Triborough & Tunnel Auth. v. Christiano OATH Index No. 493/12 (Mar. 21, 2012), aff’d, Comm’r Dec. (Apr. 11, 2012), appended

Respondent, a bridge and tunnel officer, engaged in off-duty misconduct by failing to comply with repeated directives by a fellow bridge and tunnel officer to pull over his vehicle for a traffic stop near the Verrazano Narrows Bridge. Respondent was verbally disrespectful to the bridge and tunnel officer and to a sergeant who was called to the scene. Respondent also committed misconduct by failing to follow established agency rules or procedures with regard to several absences. Other absence charges were not sustained. Taking into account extensive disciplinary record, termination of employment is recommended. ______

NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY Petitioner -against- CHRISTOPHER CHRISTIANO Respondent ______

REPORT AND RECOMMENDATION FAYE LEWIS, Administrative Law Judge This disciplinary action was referred by petitioner, the Triborough Bridge and Tunnel Authority (“TBTA” or “the Authority”) pursuant to Section 75 of the Civil Service Law. Petitioner alleges that Christopher Christiano, a bridge and tunnel officer assigned to the -Battery Tunnel, engaged in off-duty misconduct on July 18, 2011 by refusing repeated commands by a fellow bridge and tunnel officer to pull over his vehicle, which was speeding over the Verrazano Narrows Bridge, and by becoming “combative” with the officer and his supervisor, a sergeant. Petitioner further alleges that respondent engaged in misconduct or incompetence by being absent from work without authorization for 51.5 hours between March 1, 2011, and June 30, 2011 (ALJ Ex. 1). At a one-day hearing petitioner submitted documentary evidence and called four witnesses: Officer Jamar Cirksey, Sergeant Ronald Bayer, Brooklyn-Battery Tunnel Operations - 2 -

Superintendent Sandrea Smith, and Marc Mende, General Manager of the Brooklyn-Battery Tunnel. Respondent submitted documentary evidence and testified on his own behalf. The record was left open for the submission of post-trial briefs, as well as documentary evidence relating to the time and leave charge. This was submitted on February 20, 2012 and received into evidence (Pet. Ex 7; Resp. Ex. H). As discussed below, I find that charge relating to July 18, 2011 to be sustained. The incompetence charges are not sustained. The misconduct charges are sustained only as to the absences on May 7, 2011 and June 13 and 14, 2011.

ANALYSIS July 18, 2011 incident On July 18, 2011, close to midnight, respondent was off-duty and driving his car westbound over the Verrazano Narrows Bridge. Officer Jamar Cirksey, assigned to the Special Operations Division (“SOD”), was conducting speed enforcement on the Bridge. Cirksey tried to pull respondent over because he believed respondent was speeding and ultimately stopped respondent’s car past the toll plaza on the side of the bridge. At that point, respondent complained to Officer Cirksey about how Cirksey had pulled him over. Officer Cirksey called over his supervisor, Sergeant Bayer. After speaking to respondent, Bayer ordered Cirksey to issue a speeding ticket to respondent. The ticket is not yet adjudicated, but respondent has pleaded not guilty to the speeding. The parties dispute the details of the events leading up to the stop, as well as the particulars of the exchanges between respondent, Officer Cirksey, and Sergeant Bayer. According to Officer Cirksey, at about 11:20 p.m., he used a laser speed device to clock respondent driving 71 miles per hour in a 45 mile per hour zone on the Brooklyn side of the Bridge (Tr. 13). Officer Cirksey followed respondent’s car until he cleared the main span of the bridge so that respondent would be able to pull over safely, closer to the toll plaza. As he neared the toll plaza, Officer Cirksey activated his lights and sirens, and, using his public address loudspeaker, told respondent to pull over to the left, before the toll booth. According to Sergeant Bayer, this is the location where vehicles are usually stopped, about fifty to 100 feet before the toll plaza (Pet. Exs. 2, 3). - 3 -

