Dep't of Correction v



Dep't of Correction v. Belgrave

OATH Index No. 1662/05 (Jan. 18, 2006), aff'd, NYC Civ. Serv. Comm'n Item No.CD06-115-SA (Nov. 8, 2006)

Charges that correction officer failed to report to health clinic four times, violated sick leave rules on three occasions, lost his shield and identification card, and was excessively late on 14 occasions in nine months sustained. Based on his extensive disciplinary record and continuing poor attendance following earlier, major disciplinary case, his deliberate violations of the rules and disingenuous defense, agency can no longer depend upon respondent to serve the Department. Respondent is incapable of conforming to agency rules. Termination is recommended.

________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF CORRECTION

Petitioner

- against -

ALONZO BELGRAVE

Respondent

________________________________________________

REPORT AND RECOMMENDATION

JOAN R. SALZMAN, Administrative Law Judge

This disciplinary proceeding was referred by petitioner, the Department of Correction, pursuant to section 75 of the Civil Service Law. Respondent Alonzo Belgrave has been employed by the Department as a correction officer for 15 years. He is charged with nine violations of agency rules and directives: respondent allegedly (1) failed to report to the Health Management Division (HMD) for evaluation and verification of his sick leave status on at least four occasions; (2) failed to place timely sick calls on three occasions; (3) lost his shield and identification; and (4) was excessively late on fourteen occasions in nine months. The charges span the period June 2003 to October 2004.[1]

A hearing was conducted before me on August 11, 2005. Upon the several, successive requests of respondent to search for medical information, the record was held open until September 23, 2005, on consent, for the purpose of allowing both sides to clarify an ambiguity in the proofs about whether respondent’s HMD medical file contained relevant documentation from his private doctor. For the reasons set forth below, I recommend that the charges against Officer Belgrave be sustained and that he be terminated.

ANALYSIS

The Department bears the burden of proof by a preponderance of the credible evidence. See, e.g., Civil Service Law § 75(2) (Lexis 2006); Dep’t of Correction v. Ingram, OATH Index No. 320/04, at 4 (Feb. 13, 2004). The Department has met its burden of proof on all charges except two, which the Department either chose not to pursue or did not prove.[2] Respondent offered no viable defense to the charges proved and presented no real factual dispute of the allegations.

The Department proved that respondent violated multiple agency rules, regulations and directives, as follows. The essential facts are not in dispute.

AWOL Charges: Failures to Report to HMD

(Charge Nos. B0320, B0487, B0488, B0527, B0628/2004, and D.R. 547/2004)

Marilyn Torres, whose title is Acting Supervisor at HMD, and who has worked for the Department for 15 years, testified that respondent missed his appointments at HMD entirely on the dates charged (Tr. 30-55). Respondent failed to perform his duties efficiently on June 17, August 23, September 1, and September 29, 2004, in that he failed to report for scheduled appointments at the Department’s Health Management Division without permission or authority and failed to notify HMD as to the reason for his absences. Respondent was considered “chronic” for his absences (Pet. Exs. 3-6). “Chronic” status means that the officer has called in sick 12 or more times within a 12-month period. Thus, respondent, as a chronically absent officer, was required to report in person the same day to HMD for evaluation by an HMD nurse or doctor, and a call was no longer sufficient (Tr. 37-40). Department Directive 2258R-A, sections III.A and III.I. (Feb. 14, 2000). If an officer is too sick to report to HMD, he must contact the nurse on staff or a supervisor, but respondent never did that on the dates charged (Tr. 39-40).[3] HMD has a “sick desk,” where officers call when they do not report to work (Tr. 31).

Respondent missed his HMD appointment on June 17, 2004, without any excuse for being AWOL, despite the fact that he had notice of the appointment (Tr. 44-45; Pet. Exs. 12-13). He saw the HMD doctor on June 3, 2004, and received a written notice of the appointment, which he signed, to return on June 17, 2004, but he failed to appear at the appointed time (Pet. Exs. 12-13).

According to an “Employee’s Sick Report,” and a “Sick Desk/Scheduling Unit Communication Form,” respondent missed his HMD appointment set for 5:00 p.m. on August 23, 2004, and, therefore was AWOL that day (Tr. 39; Pet. Exs. 6-7). The agency records contain unrefuted notes of Ms. Torres and another HMD staff member that indicate that respondent was aware of his appointment, missed the appointment, and gave no reason for missing it (Pet. Exs. 6-7).

