Human Resources Admin



Human Resources Admin. v. Vila

OATH Index No. 1578/08 (June 10, 2008)

Paralegal aide charged with using his work computer for unauthorized purposes, including storing sexually explicit and pornographic images and video clips, disobeying orders and multiple time and leave violations. Agency proved most of the charges. Termination recommended.

__________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

HUMAN RESOURCES ADMINISTRATION

Petitioner

- against -

VICTOR VILA

Respondent

______________________________________________________

REPORT AND RECOMMENDATION

JULIO RODRIGUEZ, Administrative Law Judge

The Human Resources Administration (“HRA”) brought this disciplinary proceeding under section 75 of the Civil Service Law. Respondent Victor Vila, a paralegal aide I, is charged with numerous counts of misconduct. Specifically he is charged with using City property for unauthorized purposes by storing thousands of unauthorized and non-work related programs, games, music files, pictures, photographs, videos, many of which were sexually explicit or suggestive, on his agency assigned computer; four instances of unauthorized Internet access; installing unauthorized hardware and software onto his agency computer; and storing numerous personal e-mails, some of which contained sexually explicit pictures (ALJ Ex. 1, charge I). He is also charged with using agency equipment for non-work related purposes (charge VII); engaging in non-work related activity while on duty (charge VIII); failing to devote his time at work to official business (charge IX); and using HRA’s e-mail system for non-work related business (charge X).

Respondent is also charged with lying to his supervisor and disobeying orders (charges II, III); numerous time and leave violations, including 42 latenesses over an 18-month period in 2006 and 2007, unauthorized absence from his work station for a period of 45 minutes, and absence without leave on two occasions (charges IV-VI); committing acts which constitute an unauthorized and abusive exercise of his official functions (charge XI); engaging in conduct prejudicial to good order and discipline (charge XII); and engaging in behavior that brings discredit to the agency (charge XIII).

Petitioner alleges that respondent’s behavior violated HRA’s Code of Conduct, Executive Order No. 651 (Dec. 17, 1998), HRA Procedure No. 03-03, which governs employee attendance and punctuality, and HRA Procedure No. 03-09, which prohibits using the agency’s e-mail system for non-work related personal business.

A hearing on the charges was held on March 13, April 2, and April 8, 2008. Petitioner presented the testimony of eight witnesses and extensive documentary evidence, including computer discs, printouts of images and lists of files amounting to hundreds of pages. Respondent testified on his own behalf.

For the reasons provided below, I find that petitioner proved most of the charges and recommend that respondent be terminated.

ANALYSIS

Respondent has been employed at HRA for seven years. His current job title is paralegal aide I (ALJ Ex. 1; Tr. 193). Respondent is assigned to the New York County division of the Office of Legal Affairs eviction unit in HRA’s Adult Protective Services (“APS”) unit (Tr. 237). Respondent’s duties include making daily trips to the courts to file and conform documents (Tr. 190 & 290). In addition to his responsibilities as a paralegal, respondent is a computer liaison for his unit (Tr. 123). As computer liaison, his duties include requesting user ID’s, assisting with computer problems and ensuring that HRA staff members are aware of the agency’s computer use policies (Pet. Ex. 3a). He troubleshoots Time Matters, the agency’s case management system (Tr. 196). Respondent also performs some clerical duties, including entering data into Time Matters, but the majority of his time is spent filing and conforming documents (Tr. 193).

Charge I, specifications I-III, VI, VII (Computer Files, Programs, E-mail)

David Kaufman, Assistant Deputy Commissioner for the Special Investigations Division (“SID”), testified that SID conducted a forensic investigation of respondent’s computer from November 26, 2007, through December 12, 2007 (ALJ Ex. 1). When SID interviewed respondent about his computer use, he said that “his whole life is on the agency computer” (Pet. Ex. 3a). SID’s investigation confirmed that a huge amount of material relating to respondent’s life and interests was saved on his work computer.

