Dep’t of Sanitation v. Abdullah OATH Index No. 739/18 (Jan. 25, 2018)
Sanitation worker charged with leaving his route without authorization, insubordination, wearing an unauthorized head scarf, and twice loitering at times he should have been working. ALJ found evidence sufficient to prove three of the five charges and recommended that the employee be suspended for 18 days. ______
NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of DEPARTMENT OF SANITATION Petitioner - against - JUBAIR ABDULLAH Respondent ______
REPORT AND RECOMMENDATION JOHN B. SPOONER, Administrative Law Judge This disciplinary proceeding was commenced pursuant to section 16-106 of the Administrative Code by petitioner, the Department of Sanitation. Respondent Jubair Abdullah, a sanitation worker, is charged with five instances of misconduct, including leaving his route without authorization, insubordination, wearing an unauthorized head scarf, and twice loitering at times he should have been working. A trial on the charges was conducted before me on October 19 and 24 and November 1 and 29, 2017. Petitioner presented testimony from 12 supervisors. Respondent testified on his own behalf, denying any misconduct, and called four other workers as witnesses. For the reasons provided below, I find that the evidence was sufficient to sustain three of the five charges. I recommend that respondent be suspended for 18 days.
ANALYSIS Respondent has worked for the Department since 2001. At the time of the five sets of charges, respondent was assigned to Queens District 8. A sixth charge was withdrawn at the commencement of trial. - 2 -
Unauthorized Absence from Work Route (Complaint 143897) On February 5, 2017, respondent and his partner, Mr. Todd, were assigned to the 12:00 a.m. to 8:00 a.m. shift (Pet. Ex. 11), with respondent the driver and Mr. Todd the loader (see Pet. Ex. 9). For this shift, crews were directed to remain on their assigned routes except for an initial break from 2:00 a.m. to 2:15 a.m., a 4:30 a.m. to 5:00 a.m. lunch break, and a 6:30 a.m. to 6:40 a.m. break (Egher: Tr. 620-21; Pet. Ex. 11). The cutoff time for a cleaning crew to leave their route and return to the garage was 6:50 a.m. (Pet. Ex. 11). Superintendent Egher stated that the crews were required to take their lunch break in the garage and were given an additional ten minutes to travel to the garage and another ten minutes to return to their routes (Tr. 621-22). Supervisors use a GPS software program called Bladerunner to monitor the location of all collection trucks. According to Supervisor Davis, that night he was working overtime in anticipation of a snowstorm (Tr. 818). When it became clear that there would be no snow, respondent and Mr. Todd were assigned to litter pickup, with Supervisor Davis as their supervisor (Tr. 819-20). Respondent and Mr. Todd started their assigned route without incident. At 2:15 a.m. and 2:47 a.m., Supervisor Davis observed respondent and Mr. Todd on their route picking up litter (Tr. 822). At around 3:45 a.m., however, Supervisor Davis saw on his Bladerunner program that respondent’s truck was on the Van Wyck Expressway headed to the garage (Tr. 826-27). Indeed, Department GPS records for that day (Pet. Ex. 10) show that from 3:30 a.m. to 3:57 a.m. the truck moved from Park Avenue to south on the Van Wyck Expressway and then to the garage. Supervisor Davis returned to the garage. When he arrived, respondent and Mr. Todd’s truck was parked in front and respondent was in the passenger seat. Supervisor Davis took the ticket, which had no notation about returning to the garage. Respondent said his partner wanted to use the bathroom (Tr. 830-31). Supervisor Davis asked why he was not notified that they were leaving their route, and