Dep’t of Sanitation v



Dep’t of Sanitation v. Guzman

OATH Index No. 335/07 (Oct. 30, 2006)

Sanitation supervisor charged with failing to notify a crew to report for snow removal and failing to complete log entries or issue complaint for worker who failed to sign out. ALJ found evidence insufficient to prove either charge and recommend that both charges be dismissed.

______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF SANITATION

Petitioner

- against -

GEORGE GUZMAN

Respondent

______________________________________________________

REPORT AND RECOMMENDATION

JOHN B. SPOONER, Administrative Law Judge

This disciplinary proceeding was referred to me pursuant to section 16-106 of the Administrative Code by petitioner, the Department of Sanitation. Respondent George Guzman, a sanitation supervisor, is charged with failing to notify a crew to report for snow removal, to complete log entries, and to issue a complaint for a worker who failed to sign out.

A hearing on the charges was conducted before me on September 22, 2006. Petitioner called a deputy chief, two superintendents, and a sanitation worker. Respondent testified himself, denying that he failed to perform any of his duties.

For the reasons provided below, I find that the evidence was insufficient to sustain the charges and recommend that they be dismissed.

ANALYSIS

Respondent has worked for the Department since 1990, first as a sanitation worker and, since 1997, as a supervisor. He is currently assigned as a rotating supervisor in District 1 on Staten Island. In this capacity, he reports to various garages in the district, filling in when regularly assigned supervisors are absent. The charges here concern two days when respondent was assigned as the garage supervisor at the Staten Island 1 garage.

Failure to Complete Log Entries or Issue Complaint (F115837)

The first charge alleges that, on December 18, 2004, after noting the failure of a worker to sign out at the end of his shift, respondent failed to update the timebook, to “dock” the worker’s pay, to make an entry in the absence and lateness log, and to issue a disciplinary complaint to the worker. These omissions came to light after an audit done by Superintendent Dan Curia, assigned to the Field Investigation and Audit Team. Superintendent Curia testified that on March 14, 2005, he audited the timekeeping records at the garage. Among the errors which he discovered was a failure to follow procedures as to a notation made by respondent on December 18, 2004. On the daily attendance record for that date (Pet. Ex. 11), respondent, who was substituting for the regular garage supervisor, wrote that worker Alex Rodriguez “was not at p.m. roll call.”

According to Superintendent Curia, several steps should have been taken as a result of this worker’s absence. The garage supervisor should first have investigated to determine when Mr. Rodriguez had last been seen and deduct pay from that time. He also should have filled out a draft complaint form and sent it for approval to the borough office (Tr. 37). See Operations Order 98-06 (any worker not reporting at the end of his shift will be reported missing and issued a complaint).

In auditing the garage records, Superintendent Curia found that no corresponding notation of Mr. Rodriguez’s absence had been made in the timebook, no payroll deduction had been made, and no entry had been made in the absence and lateness log (Pet. Ex. 13). Furthermore, no disciplinary complaint had been issued to the worker regarding his absence (Tr. 33-36).

Superintendent Michael Fasano, who initiated the charges against respondent, stated that supervisors are obliged to document a worker’s absence within three days after it occurs, although a rotating supervisor might logically need more time if he did not return to the garage the following day (Tr. 49). He observed that the regular garage foreman would normally be responsible for following up on the absence of the worker by making an appropriate timebook notation (Tr. 57). The regular foremen at the Staten Island garage were Supervisors Millan and Ligori (Tr. 58). Most disciplinary complaints are sent to the borough office and returned within two weeks (Tr. 54). The superintendent reviews the daily attendance records for accuracy (Tr. 32).

Respondent did not dispute that some supervisor should have taken further action with regard to Mr. Rodriguez’s apparent disappearance from the garage, but contended that the primary responsibility lay with the regular garage supervisors and not with him. Respondent testified that, on December 18, 2004, he was assigned for that day only to the Staten Island 1 garage for the 8:00 a.m. to 4:00 p.m. shift, in the absence of the two regular garage foremen. He recalled observing that Mr. Rodriguez failed to appear at the end of his shift for the afternoon roll call, prompting respondent to make the notation on the daily attendance log. Respondent recalled reporting the worker’s absence to Superintendent Fasano and also leaving a note for the next foreman to make sure that appropriate entries were made in the timebook and in the worker’s lateness and absence report. When respondent heard nothing more about the matter, he assumed that it had been taken care of by the regular supervisors or by the superintendent (Tr. 69-71).

