Human Resources Admin



Human Resources Admin. v. Uddin

OATH Index No. 1286/07 (Oct. 3, 2007), aff’d, NYC Civ. Serv. Comm’n Item No. CD08-24-SA (May 7, 2008)

Agency proved that respondent was absent from his work location without authorization on July 4, 2006, that he was insubordinate and that he acted in a discourteous and threatening manner towards a supervisor. Judge recommends a 30-day suspension without pay.

______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

HUMAN RESOURCES ADMINISTRATION

Petitioner

- against -

JAMAL UDDIN

Respondent

______________________________________________________

REPORT AND RECOMMENDATION

JOAN R. SALZMAN, Administrative Law Judge

Petitioner, the Human Resources Administration, brought this disciplinary proceeding pursuant to section 75 of the Civil Service Law. Respondent, Jamal Uddin, is a Supervisor I at the New Day Shelter (“the Shelter”), a shelter designated for victims of domestic violence. Petitioner alleges that respondent violated agency rules by: (1) being absent without authorization (“AWOL”) on July 4, 2006; (2) recording inappropriate statements in the Shelter’s logbook four times, on July 4, 2005,[1] September 25, September 28 and October 3, 2006; and (3) threatening or intimidating a supervisor by coming towards her angrily and waving his finger towards her face until a co-worker intervened, and yelling at her on October 10, 2006, in front of staff (ALJ Ex. 1).

A hearing commenced before me on June 13, 2007, and continued on June 21 and 22, 2007. The record was closed as of July 3, 2007, the date the response was due to petitioner’s post-hearing motion (see note 1). Petitioner submitted documentary evidence and the testimony of Hearing Officer Deborah Weeks, Director of Social Services Veronica Hedrington, Director of the New Day Shelter Marlene Barthelemy-Grant (known as Ms. Barthelemy), and caseworker Evelyn Medal. Respondent submitted documentary evidence and the testimony of Supervisor John E. Owens, caseworker Joanne John-Allaway, and Assistant Superintendent of the Shelter Karl Martin. Respondent testified on his own behalf and denied all charges. Upon consideration of the full record of this matter, I find that petitioner proved all the alleged charges by a preponderance of the credible evidence, and recommend that respondent be suspended without pay for 30 days.

ANALYSIS

AWOL

Respondent did not work his 5:00 p.m. to 1:00 a.m. shift on July 4, 2006. Petitioner contends that respondent gave no prior notice of his intent to take off, either in written or oral form. Respondent denies this misconduct on two grounds: first, that the Shelter has no clear and consistent procedure for taking leave on a legal holiday, and second, that he gave his supervisor, Veronica Hedrington, prior notice of his intent to take July 4th off such that his absence was authorized.

Petitioner recognizes Independence Day, as a paid legal holiday, as noted in the agency’s policy entitled, “Supervision of Employee Attendance and Punctuality,” Procedure No. 03-03 (Feb. 12, 2003) (the “Attendance Policy”) (Resp. Ex. B). However, because the Shelter provides 24-hour services for victims of domestic violence, as well as an emergency hotline, employees at the Shelter are expected to work on paid legal holidays if their regular shifts fall on such a date. The witnesses, including respondent, agreed that the Shelter required 24-hour coverage every day, including paid holidays (Hedrington: Tr. 32; Barthelemy: Tr. 169; Uddin: Tr. 431, 460). Witnesses for both petitioner and respondent also agreed that the agency considered July 1 through September 30 a “peak” vacation period and that Shelter employees must submit written requests to take vacation during that period (Barthelemy: Tr. 292, 294; Hedrington: Tr. 98-99; Uddin: Tr. 431; Pet. Ex. 20).

Director Marlene Barthelemy circulated a memorandum on June 5, 2006, speaking of the necessity to obtain prior approval for “annual leave or compensatory time” during the period July 1, 2006 through September 30, 2006, the peak vacation period. It also said: “Please submit in writing your vacation requests for July 1 through September 30, 2006, by 10:00 a.m. on Tuesday, June 13, 2006. You will receive decisions on your request by 10:00 a.m. on Tuesday, June 20, 2006” (Pet. Ex. 20). Ms. Barthelemy stated that she intended her memorandum to cover the holidays that fell within the peak vacation period (Tr. 291-94). Although respondent denied that July 4, 2006, was subject to the “peak” vacation memorandum, I find that this memorandum did require respondent to file his request for leave on July 4, 2006, in writing, by June 13, 2006, as Ms. Hedrington and Ms. Barthelemy testified (Tr. 98-99, 294; Pet. Ex. 20). Respondent’s proposed reading of this memorandum as limited to annual leave days and the use of compensatory time is overly literal and defies common sense and human experience. Clearly, the import of this memorandum is that the Shelter’s management needs to know in advance, in writing, all requests for absence during peak vacation season, including July 4th, to ensure that the Shelter would have enough employees of appropriate rank to serve the public and be available for the emergency work of the Shelter. Ms. Barthelemy testified that not having a supervisor at work during a holiday can be “grave” because the supervisor needs to make “life and death” decisions, especially because there has been a pattern of domestic violence incidents on holidays (Tr. 173). However, she acknowledged that if the Shelter’s employees do not work a scheduled legal holiday, they need not use accrued vacation time or compensatory time. If they do work on a scheduled holiday, they are paid time-and-a-half, according to the citywide contract with the union (Tr. 169, 295).

Both Ms. Barthelemy and Ms. Hedrington testified that taking off a paid legal holiday during peak vacation period requires prior written notice, as opposed to a mere verbal request and approval. Ms. Barthelemy, head of the Shelter, testified authoritatively that the Attendance Policy does not state whether requests and approval for time off need to be in writing or can be verbal, but that the Shelter’s individual policy requires that all advance requests be in writing in order to ensure coverage (Tr. 211-14; Resp. Ex. B). She testified that the normal procedure to request time off, absent an emergency, is to notify one’s supervisor in writing, and receive approval from the supervisor in writing, at which point the time off is noted in a vacation calendar (Tr. 170). On cross-examination, Ms. Barthelemy acknowledged that an employee may “call off” in an emergency or if he or she is sick on a legal holiday, but must place the call to the office “[b]ecause coverage is required . . . somebody must know you will be absent” (Tr. 212-13). Ms. Hedrington, Director of Social Services, who reports to Ms. Barthelemy, testified that in an emergency shelter everyone works on national holidays, unless the workers receive prior approval for a day off (Tr. 32-33). She further stated that because this was a peak vacation period, such request must be in writing (Tr. 98). Although Ms. Hedrington wavered momentarily during cross-examination as to whether a request for the day off on a paid legal holiday must be in writing or could be in any form, she then reiterated that the June peak vacation memorandum from Ms. Barthelemy indeed requires such requests to be submitted in writing, in advance (Tr. 98-99). She stated that if respondent had asked her in advance for July 4th off, she would have made note of his request on an employee vacation calendar that she maintained to aid her in keeping track of scheduling staff, placed it on a board for all staff to see, and notified the director, Ms. Barthelemy, to ensure coverage. She credibly testified that she did not forget to follow her practice on July 4, 2006. Ms. Hedrington emphatically denied that respondent communicated to her any request for leave for Independence Day 2006 (Tr. 32). When she discovered that respondent had not come to work on July 4th, she notified Ms. Barthelemy, who told her to commence disciplinary action (Tr. 34-35).