Altogether, SID’s investigation found thousands of unauthorized files on respondent’s computer. These included at least seven videos showing unclothed couples engaging in oral sex and sexual intercourse. These videos varied in length from 20 seconds to one minute and thirty-eight seconds (Tr. 56-57; Pet Ex. 3b, attachment 13; Pet. Ex. 12); The investigation also found other live-action and animated sexually explicit videos (Pet Ex. 3b, attachment 15; Pet. Ex. 15a); television commercials of a humorous or sexually suggestive nature (Pet. Ex. 48); 775 music files along with an installed copy of iTunes (Tr. 89; Pet. Ex. 16); and dozens of wave sound files (Tr. 89-90; Pet. Ex. 17).

SID also found thousands of pictures that had been saved on respondent’s computer (Tr. 92; Pet. Exs. 3a, 18, 28). Many of these are snapshots of family and friends; some appear to be downloaded from the Internet. Respondent organized his pictures into various folders. The pictures show naked women and other sexually explicit material (Pet. Exs. 19, 20, 21, 28a, 36). For instance, the subdirectory “Mardi Gras 2003” in the “Trips” folder contains at least 75 pictures of women exposing their breasts (Pet. Ex. 36). Under the folder “Conventions,” a subdirectory named “Naughty Party” contains 22 pictures of partially clothed women embracing and showing one of them inserting a bottle into her vagina (Pet. Ex. 19). There are many of other pictures of an equally explicit or disturbing nature.

Along with sexually explicit material, respondent saved images and documents concerning what seem to be other areas of particular interest: tattoos, motorcycles and the Wicca religion. In one folder alone, respondent saved over 9,500 images of tattoo designs (Pet. Ex. 33). He also saved dozens of pictures of people with tattoos, some of which are also sexually explicit (Pet. Ex. 34). Respondent also saved material which relates to the business of tattooing. This includes multiple copies of instructions for the care of new tattoos from Triple X Tattoo (Pet. Ex. 34b) and designs for the logo of another tattoo business, second Skin Studio (Pet. Ex. 3b, attachment 6; Pet. Ex. 5a).

Respondent also installed various unauthorized and non-work related programs to his agency computer. Petitioner also submitted lists of dozens of other unauthorized installed programs and unauthorized files found by SID on respondent’s computer (Pet. Exs. 14, 15). Respondent testified that none of the programs found on his computer were operational. He claimed that friends at work gave him these programs and that he merely copied them to disc so that he could run them on his home computer (Tr. 351-52). This testimony was not believable in light of Commissioner Kaufman’s testimony that the game programs were fully operational. In any case, even if respondent merely used his computer to copy various programs, his actions would be a violation of agency rules.

Respondent is charged with installing on his agency computer an unauthorized software program called East-Tec Eraser 2002, which is designed to erase all evidence of online activity (Tr. 126; Pet. Ex. 41). The program was installed with a “crack” file which enables all the program’s features (Tr. 126). Both East-Tec Eraser and the crack file were found on respondent’s computer by SID during its investigation (Tr. 126). Respondent again claimed that the Eraser program was not installed and was not operational (Tr. 351, 393). However, SID found no evidence of respondent’s Internet surfing history (Tr. 127). This leads to the conclusion that respondent used a program to hide his Internet activity.

Respondent admitted that all of the pictures and movies submitted as evidence by petitioner were saved on his agency computer (Tr. 349-50, 360). In fact, respondent seemed proud of this voluminous record of his life and interests. In his testimony, respondent stated: “All those pictures that you see is my life. I’ve gone to Mardi Gras, I’ve gone to Daytona, I’ve gone to a lot of places that were very exotic, and I like to take a record of it” (Tr. 355). Respondent also admitted that he routinely accessed unauthorized material on his agency assigned computer “when I’m bored to death” (Tr. 355). He took evident pride in sharing this material with other agency employees, as he admitted in his testimony: “I think my life is cool. And certain people that I work with like to see it. Just like they have stuff that I like to see. And I show them. When I have a wild party, you know, and we take pictures. It's just part of my lifestyle” (Tr. 355).

