Dep't of Sanitation v



Admin. for Children's Services v. Papa

OATH Index No. 1622/05 (Aug. 30, 2005), modified on penalty, Comm’r Dec. (Oct. 21, 2005), appended

Paralegal aide found to have been insubordinate or discourteous on five occasions. Given employee's excellent work record, provocation for some of the incidents, and relatively minor nature of the charges, penalty of 15 days' suspension recommended, with credit for pre-hearing suspension (30 days). Commissioner imposes a time-served suspension, with no back pay, holding respondent is not entitled to it under section 75(3) of the Civil Service Law because he was not acquitted on all charges.

______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

ADMINISTRATION FOR CHILDREN'S SERVICES

Petitioner

- against -

LUCREZIA PAPA

Respondent

______________________________________________________

REPORT AND RECOMMENDATION

JOHN B. SPOONER, Administrative Law Judge

This employee disciplinary proceeding was referred for trial by petitioner, the Administration for Children's Services, pursuant to section 75 of the New York State Civil Service Law. Respondent Lucrezia Papa, a paralegal aide II, is charged, in two separate sets of disciplinary charges, with using inappropriate language to supervisors and co-workers and with failing to complete some assignments (ALJ Ex. 1).

A hearing on the charges was conducted before me on July 22, 2005. Petitioner presented three witnesses. Respondent testified on her own behalf, admitting having uttered most of the alleged statements, but denying that she committed misconduct.

For the reasons discussed below, I find that five of the specifications should be sustained and the remainder dismissed. As a penalty, I recommend that respondent be suspended for 15 days, with credit for her pretrial suspension.

ANALYSIS

Respondent has worked for five years as a paralegal in the Department's legal division in Brooklyn. The division provides legal representation and assistance regarding family court proceedings. Respondent's duties include assisting attorneys by redacting case records, obtaining copies of records, and locating or interviewing witnesses. In the fall of 2004, respondent applied for a promotion at an increased salary. The charges filed here[1] concern various work place incidents which occurred after October 14, 2004, when respondent was notified that she had not received this much desired promotion.

I note in passing that I would once more encourage the Administration to simplify and condense its disciplinary charges in order to improve the quality and efficiency of the adjudication process. The confusing and verbose style used in drafting the disciplinary charges has been commented upon in the past by judges of this tribunal, most recently by Judge Fraser in Admin. for Children’s Services v. Hallman, OATH Index No. 1269/05 at 2, n. 1 (Mar. 16, 2005) . Despite the fact that these past admonishments have evidently gone unheeded, I feel compelled to observe once more that the duplicative pleading practice thwarts the purposes of a charging document. Disciplinary pleadings (like all legal pleadings) should be designed to simply and concisely place the employee on notice of what he or she has done wrong. See, N.Y.C. Charter § 1046 (a) (3); 48 RCNY § 1-22. Here, instead of a single factual allegation and citation to the agency rules which are alleged to have been violated (as specifically recommended by Judge Fraser), the six pages of disciplinary allegations against respondent itemize ten incidents which are alleged and realleged in 28 redundant, cross-referenced paragraphs. The incident of March 18 was the basis of six separate specifications of quoted remarks, which were then re-alleged three times.

This process of reiterative pleading served no useful purpose in this case and, in fact, obscured the violations being alleged for both the agency and the employee, to the detriment of adjudicative efficiency. No proof at all was submitted on two of the incidents pleaded in the charges, resulting in one charge being withdrawn at the close of the hearing and another being dismissed by this tribunal, as discussed below. The clutter of unproven charges was distracting and unnecessarily diverted the attention of the hearing participants to analyzing the pleadings instead of respondent's actions. I would urge once more that the Administration practice of pleading extraneous factual allegations which are either unprovable or meritless be abandoned because it prolongs the hearing and generally undermines the effectiveness of the adjudication process.

