Dep T of Sanitation V s2

Dep’t of Sanitation v. James OATH Index No. 1734/05 (July 22, 2005), aff’d, NYC Civ. Serv. Comm’n Item No.CD06-25- SA (Feb. 17, 2006)

Sanitation supervisor charged with failing to complete assignments, being AWOL, and being late. ALJ sustains four of charges and recommends penalty of 25 days. ______

NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of DEPARTMENT OF SANITATION Petitioner - against - RONALD JAMES Respondent ______

REPORT AND RECOMMENDATION JOHN B. SPOONER, Administrative Law Judge This disciplinary proceeding was referred to me pursuant to section 16-106 of the Administrative Code by petitioner, the Department of Sanitation. Respondent Ronald James, a sanitation supervisor, is charged with being absent without leave on three occasions, being late, and failing to complete his work assignments. A hearing on the charges was conducted before me on June 17, 2005. Petitioner called three superintendents and a clerk. Respondent admitted being absent but denied being late. He admitted failing to complete three tasks given to him on one day, although he denied that this was misconduct. For the reasons provided below, I find that four of the charges should be sustained and recommend that respondent be suspended for 25 days.

ANALYSIS Failure to Complete Assignments - 2 -

On June 18, 2004, respondent was assigned as a rotating officer to the Brooklyn 5 garage instead of to his normal garage at Brooklyn 8. Superintendent Shari Pardini was the superintendent in charge of this garage. Superintendent Pardini testified that on June 18, she assigned respondent to supervise two recycling trucks in section 54. In addition, she gave respondent three assignments to check on reports of derelict vehicles and an illegal dumping location (tr. 11-12). She stated, as general rule, field supervisors for the 6:00 a.m. to 2:00 p.m. shift were required to provide verbal reports to the garage superintendent at 10:00 a.m. or 11:00 a.m. and again at 1:00 p.m. as to the status of the work they had been assigned to supervise. The reports should include a "call" or estimate of how much collection remained incomplete at the end of the shift. They should also report if they have a problem with any assignment given to them (Tr. 13-14). In respondent's case, Superintendent Pardini recalled that respondent never reported having any problems with any of his assignments. She recalled that he gave an afternoon report after 1:00 p.m. and told her he had not completed the additional assignments. She asked him if he had "anything to give back" and he replied he had not done the assignments because he was too busy. Superintendent Pardini commented that, had respondent reported his inability to complete the extra work during his 10:00 a.m. report, she could have reassigned it to someone else or have done it herself (Tr. 15-18). Respondent admitted that he did not have time to complete the three extra assignments given to him by Superintendent Pardini. All of his time was spent supervising two street- cleaning brooms and then the four collection trucks and three-to-four recycling routes to which he was assigned. These tasks took additional time due to respondent's lack of familiarity with the district. Around 10:00 a.m. and then again in the afternoon, he called Superintendent Pardini and tried to provide an estimate of how much work might be left incomplete at the end of the shift. In the afternoon call, although he could not recall exactly what he told Superintendent Pardini, he did remember her asking him how long it would take to complete the work in the following shift. Respondent told her he was unable to provide an estimate of time due to the "many variables that come into play," including the speed of the night crew and the traffic (Tr. 76-81). It was thus undisputed that respondent did not complete the three extra assignments and also was unable to provide detailed information as to how much time would be needed to - 3 - complete the work left undone by the day shift. However, petitioner offered little evidence to establish that these failings were misconduct. Superintendent Pardini's testimony established only that she expected all of her supervisors to complete any extra assignments given to them. However, she conceded that she did not convey any specific direction to respondent about the assignments. It was also clear that respondent's primary job duty was to supervise, monitor, and report on the cleaning and collection being done during the shift. Even Superintendent Pardini conceded that respondent's lack of certainty as to his estimate of the amount of work left incomplete, and the time necessary to complete it, was somewhat understandable due to his lack of familiarity with the district (Tr. 35). All of these factors support a finding that respondent's failure to complete the extra assignments given to him was not misconduct. At most, Superintendent Pardini's concerns about respondent's efficiency should have been raised during a supervisory interview. This charge should be dismissed.

AWOL's On all of the relevant dates, respondent was assigned as a supervisor at the Brooklyn 8 garage. The AWOL charges allege that respondent was absent without authority on August 4, August 12, and October 23, 2004. On the first two dates, it was undisputed that respondent was originally not scheduled to work, because August 4 and 12 were his regular days off, or "chart" days. However, according to the testimony of superintendent's clerk Eryk Albury, on both August 3 and August 11, respondent was ordered to work a "mandatory chart" due to the need for coverage by supervisors in respondent's garage. On both of these days, upon receiving the command from the borough office to order both respondent and another supervisor to work on the following day, Mr. Albury posted their mandatory chart assignment on the garage assignment board located in the garage office. Respondent was working on these dates. According to Mr. Albury, all supervisors are required to review the board prior to the end of their shift to see if they have been given any assignments for the following day (Tr. 56-61). On October 23, 2004, respondent was scheduled to work a midnight to 8:00 a.m. shift at the Brooklyn North 8 garage. He did not report to work by midnight and was carried on the garage records as "no call, no show." At 12:35 a.m., respondent called the garage to report that he had overslept. After consulting with the borough office, the superintendent told respondent he - 4 - would not be permitted to work that day, since employee's who are more than 30 minutes late without calling in are generally considered AWOL and not permitted to work (McLean: Tr. 46- 48). Respondent did not deny being absent on either August 4, August 12, or October 23, 2004. He stated that, unlike some other workers, he had never volunteered to work on his chart days in the event additional coverage was needed (Tr. 86). He admitted working on both August 3 and August 11, and could not recall whether he saw his mandatory chart assignment on the board (Tr. 92). He did complain that another supervisor had apparently been excused for August 4 (Tr. 86), and therefore challenged the fairness of the order that he be ordered to sacrifice his day off (see Albury: Tr. 66). The undisputed evidence thus established that respondent was absent on all three days without excuse and these three charges must be sustained.

