Dep't of v. Beecher OATH Index No. 569/04 (Dec. 16, 2004), aff'd, NYC Civ. Serv. Comm'n Item No. CD06-06-SA (Jan. 9, 2006)

Petitioner brought employee disciplinary proceeding alleging that respondent, a sanitation worker, violated numerous department rules on various occasions, including disobeying orders, using offensive language, tampering with department property and threatening physical violence. ALJ found that petitioner sustained three of the eight charged complaints and recommended an aggregate penalty of thirty-seven suspension days. ______

NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of DEPARTMENT OF SANITATION Petitioner - against - KARL BEECHER Respondent ______

REPORT AND RECOMMENDATION

RAYMOND E. KRAMER, Administrative Law Judge This is an employee disciplinary proceeding referred by the petitioner, the Department of Sanitation (“DOS” or “Department”), pursuant to section 16-106 of the Administrative Code. Respondent Karl Beecher, a sanitation worker (“SW”) assigned to the Bronx East 10 garage, is charged in eight complaints with fourteen violations of department rules1 arising from eight separate incidents (ALJ Ex. 1; Complaint Nos. 98321, 98322, 98326, 98327, 98334, 98335, 74891, 98340). A hearing was conducted before me on December 17, 2003; March 17, 2004; March 23, 2004; and May 5, 2004. Petitioner presented the testimony of Franklin Franco, Joseph Brennan, Andrew Lucchini, Joseph Iocovello, Joseph Salerno, Michael Rubin, and Thomas Lynch. Respondent testified on his own behalf, and presented the testimony of Robert Vecchiarello, Joseph Terminello, Thomas Holihan, Michael Bonfiglio, James Minore, and Kevin Holmes.

1 NYC DEP’T OF SANITATION CODE OF CONDUCT, General Order No. 2002-06 (Mar. 1, 2002). -2-

As set forth below, I find that petitioner proved most of the charges by a preponderance of the credible evidence and recommend that respondent be suspended for an aggregate of thirty-seven days.

ANALYSIS The Department filed eight complaints against respondent, alleging various violations of department rules and orders. At the hearing, the Department, without objection by respondent was granted permission to add eight violations of Rule 3.2 ,2 one for each of the pre-existing charges (Tr. 10). The charges arose from eight separate incidents, and each will be addressed separately. For all of the incidents, respondent was assigned to the Bronx East 10 garage and was working on the 4:00 p.m. to 12:00 a.m. shift.

I. Complaint 98321 The Department alleges that respondent violated Department Rule 3.1,3 and Rule 3.2 when, on June 18, 2003, he took a department truck without permission and in direct contradiction of a supervisor’s order. It is uncontested that on June 18, 2003, respondent was assigned truck CW-089, but took truck CN-456, which had been assigned to sanitation worker Franklin Franco (Tr. 451). Sanitation worker Franco testified that when he went to his assigned truck on June 18, 2003, respondent was sitting inside, with the ignition running. Respondent had already put his equipment into the truck, including his gear, his bag, his radio, and his gloves. Franco told respondent that he was assigned to that truck and had the DS 350 assignment card indicating as much, but respondent, who did not have a DS 350 card with him, disputed that claim, and, in any event, refused to move his things.

2 “Employees shall not conduct themselves in a manner prejudicial to good order and discipline, or which tends to discredit the City or the Department.”

3 “Employees must obey all Rules, Regulations, Orders, messages, and direct orders given them by their superiors.” -3-