In his defense, respondent claimed that when he was hired as a temporary worker in 2000, he was not aware that there was an agency policy against saving personal pictures on his computer (Tr. 349). He also claimed that in his orientation after becoming a civil service worker, he was not told that it is impermissible to retain personal photographs and movies on an agency computer (Tr. 349-50). However, the HRA Code of Conduct was promulgated by Executive Order No. 651 on December 17, 1998, well before respondent was employed by HRA in any capacity. Employees are expected to become familiar and comply with the rules of the agency for which they work. Dep’t of Sanitation v. Evelyn, OATH Index No. 1822/00, at 9 (July 24, 2000), aff'd, NYC Civ. Serv. Comm'n Item No. CD01-68-SA (July 30, 2001) (“Respondent’s professed ignorance of the applicable sick leave rules was neither credible nor a defense.”); see also Dep’t of Environmental Protection v. Tosado, OATH Index No. 311/83, at 19 (Sept. 2, 1983) (agencies are entitled to rely on the presumption that employees are aware of all rules dealing with their employment). Furthermore, the fact that respondent admitted that he had this material on his computer for many years is not a point in his favor.

Respondent also claimed in his defense that the amount of space on his computer taken up by the unauthorized material was relatively small (Tr. 356). Yet respondent admitted that his unauthorized material took up seven gigabytes of storage, almost ten percent of the computer’s capacity (Tr. 356). He claimed, self-servingly, that there was no danger the computer would be damaged by his activities. In the view of Commissioner Kaufman, respondent put the integrity of HRA’s computer network at risk and created the potential of agency liability for violation of software copyright laws by installing and using illegally obtained and unregistered software (Pet. Ex. 3a).

Respondent also claimed, incredibly, that looking at pictures and movies of naked people and people having sexual relations, alone or with his fellow workers, never interfered with his work (Tr. 360). Like respondent’s other defenses to this charge, this one is not entirely on point. Agency employees “shall not engage in any non-agency activity during working hours, nor use any agency premises to conduct non-agency matters.” HRA Code of Conduct, sect. III, no.12 (emphasis added). Furthermore, agency employees are not permitted to use City property, such as agency computers, for unauthorized purposes. HRA Code of Conduct, sect. III, no.13. Respondent’s admitted conduct is in violation of these rules.

Petitioner’s evidence included a spreadsheet saved by respondent containing his user names, passwords and associated e-mail addresses to a number of websites. The websites included several mail and social networking sites, as well as others, such as, , , , , , , etc. The associated e-mail addresses include respondent’s personal email address as well as his agency assigned email address (Pet. Ex. 13a).

HRA Procedure No. 03-09 expressly prohibits the use of agency e-mail for non-work related personal business. This rule was distributed to all HRA staff on April 15, 2005 by e-mail (Pet. Ex. 74). Respondent admitted that he received and saved the e-mail, but claimed that he never read it (Tr. 390-91). If respondent failed to read the agency rule, he did so at his own peril. HRA is entitled to assume that its employees are familiar with its rules, as discussed above.

SID’s investigation further uncovered dozens of e-mails and attachments saved by respondent and recovered from the agency’s server (Tr. 130-31; Pet. Exs. 42-46). These e-mails were from 2004 through 2007 and included messages from “,” “,” “Harley Chat Group,” and personal messages from people who respondent apparently met on dating or social networking websites (Pet. Ex. 42). Many of the e-mails contained photograph attachments which respondent also saved. Also of a non-work related nature were e-mails from “Verizon Wireless” and “Motorcycle Safety School” (Pet. Ex. 45). There were many e-mails from other personal friends or relatives (Pet. Exs. 43-46). One of these contained 12 photographs of nude or partially clothed women (Pet. Ex. 45). Respondent carefully saved his e-mails in appropriately named directories including, for instance, “,” “Friends” and “Important Stuff” (Pet. Exs. 42, 44, 45). It is clear that respondent’s use of the agency e-mail system violated HRA’s rules.

Respondent also admitted using his agency computer to send nude or pornographic pictures to friends and to other City employees (Tr. 400). There is no question that respondent used City property, his agency computer, for unauthorized purposes, in violation of HRA rules. Therefore, charge I, specifications I-III, VI, and VII are sustained.

Charge I, specification IV (Internet Access)

Respondent is charged with using his agency computer to access three different inappropriate and unauthorized websites on four occasions. Petitioner submitted evidence that on October 2, 2006, respondent used his agency computer while on duty, to make a purchase from , a retailer of computer and electronic goods (Tr. 40-41, 122-23; Pet. Exs. 4a, 40). Petitioner’s evidence also proves that respondent used his agency computer to access the New York State Department of Motor Vehicles website (“DMV”), at a time when he was on duty, to purchase a vanity license plate for a motorcycle (Tr. 51-52, 119-20; Pet. Exs. 4a, 37).

