Human Resources Admin. v. Obilor

[Pages:10]Human Resources Admin. v. Obilor

OATH Index No. 693/19 (Feb. 22, 2019)

Respondent engaged in unprofessional and disrespectful conduct when she cursed at and made an obscene gesture towards coworkers at a bus stop. Petitioner failed to prove additional acts of misconduct. Penalty of four days' suspension without pay recommended. ______________________________________________________

NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of HUMAN RESOURCES ADMINISTRATION

Petitioner - against MARYANN OBILOR Respondent ______________________________________________________

REPORT AND RECOMMENDATION

KEVIN F. CASEY, Administrative Law Judge Petitioner, the Human Resources Administration ("HRA"), brought this disciplinary

proceeding against respondent, job opportunity specialist Maryann Obilor, under section 75 of the Civil Service Law. The petition alleged that respondent pushed a co-worker's hand away from a time clock, used her hip to move the co-worker out of the way, cursed at the co-worker, continued the dispute a few minutes later by cursing at and making an obscene gesture towards the co-worker and another colleague as they waited for a bus, and disrupted work the next day by pointing at the co-worker (ALJ Ex. 1). Respondent denied any wrongdoing.

At trial on February 8, 2019, petitioner relied on documentary evidence and testimony from five witnesses. Respondent testified in her own behalf, offered documentary evidence, and presented testimony from another witness.

For the reasons that follow, petitioner proved that respondent engaged in misconduct by cursing at and making an obscene gesture towards her co-workers as they waited for a bus and I recommend a penalty of four days' suspension without pay. Petitioner failed to prove the remaining claims.

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ANALYSIS

Background The charge stems from a dispute that occurred at petitioner's Rockaway Job Center at

5:00 p.m. on February 5, 2018, as workers clocked out for the day. Petitioner alleges that Rashelle Cooper attempted to clock out by entering her identification number and scanning her hand when respondent approached and asked her what she was doing. Cooper replied that she was clocking out and respondent insisted that she was there first. During the ensuing exchange, respondent supposedly pushed Cooper's hand away from the scanner and bumped her with her hip. After clocking out ahead of Cooper, respondent allegedly called her a "fucking bitch." When Cooper and a colleague, Deasia Pearson, left the building, and walked to a nearby bus stop, respondent allegedly continued the dispute by driving by the bus stop, rolling down her car window, and yelling "bitch, bitch, bitch" at Cooper and Pearson, while displaying her middle finger. Petitioner alleged that respondent caused further disruption at work the next morning by speaking to a co-worker and pointing at Cooper.

Respondent denied touching Cooper, making an obscene gesture, or using foul language. Instead, respondent claimed that Cooper cut in front of her at the scanner and spoke to her in a disrespectful manner. A security guard testified that he noticed a minor commotion but did not hear cursing or see physical contact.

Petitioner's Evidence Clerical associate Lance Eustache worked in the first floor reception area with Cooper

and Pearson on the day of the incident (Tr. 50-52). He testified that the time clock faced the elevator, less than ten feet away (Tr. 53-54). Eustache clocked out at about 5:00 p.m. and assumed that Pearson and Cooper were behind him (Tr. 53-54). After clocking out, Eustache left the building and did not see respondent or any dispute between her and Cooper (Tr. 53-55).

Cooper, an eligibility specialist, normally leaves work by 4:30 p.m., but she worked until 5:00 p.m. that day (Tr. 12-13). She testified that she went to the time clock, a few feet from the reception area, directly behind Eustache (Tr. 15-16). After Eustache left the building, Cooper put her hand on the scanner and started to clock out (Tr. 15-16). Cooper said that respondent came off the elevator, went to Cooper, and aggressively asked, "What are you doing?" (Tr. 16). Cooper replied, "We've been standing here" (Tr. 17).

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Cooper recalled that respondent "bumped me out of the way and forced me to move my hand off the scanner" (Tr. 18). Respondent grabbed Cooper's wrist and pulled it from the scanner (Tr. 19). According to Cooper, she sustained a scratch to her hand, which she later photographed (Tr. 18-19; Pet. Ex. 1). After pushing Cooper away, respondent clocked out (Tr. 21). Cooper told respondent that she had to get a bus to pick up her children and that respondent drove to work (Tr. 21). Respondent called Cooper a "fucking bitch" (Tr. 22). Cooper put up her hand and told respondent, "Alright you're big, I'm small. Okay" (Tr. 23). As Cooper clocked out, respondent walked to the parking lot (Tr. 24).