In addition, respondent missed his HMD appointment for September 1, 2004. Again, he was aware of his HMD appointment, but was AWOL that day as well (Tr. 42-44; Pet. Exs. 10-11).

Respondent also missed his HMD appointment for September 29, 2004, after having been excused by the nurse from appearing on September 28, 2004, because of his fatigue. But he was AWOL on the rescheduled date, September 29, 2004 (Tr. 41-42; Pet. Exs. 8-9).

Respondent’s testimony that he had supplied HMD with medical excuses was incredible and appeared to spring impromptu, following the conclusion of the Department’s case and a lunch break, from a weakness in the testimony of Ms. Torres, when she conceded on cross-examination that she had not carefully searched the records for medical excuses that could have formed the basis for permitting respondent to miss HMD appointments (Tr. 45-54). She had initially testified without hesitation on direct examination that respondent had not reached an HMD doctor or nurse to be excused from appearing. Ms. Torres later conceded that she was “not looking for any” documentation of notifications from respondent to HMD in the course of the document search she had made in advance of this hearing, and that it “wasn’t [her] job” to search for documents submitted by respondent (Tr. 50). The Department’s counsel was unable to make a representation about the search of records that went into the charges that might clarify the doubt Ms. Torres had cast upon the Department’s case, and respondent requested time to find potentially exculpatory documents in his HMD medical file. Even on cross-examination, Ms. Torres tried to rehabilitate her own testimony when she indicated that such documents are searched, but not by her, and that she could not have “generate[d] a violation” if respondent had submitted a doctor’s note or a letter or made the requisite call (Tr. 50). But counsel for petitioner ultimately agreed to the document search sought by respondent: “You have an officer’s job that is on the line, so, you know, the Agency wants to get it right” (Tr. 78).

This state of the record by the close of the hearing led me to grant respondent’s request, by stipulation of counsel for the parties, for a thoroughgoing search of the HMD records for material that might bear upon both petitioner’s prima facie case and respondent’s theory of defense. I left the record open for additional testimony in the event new documents were found and either side were to call for testimony about them (Tr. 72-83). No records were located in the post-hearing search and neither side sought to offer more testimony.

Respondent testified that it was his procedure to call the sick desk when he felt too ill to report, and was told that because he was “chronic,” he must come in. He would then ask for the nurse or supervisor, usually nurse Peterson, who had previously granted a new appointment on at least one occasion, but neither she nor a captain was available to take his subsequent calls, and he would leave a message for the nurse or a supervisor to call him. He testified that he did not receive return phone calls on these occasions, and would call again, but received no rescheduled appointments (Tr. 56-57). He testified further that upon returning to HMD when he was able, he did submit to an HMD doctor notes from his longtime, private doctor; he said he brought the notes in personally, but, incredibly, could not recall the name of the HMD doctor who saw him often and who, in theory, would be able to support his contentions (Tr. 57). Despite the gravity of his situation in facing these charges, respondent took no steps to contact his private doctor or to find some record of the name of the HMD doctor to whom, he testified, he had submitted “numerous” private doctor’s notes (Tr. 58), so that he could call witnesses in his defense:

Q. What did you do with that particular document? Who [sic] did you turn it over to?

A. To HMD.

Q. In particular?

A. A doctor at HMD.

Q. Do you remember the doctor’s name?

A. No. It’s a little Indian lady.

Q. Did you coincidentally keep a copy for yourself?

A. No, not most times.

(Tr. 57-58). So, despite his testimony that the same HMD personnel placed these numerous doctor’s notes in his medical folder before his eyes, that the notes said he was sick and unable to report for duty, and that he was seeing the same private doctor for four or five years (Tr. 58-59), there were no such notes to be found, he could not recall the name of the HMD doctor who saw him, and he had no copies, no records, and no medical proof to offer at trial. This defense defied credulity and respondent contradicted it by admitting that he had failed to appear and had received no permission to miss his HMD appointments. Asked why, although he knew he was facing disciplinary charges for absences that were “becoming a regular pattern,” he never thought to make a copy of these doctor’s notes he claimed to have submitted to HMD on the days immediately following the absences charged, he gave the unconvincing answer: “I didn’t feel it would be necessary” (Tr. 63).