Petitioner also submitted evidence that, on August 6 and August 13, 2007, respondent accessed Craigslist to search for motorcycles for sale. Respondent saved the results of these searches on his agency computer (Pet. Exs. 38, 39).

Respondent admitted using his agency computer to purchase the vanity license plate (Tr. 365-66), but vehemently denied going to the Craigslist website. Respondent testified that Craigslist is a restricted website and that agency firewalls make it impossible for employees to access it (Tr. 354, 365, 376). Respondent did not deny that he saved the motorcycle searches on his computer, but said that they were sent to him by friends (Tr. 366).

Petitioner’s evidence suggests that on August 6 and 13, respondent accessed the Internet using his agency computer, connected with Craigslist and conducted a search for motorcycles for sale (Pet. Exs. 3a, 38, 39). However, Commissioner Kaufman admitted in his testimony that the agency’s firewalls block access to restricted websites such as Craigslist. He did not venture an explanation as to how respondent circumvented the firewalls (Tr. 162). Therefore, petitioner did not prove that respondent accessed Craigslist through the Internet and this specification is sustained only as to the purchases made from TigerDirect and the DMV.

Charge I, specification V (Hardware)

On November 26, 2007, based upon the MIS preliminary investigation, SID seized respondent’s computer (Tr. 22). At respondent’s work station, SID found unauthorized hardware, a ribbon cable, attached to the back of his computer (Tr. 25; Pet. Exs. 2b, 2c). Commissioner Kaufman testified that the ribbon cable was not installed as the agency would have done (Tr. 25). Commissioner Kaufman also testified that, in the course of the SID investigation, respondent told him that the cable was used to attach an old computer (Tr. 148). Upon removing the hard drive, SID discovered that respondent had written his first name on it in blue ink (Tr. 26; Pet. Ex. 2d). In his own testimony, respondent did not deny that he had affixed the unauthorized cable to his computer or that he had written his name on the hard drive. Charge I, specification V is sustained.

Charges II and III (False Statement and Disobeying Orders)

On November 14, 2007, Ms. Sacks, a supervising attorney, asked respondent to go court to retrieve an order to show cause (“OSC”) that had been filed by a co-worker. Respondent agreed that he would go the next morning when he had a scheduled trip to the court (Tr. 278).

On November 26, 2007, Moira Archer, supervisor of the APS Manhattan unit and respondent’s direct supervisor, learned that the order that was filed on November 14 had not come back to the office. Ms. Archer asked respondent if he knew anything about the order. Respondent said that he did not have a copy of the order and that he thought he had given it to Ms. Sacks. Ms. Archer instructed respondent to go to court and get a copy of the order (Tr. 292) and asked Ms. Sacks if she knew the status of the order. Ms. Sacks denied having a copy of the order (Tr. 292).

Respondent returned from court and showed Ms. Archer a purportedly conformed[1] order on which the words “DENIED 11/16/07” and the name of the judge had been written (Tr. 293; Pet. Ex. 62). Ms. Archer was surprised that this was the only information written on the order and asked respondent to return to the court and check the file to see whether the court had filed a separate explanation for the denial (Tr. 295). Respondent returned to the office later that afternoon and he told Ms. Archer that he had checked the court file and reviewed the OCS. He assured her that the conformed order included all that was written on the original (Tr. 295).

Skeptical of respondent’s explanation, Ms. Archer obtained a photocopy of the denied OSC. This document was substantially different from that which respondent had showed her the day before. The OCS was marked “DENIED at 1:15 PM on 11/16/07 – No one has returned to pick up this OSC.” The name of the judge is stamped beneath the writing (Pet. Ex. 58).

Charge II alleges that respondent lied to his supervisor, Ms. Archer, when he said that he gave the denied OSC to Ms. Sacks and when he returned from court and told Ms. Archer that all that was written on the OSC was “DENIED.” Respondent denied lying and blamed the problem on Ms. Sacks (Tr. 338). Somewhat incoherently, he both denied making mistakes and claimed to always admit when he made mistakes (Tr. 339). It is possible that, when first asked by Ms. Archer about the OSC, respondent did not remember whether he had picked it up or given it to Ms. Sacks. If that was the case, respondent should have told Ms. Archer that he did not remember what happened with the OCS. It seems clear, however, that when respondent returned from the court with a document on which he had written only “DENIED,” he was attempting to cover up the fact that he had not returned to court on November 15 to pick up the OSC. It is violation of HRA rules to make a false statement to a supervisor. Therefore, this charge is sustained.

