Dep’t of Housing Preservation & Development v. T.S.

Dep't of Housing Preservation & Development v. T.S.

OATH Index No. 63/19 (Mar. 29, 2019)

Charge of excessive lateness sustained. AWOL charges sustained as to four dates only. Penalty of 20 days suspension recommended. ______________________________________________________

NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT

Petitioner - against -

T.S.1 Respondent ______________________________________________________

REPORT AND RECOMMENDATION

FAYE LEWIS, Administrative Law Judge

Petitioner, the Department of Housing Preservation and Development ("HPD"), brought

this proceeding under Civil Service Law section 75 against respondent T.S., a housing inspector.

Petitioner alleges that respondent was excessively late for work in 2016 (ALJ Ex. 1; Pet. Ex. 1),

and that he was absent without authorization ("AWOL") on over forty "occasions" between May

26, 2016, and March 15, 2018 (ALJ Ex. 1).

At a three-day trial, each party presented documentary evidence and called witnesses, all

of whom were or are HPD employees. Petitioner called four witnesses: Lyndon Zakers, Director

of Timekeeping; Rose Cabrera, respondent's supervisor in the Bronx; John Ferrara, respondent's

supervisor in Manhattan; and Lydia Carmona, a timekeeper. Respondent testified in his own

1 Because this decision discusses mental health issues, I have redacted respondent's full name from this decision. See Human Resources Admin. v. Anonymous, OATH Index No. 1242/10 at 1-2 (May 4, 2010), modified on penalty, Admin/Comm'r Determination (June 16, 2010), aff'd, NYC Civ. Serv. Comm'n Item No. CD 11-17-A (Apr. 29, 2011) (redacting respondent's name from decision sua sponte because of the personal medical information discussed); see also Police Dep't v. A.A., OATH Index No. 2183/14 at 1 (June 30, 2015) (respondent's name withheld from publication to protect her privacy because the decision discusses her mental health); 48 RCNY ? 149(d) (Lexis 2019) ("On the motion of a party, or sua sponte, the administrative law judge may determine that publication of certain information will violate privacy rights set forth in applicable law or rules and may take appropriate steps to ensure that such information is not published").

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behalf and called two witnesses; Tonya Morgan, former Director of Employee Discipline; and Desmond Tomlinson, Director of Compensation and Benefits. The parties submitted post-trial memoranda, after which the record closed.

For the reasons below, the lateness charges and four of the AWOL charges are sustained. The other charges were not proven and should be dismissed. I recommend that respondent be suspended without pay for 20 days.

ANALYSIS Respondent has been an HPD employee since 1987 (T.S.: Tr. 324). He was assigned to an office in the Bronx in 2015 and worked there until transferred to an office in Manhattan on September 18, 2017 (Ferrara: Tr. 240). Ms. Cabrera was his supervisor in the Bronx until at least May 9, 2017, when another supervisor, Rafael Frias, became his supervisor (Cabrera: Tr. 155, 160). Mr. Ferrara has been respondent's supervisor since he started in Manhattan (Ferrara: Tr. 177, 240). Because he suffers from depression, respondent applied for intermittent FMLA leave on October 12, 2017, which was granted on October 27, 2017 (Resp. Ex. G). The excessive lateness charges relate to 2016, when respondent was working in the Bronx. By contrast, the AWOL charges span his tenure in both the Bronx and Manhattan. The AWOL charges allege that respondent was absent on over 40 occasions, including a number of date ranges (ALJ Ex. 1). But petitioner's records show that respondent was not AWOL on seven of the "occasions" within the date ranges. And petitioner conceded in its post-trial brief that five additional AWOLs included in the charges should not be considered (Pet. Post-Trial Br. at 3-4).2 This leaves 38 alleged unauthorized absences, only 14 of which were during respondent's tenure in the Bronx. All but one of the 24 AWOL charges relating to respondent's employment in Manhattan post-date the grant of intermittent FLMA leave to respondent.

