Transit Auth. v. Etienne OATH Index No. 1467/08 (May 16, 2008)

Respondent found guilty of falsifying timesheets on 36 occasions and submitting false mileage reimbursement requests. Termination of employment recommended. ______

NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of TRANSIT AUTHORITY Petitioner - against - GRAMATONE ETIENNE Respondent ______

REPORT AND RECOMMENDATION KEVIN F. CASEY, Administrative Law Judge The Transit Authority brought this proceeding, under section 75 of the Civil Service Law, charging respondent, civil engineer Gramatone Etienne, with submitting false timesheets and expense reports from January 2005 to January 2006. At a three-day hearing that concluded on March 19, 2008, petitioner relied upon documentary evidence and an investigator’s testimony. Respondent testified in his own defense. For the reasons below, I find that petitioner established that respondent falsified his timesheets on 36 occasions and submitted false mileage reimbursement requests, and recommend termination of his employment.

ANALYSIS Background Respondent inspected construction work performed by a private contractor at various bus depots. Every two weeks he submitted a timesheet to his supervisor. As a non-managerial employee who worked in the field, respondent was required to confirm the times that he started and finished work each day. In four specifications, petitioner alleged that respondent routinely submitted false time sheets from January 2005 to January 2006. A fifth specification alleged that - 2 -

respondent submitted false mileage reimbursement requests in September 2005 (ALJ Ex. 1). Respondent denied that he committed any fraud, insisted that he routinely worked a full day, and asserted that his supervisor regularly allowed him to work through lunch. There is little doubt that respondent ignored timekeeping procedures, but it was not clear that he falsified timesheets on all of the dates alleged by petitioner. There was, however, sufficient proof that respondent falsified his timesheet on 36 occasions and submitted false requests for mileage reimbursement. Petitioner relied primarily on documentary evidence gathered by its Office of the Inspector General. Based upon an anonymous complaint regarding respondent’s work hours, investigators reviewed documents, conducted surveillance, and interviewed witnesses. Investigator Charles Lienau summarized the results of those efforts. Respondent monitored the John McCullough Company’s installation of heavy-duty parallelogram lifts, under contract B-33054, at the following depots: Kingsbridge, near 215th Street, Bronx; Mother Clara Hale, near 146th Street, ; East 126th Street, Manhattan; Ulmer Park, near 25th Avenue, ; and Liberty, Yonkers (Pet. Ex. 1). When not in the field, respondent went to his office at 2 in . Respondent’s flexible schedule allowed him to begin his eight-hour shift from 7:00 a.m. to 9:30 a.m. and he accounted for his hours and work on bi-weekly timesheets (Pet. Ex. 1 at 5-6). Respondent’s supervisor, John Goonan, issued several memoranda regarding the time confirmation procedures. In 2002, Goonan advised his staff, including respondent, to call from a depot telephone when he arrived and left each day. Respondent could use a cell phone only if a specific person was available to confirm his presence at the work site. If the third party was unavailable, respondent had to use the depot’s phone (Pet. Ex. 15). In May 2004, Goonan told respondent and his colleagues to punch in and out each day at the depot clocks used by drivers and mechanics (Pet. Ex. 5A). In a November 2004 memo- randum, Goonan instructed his staff that, if there was no operating punch clock, they had to swipe their employee identifications at the nearest subway station. This method, called “back- swiping,” electronically recorded arrival and departure times. In a handwritten note, dated June 6, 2005, Goonan reminded respondent that if he used the back-swipe method he had to do so “at the start and finish of each day” (Pet. Ex. 5D). If there was no station near the depot, the