Charge III alleges that respondent failed to obey the orders of his supervisors. Specification I charges that respondent failed to consult with Ms. Archer concerning the priority of assignments, despite numerous instructions to do so. On November 27, 2007, respondent is alleged to have refused to file an emergency order to show cause for the appointment of a guardian ad litem (“GAL”). He refused because he claimed to have other paperwork to deliver to the Police Department. It is alleged that he did not consult with Ms. Archer on the emergency matter.

Ms. Archer testified that she talks to the paralegals “on a daily basis” about what work needs to be taken to court (Tr. 318). Before November 27, she had “more than one” discussion with respondent explaining that she was the person who was to make decisions about what should take priority if a paralegal had more than one assignment (Tr. 305-06). Ms. Archer testified that this particular matter concerned an eviction scheduled for the following day (Tr. 305). She learned that an emergency GAL referral had been faxed in, that respondent had been asked to stay and handle it, that he said he was unable to, and that he had left on other business (Tr. 303). Judith Tucker, a paralegal with the Brooklyn unit, testified that she mentioned to respondent that he had time to take the papers to court that day but that he said he was not going to take them (Tr. 242). Respondent did not tell Ms. Archer that there was an emergency GAL in the office (Tr. 304). Ms. Archer testified that had she known of the emergency, she would have instructed respondent to wait until the papers were prepared and to take them to court (Tr. 305). By the time another paralegal was available it was too late in the afternoon to go to court (Tr. 305). The emergency GAL papers were filed the next morning (Pet. Ex. 67). When Ms. Archer spoke to respondent the next day, he explained that he had not had time to go to court because he needed to meet with his union (Tr. 306).

Respondent admitted that he had “numerous” conversations with Ms. Archer concerning the prioritization of work (Tr. 380). He testified that priorities vary from day to day but that he did not inform Ms. Archer of the emergency GAL on November 27 because he did not want to appear to be telling his supervisor what to do (Tr. 380-82). This misses the point. Admittedly, respondent was told to consult with his supervisor on the priority of work on numerous occasions, but he failed to do so on November 27. Therefore, charge II, specification I is sustained.

Specification II charges that, on the morning of November 21, 2007, respondent failed to follow the order of his supervisor to file an OSC for a guardian under Article 81 of the Mental Hygiene Law in Supreme Court. Petitioner alleges that respondent delegated that assignment inappropriately and without authorization to another paralegal. Cynthia Dayton testified that on November 21, 2007, she was the temporary supervisor of respondent’s unit because Ms. Archer was out of the office. Ms. Dayton asked respondent to file an OSC because Ms. Crews, another paralegal, was not feeling well enough to go to court. Respondent said that he too was not feeling well (Tr. 227). While they continued to discuss the matter, respondent sat down at his desk. As they talked, respondent grabbed the case file from Ms. Dayton’s hands, threw it on his desk and told her that he would go to court (Tr. 228). Subsequently, Ms. Dayton learned that Ms. Crews had filed the case (Tr. 229).

Respondent testified that Ms. Dayton gave him the case file and he put it on his desk (Tr. 340). He claimed that he put his head down on the desk because he was feeling ill and Ms. Crews came and took the file while he was not looking (Tr. 341). She did not tell him she was taking it and he did not realize it was gone until later, when he lifted his head off his desk (Tr. 341, 383). Incredibly, respondent testified that when he realized the file was gone, he did not try to figure out where the file went, who took it or what happened to it (Tr. 383).