respondent replied that he was not the driver (Tr. 832-33). Later Supervisor Davis asked Mr. Todd why he returned to the garage early and he said he needed to use the bathroom (Tr. 833, 854). Superintendent Egher, the night borough supervisor, also asked Mr. Todd why he and respondent returned to the garage early and he had no answer (Tr. 619-20), but only remarked, “You’re killing me” (Tr. 699). Respondent and Mr. Todd confirmed that just before 4:00 a.m. Mr. Todd had to use a bathroom and they returned to the garage, with Mr. Todd driving the truck (Adbullah: Tr. 975-
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76; Todd: Tr. 882). Mr. Todd stated that he did not feel comfortable using toilets in the facilities available early in the morning (Tr. 891). He did not write anything on the DS 350 because he had no pen that night (Tr. 882-83). Mr. Todd parked the truck outside the garage and went inside while respondent sat in the truck (Tr. 976). Supervisor Davis came up and asked for the DS 350 which respondent gave him (Tr. 976). At 5:00 a.m., the workers returned to their route (Tr. 977) and worked until the cutoff time of 6:50 a.m. They did not complete one of the lines on the route, leaving a small amount of litter uncollected (Tr. 837). Respondent conceded that, as indicated on the DS 350, the workers left out .10 tons of garbage, which he erroneously calculated would be only one pound or the equivalent of a “McDonald’s bag” (Tr. 977). Under Department leave rules, employees must be present at their assigned work route during working hours unless authorized to leave. Department Code of Conduct § 3.25. The undisputed evidence showed that respondent and Mr. Todd’s early return to the garage, 45 minutes prior to the authorized lunch break, without the permission of their supervisor violated this fundamental rule. Respondent and Mr. Todd contended that Mr. Todd’s need to use the bathroom excused the workers return to the garage early as a matter of convenience. There is, however, no support in either the Department rules or in past practice for such an exception. It is true that workers were evidently permitted to leave their routes briefly in order to use a bathroom outside their break times. However, in this case, respondent and Mr. Todd, rather than finding a bathroom close to the route, drove all the way back to the garage, in essence extending their lunch break by some 30 minutes. Petitioner presented proof that there were, in fact, multiple bathrooms close to respondent’s route. Supervisor Panzarella was asked by Superintendent Egher to survey bathrooms accessible on February 5, 2017, and, on October 30, 2017, produced a list (Pet. Ex. 1) of 11 bathrooms which would have been available to sanitation workers on the night shift, including two gas stations, several fast food restaurants, a fire station, a police station, and a hospital. At each establishment, the supervisor asked whether they were open 24 hours per day, whether the bathroom was accessible in February 2017, and whether the establishment had ever turned away a sanitation worker needing to use the rest room (Tr. 770). Supervisor Davis also observed that there were a number of nearby public bathrooms which Mr. Todd could have used (Tr. 834).
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Supervisor Davis conceded on cross-examination that, had the workers sought permission to return to the garage a few minutes before 4:20 a.m. in order to use the bathroom, he would not likely have found their actions to be misconduct (Tr. 856-57). However, because they left their work assignment and came into the garage 30 minutes early, without obtaining authorization, it is clear that they committed misconduct. This complaint should be sustained.