After Cooper and Pearson walked to a nearby bus stop, respondent drove by (Tr. 24-25). According to Cooper, respondent rolled down her window, displayed her middle finger to Cooper and Pearson, and yelled, "Bitch, bitch, bitch" (Tr. 25).

When respondent drove away, Pearson told Cooper to notify her supervisor (Tr. 26). Cooper returned to her office and reported the incident to her supervisor, Aneisha Mohammed (Tr. 26-27). Mohammed told Cooper to write a report (Tr. 27). Cooper said that she had to leave to pick up her children from after-school (Tr. 26-27).

Before 9:00 a.m. the next day, Cooper interviewed clients on the first floor (Tr. 27). Cooper saw respondent talking to a co-worker, banging on a window, and pointing at her (Tr. 29). Though she ignored respondent, Cooper claimed that respondent distracted clients waiting to be assisted (Tr. 29-30). Cooper reported the entire incident to the center's director Jacqueline Gaskin, wrote a memorandum about it, and spoke to HRA police (Tr. 27-31; Pet. Ex. 2).

Pearson's testimony mirrored Cooper's account. According to Pearson, Cooper was directly behind Eustache (Tr. 37). Respondent got off the elevator and was "kind of bumrushing" Cooper, who was clocking out (Tr. 35, 37). Pearson noted that respondent was much bigger than Cooper, who was "fairly little," and respondent used enough force to move Cooper aside and cause her hand to hit the scanner (Tr. 46). Pearson described respondent as angry, hostile, and aggressive (Tr. 38). As Cooper clocked out, respondent said, "You fucking bitch, I was here first" (Tr. 41). Pearson claimed that Cooper did not use any profanity; she merely asked respondent, "Are you done?" (Tr. 41, 48).

According to Pearson, she spoke to security guard Kamar Ayandiran, who stood nearby (Tr. 48). Pearson recalled that she asked Ayandiran, "Are you going to stop this?" (Tr. 49). She claimed Ayandiran turned his head away without saying anything (Tr. 49).

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Pearson also echoed Cooper's claim that they walked to the bus stop, where respondent pulled up in her car, rolled down the window, flicked her middle finger at them, and repeatedly yelled "Bitch" (Tr. 42). When respondent drove away, Pearson accompanied Cooper back to their office and told Mohammed what took place (Tr. 44, 47). At work the next morning, respondent pointed through a window and asked a co-worker for Cooper and Pearson's names (Tr. 45). They reported the entire episode to Gaskin and Pearson wrote a memorandum (Tr. 3738; Pet. Ex. 3).

Gaskin, director of one of petitioner's call centers, no longer works at the Rockaway Job Center (Tr. 56). She testified that Cooper reported the incident to her on the morning of February 6 (Tr. 59). Cooper showed the scratch on her hand and noted that she had reported the incident to Mohammed the previous night, which Gaskin confirmed with Pearson and Mohammed (Tr. 59-60). Gaskin also learned that, on the morning of February 6, respondent had asked her shop steward for the name of Cooper's supervisor (Tr. 61). In a memorandum dated February 7, Gaskin noted that respondent had said that she had been waiting to clock out and she denied using profanity or moving Cooper's hand (Pet. Ex. 4).

Respondent and Cooper were both served with charges arising from this incident (Tr. 65). Though respondent and her union representative asked Gaskin to withdraw her report, she said that she could not do so because it involved a physical altercation and had been referred to petitioner's disciplinary unit (Tr. 64-65). Gaskin noted that respondent was "supposed" to use the time clock on the second floor where she worked, but there was no evidence of any rule or order prohibiting her from using the first floor time clock (Tr. 57).

HRA police sergeant Kern Probherbs testified that Cooper reported the incident to him on February 6 (Tr. 68). He spoke with private security guard Ayandiran, who stated that he heard a commotion near the time clock, but he did not report it because he did not think that it was anything serious (Tr. 74). Probherbs asked all of the parties to submit written statements (Tr. 69, 72-73). Respondent was with a client at the time and said that she wanted to check with her union representative (Tr. 69-70). In his incident report, Probherbs noted that respondent bumped Cooper with her hip (Pet. Ex. 5). The report made no mention of any hand injury and repeatedly referred to the episode as a "verbal altercation" (Pet. Ex. 5). Probherbs testified that nobody showed him any injuries (Tr. 74).