That afternoon, Ms. Dayton wrote an e-mail describing the incident. She notes that she had instructed respondent to go to court with the OSC but that Ms. Crews had gone instead. She quotes respondent as saying that Ms. Crews “offered” to go. She felt that it was unlikely that Ms. Crews would offer to go after having asked earlier if someone else could go in her place[2] (Pet. Ex. 57). On the stand, respondent denied that he told Ms. Dayton that Ms. Crews offered to go to court (Tr. 382-83). This testimony is not believable. There is no evidence that Ms. Dayton had any reason to fabricate dialogue in her e-mail. Respondent’s testimony that someone took an important file off his desk but that he made no effort to find out what happened to it is similarly incredible. Therefore, it is more likely than not that Ms. Dayton ordered respondent to file an OSC and that he disobeyed this order. He may very well have been ill that day, but if he was unable to fulfill the task assigned by his supervisor, he should have discussed it with her as instructed, rather than disobeying her order. Charge II, specification II is sustained.

Charges IV-VI (Time and Leave Violations)

The HRA Code of Conduct prohibits excessive lateness. Charge IV alleges that between July 1, 2006, and December 7, 2007, respondent arrived at work late at least 42 times for a total of 724 minutes (ALJ Ex. 1). Petitioner presented the testimony of Harvey Gerstman, a manager in HRA’s timekeeping unit. Mr. Gerstman explained that a personnel report kept by his unit documents all of the charged latenesses for the period in question (Tr. 179; Pet. Ex. 50). The latenesses range from one minute on several occasions to much longer periods. For instance, on December 19, 2006 respondent was 2 hours, 22 minutes late (Pet. Ex. 51a). On December 7, 2007, he was 2 hours, 49 minutes late (Pet. Ex. 51c).

There is no dispute that respondent was late on all these occasions (Tr. 341). Respondent attributed his lateness to problems sleeping caused by “personal stuff” (Tr. 342). This vague explanation was totally unsupported. Respondent maintained that he always called his supervisors when he woke up late, but there is no proof that he did so. These excuses are insufficient to justify respondent’s late arrivals. Human Resources Admin. v. Small, OATH Index No. 2019/04, at 12 (May 10, 2005); Human Resources Admin. v. Metz, OATH Index No. 1000/02, at 3 (Dec. 20, 2002).

HRA Procedure No. 03-03 gives the agency the authority to discipline or discharge an employee for excessive lateness. “Excessive” is not defined in the rule, but petitioner’s proof is sufficient to establish that respondent’s latenesses were excessive. See Office of the Comptroller v. Nieves, OATH Index No. 962/04 (Oct. 29, 2004) (36 latenesses over a 12-month period for a total of 508 minutes); Small (83 times over a 20-month period); Metz (63 times for a total of 1,745 minutes, over a 19-month period); Human Resources Admin. v. Wright, OATH Index No. 1825/04 (Sept. 14, 2004) (70 times over a period of eight and one-half months). Accordingly, charge IV is sustained.

Respondent is charged with being absent without authorization from his work station for 45 minutes on November 14, 2007 (ALJ Ex. 1, charge V). Ms. Archer testified that she looked for respondent at his cubicle twice before 10:45 a.m. but there were no indications that he had been at his desk yet that day. She checked the timekeeping system and found that respondent had swiped in at 9:59 a.m. She was concerned because she knew there were papers that respondent needed to take to court. When she checked respondent’s cubicle again around 11:00 a.m., the files he was supposed to handle were gone from his desk (Tr. 315).

Respondent testified that his desk is on the 17th floor but that APS also has offices on the 16th floor (Tr. 343). If Ms. Archer did not see him at his desk, respondent said, it was because he was on the 16th floor checking with other attorneys if they had any orders that needed to go to court (Tr. 343). Respondent’s unrebutted explanation seems reasonable and plausible. In the absence of proof that checking with attorneys in the office was not a legitimate part of respondent’s job, petitioner has not carried its burden of proof. Therefore, charge V is dismissed.

Finally, respondent is charged with being absent from work without supervisory approval on August 20, 2007, and November 20, 2007 (ALJ Ex. 1, charge VI). Jacqueline Dudley, associate general counsel for APS, testified that on August 20, 2007, she was responsible for approving respondent’s time and leave (Tr. 194, 204). On that day, respondent did not report to work and did not notify his supervisors that he would be out, as he had been instructed to do (Tr. 204; Pet. Ex. 54). Respondent testified that he was absent from work on August 20 “to take care of some personal matters.” He claimed that he called his supervisor that morning and also told Ms. Dudley the day before that he would be out (Tr. 344). This is directly contradicted, however, by Ms. Dudley’s testimony and her e-mail of August 23, 2007, which notes that neither she nor Marguerite Camaiore, another supervisor whom respondent was instructed to call, received a voicemail message from him on August 20 (Pet. Ex. 54).