According to Franco, he, followed by respondent, then went to see the night district supervisor, Joseph Brennan, to advise him of the problem. After Franco explained the situation, Supervisor Brennan directed respondent to move his things to his assigned truck. Respondent, in an exchange with Supervisor Brennan that sanitation worker Franco could only vaguely recall, tried to get the supervisor to change the DS 350 cards to assign respondent truck CN-456, the truck on which respondent had already stored his things. Sanitation worker Franco, anxious to start his shift, then offered to take any other truck and Supervisor Brennan assigned him to another truck and Franco departed (Tr. 16-17). Franco was unsure how things were left between Brennan and respondent. Supervisor Brennan testified that he originally assigned respondent and his partner that night, sanitation worker Holihan, a truck whose number he could no longer clearly recall. Brennan initially gave the DS 350 card with the assigned truck noted on it to Holihan, since Holihan was the scheduled driver. A few minutes later, Holihan returned to Brennan's office saying that the assigned truck was already full of garbage. Brennan responded that it was supposed to be empty and without checking, directed Holihan to take the truck he and respondent were assigned. Holihan then left (Tr. 42-44). A few minutes later, respondent called Brennan on his cell phone to report that the truck he and Holihan had been assigned was already loaded, and then respondent appeared at Brennan's office to report the same information (Tr. 48-49). Brennan vaguely recalled telling respondent, as he told Holihan, that the truck was empty and to “take the truck that I gave you” (Tr. 37). Respondent then left the office. Moments later, Franco entered Brennan's office and reported that respondent had put his things in Franco's assigned truck and was refusing to take them out. Supervisor Brennan directed Franco to tell respondent that he had to take his things out of Franco's assigned truck, but Franco told Brennan that he did not want any arguments and asked to be assigned a different truck. Brennan then assigned him another empty truck and amended Franco's DS 350 card, after which Franco departed on his route (Tr. 34, 37, 42-45). Thereafter, Brennan left his office and encountered respondent still in the garage and told him that he should not have taken the truck that had been assigned to Franco. When respondent tried to -4- explain that his and Holihan's originally assigned truck was loaded, Brennan let the situation stand and just walked away (Tr. 47, 50, 67). He conceded at trial, however, that it was appropriate for a crew to check their assigned truck before going on a route and reporting to a supervisor if it happened to already be loaded with garbage (Tr. 51). Later that morning, Brennan checked the truck originally assigned to respondent by banging on the outside panels, and to him it sounded as if the truck was empty (Tr. 40-41, 54). He did nothing else to confirm whether the truck was loaded or empty (Tr. 57). As for respondent, he testified that on June 18, 2003, he arrived at the garage and as he and others often did, he went to a truck that was ready for easy exit. He explained that sometimes trucks are blocked by others and are therefore delayed in getting out, so he would typically find one that was free. In this instance, he found truck CN-456 and called the garage supervisor, Supervisor Lucchini, to report that truck CN-456 was ready to go and that he and his partner that night, sanitation worker Holihan, were going to take it. He asked Lucchini to let Supervisor Brennan know, and Lucchini said "no problem." Respondent then stowed his gear inside the truck (Tr. 435). A few minutes later, Holihan, who was the assigned driver, appeared with their DS 350 card which indicated “a different truck,” truck CW-089. Respondent suggested to Holihan that he go back and tell Brennan that they were ready to leave on truck CN-456 and to ask him to change their assigned truck on the DS 350 card. Franco appeared while Holihan was speaking to Brennan, and informed respondent that CN-456 was his assigned truck. Holihan then returned a few minutes later to report that Brennan had refused to make the switch and instead told Holihan that they were to take the truck originally assigned (Tr. 436, 441, 446). Respondent then went to speak to Supervisor Brennan himself, to explain that he had already placed his stuff in CN-456 and that it was ready to go, and to request that Brennan change the assigned trucks and let them take CN-456. Brennan, however, refused and told respondent to take “the assigned truck” (Tr. 436-37). Respondent then went back out into the yard and over to the truck he was originally assigned, truck CW-089, with the intention of taking that truck, but found that it was full, a fact of which sanitation worker Franco also advised him. Holihan went to report to Brennan that CW-089 was already loaded and respondent also called Brennan on the phone to tell him as much. According to -5- respondent, it would have been improper for him to take an already full truck out at the beginning of his collection route. Supervisor Brennan, who seemed to think respondent was "playing around," told respondent to "standby" and a few minutes later, he came out into the yard and banged on the truck himself to check. Realizing that the truck was indeed loaded, Brennan told Holihan and respondent in a frustrated manner “all right, well take it; just get out of here,” referring, as respondent clearly understood it, to truck CN-456, the truck in which respondent had already placed his stuff and which was ready to go (Tr. 435-436, 443-44). Respondent and Holihan thus took that truck on their route that day. Supervisor Brennan, however, never changed the truck number on their DS 350 card. Thomas Holihan, Jr., testified for respondent that on the night in question, as he waited to get their DS 350 card for that evening, respondent went out into the yard to check the truck. When Holihan came out into the yard a few minutes later, respondent told him that the truck they were assigned was already full. Holihan slammed his hand against the truck to check himself, and it indeed sounded as if the truck was already loaded. Holihan confirmed that the sanitation workers do not take out trucks for collection that are already loaded (Tr. 420-21). Sanitation worker Holihan then returned to Supervisor Brennan's office to report that their assigned truck was loaded and that he and respondent needed another truck. Holihan's memory of the incident was somewhat vague, but he recalled that Brennan at first disagreed and indicated that the truck was supposed to be empty and they should take the truck indicated on the DS 350 card. Holihan then went out to report as much to respondent, who, in the interim, had stowed his gear on another truck, CN-456, which was empty and ready to go. Holihan went back into Brennan's office to tell the supervisor that he and respondent were taking CN-456, which was ready to go, and to ask him to change that truck number on their card to indicate as much. Brennan, however, did not want to make a new card or change the old one and only responded to Holihan to "get the hell out of here" and to just "go and pick up the garbage" (Tr. 425-26). He and respondent then went out on their route in truck CN-456. As noted, there was no dispute that respondent and his partner did not take their originally assigned truck out on their collection route on the night of June 18, 2003, and instead, took a truck that had been assigned to sanitation worker Franco and his partner. At issue, is whether respondent -6-

disobeyed a direct order by Supervisor Brennan in the process. Petitioner's proof was insufficient to establish as much. For one thing, the testimony of all of the witnesses, but particularly Supervisor Brennan, was based on their admittedly hazy memories of the incident many months after the fact. That is particularly significant here, where the primary question was exactly what was communicated to respondent when, and how clearly. The witness who provided the most detail and who appeared to have the clearest recollection of the incident was respondent, for whom the incident was obviously the most significant. The Department must establish three elements to prove that respondent intentionally disobeyed an order: 1) that an order was communicated to respondent which he received; 2) that the content of the order was clear and unambiguous; and 3) that respondent wilfully refused to obey the order. Dep't of Environmental Protection v. Schnell, OATH Index No. 2262/00 (Oct. 25, 2000); Dep't of Correction v. Hipp, OATH Index No. 337/00 (Dec. 3, 1999). The proof as to all three elements in this instance was lacking. Supervisor Brennan’s testimony as to exactly what he communicated to respondent and when, was confusing and mixed up in its chronology and thus was less than convincing. His periodically "refreshed" recollection must further be weighed in the context of his admittedly "strained" relationship with respondent. None of the various exchanges among Mr. Brennan, respondent, Mr. Holihan and Mr. Franco were contemporaneously recorded or documented, and indeed, the only document prepared with respect to the alleged insubordination was the complaint Mr. Brennan prepared two days later, with a summary statement of the incident. Mr. Brennan could no longer even recall the truck number that he originally assigned respondent, recalling it as possibly CW-095, and petitioner was unable to produce documentation to clarify the matter, although it seemed clear from respondent's and others' testimony that it was truck CW-089. The original documents which would clarify this information were no longer available. Respondent gave what everyone seemed to agree was a sound reason for not taking the truck to which he was originally assigned. There was no dispute that both he and Holihan checked truck CW-089 at the start of the shift and reported to Brennan that it was loaded, as Brennan acknowledged. There were no documents produced, such as the carting book, original DS 350 card -7- or dump receipts, that would show differently. It seems further clear that while Brennan was trying to resolve his doubts on that fact, he had already assigned Franco another truck and the latter had departed the garage. Indeed, while Franco reported to Brennan that respondent had stored his things in Franco's assigned truck, Franco readily agreed to take another truck to avoid a problem and testified that Brennan immediately assigned him another one. Thus, Franco was gone before it was even resolved as to which truck respondent was taking. That undisputed fact contradicts petitioner's claim, as stated in the charge, that Brennan gave a direct order to respondent not to take CN-456 because it was already assigned to Franco. Rather, what seems abundantly clear in weighing all of the accounts, is that respondent, at the start of his tour, randomly put his things in a truck that was empty and ready to go and when he learned that it had been assigned to another, tried along with his partner to get Supervisor Brennan to authorize them to take that truck. Respondent claimed without contradiction that he notified garage supervisor Lucchini at the outset of the shift, that he had selected a truck that was ready to go and that the latter gave his approval. Supervisor Lucchini, who testified in this proceeding, was not asked about this incident. Petitioner did not prove insubordination by the mere fact that respondent initially placed his things in a truck other than the one he was originally assigned, especially where Holihan had not yet appeared with the DS 350 card from Brennan. Nor was it misconduct, once Holihan appeared and advised respondent that they were assigned to another truck, for either of them to ask their supervisor to reconsider and let them use a truck they were ready to depart in. At some point, the testimony indicates that Mr. Brennan simply told respondent and Holihan to just "take the truck" and to leave and pick up the garbage, without being specific as to which truck. Holihan and respondent took his ambiguous comments to mean that they should take the truck that they were ready to take, CN-456. Thus, it was not made clear whether Brennan re-assigned an empty truck other than CN-456 to respondent or whether respondent received any clear, direct order to take any particular truck that day.4 Although Supervisor Brennan was apparently reluctant to give respondent and Holihan another truck, it seems evident that he ultimately acquiesced and allowed respondent and Holihan