Respondent explained that, prior to these subsequent steps being taken, an investigation should be conducted to determine when the worker was last seen and how much pay should be deducted (Tr. 70-71). Respondent also indicated that Superintendent Fasano kept the lateness and absence reports locked in his office and did all of the entries on these logs himself (Tr. 71-72), a fact confirmed by the superintendent in his testimony (Tr. 56). Respondent also noted that Mr. Rodriguez would have had 48 hours to produce documentation to substantiate an emergency leave request.

It was undisputed that respondent made the appropriate entry in the daily attendance log regarding Mr. Rodriguez’s failure to report for the afternoon roll call. It was further undisputed that the proper procedure after such an absence occurs is for the garage foreman to investigate to determine when the worker was last seen and that completion of this investigation was a prerequisite to writing in the timebook or issuing a complaint. Notably, the complaint ultimately issued to Mr. Rodriguez (Pet. Ex. 16) alleged that he “was last observed at 2:30 p.m.” Since respondent had no information on December 18, 2004, to determine how long Mr. Rodriguez had been absent and insufficient time to obtain the information before the end of his shift, he could not reasonably have been expected to make timebook entries and initiate a complaint that day.

There also seemed to be little dispute that, if respondent’s testimony that he notified both the superintendent and the succeeding supervisor of Mr. Rodriguez’s absence were credited, the misconduct charge could not be sustained. Superintendent Fasano conceded that notifying a succeeding supervisor of an absence would divest the initial supervisor of responsibility for doing anything further. Although Superintendent Fasano further stated that a rotating supervisor would logically need additional time to complete the investigation and other necessary steps to ensure that the absence was properly dealt with. In this regard, I was perplexed by Superintendent Fasano’s contention that the failure to follow up on Mr. Rodriguez’s absence was chargeable to respondent because, “at the end of the day,” the garage foreman is responsible for his garage men (Tr. 60). While it may be true that the primary responsibility for recording absences at roll call rests with the garage supervisor on duty at roll call, it is also true that additional responsibilities could, with the proper notice, be delegated to a succeeding supervisor where the tasks were impossible for the current supervisor to complete.

The resolution of the charge depends heavily upon the credibility of respondent’s testimony that he reported this error verbally to Superintendent Fasano and by means of a note to the supervisor on the next shift. Respondent, unlike the other witnesses, had an obvious stake in the outcome of the hearing and his testimony must be assessed with this in mind. In his testimony, Superintendent Fasano never mentioned being told about the absence by respondent, stating that he learned of the absence only after having it reported to him by Superintendent Curia. Nor did respondent offer any corroborating evidence to show that he left a note for the succeeding supervisor.

Although the credibility issue is a close one, I found respondent’s testimony that he notified the succeeding supervisor and Superintendent Fasano to be credible. Respondent seemed indignant about being accused of misconduct, but there was little indication that his resentment prompted him to provide untruthful testimony. It seemed notable that Superintendent Fasano, who evidently approved the charge against respondent, testified that respondent was responsible for the failure to investigate and take other necessary steps solely by virtue of his being assigned as the garage supervisor during the shift when the worker disappeared. The failure to acknowledge that others might bear some responsibility seemed to give support to respondent’s theory that the charges were a means of directing the blame away from the regular garage management to an outside party.

Furthermore, even if respondent did not notify the superintendent and the succeeding garage supervisor, the charge should still be dismissed. By filling out the daily attendance record, respondent recorded Mr. Rodriguez’s absence in a prominent way on a garage record. Both the regular garage supervisor, as well as the superintendent, had the responsibility of reviewing this record and taking action where appropriate. This would seem particularly true where they were aware that a shift had been covered by a rotating supervisor less familiar with garage personnel and far less able to follow up on any matters left incomplete when his shift ended.

I therefore find that this charge should be dismissed.

Failure to Notify Crew to Report for Snow Removal (F117422)

The second charge alleges that respondent failed to notify one of the crews under his supervision that they, along with all other collection crews, had been ordered to return to the garage to be assigned to snow removal. It was undisputed that, on March 8, 2005, respondent worked as a rotating supervisor and, on that date, was assigned to the Staten Island 1 garage. On that date, it began to snow at around 10:00 a.m. Deputy Chief Ralph Reed testified that at 10:30 a.m. Department orders went out over the radio, directing all crews on collection trucks to be changed over to snow removal duty when they returned to work at noon after their lunch break (Tr. 16).