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employee had to call Goonan from a landline telephone, but Goonan told investigators that he did not strictly enforce the landline requirement (Pet. Exs. 1 at 16 and 5C). Timesheets For most of 2005, respondent routinely wrote on his timesheets that he worked from 7:00 a.m. to 3:00 p.m. or 8:00 a.m. to 4:00 p.m. (Pet. Ex. 3). In late October 2005, he began to vary his schedule and reported that he started at 8:45 or 9:10 a.m. (Pet. Ex. 3). Throughout the year, respondent also reported on his timesheets that he only worked on contract B-33054 (Pet. Ex. 3). Respondent testified that Goonan allowed him to leave work after seven hours when he skipped lunch (Tr. 295). If he started at 7:00 a.m. and worked through lunch, respondent left at 2:00 p.m. and wrote on the timesheet that he had worked to 3:00 p.m. (Tr. 294). According to respondent, there was no way to note that he “worked through lunch” on a timesheet and it was “Transit Authority policy” to write 4:00 p.m. even if he only worked to 3:00 p.m. (Tr. 295-96). At first, respondent suggested that working through lunch was an unusual event, limited to exceptional days, such as when the contractor poured concrete (Tr. 238). He later claimed that he worked through lunch “many days” and eventually said that he skipped lunch “almost every day” (Tr. 293, 298). Respondent also admitted, contrary to his timesheets, that he did not work exclusively on contract B-33054. He claimed that Goonan told him to use that contract number if another contract was “out of funds” (Tr. 299, 344). Respondent’s testimony regarding his timesheets was inconsistent, improbable, and uncorroborated. There was no evidence to support the claim that he had permission to work through lunch and leave after seven hours. Nor was there any evidence to confirm that it was impossible to write the correct hours on his timesheet. Likewise, there was no evidence to support his claim that he had authority to enter incorrect contract codes on his timesheets. Time Cards After visiting bus depots and interviewing managers, investigators reported that every depot, including Yonkers and College Point had functioning time clocks. At Kingsbridge, when the time clock occasionally ran out of ink, employees had to sign a log. Respondent’s name was not in the log for 2005 (Pet. Ex. 16). Goonan gave investigators all of the weekly punch cards that respondent submitted in 2005. There were only eight cards, which covered dates from March 12 to May 27, 2005. On each card, the date was handwritten and at least once each week there was a workday without

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any times punched. Investigators noted some odd similarities. There were identical entries for May 4 and May 12, 2005; respondent punched in at 9:08 a.m. and punched out at 3:53 p.m. (Pet. Ex. 1, p. 10). Similarly, on May 5 and May 13, 2005, respondent failed to punch in but he punched out at 4:05 p.m. (Pet. Ex. 10). Respondent offered conflicting testimony regarding his use of punch cards. At first, he testified that most of the depots did not have time clocks (Tr. 239). He later conceded that there were time clocks at many locations, including Ulmer Park, Mother Clara Hale, and Kingsbridge (Tr. 281-82, 285, 288-89). As for College Point, he testified that he did not know where the time clock was located, he claimed that Goonan told him that there was no clock there, and he insisted that he could not use that clock because it lacked a City Transit logo (Tr. 284-85). Contradicting Investigator Lienau, respondent testified that there was no time clock at the Yonkers depot (Tr. 285-86). Respondent also insisted that, if there was a working clock, he gave punch cards to Goonan every two weeks in 2005 (Tr. 289-90). The evidence demonstrated that respondent routinely failed to use time clocks that could have easily documented his arrivals at and departures from work sites. Respondent’s inconsistent and implausible testimony regarding the time clocks was not credible. MetroCard Usage Except for College Point and Yonkers, there are subway stations within three blocks of the depots where respondent worked. For example, the Ulmer Park depot in Brooklyn is less than two blocks from the D train’s 25th Avenue station (Pet Ex. 16). Respondent testified that he did not know that there was a subway station near the Ulmer Park depot even though he worked there for several months (Tr. 286). Petitioner issued respondent a MetroCard. A printout of that card’s usage identified respondent’s location at specific times. Although the printout understated respondent’s subway usage, because he occasionally entered the subway system by displaying his employee identification, it showed that some timesheet entries were false. For example, at 3:54 p.m. on December 30, 2005, respondent entered the subway station, located a short walk from his office in lower Manhattan, but he wrote on his timesheet that he worked until 4:45 p.m. that day (Pet. Exs. 3 & 7).

