Dep T of Sanitation V

Transit Auth.v. Borowski OATH Index No. 1873/06 (Aug. 10, 2006), modified on penalty, Auth. Determination (Aug. 22, 2006), appended, appeal dismissed as moot, NYC Civ. Serv. Comm'n Item No. CD07-57-D (May 25, 2007), appended

Respondent found guilty of using offensive language in a work- related voicemail message. Penalty of 15-day suspension recommended. Authority rejected recommended penalty and instead imposed the penalty of demotion. Civil Service Commission dismissed appeal as moot because respondent resigned prior to the imposition of the penalty. ______

NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of TRANSIT AUTHORITY Petitioner - against - ROBERT BOROWSKI 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, Superintendent Robert Borowski, with using profane and racist language in a voicemail message. At a hearing on June 23, 2006, petitioner presented one witness. Respondent testified in his own defense and called four other witnesses. For the reasons below, I find that petitioner proved the charge and recommend that respondent be suspended for 15 days.

ANALYSIS The facts are undisputed. Respondent, a superintendent for the Authority, was interested in applying for a promotion to chief system operator. On May 8, 2006, he called Charles Scott at -2- the human resources division of the Authority’s field services unit to find out whether his resume had been received. When Scott reported that he had not received the resume, respondent became upset. The application deadline had passed, but Scott offered to forward the resume to the hiring manager if respondent could e-mail it right away. Respondent agreed to do so and Scott went to lunch (Tr. 7-9). When Scott returned from lunch, he checked his voicemail. There was a message from respondent stating that he had e-mailed his resume and asking Scott to call him at his home to confirm that it was received. At the end of the message, after thanking Scott, respondent said “this fucking nigger’s a waste of time” (Tr. 10, 13). Scott, who had no prior contact with respondent, was shocked (Tr. 10, 14-15). He replayed the message for supervisors. Because Scott repeatedly replayed the call on his speaker phone, two or three co-workers may have also overheard it (Tr. 11). Petitioner introduced the recording in evidence (Pet. Ex. 2). Respondent testified that he was at home when he called Scott about the application for promotion (Tr. 24, 29-30). When respondent made the offensive comment, he believed that the recording was over and he was talking or muttering to himself (Tr. 29-30). He insisted that he never intended for Scott to hear his comments (Tr. 28). Expressing regret for the offense that his comments caused, respondent admitted that he was “ashamed” by his remarks and “embarrassed beyond all means” (Tr. 30-31). At a control center on 53rd Street in Manhattan, respondent supervises power maintenance supervisors. They are responsible for controlling the power on the BMT subway lines (Tr. 20- 22). Several of respondent’s colleagues testified that he had never used offensive language at the workplace (Michael Birck: Tr. 35-37; Robert Lutzel: Tr. 38-40; Charles Daniels: Tr. 42-43; Andrew Sutton: Tr. 45-48). Authority rules require employees to treat each other with courtesy and prohibit uncivil language, including offensive remarks about race, national origin, or ancestry. See Transit Authority Rules and Regulations 2(a), 2(b), 2(d), 4(a), 10(a), 10(c), & 10(d). Respondent’s conduct unquestionably violated those rules. Thus, the charge against him is sustained.

FINDINGS AND CONCLUSIONS -3-

1. On May 8, 2006, respondent violated Authority rules when he used profane and racist language in a work-related voicemail message.