Assistant Superintendent Karl Martin stated that as an alternate union delegate, he is familiar with agency time and leave policies. He testified that to his knowledge, there is nothing in writing that requires an employee to obtain written or prior approval to take off a legal holiday. He maintained that a shelter employee can call and ask if there is adequate coverage, and as long as there is adequate coverage, the employee may take the day off (Tr. 378-80). Supervisor John Owens testified that in order to take a vacation or personal day, an employee could ask his or her superior an hour in advance of the scheduled start time, and the superior would usually approve or deny the day off based on coverage needs (Tr. 274-76, 281). Caseworker Joanne John-Allaway testified that there is no documentation of the practice concerning taking off legal holidays and that the rule regarding written vacation requests during the peak period did not apply, in her mind, to legal holidays (Tr. 362). She stated that in her experience, if she wanted to take a legal holiday off she would ask her supervisor in advance, and the supervisor would exercise his or her discretion. She also claimed that occasionally supervisors would call the Shelter before their shifts and ask caseworkers if there was enough coverage so that they could take the day off. If there was coverage, the supervisor would not come in (Tr. 363).

Hearing Officer Debra Weeks conducted an informal conference with respondent on September 11, 2006, for alleged time and leave violations. She testified credibly that during the conference, respondent pleaded not guilty and claimed that on June 28, 2006, he had asked Ms. Hedrington for July 4th off. He maintained that Ms. Hedrington responded affirmatively, on the conditions that there was coverage and respondent’s work was completed (Tr. 16-17; Pet. Ex. 1). Ms. Weeks testified at the hearing that she never spoke to Ms. Hedrington regarding this matter because Ms. Hedrington was not in when Ms. Weeks called, but Ms. Weeks did speak with Ms. Barthelemy (Tr. 24).

After the conference, Ms. Weeks prepared an informal conference summary, which petitioner submitted into evidence. The summary recorded respondent’s claim that on June 28, 2006, he asked Ms. Hedrington if he could take off July 4th (Pet. Ex. 1). Petitioner’s attorney noted that respondent’s contention was incredible because Ms. Hedrington left work early on June 28, 2006, and was not even present during respondent’s shift. According to her testimony and weekly time sheet, Ms. Hedrington left the Shelter at 5:35 p.m. on June 28, 2006, and respondent arrived at the Shelter at 6:14 p.m. on that date (Pet. Exs. 2A and 2B). Therefore, petitioner argued, respondent could not have communicated with Ms. Hedrington at work that day (Tr. 39).

At the hearing, respondent changed his story and testified that he had actually made the request for leave to Ms. Hedrington on June 20, 2006. He stated that he made “an honest mistake” or was “mixed up” when he gave June 28 as the operative date at the informal conference (Tr. 461). He now claimed that on June 20, 2006, he verbally asked Ms. Hedrington for the day off, and that Ms. Hedrington said he could have the day off, as long as there was enough coverage (Tr. 463). He stated that although he normally documents such matters, as a diligent record keeper, he did not submit his request in writing because he thought it unnecessary, in that July 4th was a legal holiday (Tr. 465, 468). Respondent asked Ms. Owens if she would be working on July 4th to make sure there would be coverage on that date, and Ms. Owens said she would be working (Tr. 462-63).

Respondent testified that it was “common courtesy” to give a supervisor notice before taking off on a legal holiday, and stated that this notice could be oral or in writing (Tr. 460). Respondent’s testimony was unclear as to whether he viewed this notice as a simple courtesy, or as mandatory, but he stated that if one of his subordinates failed to notify him before taking off a legal holiday, he would “not make an issue about it,” as long as there was sufficient coverage (Tr. 464).

I found respondent’s testimony that he gave Ms. Hedrington prior notice on June 20, 2006, incredible. When respondent was questioned as to the discrepancy between June 28, the date he supplied at the informal conference, and June 20, the date on which, he swore at the hearing, he had sought leave for Independence Day, he became defensive and agitated. I do not believe that his memory served him more accurately at the hearing, a date more removed from the actual event, about a year later, than at the informal conference held two months after the fact. Ms. Hedrington testified at the hearing nine days before respondent took the witness stand. Thus, by the time respondent testified, he was well aware of petitioner’s evidence that Ms. Hedrington was not at the Shelter after 5:35 p.m. on June 28. Moreover, respondent’s theory was that the citywide contract with his union required that a supervisor respond to a request for leave with pay within seven days of the request, except for requests that could not be approved at the local level “or requests for leave during the summer peak vacation period or other such periods for which the Employer has established and promulgated a schedule for submission and decision of leave requests” (Resp. Ex. OOO, at 15). His testimony that he actually made the request at an earlier date, June 20, was self-serving and lacked credibility. In any event, under either version of the chronology given by respondent (June 20 or 28), his request for leave on Independence Day 2006 was both untimely under the peak vacation memorandum because it was due June 13th, and in improper form because it was not in writing. Although it is true that respondent did not use annual leave on July 4th, because it is a citywide, paid legal holiday, he nonetheless needed permission under the Shelter’s vacation memorandum to take time off to enable the directors to ensure that the Shelter was adequately staffed on July 4th. Although respondent’s narrow reading of the vacation memorandum would exclude paid legal holidays from the requirement to submit a written request for leave by June 13th, I find that a fair reading of that memorandum is that a leave request for July 4th must be made in writing by June 13th because July 4th falls within the peak summer vacation period contemplated by the citywide contract with the union, and it was sensible for the directors to control absence by a special notice requirement in this 24-hour emergency shelter, in the form of the vacation memorandum. Moreover, the staff, including respondent, understood that they needed permission in advance to be absent on paid legal holidays that fell on their regular shifts because of the special nature of the emergency Shelter.

Ms. Hedrington based her assertion that respondent never made a prior request on three factors: (1) She simply did not recall any such request. (2) She did not mark a request from respondent on the vacation calendar, as she customarily did for all vacation requests. Ms. Barthelemy maintained that according to the vacation calendar she kept, on July 4th, two workers, Ms. Cepedes, a supervisor, and Ms. Walston, a caseworker, took the day off by securing permission in advance, and Ms. John-Allaway “called off sick” that day (Tr. 218, 220-21). Finally, (3) Ms. Hedrington stated that it was unlike respondent to make a verbal request, given his undisputed prior history of frequently communicating with staff in writing (Tr. 106, 107).

I found Ms. Hedrington’s testimony that respondent was likely to memorialize and document all disputed communications with staff to be credible based on the numerous memoranda and logbook entries submitted by both parties, including documentation of his dispute with management about the vacation he planned the preceding year, and his own testimony: “I respond to every memo that I get” (Tr. 465; Pet. Exs. 5 and 22; Resp. Exs. K, M, and DD). The record shows that respondent had a tendency to put most requests, demands and comments in writing. In particular, on July 4, 2005,[2] he noted his intent to take vacation in the social services logbook (Pet. Ex. 5). Even assuming, arguendo, that respondent’s counsel is correct that the vacation memorandum was insufficiently clear that legal holidays must be the subject of a prior written request, and that verbal approval sufficed, I find that respondent failed to obtain necessary prior verbal approval to be absent on July 4, 2006.

For all of the foregoing reasons, I find that petitioner proved by a preponderance of the credible evidence that respondent was AWOL on July 4, 2006. The charge is sustained.

Logbook Entries

The Shelter has a logbook, which the staff uses to document the work done so that staff assigned to different shifts can continue pending work effectively (Tr. 174). Petitioner alleges that respondent used the logbook in an inappropriate manner on four occasions, even after receiving several warnings and directives against doing so. Petitioner proved respondent’s improper use of the logbook as follows.