Respondent admitted that he knew very well, in three independent ways, that he was AWOL routinely, in that: (1) after initially succeeding in obtaining a rescheduled appointment to appear at HMD on the basis that he was too ill to appear on a date not in issue here, he either did not reach a nurse or supervisor on subsequent occasions, or (2) a supervisor told him when he called, “‘Listen, you’ve got to get here. That’s [the] bottom line. Either get here or call an ambulance and admit yourself into the hospital, if you’re that sick’” (Tr. 61), and (3) Ms. Torres herself “started denying me, flat out” (Tr. 62).

The absence of any exculpatory records after a post-hearing search that required co-operation of the parties to allow respondent to review his own confidential, extensive medical records and history of violations (Tr. 49, 52-53), by going through regular channels, including approval of a warden, and filing the appropriate request form (Tr. 49, 51), confirmed that there was, as a matter of fact, no indication that respondent had met his responsibilities with respect to the HMD appointments the Department proved he missed. In short, there were no medical excuses on file for his absences, and he submitted no documentation or testimony from his longtime private doctor to support his defense. He admitted on cross-examination that he knew the sick procedures and knew, as a person on chronic status, that he must report to HMD (Tr. 60). Respondent’s defense did no more than betray a tendency to fabricate handy excuses to avoid responsibility for his actions.

The AWOL charges are sustained.

Untimely Sick Calls (Charge Nos.B0409, B0486, and B0528/2004)

Respondent failed to provide the requisite notice one hour prior to the start of his tour of duty that he would not appear for his scheduled 3:00 p.m. tour on July 23, 2004. He called in sick late, at 5:55 p.m. HMD uses a computer program specifically designed to take these sick calls and generate records of the calls showing the name and identification of the officers, the dates and the times of the calls (Tr. 31-32; Pet. Ex. 3). The sick report for July 23, 2004 proves that respondent did not call one hour prior to his tour as required by departmental regulations (Torres: Tr. 32-33). See Department Directive 2262R, section III.A.1 (Feb. 14, 2000).

In addition, respondent failed to perform his duties efficiently in that he failed to give HMD the requisite one-hour notice that he was unable to report for his 3:00 p.m. tour of duty, and called in sick late, at 3:52 p.m., on August 14, 2004 (Torres: Tr. 34-35; Pet. Ex. 4).

Respondent also failed to perform his duties efficiently in that he failed to give HMD the requisite one-hour notice that he was unable to report for his 3:00 p.m. tour of duty, and called in sick late, at 5:18 p.m., on October 1, 2004 (Tr. 35-36; Pet. Ex. 5).

The untimely sick call charges are sustained.

Lost Shield and I.D. (Charge No. B0410/2004)

Respondent admitted that he failed to safeguard and lost his shield and departmental identification card (ID) on July 28, 2004 (Tr. 67). He did not testify about this charge and offered no details about how and where he lost and recovered these items, and whether they were at all times out of reach of the public. Cf. Dep’t of Correction v. Belgrave, OATH Index Nos. 124/04 and 657/04, at 18 (Sept. 1, 2004) (“Belgrave I”) (contested previous charge of lost shield and ID dismissed where Officer Belgrave showed that he had lost and found those items within two days and that they were at all times in his home). Captain John Leistman, a 21-year veteran of the Department who supervises agency employees, testified that respondent lost his shield and ID, and that respondent reported this to Captain Leistman on July 28, 2004 (Tr. 7-9). Captain Leistman authenticated the incident report, which he created and signed in accordance with agency procedures for investigation of such lost items (Pet. Ex. 1; Tr. 9-10). Respondent wrote a memorandum on July 29, 2004, within 24 hours of his reporting the loss, in a timely way, according to Captain Leistman’s instructions (Tr. 11), documenting his loss of the shield and ID, documenting the complaint number assigned to his report of the lost articles to the police, and stating that he had located both on July 29th, one day after originally reporting them lost (Resp. Ex. A). “The identification tags are clearly important for security reasons, so that only authorized personnel have access to the jails, and so that such tags are not available to provide unauthorized access to the jails to those who might get hold of the tags.” Dep’t of Correction v. Lopez, OATH Index No. 1804/05, at 2 (Oct. 25, 2005).

The lost shield and ID charge is sustained.