Lateness The lateness charge raises a factual dispute as to whether supervisors were required to report to work 15 minutes early when the shift being worked occurred on their regular day off, referred to as a chart day. The collective bargaining agreement (Resp. Ex. A) requires that supervisors work an extra 15 minutes for each shift, unless the shift falls on a Sunday. It was undisputed that June 23, 2004, was a scheduled chart day for respondent and that, on June 22, he was ordered to report to work the following day for a 6:00 a.m. to 2:00 p.m. shift. It was also undisputed that respondent arrived at the garage at 6:00 a.m. on June 23 and was marked 15 minutes late (Pet. Ex. 2). What was disputed was whether the extra 15 minutes start time was required where a supervisor was ordered to work his chart day. Superintendents Pardini and Chiucchi both testified that the general practice was for all officers, supervisors and superintendents alike, to observe the 15 minutes early start time for a shift occurring on their chart day (Pardini: Tr. 39- 40; Chiucchi: Tr. 72). Respondent stated that the practice was that the supervisors all ignored the extra 15 minutes if ordered to work on a chart day and reported to work on the hour their shift began (Tr. 84). As to this issue, I credited the testimony of the two superintendents that all supervisors and superintendents regularly reported 15 minutes early on all work days, including their own - 5 - mandatory chart days, except Sundays. As explained by Superintendent Chiucchi, the issue of whether supervisors were required to report 15 minutes early for their chart days was "up for debate,” because some supervisors construed a chart day as equivalent to Sunday (and had evidently filed a grievance with the City on these grounds). However, he confirmed that the "standard practice" was for supervisors to report 15 minutes early on chart days (Tr. 72). Respondent, on the other hand, stated that all supervisors signed in "on the hour" if working a chart day, and insisted this was confirmed by the garage logs. Notably, even though respondent's statement suggested that other supervisors and garage records would support his claim, respondent did not offer any corroborating testimony or evidence for this statement that supervisors generally did not observe the 15-minute early rule for chart days. In fact, the only log offered (Pet. Ex 2) showed that supervisors other than respondent reported 15 minutes early for the morning shift. Given respondent's compelling interest in the outcome, I found his testimony standing alone insufficient to rebut the more plausible account of the two superintendents. The charge that he reported late on June 23 must be sustained.

FINDINGS AND CONCLUSIONS 1. Charge No. F111283 should be dismissed in that petitioner failed to prove by a preponderance of the credible evidence that respondent committed misconduct by failing to complete three inspection assignments.

2. Charges No. F111345, F111348, and F113760 should be sustained in that, on August 4, August 12, and October 23, 2004, respondent was absent without authority in violation of Department Code of Conduct 1.45.

3. Charge No. F111282 should be sustained in that, on June 23, 2004, respondent was 15 minutes late in violation of Code of Conduct 1.1.

RECOMMENDATION Upon making the above findings, I requested and received a summary of respondent's personnel history in order to make an appropriate penalty recommendation. He has worked for the Department since 1990 and was promoted to be a sanitation supervisor in 1997. He has been disciplined on four occasions: in 1999, he was suspended for 5 days for being AWOL and being - 6 - late; in 2000, he was suspended for 20 days, again for being AWOL and being late; in 2002, he was suspended for 23 days for failing to complete an assignment and being AWOL; and in 2004, he was suspended for 2 days for failing to supply medical documentation. This history of severe discipline for repeated unauthorized absences must aggravate the penalty here for the same misconduct. Petitioner's counsel has requested that respondent be suspended for 25 days for all of the charges. Even though I have decided that one of the charges here should be dismissed, the penalty requested seems warranted by respondent's poor record and by what would appear to be a general defiance of the Department rules on attendance. Dep’t of Sanitation v. Davila, OATH Index No. 299/96 (Nov. 6, 1995) (20 day suspension imposed for two days of AWOL). Accordingly, I recommend that respondent be suspended for 25 days.

John B. Spooner Administrative Law Judge

July 22, 2005

SUBMITTED TO:

JOHN J. DOHERTY Commissioner

APPEARANCES:

CARLTON LAING, ESQ. Attorney for the Petitioner

BIAGGI & BIAGGI Attorneys for Respondent BY: RICHARD BIAGGI, ESQ.