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Evidence Regarding Phone Calls Respondent offered odd testimony regarding his phone calls to Goonan. He claimed that there were no landline phones at the bus depots and he had to wait until after 9:00 a.m., when Goonan arrived for work, to call via cell phone (Tr. 302-04). These claims were not credible. It is difficult to believe that there were no landline phones at various bus depots. Furthermore, if the purpose of the phone call was to confirm respondent’s arrival time, he could call Goonan’s office phone and leave a message rather than wait an hour or more to check in. According to Goonan’s log of voicemail messages, many employees made early morning phone calls (Pet. Ex. 13). Although Goonan did not use that voicemail log to track arrival and departure times, the log undercut respondent’s testimony that he could not call before 9:00 a.m. (Tr. 304). There was one significant entry in the log. Respondent called from his home phone on Long Island and left a voicemail message at 3:48 p.m. on January 3, 2005. Yet respondent submitted a timesheet stating that he worked from 8:00 a.m. to 4:00 pm. that day (Pet. Ex. 2). Questioned about this discrepancy, respondent claimed that he worked through lunch that day and left work at 3:00 p.m. (Tr. 232). Electronic Entry Records at Employees entering the lobby at 2 Broadway were required to use their identification cards to pass through turnstiles that electronically record the time. A printout of respondent’s entries into the building helped verify the actual arrival times whenever respondent worked at that location (Pet. Ex. 12). Respondent testified that he often reported to a job site before going to his office in Manhattan (Tr. 300, 309, 311). He did not offer specific details of these morning assignments. In fact, respondent repeatedly testified that he was unable to recall which days he worked at each location (Tr. 280, 296, 299). Daily Inspector’s Reports Respondent’s responsibilities included submitting daily inspection reports in which he was required to summarize the tasks performed and note the times that work started and finished each day. Goonan told investigators that respondent only submitted 12 daily reports in 2005 and he failed to submit any reports for the Mother Clara Hale depot, where he had worked six to eight weeks (Pet. Ex. 1 at 8, 13-14). The handful of available reports did not have much detail

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and omitted start and finish times. Goonan told investigators that he was lax in his supervision of respondent’s reports (Pet. Ex. 1 at 15-16). Respondent claimed that he kept reports at the Mother Clara Hale depot and submitted them to Goonan every two weeks (Pet. Ex. 1 at p. 14; Tr. 348). He suggested that the contractor had removed the reports from the trailer (Tr. 348). The contractor told investigators that it moved the trailer July 13, 2005, two weeks after the project’s completion (Pet. Ex. 1 at 15-16). Even if the contractor discarded some reports at one depot, that would only explain the loss of a few reports. Respondent routinely failed to submit any reports. Although petitioner did not charge respondent with misconduct for failing to file inspection reports, the absence of that documentation further suggests that respondent often did not work a full day. Contractor’s Diary Investigator Lienau examined a diary maintained by the private contractor’s construction manager. According to the diary, the contractor worked at the following locations in 2005: East 126th Street in the first two weeks of February 2005, Ulmer Park later that month, Kingsbridge for most of March and April, Mother Clara Hale from the end of April to July, and at Yonkers in September. There was also a work stoppage at Ulmer Park in January 2005, while a change order was processed. Other than providing background, the investigator’s testimony regarding the diary had limited probative value. The investigator did not copy any portions of the diary for use at the hearing and, with some limited exceptions, the diary did not reveal whether respondent was present or absent on any specific date. Mileage reimbursements In September 2005, respondent inspected work performed at the Liberty depot in Yonkers and he submitted requests for reimbursement of tolls and mileage. Respondent’s toll receipts confirmed his location on specific dates. For example, he submitted a timesheet claiming that he worked from 7:00 a.m. to 7:00 p.m. on September 7, 2005, which included four hours overtime. However, his toll receipts indicate that he arrived in , heading towards Yonkers, at 8:51 a.m. and was driving back to Queens by 3:54 p.m. (Pet. Ex. 14). The toll receipts for September 6 and 10, 2005, also indicate that respondent left work earlier than indicated on his timesheets (Pet. Ex. 14).