Excessive Lateness (Charge No. B0258/2004)

Respondent failed to perform his duties efficiently by engaging in a continuing pattern of excessive lateness by reporting late for duty on 14 occasions in nine months for a total of approximately 12 hours and 30 minutes, without permission or authority, during the period June 22, 2003 through March 26, 2004 (Tr. 15-30; Pet. Ex. 2). The amounts of lateness varied from 15 minutes to two hours and 50 minutes. Captain Louisa Daniels, who has served 18 years at the Department, testified as the personnel captain supervising officers’ time, assignments, duties, schedules, punctuality, and overtime (Tr. 15-16), that respondent was the subject of a series of 14 late slips, signed by respondent each time he was late, known as 15C forms, in the stated period (Pet. Ex. 2; Tr. 21). The Department showed one undisputed irregularity suggesting that respondent understated the magnitude of his lateness on October 14, 2003, when he wrote that he had arrived 15 minutes early, but the captain on duty indicated and signed the latter’s observation that respondent was actually 15 minutes late (Pet. Ex. 2; Tr. 21-22). Except for excuses tendered on four of the late slips (“doctor appointment,” “car trouble,” “route bus,” and “overslept),” respondent left blank the reasons for his lateness where each of the other ten late forms called for the listing of a “Reason for Lateness.”

On April 7, 2004, Captain Daniels signed a complaint report concerning respondent’s lateness and the Commanding Officer referred the matter for formal discipline (Tr. 22; Pet. Ex. 2).

Respondent admitted his latenesses, and blamed them on bad parking conditions and “the bad route bus problems with the route bus that takes you from the control building to the jail. Breaks down frequently. It’s unavailable frequently. Lateness is very common” (Tr. 65). Respondent argued, in effect, that most of the latenesses charged here, ending in March 2004, occurred prior to the issuance of a report and recommendation by Judge Tynia Richard on September 1, 2004, in an earlier matter before this tribunal concerning his time and leave violations and other misconduct proved there (Tr. 66). See Belgrave I. Respondent testified that at the time of his earlier hearing, he did not know that the lateness charges here were pending and that had he known of them, he would have sought to have all the charges consolidated (Tr. 66). However, two of the acts charged here post-date the decision in that case (one concerning an untimely sick call on October 1, 2004, a charge identical to a charge sustained in Belgrave I, and one concerning an AWOL on September 29, 2004).

While the Department’s rules do not specifically designate the point at which lateness becomes excessive, we have previously looked for guidance to Department of Citywide Administrative Services Personnel Services Bulletin No. 410-1 (Apr. 17, 2000), which applies to other City employees and which treats excessive lateness subject to disciplinary action as seven or more occasions of unauthorized late arrival in a twelve-month period. Dep’t of Correction v. Gardner, OATH Index No. 1096/99, at 12 (Nov. 17, 1999), appeal withdrawn, NYC Civ. Serv. Comm’n Item No. CD00-82-0 (July 24, 2000). Respondent was late twice that amount in only nine months.

The excessive lateness charge is sustained.

Departmental Rules, Regulations and Directives Violated

Respondent’s conduct violated the following agency Rules and Regulations (1996): 3.05.010 (all employees accountable to the Commanding Officer and responsible for performing their work efficiently); 3.05.100 (members of the Department must report to appointed place of duty at the time scheduled); 3.05.110 (members of the Department must perform the tours of duty scheduled by the Commanding Officer); 3.05.120 (members of the Department are responsible for the efficient performance of their duties); 3.10.030 (all employees must report for duty punctually at the time directed and shall not leave before completion of tour, except by permission of Commanding Officer); 3.10.120 (“An excessive lateness record, or a lateness record which reflects a serious impairment to a member’s performance shall result in the initiation of disciplinary action against [the] member”); 3.20.030 (members found guilty of violations of the rules and regulations or conduct unbecoming an officer may be dismissed from the Department); 3.20.300 (conduct of a nature to bring discredit upon the Department “shall be acted upon by the Department according to the nature and degree of the offense and punished at the discretion of the Commissioner”); 2.35.010 (members of the Department must immediately report the loss of their shields or ID cards to the appropriate police precinct and then to the Commanding Officer with a statement of the circumstances surrounding such loss, and disciplinary charges must be initiated against any member who has lost the assigned shield or ID card).