Insubordination (Complaint 147073) On June 13, 2017, respondent and his partner, Mr. Collier, were assigned to recycling collection for the 6:00 a.m. to 2:00 p.m. shift. Their supervisor for that day was Supervisor Thompson, who regularly worked in another Queens district but was assigned to district 8 on that day “on an out-of-town capacity” (Tr. 547). According to Supervisor Thompson, he understood that the instructions for the workers on this recycling shift were, if they completed their routes by 11:30 a.m., they should report to a supervisor and could then be sent out to assist other crews who looked unlikely to complete their routes (Tr. 549-50). Supervisor Thompson testified that he spoke with respondent and his partner, Mr. Collier, at 11:00 a.m. and they reported that they had completed their route. Supervisor Thompson directed respondent to drive to another route and assist another crew who were not yet finished. At this point, respondent told the supervisor that he was “not helping anybody,” that the mirrors on the truck were broken, and that the truck was down. Supervisor Thompson directed respondent to “leave the truck here” and wait for a replacement truck from the garage. Respondent immediately jumped back into the truck and drove away. Supervisor Thompson reported to the district supervisor, Superintendent Erbis, what had happened (Tr. 552-55). Superintendent Erbis confirmed that, a little after 11:00 a.m., he received a call from Supervisor Thompson. Supervisor Thompson reported that he had ordered respondent and Mr. Collier, who had completed their route, to assist the crew on another route that was not yet finished. According to Supervisor Thompson, respondent told him that his truck had broken mirrors. Supervisor Thompson told the workers to wait for another truck and then use the replacement truck to assist on the other route. Supervisor Thompson indicated that, following the order, respondent got back in his truck and drove away (Tr. 404-09). Supervisor Vaden, the garage supervisor, recalled speaking with respondent around 11:30 a.m. or 12:00 noon in the garage and being told respondent’s truck had broken mirrors (Tr. 516-
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17). Department records (Pet. Ex. 8) confirm that respondent’s assigned truck was downed on June 13 due to broken mirrors. Respondent testified that, on June 13, he noticed while working his route that the mirrors were broken. He and Mr. Collier finished the route despite this by working through their breaks (Tr. 985-86). After they finished, Supervisor Thompson told them that another truck was not finishing. Respondent said “that has nothing to do with me,” that the mirrors on his truck were broken, and that he was taking the truck in. Supervisor Thompson told him, “There’s another truck not cleaning. You can’t go in” (Tr. 986). Mr. Collier testified that, after respondent “mentioned” that the mirrors were broken, Supervisor Thompson said that he would call the garage man to drive in the truck. Respondent said, “What’s the difference with the GU bringing out a truck and . . . him driving it back with unsafe mirrors opposed to me driving it back with unsafe mirrors?” (Tr. 897-98). Mr. Collier could not recall what Supervisor Thompson answered because he was not part of the conversation and walked away to smoke. Respondent came to the truck and the two went back to the garage (Tr. 898). Here respondent admitted the critical facts alleged – that he was directed by Supervisor Thompson not to return to the garage because another truck had not finished its route and that, despite this direction, he drove the truck back to the garage. The defenses offered by respondent did not excuse his failure to obey Supervisor Thompson’s order. First, respondent insisted that Supervisor Thompson’s order was in violation of the general policy for the district of not diverting trucks to work on other routes and letting trucks go in when finished, with a supervisor following the truck which was still cleaning (Tr. 987). Respondent’s testimony was notably not confirmed by petitioner’s witnesses. Even assuming, however, that Supervisor Thompson was misapplying the district policy for recycling route management, it was respondent’s obligation to obey the order and, if he believed it illegal in some way, to grieve it later. See Dep’t of Correction v. Keyes-Alston, OATH Index No. 468/05 at 5 (Feb. 1, 2005), citing Ferreri v. New York State Thruway Auth., 62 N.Y.2d 855 (1984) (employee required to obey supervisor’s order and file a grievance later). Insofar as respondent also insisted that Supervisor Thompson did not expressly tell him to stay and wait for a replacement truck (Tr. 989), I did not credit this testimony. Supervisor Thompson’s testimony that he explicitly told respondent to “leave the truck here” was more
- 6 - credible than that of respondent. I reached this conclusion based upon Supervisor Thompson’s general lack of interest in the outcome of the case, the corroboration by respondent and Mr. Collier of most of the supervisor’s other remarks, and the confirmation by Superintendent Erbis that Supervisor Thompson told him that the supervisor advised the workers to “wait.” See Dep’t of Sanitation v. Menzies, OATH Index No. 678/98 at 2-3 (Feb. 4, 1998), aff’d, NYC Civ. Serv. Comm’n Item No. CD 98-101-A (Sept. 9, 1998) (factors relevant to this analysis include witness demeanor; consistency of a witness’ testimony; supporting or corroborating evidence; witness motivation; bias or prejudice; and, the degree to which a witness' testimony comports with common sense and human experience). In sum, this complaint should be sustained in that respondent’s admitted departure with the truck after Supervisor Thompson ordered him to stay and not return to the garage constituted insubordination, in violation of the requirement that Department workers obey orders from their supervisors. Department Code of Conduct § 3.1.