4 Notably, the Department submitted no documentary evidence – such as the DS original 350 card – indicating respondent’s original or revised truck assignment for that day. -8- to take truck CN-456, if only because he, like Franco earlier, wanted to avoid the frustration of arguing with respondent. While respondent's behavior may have been annoying to his supervisor and co-worker, I do not find that he committed sanctionable misconduct. Moreover, the fact that Mr. Brennan filed a complaint against respondent only, when Mr. Holihan was the assigned driver and engaged in the very same conduct, further supported a conclusion that the complaint was motivated more by personal annoyance at respondent than a belief that respondent alone violated a direct order. I therefore find that the Department did not sustain charge 98321 by a preponderance of the credible evidence.

II. Complaint 98322 The Department alleges that respondent violated Rules 3.1, 3.2, and 3.22,5 when, on June 20, 2003, respondent entered the district supervisor's office and "grabbed" an official record book without permission and then, after being ordered to exit the office, blocked his supervisor's path and threatened him. The testimony showed that just before the start of his shift on June 20, 2003, respondent entered Supervisor Brennan’s office and inquired as to his assignment for the evening. Supervisor Brennan told respondent that he was on a full truck route. Respondent asked, “what else?” and Brennan repeated that respondent was on a full truck recycle. At that, respondent picked up the “material out” book, which is a book basically for use by the district superintendent that includes information such as the routes for the day, whether they were cleaned, and various instructions to be relayed to the men. Brennan told respondent not to touch the book and took it away from respondent. Respondent never indicated why he wanted to see the book and Brennan never asked. A brief verbal exchange ensued and Brennan told respondent to leave the office, which the latter did. A few moments later, supervisor Brennan needed to use the and exited his office to go to the locker room. As he stepped out into the adjacent larger outer office area, where several sanitation workers were lounging about waiting for their assignments, he observed

5 Rule 3.22 provides in relevant part, “Employees shall be courteous and act in a professional manner at all times. Employees may not threaten or use offensive, abusive, obscene or sexual language, ethnic slurs, threats or gestures toward a superior . . . or fellow employee.” -9-