Officer Cirksey testified that respondent did not comply with his order to pull over to the left. Therefore, Officer Cirksey repeated his order to pull over as respondent reached the toll plaza, this time directing respondent to pull over to the right (Tr. 14-17). Officer Cirksey testified that sometimes drivers are unable to hear the public address system on the roadway, but they can hear it on the toll plaza, which has an amplifying effect (Tr. 17, 44). However, respondent continued to drive through the toll plaza without stopping so Officer Cirksey pulled alongside respondent’s car and drove next to it in his marked patrol car (Tr. 14-17, 34). Officer Cirksey’s patrol car was side by side with respondent’s car at this juncture (Tr. 17). About 1,000 feet past the toll plaza, respondent still had not slowed down and Officer Cirksey became concerned that he might be intoxicated. Officer Cirksey began to use a “sway technique” to “try to coerce” respondent to stop (Tr. 23, 42). Specifically, he “swerved” or “swayed” the front of his patrol car “in and out” of respondent’s (Tr. 34, 42, 56-58). He never fully blocked respondent; their vehicles remained about five feet apart (Tr. 34). Eventually, respondent slowed down and came to a stop (Tr.18). Officer Cirksey pulled his car in front of respondent’s vehicle, blocking it (Tr. 42, 57). Both men rolled down their windows. Officer Cirksey testified that respondent, who was still in his car, said, “what the fuck, are you trying to fucking ram me off the road?” (Tr. 20-22). Following this outburst, Officer Cirksey testified, he got out of the car and asked respondent for his license and registration. Respondent produced the documents, told Cirksey, “I work here,” and produced his work identification card, which indicated that he was a bridge and tunnel officer (Tr. 23-24, 30). Cirksey described respondent as “belligerent,” though not profane, about being “rammed.” Respondent said he was traumatized, that Officer Cirksey had tried “to knock him off the road,” and that he did not know that Cirksey had told him to pull over (Tr. 24). Cirksey denied trying to “knock” respondent off the road and called his supervisor, Sergeant Bayer, to the scene (Tr. 27). Cirksey testified that when Bayer arrived, he explained the “situation” to Bayer and then returned to his vehicle (Tr. 28). Sergeant Bayer testified in detail about his conversations with respondent. Specifically, Bayer said he asked respondent why he was speeding and said that respondent had refused Cirksey’s instructions to stop. Respondent never denied that he was speeding, but said that Cirksey “tried to ram my fucking car” (Tr. 66). When Sergeant Bayer asked why he had not stopped his vehicle, respondent answered, “can’t you see I’m fucking stopped?” (Tr. 66). At that - 4 -

point, Bayer took respondent’s identification and told Cirksey to issue him a speeding summons. Bayer and Cirksey served the summons together (Cirksey: Tr. 29; Bayer: 67). According to Bayer, respondent said, twice, that he was emotionally distraught by how he had been stopped (Tr. 66-67). Respondent also said that “maybe” he had not see Cirksey’s car (Tr. 67). Sergeant Bayer noticed that respondent’s car windows were tinted, “way beyond the legal limit,” and told respondent that this was why he may not have seen Officer Cirksey trying to stop him. Respondent replied, “you like my tinted windows” (Tr. 69), a comment which Bayer found “arrogant” and “disrespectful” (Tr. 69). According to Sergeant Bayer, respondent had “a smirk” and “a smile” on his face when he made this statement, “as if the entire stop were [sic] a joke” (Tr. 67, 69). Respondent provided a different description of the encounter. He denied that he refused to follow an order to pull over or that he did anything to avoid stopping as requested (Tr. 154- 55). He testified that he did not notice Officer Cirksey until he was in the toll plaza (Tr. 153- 154). Prior to that he did not see the lights of Cirksey’s patrol car, nor hear a siren, nor hear Cirksey over the public address system (Tr. 182). At the toll plaza he heard Cirksey telling him over the public address system to pull over. However, Officer Cirksey did not specify whether respondent should pull over to the left or the right (Tr. 185). Respondent testified that he exited the toll lane, past the toll plaza, and attempted to pull all the way over to the right, near the orange barrels on the toll plaza, because he did not feel it was safe to pull over to the left, which was an “active” High-Occupancy Vehicle (”HOV”) lane used by buses (Tr. 154). Respondent did not address whether or not there would be many buses on the road close to midnight. He acknowledged pulling over after Officer Cirskey “began to swerve” his vehicle toward respondent’s car, a maneuver which respondent did not understand and had never been trained in (Tr. 156). Indeed, respondent felt that he has an anxiety condition and his level of anxiety “basically went through the roof” (Tr. 156). He thought Officer Cirksey was “trying to run” him “off the road” and felt “afraid for [his] life” (Tr. 156). Respondent acknowledged using profanity when ultimately speaking to Officer Cirksey, although he did not specify what he said (Tr. 195). Respondent also explained that he was on his way home from work when he was stopped on the bridge and that he had become incontinent due to colitis, from which he suffered, and wanted to “just get home as fast” as possible to use a bathroom (Tr. 163). Because respondent’s - 5 -