The logbook was created after a state audit in 2001 to evaluate the efficiency of the Shelter (Tr. 41-45). The auditor determined that certain tasks were left incomplete due to a lack of communication between shifts (Tr. 44). State representatives are free to view the logbook and other case files, and have done so yearly since the 2001 audit (Tr. 43). A memorandum from Ms. Hedrington to all social services staff on September 25, 2001, informed employees that any important information that needs to be documented and passed on to the next shift should be documented in the logbook. The memorandum further instructed that a supervisor, or caseworker if no supervisor is available, must review the logbook after each shift and note any outstanding tasks that need attention on the next shift. Additionally, the memorandum put staff on notice that the logbook would be reviewed by the state “for inspection” (Pet. Ex. 4). Ms. Barthelemy testified that respondent was instructed on use of the logbook many times since he came to the shelter sometime after the 2001 logbook was introduced (Tr. 181). Ms. Hedrington testified credibly that she recirculated this memorandum on March 15, 2005, to all social services staff at the Shelter, including Mr. Uddin (Tr. 47). Despite his denial that he received the reissued memorandum (Tr. 488-89), I credit her testimony as to the meaning of her notation on the face of the memorandum: “Recirculate 3/15/05” next to her initials (Pet. Ex. 4).

Respondent testified that the logbook was already in use before he started working at the Shelter (Tr. 452). On March 15, 2005, Ms. Hedrington sent him a memorandum stating, “you should indicate in the log events that occur during your shift for follow up” (Resp. Ex. BB emphasis in original). His understanding was that the logbook existed for “convenience.” He testified that the logbook was helpful to him in communicating information to other staff members, especially because he did not trust that his memoranda were being delivered (Tr. 453, 476-80). He admitted on cross-examination that he could have written his complaints in memo form (Tr. 479).

On June 13, 2005, respondent made a logbook entry in which he criticized a staff member for leaving without informing a supervisor. He wrote that her conduct was “unprofessional and unacceptable” (Pet. Ex. 8). Ms. Hedrington testified that respondent’s logbook entry on June 13, 2005, created hostility and was demeaning to the staff member (Tr. 61). On June 13, 2005, Ms. Hedrington sent respondent a memorandum stating that she was recirculating a memorandum from March 15, 2005, on what should not be entered in the logbook, and that:

A brief note should be entered into the logbook regarding any pertinent information to be passed on between shift to shift. . . . The personal entry you made in the logbook was unwarranted. Under no circumstances should I see another personal entry as the one you left for Ms. [ ] in the logbook. If you have any questions or concerns about what should and should not be entered into the logbook, please see me.

(Pet. Ex. 7).

On June 15, 2005, respondent protested Ms. Hedrington’s June 13, 2005 memorandum, stating that he purposely published his critique of a staff member for all to see “for the betterment of staff development.” This, he wrote, was “a conscious decision on my part” (Pet. Ex. 9). I find that this memorandum reveals that respondent willfully and deliberately defied his supervisor by including a criticism of a staff member in the logbook. He was insubordinate. Ms. Hedrington sent another memorandum to respondent on June 17, 2005, stating that this was her third attempt to direct him and that “[a]ny personal information such as the note to Ms. [ ] should have been written to her directly in memorandum form and not in the logbook” (Pet. Ex. 10).

On July 4, 2005, respondent made a lengthy logbook entry regarding a time and leave issue (Pet. Ex. 5). He wrote, in part, that he regarded the denial of his 2005 vacation schedule as revenge and bias, and that:

. . . management tries to negate its responsibility and involves unfair and bias [sic] practices in public work place . . . I am just coming out of race discrimination based on national origin by the City of New York and its [sic] one of the agencies. I am being hurt and I am very tired of being at the center of your foul play in the name of Administration responsibility or other cliché . . . . I will be taking my family vacation as per schedule from 7/6/05 to 7/17/05. Please understand that I am not AWOL, but on a vacation.

(Pet. Ex. 5). Ms. Hedrington testified that the July 4, 2005, entry involved labor-management issues and respondent’s personal issues, and that his entries were threatening to her and Ms. Barthelemy (Tr. 109). On July 5, 2005, Ms. Hedrington sent another memorandum to respondent stating that she had written to him on June 13 and 17 about the proper use of the logbook and that:

I am deeply disturbed by you[r] most recent entry. You[r] latest entry clearly demonstrates your lack of professionalism, lack of boundaries, and your blatant disregard of your supervisor.”

(Pet. Ex. 6).

On September 19, 2006, Ms. Hedrington made a logbook entry that contained the following, “[Resident] has been readmitted to New Day due to poor judgment exercise[d] by Sup[ervisor] I Uddin” (Resp. Ex. NN). Immediately thereafter, on September 19, 2006, respondent recorded a reply to Ms. Hedrington’s comments in the logbook,

Ms. Barthelemy and Ms. Hedrington were not in the office and did not have first hand knowledge of the situation. Then how come they make a comment in the logbook about this most beloved and experienced supervisor without consulting with him about the matter . . . . It is simply an unprofessional act on the part of Ms. Hedrington and Ms. Barthelemy.

(Resp. Ex. NN).

On September 25, 2006, respondent made the following logbook entry: “Ms. Hedrington exercised extremely poor judgment for arbitrarily discharging [a client] based on hearsay. It is really victimizing a victim” (Pet. Ex. 12A). On September 28, 2006, Ms. Barthelemy made the following logbook entry, “This logbook is not to be utilized to express your personal opinion. This is a directive. Thank you in advance for your cooperation” (Pet. Ex. 12B). Directly below Ms. Barthelemy’s entry, respondent recorded, “Tell your SS Director Ms. Hedrington, about your directive. Unprofessional activity is not acceptable. Seek training” (Pet. Ex. 12B). On September 29, 2006, Ms. Barthelemy sent a memorandum to respondent referring to his entries on September 25 and 28, stating in pertinent part:

Mr. Uddin, kindly cease using Social Services’ Logbook to express your personal opinion. Should you again fail to adhere to this directive and use the Social Services Logbook to express your personal opinion, I will have no other recourse but to file disciplinary charges.

(Resp. Ex. MM).

On October 3, 2006, respondent made the following logbook entry, “Ms. Hedrington is continuously causing blunder [sic] and exercising extremely poor judgment by accepting an unsafe client . . . who is subsequently transferred to another shelter today” (Pet. Ex. 12C).

Petitioner submits that respondent’s entries on July 4, 2005, and September 25 and 28, and October 3, 2006, constituted abusive conduct that detrimentally affected the agency and prejudiced good order and discipline. I agree. Ms. Hedrington testified convincingly that respondent’s entries demean the staff and the position of the directors and cause hostility in the workplace (Tr. 51, 61). Specifically regarding the July 4th entry, she felt the accusations of racial discrimination were a threat of legal action and undermined her authority at the Shelter (Tr. 110). Ms. Barthelemy found the July 4th entry “very threatening, very abusive and very inappropriate” (Tr. 177). She further stated that the September 25th entry created ill will and a hostile work environment because it publicly criticized Ms. Hedrington; the entry was a bad reflection on him and on the directors (Tr. 178-79). She testified that based on respondent’s logbook entries, he “just don’t care,” and as a whole, the entries made her feel “Frustrated. Disappointed. Threatened. Worried. Overwhelmed” (Tr. 307).

Respondent testified that his writing in the logbook was not an official function, not part of his official duties or formal tasks and standards as a supervisor (Tr. 453). Yet he well understood that certain personnel matters were not meant to be published to the entire staff. For example, he was irritated when Ms. Hedrington mistakenly posted on the bulletin board a memorandum addressed only to him about his omission of a notation in the logbook concerning police appearing at the shelter on March 15, 2005, when she meant to post not that document, but the general memorandum she also had in her hand on that date. Respondent called this error to her attention and complained about it in writing (Tr. 149-50; Resp. Ex. DD), also lending credence to Ms. Hedrington’s contention that she did inform respondent of the general directive of the same date when she recirculated it.