respondent standing a couple of feet to his left and at a diagonal to him. As Brennan started a few steps forward, respondent angled over in front of him and blocked his path (Tr. 74-75, 91). Brennan stopped so as not to run into respondent, at which point respondent said something that Brennan could no longer recall. Brennan told him to just get out of the office area and respondent replied "yeah, you know better," and added "after work, I'll fly that ," street slang that Brennan understood to mean that respondent was threatening to physically assault him. Brennan again directed respondent to leave the office area and respondent wanted to know why only he and none of the other sanitation workers had to leave. Brennan replied that the others were not causing trouble. Brennan then proceeded to step around respondent and over the extended legs of sanitation worker Salerno, who was leaning against a desk only a few feet to Brennan's right. Brennan headed for the exit door leading toward the locker room and respondent followed behind him, "mouthing off," saying things like, “we’ll see after work. We’ll see who gets his ass kicked,” and he called Brennan a “fat bastard” (Tr. 75-76, 92-93). As he got to the exit door, Brennan turned around to face respondent and warned him that if respondent thought he was going to do something similar to what he had done in a previous incident in January 2004, where respondent allegedly cut Brennan off in his car after work and followed Brennan home, respondent “had another thing [sic] coming” (Tr. 96). At that, Brennan exited the office area. Other sanitation workers were present during this incident, and their testimony was largely consistent with Brennan’s (Tr. 86). Sanitation worker Salerno testified that he saw respondent enter Brennan's office initially and heard respondent ask "what do we got tonight?" (Tr. 280). A conversation ensued and Salerno then heard Brennan tell respondent in a raised voice to leave the office (Tr. 274-275). Respondent came out of Brennan's office into the office area where Salerno and others were present, complaining in general as to why he had to leave when there were other workers in the area who did not have to leave. A few moments later, supervisor Brennan came out of his office into the outer office area, at which point, respondent took one step to his side, into Brennan's path, and asked the latter “are you stepping to me?” (Tr. 277). Brennan told respondent to leave the office area and respondent said “I’ll fly that head” (Tr. 277). Brennan again told respondent to leave the office and headed toward the exit leading to the locker room. In the meantime, Salerno intervened and escorted respondent out of the room. As he did, respondent -10- continued to yell at the departing Brennan, calling him a “fat bastard” and saying things like “I’ll see you after work” and “I’m going to kick your ass” (Tr. 277-278, 285). Sanitation worker Salerno acknowledged that he has had various workplace conflicts with respondent in the past and that they have engaged in screaming matches and threatened each other with bodily harm (Tr. 287). Salerno once wrote a complaint to the district superintendent alleging that respondent had threatened to shoot his co-workers. Subsequent to this incident, Salerno also drafted and signed a petition to have respondent removed from the district. Three quarters of the district workers (forty-five out of sixty) signed the petition (Tr. 288-289). Still, Salerno insisted that he was "fine" with respondent and that respondent was "a fine worker" behind the truck (Tr. 290). Sanitation worker Michael Rubin gave a slightly different version of events, claiming, in contrast to supervisor Brennan, that he was in Brennan's office going over the work assignments with Brennan when respondent first entered and wanted to know what truck he was being assigned. Brennan twice asked respondent to leave the office, but respondent persisted in wanting to know his assigned truck so that he could stow his gear inside (Tr. 313-315). Respondent finally exited the office, but from the doorway asserted that he was not going to leave the area unless Brennan "threw out" all of the other workers hanging around waiting for their assignments. A few minutes later, Brennan left the office to go to the locker room and Rubin followed behind him out into the outer office. Rubin confirmed that as Brennan stepped into the outer office, respondent stepped in front of him and asked the latter "you stepping to me now?" (Tr. 317). In less than polite terms, Brennan told him to get out of the office and respondent got "heated," replying,"we can take this up after work” and “I’ll fly your head” (Tr. 317, 329-330). At that, sanitation worker Salerno moved in front of respondent and tried to lead him out of the area, why Rubin, stepped in front of Brennan and coaxed him into leaving the area and then went with him to the locker room. A short while later, respondent approached Rubin in the yard and asked the latter if he had heard Brennan threaten respondent, and Rubin replied that he had not (Tr. 321). Sanitation worker Thomas Holihan, who was in the outer office at the time of the incident, testified that his attention was first drawn to Brennan and respondent because he heard them yelling at one another just outside Brennan's office, with Brennan cursing. Holihan recalled Brennan saying something like "it's not going to happen again," and the argument escalated (Tr. 370). Holihan was -11- unaware as to what started it. As insults and comments were traded, sanitation workers Salerno and Rubin separated the two men. Holihan heard Brennan say at some point, “I’ll take care of you,” and he recalled respondent screaming “come on fatty, let's go,” as respondent was pushed out one of the doors (Tr. 372-373). Sanitation worker Kevin Holmes’s testimony tracked his co-workers' initially, in that he recalled respondent entering Mr. Brennan's office and an argument between the two men ensuing, Brennan telling respondent to get out, and respondent then coming back into the outer office where several workers including Mr. Holmes were waiting for their assignments. However, Holmes recalled that when Mr. Brennan emerged a few minutes later, he told everyone to leave the office and respondent challenged him, saying something to the effect of "I’ll do what I was going to do last time” and “I’m going to fly that head” (Tr. 404-405, 416). Both men moved toward one another, as Holmes recalled. Brennan responded "you aren't going to do what you did to me before, because I will definitely kill you" (Tr. 395). At that, tempers flared and respondent replied that "you aren't going to do nothing to me. You couldn't do nothing to me before, you aren't going to do nothing to me again" (Tr. 396). Things quickly got chaotic and the two men had to be separated. In the process, Holmes recalled hearing respondent call Brennan "chubby" and "fat" (Tr. 396). However, Holmes conceded that his recollection of the incident was not 100% clear. Respondent’s testimony also differed from his co-workers’. Respondent testified that on June 20, 2003, he arrived at the garage and entered the district supervisor's office, where Brennan, Salerno and Rubin were (Tr. 452). He went to look at the material out book, as workers commonly do, to see what materials were supposed to be picked up, and Brennan told him not to touch the book and slammed his hand down on top of it to prevent respondent from opening it (Tr. 453). Respondent asked if it was just him who was prohibited from looking at the book, and Brennan just repeated that he was not to look at it. Respondent asked what his assignment was for the night and Brennan told him. Respondent then walked out of the office, but returned to ask whether the assigned truck was loaded, referencing the events alleged in Complaint 98321. Brennan became "offended" and told respondent to leave the office. Respondent asked again if Brennan meant everybody or just him. Brennan replied that it was just him and told him to leave again. Respondent left, but then stuck his -12-