2 The charges allege that respondent was AWOL on over 40 occasions: in 2016 - May 26, June 28 and 29, July 1 and 21; in 2017 - February 15, March 29, April 4, 6, 7, 13, and 14, May 17 and 18, and October 23; and in 2018 January 11, 17, 19, 22, 25, and 26, January 31 through February 5, February 7, 9, 12, February 14 through February 26, February 28 through March 5, March 7, 8, and 15 (ALJ Ex. 1). But timekeeping documents listing 2018 absences charged to AWOL did not include seven dates within the date ranges: February 3, 4, 17, 18, 19, 24, and 25 (Pet. Ex. 2). Additionally, petitioner acknowledged that five of the 2018 dates when respondent was allegedly AWOL ? January 11 and 22, and February 20, 21, and 22 ? should not be considered; although petitioner did not elaborate why, on those dates respondent had texted Mr. Ferrara either that he was not feeling well or that he had a doctor's appointment (Ferrara: Tr. 199: Pet. Exs. 6, 7). Excluding these 12 dates, the charges allege that respondent was AWOL 38 times: May 26, June 28 and 29, July 1 and 21, 2016; February 15, March 29, April 4, 6, 7, 13, 14, May 17 and 18, and October 23, 2017; and January 17, 19, 25, 26, 31, February 1, 2, 5, 7, 9, 12, 14, 15, 16, 23, 26, 28, March 1, 2, 5, 7, 8, and 15, 2018.

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Lateness charges The charges allege that respondent was excessively late because he was late for work 231

minutes within a leave calendar year (ALJ Ex. 1). Petitioner's rules require that employees comply with all time and leave regulations (ALJ Ex. 3 at ? 7). Its time and leave manual states that an employee is late if not ready to work at the scheduled starting time and that lateness that exceeds three hours in a leave year (May 1 to April 30) "does not meet acceptable citywide standards" and may result in disciplinary action (ALJ Ex. 4 at 6, 47).

Petitioner did not specify respondent's alleged lateness within the charges, which would have been the better practice. Instead, petitioner relied upon a timekeeping document captioned "Excess Late Report," which lists a total of 11 dates between January 14, 2016, and April 22, 2016. For each date, the report lists the amount of minutes that respondent was purportedly late: January 14, 22 minutes; January 22, 28 minutes; January 26, 24 minutes; March 2, six minutes; March 11, 11 minutes; March 14, 21 minutes; March 24, 49 minutes; April 7, 16 minutes; April 8, six minutes; April 12, 42 minutes, and April 22, six minutes. This totals three hours and fifty one minutes (Pet. Ex. 1), which exceeds the three-hour floor permitting the agency to bring disciplinary charges.

The excess late report was extracted from the computerized CityTime system, into which employees input their starting and departure times for the work week (Zakers: Tr. 27; Tr. 28). There are two ways for employees to record their arrival time: either through a hand scanner or by logging into CityTime at their computer (Cabrera: Tr. 71). CityTime will indicate that an employee is late if that person signs in more than five minutes after their start time (Cabrera: Tr. 125, 140).

Respondent asserted that the lateness report did not reflect the time that he actually got to work, because he was unable to use the hand scanner and it took him a long time to sign in on the computer.

It was undisputed that respondent did not use the hand scanner to log in, that he worked the day shift, and that another inspector used his computer at night and remained logged on to the computer. Respondent would have to log the other inspector off and log in with his own user name and password (Cabrera: Tr. 121, 126; T.S.: Tr. 334, 403-04).

But the parties disagreed about how long this process took. Ms. Cabrera testified that to log on to the computer, respondent had to switch the user name to his own and then log in with

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his password (Tr. 122-24, 127). She said that she logs off and on to a work computer, using the control functions, and that the process takes about "two minutes" (Tr. 123, 129). She also testified that an employee whose computer is not working can log in at any computer to avoid being marked as late in CityTime (Tr. 125).

Respondent disagreed that it takes only several minutes to log on to his work computer. He testified that he had an old computer and because other people were logged on, he had to turn off the power to the computer, turn it back on, and then enter his password to log on (Tr. 337, 404). Respondent testified that "[i]t literally would take [him] five to six minutes" to sign in (Tr. 334). Later on, though, he said this was "an assumption" and it "could be a lot longer" (Tr. 404).