I find that respondent’s logbook entries were indeed inappropriate and that they did undermine the authority of his superiors and negatively affected the Shelter. The logbook was not an appropriate vehicle for criticizing directors and co-workers. The logbook was meant to keep track of work that needed to be completed from shift to shift, to provide continuity and enhance service to the public. It was respondent’s duty as a supervisor to use the logbook for that purpose only. Because the logbook was open to the entire staff, his comments undermined the authority of Ms. Hedrington and Ms. Barthelemy, and disrupted the office. Respondent was free to address complaints or express dissatisfaction through direct conversation with his superiors or through memoranda.

Because Ms. Hedrington gave respondent notice of proper use of the logbook on March 15, 2005 (when she recirculated her September 25, 2001 directive), June 13, 17, and July 5, 2005, and because respondent was given repeated and specific, clear directives, in addition, from Ms. Barthelemy on September 28 and 29, 2006, respondent is charged with insubordination, as well as discourtesy, abuse of official functions, and conduct detrimental to the agency. Petitioner alleges that respondent disobeyed regulations and orders of his superiors by continuing to make inappropriate logbook entries. For example, Ms. Barthelemy testified that respondent’s entry on October 3, 2006, directly under her directive in the book, showed he had no concern for what she said (Tr. 180).

Three elements are required in order to prove insubordination: “first, that the order was, in fact, communicated to a subordinate employee by a superior employee; second, that the order was clear and unambiguous in its content; and third, that having heard a clear an unambiguous order, the employee willfully refused to obey.” Human Resources Admin. v. Johnson, OATH Index No. 637/01, at 9 (July 12, 2001). Respondent received clear orders that he should not voice his personal opinions in the logbook. Respondent’s logbook entries did consist of his personal opinions and contempt for and disagreements with management, and displayed to his co-workers his pique and disrespect for his supervisors for all to see. In addition, Ms. Hedrington directed him in writing to cease misusing the logbook to reprimand subordinates or criticize co-workers (Pet. Ex. 10). She also wrote to him that he had to respect “boundaries” and that his logbook entries were disrespectful (Pet. Ex. 6). It is incredible that respondent had any confusion as to the inappropriateness of his entries or that he misunderstood these directives. He was so intent on his mission to have the directors he held in such contempt removed from their jobs that he simply refused to control himself. Respondent received memoranda specifically addressing the entries that were inappropriate. Ms. Barthelemy entered a clear directive to all staff in the logbook in response to his inappropriate comments (Pet. Ex. 12). He willfully refused to obey these orders.

Respondent argued that the directives and memoranda he received merely advised against recording his personal opinion in the logbook. He maintained that his entries were not personal opinions, but that they were based in fact (Tr. 484, 495): “I don’t put personal opinion . . . . I was not ordered to do anything . . . . [The directives] said this is my personal opinion” (Tr. 483-84).

In addition, respondent complained that other staff members vented their frustration in the logbook, including Ms. Hedrington. Respondent was not reprimanded again for any logbook entries from the time he received the July 5, 2005 memorandum from Ms. Hedrington until after Ms. Hedrington’s entry on September 19, 2006. Respondent testified that Ms. Hedrington was trying to smear his name, and, therefore, he said, he had to respond (Tr. 482). Ms. Barthelemy testified that Ms. Hedrington’s September 19th entry was not inappropriate (Tr. 235-36), and stated that her comment was actually an apology for an unfortunate decision made at the Shelter (Tr. 304). Ms. Hedrington was not disciplined for this entry (Tr. 238). I do not accept that Ms. Hedrington’s entry was appropriate. She acknowledged at the hearing that she should not have addressed her complaint about respondent’s “poor judgment” in the logbook (Resp. Ex. NN). But she said “two wrongs don’t make a right” (Tr. 119). Given Ms. Hedrington’s mea culpa, Ms. Barthelemy’s defense of Ms. Hedrington’s logbook entry is unconvincing. It does appear that Ms. Hedrington had a single lapse with that entry and she bears some responsibility for respondent’s reaction. Nonetheless, as an experienced City employee for more than 20 years, a supervisor, and an adult, he bears the lion’s share of the responsibility for his defiance.

Although respondent argued that Ms. Hedrington’s September 19, 2006 logbook entry provoked at least three of the four entries for which respondent is charged, Ms. Hedrington’s actions do not excuse respondent’s entries. He received orders from Ms. Barthelemy as well, and she held a higher position of authority than Ms. Hedrington. The evidence shows that respondent was using the logbook inappropriately before September 19, 2006. Respondent is charged for three entries he made after September 19. Although Ms. Hedrington should not have allowed him to irritate her to the point that she had a lapse and disregarded her own directive, respondent is not exonerated for taking every opportunity to vent his frustrations in the logbook.

Before recording the charged entries, respondent received clear orders, warnings and directives from both Ms. Hedrington and Ms. Barthelemy that his entries constituted misconduct and that future misconduct of this nature would be punished. For the reasons noted, I find respondent was insubordinate in continuing to record inappropriate and disrespectful comments in the logbook on July 4, 2005, September 25 and 28, and October 3, 2006.

Threat to Superior

On October 10, 2006, at approximately 7:55 p.m., a confrontation erupted between respondent and Ms. Hedrington (Tr. 127). Petitioner alleges that during this interaction respondent committed misconduct by threatening or intimidating Ms. Hedrington. Respondent denies that there was any incident at all. I find that respondent did act in a threatening and disrespectful manner to Ms. Hedrington.

The incident arose from a heated conversation between respondent and his subordinate, Evelyn Medal. The conversation began when respondent denied Ms. Medal’s excuse for being 15 minutes late and disapproved the excuse she tendered. Respondent asked Ms. Medal for documentation of her alleged transportation problem before he would approve the lateness[3] (Medal: Tr. 319-20; Uddin: Tr. 443-444). Ms. Medal stated that respondent’s tone of voice was “loud,” as she herself was, and that she was upset with respondent and did not want to submit documentation (Tr. 320-21, 338). She asked Karl Martin[4] to accompany her to discuss the issue with respondent, and serve as her witness (Tr. 319). Respondent told Ms. Medal he would not change his decision, and that she could take the dispute to one of her “special people,” meaning Ms. Hedrington (Tr. 320-21). There was a perception held by respondent that Ms. Medal was aligned with Ms. Hedrington, and there did indeed seem to be starkly divided loyalties among the staff -- there were those who followed the directors and others, like respondent and his witnesses, who sought persistently to oust Ms. Barthelemy and Ms. Hedrington (Tr. 451).

Ms. Medal testified that she and respondent were both arguing in loud voices in front of respondent’s office. According to her, Mr. Martin was observing the argument (Tr. 338). Respondent claimed that Ms. Medal was yelling and flailing her arm (Tr. 443-44). She testified that she did wave her hand as she then told respondent, “forget about it” and walked down the public hallway. She claimed that respondent then followed her, still speaking to her and/or to Mr. Martin (Tr. 338-39). Mr. Martin testified that when respondent insisted on getting documentation for her lateness, Ms. Medal walked down the hallway, “uttering that she was not happy” and grumbling (Tr. 384). He maintained that he and respondent walked down the hallway, behind Ms. Medal, but that neither said anything to her while she was leaving the private hallway leading to the public one (Tr. 395). At that point, Ms. Medal and respondent concur, Ms. Hedrington appeared and told them to “take [their] conversation elsewhere” or “take this thing somewhere else,” and that everyone could hear and see them (Medal: Tr. 321-322; Uddin: Tr. 446).

Ms. Hedrington testified that she was in her office when she heard raised voices (Tr. 127). She testified that when she stepped out of her office and looked down the hallway she saw Mr. Martin, Ms. Medal and respondent. She could see that Ms. Medal’s head was down, and it looked as if she was crying (Tr. 129). When respondent saw Ms. Hedrington, he told her, “this had nothing to do with her” (Medal: Tr. 322). Mr. Martin said to respondent, “you really don’t have to [get] involve[d] with this” (Uddin: Tr. 446).