speeding ticket was pending at the time of the hearing, when asked if he was speeding, respondent, declined to answer, invoking his Fifth Amendment privilege against self- incrimination (Tr. 186).1 Respondent acknowledged that Sergeant Bayer accused him of trying to evade Officer Cirksey and testified that he told Cirksey that he had “no reason to run” and was simply trying to pull over near the orange barrels, because that was the safest area to pull over to. Bayer disagreed with that assessment (Tr. 158). Respondent admitted he was upset when speaking to Sergeant Bayer but denied using the profanity which Sergeant Bayer attributed to him (Tr. 196). Respondent also acknowledged asking Sergeant Bayer if Bayer liked his tinted windows: “Do you like my tint, Sergeant? It’s pretty sweet” (Tr. 195). According to respondent, he made this “spontaneous” response after Bayer said that respondent might have been able to see Cirksey’s lights behind him if not for the tinted windows (Tr. 195). Further, respondent testified that he takes medication for an anxiety disorder and was “very on edge” when he spoke to Bayer (Tr. 160, 161). He told Bayer that his anxiety had risen to a level where he felt that he was “traumatized” (Tr. 160). Resolution of these charges requires an assessment of witness credibility. In analyzing credibility, this tribunal may consider such factors as witness demeanor, consistency of a witness’s testimony, supporting or corroborating evidence, witness motivation, bias or prejudice, and the degree to which a witness’s testimony comports with common sense and human experience. Dep’t of Environmental Protection v. Hand, OATH Index No. 551/11 at 4 (Dec. 22, 2010); Dep’t of Sanitation v. Menzies, OATH Index No. 678/98 at 2-3 (Feb. 5, 1998), aff’d, NYC Civ. Serv. Comm’n Item No. CD98-101-A (Sept. 9, 1998); Dep’t of Correction v. Hansley, OATH Index No. 575/88 at 24 (Aug. 29, 1989), aff’d, 169 A.D.2d 545 (1st Dep’t 1991). I found Officer Cirksey and Sergeant Bayer to be very credible witnesses. Officer Cirksey provided a detailed, consistent account of his attempts to pull over respondent, starting with when he first noticed respondent speeding on the Brooklyn side of the Bridge. He acknowledged without hesitation using a “swerve” or “sway” technique to try to stop respondent when respondent did not pull over after exiting to the toll plaza. He also acknowledged that

1 Respondent was given a ticket for violating Vehicle and Traffic Law section 1180 by going 26 miles above the speed limit. Section 1180(h)(1)(ii) provides that the penalty for going between ten and thirty miles per hour over the speed limit is a fine of between $90 to $300, as well as possible imprisonment for not more than fifteen days. Vehicle and Traffic Law § 1180(h)(1)(ii)(Lexis 2012). - 6 -

drivers sometimes have difficulty hearing the public address system prior to reaching the toll plaza and appeared to have initially given respondent the benefit of the doubt in reiterating his demand to pull over at the toll plaza. Moreover, he admitted that he was not going to give respondent a ticket once he identified himself, but did so only when Sergeant Bayer told him to (Tr. 43). Finally, Officer Cirksey made a contemporaneous memo book entry detailing the incident in detail, including that respondent failed to pull over before the toll plaza, was ordered to pull over to the right after paying the toll, again refused to pull over, and continued driving toward the Staten Island Expressway until Cirksey forced him to stop. He also wrote that respondent was “combative” and used profanity (Pet. Ex. 1). Counsel for respondent asserted in his post-trial brief that Cirksey did not direct respondent to stop (Resp. Post-Trial Br. at 4), noting that Officer Cirksey testified that he did not “pursue” respondent’s vehicle and that respondent “didn’t have to stop” (Tr. 36). However, this argument is mistaken. Officer Cirksey used the word “pursue” in a very narrow sense, meaning the he understood “pursuit” as following a vehicle beyond the boundaries of the Authority’s property. He believed “pursuit” of a vehicle beyond the Authority’s property is not permitted solely because of a traffic infraction, but instead only in narrow circumstances, such as when the driver being followed is a violent felon (Tr. 37, 41). Thus, Cirksey testified that while he followed respondent and partially blocked his car, he did not “pursue” respondent because he remained on TBTA property.2 Similarly, Officer Cirksey’s statement that respondent did not have to stop was made in the context of explaining that he was not permitted under the circumstances to “pursue” respondent had he kept on driving onto the Staten Island Expressway (Tr. 37). Additionally, Cirksey’s testimony that he clocked respondent speeding 26 miles an hour over the speed limit was unrebutted. As respondent invoked his Fifth Amendment privilege rather than answer whether he was speeding, petitioner asked that I draw an adverse inference against respondent, which I indicated I would (Tr. 191). See Police Dep’t v. Lord, OATH Index No. 942/08, mem. dec. at 5 (Dec. 6, 2007) (“A pending criminal case does not serve as a

