at issue was subject to any adverse employment decisions (Tr. 398). There may well have been some tension between Ms. Weston and respondent, but the matter of her age remark to a group, not targeted to respondent individually, was resolved by the EEO office prior to the filing of the instant charges (ALJ Ex. 2), and seems irrelevant to the charges here. The complaints against respondent were under investigation by February 2005, and he did not complain against Ms. Weston until September 2005, so it is not plausible that she suddenly struck back at him in October 2005, in the days between the October 3, 2005 letter from the EEO Officer ending the matter against Ms. Weston (Pet. Ex. 17) and the October 5, 2005 service of the original charges here (ALJ Ex. 2).

Pursuant to section III(C) of agency Procedure No. 03-03 (Feb. 12, 2003), respondent was required to request approval for unplanned leave within 60 minutes after the expected reporting time and must enter these leave requests into the Autotime system on the day of return with details of the situation. There is no reason to doubt the accuracy or credibility of Ms. Weston’s account, which I take to contain an admission by respondent that he was lying when he said he had spoken with Stanley Rothberg on April 15, 2005. In fact, he had not done so (Tr. 101). Although he may have been mistaken, as he contends, I find it more likely than not that he missed the meeting and deliberately refused to answer calls from the agency, and then deliberately lied to his supervisor about calling and speaking to an official who was absent that day.

This charge is sustained.

The Department bears the burden of proof by a preponderance of the credible evidence. Human Resources Admin. v. Caban, OATH Index No. 1449/05 (June 23, 2005). I find that the agency has met its burden of proof as to all charges, with the exception of the intoxication charge and a portion of the charge relating to the May 4, 2004 use of the van.

FINDINGS AND CONCLUSIONS

1. The Department proved that respondent sexually harassed three women (Ms. Bland, Ms. Jones, and Ms. Dunlop), who were subject to his supervision and that he used inappropriate, sexually charged and threatening language with them, and thereby abused his official position, in violation of Executive Order No. 651, section III(11), (33), (34).

2. The Department failed to prove that respondent sexually harassed Ms. Joseph, whose credibility I was unable to evaluate from the hearsay accounts of her complaints alone.

3. The Department proved that respondent misused a City-issued van for personal travel, and conducted non-agency activity during working hours, in violation of Executive Order No. 651, section III(12), (13).

4. The Department proved that respondent falsified related documentation of his use of the van, in violation of Executive Order No. 651, Section III(4).

5. The Department proved that respondent failed to submit Daily Route Sheets for three weeks in June 2004, in violation of Executive Order No. 651, Section III(21).

6. The Department failed to prove by a preponderance of the credible evidence that respondent consumed alcohol during working hours, in violation of Executive Order No. 651, section III(20), (24).

7. The Department proved that respondent was insubordinate when he failed to report despite instructions from superiors, in violation of agency Procedure 03-03, section III(C) and Executive Order No. 651, section III (20), (36).

8. The Department proved that respondent failed to conduct himself in a manner which would reflect favorably upon himself, the agency and the City, and generally engaged in conduct prejudicial to good order and discipline, brought discredit upon the agency and undermined his own effectiveness as an employee, in violation of Executive Order No. 651, Section III(1), (36).

RECOMMENDATION

Having made the above findings, I obtained a summary of respondent’s personnel record. He has been disciplined before. By stipulation dated February 1, 2005, respondent agreed to accept a 15-day penalty consisting of five days of annual leave, a five-day pay fine, and five days held in abeyance for a period of six months, in settlement of related charges that he made false statements concerning a City vehicle, submitted false documentation relating to the agency’s payroll documentation, and misused the City vehicle. Respondent has been unable or unwilling to conform his conduct to the minimum standard of decency, honesty, care and professionalism required of a City employee in a position of authority. He has been insubordinate and acted as if the rules did not apply to him. The misconduct shown here is extensive and egregious and cannot be tolerated in City service. Although respondent has a ten-year tenure in his favor,[5] and the most recent evaluations available show that he had an overall rating of “very good,” with comments that he was an “asset” (2001) and did “excellent” work (1997), his recent, prior disciplinary history for the same type of misconduct at issue again here works against him. His pattern of sexual harassment of women was a gross abuse of authority. In mitigation of his misconduct concerning the City van, respondent offered that he was facing extremely stressful personal circumstances involving his parents that required him to reside with his father in Queens, but he raised considerable doubt about the truth and extent of his difficulties when he claimed that he parked the van in Queens at the precinct near his father’s home, but wrote in his official daily route sheets that he kept the vehicle in Brooklyn near his own home. In short, it was difficult to give respondent full credit for the stresses he claimed in light of his self-contradiction. In mitigation of his abuse of his subordinates, I find nothing.