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Respondent testified that he often stopped at the College Point bus depot in Queens after working in Yonkers. Thus, he insisted, crossing the Queens bound Whitestone Bridge did not prove that he was heading towards his home in Nassau County (Tr. 260). He did not explain what he did on late afternoons and early evenings at College Point and there was no evidence to support this self-serving claim. Surveillance Investigators followed respondent for a few mornings in January 2006. On January 24, 25, and 27, respondent left his house in Uniondale between 7:35 to 7:45 a.m., took the Long Island Railroad to Penn Station, arrived in New York at 8:53 or 8:55 a.m., and displayed his employee identification to a token both clerk to enter the subway. Fifteen minutes later, respondent arrived near his office in lower Manhattan (Pet. Ex. 9). Although the surveillance showed that respondent arrived for work after 9:00 a.m. on each of those days, he repeatedly wrote on his timesheet that he arrived for work at 8:45 a.m. (Pet. Ex. 2). The Charges Preliminary Issues Petitioner filed charges against respondent in December 2007, more than 18 months after the alleged misconduct. Section 75(4) of the Civil Service Law requires commencement of an action within 18 months of the alleged misconduct unless the charges, if proved in an appropriate court, would constitute a crime. If respondent falsified timesheets or expense reports, those acts would constitute crimes including falsifying business records in the first degree and offering a false instrument in the first degree. Penal Law §§ 170.15, 175.35; see Transit Auth. v. Patel, OATH Index No. 1946/01, at 3-4 (Jan. 10, 2002). Evidence that respondent failed to follow agency timekeeping procedures, without more, would not be criminal conduct. Thus, to prevail, petitioner must prove that respondent falsified his timesheets. At the hearing, respondent stressed that Goonan routinely approved his timesheets (Tr. 358). Waiver and condonation is an affirmative defense to allegations of misconduct where an employee acted with the knowledge and approval of a supervisor. Dep’t of Correction v. Heredia, OATH Index No. 1070/91, at 12 (Aug. 23, 1991). However, a signature on a timesheet does not prove that a supervisor is personally aware of all the information contained in that document, especially where an employee works independently. Moreover, waiver and

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condonation is not a defense to fraudulent acts, such as falsifying timekeeping records. See Dep’t of Environmental Protection v. Taylor, OATH Index No. 925/04, at 13-14 (June 22, 2004). Failure to Appear for Work (Specification 1) Petitioner alleged that respondent failed to punch in or out at a time clock, swipe his MetroCard, or leave a voicemail message with his supervisor on 97 occasions from January 2005 to January 2006. Other than the timesheets, there was no evidence that respondent worked on those days. Based upon that absence of confirming evidence, petitioner claimed that respondent falsified his timesheets. Although petitioner proved that respondent failed to follow procedures, it did not prove such an extraordinary number of absences. Petitioner’s own evidence undercuts its theory. Surveillance by investigators in January 2006 showed that respondent left for work at about the same time every day and entered the subway system without swiping his MetroCard. Although investigators did not follow respondent on the days that he was allegedly absent from work, this evidence demonstrated how he could report to work without leaving any independent record of his attendance. If respondent had missed 97 days of work in a single year -- more than one out of every three workdays -- surely someone would have noticed. See Taylor, OATH 925/04, at 10-13 (absence of timecards coupled with supervisor’s testimony that employee was out on leave for “extended periods of time” proved that timekeeping records were false). Petitioner failed to present reliable evidence that respondent had an extensive number of absences. It may have been understandable that petitioner did not call Goonan as a witness. He appeared to be a lax manager and long-time acquaintance of respondent. See Dep’t of Education v. Matos, OATH Index No. 214/04, at 8, n.2 (Feb. 13, 2004), modified on penalty, Chancellor’s Dec. (Apr. 2, 2004), aff’d, NYC Civ. Serv. Comm’n Item No. CD05-17-SA (Apr. 15, 2005) (no adverse inference drawn from employer’s failure to present testimony from a supervisor who was equally available to both sides). There were, however, other witnesses who could have filled the evidentiary gap. For example, Lienau quoted project manager John Matrona as stating that respondent could not be found on “several occasions” at the Mother Clara Hale depot (Pet. Ex. 1 at p. 15). Yet petitioner did not call Matrona as a witness or obtain a written statement from him. The vague reference to “several occasions” of unavailability at one depot is not enough to prove a pattern of absenteeism; it does not indicate how often or when respondent was absent.