On November 20, 2007, respondent was again absent from work (Pet. Ex. 55). Ms. Archer, who was respondent’s supervisor at the time, testified that he did not notify her that he was going to be absent (Tr. 319). That evening, Ms. Archer sent an e-mail to respondent asking why he had been absent and why he had not called her (Pet. Ex. 55). The next day, he responded that he had e-mailed her and that since the e-mail had not gotten bounced back, he had assumed it had reached her (Pet. Ex. 55). Ms. Archer testified that she never received an e-mail from respondent concerning his absence (Tr. 319, 321). In any case, however, respondent provided no proof of any e-mail sent to his supervisors. I found Ms. Archer’s testimony to be credible. In sum, petitioner established by a preponderance of the credible evidence that respondent was absent from work without supervisory approval on August 20, 2007, and November 20, 2007.

Remaining Charges

Charges VII-XIII are duplicative because they repeat the allegations contained in charge I. Although these charges are sustained, they will not result in a separate penalty recommendation. See Dep’t of Transportation v. Mendez, OATH Index No. 384/05, at 4, n.2 (Jan. 19, 2005).

FINDINGS AND CONCLUSIONS

1. Respondent saved thousands of photographs, cartoons, videos, programs, and other files, many of which were sexually explicit, on his agency computer.

2. Respondent used his agency computer to access two inappropriate and unauthorized websites, but petitioner failed to prove that respondent used his agency computer to visit the Craigslist website.

3. Respondent installed unauthorized hardware to his agency computer and wrote his name on the computer’s hard drive.

4. Respondent made a false statement to his supervisor when he provided her with a conformed OSC on which the word “DENIED” was written and told her that there was no reason provided on the original order for its denial.

5. Petitioner proved that respondent failed to obey the orders of his supervisors on two occasions: on November 27, 2007, respondent failed to consult with his supervisor concerning the prioritization of work assignments; and on November 21, 2007, he failed to follow the order of his supervisor to file an OSC.

6. Respondent arrived late to work 42 times in a period of almost 18 months.

7. Petitioner failed to prove that respondent was absent from his assigned work location for 45 minutes on November 14, 2007.

8. Respondent was absent from work on August 20, 2007, and November 20, 2007, with supervisory authorization.

RECOMMENDATION

After making the above findings, I requested and received a synopsis of respondent’s prior disciplinary history. Respondent has been with the agency for seven years: the first three years as a temporary employee and as a civil servant since (Tr. 337). His only prior disciplinary infraction was a failure to notify the agency of his conviction for a misdemeanor, for which he received a warning letter, in June 2005, but no further discipline. Now, respondent has been found guilty of a number of violations of agency rules, any one of which would likely result in a significant penalty. Petitioner is seeking his termination.

First, respondent made unauthorized and improper use of City property when he saved thousands of pictures, pornographic video clips, music files and programs on his agency computer. He also installed and ran unauthorized hardware and software. This is not a case where an employee viewed inappropriate images on his work computer only a few times. See Schnaars v. Copiague Union Free School District, 275 A.D.2d 462, 713 N.Y.S.2d 84 (2d Dep’t 2000). In Schnaars, a school janitor was terminated after an administrative hearing for using the school’s computers to view pornographic websites on two occasions. The Second Department set aside the penalty as disproportionate to the offense and in light of the janitor’s unblemished 13-year record. In cases where the frequency of inappropriate computer use has been greater, however, termination has been upheld. Waldren v. Town of Islip, 6 N.Y.3d 735, 810 N.Y.S.2d 408 (2005). In Waldren, a public employee was charged with accessing pornography on the Internet on 12 occasions over a five-month period. The Court of Appeals, reversing the Appellate Division, concluded that the penalty was not so disproportionate to the offense as to shock the judicial conscience.

Here, respondent seemed cavalier about his violations of agency rules and even proud of what the materials revealed about his personal life. He stored a tremendous volume of unauthorized material on his agency computer, some of which many people could easily find to be offensive. The time and care respondent devoted to storing this material was evident by the way he organized and classified the various folders and subfolder. Respondent’s admitted use of his agency computer to store sexually explicit and pornographic video clips and pictures is particularly egregious misconduct that is aggravated by his admission that he viewed this material at work and shared it with other employees. This misconduct alone warrants termination.