Loitering and Unauthorized Head Scarf (Complaints 148088, 148090, and 148034) Two complaints allege that on July 15 and 19, 2017, respondent stopped working his assigned route for extended times. On July 15, 2017, a supervisor also observed respondent wearing a scarf on his head, in violation of the Department uniform rules. On July 15, 2017, respondent and his partner, Mr. Grubb, were assigned to recycling pickup for the 12:00 a.m. to 8:00 a.m. shift (Tr. 291). On this night, the scheduled times the crews were permitted to take breaks and leave their assigned routes were 2:00 a.m. to 2:15 a.m. and lunch from 4:30 a.m. to 5:00 a.m. (Cosgrove: Tr. 300). The proof on the two July 15 charges consisted primarily of the testimony of Superintendent McEvoy. He testified that, on this date, he was assigned to field monitoring of routes in Queens East 8. He was in civilian clothes and driving an unmarked vehicle (Tr. 242). At 5:50 a.m., he parked a car length behind respondent’s truck (Tr. 248) and observed that it was double-parked on 150th Street with the hopper open and both workers inside (Tr. 243-49). Some 25 minutes later, at 6:16 a.m., respondent got out and stood at the curb talking on a cell phone (Tr. 250). The truck remained parked until 6:25 a.m., when Superintendent McEvoy left (Tr. 249). Superintendent McEvoy admitted that he did not speak with respondent and Mr. Grubb because he had been instructed not to do so, unless he observed a safety violation (Tr. 258-59).
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Respondent and Mr. Grubb testified that, on July 15, as they were working their route, their truck began releasing fumes and a “regen” light came on. Mr. Grubb called Supervisor Rigosi to report the problem, but was told that the garage did not have a replacement truck available (Abdullah: Tr. 961; Grubb: Tr. 910-11). The truck shut off and they pushed the “regen” button and waited. The truck eventually restarted and they drove it back to the garage (Abdullah: Tr. 961-62; Grubb: Tr. 912-13). Neither of the workers had a cell phone number for Supervisor Cosgrove (Tr. 966). Respondent also stated that it was up to Superintendent McEvoy to ask the workers what was wrong, since “we could have been dead in the truck” (Tr. 971). Both Supervisor Cosgrove and Supervisor Rigosi described the regen as a process to purge the truck’s diesel engine of excessive fumes and particulates, which can shut the engine down entirely. The condition is indicated by yellow and then a red light on the truck dashboard. The regen process to flush the system and restart the engine takes 30 to 45 minutes (Cosgrove: Tr. 293-95; Rigosi: Tr. 343). According to both supervisors, a crew forced to perform a regen in the field should notify either the field supervisor or the garage foreman to have another truck sent out (Cosgrove: Tr. 295; Rigosi: Tr. 344). Supervisor Rigosi, the garage supervisor for that night, testified that he did not recall receiving any calls from respondent or Mr. Grubb during that shift (Tr. 342-43). Supervisor Cosgrove, who was the night supervisor on July 15, also stated that he did not receive any notification from respondent or Mr. Grubb about needing to perform a regen to their truck (Tr. 296). Mr. Grubb testified that, on the DS 350 card (Pet. Ex. 5) for that night, he wrote “Fumes and regen called into garage 0510 worked until unbearable at 5:20,” as reflected on the card admitted into evidence (Tr. 912). A truck repair summary history (Pet. Ex. 6) for the recycling truck assigned to respondent on July 15 does not indicate that the truck was taken out of service on July 15, but does show that it was taken down due to a hopper handle problem on July 21 and due to “black smoke” from the exhaust system on July 24. According to Superintendent McEvoy, on July 15 he also observed respondent wearing a black scarf or “do-rag” on his head, in violation of Department rules (Tr. 253). He described the headgear as “black” with “strings” which made it “shoulder length,” covering respondent’s neck (Tr. 255). The superintendent noted his observations in a field report (Pet. Ex. 4). Both respondent and Mr. Grubb stated that on that date respondent was wearing a Muslim head covering called a kufi, and not a do-rag (Abdullah: Tr. 962; Grubb: Tr. 914).