Deputy Chief Reed arrived at the Staten Island 1 garage at around noon and noticed two salt spreaders which had not gone out. He asked whether they were broken down, and was told that the workers assigned to them, Thomas DeLuccia and Micahel Sozio, had not taken them out. The deputy chief asked respondent where the two workers were and he said he did not know (Tr. 17).

At around 1:30 p.m., Deputy Chief Reed located workers DeLuccia and Sozio several miles outside their assigned section. He stopped them and asked where they had been. Mr. Sozio told him that he had been having lunch at his mother’s house, while Mr. DeLuccia said nothing. Deputy Chief Reed ordered both workers to return immediately to the garage (Tr. 18).

The workers returned to the garage at 2:05 p.m., too late to dump their truck. According to a dump receipt for the truck (Pet. Ex. 4), the truck was dumped at 12:46 a.m. the following day by a worker who was paid overtime. Both workers were issued disciplinary complaints for failing to return to the garage and accepted penalties of forfeiture of eight hours’ comp time (see Pet. Ex. 2).

Worker DeLuccia testified that he and Mr. Sozio saw respondent at around 10:15 a.m. while on their route and reported that they would complete the route on schedule. Mr. DeLuccia stated that as he and Mr. Sozio completed their route the rain began to turn to snow and Mr. DeLuccia went home “to change to dry clothes” (Tr. 11). Mr. DeLuccia indicated that it took an hour to go to his residence, which is outside his assigned collection section, and that he and Mr. Sozio were discovered by Deputy Chief Reed. Mr. DeLuccia realized around 12:00 or 12:30 p.m. that snow operations had been called, returned to the garage around 1:00 p.m. or 1:30 p.m., and immediately went out on a salt spreader (Tr. 11). The operations record (Pet. Ex. 8) shows that workers DeLuccia and Sozio took salt spreaders out at 12:00 noon. None of the witnesses knew who made this entry, although it was agreed that the entry was not made by respondent.

Respondent testified that he received the order to cut collections and begin snow operations at 11:00 a.m. or 11:15 a.m. At that time, he was able to account for all of his crews except for Mr. DeLuccia and Mr. Sozio and searched for them on their assigned route. When he could not find them, he searched the area for locations that they might have parked to have lunch. Around 1:30 p.m., as he was on his way back to the garage, he received the report from Deputy Chief Reed, that the two workers had been found outside their section. By the time he returned to the garage, both workers had been sent out on salt spreaders (Tr. 65-66).

Respondent believed that other workers were available to send out on the two salt spreaders and that, instead of taking responsibility for mismanaging the snow removal, the superintendent was “passing the buck” to him (Tr. 77).

The evidence demonstrated that respondent attempted to find and notify the two workers and that he failed to do so because the workers had driven out of their assigned section either to go to Mr. DeLuccia’s residence or to Mr. Sozio’s mother’s house, or perhaps to both. Petitioner offered no explanation as to how respondent could do anything more than he did to communicate with the two workers. Indeed, the evidence established that respondent’s inability to contact the workers was a direct result of their own misconduct of leaving their route without permission, violations which they admitted and for which they were punished. Based upon these undisputed facts, respondent’s failure to notify the workers was not misconduct and this charge should be dismissed.

FINDINGS AND CONCLUSIONS

1. Charge No. F115837 should be dismissed in that petitioner failed to prove by a preponderance of the evidence that Supervisor George Guzman violated rules by failing to investigate and otherwise follow up on the absence of a worker on December 18, 2005.

2. Charge No. F117422 should be dismissed in that petitioner failed to prove by a preponderance of the evidence that Supervisor George Guzman violated rules by failing to notify two workers of a snow spreader assignment.

John B. Spooner

Administrative Law Judge

October 30, 2006

SUBMITTED TO:

JOHN J. DOHERTY

Commissioner

APPEARANCES:

DAVID GOLDFARB, ESQ.

Attorney for Petitioner

BIAGGI & BIAGGI

Attorneys for Respondent

BY: RICHARD BIAGGI, ESQ.

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