Ms. Medal claimed that respondent then approached Ms. Hedrington in a loud and aggressive manner (Tr. 323), pointing and wagging his right finger in Ms. Hedrington’s direction (Tr. 322, 342-43). When respondent got within a couple of feet of Ms. Hedrington, Mr. Martin positioned himself between them, and held his arms out and tapped or tried to hold respondent to keep him from Ms. Hedrington (Medal: Tr. 323, 340-42). Ms. Hedrington testified that Mr. Martin “intervened,” “moved [respondent] out of the way,” “push[ed], move[d], he got [respondent] out of my way . . . . he removed him from me from coming towards me,” and that respondent’s tone was “harsh and aggressive” (Tr. 135-136). According to Ms. Medal, respondent continued to yell at Ms. Hedrington, saying this was all her fault (Tr. 323-24). Ms. Hedrington and Ms. Medal both testified that Ms. Hedrington stood silent with her arms crossed (Hedrington: Tr. 134; Medal: Tr. 324, 343). Respondent believed that Ms. Hedrington undermined his authority with Ms. Medal and felt this whole incident was a “set up” (Pet. Ex. 15).

Respondent and Mr. Martin testified that respondent did not approach Ms. Hedrington, and that it was Ms. Hedrington who walked towards them. They also maintained that respondent did not wave his finger in the air. Mr. Martin explained that when Ms. Hedrington asked them to take the conversation elsewhere, he thought respondent might become agitated and respond. Therefore, he said to respondent, “[W]ell, then Mr. Uddin, let’s just go in the social service office area over here to the right” (Tr. 386). According to Mr. Martin, he then “ushered” respondent into the room with his arm outstretched “in a brotherly way” (Tr. 387, 404). Mr. Martin claimed that respondent said nothing in response to Ms. Hedrington and immediately stepped away (Tr. 386-87). He testified unpersuasively that “There was absolutely no incident,” just a discussion (Tr. 393). Respondent stated that he does not recall Mr. Martin touching him (Tr. 446).

In an email to Ms. Barthelemy on October 10, 2006, at 8:17 p.m., shortly after the incident, Ms. Hedrington wrote, “His behavior was very aggressive towards me. I just stared him down crossed my arms and then dared him to make a move. I refused to move. Mr. Martin had to push him away” (Pet. Ex. 13A). Her contemporaneous email about the incident recited that respondent began to approach her “aggressively” and that he was “waving his finger towards my face, stating that I am the problem,” and continuing “to rant about something.” After Mr. Martin “had to jump in the middle to push Mr. Uddin aside before he approached me,” respondent “was still confrontational” (Pet. Ex. 13C). Ms. Hedrington testified that she did not feel safe during this altercation and responded to respondent’s demeanor by folding her arms, thereby “preparing herself” for behavior by respondent that she anticipated “was not going to be appropriate.” She felt he had “violated [her] space” (Tr. 85). She testifed that she was shaken up after the incident (Tr. 136-37). Ms. Hedrington sent an email to Ms. Barthelemy and other superiors on October 17, 2006 stating, “I am no longer feeling safe . . . had Mr. Martin not stepped between us, I’m not sure what would have happened” (Pet. Ex. 14).

Although Ms. Hedrington stated at the trial that “preparing herself” meant something defensive, that if something was going to happen, “the best thing for me was to cross my arms and be passive” (Tr. 85). Passivity, though, is inconsistent with her description in her contemporaneous email that she “dared” respondent to “make a move” (Pet. Ex. 13A). More likely, she was impassive -- trying to show that she would not flinch. She testified that her “instinct” or “alarm system” went off (Tr. 85). I find it more likely than not that she was adopting an assertive stance to show respondent that she would not succumb to his aggression, would not allow him to intimidate her. Nonetheless, at the same time that she met him with this outwardly challenging stance to prepare for some sort of battle, I find, she was indeed inwardly -- and not unreasonably -- afraid for her own safety. This was a fight waiting to happen. In this stressful situation, her “fight-or-flight” instinct was triggered as she began to steel herself, but she was not the aggressor here. Rather than fleeing, she stood firmly as she was evaluating the threat she perceived when respondent came towards her, waving his finger at her, and yelling at her.

Respondent testified that Ms. Hedrington was not frightened of him and that approximately 15 minutes after the alleged incident, she was calmly discussing a work related matter with him (Tr. 447-50). She testified that she took care of her last bit of business and left (Tr. 137). I find it believable that with a physical struggle averted, she continued to do her job. Mr. Martin agreed with respondent that there was nothing in Ms. Hedrington’s demeanor or tone of voice that indicated she was frightened or in danger (Tr. 389). He also denied that he stood between Ms. Hedrington and respondent to prevent respondent from lunging at her (Tr. 386). Respondent also contended that she did not call or report him to security. She testified credibly that it was Mr. Martin’s responsibility to do so, and he should have written an incident report (Tr. 136). She did report the incident immediately to her supervisors (Pet. Exs. 13, 14).

In Ms. Hedrington’s email to Ms. Barthelemy on October 10, 2006, she stated that Ms. John-Allaway witnessed the event, that at some point during the altercation, she heard Ms. John-Allaway say to respondent, “Mr. Uddin, this is not the way, you know better” (Pet. Ex. 13C). Respondent too wrote on October 10, 2006, that Ms. John-Allaway had “witnessed the whole episode” (Pet. Ex. 15). But, oddly, Ms. John-Allaway flatly denied that she had made any such statement to respondent (Tr. 363), and insisted that she had not witnessed any alleged incident (Tr. 358, 360). In her October 17, 2006 email, Ms. Hedrington added that she was most concerned that Mr. Martin and Ms. John-Allaway were now saying “‛There was no incident,’” that their allegiance was to respondent, and that “they have no integrity” (Pet. Ex. 14). Although Ms. John-Allaway was a signatory on the petition to oust Ms. Hedrington and Ms. Barthelemy, dated September 19, 2006 (Resp. Ex. M), and was called to testify for respondent, she contradicted him insofar as she denied being a witness at all. Still, her overall testimony was supportive of him, insofar as she denied that she saw him acting inappropriately. Her recollection of the night of October 10, 2006 was limited to the following. While Ms. Medal conceded that she and respondent were both “loud,” and other witnesses spoke of respondent’s voice being loud in general or at least at times (e.g., Barthelemy: Tr. 253; Owens: Tr. 288-89), Ms. John-Allaway testified that she heard “normal” voices in the hallway outside the social service area, including respondent’s voice (Tr. 358). Shortly before 8:00 p.m., she “glimpsed” Ms. Medal leaving work for the day. She could not make out what Ms. Medal said or whether she was upset (Tr. 358, 367). She heard Mr. Uddin’s voice, which, she conceded, was at least “distinctive,” even as she refused to allow that he was loud, but the voices, according to Ms. John-Allaway were normal; there was “nothing out of the ordinary,” “nothing that was alarming” (Tr. 358). Ms. John-Allaway gave the impression that she was tailoring her testimony to minimize any hint of culpability on the part of respondent. Later in the evening, said Ms. John-Allaway, Ms. Hedrington came into the social service area and “briefly” spoke to respondent at his desk (Tr. 359). They spoke quietly, such that Ms. John-Allaway could not hear what they were talking about, but she believed it to be work related because they looked at papers on his desk (Tr. 359-60). When Ms. Barthelemy asked Ms. John-Allaway for a detailed report of the incident, Ms. John-Allaway responded in writing, “in my opinion there was no incident” (Resp. Exs. BBB, CCC, emphasis in original). It seemed to me that Ms. John-Allaway, an alternate union delegate (Tr. 372-73), was strongly biased against Ms. Hedrington, as evidenced by her signature on the petition to oust Ms. Hedrington from the agency only three weeks before this event (Resp. Ex. M). Asked for facts, Ms. John-Allaway delivered only her “opinion,” which favored respondent.