RECOMMENDATION Because there was no dispute about the facts, the focus of the hearing was on penalty. The parties agreed to admit respondent’s disciplinary record in evidence. In 2004, he was reprimanded for improper operation of power limits. He has had no other disciplinary problems in his 28-year career (ALJ Ex. 2). Petitioner now seeks termination of respondent’s employment. Although petitioner failed to cite any case supporting such a drastic penalty, it argues that respondent’s remarks were deliberately intended to intimidate Scott, the comments were heard by others, and respondent should be held to a higher standard because he is a senior manager (Tr. 56-58). Termination is too drastic a penalty in this case. To begin with, I do not credit petitioner’s argument that respondent intentionally left the offending message to intimidate Scott. At petitioner’s suggestion, I repeatedly listened to the recording. It is apparent from the context, substance, and tenor of respondent’s words that he never expected Scott to hear any slur. Respondent needed Scott’s help. After asking about his resume and leaving his home telephone number, respondent said “thank you” (Pet. Ex. 2). His voice trailed off as he mumbled the offensive remarks. The tone was not intimidating. On the contrary, respondent sounded clueless and unaware that the voicemail was recording his bigoted outburst. Nor do I attach much weight to petitioner’s argument that an enhanced penalty is deserved because the remark “had to be played on speaker phone” (Tr. 57). Scott first heard the message through his telephone handset. Rather than ask his supervisor to replay the message the same way, Scott elected to use the speaker phone and speculated that others may have overheard the recording. This was not a significant aggravating factor. For the unremarkable proposition that supervisors are held to a higher standard, petitioner cited two cases: Transit Auth. v. Pasieka, OATH Index No. 2112/01 (Feb. 19, 2002), aff’d, NYC Civ. Serv. Comm’n Item No. CD 04-12-SA (May 17, 2004), rev’d, Pasieka v. Transit Auth., Index No. 26592/04 (Sup. Ct. Kings Co. March 3, 2005), rev’d and reinstated, 2006 N.Y. App. Div. Lexis 9726 (2d Dep’t 2006), and Transit Auth. v. Brodowski, OATH Index No. 766/04 (Apr. 30, 2004), modified on penalty, Auth. Determination (May 20, 2004). In Pasieka, the -4-

Authority demoted a supervisor who used derogatory ethnic names, such as “Chop-Chop” and “Taco,” on a daily basis for two years and failed to show a “glimmer” of remorse for his actions. Pasieka, OATH 2112/01, at 10. In Brodowski a supervisor received a 44-day suspension for regularly using profanity and prohibited language towards a subordinate over a two-year period. Brodowski, OATH 766/04, at 7-8. Pasieaka and Brodowski involved supervisor misconduct, but in each of those cases there were additional aggravating factors – there was pervasive use of offensive language over the course of two years and neither supervisor was especially repentant. Here, in sharp contrast, the offending remarks were limited to a single phone call. And respondent expressed profound remorse for his comments. Respondent was a nervous and inarticulate witness, but I have no doubt after listening to his testimony that he was deeply ashamed of his conduct. His acceptance of responsibility is a substantial mitigating factor. Respondent’s case is much closer to Transit Auth. v. Kerr, OATH Index No. 1234/00 (May 10, 2000), modified on penalty, Auth. Decision (July 18, 2000), modified on penalty, NYC Civ. Serv. Comm’n Item No. CD 03-22-M (Feb. 5, 2003). There, a supervisor repeatedly referred to a subordinate as a “nigger” during the course of a single day. The Civil Service Commission recognized that supervisors are held to a higher standard, but it found that the Authority’s imposition of a 44-day suspension was excessive. In light of the respondent’s 22- year employment history and minor disciplinary record, the Commission reduced the suspension to 15 days. This is consistent with penalties imposed by other agencies that share the Authority’s commitment to eliminate racially offensive speech from the workplace. See Police Dep’t v. Kilroy, OATH Index No. 1096/91 (July 10, 1991), aff’d sub. nom., Kilroy v. Brown, 190 A.D.2d 530, 593 N.Y.S.2d 32 (1st Dep’t 1993) (loss of 15 vacation days for officer who uttered the words, "dirty nigger," in presence of an administrative aide); see also Dep’t of Correction v. Andino, OATH Index No. 430/89, at 8 (Aug. 10, 1989), modified on penalty, NYC Civil Serv. Comm’n Item No. CD 90-57 (June 20, 1990) (penalty for captain who referred to a subordinate as a “nigger” reduced from 60 to 30 days, despite the absence of remorse). Here, as in Kerr, a supervisor with many years of service and a minor disciplinary record has been found guilty of using racially offensive language on one occasion. In an effort to distinguish Kerr, petitioner suggested that respondent was more blameworthy because he “is obviously a white European male” or “obviously a white male” (Tr. 59). This tribunal has -5- repeatedly rejected that shaky distinction. See, e.g., Dep’t of Sanitation v. Lugo, OATH Index No. 1634/05, at 4-6 (Nov. 17, 2005), aff’d, NYC Civ. Serv. Comm’n Item No. CD 06-65-SA (July, 15, 2006) (use of the offensive word “nigger” has no place in the workplace, regardless of the speaker’s race). The severity of the penalty should not vary based upon the color of the offender’s skin. I am mindful that respondent holds a position of responsibility within the Authority. But, as in Kerr, mitigating consideration should be given to his lengthy tenure, his minor disciplinary record, and the isolated nature of his misconduct. Moreover, respondent made the offending comments in the privacy of his home, he never intended to disseminate his remarks at the workplace or elsewhere, and he has expressed profound remorse. In light of all of these circumstances, I recommend a penalty of 15 days’ suspension without pay.