Respondent has shown himself to be a poor representative of the Human Resources Administration, and a potential liability to the agency. He was both sloppy and dishonest about the privileges granted him with respect to the City vehicle, and has abused in a most arrogant and offensive fashion the authority invested in him to supervise the Mandel guards. Demotion and suspension are not appropriate, where, as here, respondent has so thoroughly abused the trust of the agency. Accordingly, I recommend that his employment with the agency be terminated. See Triborough Bridge and Tunnel Auth. v. Simms, OATH Index No. 1303/97 (May 30, 1997), aff’d, NYC Civ. Serv. Comm’n Item No. CD 98-123-SA (Dec. 30, 1998); Triborough Bridge & Tunnel Auth. v. Roberson, OATH Index No. 753/94, at 23 (Mar. 13, 1995), aff’d, 232 A.D.2d 200, 648 N.Y.S.2d 18 (1st Dep’t 1996) (termination upheld; “an employee who engages in a purposeful, long-term pattern of sexual harassment, should, absent strong mitigating factors, be dismissed”); Transit Auth. v. Fedey, OATH Index No. 633/97 (Mar. 14, 1997), modified on penalty, Auth. Dec. (Apr. 21, 1997), aff’d, N.Y.C. Civ. Serv. Comm’n Item No. 98-102-SA (Sept. 28, 1998). Moreover, respondent’s repeated false statements, including his demonstrably false, sworn business defense affidavit, his false and inaccurate daily route sheets and his overall deception about his personal use of the agency van and his whereabouts, independently support termination of employment. Human Resources Admin. v. Rivera, OATH Index No. 219/94 (Nov. 24, 1993); Human Resources Admin. v. Brown, OATH Index No. 236/90 (Oct. 25, 1989); Dep’t of Housing Preservation & Development v. Bomani, OATH Index No. 1077/91 (Aug. 9, 1991) (false daily route sheets); Dep’t of Health, Office of the Chief Medical Examiner v. Fuseyamore, OATH Index No. 295/88 (Aug. 25, 1988) (termination of employment for personal use of agency vehicle and false entries concerning mileage).

Joan R. Salzman

Administrative Law Judge

June 28, 2006

SUBMITTED TO:

VERNA EGGLESTON

Commissioner

APPEARANCES:

PAUL LIGRESTI, ESQ.

ROBYN McNISH, ESQ.

Attorneys for the Petitioner

MEYER, SUOZZI, ENGLISH & KLEIN, P.C.

Attorneys for Respondent

BY: JENNIFER HERANANDEZ, ESQ.

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[1] Specification VI of Charge I and Specification III of Charge II concerning the use of the City van were withdrawn (Tr. 5-6).

[2] The agency did not charge respondent with violation of Chapter 68 of the City Charter, sections 2604(b)(2) and (3) or section 1-13 of the Rules of the Conflicts of Interest Board, 53 RCNY § 1-13 (Lexis 2006), which prohibit misuse of office for private gain and use of City equipment for non-City purposes, and which are implicated here.

[3] Rule 201 of the Federal Rules of Evidence provides in pertinent part: “A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b) (Lexis 2006).

[4] Respondent was interviewed without union representation. He signed waiver documents at two agency interviews, held May 28, 2004, and June 30, 2004. In those signed waivers, he acknowledged that he was advised of his rights and chose to proceed without representation (Tr. 222; Pet. Ex. 18).

[5] Respondent’s service may be even longer. His personnel records indicate that he served the Human Resources Administration as far back as 1984 as an eligibility specialist, and that he resigned that post in 1985, although the records are unclear as to the break in service because there are also evaluations of his work in that title for 1993 showing “good work” and a need for continuous training.

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