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Respondent, who wore a black kufi to each of the trial dates, insisted that it was the same color that he usually wore under his hat (Tr. 963). He noted that he had never before been criticized for wearing the kufi (Tr. 963). Mr. Grubb identified a web image (Pet. Ex. 11) of a scarf covering the scalp, with a neck-length train at the back of the neck, as a do-rag (Tr. 915-16), although he insisted that this was not what respondent was wearing (Tr. 914). Notably, the do- rag image was never shown to Superintendent McEvoy. The proof as to the two July 15 charges raised two disputed factual issues: whether the truck was broken down as contended by respondent and Mr. Grubb and whether respondent was wearing non-regulation head covering. As to the first issue, respondent and Mr. Grubb’s testimony that they could not work because they were waiting for their truck’s engine to restore itself was plausible and was corroborated by the notations on the DS 350 card “Fumes and regen called into garage 0510 worked until unbearable at 5:20.” Their description of the engine shutdown coincided with the description of the supervisors who were familiar with the regen and shutdown procedures. Their description of the actions that they took also comported with the guidelines in the Department training manual (Resp. Ex. B), which indicated that the regen cycle could last up to 60 minutes. The complaints for the alleged July 15 violations were not written until July 21 and not served until some 11 days after the incident on July 26 (ALJ Ex. 1). On the date of July 15 when they completed their DS 350 form, respondent and Mr. Grubb would have had no motive to falsely refer to a problem with the truck in order to defend themselves against disciplinary charges. On the other hand, the workers’ testimony was inconsistent with Supervisor Rigosi’s insistence that he did not receive any calls regarding respondent’s truck being out of service (Tr. 343). Furthermore, the truck history did not indicate that the truck was taken down after respondent’s and Mr. Grubb’s shift, as their testimony indicated that it should have been, were the engine problems actually reported. Both respondent and Mr. Grubb, who was also apparently served with charges, had an interest in denying any misconduct to avoid being disciplined. Supervisor Rigosi had no direct interest in the outcome of the case. He nonetheless displayed a partisan attitude toward the case, not directly answering cross-examination questions about instructions on the regen process given in roll call (Tr. 377), insisting that he recalled exactly what he was doing at 5:00 a.m., 5:30 a.m.,
- 9 - and 6:00 a.m. on July 15 (Tr. 385-86), stating that it would be “nice” if workers notified a supervisor after a successful regen of a truck (Tr. 381), and denying that he had an “eidetic,” or photographic memory (Tr. 385). I further found that Supervisor Rigosi’s combative and somewhat evasive testimony failed to establish that the workers did not call into the garage to report a truck problem or that the account of the downed truck was fabricated. Due to these problems, petitioner’s evidence was insufficient to sustain this complaint. As to the do-rag charge, petitioner’s evidence was also thin. It was uncertain that, from a car length behind the truck, Superintendent McEvoy actually saw a do-rag or some other kind of black headgear, since description of what he saw respondent wearing did not coincide with the do-rag image which counsel showed to Mr. Grubb. Superintendent McEvoy recalled that the headgear he saw had “strings” from the head to the shoulders, a description different from the do-rag image, which had a wide scarf extending from the back of the head down on to both shoulders. Respondent’s testimony that he typically wore a black kufi at work because he was a Muslim was plausible and was corroborated by Mr. Grubb. Apparently, the wearing of such headgear for religious purposes would be permitted by the Department. On the whole, I found Superintendent McEvoy’s testimony inadequate to establish that he actually recognized the particular headgear he saw respondent wearing, that this headgear was not a