Human Resources Admin. v. Seemer OATH Index No. 1651/10 (Feb. 26, 2010)*

Construction project manager guilty of displaying unofficial and unauthorized parking permits and giving Nazi salute to his supervisor. ALJ recommended 30-day suspension.

* related case Seemer v. NYS Div. of Human Rights, 2011 NY Slip Op 32317U (Sup. Ct. N.Y. Co. Aug. 29, 2011). Seemer alleged that the suspension was in retaliation for filing an EEOC complaint. The Division of Human Rights found no probable cause which the NY County Supreme Court affirmed in the Article 78 proceeding. ______

NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of HUMAN RESOURCES ADMINISTRATION Petitioner - against - ANTHONY SEEMER Respondent ______

REPORT AND RECOMMENDATION TYNIA D. RICHARD, Administrative Law Judge This employee disciplinary proceeding was referred by petitioner Human Resources Administration (“HRA”) pursuant to section 75 of the Civil Service Law. Respondent Anthony Seemer is employed by petitioner as a construction project manager. He is charged with insubordination and inappropriate behavior by displaying fraudulent and homemade parking permits in his car window and with making the Nazi salute to his supervisor.1 The hearing was conducted before me on February 5, 2010. Petitioner called as its witness respondent’s supervisor, and respondent testified on his own behalf. Based upon the record of the proceeding, I find that petitioner established the charged misconduct and recommend a penalty of 30 days’ suspension.

1 Charge II, specifications II and III were dismissed at the close of the hearing as no evidence was offered in support of them (Tr. 51). - 2 -

ANALYSIS Respondent has held his position as a construction project manager at HRA since September 2006, prior to which he worked for 13 years at the city’s Department of Housing Preservation and Development (Tr. 53). His responsibilities include enforcement of the citywide contract on city construction sites, overseeing activities on construction sites, and ensuring that design intent and safety regulations are followed (Tr. 14, 54). Use of unauthorized parking permits Respondent is charged with displaying fraudulent and homemade parking permits in the windshield of his car. Mr. Yaker has been employed by HRA in its general support services program (GSS) as the director of the bureau of construction management since February 2007 (Tr. 12-14). He supervises a staff of construction project managers who oversee construction activities and renovation sites. In this capacity, he directly supervises Mr. Seemer who works as a construction project manager. Respondent has permission from the agency to commute to job sites in his personal vehicle. It is not disputed that employees who obtain such permission are responsible for parking legally when parking their personal vehicle at a job-related construction site. City- authorized parking permits are distributed to employees when available, but employees are not assured to receive one (Tr. 16). Mr. Seemer had been issued an authorized city parking permit until January 2008, when the Mayor issued a directive reducing the number of available permits by 20% and Mr. Seemer was required to surrender his (Tr. 17-18; Pet. Ex. 1).2 Several times after surrendering his permit, respondent asked Mr. Yaker for reinstatement of his permit, but was told that new permits were not available (Tr. 19). In conjunction with the Mayor’s directive, HRA sent a memo dated April 18, 2008, to all staff noting that “auxiliary” permits, placards or identifiers, which were not officially authorized by DOT, are “unauthorized and, therefore, not allowed and not to be used” (Pet. Ex. 2). GSS prints signs produced by OSHA which are used to warn workers and visitors to construction sites of potential danger, and Yaker distributes the signs to construction project

2 In a memorandum issued to all agency heads on January 3, 2008, the Mayor announced the implementation of a “comprehensive program to reduce the number and misuse of parking placards by government agencies” (Pet. Ex. 1). The memo advised that the only city agencies authorized to issue parking placards or permits are the Police Department and the Department of Transportation and announced the creation of a new enforcement unit to ensure compliance. - 3 -

managers (Tr. 22-23). These signs are different from city parking permits and do not authorize parking at or near construction sites (Pet. Ex. 2). In January 2009, Mr. Yaker testified, he became aware that managers were using other types of signs as putative parking permits. On January 13, 2009, Yaker saw respondent’s car parked outside of HRA headquarters at 250 Church Street in an area marked “authorized vehicles only”; the car had two signs posted on the windshield (Tr. 24-28). Sometime before January 13, Yaker saw respondent with the same signs in his windshield and spoke to him about them, telling him that they were unauthorized and they would not prevent him from getting parking tickets. Respondent vaguely recalled this conversation (Tr. 67, 70). So, when Yaker saw the signs in respondent’s windshield again on January 13, he brought the matter to the attention of Stan Ruszkowski, the director of fleet administration, who told him to take a photograph of the windshield, which he did. The photograph was produced at the hearing as Petitioner’s Exhibit 3. In it, there are two signs affixed to the windshield: one is a yellow sign that states “CAUTION: CONSTRUCTION AREA AUTHORIZED PERSONNEL ONLY”; the other sign contains the seal of the City of New York along with HRA’s name and addresses of the main office and Brooklyn regional office. The “caution” sign, according to Yaker, is authorized to be used on construction sites (Tr. 29). The second sign was not an official sign at all (Tr. 30). Rather, he believed it was a reproduction of the header placed on the first page of construction drawings. The construction managers maintain a set of drawings for each of their assigned projects (Tr. 31). After Yaker circulated the photograph to his superiors, the Deputy Commissioner directed that respondent be told to surrender the signs (Tr. 31-32). Yaker wrote a memo which he hand delivered to respondent that day instructing him to relinquish the signs to Mr. Ruszkowski by January 14, 2009 (Pet. Ex. 5; Tr. 33-34). When they spoke the following day, respondent told Yaker that what he saw in the photograph was a set of construction drawings he had merely thrown on the dashboard (Tr. 35). Respondent asked him what exactly he wanted him to turn in and Yaker told him whatever he had in his window (Tr. 48-49). To date, the signs have never been turned in (Tr. 34-35). Respondent admitted receiving the January 13 memo that Yaker wrote instructing him to turn in the permits to Stan Ruszkowski by January 14, but he claimed not to understand what the memo referred to and denied that any photo was attached to the memo (Tr. 55-56). He said he went to Yaker’s office the next day to get clarity about the memo and Yaker was not clear about - 4 -