Ms. Owens, another signatory to the petition against Ms. Hedrington, similarly testified that she did not hear Ms. Hedrington come out of her office nor did she hear the conversation that followed. Sometime between 8:30 p.m. and 9:00 p.m., Ms. Hedrington left the Shelter. Before Ms. Hedrington left, she came into the social services area. Respondent was sitting at a desk across from Ms. Owens. Respondent and Ms. Owens were “sitting, laughing and talking” (Tr. 277). Ms. Hedrington spoke to respondent in a “normal tone.” Ms. Owens claimed Ms. Hedrington did not appear frightened, and respondent did not appear agitated. She could not hear and did not know what the conversation was about, but described them as talking “kind of jokingly” (Tr. 277-78).

Petitioner alleged that respondent’s reaction to Ms. Hedrington was threatening, intimidating, discourteous, and prejudicial to good order and discipline at the Shelter. Whether a disagreement amounts to sanctionable misconduct in any given case is a factual determination to be made after reviewing the totality of circumstances. The substance of the disagreement, as well as tone of voice, language used, and context of the communication should be analyzed. Dep’t of Sanitation v. Guzman, OATH Index No. 1640/01, at 6 (Mar. 11, 2002). Resolution of this particular matter rests on the credibility of the witnesses. In evaluating their credibility, “this tribunal may consider such factors as witness demeanor, consistency of a witness’ testimony, supporting or corroborating evidence, witness motivation, bias or prejudice, and the degree to which a witness’ testimony comports with common sense and human experience.” Dep't of Sanitation v. Menzies, OATH Index No. 678/98, at 2-3 (Feb. 5, 1998), aff'd, NYC Civ. Serv. Comm'n Item No. CD98-101-A (Sept. 9, 1998).

In this case, there is substantial evidence of bias among the witnesses. Respondent has been the union delegate since December 2005, and testified that there is hostility between himself and his directors (Tr. 426-27). Respondent signed and circulated the petition dated September 19, 2006, asking for the termination of Ms. Barthelemy’s[5] and Ms. Hedrington’s employment (Resp. Ex. M).

Mr. Martin and Ms. John-Allaway are alternate union delegates. Ms. John-Allaway testified that it is her responsibility to advocate for employees and their rights pursuant to the collective bargaining agreement (Tr. 373). Ms. Owens, Mr. Martin and Ms. John-Allaway all signed the September 19, 2006 petition to the Commissioner, Deputy Commissioners, the Mayor, the Public Advocate, the City Council, the State Senate, and the union (Resp. Ex. M), against Ms. Hedrington and Ms. Barthelemy. Moreover, in August of 2006, respondent, Ms. John-Allaway, and Mr. Martin endorsed a memorandum to the Executive Deputy Commissioner, seeking the removal of Ms. Hedrington for “deception and incompetence” (Tr. 370; Resp. Ex. K). Further, Ms. John-Allaway was late for work about 23 times in December 2005 and January 2006, while respondent was her supervisor (Tr. 370). Respondent approved all of the lateness excuses, some without documentation, and allowed her to use compensatory time, although he had the discretion to reject the excuses and count her late (Tr. 370-71).

Given that both sides had identified Ms. John-Allaway as a key witness to this “incident” or “episode” (Pet. Exs. 13-15, Resp. Ex. BBB), her peculiar denial that she was a witness, the obvious bias she harbored, as did Ms. Owens and Mr. Martin, I did not credit their testimony that there was no incident or misbehavior by respondent, or that they saw and heard nothing out of the ordinary.

I found Ms. Hedrington’s and Ms. Medal’s recollections of the incident to be more credible, and do not believe that respondent’s petition and constant challenges to management motivated the directors to concoct this incident. Ms. Hedrington was with the agency only seven years to his 21 (Tr. 29, 424), and he simply refused to accept her supervision. Respondent felt he knew better than she how to run the Shelter. There is no doubt that he needled her constantly. In response, she was professional, though not superhuman; in one instance only did she write a complaint about him in the logbook that should have been handled by a private memorandum to him, and she stood her ground against him when he menaced her. Beyond that, she maintained her composure as much as possible in these tense circumstances. I found Ms. Hedrington to be credible in her testimony that respondent acted in an aggressive manner towards her during their interaction on October 10, 2006. His actions were threatening enough that Mr. Martin felt the need to step between them and usher or push respondent away from Ms. Hedrington. Mr. Martin’s testimony denying that respondent was aggressive was belied by Mr. Martin’s own actions. His quick reaction to the tumultuous exchange between respondent and Ms. Hedrington showed that there was so much tension between them that Mr. Martin felt compelled to intervene. His denials that respondent was aggressive in any way do not square with his own account of the need to separate respondent from Ms. Hedrington as soon as she approached the area while respondent argued with Ms. Medal. Ms. Medal, Ms. Hedrington, and Mr. Martin, all testified consistently to the extent that they agreed that Mr. Martin made some physical gesture that separated respondent from Ms. Hedrington. Ms. Medal documented the incident by memorandum to Ms. Hedrington on October 11, 2006, stating,

Mr. Uddin in a very disrespectful manner came towards Ms. Hedrington pointing his index finger and said to her ‘Ms. Hedrington this has nothing to do with you.’ Ms. Hedrington replied to him that the reason she came out of her office was because she heard the conversation being held in the open area. At that very moment Mr. Uddin once again with his index finger extended began to approach Ms. Hedrington with so much anger in his eyes yelled at her ‘Ms. Hedrington you are the cause of all of this.’ If it had not been for Mr. Martin to put himself [sic] in between Mr. Uddin and Ms. Hedrington, I honestly feel he would have physically assaulted her in some way. . . . This type of aggressive behavior from Mr. Uddin is a constant thing. He shows no type of respect towards others. Now I myself am afraid of being in the same area with him.

(Pet. Ex. 21). Following the shouting incident, Ms. Medal was removed from respondent’s direct supervision (Tr. 450).

The Department bears the burden of proof by a preponderance of the credible evidence. Human Resources Admin. v. Caban, OATH Index No. 1449/05 (June 23, 2005). I find that the agency has met its burden of proof as to all charges.

FINDINGS AND CONCLUSIONS

1. The Department proved that respondent was absent from his work location on July 4, 2006, without authorization, in violation of Executive Order No. 651 (Dec. 17, 1998), sections III (5) and (6), and departmental Procedure No. 03-03 (Feb. 12, 2003), section II-K.

2. The Department proved that on four occasions, respondent recorded inappropriate entries in the agency logbook, in violation of Executive Order No. 651, sections III (1), (11), (20) and (36), and specific, clear orders from his superiors.

3. The Department proved that on October 10, 2006, respondent threatened, intimidated and was discourteous to his supervisor, in violation of Executive Order No. 651, sections II-B, III (1), (23) and (36).

RECOMMENDATION

Having made the above findings, I obtained a summary of respondent’s personnel record. Respondent has been employed by the City for over twenty years, and has been a supervisor at the agency for three years (Tr. 424). The only disciplinary history on file is relevant to this matter. In 2001, respondent was charged with failing to follow a supervisor’s directive and for acting in an intimidating manner in an incident during which staff members and security had to intervene. Respondent filed a grievance, which was denied after he failed to appear, and the agency implemented a penalty of a three-day pay fine against him in 2002.

Here, petitioner requested a 20-day suspension for the October 10, 2006 incident alone, and a 45-day suspension in total, if all charges were established (Tr. 539). Because the evidence reveals mitigating factors as to all three charges, I find 45 days to be excessive in the circumstances, and recommend a 30-day suspension without pay.