Respondent also violated Directive 2262R (Feb. 14, 2000), the Department’s Sick Leave Regulations for Members of the Uniformed Force, and Directive 2258R-A (Feb. 14, 2000), governing Absence Control and Sick Leave for members of the uniformed workforce. Under Directive 2262R, section III.A.1, respondent was obliged to call the sick desk at least one hour prior to the beginning of his scheduled tour of duty to report sick while off-duty. For absences of more than two days, medical documentation must be submitted to HMD upon the member’s return to duty and/or as ordered. Directive 2262R, section III.A.1.f. Once he was scheduled for an HMD appointment, respondent was obligated to appear on the date at the time of the appointment. If he was delayed or unable to keep the appointment, he was required to notify the HMD Absence Control Captain immediately. That Captain would then schedule a new appointment and is authorized to request respondent to produce documentation concerning the delay or justifying the reason for the new appointment. Id., section III.G.1. As a member of the uniformed force, respondent was required to have his private physician or medical practitioner complete a Medical Documentation form for every medical visit relating to his inability to perform full duty. Id., section III.G.2. Under Directive 2258R-A, section III.I, respondent, as a person who was chronically absent, was required to call HMD and obtain and submit a doctor’s note from his personal doctor or a hospital in the event he was too ill to report to HMD. The note must contain a diagnosis, treatment and prognosis (including an anticipated date of return to duty), and confirm that the condition was severe enough to prevent the member from reporting to HMD on the first day of absence.

FINDINGS AND CONCLUSIONS

Respondent committed the following misconduct in violation of agency rules and regulations and departmental directives.

1. Respondent knowingly failed to report to the Health Management Division for evaluation and verification of his sick leave status on four occasions and was AWOL: June 17, August 23, September 1, and September 29, 2004.

2. Respondent failed to place timely sick calls on three occasions: July 23, August 14, and October 1, 2004.

3. Respondent lost his shield and identification card on July 28, 2004, for a period of one day.

4. Respondent was excessively late on fourteen occasions for a total of approximately 12 hours and 30 minutes, without permission or authority, during the nine-month period June 22, 2003 through March 26, 2004.

RECOMMENDATION

Upon making the foregoing findings, I obtained and reviewed a summary of respondent’s work history known as the Employee Performance Service Report on Form 22R. The Department’s counsel seeks termination of respondent’s employment for a “lengthy pattern of disregard for Agency rules and regulations” (Tr. 72). Respondent has a very poor disciplinary record. His fifteen-year career is undistinguished. Respondent was disciplined with a loss of six days in 1996 for charges relating to use of force, the requirement to report a change of residence or telephone number, and the requirement to search public areas thoroughly for contraband before allowing inmates to enter those areas. In 1998, he lost three days for a charge relating to use of force. In 2001, he lost ten days for being out of residence.

The various charges proved here indicate that although he was suspended recently for 45 days, see Dep’t of Correction v. Belgrave, OATH Index No. 124/04 and 657/04 (Sept. 1, 2004), a very severe sanction, for another set of rule violations including attendance violations like the ones here, he remains unable to conform to agency regulations. Judge Richard noted that respondent’s record showed persistent absences due to sickness: 34 in 2004 (later shown to exceed 50 when the full year was tabulated), 17 in 2003, 40 in 2002, and 130 in 2001. Belgrave I, at 22. The current report, which covers the period November 21, 2004 to October 29, 2005, reflects 44 absences due to illness in that time.

Judge Richard found respondent guilty in Belgrave I of: failing to anticipate the use of force in 2002; using improper traffic control and security procedures, and being off post on two occasions that led to incidents where he had to use force in 2001; being AWOL on two days in 2003; and failing to give an hour’s notice when he called in sick in 2003. The Department sought termination in that case also. Based on the types of violations found, Judge Richard recommended 45 days’ suspension, consisting of 20 days for each incident relating to force and security procedures and five days for the time and leave violations. In reaching her conclusions, Judge Richard described respondent as “careless and impetuous, even provocative” in the force incidents. “His failure to read volatile situations, or perhaps his ability to provoke them, is conduct that the Department must treat seriously. His failure to comport with the requirements of his post and poor judgment jeopardized the security of the facility, the inmates, and his fellow officers and could have resulted in far worse consequences than it did.” Belgrave I, at 23. She went on to note that while respondent’s prior discipline resulted in relatively light penalties, there were three separate, prior instances of misconduct that resulted in discipline, two of which involved the use of force directive, and she recommended that he take an anger management course and retraining on the use of force directive. Id.