Kevin F. Casey Administrative Law Judge

August 10, 2006

SUBMITTED TO:

RALPH AGRITELLEY Vice President for Labor Relations

APPEARANCES:

ALAN BENNETT, ESQ. Attorney for Petitioner

JONATHAN FACTOR, ESQ. Attorney for Respondent

NYC TRANSIT AUTHORITY’S DECISION, AUGUST 23, 2006

RALPH J. AGRITELLEY, Vice President, Office of Labor Relations.

DECISION -6-

I have read the transcript of record from the hearing held on June 23, 2006, the Administrative Law Judge’s (ALJ’s) Report and Recommendation dated August 10 and the Fogel responses submitted on behalf of Mr. Borowski and NYC Transit. I concur with the ALJ’s factual findings that on May 8, 2006, Mr. Borowski used profane and racist language in a work-related voicemail message. At the end of a voicemail message being left for an employee from the Transit’s Office of Human Resources who was assisting him, Mr. Borowski stated “this fucking nigger’s a waste of time.” I do not agree with the penalty recommended – a fifteen (15) day suspension. NYC Transit has a well-documented commitment to maintaining a work environment free from discriminatory and harassing language and activities. See Petitioner’s Exhibits 3, 4 and 5. As stated in a May 2005 letter from MTA NYC Transit President Lawrence G. Reuter to all employees: One of NYC Transit’s chief strengths is the diversity of its employees. Our workforce is a true mirror of the citizens of New York City and its surrounding communities, and no one should be subjected to derogatory remarks about their race, ethnic background, religion, gender, sexual orientation, etc. for any reason. Treating each other with respect at work is an obligation that is shared by all of us at NYC Transit.

See Petitioner’s Exhibit No. 5. In establishing a penalty, the ALJ ignores NYC Transit standards that have historically applied to NYC Transit employees. Transit has a workforce that reflects all of the diversity of the Metropolitan New York City area. Our customers reflect that same diversity. NYC Transit has worked extremely hard over numerous years to consistently enforce standards which do not tolerate discriminatory conduct at work in order to protect our employees and the riding public. Clearly it is in management’s and the public’s best interest for a public agency to have the highest standards and consistently enforce these standards. As such NYC Transit does not tolerate discriminatory conduct and has set a standard different and more severe from that articulated by the ALJ. If NYC Transit were to accept the ALJ’s standard, the agency would have a more lenient policy for managers and supervisors than for its 35,000 hourly employees. In a series of cases, NYC Transit has established a very strict no tolerance policy for discriminatory conduct. See: In the Matter of Robert Ortiz (1996) where an hourly employee was dismissed for referring to a supervisor as “ …a typical fucking Jew who has a guilty -7- conscience”; In the Matter of Peggy R. Herring (2006) where the arbitrator upheld the dismissal of an hourly employee for stating to a supervisor, “You Chinese prick. You Chinese yellow shit. Somebody’s going to hurt your fucking ass”; In the Matter of David B. Moran (2005), a bus operator was terminated for saying to a customer “You fucking black bitch, get the fuck off my bus and go back to Africa; In the Matter of Richard A. Viehl (2003), where a bus operator was terminated for using profanity and stating to customers that he was “tired of niggers”; In the Matter of David V. Abdullah (1999), where a Station Agent was terminated for stating to a customer “If you could read the sign-faggot-you know what to do”. Respondent called four NYC Transit managers as character witnesses. All four managers confirmed that the comment made by Respondent was not appropriate for a NYC Transit superintendent and that NYC Transit does not tolerate such comments. See: Birck testimony, p.36, lines 15-19; Lutzel testimony, p.40, lines 18-21; Daniel’s testimony p.43, lines 28-35; and p.44, lines 1-4 and Sutton testimony p.47, lines 1-6. Superintendent Sutton, with 27 years of service at NYC Transit ended his testimony by stating he has “never heard that (referring to the racial slur) even up on that floor” (referring to the work site), see p.48, line 33. Clearly, the use of such derogatory and discriminatory comments are not common at NYC Transit due to the agency’s well established zero-tolerance policy. NYC Transit employees and the public will not be well served by a change to the policy. NYC Transit’s no tolerance standard is further supported by public policy, i.e., Federal, State and local discrimination laws, and promotes a more harmonious and respectful work environment. Discriminatory conduct is unacceptable for legal and ethical grounds and can only lead to disruption and the potential for workplace violence. It is also important to note that the cases cited by the ALJ all relate to supervisory or entry-level employees. In the instant case, Mr. Borowski is a Superintendent – an operating manager who directly manages supervisory and other staff. As a manager, he must be held to the same if not a higher standard than the supervisory/hourly workforce. As a manager at NYC Transit, it is his responsibility to investigate and eliminate discriminatory conduct, not to participate or instigate such misconduct. He is expected to be a role model for the employees who interact and/or report to him. His outrageous discriminatory and hurtful comment to a fellow employee who was simply trying to assist him demonstrates that he does not have the skills, judgment and character to work as a manager or in a supervisory capacity for the agency. -8-