With respect to respondent’s absence on July 4, 2006, the testimony revealed that the overriding concern in approving vacation time is maintaining adequate coverage for the Shelter. Ms. Owens testified that the agency requires 25% coverage by supervisors and 25% by caseworkers on holidays and that only two employees at the Shelter, she and respondent, held the title of Supervisor I (Tr. 274). Respondent asked Ms. Owens if she would be working on July 4, 2006, and credibly testified that he did so to ensure coverage on that date. Ms. Owens claimed that one week before July 4, 2006, respondent asked her if she would be working on that date and that she replied, “yes.” Ms. Owens did in fact work on July 4, 2006 (Tr. 273). Respondent is nonetheless responsible for this AWOL because supervisors at the Shelter had to know that the directors need prior notice of any supervisor’s absence to arrange coverage and to ensure that victims of domestic violence have a reliable 24-hour sanctuary. Further, respondent’s testimony about seeking prior approval on June 20th was not credible; it seemed manufactured to address testimony he heard and had time to consider for more than a week before he took the witness stand. He had an interest in testifying that he sought leave on an earlier date than June 28th, the date he originally told Hearing Officer Weeks was the date he had sought the leave, both because he learned that Ms. Hedrington was not in the office at the relevant time on June 28th, when he originally said he had spoken to her, and because he contended that his supervisor was required to answer his request for leave within seven days or his leave would have been approved automatically (Tr. 431-32). In other words, under respondent’s version of the chronology of events as told at the hearing, Ms. Hedrington would have been late in responding to him if he had approached her as early as June 20th, and his leave would be deemed approved simply because she had purportedly failed to respond to him timely. Thus, he had a double incentive to change the date: (1) Ms. Hedrington was not in the office at the same time he was there on June 28th, so his original story did not hold up, and (2) the June 20th date was more favorable to him. I find that respondent’s improvisation at the hearing of the earlier date was a late-starting and unconvincing attempt to justify his failure to appear for work. The difficulty with respondent’s second version of the events is that Ms. Weeks’ testimony, based on her contemporaneous memorandum of the informal conference, was the more credible history -- she had no reason to misreport contemporaneously the date respondent had given her at the time, and she seemed serious and careful in her recordkeeping work. Moreover, respondent did not contend that her notation in her memorandum that respondent told her he spoke to Ms. Hedrington on June 28th was incorrect. The credible evidence did not support respondent’s changed account of the leave request, and his fabricated testimony aggravates the penalty.

Respondent’s excuse was weak and he should be penalized for this AWOL. But because the procedure regarding time off on paid holidays was closely disputed, and because respondent did make an effort to ensure coverage in advance, I recommend a penalty of two days’ suspension. See Dep’t of Sanitation v. Ambrosino, OATH Index No. 1553/03 (Sept. 2, 2003), modified on penalty, NYC Civ. Serv. Comm’n Item No. CD05-73-D (Sep. 20, 2005) (OATH ALJ recommended four-day suspension for two-day AWOL, penalty modified to one day where respondent had death in family and was confused as to emergency leave procedure).

With respect to the logbook entries, respondent’s misconduct is aggravated because he was ordered in writing multiple times to stop using the logbook for interoffice personnel disputes, yet he willfully, by his own admission, disobeyed these directives, and because the entire staff, as well as state auditors, had access to the logbook. Respondent’s criticism of directors in such a public manner undermined their authority and caused dissension in the workplace. Human Resources Admin. v. Bykofsky, OATH Index No. 852/98 (Apr. 28, 1998), modified on penalty, Comm’r Dec. (May 15, 1998) (respondent’s very public and demeaning manner of openly mocking and seeking the ouster of his supervisors, and his overt contempt for them, combined with his arrogance, aggravated the 30-day penalty recommended by the judge and respondent’s employment was terminated by Commissioner). Additionally, respondent’s position as a supervisor subjects him to a higher level of scrutiny because he has a duty not to undermine staff morale or the leadership of his unit. Human Resources Admin v. Omosigho, OATH Index No. 755/02, at 8 (Apr. 10, 2002).

Nevertheless, Ms. Hedrington’s September 19, 2006, logbook entry mitigated respondent’s misconduct because she veered from her own directive, and provoked respondent’s negative response. After receiving repeated guidance as to the proper use of the logbook in March, June and July 2005, respondent made no logbook entry that Ms. Hedrington cited as a disciplinary matter during the period between July 2005 and September 2006 (Uddin: Tr. 482; Hedrington: Tr. 117). Ms. Hedrington admitted that her September 19 entry violated her own policy, but indicated that this was an isolated lapse on her part (Tr. 120-121), and there was no contradiction of that contention. In the two weeks following Ms. Hedrington’s September 19 entry, respondent made three of the four entries for which he is charged. Respondent should not have responded in kind. Regardless of his anger towards Ms. Hedrington, Ms. Barthelemy stepped in and directed him, with higher authority, yet he defied her too. He had other recourse and should have obeyed the orders and filed a grievance. Respondent understood the “obey an order now and grieve later” rule, see, e.g., Human Resources Admin. v. Johnson, OATH Index No. 637/01, at 14 n. 2 (July 12, 2001), but chose instead to interpret the directives to him as containing no orders (Tr. 484). This was unreasonable, and he was not entitled to conduct himself as he did. Considering all the circumstances, I recommend a penalty of ten days’ suspension for the four offending logbook entries, a penalty that would be higher were it not for Ms. Hedrington’s admitted misuse of the logbook herself and her role in provoking respondent. See Dep’t of Housing Preservation and Development v. Saliba, OATH Index No. 1577/06 (July 19, 2006), aff’d in part, rev’d in part, Comm’r Dec. (Nov. 30, 2006), penalty imposed, Comm’r letter (Mar. 22, 2007) (ten-day suspension and anger counseling imposed by Commissioner for several occasions of disruptive behavior, including disrespect to supervisor); Comm’n on Human Rights v. McCormick, OATH Index No. 710/07 (Feb. 9, 2007), modified on penalty, Comm’n Dec. (Mar. 7, 2007), aff’d, NYC Civ. Serv. Comm’n Item No. CD 07-89-SA (Sept. 20, 2007) (ten-day suspension for addressing a client in derogatory manner; recommended penalty of five days doubled by Commissioner upon finding that respondent lied about the incident to supervisor); Dep’t of Sanitation v. Cunningham, OATH Index No. 1332/02 (Nov. 4, 2002) (ten-day suspension for insubordination coupled with time and leave charge).

As for the October 10, 2006 altercation, where employees have acted in an intimidating or discourteous manner to superiors, absent physical assault or verbal threats, penalties have ranged from 15 to 45 days, Dep’t of Transportation v. Davis, OATH Index No. 1042/02 (July 9, 2002) (15-day penalty where respondent confronted supervisor and demanded change of AWOL codes on his time card while standing in supervisor’s office and refusing to allow supervisor to leave); Human Resources Admin. v. Brown, OATH Index No. 943/98 (Apr. 30, 1998), modified on penalty, Comm’r Dec. (June 24, 1998), app. dism., NYC Civ. Serv. Comm’n Item No. CD99-67-D (July 9, 1999) (15-day suspension recommended for verbally threatening a supervisor, pointing a finger at her, and disrupting the office; Commissioner increased penalty to 30 days); Human Resources Admin v. Olafimihan, OATH Index No. 751/98 (Mar. 19, 1998) (45-day suspension for verbal threat to kill supervisor; penalty short of termination in absence of physical threats); Transit Auth. v. Webb, OATH Index No. 425/95 (Jan. 27 1995) (20-day suspension for employee who spoke loudly and pointed finger at supervisor, then continued to yell throughout the workplace and have a loud conversation degrading supervisor at his desk).