what he should do. He said that Yaker told him nothing about a permit but instead told him to collect some documents and turn them over to Jack Welnicki in personnel (Tr. 56-57). After the conversation, he went to Welnicki’s office and waited for 20 minutes but was never seen (Tr. 57); thus, he failed to get the clarity he sought. Yaker did not recall making any reference to Welnicki during his conversation with respondent and denied that he had consulted Welnicki about this particular matter (Tr. 42). At the hearing, respondent looked at the photograph taken by Yaker and admitted having the signs in the windshield of his car (Tr. 54) but denied that he displayed them for any particular purpose such as parking (Tr. 63-65). He said he had to have them handy as he traveled to construction sites. He denied that the enlarged header containing HRA’s name and address had been reproduced as a laminated sign; he maintained that the photograph taken by Yaker depicted a pocket set of drawings that was reduced to a smaller size for purposes of carrying them to and from job sites that he laid on his dashboard (Tr. 66). He denied that the photograph depicted a laminated sign that was affixed to his windshield with tape, as it clearly appeared in the photograph (Tr. 66). I found respondent’s testimony, which often contradicted simple observation, to lack credibility. I find that the photograph shows two signs affixed to the windshield of respondent’s car. One is a construction sign and the other is a laminated reproduction of an HRA header with name and addresses. I find that the signs were affixed to the windshield, not lying on the dashboard as respondent testified. Further, I find that the only reasonable inference to be drawn from the affixed signs is that the driver and vehicle are on official business and are authorized by HRA to be parked at HRA sites. Respondent had once been authorized to use a parking permit and was disappointed when that authority was withdrawn in 2008 and never reinstated, despite his requests. His attempt to fashion a homemade parking permit by use of these signs is unauthorized and in violation of Departmental mandates intended to implement the Mayor’s directive to reduce the number of outstanding parking permits and, further, it constitutes sanctionable misconduct.3 Nazi salute Respondent is charged with giving a Nazi salute to his supervisor, Mr. Yaker.

3 This charge (charge II, specification I) was conformed to the proof which showed that two signs rather than one were in respondent’s windshield (Tr. 52). - 5 -

Mr. Yaker testified that on October 30, 2009, as staff assembled at headquarters for their biweekly staff meeting, respondent saluted him with the Nazi salute. At the time, respondent was standing by his cubicle approximately 20 to 25 feet away from Mr. Yaker who was at the door to his office (Tr. 37). According to Yaker, at first, respondent waved his hand as if to greet him, and then he raised his hand up and above his head in a Nazi salute toward Mr. Yaker who said he was extremely offended by this (Tr. 38). Respondent immediately denied he meant to make a Nazi salute and insisted it was a Roman salute. Mr. Yaker did not know what a Roman salute was. He was certain, however, that it was a Nazi salute because he knew what that was. He stated that respondent did not merely raise his hand; rather, the gesture was a distinctive salute and lifting of the hand that made Yaker certain of its origin (Tr. 45). He noted having a family history back to World War II. Yaker went to Jack Welnicki, the director of personnel, and asked what he should do. Welnicki said he would handle it. Yaker said that respondent later came to his office and said he had a question; he did not indicate that he wanted to apologize (Tr. 46-47). Yaker told him to leave. Respondent testified that he waved hello to Yaker because he had not seen him all week (Tr. 59-60, 71-72). Suddenly, Yaker asked if he was kidding. He realized that Yaker seemed very upset and tried to approach him. Respondent described his wave as a Roman “hello” wave and noted his Italian ancestry (and Jewish relation by marriage). He said he did not know how to do the Nazi salute and did not know what it entailed besides a raised arm (Tr. 59-60). He said the Roman salute is a gesture that goes across the chest and out (Tr. 72). He said he tried three times to approach Yaker. On the final attempt, he went to his office around 2:30 p.m. and said he would like to talk to him, but Yaker would not see him (Tr. 60-61). Respondent was later removed from the building. While respondent’s conduct appeared not to have been planned, it was intentional. I believe that he knew what he was doing and intended to give a Nazi salute. I did not believe his claim that he was unfamiliar with the Nazi salute and, instead, offered an innocuous “Roman” salute to his supervisor. Even his own admission that he immediately apologized for his conduct suggests that he knew his action was offensive. While he may have some difficulty with impulse control, I was completely unpersuaded that he was so naïve as to be unaware of the meaning of his gesture at the time that he rendered it. Indeed, I found disingenuous respondent’s attempts to - 6 -