head back in to ask why just him. At that, Brennan got up and walked angrily toward respondent. Respondent was standing in the area Brennan had to pass to get to the locker room (Tr. 457-459). Respondent said “don’t get so close”and Brennan said “if you think you’re going to do what you did that night, I’ll kill you.” He said “I’ll kill you” twice, in a loud voice (Tr. 456). According to respondent, Brennan was furious, and said something else in an aggressive manner, before the other sanitation workers got in between them (Tr. 454). Respondent claimed that he simply stood there as Brennan left and at no point acted aggressively toward Brennan. Respondent denied that he said anything like "are you stepping to me" or "I'll fly that head," claiming that he had never heard and/or used that type of slang before (Tr. 455). Although recounted in the narrative of the complaint, respondent's initial entry into Supervisor Brennan's office and his attempt to look in the material out book, was not misconduct. When Brennan took the book away from him and told him that he was not to look in it, respondent accepted that instruction, although he questioned why he was being singled out. Likewise, when Supervisor Brennan replied by ordering respondent out of the office, there was no dispute that respondent complied and went into the outer office, although again there was some indication that he questioned Brennan as to why he was being singled out as opposed to sanitation worker Rubin, for example, who claimed, along with respondent and in contrast to Brennan, that he was in Brennan's office at the time. There was no clear indication that Brennan meant for respondent to leave the outer office area at that time as well, and if he did, that was not clearly communicated. Thus, at issue was what occurred in the outer office moments later, when Brennan entered that area en route to the locker room. The bulk of the testimony indicated that respondent instigated an intense verbal altercation with Supervisor Brennan, in which he stepped toward Brennan, blocked his path, physically threatened him and thereafter taunted him about his physical appearance. The testimony also indicated that respondent disobeyed repeated orders by Supervisor Brennan during this confrontation to leave the outer office area. Despite their prior run-ins, I found Supervisor Brennan, as corroborated in large part by sanitation workers Salerno, Rubin, and respondent's own witness Holmes, credible in claiming that respondent moved over a step or two as Brennan entered the office and threatened to "fly his head" after work. Respondent had the stronger motive in the -13- circumstances to be angry enough to initiate such confrontation and demonstrated a personality type, in contrast to Supervisor Brennan, which would not be deterred by the presence of others from engaging in such conduct. The rather unique expression of "flying one's head" did not sound like something Brennan and the corroborating witnesses would have fabricated or colluded upon, and was unusual enough to be memorable. Respondent's demure denial that he knew or would ever use such language was not convincing. All of the witnesses other than respondent and Rubin, and including respondent's two witnesses Holmes and Holihan, agreed that as things heated up, respondent also taunted Brennan about his physical appearance. Brennan and Salerno credibly recalled respondent trying to follow Brennan out of the room and threatening to "kick his ass." Although three of the sanitation workers who testified also signed a petition to remove respondent from their workplace (Salerno, Rubin and Holihan), they were apparently hardly alone in that regard and were candid about their feelings about respondent when asked. I nevertheless found their testimony credible and noted sufficient minor variations in their versions of events, as well as negative testimony about Brennan, to convince me that they had not colluded against respondent and in blind support of Brennan. Respondent's attempt to portray Brennan as the verbal and physical aggressor and himself as the unruffled and innocent victim in this incident, was not at all persuasive. Superintendent Michael Bonfiglio, who subsequently interviewed respondent about the incident, testified that respondent never reported to him that Brennan had cursed at or threatened him during the incident and that he would have noted as much if respondent had (Tr. 381). While I was not convinced therefore that Brennan threatened to kill respondent, as respondent and Holmes maintained, it seems likely that Brennan responded, as just about everyone agreed he did, in an angry fashion and referenced his prior run in with respondent and the fact that he would not let respondent repeat it. I have no doubt, however, that any angry comments that Brennan may have made in the outer office at that time were responsive only, and that this was an incident initiated by respondent's verbally and physically threatening conduct. I likewise have no doubt that Brennan repeatedly ordered respondent to leave the office area during their confrontation and that respondent was too busy responding to Brennan to comply and had to be escorted out of the area by sanitation worker Salerno. -14-

In sum, I find that respondent violated Department Rule 3.1 for failing to cease his confrontation with Supervisor Brennan and leave the outer office area as directed, and Rules 3.2 and 3.22 for attempting to physically intimidate his supervisor by blocking the latter's path and for using offensive and demeaning language toward him and threatening him.

III. Complaint 98326 The Department alleges that respondent violated Rule 3.14,6 Rule 3.15,7 Rule 3.22, and Rule 3.2 when, on June 28, 2003, respondent made derogatory remarks toward fellow sanitation workers. Respondent admitted that on June 28, 2003, he called SW Salerno a “punk” and a “baby,” and said the rest of the sanitation workers “are not acting like men” (Tr. 467, 469-470). Sanitation worker Salerno testified that, after he and respondent got into an argument about what radio station they were going to listen to in the truck that night, respondent called him “a punk,” “a bitch,” and “a pussy,” asserted that he was “not a real man” and taunted him for reporting the matter to his supervisors (Tr. 298-299). Supervisors Brennan and Lucchini corroborated Salerno’s testimony. Brennan testified that on June 28, 2003, Salerno complained to him that he and respondent had just had an argument, that he could not work with respondent and that respondent had called Salerno a “punk” and a “baby” and called the men in the garage “bitches” (Tr. 118). Brennan spoke to respondent about what had occurred and respondent acknowledged calling Salerno names. Respondent was then brought into the office with Salerno, Lucchini and Brennan in an attempt to resolve the dispute, during which discussion respondent told Lucchini to give him a “real man” to work with and referred to the guys in the garage as “punks” and "pussies" (Tr. 119). Lucchini testified that Salerno and respondent came into his office shortly after the start of the shift and reported an argument about what radio station they were going to listen to and complained that they could not work with one another. Salerno told Lucchini that respondent called

6 Rule 3.14 provides, in relevant part, “Employees shall treat all other persons fairly and with respect.”

7 Rule 3.15 provides, in relevant part, “Sexual harassment of any employee or member of the public is prohibited.” -15- him names, including “a punk” and "a pussy" (Tr. 234). Lucchini spoke to respondent, who denied calling Salerno a "punk" or "pussy" but repeated to Lucchini that no one in the garage could work with him and that they were "punks" and "sissies” (Tr. 234, 237). Ultimately, respondent was assigned a different partner for the night. By his own admission, respondent called his co-worker a “punk” and a “baby,” and made derogatory remarks about Salerno’s – and other sanitation workers’ – manhood. It was less clear that respondent called his co-worker a "bitch" or "pussy;" the direct testimony to that effect came only from Salerno, who, as noted above, harbors considerable bias against respondent. Brennan and Lucchini, however, in the process of speaking to both men, heard respondent demean Salerno's manhood by asking for a "real man" to work with and refer to his colleagues in the garage generally as "punks," "pussies" and "sissies." Given the petty nature of the dispute and the fact that Supervisors Brennan and Lucchini also referred to the disputants as "babies," I did not find respondent's use of that particular word to express his opinion of Salerno's conduct, actionable. However, calling Salerno or his other co- workers, “punks,” "pussies" "sissies" and demeaning their manhood was clearly disrespectful, offensive, and unprofessional. The fact that Salerno was not given a complaint as well for his subsequent refusal to work with respondent that day, did not excuse respondent's conduct and was not a defense to these charges. I therefore find that respondent violated Rules 3.14, 3.2 and 3.22 for his use of abusive and offensive language toward sanitation worker Salerno and in reference to his co-workers. However, although respondent made comments demeaning his co-worker’s manhood, I do not find that simple, isolated event constitutes sexual harassment in violation of Rule 3.15, as was charged. Compare with Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864 (9th Cir. 2001) (finding sexual harassment in violation of federal law where male plaintiff was subjected to constant verbal abuse from co-workers for effeminate mannerisms). -16-