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Respondent's Evidence Respondent testified that she always used the first floor time clock and there was no rule

requiring her to use the clock on the second floor, where she worked (Tr. 88, 90, 103, 105). On the day of the incident, she was waiting behind Eustache to clock out and she did not notice Cooper or Pearson (Tr. 92-93; Resp. Ex. B). After Eustache clocked out, Cooper approached the scanner and respondent told her that she had been waiting to clock out (Tr. 94, 109-11). Cooper removed her hand and respondent clocked out (Tr. 94-95, 113). As respondent walked away, Cooper called her a "big fool" and "fucking bitch" (Tr. 95, 114). Respondent insisted that she never pushed or touched Cooper or called her a bitch (Tr. 95, 114, 117). According to respondent, she has never used profanity in her life (Tr. 116). Respondent also noted that the security guard was standing nearby for the entire incident (Tr. 95).

Respondent conceded that she drove past the bus stop on her way home (Tr. 118). But she testified that she did not notice Cooper or Pearson, did not curse at them, and did not display her middle finger (Tr. 118). That night respondent called a union representative and reported that Cooper had been disrespecting her and the representative told her to report it to Cooper's supervisor (Tr. 96-97, 120).

The next day, respondent asked a colleague if she knew the name of Cooper's supervisor (Tr. 97, 121). From ten feet away, respondent pointed towards Cooper (Tr. 97). When asked for a statement later that day, respondent was with a client (Tr. 97). After she finished with the client, respondent wrote a memorandum about the incident (Tr. 98; Resp. Ex. C).

At trial, respondent claimed that she had been subjected to other baseless allegations by Gaskin (Tr. 96). Respondent speculated that Gaskin had connived with Cooper and Pearson to fabricate the present charge (Tr. 96, 104).

Ayandiran, a private security guard employed by FJC Security, was on the first floor, about 12 feet from the time clock when the incident occurred (Tr. 78, 81, 83). He saw Cooper at the clock and heard respondent say, "You don't even have respect" (Tr. 78-79, 82). Ayandiran did not hear Cooper's reply (Tr. 79). Nor did he see respondent touch Cooper or hear respondent call her a bitch (Tr. 78-79). When asked for a report the next day, Ayandiran wrote that Cooper and respondent were arguing, he thought they were joking, he heard respondent tell Cooper that she did not have any respect, Cooper was in front of the time clock, and he "guessed" that

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respondent wanted to sign out (Resp. Ex. A; Tr. 79-81). On the way out, they exchanged words and somebody said, "Your mama," but Ayandiran could not identify the speaker (Resp. Ex. A).

At trial, Ayandiran conceded that he was not paying close attention to the entire incident (Tr. 82). At first, he was facing the front door with his back to the clock (Tr. 83). But he turned and faced the time clock when he heard respondent mention "no respect" (Tr. 85). He did not see any pushing or hear any cursing (Tr. 85).

The Charges Petitioner alleged that respondent committed misconduct in three stages, by: (1) forcibly

pushing Cooper away from the time clock and calling her a bitch; (2) continuing the dispute at the bus stop by stopping her car, rolling down her window, flicking her middle finger, and repeatedly yelling "bitch" at Cooper and Pearson; and (3) resuming her unprofessional behavior the next morning when she aggressively pointed at Cooper through a window and caused a disruption. Petitioner met its burden of proving that respondent committed misconduct at the bus stop. But petitioner failed to prove that respondent committed additional misconduct.

To prevail, petitioner had the burden of proving the charge by a preponderance of credible evidence. Prince, Richardson on Evidence ? 3-206 (defining preponderance as "the burden of persuading the triers of fact that the existence of [a] fact is more probable than its nonexistence") (Lexis 2008) (citations omitted). In a credibility contest, such as this one, the outcome hinges on 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. See 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. CD 98-101-A (Sept. 9, 1998). Though I did not fully credit petitioner's witnesses, I found them more credible than respondent.

I did not fully credit Cooper's testimony because she tended to exaggerate respondent's wrongdoing while minimizing her own behavior. For example, Cooper testified that she scratched her hand on the time clock when respondent bumped and grabbed her. Yet Cooper claimed she did not notice the scratch until the next day. I found that implausible. Cooper's photographs, which depicted a barely perceptible scratch of unknown age or origin, did not add much to petitioner's case.