Inappropriate Language or Behavior

The majority of the two sets of charges detail a number of occasions on which respondent allegedly made inappropriate remarks to co-workers. As discussed above, petitioner's utter failure to offer proof as to some charges is probably attributable to the unnecessarily complex form of the initial pleading. Charge I, specification 4, alleges that, on November 30, 2004, respondent "screamed profanities" at co-workers Robert Sandburg and Monique Levy. Although petitioner adduced general testimony from two co-workers about having heard some loud remarks made by respondent (which are alleged as separate misconduct under charge I, specification 7, and charge III, specification 7), there was no evidence of an incident on November 30, 2004. Since no proof was offered on this charge at trial, it must be dismissed.

There was at least some, albeit meager, evidentiary basis for several of the other charges. Charge I, specification 7 alleges that, from October 2004 to the present, respondent spoke on the telephone in a loud voice, used profanity, and complained about unfair treatment by her supervisors. Charge III, specification 7 alleges that, from October 2004 to the present, respondent has been repeatedly "disruptive" in that she has thrown objects around her desk, slammed file drawers, "stamped" around the office, slammed doors, and spoken "in a loud angry tone." In support of these allegations, respondent's regular supervisor Geraldine Sallee testified that, on October 27, 2004, she overheard respondent slamming things around on her desk. As fellow paralegal Monique Levy walked by, respondent turned to her and said, "It must be nice to be able to get your job back without even passing the exam." Respondent added that if that was not discrimination she did not know what was (Tr. 58-59). Ms. Sallee understood that respondent was referring to Ms. Levy having been previously laid off due to budget problems in 2003 and subsequently rehired.

Ms. Sallee reported the incident to Assistant Managing Attorney Ted Baron, who met with respondent. At the meeting, as memorialized in an email (Pet. Ex. 9) from Mr. Baron, respondent said that she had been provoked by remarks made by Ms. Levy. Mr. Baron advised respondent to maintain a professional demeanor and notify a manager if she believed she was being provoked (Sallee: Tr. 67).

Fellow paralegal Robert Sandburg also recalled that, on occasion, respondent spoke loudly during personal telephone calls about being "abused" by her employer and that he found some of these calls "distracting" (Tr. 42-44).

Petitioner's proof that respondent occasionally spoke loudly on the telephone or shuffled papers loudly fails to state any violation of agency rules sufficient to sustain a charge of misconduct. These two specifications must be dismissed.

Charge I, specification 5 alleges that respondent was overheard on the telephone threatening to "bomb the place." This is based upon the testimony of Ms. Sallee, who stated that, on November 24, 2004, she overheard respondent speaking loudly on the telephone. At one point, she thought she heard respondent say something about "bombing the place" and reported the remark to her supervisor, Managing Attorney Paul Savarese (Tr. 69). Mr. Savarese testified that he called Ms. Sallee and respondent into his office to discuss the remark. When he asked respondent if she had made a remark about bombing the workplace, she laughed and said that the remark she had actually made was she would like to "stick a bomb up someone's ass" (Tr. 12). At trial, Ms. Sallee seemed to concede that she was uncertain whether she heard respondent say "bomb this place" or "stick a bomb up someone's ass" (Tr. 85).

Respondent stated that she was speaking on the telephone with her sister, repeating derogatory remarks Mr. Sandburg had made about Italians. Respondent's sister, in turn, recounted some anti-Italian remarks she had overheard in an office she used to work in. Respondent said, "Oh, stick a bomb up their ass" (Tr. 102).

Petitioner's proof was insufficient to sustain a finding of misconduct. Respondent's remark was made during a personal telephone call which respondent clearly did not intend to be overheard by any of her co-workers. The only person who overheard the remark could only be certain that the word "bomb" was used, and could not be certain that any actual threat regarding bombing the work place was made or even intimated. Even assuming that all New York City workers' sensibilities regarding any post-9/11 reference to violence are necessarily heightened, simply using the word "bomb" during a personal telephone conversation is neither inappropriate nor misconduct. This charge, too, must be dismissed.

Charge III, specification 3, alleges that respondent sent an "inappropriate" email to Supervising Attorney Paul Savarese. This charge is based upon an email message (Pet. Ex. 2) sent to Mr. Savarese on December 27, 2004. This email stated,

I want to express my appreciation to you and the rest of ACS for helping to make my Christmas season one of the most painful and depressing one I can remember. As a female, I realize I am considered a masochist who enjoys pain and punishment but I can't help wondering what good deed I did to deserve it.