appear confused by his supervisor’s directions and reaction to the salute and believed them to be a smokescreen for his willful misconduct.

FINDINGS AND CONCLUSIONS

1. Petitioner established that respondent committed misconduct by affixing unauthorized and home made signs to his windshield, which he used improperly as parking permits.

2. Petitioner established that respondent committed misconduct when he gave a Nazi salute to his supervisor.

RECOMMENDATION

In connection with the above finding and conclusion, I obtained and reviewed an abstract of respondent’s personnel record provided to me by HRA. Respondent was appointed to his position as a construction project manager on September 25, 2006. He has been employed by the city since 1993. He has no prior discipline. Respondent received an overall rating of “marginal” in his 2009 employee evaluation, the only one available for my review. It is notable that his supervisor remarked that his “lack of communication skills” with co-workers, supervisors, and contractors “affects the way his projects are run” and leads to confusion and complaints against him, that he does not take criticism well, and that he needs “constant supervision.” Indeed, the misconduct for which he has been found guilty is consistent with these observations. The use of unauthorized parking permits is a serious offense. As this tribunal has stated, “displaying a false parking permit in the front window shield demonstrates a deliberate effort to defraud.” Dep’t of Buildings v. Emmolo, OATH Index No. 1162/99 (Mar. 16, 1999) (use of false parking permit was basis for revoking expediter’s registration). Disciplinary penalties for charges involving serious fraud or time theft often include termination. See Human Resources Admin. v. Johnson, OATH Index No. 267/07 (Oct. 10, 2006), aff’d, NYC Civ. Serv. Comm’n Item No. CD 07-50-SA (Apr. 30, 2007) (termination for submitting 11 fraudulent medical notes to document sick leave); Human Resources Admin. v. Allen, OATH Index No. 212/06 (June 28, 2006) (termination for submitting a false affidavit and other false statements about using City van for official purposes, misusing van, and sexually harassing co-workers); Human Resources - 7 -

Admin. v. Castro-Sanabria, OATH Index No. 888/96 (Apr. 11, 1996) (termination recommended for welfare fraud). For lesser offenses, the penalties may be less severe. See, e.g., Dep’t of Correction v. Anavitarte, OATH Index No. 921/04 (Apr. 22, 2004) (5-day suspension for corrections officer who used his carpool mate’s gate access pass). For respondent’s use of unauthorized and homemade parking permits, petitioner has requested a penalty of 30 days’ suspension (Tr. 83). Although respondent’s conduct was deceptive, deliberate and insubordinate, its impact was limited in scope. I therefore recommend a 10-day penalty for it. Displaying a Nazi salute is clearly offensive and inappropriate behavior for any workplace. Giving such a salute to one’s supervisor is disrespectful and discriminatory behavior that should not be taken lightly. Penalties for discriminatory behavior may range from a moderate suspension to termination depending upon the severity, with the penalty increasing in relation to the type of event or number of instances of discriminatory conduct. Compare Human Resources Admin. v. Grant, OATH Index No. 334/10 (Sept. 24, 2009) (20-day suspension for unprovoked comment to a co-worker who is originally from Nigeria “you need to . . . go back to your country” imposed on employee with prior history of rude and discourteous remarks to co- workers) with Dep’t of Parks & Recreation v. Mullusky, OATH Index No. 2041/09 (May 26, 2009) (termination for parks worker who participated in a Nazi skit in front of a Jewish co- worker, remarked that he would throw the co-worker and his mother into an oven, displayed swastikas on his locker, and made false statements). For the misconduct proven here, petitioner seeks a penalty of termination, which I find excessive. The events in Mullusky, where termination was imposed, were both more severe and more numerous (occurring over a period of time) than the single instance of misconduct proven here. Mr. Yaker testified that this had never happened before (Tr. 38); thus, the conduct appears to be an isolated incident. Nevertheless, respondent earns no mitigation as it was not done in the heat of anger and was without provocation. For the misconduct of directing a Nazi salute toward his supervisor, I recommend a 20-day suspension.

Tynia D. Richard Administrative Law Judge

- 8 -

February 26, 2010

SUBMITTED TO:

ROBERT DOAR Commissioner

APPEARANCES:

HILIT KROMAN, ESQ. Attorney for Petitioner

BROWN & GROPPER, LLP Attorneys for Respondent BY: JAMES A. BROWN, ESQ.