2 In fact, the Authority’s “vehicle pursuit policy” permits “pursuit” on Authority premises when a violent felony has been committed. “Pursuit” is defined as an attempt to apprehend an occupant of another moving vehicle whose driver is attempting to avoid apprehension. MTA and Tunnels Operations Department Vehicle Pursuit Procedure (amended Jan. 6, 2011), paragraph 3.1. “Pursuit” is not permitted for traffic infractions except those relating to a felony. Procedure, paragraph 5.1. It is unclear from this policy what actions bridge and tunnel officers are permitted to take when motorists who have committed traffic infractions fail to comply with directives to pull over. - 7 -

constitutional bar to the conduct of a civil or administrative proceeding stemming from the same underlying facts or transaction.”) (citation omitted). The inference to be drawn is the strongest inference that “opposing evidence in the record permits.” Police Dep’t v. Williams, OATH Index No. 747/07, mem. dec. at 5 (Oct. 27, 2006) (citing Noce v. Kaufman, 2 N.Y.2d 347, 353 (1957); Comm’r of Social Services v. Philip De G., 59 N.Y.2d 137, 141 (1983). Thus, the inference to be drawn is that respondent was speeding on the westbound side of the Bridge. Sergeant Bayer’s testimony was also consistent and clear. It was plain that he remembered the incident, specifically respondent’s use of profanity, his “smirking,” and his comments about the tinted windows. Also, like Cirksey, Bayer acknowledged that if respondent had not been so disrespectful, a summons would not have been issued (Tr. 79). Further, it was undisputed that Bayer had only met or spoken to respondent briefly prior to this incident (Bayer: Tr. 67-69; Christiano: Tr. 158-59). Finally, Bayer wrote a detailed memorandum about the incident, dated July 18, 2011, which included reference to respondent’s comments to him, including his use of profanity, and his statements about the tinted windows, which Bayer characterized as “arrogant” (Pet. Ex. 4). By contrast, much of respondent’s testimony was not credible. Even assuming that respondent did not hear Officer Cirksey’s directive to pull over to nor notice his lights and sirens before reaching the toll plaza -- which is doubtful -- respondent admitted hearing Cirksey’s directive at the toll plaza. Respondent’s testimony that while he did not hear Cirksey tell him to pull over to the right, he “tried” to pull over to the right, was not credible in light of Cirksey’s unambiguous statement in his memo book, and later in his testimony, that respondent did not pull over but instead kept going straight, toward the Staten Island Expressway. It was undisputed that Cirksey used some type of “sway” or “swerve” technique which ultimately succeeded in forcing respondent to stop to the right, about 1000 or 1200 feet to the right past the toll plaza. It is implausible that Cirksey would have used this technique had respondent started to signal a lane change or started to change lanes to pull to the right. Moreover, Officer Cirksey testified, credibly, that respondent told him that he did not know that he had to stop. Sergeant Bayer likewise testified that respondent said that “maybe” he had not seen Cirksey’s car. These statements are far more consistent with respondent continuing on the road, toward the Staten Island Expressway, than with respondent trying to pull over his car as directed. Having not pulled over until Officer Cirksey used the “sway” technique, it is - 8 -