It's too bad my next birthday falls on an office holiday. Otherwise, if I could find out what I did, I could repeat it and enjoy another nasty birthday like I did on two previous occasions.

Respondent admitted sending Mr. Savarese this email. She added that Mr. Savarese had deliberately lied in stating she had been denied a promotion because of "disruptive behavior" (Tr. 107). She also believed that his smile suggested a "sadistic" pleasure in her predicament (Tr. 111).

I find that the email sent by respondent to the director of her division, purportedly as an expression of gratitude, was, in fact, intended to be insulting and upsetting. The email conveys little information other than that respondent was depressed and believed Mr. Savarese to be the cause of this depression. Although respondent states that she is thanking Mr. Savarese, her disrespectful and sarcastic message accuses him at some length of intentionally and unfairly causing her pain. This communication, sent by an employee to a supervisor, is insubordinate, in violation of the agency rules prohibiting "demeaning" and "insulting" language. ACS Code of Conduct II (B).[2] This charge must be sustained.

Charge III, specifications 1 and 2 allege that respondent spoke inappropriately to Ms. Sallee in telephoning her that she would be out sick. Ms. Sallee testified that, on January 3, 2005, respondent called to report that she would not be in that day. As reported in an email (Pet. Ex. 3) to Mr. Savarese, Ms. Sallee stated that respondent said that she felt there was a "two-ton weight" on her chest. Respondent next asked if Ms. Sallee was enjoying watching all of the bad things which were happening to her. Ms. Sallee denied that she had had anything to do with what was happening. Respondent then accused Ms. Sallee of retaliating against her by lying. Ms. Sallee said that she found respondent's accusations "ridiculous" and respondent hung up (Tr. 72-73; Pet. Ex. 3).

Respondent also admitted making this remark to Ms. Sallee based upon a belief that Ms. Sallee resented her for, among other things, saving money by living in subsidized housing and for being white instead of black (Tr. 109-10). She recalled that she received the disciplinary charges on New Year's Eve and felt that all of her colleagues had betrayed her (Tr. 110-11).

Respondent's telephone remarks to Ms. Sallee, like the email to Mr. Savarese, went beyond the bounds of permissible discourse for an employee expressing feelings of being treated unfairly to a supervisor. Respondent's suggestion that Ms. Sallee enjoyed watching bad things happen to respondent and that she had lied were primarily accusatory and intended more to wound than to inform. As such, these remarks violated the agency rules on being courteous to co-workers. See ACS Code of Conduct II (B); III (B) (1) and (39). These two specifications must be sustained.

Charge I, specifications 2 and 3, allege that on two occasions respondent made angry remarks to an acting supervisor. According to an email (Pet. Ex. 4) from acting supervisor Beth Davis, on January 7, 2005, respondent called Ms. Davis a "liar" when Ms. Davis made a statement about her own job title. In the email, Ms. Davis commented that she found respondent's behavior "frightening." In another email (Pet. Ex. 5), Ms. Davis stated that, on January 21, 2005, she and respondent were discussing respondent's work load. Ms. Davis asked respondent to show her the case records and respondent retorted, "I told you already. I don't have to put up with this sh-t."

Respondent seemed to admit making both these remarks to Ms. Davis. As to the first remark, when asked whether she was "familiar" with the charge, she stated, "Yeah . . . . because she was a liar" (Tr. 101). She then denied that she raised her voice in making the remark. As to the second remark, respondent admitted making the comment due to her anger at Ms. Davis for not reassigning a case to someone else while respondent was out on jury duty (Tr. 100).

Respondent's use of profanity in expressing her displeasure about an assignment was a violation upon the agency rules regarding courtesy and non-disruptive behavior. Respondent's accusation that Ms. Davis, who was her acting supervisor, was a "liar" was both discourteous and insubordinate. These two charges must therefore be sustained. See ACS Code of Conduct II (B); III (B) (1) and (39).