IV. Complaint 98327 The Department alleges that respondent violated Rule 3.19,8 Rule 3.6,9 and Rule 3.2 when, on June 28, 2003, respondent exited his vehicle, walked towards a supervisor seated in another vehicle, and took pictures of the supervisor. Supervisor Brennan testified that on June 28, 2003, he went to check on respondent’s progress while respondent was on a route (Tr. 142). While Brennan was stopped behind the , respondent, who was the driver, got out and took a picture of Brennan (Tr. 145). Respondent then got back into the truck. Respondent drove a few houses up, then got out again and took another picture of Brennan. Then, again after a few more houses, respondent got out and took yet another picture. Finally, after the truck went farther up the block, respondent got out and walked up to Brennan’s car. Respondent asked if he and his partner could go to the bathroom; Brennan told them to go ahead. Respondent drove to Pelham Bay Station, where his partner went to use the restroom. At that point, respondent took a fourth picture of Brennan. Respondent got back in the truck and returned to the route (Tr. 146-149). Brennan testified that respondent and his partner failed to complete their route that night, but that only respondent was issued a complaint because respondent was taking pictures. Respondent acknowledged taking four pictures of Brennan sitting in his vehicle, while the latter followed behind respondent and his partner. Respondent stated that he took the pictures out of concern that Brennan was just looking for an excuse to give him a complaint and to show that Brennan was following him. Respondent claimed that the route was not completed that night because at 10:00 p.m., Brennan told him and his partner to return to the garage rather than finish the route (Tr. 474-75). I find that although respondent indeed took photographs of his supervisor, he did not violate Rules 3.19 and 3.6, which were cited by petitioner and which refer to the performance of one's duties. On the night of this incident, respondent was the driver, and while the loader puts garbage in the truck, the driver usually just sits. It was at those points that respondent jumped out and took

8 “Employees shall not loiter, lounge, nor sleep [sic] while on duty.”

9 “Employees shall promptly and properly perform their assigned duties, and complete all assigned tasks.” -17- the photos (Tr. 478). Taking the photos took only a few seconds, which can hardly be construed as loitering, sleeping or lounging and was hardly the reason that he did not complete his route. Furthermore, respondent received permission to drive to a bathroom, a necessary and proper stop, which was no more than ten minutes off his route, and he was instructed to end his route early (Tr. 156-159). Under these circumstances, I cannot find that respondent did not promptly and properly perform his assigned duty. As for the more general prohibition against conducting oneself in a manner prejudicial to good order and discipline set forth in Rule 3.2, I did not find a violation of that rule proved either. As annoying and a little bizarre as such conduct must have appeared to Mr. Brennan, it had no apparent disruptive effect on the workplace nor did it appear to have been witnessed by anyone other than those two men. Nor did Mr. Brennan apparently feel compelled to issue an order to respondent to desist or take steps to address the conduct at the time. While engaging in such conduct in a different context or manner might make it actionable, that was not so here. This complaint should be dismissed.

V. Complaint 98334 The Department alleges that respondent violated Rules 3.1 and 3.2 on July 18, 2003, by disobeying a supervisor’s order to take a piece of bulk garbage from the curb and put it in his truck. On July 18, 2003, respondent was assigned a collection route, and Supervisor Brennan went to check on his progress (Tr. 169-170). At about 9:15 p.m., Brennan saw respondent, who was the loader, pass a piece of bulk at curbside – a handicap seat – without putting it into the truck. Brennan’s opinion was that the item was not recycling and thus should have been collected by respondent. Brennan, who had been following in his vehicle behind the truck, opened the window of his car and called out to respondent to put the item into the truck (Tr. 171-172). Brennan estimated that he was about eight feet from respondent at the time and behind the truck. Brennan testified that respondent ignored him and continued walking. After respondent, the truck and Brennan all moved up two more houses, Brennan again called out to respondent to put the item in the truck. This time respondent looked at him but kept walking. At that point, however, respondent’s partner exited the truck and put the item into the hopper (Tr. 173). -18-

Respondent testified that the was 90% aluminum and in his opinion recyclable, and thus he did not put it in the truck. He put all the other garbage at that house into the truck, however, and proceeded to the next stop. As he started on the garbage at the next house, he looked up to see why his partner had not yet pulled the truck up, and noticed Brennan in his vehicle behind the truck, apparently saying something and pointing to the toilet seat. Respondent claimed that he never heard Brennan order him to pick up the toilet seat (Tr. 479). When respondent saw Brennan pointing at it, he figured that Brennan wanted him to pick it up and he started back toward it, but his partner got to it first and picked it up (Tr. 479-480). I find respondent’s unrebutted defense plausible. Given the noise accompanying a sanitation truck’s operations and the fact that Brennan spoke to respondent from inside his own vehicle behind the truck, and from at least eight feet away (or more if respondent is credited), it does not seem unusual that respondent may not have heard what his supervisor said. Respondent's failure to react at all to the first order was consistent with his claimed defense. Given the history between the two men, it was understandable that Brennan would view the lack of a reaction as intentional. Brennan's second direction was issued under the same conditions some two houses further up the street. The fact that respondent, at that point, might have been slower than his partner to comprehend what Brennan wanted, did not establish intentional disobedience of an order. I find that this charge should be dismissed.