I agree that Mr. Borowski’s long tenure, his overall good disciplinary record and his contrition at the hearing must be taken into consideration. But these factors weigh in his favor against the penalty of dismissal from service which is the morn in such cases. I find that he should be demoted to an hourly position where he will have no managerial or supervisory duties. After making such a derogatory comment, it is clear that he cannot be trusted to uphold and enforce NYC Transit policies in any managerial or supervisory capacity.

RALPH J. AGRITELLEY, Vice President, Office of Labor Relations, NYC Transit Authority

The City Civil Service Commission’s Decision, Item No. CD07-57-D, May 25, 2007

______

THE CITY OF NEW YORK CIVIL SERVICE COMMISSION

In the Matter of the Appeal of

ROBERT BOROWSKI Appellant

-Against-

NYC TRANSIT AUTHORITY Respondent

Pursuant to Section 76 of the New York State Civil Service Law ______

SIMON P. GOURDINE, Commissioner/Chairman

STATEMENT

On Thursday, May 10 2007, the City Civil Service Commission heard oral argument in the appeal of ROBERT BOROWSKI, Superintendent, New York Transit Authority, from a determination by the New York City Transit Authority, finding him guilty of charges of misconduct and imposing a penalty of a DEMOTION following an administrative hearing conducted pursuant to Civil Service Law Section 75. -9-

DECISION

ROBERT BOROWSKI, appeals from a determination of the New York City Transit Authority (NYCTA) finding him guilty of misconduct and imposing a penalty of demotion following disciplinary proceedings conducted pursuant to Civil Service Section 75. On the date of the hearing, Appellant disclosed that he had resigned from his position as Superintendent with the NYCTA on August 25, 2006, prior to the institution of the penalty from which this appeal is taken. NYCTA argued that this Commission lacked the subject matter jurisdiction to hear the instant appeal in light of the Appellant’s resignation from his position with the NYCTA. We disagree. Pursuant to Civil Service Law Section 76 and New York City Charter Chapter 35 Section 813(d), 814(b)(5) and 815(a)(5), this Commission is empowered with subject-matter jurisdiction to hear Appellant’s case. However, in light of Appellant’s voluntary resignation, any decision rendered by this Commission is moot. Accordingly, we dismiss the appeal.

SIMON P. GOURDINE, Commissioner/Chairman, Civil Service Commission

DAVID S. LANDE, Commissioner, Civil Service Commission

RUDY WASHINGTON, Commissioner, Civil Service Commission

NORMA LOPEZ, Director and General Counsel, Civil Service Commission

JONATHAN FACTOR, ESQ. BAIMUSA KAMARA, ESQ. Representative for Appellant Representative for Respondent