In respondent’s favor in this record, there was precious little -- only that his admitted loss of the shield and ID was short-lived, and he located them within 24 hours. I have also considered his 15-year tenure as a factor in his favor, but his long tenure alone is not enough to overcome his pattern of failure or refusal, for years, to comply with the most fundamental requirements of the job regarding attendance and use of sick leave, as well as other important agency rules. He showed no remorse and promised no effort to improve or correct his behavior. He had no valid defense, and his meager excuse for chronic lateness, blaming the Rikers Island bus, simply showed a failure to accept responsibility. Respondent could easily have remedied his lateness by arriving at the bus stop earlier. He was travelling to and from work within the same borough (Tr. 65). His weak and unbelievable excuses and his overall demeanor on the witness stand evinced a poor attitude and an unwillingness to conform his behavior to agency norms, continuing well after he was subject to the 45-day suspension recommendation. He cannot credibly claim a lack of notice that he was facing termination, which the Department has now sought twice, or surprise that the rules apply to him, and he has failed to follow departmental rules both before and after Belgrave I. His claims that he submitted medical notes as excuses for his failures to report to HMD were unsubstantiated after he was afforded ample time post-hearing to search his medical records, and seemed fabricated and disingenuous. His claim neither sounded credible at the hearing nor found any support in the agency records or in any other form of documentary or testimonial evidence. If respondent had a valid medical excuse, he could have summoned a doctor or medical practitioner in his defense, but this he did not do.

Belgrave I and the 45-day suspension should have been a wake-up call for Officer Belgrave, yet his service report indicates that his attendance record has continued to deteriorate, with the following 15 latenesses noted in the year or so since the issuance of the decision in Belgrave I on September 1, 2004: September 20, 2004 (five minutes); September 26, 2004 (20 minutes); March 6, 2005 (one hour and 30 minutes); March 7, 2005 (20 minutes); March 8, 2005 (45 minutes); May 18, 2005 (25 minutes); May 29, 2005 (20 minutes); June 4, 2005 (one hour and 30 minutes); July 23, 2004 (two hours and ten minutes); July 24, 2005 (30 minutes); August 5, 2005 (15 minutes); August 29, 2005 (40 minutes); November 1, 2005 (one hour and 30 minutes); November 2, 2005 (two hours); November 3, 2005 (two hours and 45 minutes). His overall lateness record is extensive, even after he was on notice of the earlier hearing and its results. His record shows him AWOL six times since the earlier case was decided: September 29, 2004, October 7, 2004, December 6, 2004, February 22, 2005, September 9, 2005, and October 8, 2005. At least two of the violations here (one late sick call and one of the AWOL incidents) post-date the misconduct found in the report and recommendation in Belgrave I, and yet respondent has flouted the rules repeatedly, as if he had an entitlement to continued employment regardless of his record of unwillingness to account for his time properly and respect lawful procedure.

Respondent exhibited a cavalier attitude toward his job, and even as he offered inadequate excuses, he admitted that he deliberately violated the sick leave rules. We have noted in the past that “adherence to sick leave regulations, especially when such adherence is virtually one’s only duty, is quite important, and failure to do so merits stern punishment,” Dep’t of Correction v. Cooper, OATH Index No. 852/92, at 9 (Apr. 18, 1992). While his argument that he was not on notice that he could lose his job because many of the charges here were from a period before Judge Richard’s decision might have led -- had he amassed a better employment history -- to consideration of a 60-day penalty,[4] his own testimony here of conscious disobedience of the rules, his baseless testimony of phantom medical excuses, his unchallenged late slip indicating that he understated his lateness, his subsequent failure to adhere to the rules, his failure to express the least interest in even attempting to do better in the future, and his failure to show persuasive mitigating facts in his favor, militate against further suspension. Such a penalty would be a futility.