likely that respondent may have felt he had to give some type of excuse for his behavior, particularly since Cirksey was driving a marked patrol car alongside respondent, which respondent, also a bridge and tunnel officer, should have recognized (Tr. 44-45). On the other hand, had respondent actually started to shift lanes to the right in compliance with Cirksey’s demands, it is implausible that he would not have told both Cirksey and Bayer that he was attempting to follow Cirksey’s directions. Additionally, I did not credit respondent’s testimony that he was trying to get home as soon as possible to reach a bathroom because he believed he was in imminent danger of soiling himself due to his colitis (Tr. 194). Respondent had ample opportunity when pulled over by Officer Cirksey to identify himself and ask to use a bathroom at the toll plaza. He admitted not doing so, saying he found the subject too embarrassing to mention (Tr. 195). However, respondent could have easily said he was sick and needed to use a bathroom without going into specifics. Respondent’s failure to make any mention of his need to use a bathroom to his co- worker weighs heavily against his claim that the situation was dire, as does the fact that respondent conversed with Sergeant Bayer about his window tinting without any apparent sense of urgency. Finally, I did not credit respondent’s testimony that he used profanity when addressing Officer Cirksey, but not Sergeant Bayer. Respondent was clearly upset at the situation. He admitted using profanity toward Officer Cirksey, which Cirksey recalled as “what the fuck, are you trying to fucking ram me off the road.” It is entirely plausible that respondent made a similar comment to Bayer, just minutes later, alleging that Cirksey “tried to ram my fucking car.” The charges relating to this incident are two-fold: they allege that respondent refused to pull over, as ordered, and they allege that respondent was “combative” with both Officer Cirksey and Sergeant Bayer, making “extensive use of profanity.” The evidence established that respondent refused to pull over, as ordered by Officer Cirksey, in violation of paragraphs 123 and 148 of the Agency’s Rules, as alleged. These rules require that employees obey verbal or written orders of the Authority. Rules and Regulations Governing Bridge and Tunnel Operating Forces § I(168) (eff. June 1, 1970). Respondent’s failure to obey Cirksey’s commands is disciplinable as off-duty misconduct. An agency may properly discipline an employee for certain off duty misconduct. See Cromwell v. Bates, 105 A.D.2d 699, 699 (2d Dep't 1984); Zazycki v. City of Albany, 94 - 9 -

A.D.2d 925, 926 (3d Dep't 1983); Dep't of Environmental Protection v. Tosado, OATH Index No. 311/83 at 13-16 (Sept. 2, 1983). As a prerequisite, the agency must establish some relationship between the conduct sought to be sanctioned, the agency’s mission and the employee's position. Furst v. Transit Auth., 631 F. Supp. 1331, 1338 (E.D.N.Y. 1986); Arancio v. Dep't of Sanitation, NYC Civ. Serv. Comm’n Item No. CD 87-33 at 4 (Mar. 4, 1987). Here, as respondent is a TBTA officer whose duties have included the issuance of traffic summonses, there is a sufficient nexus between his failure to comply with Cirksey’s directives and his job responsibilities to bring his behavior within the purview of the Civil Service Law. See Dep’t of Correction v. Bivens, OATH Index No. 2088/10 at 4 (Aug. 20, 2010) (correction officer’s conviction for petit larceny involving fraud had the requisite nexus with her position “because of the inherent conflict between the commission of such crimes and a correction officer’s law enforcement responsibilities”). The evidence also established that respondent was discourteous and disrespectful with Officer Cirksey and Sergeant Bayer, using profanity when speaking to both of them. The use of profanity generally constitutes per se discourtesy and disrespect, Health & Hospitals Corp. (North Bronx Healthcare Network) v. Wolfe, OATH Index No. 2844/08 at 6-7 (Sept. 8, 2008); Dep’t of Correction v. Shark, OATH Index Nos. 1668 & 1828/02 at 20 (July 3, 2003); but see Fire Dep't v. Donofrio, OATH Index No. 2042/96 (Oct. 23, 1996) (employee's statement of “stop busting my balls” towards supervisor not insubordination in the particular circumstances). Respondent testified that he was very upset and anxious about the stop; he has an anxiety disorder, and felt his life to be in danger. It was clear that respondent was alarmed at Cirksey’s use of the “sway” technique. However, being upset is not a defense. See Dep’t of Probation v. Dixon, OATH Index No. 156/11 (Nov. 30, 2010) (peace officer who yelled “fuck 5-0” while NYPD officers were investigating in her yard was guilty of misconduct). The evidence did not establish, however, that respondent made “extensive use” of profanity, as petitioner also charged. Rather, respondent made one comment to Cirksey and two comments to Bayer using profanity, apparently to emphasize his outrage about the manner in which Cirksey had pulled him over (i.e., saying, “what the fuck, are you trying to fucking ram me off the road,” rather than referring to either Bayer or Cirksey by a profane epithet). Nor does the evidence establish that respondent was “combative,” as petitioner specifically charged. The word “combative” is defined by Merriam-Webster as “marked by - 10 -