kufi, and that it violated the Department uniform rules. This charge, too, should be dismissed. The final charge concerns respondent’s and his partner’s absence from their route on July 19, 2017, for approximately an hour. On this date, respondent and his partner, Mr. Duke, were assigned to recycling collection for the 6:00 a.m. to 2:00 p.m. shift. During this shift, workers were permitted three breaks: a morning break from 8:00 a.m. to 8:15 a.m., a lunch break from 10:30 a.m. to 11:00 a.m., and an afternoon break after lunch (Saladino: Tr. 27). Deputy Chief Saladino testified that workers are permitted to use a bathroom within a “reasonable distance” from their assigned route (Tr. 30). Deputy Chief Bandera testified that, on July 19, he was assigned to Queens 8 due to “labor issues” with workers not completing their routes. He recalled seeing respondent sitting in his truck behind another unoccupied truck and directed him to move the other truck out of the way at around 6:43 a.m. (Tr. 152-53). According to Supervisor Huang, respondent and his
- 10 - partner, Mr. Duke, left the garage that day at approximately 7:00 a.m. (Tr. 212) and, at around 7:30 a.m., were on the assigned route (Tr. 216). Sometime after 9:00 a.m., Deputy Chief Saladino saw on his GPS Bladerunner program that respondent’s truck, which was assigned to recycling collection at the southeast of the district, was off its route at Cunningham Park located 30 minutes away in the northwest part of the district (Tr. 25-26). Deputy Chief Saladino called Deputy Chief Bandera, who observed respondent’s truck in Cunningham Park at 9:36 a.m. and made a notation on the DS 350 card (Pet. Ex. 1) (Saldino: Tr. 31; Bandera: Tr. 156-58). Deputy Chief Saladino observed the truck back on the route at 10:02 a.m. and made a notation on the DS 350 card (Pet. Ex. 1): “Returned to RT at 1002 Missing for 1 hr & 14 minutes.” Mr. Duke testified that on July 19, 2017, he was driving the truck and, at around 8:45 a.m., needed to use a bathroom. He insisted that, when he needed to go “number 2,” he always used the bathroom at Cunningham Park (Tr. 936). He drove to Cunningham Park and used the bathroom there, leaving respondent outside in the truck (Tr. 937-38). Deputy Chief Bandera walked up and asked for the DS 350 and signed it and Mr. Duke drove the truck back to the assigned route (Tr. 939). Mr. Duke conceded that he and respondent were off their route for an hour and 12 minutes (Tr. 942). On the DS 350 (Pet. Ex. 1), Mr. Duke wrote that the workers “left route for b/room break at Cunningham Park” at 8:48 a.m. Respondent testified that, on July 19, Mr. Duke was the senior worker and drove the truck. At some point, Mr. Duke announced that he needed to use the bathroom and he drove to Cunningham Park to do so (Tr. 951). Respondent stated that, as the loader, he had to “roll” with his driver (Tr. 953). He stated that he did not have the cell phone number of the supervisor and that calling the garage was Mr. Duke’s responsibility, not his (Tr. 954). It was undisputed that on July 19, respondent and Mr. Duke completed only one of seven assigned lines for that day, leaving most of the route not cleaned (Saladino: Tr. 65). At some point after the July 19 incident, workers in the district were ordered to use bathrooms located within their sections (Erbis: Tr. 489-90). Counsel for the Department argued that respondent’s and Mr. Duke’s one hour-and-12- minute bathroom break violated the Department work rules and the prohibition against loitering because the break was unreasonable in that there were bathrooms much closer to the route which