Rubber Band Incident

Charge III, specification 1 alleges that respondent deliberately aimed and released a rubber band in the direction of Mr. Savarese. He testified that, on December 8, 2005, as he passed in front of respondent's desk, she took aim and shot a rubber band at him, just missing him. Mr. Savarese exclaimed, "You can't be serious," and walked away. The next day, respondent spoke to Mr. Savarese and said that the flying rubber band had been an accident. She explained that the rubber band was inadvertently released as she was performing physical therapy exercises (Tr. 15). Respondent later submitted medical documentation (Resp. Ex. B) indicating that she had tendonitis in her right hand and had been told to perform exercises with rubber bands.

Respondent admitted releasing a rubber band as Mr. Savarese walked by, but insisted that she had merely been doing her prescribed physical therapy exercises for tendonitis and arthritis and the rubber band slipped out of her grasp (Tr. 112-13).

Petitioner's proof that respondent deliberately tried to hit Mr. Savarese with the rubber band was extremely weak. The documentation supplied concerning respondent's physical therapy supports a finding that respondent was, indeed, manipulating the rubber band as a physical therapy exercise. Although I credited Mr. Savarese's observations that respondent was looking at him at the time the rubber band left her hand, I did not find this evidence alone sufficient to find that she "aimed" the rubber band at him. The exercises described by respondent made it clear that she was moving the band in a manner which might, to a casual observer, resemble aiming. Moreover, respondent was a very credible witness, in that she admitted most of the other factual allegations made concerning angry remarks attributed to her by co-workers.

For these reasons, I find petitioner's proof insufficient to establish that respondent intentionally tried to hit Mr. Savarese with the rubber band and recommend that this charge, too, be dismissed.

Failure to Complete Assignments

The charges allege that respondent failed to perform three assignments on three occasions: on January 12, 2005, she failed to "redact and copy the case" for the Nicole H. case, she failed to "complete her work" on the Katrina Y. case and on March 14, 2005, she failed also "failed to complete her work" on the Cheree T. case. The proof on these charges consisted of two emails (Pet. Ex. 10) from Ms. Sallee to Ms. Lubin, the disciplinary advocate. In an email dated March 10, 2005, Ms. Sallee wrote that the Nicole H. case was assigned to respondent on December 12, 2004. On January 12, 2005, respondent asked that the case be reassigned because she was unable to complete the case on time. Similarly, respondent was assigned the Katrina Y. case on January 3, 2005, and, on January 12, asked that the case be reassigned because she was too backed up. Ms. Sallee further wrote that, during the period of December 21, 2004, through January 7, 2005, respondent was given eight assignments, a number "at or below the norm for this unit." In this period, the other paralegals completed either seven or eight cases and none asked for work to be reassigned.

In an email dated March 14, 2005, Ms. Sallee wrote that the Cheree T. case was assigned to respondent on February 28, 2005, and respondent asked that it be reassigned on March 14. From February 28 to March 14, 2005, respondent was given only three new assignments, including the Cheree T. case.

Respondent admitted that she asked for Ms. Sallee to reassign the Katrina K. and Nicole H. cases because respondent herself was too busy to complete them (Tr. 105). She also recalled that, in January 2005, she was called for jury duty and also was sent by her employer to see a psychiatrist in order to assess her fitness (Tr. 105). The evidence thus amply supports a finding that respondent did not complete the three assignments and asked Ms. Sallee to give them to another paralegal.

However, petitioner fails to make even a colorable claim as to how respondent's actions in dealing with these cases constitute misconduct. I fully credited respondent's uncontroverted testimony that, at the time of these assignments, she was out for jury duty and also for an employer-ordered fitness examination. In all three cases, respondent informed her supervisor of her inability to complete the files. Petitioner apparently argues that respondent's failure to complete these three cases violated the agency rule regarding performing job duties efficiently. See ACS Code of Conduct section III (B) 25. Yet no proof was offered as to the amount of time the assignments might have taken, whether respondent was working on anything at all during this period, or that Ms. Sallee warned respondent that her failure to complete the assignments might subject her to disciplinary charges. Nor was any proof offered that respondent's notice to Ms. Sallee as to her inability to complete the cases to deadline was not a responsible and appropriate way to deal with this problem.

Based upon these numerous deficiencies of proof, the charge must be dismissed.

March 18, 2005 Incident

On March 18, 2005, respondent was served with the first set of disciplinary charges. Respondent's remarks after reading these disciplinary allegations are the subject of a second set of disciplinary charges, which include six specifications of quoted remarks by respondent which were alleged to be misconduct.