eagerness to fight or contend.” Merriam-Webster Online Dictionary, http://www.merriam- webster.com/dictionary/combative (accessed March 7, 2012). While both Cirksey and Bayer described respondent as using profanity, and Bayer thought he was additionally disrespectful by smirking and making a joke about his tinted windows, this is not equivalent to saying that respondent was eager “to fight.” At worst respondent may have been eager to “contend,” verbally. However, petitioner’s use of the word “combative” is an inflated way of describing what was essentially discourteous speech. Of the various rule violations which petitioner has alleged respondent violated by being combative to Officer Cirksey and Sergeant Bayer, only paragraph 168 refers to discourtesy. This section forbids “. . . discourtesy to a supervisory officer, discourtesy to a patron…” Rules and Regulations Governing Bridge and Tunnel Operating Forces § I(168) (eff. June 1, 1970). Nothing in this section forbids discourtesy towards an officer of the same rank. However, Rule 168 also prohibits “violations of any of the established rules of conduct or procedure of the Authority,” and thus encompasses paragraph 129, which requires that employees be “courteous and gentlemanly [sic] in deportment at all times” and forbids the use of “indecent, profane or harsh language.” Rule 148, which petitioner also alleges respondent violated, likewise requires adherence to all of the rules of the TBTA. Rules and Regulations Governing Bridge and Tunnel Operating Forces § I(148). Moreover, there is no question that the narrative section of the pleading informed respondent of the specific misconduct charged. Thus, even though it would have been better practice had petitioner specifically alleged a violation of Rule 129, there is no prejudice to respondent. As this tribunal has held many times, in administrative pleadings notice is sufficient so long as the charges apprise the party of the conduct at issue so as to enable him to adequately prepare and present a defense. Dep’t of Correction v. Jenkins, OATH Index No. 3070/09 at 13 (Dec. 16, 2009);. Human Resources Admin. v. St. Louis, OATH Index No. 895/05 at 2 (May 26, 2005); Dep’t of Correction v. Lee, OATH Index No. 284/88 (Dec. 2, 1988), citing, Heckt v. City of Lackawanna, 44 A.D.2d 763 (4th Dep’t 1974); Francis v. West, 81 A.D.2d 714 (3d Dep’t 1981); Fitzgerald v. Libous, 44 N.Y.2d 660 (1978); Gisbert v. Auth., 115 A.D.2d 934 (4th Dep’t 1985). - 11 -

Respondent’s discourtesy toward both Officer Cirksey and Sergeant Bayer, after the traffic stop, is cognizable as off-duty misconduct given the nexus between respondent’s job duties and his misbehavior. See Furst v. New York City Transit Auth., 631 F.Supp. at 1338. Therefore, the charges relating to July 18, 2011 are sustained as to both the failure to comply with the traffic stop and the discourtesy. However, while I find that respondent was discourteous and used profanity, I do not find that respondent was “combative” nor that he engaged in “extensive use of profanity,” as petitioner specifically alleged in paragraph two of the charges.

Unauthorized absence Respondent is charged with unauthorized absences totaling 51.5 hours in 2011: 24 hours between March 21st and 24th; 8 hours on May 7; 8 hours on May 15; and 11.5 hours on June 13th and 14th (ALJ Ex. 1). Petitioner alleged that respondent’s unauthorized absences constituted “misconduct or incompetence and/or violation of the Rules and Regulations” (ALJ Ex. 1). Although petitioner did not cite to particular rules that respondent allegedly violated by his absences, petitioner alleged in the charge relating to the July 18, 2011 Bridge incident that respondent violated Rules 153 and 168. Rule 153 requires employees who are absent for any reason other than vacation to submit an application for absence form in advance or, if impossible, upon return to duty. Rule 168 prohibits “excessive absence” and also prohibits employees from violating “any of the established rules of conduct or procedure of the Authority.” It appears that petitioner inadvertently listed these rules under the wrong charge -- that is, the Bridge charge as opposed to the absence charge. However, as respondent was on notice of the alleged misconduct, there is no prejudice and the pleading error is not fatal. See Jenkins, OATH 3070/09 at 13. The charges are discussed below, first the allegation of incompetence, then the allegations of misconduct, by date.