Like the public nature of the logbook entries, the altercation could be seen and heard by several staff members. In addition, respondent’s misconduct toward Ms. Hedrington is similar to his past behavior that led to the penalty in 2002, and he has shown himself to have difficulty accepting supervision and has been a disruptive influence at the agency before.

However, there is evidence that Ms. Hedrington provoked respondent’s threatening demeanor in some part. Immediately after the incident, Ms. Hedrington emailed Ms. Barthelemy stating that she “dared” respondent “to make a move” as she stood with her arms crossed “staring him down” (Pet. Ex. 13). During the hearing, she testified that her arms were crossed to “prepare herself” or to “stand still and calm down” as he approached (Tr. 85, 166). Crossing her arms, “preparing” or “calming” oneself is the opposite of “daring” someone and “staring him down.” Though she was bracing herself for the worst, I find it more likely that Ms. Hedrington’s tough stance escalated the confrontation, since her depiction of the events was probably more accurate on the day it happened than during the hearing where her testimony was more self-serving. Nonetheless, standing her ground was not inconsistent with fear of harm as she considered whether respondent was going to lunge at her. Considering all the facts surrounding the October 10, 2006 incident, I recommend a penalty of 18 days’ suspension for this charge.

Having recommended a 30-day suspension without pay, I recognize that the array of available penalties here is strictly circumscribed by the Civil Service Law. Nonetheless, it is worth noting that it seems to me unlikely that suspension will fully remedy the larger problem of the intense friction that is evident between Mr. Uddin and his supervisors at the Shelter. This destructive tension, due primarily to respondent’s obvious difficulties in controlling himself and in relating to both superiors and subordinates, permeated every aspect of the hearing. As long as respondent must work with his current supervisors, there must be some way to create a more harmonious environment that will not be a distraction from the important official work of the agency -- helping the victims of domestic violence. Ms. Hedrington testified that on the merits of certain issues respondent raised with his subordinates, such as the incident where he cited a worker for lateness, she agreed with him, but not with his method of publishing to other staff workers his reprimands to individual employees (Tr. 59). He must learn to deliver his messages in more appropriate language, whether in the form of the written word, the spoken word or his body language. What he did here was unacceptable in a municipal government office. Respondent was offensive, arrogant, and disruptive. Throughout the hearing, respondent was belligerent and contemptuous of both his directors, and his disrespect for them came through, both while he was testifying and while he listened to their testimony. Respondent’s demeanor was combative throughout the three-day hearing. He was so bent on proving himself right all the time, and his superiors incompetent, that he was unable to conceal his rancor, except for one passing, memorable moment during Ms. Barthelemy’s testimony when she became very upset on the witness stand, upon being reminded of all the nasty memoranda he had sent to her, as they were laid before her. She spoke directly to him in the hearing room and asked why he would attack her personally with such disrespect and malice. She described how personally hurt she felt by his angry memorandum comparing her to a “demon,” and threatening to sue her, by his saying that she should be removed from this domestic violence shelter in handcuffs, and by his loud comments of this sort before the whole staff, when all she did was write to him asking him to refrain from writing his opinions attacking Ms. Hedrington in the logbook. As she put it, she was just doing her job, and his attacks were disproportionate in the extreme (Tr. 186-89; Pet. Exs. 16A, 16B, 17A, 17B). At that point, respondent appeared to soften his expression and to listen sympathetically to her tell of the pain he had caused her. I credit her testimony and find that the manner in which he protested her governance and that of Ms. Hedrington was extreme and inappropriate.

Respondent’s immediate supervisor, Ms. Hedrington, must also learn how to cope with him without provoking him. It should be noted that respondent claimed that the charges against him were born of an ongoing feud between his directors, as management, and himself, as a union delegate. The record here shows that the working atmosphere at the Shelter has indeed been toxic at times. Victims of domestic violence must not be subjected to such a tumultuous environment. Respondent submitted evidence of an unending contretemps within the Shelter, as documented through the petitions he circulated, numerous memoranda and the logbook entries noted above. While I did not find that this ongoing battle was the impetus for the above charges, which, I find, have merit, I recommend that this troubled atmosphere in the workplace be addressed by management in some constructive way, possibly through transfer, mediation between respondent and his supervisors (and possibly others) by trained mediators, or anger management training or counseling for respondent, or some combination of these approaches. See Saliba, OATH 1577/06, at 11-12. Judge Fraser, in a similar case, put this point aptly in describing a respondent, who, not unlike Mr. Uddin, an experienced, long-time municipal employee,

may feel he knows the job better than his [newer] supervisor, and he may act in a fashion that undermines her authority . . . respondent must understand clearly that such actions are intolerable. He need not like his supervisor . . . but he must treat her with the same professional deference that he would require were he in her shoes. [Respondent] must also understand that any future failure to adhere to businesslike standards of decorum will subject him to much more severe sanctions, quite possibly his dismissal from service . . . .

Webb, OATH 425/94, at 11-12.

Some form of intervention beyond the recommended penalty might provide a healthy way for respondent to voice some of his complaints against his directors in a more professional manner. Because the Shelter handles the issue of domestic violence, the hostility amongst its senior staff can only be detrimental to the Shelter’s mission. Perhaps one or more of these catalysts for much needed change could help increase efficiency and contribute to a more comfortable and productive working environment for all.

Joan R. Salzman

Administrative Law Judge

October 3, 2007

SUBMITTED TO:

ROBERT DOAR

Commissioner

APPEARANCES:

PATRICK SOOHOO, ESQ.

Attorney for Petitioner

KOUSOULAS AND ASSOCIATES P.C.

Attorneys for Respondent

BY: ANTONIA KOUSOULAS, ESQ.

-----------------------

[1] Charge 1860-02 alleges that this log entry occurred on or about July 2, 2005. There was no dispute that the log entry at issue was actually dated July 4, 2005. Petitioner’s post-trial motion to conform the pleadings to the proof is hereby granted, in the absence of objection, and in conformity with the proofs. Respondent did not oppose the motion.

[2] On or about May 26, 2005, respondent requested two weeks of annual leave in July 2005 (Tr. 110-11; Pet. Ex. 22). Respondent testified that Ms. Hedrington told respondent “okay, it should not be a problem” and, therefore, respondent purchased tickets for a family vacation (Tr. 432; Pet. Ex. 5). As a result of miscommunication, respondent was charged AWOL for the time he requested, and he filed a grievance (Tr. 434). Before respondent took his vacation, he noted the dates he would be out in the social services log book.

[3] Two weeks before, respondent had approved Ms. Medal’s excuse for lateness due to transportation difficulties without any documentation.

[4] Mr. Martin is an alternate union delegate (Tr. 318).

[5] Ms. Barthelemy was aware that respondent had requested her and Ms. Hedrington’s removal as directors in a petition he signed along with other members of the agency staff (Tr. 239, 269), as well as some former employees (Tr. 312-14). Ms. Barthelemy testified that the petition did not in any way influence her decision to bring charges against respondent and that she regarded her obligation as the director to follow procedure (Tr. 269-70). Despite her differences with respondent, Ms. Barthelemy seemed professional, straightforwa[pic]6ST[]b›p v € Ú 'F[]it¬Æ×ð

Þ

ß

óëóÕɽɱ ±É”ɔɅv…vÉ…vÉr…vjbjbjSjhGoH0JB*[pic]U[pic]phhî UB*[pic]phhGoHB*[pic]phhGoHhGoH6?B*[pic]OJQJ]?phhGoH5?B*[pic]OJQJ\?phhÿ0>B*[pic]OJQJph h¤4h¤46?B*[pic]OJQJphh¤4B*[pic]OJQJphhdy?B*[pic]OJQJphhGoHB*[pic]OJQJphrd, and her testimony creditable. Respondent, on the other hand, was defensive and combative.

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download