Respondent is also guilty of having made a false statement to Ms. Archer when he told her an OSC contained only the word “DENIED,” and did not indicate the reason for the denial. Respondent’s behavior creates the strong inference that he was attempting to cover up the fact that his failure to return to court to pick up the OSC two weeks earlier resulted in the denial. Respondent’s mistake could have had severe consequences for the APS client and his attempt to cover up the mistake warrants a significant penalty. See Dep’t of Sanitation v. Rojas, OATH Index No. 1568/04 (Oct. 7, 2004), aff’d, NYC Civ. Serv. Comm’n Item No. CD05-38-SA (Aug. 11, 2005) (20-day suspension for false statements intended to cover up respondent’s failure to perform her duties); Dep’t of Sanitation v. Chaudhuri, OATH Index No. 1231/07 (May 3, 2007) (60-day suspension for two instances of false statements to supervisors); Human Resources Admin. v. Broughton, OATH Index No. 1518/04 (Sept. 30, 2005), aff'd, NYC Civ. Serv. Comm'n Item No.CD06-57 (May 2, 2006) (termination recommended for respondent who made false statements in an application for financial benefits and excessive lateness).

Respondent was also found guilty of failing to obey the orders of his supervisors on two occasions: he did not consult as ordered with Ms. Archer about work priorities and failed to file an emergency GAL petition; and he did not file an OSC as instructed. The penalty for failure to obey orders varies according to the circumstances of the refusal. See Human Resources Admin. v. Traylor, OATH Index No. 168/07 (Jan. 31, 2007) (five-day suspension for clerical associate who refused an order to provide a written statement explaining her failure to complete an assigned task); Health and Hospitals Corporation (Coney Island Hospital) v. Reid, OATH Index No. 681/00 (Apr. 14, 2000) (ten-day suspension for nurse’s aide who failed to obey order to transport a patient); Health and Hospitals Corporation (North Bronx Central Hospital) v. Doxen, OATH Index No. 1577/01 (May 4, 2001) (termination recommended where respondent’s misconduct was proven to directly affect the health of patients under her care).

Respondent’s job is to file court papers in emergency situations for HRA clients who are unable to care for themselves. His failure to follow the orders of his supervisors put those clients at risk. Fortunately, it seems that there were no adverse consequences as a result of respondent’s actions, but that does not mean the insubordination itself was insignificant. See Reid, at 17-18.

Finally, respondent is guilty of numerous time and leave violations, including excessive lateness and unauthorized absence from work. Generally, this tribunal has recommended suspension for excessive lateness comparable to that of respondent’s, when that is the only charge. See Metz, OATH 1000/02 (ten-day suspension); Wright, OATH 1825/04 (sixty-day suspension). However, when coupled with other violations, a more stringent penalty is appropriate for such conduct. See Small, OATH 2019/04 (termination recommended for respondent who was excessively late, insubordinate and made profane written references to a client); Nieves, OATH 962/04 (termination recommended for respondent who was excessively late, insubordinate and made extended non-business related phone calls).

In this case, respondent refused to recognize the serious nature of his misconduct, particularly in regard to his manifestly inappropriate and unauthorized use of his agency computer. Termination is the appropriate penalty and I so recommend.

Julio Rodriguez

Administrative Law Judge

June 10, 2008

SUBMITTED TO:

ROBERT DOAR

Commissioner

APPEARANCES:

PATRICK SOOHOO, ESQ.

PAUL LIGRESTI, ESQ.

Attorneys for the Petitioner

MARTIN DRUYAN, ESQ.

Attorney for the Respondent

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[1] Conforming an order entails marking up a blank copy of a proposed order to reflect what the court has written on the original which stays with the court. The paralegal indicates that the order was signed by a judge and marks down anything else the judge may have written that differs from what APS proposed, including service and return dates. Paralegals either wait for the judge to sign the order or return to the court to conform the order. The conformed order is brought by the paralegal back to the agency so that its records are current (Tr. 191-92).

[2] Ms. Crews is on leave and did not testify (Tr. 341).

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