Shown the lateness report (Pet. Ex. 1), which included a 49 minute lateness, respondent said that it "definitely" could have taken him 49 minutes to log on (Tr. 405). He thought some of this was due to password changes (Tr. 406). He explained that the chief in charge, Chief Bukfozer, "wouldn't allow" him to do some other type of entry to log in his time, but that he notified his supervisors that he was at work (Tr. 407).

Respondent acknowledged that "people say" that restarting the computer should be quick, "one minute, two minutes," using the "alt" and "delete" functions (Tr. 337). But he "didn't understand all that" (Tr. 337). He was "trained" to shut down the system and turn it on again (Tr. 337).

Respondent testified that he complained about log-in delays to Mr. Frias, who was also a supervisor in the Bronx office. Mr. Frias said that he would send respondent to the agency's downtown office so respondent could complete the registration process to use the hand scanner (Tr. 338-39). But Mr. Frias never did so and respondent did not begin using the hand scanner until months later, after the agency's disciplinary office intervened (Tr. 334). "The funniest thing" was that the hand scanner did not work (Tr. 334). Mr. Frias was no longer in the office but respondent explained the situation to two new supervisors. He then "kind of gave up on it" and started coming in a little bit earlier (Tr. 335).

This charge is sustained. Respondent's testimony that it could take him 49 minutes to log in seemed exaggerated, given his previous testimony that it took five or six minutes. Moreover, Ms. Cabrera did not seem to be a vindictive or unfair supervisor. Indeed, respondent characterized her as a "nice woman" who seemed concerned when he talked to her about suffering from depression (Tr. 341). There was no reason to discredit her testimony that it only

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takes several minutes to log off another employee and log in to a work computer. And even if respondent's testimony that there were sometimes password changes that delayed his log-in was credited, this would not explain the lengthy nature of many of his latenesses. The excess late report lists 11 latenesses. Three of the latenesses were relatively short ? only six minutes ? but the remainder were eleven minutes or over. It is not likely that it repeatedly took respondent more than 10 minutes to log in, much less over 20 minutes (as is the case for six of latenesses in the late report). See Dep't of Correction v. Smith, OATH Index No. 667/13 at 19 (July 19, 2013), aff'd, NYC Civ. Serv. Comm'n Case No. 35546 (May 6, 2014) (finding "no credible evidence" that respondent's latenesses were due to issues with CityTime). Even if the sixminute latenesses were discounted, respondent still would be late for three hours and thirty-three minutes over four months, which exceeds the annual threshold for excessive lateness by more than half an hour.

Respondent said that Ms. Cabrera, Mr. Frias, and Chief Bukfozer never talked to him about his lateness (Tr. 340). There is no evidence that he and Chief Bukfozer discussed his lateness. But respondent acknowledged talking to Mr. Frias about the log-in delays, after which Mr. Frias suggested he take steps to enable his use of the hand scanner. And Ms. Cabrera credibly testified that she talked to respondent about being on time and using the computer to sign in when he arrived. Although she did not know when, she recalled respondent telling her that a week or two of latenesses were attributable to issues with his daughter. She told him that he "had to be on time" or at least "say something" to explain why he would be late (Tr. 85, 86, 141, 142). Ms. Cabrera also testified that she told respondent to use the hand scanner or computer to sign in or out: "I always ask him, when you're here . . . as soon as you get here, sign in your time . . ." (Tr. 71).

Respondent's counsel highlighted throughout trial that petitioner follows the citywide absence control plan, under which supervisors are expected to "clearly communicate attendance standards to employees" and to take remedial action if the employee is frequently late, such as meeting with the employee in a conference (ALJ Ex. 4 at 47). Respondent also testified that he was "confused" because the former Chief in the Bronx issued a memorandum (referred to in testimony as a "soft S") whenever there were disciplinary issues; a supervisory conference would follow and employees could submit their own memorandum in response (Tr. 352). Respondent

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