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Instead of specific evidence of extensive absences, Lienau recalled one incident mentioned by Goonan. On May 9, 2005, the contractor could not locate respondent to observe a pressure test. After learning that respondent was missing, Goonan called him on his cell phone. Because respondent was not at the job site, Goonan told him to take a vacation day. Respondent testified that his appearance was unnecessary for the May 9 test and he took a previously approved vacation that day. He later submitted a timesheet, approved by Goonan, identifying May 9 as a vacation day (Pet. Ex. 1). This incident, for which respondent was not charged with any misconduct, does not show that he routinely missed work. Petitioner proved that respondent ignored rules, but it did not prove that he falsely claimed to work on 97 dates when he had not worked at all. This specification should be dismissed. Falsified Arrival Times (Specification 2) Petitioner alleged that respondent committed fraud on 32 occasions when he arrived for work later than indicated on his timesheets. Based primarily upon on the entry records at 2 Broadway, petitioner proved that respondent falsified 21 arrival times. For example, respondent claimed on his timesheet that he arrived for work at 8:00 a.m. on March 10, 2005. The entry records at 2 Broadway reveal that respondent did not arrive for work until 8:59 a.m. that day (Pet. Ex. 2). Similarly, on December 13, 2005, respondent reported on his timesheet that he arrived for work at 9:00 a.m., but the entry records show that he did not arrive until 9:35 a.m. (Pet. Ex. 2). On the following dates, respondent’s arrival times were demonstrably false:

Date Hours per Entry at 2 MetroCard Other Timesheet Broadway Usage Evidence 1/27/05 8:00 a.m. - 4:00 p.m. 10:04 a.m. 3:00 p.m. Whitehall 4:48 p.m. Grand Ave. 3/10/05 8:00 a.m. - 4:00 p.m. 8:59 a.m. 4:42 p.m. Bowling Green 3/15/05 8:00 a.m. - 4:00 p.m. 8:58 a.m. 4:36 p.m. 3/16/05 8:00 a.m. - 4:00 p.m. 9:04 a.m. 4:54 p.m. Wall St. 3/22/05 8:00 a.m. - 4:00 p.m. 8:52 a.m. 8:36 a.m. Atlantic Ave. 9:30 a.m. South Ferry 9:54 a.m. South Ferry 11:24 a.m 215th St. 4:36 p.m. Bowling Green 4/6/05 8:00 a.m. - 4:00 p.m. 8:26 a.m. 12:54 p.m. Bowling Green 4:00 p.m. Wall St.

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4/7/05 8:00 a.m. - 4:00 p.m. 8:19 a.m. 4:06 p.m. Wall St. 4/21/05 8:00 a.m. - 4:00 p.m. 8:27 a.m. None Per Punch Card: 8:27 a.m. start 7/22/05 8:00 a.m. – noon 9:11 a.m. 11:54 a.m. Bowling Green 11/30/05 8:30 a.m. - 4:20 p.m. 9:07 a.m. 4:42 p.m. Bowling Green 12/6/05 8:30 a.m. - 4:30 p.m. 9:19 a.m. Noon Bowling Green 4:36 p.m. Wall St. 12/7/05 7:00 a.m. - 3:00 p.m. 9:29 a.m. 3:00 p.m. Bowling Green 12/12/05 9:00 a.m.- 5:00 p.m. 9:19 a.m. 12:18 p.m. Bowling Green 5:00 p.m. Bowling Green 12/13/05 9:00 a.m.- 5:00 p.m. 9:35 a.m. 12:36 p.m. Bowling Green 5:00 p.m. Bowling Green 12/14/05 9:00 a.m.- 5:00 p.m. 11:30 a.m. 11:12 a.m. Borough Hall 4:54 p.m. Bowling Green 12/15/05 8:45 a.m. - 4:45 p.m. 9:22 a.m. 4:48 p.m. Bowling Green 12/27/05 8:45 a.m. - 4:45 p.m. 9:21 a.m. 4:48 p.m. Bowling Green 12/28/05 8:45 a.m. - 4:45 p.m. 9:17 a.m. 6:12 p.m. Chambers St. 1/4/06 8:45 a.m. - 4:45 p.m. 9:22 a.m. 4:42 p.m. Wall St. 1/9/06 8:45 a.m. - 4:45 p.m. 9:21 a.m. 4:48 p.m. Wall St. 1/19/06 8:45 a.m. - 4:45 p.m. 9:23 a.m. 11:54 a.m. Bowling Green 4:36 p.m. Wall St.