- 11 - would have required only a few minutes’ drive. Deputy Chief Saladino stated that he was aware of several bathrooms close to the route (Tr. 34). On October 14, 2017, Supervisor Karanja conducted a survey of bathrooms near respondent’s route on July 19 and reported the results to Superintendent Erbis (Erbis: Tr. 390- 94). The survey results were contained in a letter (Pet. Ex. 3) dated October 16, 2017, addressed to Mr. Laing. The letter listed eight “available and accessible” bathrooms close to the route, including a fire station, a gas station, and various fast food restaurants. The bathroom locations were also displayed on a color-coded map (Pet. Ex. 2; Saladino: Tr. 35-36). Petitioner’s counsel further argued that the extended break by respondent and Mr. Duke was a deliberate work slowdown to attempt to put pressure on management concerning certain district work rules. Deputy Chief Saladino and Superintendent Erbis noted that for the previous month this route had always been completed, even though it had included three additional lines (Saladino: Tr. 65-66; Erbis: Tr. 398-99). Superintendent Erbis testified that, beginning on July 10, 2017, the workers in the district engaged in a work slowdown to protest delayed cutoff times to return to the garage (Tr. 399, 438-39). Whereas prior to July 10 “close to” 100 per cent of the routes were being cleaned, after July 10 less than 10 per cent of the routes were completed (Tr. 400, 402-03). Respondent disputed the accuracy of these statistics, and was given an opportunity after the trial to review Department records and submit further proof on this issue, but no further evidence was offered.1 There was little question that the extended break taken by respondent and Mr. Duke, whether part of a work slowdown or not, violated the District policy on breaks, since the longest break permitted on this shift was 30 minutes for lunch. See Department Code of Conduct § 3.25 (employees must be present at their assigned work route during working hours unless authorized to leave). Mr. Duke’s contention that the hour-plus break should be excused because he felt more comfortable using the toilet at Cunningham Park rather than a toilet at a restaurant or gas station was unpersuasive. The rationale of enforcing limited breaks on the Department work force,
1 In a post-hearing conference call on December 13, 2017, as confirmed by an e-mail from this tribunal (ALJ Ex. 2), both counsel agreed to stipulate by December 20 to the “number of times respondent’s route was completed between May 1 and July 10, 2017.” Following the conference call, counsel for petitioner indicated in an e-mail (ALJ Ex. 2) that Superintendent Erbis only opined that “close to 100 percent” of the routes in the district were cleaned prior to July 10 and that this was consistent with the data shown by the district records. Nothing further was submitted by counsel for respondent.
- 12 - breaks which respondent and Mr. Duke conceded they were aware of, was to ensure that workers take no other breaks during their work hours. If all workers could take hour-long breaks to travel to their preferred bathroom because they have distaste for other public restrooms, it is obvious that the rules on breaks would be meaningless. Respondent contended that he could not be liable for taking a break because he was the loader, and not the driver, and therefore obliged to accompany Mr. Dukes to wherever he drove the truck. This argument was likewise unconvincing. Respondent indicated that he was aware of Mr. Dukes’s intention to use a bathroom located 30 minutes away from the route. Neither respondent nor Mr. Dukes testified that respondent voiced any protest about this plan. From this testimony, it is fair to infer that respondent either deliberately chose to or perhaps passively agreed to accompany Mr. Dukes and leave their assigned route, aware that he would be away from the route for at least an hour. Furthermore, Superintendent Erbis’s credible testimony that, at the time of the incident, there was a district-wide work slowdown to protest management policies supports a finding that respondent agreed with Mr. Duke’s plan to leave the route for an hour, knowing that this would likely prevent the route from being completed in support of the protest. Respondent’s actions must therefore be found in violation of Department rules concerning being absent from his assigned route. See Dep’t of Sanitation v. Corley, OATH Index No. 1578/01 (May 31, 2002), aff’d, NYC Civ. Serv. Comm’n Item No. CD03-02-SA (Feb. 5, 2003) (loader found liable for taking unauthorized break and neglecting duties for remaining in parked truck without working for some 15 minutes). In addition, the one-hour break violated the Department rules prohibiting loitering while on duty. Department Rule 3.20 provides that employees “shall