Ms. Sallee recalled that, after reviewing the document, respondent asked Ms. Sallee whether she got all of her hatred out by making the accusations. Respondent also asked Ms. Sallee whether Ms. Sallee blamed respondent for failing to obtain a promotion, which Ms. Sallee denied as "ridiculous." Ms. Sallee told respondent to go to her desk, but respondent persisted, saying, "Go ahead. File ten thousand more charges against me. I don't care" (Tr. 79-80; Pet. Ex. 11).

Ms. Sallee summoned Mr. Savarese, who told respondent she must either stop her loud complaining or go home. As recounted by Ms. Sallee both in her testimony and in a memo (Pet. Ex. 11), after Mr. Savarese left, respondent yelled, "What is it you want me to do?" and said she did nothing but work all day. She said that the only way to get ahead in the office was to flunk a test and "if that's not racist, I don't know what is." Mr. Savarese returned and ordered respondent to leave the office, which she did. Before respondent left, she told Ms. Sallee (as quoted by Ms. Sallee in a memo (Pet. Ex. 11) written that day), that she was "a God-damned misogynist, a racist, sexist, ageist and anti Italian." This time, respondent requested to have permission to take a day of sick leave, which was denied by Mr. Savarese. She then told Ms. Sallee, Mr. Savarese and some other workers nearby, "You're all a bunch of back-stabbing, throat cutting anti-Italian pigs. I hope you all get sick," and left the office. Ms. Sallee and Mr. Savarese both commemorated respondent's actions in emails (Pet. Ex. 6) and, in the case of Ms. Sallee, in a three-page memorandum (Pet. Ex. 11).

When respondent appeared for work on the following work day, she was suspended for 30 days.

Once again, respondent admitted making most of the remarks quoted by Ms. Sallee and Mr. Savarese. She could not recall making the remark about wishing all of her co-workers got sick, but conceded "maybe I did" (Tr. 116-17). She requested sick leave because of the amount of distress caused by being served with the disciplinary charges (Tr. 117).

Some of respondent's angry remarks, such as her question as to whether the disciplinary actions were the result of "hatred" or the comment that her supervisors could file "ten thousand charges," did not rise to the level of misconduct. Charge I, specifications 1 and 2 must therefore be dismissed. However, the insults hurled by respondent, first to Ms. Sallee and then all of her co-workers, are clearly in violation of the general rules that employees must be courteous and respectful to their co-workers. Charge I, specifications 3, 4, and 5 must be sustained. See ACS Code of Conduct II (B); III (B) (1) and (39).

In sum, five of the specifications should be sustained and remainder dismissed as unproven.

FINDINGS AND CONCLUSIONS

1. Charge I, specification 2 of ACS File No. 66052-664-000 should be sustained in that, on January 21, 2005, respondent called temporary supervisor Beth Davis a "liar" in violation of ACS Code of Conduct II (B); III (B) (1) and (39).

2. Charge I, specification 3 of ACS File No. 66052-664-000 should be sustained in that, on January 7, 2005, respondent told temporary supervisor Beth Davis she did not "have to put up with this sh-t" in violation of ACS Code of Conduct II (B); III (B) (1) and (39).

3. Charge I, specification 4 of ACS File No. 66052-664-000 must be dismissed in that petitioner failed to offer any evidence that respondent "screamed profanities" at her co-workers.

4. Charge I, specifications 5 and 6, of ACS File No. 66052-664-000 must be dismissed in that petitioner failed to offer any evidence that respondent's mention of the word "bomb" constituted misconduct.

5. Charge II, specifications 1 through 3, of ACS File No. 66052-664-000 must be dismissed in that petitioner failed to prove that respondent's failure to complete three assignments constituted misconduct.

6. Charge III, specifications 1 and 2 of ACS File No. 66052-664-000 should be sustained in that, on January 3, 2005, respondent called supervisor Geraldine Sallee, asked whether she enjoyed watching the bad things which had befallen respondent and accused her of lying, in violation of ACS Code of Conduct II (B); III (B) (1) and (39).