Respondent could not recall where he worked on any of those dates, but he suggested that he often stopped by job sites before heading to his office. For each of those 21 dates, there was no credible evidence that respondent went anywhere other than 2 Broadway. Even though respondent had a flexible schedule that allowed him to arrive as late as 9:30 a.m., he was still required to record his start times accurately on his time sheets and work a full day. The frequency and scope of the false entries demonstrates that these were not careless rounding errors. Respondent engaged in a pattern of deception. Thus, petitioner’s allegations regarding those 21 dates should be sustained. For other dates, the evidence was too equivocal to prove that respondent arrived late. On April 19, 2005, for example, respondent used his MetroCard in the 145th Street station at 2:42 p.m. (Pet. Ex. 2). Petitioner alleged that this proved that respondent arrived for work more than six hours late. The more plausible explanation is that respondent went to the Mother Clara Hale depot that day and used the nearby subway on his way home. It is not clear that he arrived late. Due to similar ambiguities, the remaining allegations in this specification should be dismissed.

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Falsified Departure Times (Specification 3) This specification alleged that on seven dates respondent left work earlier than indicated on his timesheets. For three of those dates, respondent’s timesheets are clearly false. According to respondent’s timesheet, he worked from 7:00 a.m. to 4:00 p.m. on Saturday March 12, 2005, and received eight hours overtime, but his time card indicates that he punched out at 3:44 p.m. that day (Pet. Exs. 3 & 10). On September 6, 2005, he reportedly worked from 7:00 a.m. to 5:00 p.m., including two hours overtime, but his toll receipt shows that he was on the Queens bound Throgs Neck Bridge by 3:56 p.m. (Pet. Exs. 3 & 14). Finally, his timesheet entry for January 3, 2006, states that he worked from 7:00 a.m. to 3:00 p.m., but his MetroCard record shows that he entered the Bowling Green subway station, across the street from his office, at 2:36 p.m. (Pet. Exs. 3 & 7). On each of those dates, there was reliable evidence that respondent’s timesheets were false. Although respondent testified that he went to multiple job sites on the same date and routinely received permission to work through lunch, there was no credible proof that he did any of those things on March 12, 2005, September 6, 2005, or January 3, 2006. The allegations regarding those three dates should be sustained. As for other dates alleged in this specification, the evidence was less convincing. For example, respondent entered 2 Broadway at 7:15 a.m. and used his MetroCard across the street at the at 9:42 a.m. on February 17, 2005 (Pet. Ex. 2). This does not prove, as petitioner alleges, that respondent left work more than six hours early. It is more likely that respondent stopped by his office before going to a depot. Although respondent failed to comply with timekeeping procedures, petitioner did not prove that respondent falsified his timesheet on February 17, 2005 or the remaining dates alleged in this specification. Late Arrival and Early Departures (Specification 4) This specification charged respondent with falsifying his arrival and departure times on 33 dates. Petitioner proved some, but not all, of those allegations. For six dates, petitioner proved that respondent falsified his starting and departure times. On December 2, 2005, for example, respondent reported that he worked from 8:00 a.m. to 4:00 p.m., but he did not swipe in at 2 Broadway until 9:20 a.m. (Pet. Ex. 2). This showed that the starting time on his timesheet was false. The only other activity recorded that day was his use of his MetroCard at Bowling Green station at 2:42 p.m., indicating that he left work early. There was no evidence that respondent worked anywhere else that day. Even if respondent had