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It was also unlikely that a very experienced worker would suddenly push a co-worker away from a time clock. Rather, it was more likely that one worker would complain that she had been waiting and the other would respond in kind.

Petitioner argued the Eustache and Pearson corroborated Cooper. However, Pearson was not a disinterested witness. Though they did not socialize outside of work, it appeared that Cooper and Pearson were very close, workplace friends. They had worked side-by-side for many years and Pearson described Cooper as "a great co-worker" (Tr. 36). Eustache seemed more impartial, but his testimony was equivocal. He repeatedly testified that he "assumed" that Cooper was behind him, which indicated that he did not actually see her. And he left the building without noticing any unusual incident, which further suggested that Cooper was not directly behind him.

Though I did not fully credit Cooper's version of events, I also found respondent's testimony to be less than credible. There was no reliable support for her speculation that Gaskin had "connived" with Cooper. On the contrary, respondent and all of the other eyewitnesses agreed that there was a dispute around the time clock; Gaskin had nothing to do with that. Respondent also failed to provide any testimony or statement from her union representative to confirm that she complained about Cooper's behavior on the night of the incident. And even if Cooper had acted disrespectfully, as respondent claimed, that would not be a defense to the charges. See Human Resources Admin. v. Moragne, OATH Index No. 242/97 (Nov. 25, 1996), modified on penalty, Comm'r Dec. (Jan. 6, 1997), aff'd NYC Civ. Serv. Comm'n Item No. CD98-2-A (Jan. 20, 1998) (use of profane and vulgar language in the presence of colleagues during a verbal dispute with a coworker is misconduct regardless of whether it is used in response to similar language and provocative behavior from a coworker).

I gave more weight to the testimony of security guard Ayandiran, an independent eyewitness who testified in a clear, straightforward manner. He did not see any pushing or shoving. Nor did he hear any obscenities. Petitioner suggested that Ayandiran was inattentive, but he credibly testified that he saw Cooper at the time clock, he heard respondent make a reference to being disrespected, and he also heard someone say "your mother," or words to that effect. By all accounts, the incident took place in a narrow space and Ayandiran was close enough to see or hear if there was misconduct.

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The most likely explanation for Ayandiran's failure to recall a serious altercation near the time clock was that it never occurred. Instead, it appears that there may have been a petty disagreement about who was next in line to clock out. Not every workplace disagreement or discourteous comment is misconduct. Admin. for Children's Services v. Goldman, OATH Index No. 985/12 at 6 (July 3, 2012), adopted, Comm'r Dec. (July 13, 2012). Relevant considerations include context, substance, tone, and duration. See Human Resources Admin. v. Ali, OATH Index No. 2380/09 at 8 (July 20, 2009) (wagging his finger in supervisor's face combined with loud, angry warning that he would add supervisor's name to a lawsuit was disrespectful). Petitioner failed to prove that respondent used any improper force or offensive language as she clocked out. Indeed, Cooper and Pearson walked out of the building and went to their bus stop without reporting any incident to a supervisor; this further supports the conclusion that respondent did not commit misconduct at the time clock.

It does appear, however, that the disagreement escalated after Cooper and Pearson left the building. They credibly maintained that respondent drove by, stopped her car, rolled down her window, and repeatedly yelled "bitch" at them. By her own admission, respondent conceded that she drove her car past the bus stop. Cooper and Pearson's response, returning to the office to report this incident, even though Cooper was running late and had to pick up her children from their after-school program, comports with common sense. Respondent's words and actions were so inappropriate that they felt the need to complain promptly to supervisor Mohammed. Though petitioner did not call Mohammed as a witness, Gaskin credibly recalled that she confirmed with Mohammed that there had been a contemporaneous complaint. I found it unlikely that Cooper and Pearson would have gone out of their way to fabricate charges against respondent, with whom they had little or no prior contact.

Finally, petitioner failed to prove that respondent committed misconduct the next morning. The evidence showed that at the start of the day, respondent merely pointed to Cooper and asked a co-worker for the name of Cooper's supervisor. There was no credible evidence that respondent went out of her way or caused any disruption. Respondent's actions were consistent with her claim that Cooper had treated her disrespectfully the previous day and that she wanted to notify Cooper's supervisor.

In short, the evidence proved that respondent loudly and repeatedly yelled "bitch" at two colleagues and flicked her middle finger at them, as they waited for a bus home from work.

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