VI. Complaint 98335 The Department alleges that respondent violated Rule 3.1 and Rule 3.2, when, on July 19, 2003, respondent became hostile towards a supervisor and "snatched" a complaint form out of the supervisor’s hand. It is uncontested that on Saturday night, July 19, 2003, at the end of his shift, respondent entered Supervisor Brennan’s office and was asked to sign for receipt of a disciplinary complaint issued as a result of the toilet seat incident the night before. Respondent signed to acknowledge receipt of the complaint and gave it back to Brennan, assuming he would then get his copy as was procedure. Brennan, however, told respondent that because it was late, respondent would not get his copy until Monday. Respondent said “no;” that anything he signed he would have to have a copy -19- of at that point, and then, according to Brennan, he grabbed the complaint out of Brennan’s hand and removed his copy. Respondent claimed that he picked the complaint form up off Brennan's desk and removed his copy. In any event, Brennan informed respondent that Brennan had to sign the complaint again before respondent could take his copy. Respondent said that he did not care and "threw" or placed the other copies back on Brennan’s desk and left (Tr. 185-187, 269-270, 494-495). When he gave the complaint to respondent, Brennan had already signed to substantiate the charges, but had not signed to indicate service on respondent. The Department has charged respondent with failing to obey an order. It seems the order here was for respondent to wait for two days after signing for receipt of the complaint to actually receive his copy. Addressing charges of failure to follow orders, OATH has previously noted: As a general rule, an employee with access to a grievance mechanism or other effective redress must “obey [an order] now, [and] grieve later.” The exceptions to this rule are “few and narrow,” and the burden of proof of the applicability of those exceptions is the respondent's.

One of the exceptions to the “obey now, grieve later” rule permits disobedience to an order that is “unlawful” . . . . [S]ome cases have limited the exception to orders that are “patently illegal.” Other cases place a lighter burden on respondents, requiring only proof of any illegality, no matter how arcane, debatable or narrow. One case went so far as to imply that illegality need not be proved, and only a good faith issue as to the legality of the order need be shown by the respondent.

. . . . Obedience to orders is obviously important, but so is avoidance of illegal conduct by governmental officials. A variety of factors might affect the balance of these interests: the importance of the order, the immediacy of the need for execution of the order, whether the matter is central or peripheral to the agency's mission, the nature and severity of the alleged illegality, the degree to which a later grievance will undo any wrong, and other factors.

Triborough Bridge and Tunnel Auth. v. Weekes, OATH Index No. 222/91, at 7-9 (Mar. 5, 1991), citations omitted. Here, respondent has argued in essence that the order to sign the complaint -20-

without actually taking a copy was illegal in that it forced respondent to make a false statement – acknowledging that he received a copy of the complaint.10 Making false statements on official documents is illegal. Department Rule 4.4 provides: An employee shall not lie, nor make or allow any false report or false entry in or on any Department or other official record, or give a false statement in connection with any Department operation, activity or investigation.

Mr. Brennan provided no reason or justification for requiring respondent to wait two days to get his copy of the complaint, instead of providing it on the spot. Superintendent Lynch and Supervisor Minore confirmed that proper procedure required a supervisor to serve a copy of the complaint at the time the employee signs for it (Tr. 381). In the circumstances, I find that respondent was justified in refusing to follow the supervisor’s order, and I dismiss this charge.

VII. Complaint 74891 The Department alleges that respondent violated Rule 4.711 when, on July 21, 2003, respondent entered a supervisor’s office without authorization and wrote on a complaint form. This charge pertains to the complaint at issue in charge 98335, above. The facts here are undisputed. After the incident involving complaint 98335 occurred, and respondent left the room, Supervisor Brennan wrote in red ink on remaining copies of the complaint, “S/W Beecher removed copy again without permission and put the 3 copies on supers desk before I could sign.” (Pet. Ex. 1; Tr. 204, 343). The writing seems to be Brennan’s attempt at explaining why respondent’s copy of complaint 98335 would not have Brennan’s signature acknowledging service. Although Brennan’s new, red-ink writing was not on the complaint when respondent took his copy, respondent found out from another sanitation worker that it had been added. Respondent

10“Receipt” of a complaint cannot mean that an employee has simply looked at the complaint without taking possession of a copy. C.f. Dep't of Sanitation v. Yovino, OATH Index No. 992/04, mem. dec., at (Aug. 11, 2004)(finding service defective where employee looked at complaint, refused to sign, and did not receive a copy).

11 Rule 4.7 provides, in relevant part, “Employees shall not intentionally damage, tamper or interfere with the property of the department.” -21- then entered the office and wrote over the red-ink sentence to indicate that Brennan’s new writing was not on the copy of the complaint respondent received (Tr. 496). Respondent wrote on complaint 98335 “I was not told that[;] he refused to sign” (Pet. Ex. 1; Tr. 495). Respondent clearly lacked permission to enter the office and write on the complaint. I therefore sustain this charge.

VIII. Complaint 98340 The Department alleges that respondent violated Rules 3.2, 3.22 and 3.23,12 when, on July 30, 2003 respondent left his assigned route and returned to the garage, where he engaged in a heated argument with a co-worker. On July 30, 2003 respondent was working with sanitation worker Franco. About ten minutes after leaving the garage, the two men got into an argument. Franco was driving, and he became so frustrated, he drove the truck back to the garage, saying that he could not work with respondent (Tr. 499, 510). Once back at the garage, respondent and Franco tried explaining the incident to Supervisor Lucchini. Respondent went back to the garage with Franco to explain himself and because he did not want to wait on the street (Tr. 513). He told Lucchini that he did not want to leave the route but it was out of his control. Respondent testified that he and Franco began arguing in front of Lucchini, and at one point Franco lunged at respondent and tried to hit him. Respondent told Franco “if you want to hit me go ahead.” At that time, respondent’s arms were at his side and his hands were open. He made no threats to strike Franco. Lucchini intervened and calmed the situation down (Resp. Ex. C, Tr. 263-264, 500, 511-512, 515). Brennan then re-assigned the two to separate routes (Tr. 221). Supervisor Lucchini testified that if sanitation workers have a problem on their route and need to return to the garage, under Rule 3.23, they are supposed to contact their field supervisor and receive authorization before they leave their route (Tr. 251). According to Lucchini, if the driver wants to return to the garage but the loader does not, the loader is required to stay on the route and contact a supervisor (Tr. 254).