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permission to work through lunch, a claim that I did not credit, he spent less than six hours at work that day. Petitioner proved that respondent falsified arrival and departure times on the following six occasions: Date Hours per Entry at 2 MetroCard Other Timesheet Broadway Usage 2/7/05 8:00 a.m. - 4:00 p.m. Noon 11:54 a.m. Atlantic Ave. Per Contractor: 2:18 p.m. Bowling Green Work at E. 126th St. and Meeting at 2 Broadway 9/7/05 7:00 a.m. - 7:00 p.m. None None Per Toll Receipt: (4 hours over time) 8:51 a.m. Bronx bound on Throgs Neck Bridge and 3:54 p.m. Queens bound on Whitestone Bridge 12/2/05 8:00 a.m. - 4:00 p.m. 9:20 a.m. 2:42 p.m. Bowling Green 12/30/05 8:45 a.m. - 4:45 p.m. 9:25 a.m. 3:54 p.m. Wall St. 1/12/06 10:00 a.m. - 6:00 p.m. 10:21 a.m 4:54 p.m. Bowling Green 1/13/06 8:45 a.m. - 4:45 p.m. 9:21 a.m. 1:06 p.m. Bowling Green 3:42 p.m. 145th St.

For six other dates, petitioner proved that respondent falsified his start time but did not prove that he falsified his departure time. On January 24, 2006, for example, respondent reported on his timesheet that he worked from 8:45 a.m. to 4:45 p.m., but he did not enter his office building until 9:21 a.m.. Surveillance by investigators corroborated that respondent arrived well after 8:45 a.m. that morning. However, the evidence regarding his departure time was equivocal. Because respondent entered the Bowling Green station at 11:30 a.m., petitioner suggests that he must have left work five hours early. Although that is possible, it is more likely that he went to a bus depot that afternoon. Petitioner proved that respondent falsified his start time, but failed to show that he falsified his departure time, on the following six dates:

Date Hours per Entry at 2 MetroCard Other Timesheet Broadway Usage 3/18/05 8:00 a.m. - 4:00 p.m. 9:12 a.m. None

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12/8/05 10:30 a.m.- 6:30 p.m 11:21 a.m. 11:42 a.m. Bowling Green 12/9/05 9:00 a.m.- 5:00 p.m. 9:25 a.m. 11:54 a.m. Wall St. 12:24 p.m. 8th Ave. 2:20 p.m. 8th Ave. 1/20/06 8:45 a.m. - 4:45 p.m. 9:23 a.m. None 1/24/06 8:45 a.m. - 4:45 p.m. 9:21 a.m. 11:30 a.m. Bowling Green Surveillance: Arrived downtown Manhattan 9:15 a.m. 1/25/06 8:45 a.m. - 4:45 p.m. 9:14 a.m. 11:30 a.m. Bowling Green 11:54 a.m. Fulton St.

For the remaining 21 dates alleged in this specification, the evidence was inconclusive. On January 4, 2005, for example, respondent reported that he worked from 8:00 a.m. to 4:00 p.m., and the recorded evidence established that he entered 2 Broadway at 1:32 p.m. (Pet. Ex. 2). Based on that evidence, petitioner alleged that respondent arrived for work more than five hours late and left two and a half hours early. The evidence is too vague to support that charge. Once again, petitioner failed to rule out the likelihood that respondent worked at a bus depot during the day and briefly stopped by his office, as he did on several other occasions. For similar reasons, the evidence failed to prove the remaining allegations in this specification. False Mileage Reimbursement Requests (Specification 5) Petitioner alleged that respondent committed fraud and theft by submitting false mileage reimbursement requests for 17 days from September 8 to September 30, 2005 (ALJ Ex. 1). On those dates, respondent claimed that he drove 100 miles (50 miles each way) to and from his home in Uniondale, Long Island to the Liberty Depot in Yonkers. He received $987 cash reimbursement for those mileage expenses (Pet. Ex. 14). Petitioner alleged that searches on the internet sites www.yahoo.com and www.mapquest.com reveal that is only 34 miles from respondent’s home to the Liberty Depot (Pet. Ex. 14). Respondent offered no evidence to rebut that claim. The undisputed evidence established that respondent repeatedly overstated his mileage. If he only drove 68 miles per day, instead of 100 miles, then he overstated his expenses by at least $300. This evidence was sufficient to show that respondent submitted fraudulent reimbursement requests. See Human Resources Admin. v. Allen, OATH Index No. 212/06, at 21-23 (June 28, 2006).