7. Charge III, specification 3 of ACS File No. 66052-664-000 should be sustained in that, on December 27, 2004, respondent wrote an email to Supervising Attorney Paul Savarese, sarcastically thanking him for deliberately causing her pain, in violation of ACS Code of Conduct II (B); III (B) (1) and (39).

8. Charge III, specification 4 of ACS File No. 66052-664-000 must be dismissed in that petitioner failed to prove that respondent intentionally shot a rubber band at Mr. Savarese.

9. Charge III, specifications 5 and 6 of ACS File No. 66052-664-000 must be dismissed in that petitioner failed to prove that respondent’s remarks to an interviewer constituted misconduct.

10. Charge III, specification 7 of ACS File No. 66052-664-000 must be dismissed in that petitioner failed to prove that, from October 2004 to May 2005, respondent exhibited disruptive behavior which violated agency rules.

11. Charge I, specifications 1 and 2, of ACS File No. 66052-664-001 must be dismissed in that petitioner failed to prove that respondent's remarks concerning her supervisor hating her and the possibility of filing "ten thousand" more charges constituted misconduct.

12. Charge I, specifications 3, 4 and 5 and charge II, specification 2 of ACS File No. 66052-664-0001 should be sustained in that, on March 18, 2005, respondent called Supervisor Geraldine Sallee a "God-damned misogynist, a racist, sexist, ageist and anti Italian" and told her supervisors and co-worker, "You're all a bunch of back-stabbing, throat cutting anti-Italian pigs. I hope you all get sick," in violation of ACS Code of Conduct II (B); III (B) (1) and (39).

RECOMMENDATION

In order to make an appropriate penalty recommendation, I requested and received a summary of respondent's employment record with the Department. She has worked for the agency since 2000 and has no disciplinary record. As indicated above, she was suspended for 30 days following the incident which occurred on March 18, 2005.

The penalty assessment in this case presents a wide array of issues. There are, first of all, an uncommonly large number of reasons to mitigate the penalty. Respondent not only has no prior disciplinary record, but in fact has an exemplary work record during her five years with the agency. Respondent's evaluation for 2003-04 (Resp. Ex. C) rated her as "very good" or "outstanding" at all of her tasks. Ms. Sallee stated that she was "tactful" and "courteous". Second, as to the March 18, 2005 incident, considerable mitigation must be given to the fact that respondent was reacting spontaneously to having just been served with a set of documents accusing her of wide-ranging misconduct. As discussed above, a number of the factual allegations, while accurate, failed to state any violation. Other allegations were either inaccurate or were not based upon reliable proof. It was understandable that an employee receiving a set of misconduct charges would become upset and angry, particularly where some of the charges seem unfounded. Thus, given these highly provocative circumstances, respondent's actions during the March 18 incident warrant a reduced penalty. Third, since having the charges served on her, respondent has attended seven or eight anger management classes through the employee assistance program (Tr. 117). Since respondent's quick temper was responsible for all of the misconduct which was found to have occurred here, her willingness to avail herself of anger management instruction shows some insight into her problem and is worthy of considerable mitigation of penalty.

My general impression of respondent was that she was highly intelligent and committed to her job. At the same time, she is volatile and can be difficult to work with, due in part to her tendency to blame any criticism of her own behavior on personal malice or discrimination. Some of the discourteous remarks found to have been uttered by respondent, such as those to Ms. Davis, were a product of spontaneous anger, not premeditated spite, and are deserving of a minor penalty. Other statements, such as those in the Savarese email and in the Sallee telephone call, seem more egregious, in that they were unprovoked and unsolicited. At the same time, respondent's statements, while insubordinate, had a limited impact upon the office as a whole, since both were communicated in a private and confidential manner. The most disruptive and most egregious of respondent's actions were her angry, invective-filled remarks on March 18, 2005, made in the presence of most of the staff. Despite my conclusion that respondent's outburst was partially provoked by the serving of the charges, I am not suggesting that respondent's angry behavior was justified or should be tolerated. To the contrary, a firm penalty is needed in this case to show respondent that she must learn to control her temper and be more respectful of her supervisors or face more serious consequences, including termination, if she continues to insult supervisors.

