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Dep't of Sanitation V 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 A sixth charge was withdrawn at the commencement of trial.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- - 3 - 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). - 4 - 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.
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