not loiter, lounge nor sleep while on-duty.” In past cases, this tribunal has found that short periods of rest from strenuous activity, such as garbage pickup, is not misconduct where the break is minimal. Dep’t of Sanitation v. Williams, OATH Index Nos. 320/01 & 321/01 (May 17, 2001) (workers who spent approximately five minutes speaking with a civilian not found to be loitering); Dep’t of Sanitation v. Olszewski, OATH Index No. 672/96 (Feb. 29, 1996). However, sanitation workers who have been observed not working for time periods from 10 to 18 minutes have been found to have been loitering where, based upon the circumstances, the failure to work appeared to be a deliberate effort to avoid work. Dep’t of Sanitation v. Gregorio, OATH Index Nos. 239/08 & 296/08 (Nov. 16, 2007), aff’d, NYC Civ. Serv. Comm’n Item No. CD 08-32-SA (May 30, 2008)
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(failure to work for 18 minutes found to be loitering); Dep’t of Sanitation v. Griffith, OATH Index No. 308/07 at 17 (Feb. 9, 2007) (failure to work for 10 minutes found to be loitering). The break here of over an hour constituted loitering, in violation of this rule. Mr. Duke and respondent are jointly liable for this violation, as discussed above. This complaint should also be sustained. In sum, I find that three of the five complaints should be sustained and that the other two should be dismissed.
FINDINGS AND CONCLUSIONS
1. Complaint 143897 should be sustained in that, on February 5, 2017, respondent left his assigned work route without permission in violation of Department Code of Conduct section 3.25.
2. Complaint 147073 should be sustained in that, on June 13, 2017, respondent refused to obey an order from Supervisor Thompson to remain with his truck and await the arrival of another truck, in violation of Department Code of Conduct section 3.1
3. Complaint 148088 should be dismissed in that petitioner failed to prove that on July 15, 2017, respondent was loitering.
4. Complaint 148090 should be dismissed in that petitioner failed to prove that on July 15, 2017, respondent was wearing a do-rag.
5. Complaint 148034 should be sustained in that, on July 19, 2017, respondent left his assigned work route without permission and took a break for an hour and 12 minutes in violation of Department Code of Conduct sections 3.20 and 3.25.
RECOMMENDATION After making the above findings, I requested and received a summary of respondent’s personnel history in order to make an appropriate penalty recommendation. Respondent was appointed as a sanitation worker in 2001 and has been disciplined once in 2006 for failure to provide sick leave documentation, receiving a reprimand. His last five evaluations have been generally satisfactory, with a “conditional” for attendance in 2013 involving a sick leave violation. This generally good work record should mitigate the penalty here.
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Counsel for petitioner requested that, for the minor violations charged here, respondent receive a penalty of five days’ suspension per violation. See Dep’t of Sanitation v. Cheung, OATH Index No. 1749/17 (May 16, 2017) (worker suspended for five days for insubordination); Dep’t of Sanitation v. Gregorio, OATH Index Nos. 239/08 & 296/08 (Nov. 16, 2007), aff’d, NYC Civ. Serv. Comm’n Item No. CD08-32-SA (May 30, 2008) (worker suspended for two days for 18 minutes of loitering); Dep’t of Sanitation v. Griffith, OATH Index No. 308/07 (Feb. 8, 2007), modified on penalty, NYC Civ. Serv. Comm’n Item No. CD 07-91-M (Sept. 21, 2007) (worker suspended for five days each for loitering violations of 10 to 20 minutes). Due to the extended length of the one-hour loitering violation for July 19, 2017, it is deserving of a higher penalty. Accordingly, I recommend that, for the violations of February 5 and July 13, 2017, respondent be suspended for five days each and, for the violation of July 19, 2017, respondent be suspended for eight days, for a total of 18 days.
John B. Spooner Administrative Law Judge January 25, 2018
SUBMITTED TO:
KATHRYN GARCIA Commissioner
APPEARANCES:
CARLTON LAING, ESQ. Attorney for Petitioner
KIRSCHNER & COHEN, PC Attorneys for Respondent BY: ALLEN COHEN, ESQ.