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FINDINGS AND CONCLUSIONS 1. Petitioner failed to prove that respondent falsified his timesheets and failed to appear for work on 97 occasions, as alleged in the first specification.

2. Petitioner proved that respondent falsified the arrival times on his timesheets on 21 occasions, as alleged in the second specification.

3. Petitioner proved that respondent falsified the departure times on his timesheets on three occasions as alleged in the third specification.

4. Petitioner proved that respondent falsified the arrival and departure times on his timesheets on six occasions and falsified the arrival times on his timesheets on six occasions, as alleged in the fourth specification.

5. Petitioner proved that respondent falsified his requests for mileage reimbursements on 17 occasions.

RECOMMENDATION After making the above findings, I requested and received a summary of respondent’s personnel history. Petitioner hired respondent in 1981. In June 2000, petitioner charged him with insubordination and refusal to submit to a drug test. Those charges resulted in a settlement agreement where respondent agreed to accept a penalty of dismissal from service with right of restoration. Following a referral to an employee assistance program, respondent returned to work six months later. He has no other disciplinary record. Petitioner now seeks termination of respondent’s employment. That request is appropriate. Falsifying timesheets is a serious form of misconduct that routinely results in termination of employment. See Office of the Comptroller v. Nieves, OATH Index No. 962/04, at 19-21 (Oct. 29, 2004) (employee fired for falsifying arrival time on 26 occasions); Dep’t of Education v. Matos, OATH Index No. 214/04 (Feb. 13, 2004), modified on penalty, Chancellor’s Dec. (Apr. 2, 2004), aff’d, NYC Civ. Serv. Comm’n Item No. CD05-17-SA (Apr. 15, 2005) (termination of employment upheld where long-term employee with unblemished record falsified time records on three occasions); Dep’t of Transportation v. Castellano, OATH Index No. 1176/01 (July 11, 2001), modified on penalty, Comm’r Dec. (Oct. 5, 2001), aff’d, NYC Civ.

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Serv. Comm’n CD03-34-SA (Apr. 2, 2003) (senior laborer terminated for altering five entries on his timecard); Transit Auth. v. Caruso, OATH Index No. 685/92 (Jan. 28, 1993), aff’d, Vice Pres. of Labor Relations (May 17, 1993) (maintenance supervisor terminated, in part, for falsifying time records); but see Transit Auth v. Patel, OATH Index No. 1946/01 (Jan. 10, 2002) (60-day suspension for submitting fraudulent medical note deemed appropriate in light of substantial mitigation where employee under stress of serious illness, had not engaged in a pattern of deception, and admitted falsification when confronted by supervisor). Here, as noted, respondent does not have an unblemished record. More importantly, the present misconduct involved an extraordinary pattern of dishonesty. It was respondent’s duty to oversee private contractors to ensure compliance with contracts and maintain safety (Tr. 229). Instead, he engaged in ongoing deception to cover-up his absences from the workplace. He demonstrated a fundamental lack of integrity. Accordingly, I recommend termination of respondent’s employment.

Kevin F. Casey Administrative Law Judge

May 16, 2008

SUBMITTED TO:

JUDITH T. PIERCE Senior Vice President of Administration

APPEARANCES:

JUDITH BUCKLEY, ESQ. Attorney for Petitioner

MITCHEL B. CRANER, ESQ. Attorney for Respondent