Employees found to have committed similar misconduct have received penalties on the order of ten to fifteen suspension days. See, e.g. Admin. for Children's Services v. Rosenblatt, OATH Index No. 1507/04 (Dec. 13, 2004) (15 days for employee found to have been discourteous to co-workers on four occasions); Health and Hospitals Corp. (Jacobi Medical Center) v. Solomon, OATH Index No. 334/02 (Jan. 25, 2002) (10 days for three instances of insubordinate and discourteous behavior toward supervisors). Thus, the request of petitioner's counsel that respondent be terminated for the misconduct alleged in the charges is unsupportable, even had all of the charges been proven. Where the majority of the charges against respondent were not sustained, termination as a penalty seems out of the question. Instead, given all of the mitigating factors, and considering the nature of the five instances of proven misconduct, particularly those concerning Ms. Sallee and Mr. Savarese, I have concluded that 15 days' suspension will impress upon respondent the need to avoid future outbursts against her supervisors without inflicting an unreasonably harsh penalty on an otherwise excellent worker. Since respondent was suspended for 30 days prior to trial, she should receive credit for 15 days of this suspension.

Accordingly, I recommend that respondent be suspended for 15 days for the misconduct which occurred here, with credit for 15 of the days she has already been suspended.

John B. Spooner

August 30, 2005 Administrative Law Judge

SUBMITTED TO:

JOHN B. MATTINGLY

Commissioner

APPEARANCES:

CINDY LUBIN, ESQ.

Attorney for Petitioner

BROWN & GROPPER, LLP

Attorneys for Respondent

BY: JAMES A. BROWN, ESQ.

Administration of Children’s Services’ Decision, October 21, 2005

_____________________________________________________

ADMINISTRATION OF CHILDREN’S SERVICE

- against -

LUCREZIA PAPA

Respondent

ACS File Nos. 66052-664-000 and 66052-664-001

_____________________________________________________

JOHN B. MATTINGLY, Commissioner

On July 22, 2005, in accordance with Section 75 of the Civil Service Law, a hearing was held at the Office of Administrative Trials and Hearings (“OATH”) regarding the disciplinary charges preferred against you. Administrative Law Judge Spooner sustained charges, as outlined on page 10 and 11 of his report and recommendation and recommended a penalty of a fifteen (15) day suspension without pay, with credit for time served during your pre-hearing suspension.

I have carefully reviewed the Report and Recommendation of the Administrative Law Judge, and the record of the Hearing. I concur with all the findings of fact and find you guilty as charged. Since you have previously served a thirty (30) day pre-hearing suspension, you will not be required to serve an additional suspension. However, you will not receive back pay for any time served beyond the fifteen (15) day suspension, as recommended by OATH. New York Civil Service Law Section 75 (3) provides that an employee may only recoup pay for the thirty (30) day pre-hearing suspension if acquitted of the charges which led to it. New York Civil Service Law Section 76 only provides a right of appeal as to the pre-hearing suspension in the event that you received a reprimand without remittance of the thirty (30) day suspension penalty. Moreover, pre-hearing suspension was reasonable based on the escalating disruption caused by your behavior.

Under the provisions of Section 76 of the Civil Service Law, you are entitled to appeal the fifteen (15) day suspension penalty by application either to the Civil Service Commission, or to the New York State Supreme Court in accordance with Article 78 of the Civil Practice Laws and Rules. If you elect to appeal to the Commission, such appeal must be filed in writing twenty (20) days from receipt of this notice of determination. The decision of the Commission is final and conclusive.

JOHN B. MATTINGLY, Commissioner, Administration of Children’s Service

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

[1] Two of the March 14, 2005 charges, charge III, specifications 5 and 6, alleging that respondent told an interviewer that she had been "guaranteed" a job, were dismissed by this tribunal at the beginning of the hearing as failing to allege a prima facie case of misconduct. A third charge, charge I, specification 1, alleging that respondent said "there is no equal opportunity in this agency," was withdrawn by petitioner's counsel at the close of her case, as noted above.

[2] Following the close of the hearing, I discovered that the OATH library did not contain a copy of the ACS Code of Conduct and instructed a member of my staff to obtain a copy of these rules from the Administration. See 48 RCNY § 1-48 (b).

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