There comes a point when the public employer is entitled to end the employment relationship. Respondent has placed himself at that point and should be separated from City service. On this record, this result would do no violence to principles of progressive discipline. See Dep’t of Correction v. Gardner, OATH Index No. 1096/99, at 14 (Nov. 17, 1999), appeal withdrawn, NYC Civ. Serv. Comm’n Item No. CD00-82-0 (July 24, 2000) (respondent’s “conduct over the years has not demonstrated a willingness or ability to” improve his attendance record. “He is no stranger to the disciplinary process,” and was “incorrigible”); Dep’t of Correction v. Johnson, OATH Index No. 514/02 (May 30, 2002), modified on penalty to termination, Comm’r Dec. (July 17, 2002), aff’d, NYC Civ. Serv. Comm’n Item No. CD03-39-SA (Apr. 11, 2003). In Johnson, the former Commissioner found, in increasing a 60-day suspension to termination for numerous attendance violations, in language that applies equally here: “Respondent has been the subject of progressive discipline and given more than one opportunity to conform to the rules of conduct of this agency. He has failed to do so. Given this history of disregard for Department rules and regulations, the only appropriate penalty is termination of his employment.” See also Dep’t of Correction v. Davis, OATH Index No. 238/03, at 12-13 (Mar. 28, 2003), aff’d, NYC Civ. Serv. Comm’n Item No. CD 04-04-SA (Jan. 26, 2004) (respondent showed himself to be “a major time and leave rule violator,” “contemptuous of the most elemental rules of the workplace,” and “devious and generally untrustworthy;” respondent failed to follow elemental procedures for obtaining time off from work; his entry of false information on leave slips showed untrustworthiness and deviousness that were considered in exacerbation of the penalty; termination was founded on multiple charges proved, prior disciplinary findings, attendance record, and “fundamental lack of regard for agency rules and his dishonesty”).

Respondent’s history of misconduct renders him unreliable to the Department and the City as an employer has a right to a workforce upon which it can depend. Accordingly, in consideration of respondent’s record and the aggravating factors noted, as well as the absence of compelling evidence in mitigation of the penalty, and in keeping with principles of progressive discipline, I recommend termination of respondent’s employment with the Department.

Joan R. Salzman Administrative Law Judge

January 18, 2006

SUBMITTED TO:

MARTIN F. HORN

Commissioner

APPEARANCES:

ORBEIN deArmas, ESQ.

Attorney for Petitioner

KOEHLER & ISAACS, LLP

Attorneys for Respondent

BY: MARLON MARTINEZ, ESQ.

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[1] At the beginning of trial, the Department withdrew, without prejudice, on consent, a charge of absence without official leave (AWOL) for an absence alleged to have taken place on December 18, 2003 (Tr. 6).

[2] It appears from a review of the full transcript and all the exhibits submitted at the hearing that petitioner failed to submit any proof as to charges that respondent was AWOL and failed to appear for his HMD appointments on November 3, 2003 and October 7, 2004 (charges B0628/2004 and 547/04). It is not clear, however, that the Department intended to pursue those claims, because its counsel spoke in closing argument of having proved the AWOL charges “on those four dates that we charge Officer Belgrave missed HMD appointments” (Tr. 72). Therefore, I find that the four AWOL dates were proved: June 17, August 23, September 1 and September 29, 2004, and alternatively, recommend that all the charges be sustained except the two charges (B0628/2004 and D.R. 547/04), as to which the Department offered no proof. I found no record that those two charges had been withdrawn.

[3] Although respondent claimed that he had sought a medical exemption from the required personal appearance, he did not prove this defense despite his having been given ample time after the hearing to review his HMD records. His counsel informed this tribunal by conference call with counsel for petitioner on September 22, 2005, that respondent had searched, and no medical excuses for his failures to appear at HMD could be found. The record was closed by consent on September 23, 2005.

[4] Of course, it would be the better practice to consolidate all charges covering the same time period, but the charges in Belgrave I concerned conduct in 2001, 2002, and 2003, and the conduct here occurred, in the main, in the later period of 2003-2004. Petitioner’s counsel indicated that charges cannot always be consolidated, as the Department serves charges when it believes its proofs are sufficient, and there may be a lag time, depending on when cycles of violations are identified and prepared. He denied “holding off to accumulate charges” for purposes of terminating respondent’s employment (Tr. 70-71). Applicable statutes of limitation also affect the timing of departmental charges. There was no proof that the Department acted in bad faith, but there was ample proof that respondent engaged in a pattern of indefensible misconduct that warranted the charges. Indeed, had the present charges been proved in Belgrave I, assuming, arguendo, that they could be brought together on a timely basis, the penalty would likely have been more severe than the 45-day suspension recommended there.

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