12 “Employees must be present at their assigned work site, route, garage, section or other Department location during working hours unless authorized to leave by a Supervisor.” -22-

The evidence did not establish that respondent violated Rule 3.2 or 3.22. Respondent’s testimony that he made no threats to sanitation worker Franco was corroborated by Supervisor Lucchini and an audiotape of the incident (Resp. Ex. C). Indeed, the evidence indicated the opposite - that Franco was the one who used offensive language and engaged in aggressive conduct toward respondent. As for the charge that respondent left his assigned route and returned to the garage without authorization, I cannot find, despite Supervisor Lucchini's testimony, that respondent committed sanctionable conduct in the circumstances. Respondent gave unrebutted testimony that Mr. Franco was the one who, in anger, refused to work with respondent and who decided to drive the truck back to the garage to tell his supervisors as much. Respondent, as the loader, was not in control of the truck, and his judgment in the circumstances that he should return with Franco to the garage to explain what had occurred, was not unreasonable and ultimately allowed him to more easily be reassigned. Petitioner failed to prove that respondent violated Rule 3.23, and the entire complaint should be dismissed.

FINDINGS AND CONCLUSIONS 1. Petitioner failed to prove by a preponderance of the evidence that respondent, on June 18, 2003, intentionally disobeyed the lawful order of a supervisor in violation of Department Rules 3.1 and 3.2, by taking a department truck out on collection that was not originally assigned to him.

2. Petitioner proved by a preponderance of the evidence that respondent violated Rules 3.1, 3.2, and 3.22 when, on June 20, 2003, respondent physically blocked his supervisor's path, and insulted and threatened to strike him.

3. Petitioner proved by a preponderance of the evidence that respondent violated Rules 3.14, 3.22, and 3.2 when, on June 28, 2003 respondent made offensive and derogatory remarks toward and about fellow sanitation workers.

4. Petitioner failed to prove by a preponderance of the evidence that respondent violated Rules 3.2, 3.6 and 3.19 when, on June 28, 2003, respondent exited his vehicle, walked towards a supervisor in another vehicle, and took pictures of the supervisor. -23-

5. Petitioner failed to prove by a preponderance of the evidence that respondent violated Rules 3.1 and 3.2, when, on July 18, 2003, respondent failed to respond to an order to place a piece of garbage in his truck.

6. Petitioner failed to prove by a preponderance of the evidence that respondent violated Rule 3.1 and Rule 3.2, when, on July 19, 2003, respondent disobeyed an order and took a copy of a complaint form from his supervisor without permission.

7. Petitioner proved by a preponderance of the evidence that respondent violated Rule 4.7 when, on July 21, 2003, respondent entered a supervisor’s office without authorization and wrote on a complaint form.

8. Petitioner failed to prove by a preponderance of the evidence that respondent violated Rule 3.23, when, on July 30, 2003 respondent left his assigned route and returned to the garage. Petitioner also failed to prove by a preponderance of the evidence that respondent violated Rules 3.2 and Rule 3.22, where he engaged in a heated argument with a co-worker, but issued no threats.

RECOMMENDATION Upon making the above findings, I requested and received an abstract of respondent's personnel record. Respondent was appointed to his position as a sanitation worker on August 28, 1995. In February 2000, respondent was reprimanded for being AWOL. On March 13, 2001, he received a one day penalty for being AWOL. In this proceeding, respondent has been found to have engaged in attempted verbal and physical intimidation of his supervisor on one occasion, made offensive and derogatory remarks about co-workers on another occasion, and written on a complaint form without permission. By far the most serious of these offenses was his aggressive conduct toward Supervisor Brennan during a confrontation in the office that respondent initiated. -24-

Petitioner requested that respondent be terminated for all of the misconduct alleged in the various complaints adjudicated here. As noted above, I ultimately sustained only three of the eight complaints. Although petitioner's counsel argued that respondent's threatening behavior toward Supervisor Brennan alone warranted termination, I was not so persuaded, particularly given respondent's almost ten-year tenure, lack of any prior serious disciplinary record, and the fortunate fact that this incident never escalated beyond a heated exchange of words. Nevertheless, respondent's conduct toward Mr. Brennan was serious and warrants a sufficiently stern penalty to make clear to respondent that there will be no tolerance for any repeat similar behavior. In addition, respondent's other proven violations warrant a sanction. It is further worth noting that although I did not sustain the various other charges against him, some of which seemed a little excessive, it was evident from their filing and all of the testimony offered that respondent has become somewhat of a pariah in the workplace. The fact of respondent's apparent unpopularity certainly has no bearing on the penalty to be imposed here, but it does cry out for some self-reflection on respondent's part as to what if any contribution he has made to this situation and as to how he might go about improving it, lest he find himself in the near future facing new charges and potential loss of employment. This tribunal has previously interpreted the Administrative Code provisions governing discipline of sanitation workers to allow for aggregate penalties of up to thirty days' suspension for each separate incident of misconduct proved. See Dep't of Sanitation v. Williams, OATH Index No. 2175/01 (Oct. 26, 2001), aff'd, NYC Civ. Serv. Comm'n Item No. CD02-63-SA (Sept. 11, 2002); Dep't of Sanitation v. Singer, OATH Index No. 2033/00 (Mar. 15, 2001); Dep't of Sanitation v. Gasparri, OATH Index No. 1844/00 (Aug. 16, 2000), modified on penalty, Comm'r Dec. (Oct. 19, 2000); Dep't of Sanitation v. Burgos, OATH Index No. 1295/00 (Aug. 11, 2000), modified on penalty, Comm'r Dec. (Sept. 13, 2000), modified on penalty, NYC Civ. Serv. Comm'n Item No. CD01- 74-M (July 25, 2001). For his aggressive conduct toward Supervisor Brennan on June 20, 2003, respondent should receive the maximum suspension from work without pay of thirty days. For his conduct in making offensive and demeaning remarks toward co-workers on one occasion, respondent should be -25- suspended for five days and for his conduct in entering a supervisor's office and writing on a complaint form without permission, respondent should be suspended for two days. Accordingly, I recommend that respondent be suspended from work without pay in the aggregate for thirty-seven days.

Raymond E. Kramer Administrative Law Judge

December 16, 2004

SUBMITTED TO:

JOHN J. DOHERTY Commissioner

APPEARANCES:

CARLTON LAING, ESQ. Attorney for Petitioner

KIRSCHNER & COHEN Attorneys for Respondent BY: STEVEN B. KIRSCHNER, ESQ.