Incompetence To constitute disciplinable conduct under Section 75 of the Civil Service Law, the violation of rule, policy, or procedure must constitute either misconduct or incompetence. Here, petitioner has charged respondent with 51.5 hours of unauthorized absence, equaling roughly six and a half eight-hour workdays over an approximate three-month period from March 21, 2011 to - 12 -

June 14, 2011. It was not disputed that respondent was absent on these dates, which are March 21, 22, 23, May 7, May 15, and June 13, and 14, 2011.3 While excessive absenteeism can constitute incompetence, as a matter of law petitioner has not established respondent’s absences over 51.5 hours rose to the level of incompetence. Where, as here, an agency has no numeric definition of excessive absence constituting incompetence, this tribunal has looked at whether the absences are so extensive in number that they are excessive per se. Admin. for Children’s Services v. Hoffman, OATH Index No. 1616/02 at 9 (Dec. 20, 2002).4 The number of absences found to be excessive per se has been found to be roughly 50% of all work days in the period under review. Triborough Bridge and Tunnel Authority v. Davi, OATH Index No. 339/01 at 7 (June 18, 2001); Dep’t of Parks and Recreation v. Guerin, OATH Index No. 1711/99 (Aug. 3, 1999), aff’d, NYC Civ. Serv. Comm’n Item No. CD 00-97 (Nov. 14, 2000); Dep’t of Parks & Recreation v. Lenoble, OATH Index No. 823/91 (Apr. 30, 1991), aff’d, NYC Civ. Serv. Comm’n Item No. 92-43 (Apr. 9, 1992) (69 unauthorized absences in a 15-month period excessive); Hoffman, OATH 1616/02 at 10 (25 unauthorized absences in a year not found to be excessive per se); Dep't of Parks and Recreation v. Hubbard, OATH Index No. 1153/97 (Feb. 24, 1998) (21 absences in one year not found to be excessive). Although petitioner alleged post-hearing that respondent had over 1,000 hours of absence, Pet. Post-Trial Brief at 7, only 51.5 hours were alleged as misconduct or incompetence in the charges. It would be a fundamental denial of due process to charge respondent with excessive absence of 51.5 hours, proceed with a trial focused on those 51.5 hours, and then, without prior notice to respondent, allege instead that he should be found guilty of unauthorized absence because of 1,000 additional hours of absence that were never litigated. As the Court of Appeals has held in Murray v. Murphy, 24 N.Y.2d 140 (1969):

3 The petition alleges unauthorized absences from March 21 through 24, but this appears to be a typographical error, as petitioner alleges 24 hours, not 32 hours, of unauthorized absence. Petitioner’s proof, namely its time and attendance record for March, 2011 (Pet. Ex. 5), shows respondent as being absent on March 21, 22, and 23, 2011, but does not indicate what his attendance was for March 24 (Pet. Ex. 5; Smith: Tr. 107). Thus, as petitioner presented no evidence regarding March 24, 2011, I am construing the charge as alleging 24 hours of absence on March 21, 22, and 23, 2011.

4 Other agencies have rules defining excessive absence. For example, the Department of Correction revised its sick leave policy to provide that employees who report sick 40 or more work days in a 12-month period or on 15 or more occasions in a 12-month period may be subject to termination. Department of Correction Directive No. 2258R-A (eff. February 14, 2000). The directive requires that a chronic absence notification be sent to a correction officer which “clearly reiterates the warning that termination may be imposed for the specific, defined excessive absence.” Dep’t of Sanitation v. Uryevick, OATH Index No. 777/06 at 22 (Aug. 11, 2006). - 13 -

The first fundamental of due process is notice of the charges made . . . A public employee has a claim to due process and he may assume that the hearing will be limited to the charges as made. His lawyer is likewise entitled to prepare for the hearing in reliance that, after the hearing is concluded, the charges will not be switched. Any other course is a violation of the employee’s right to be treated with elemental fairness . . . Where we are involved with such a fundamental constitutional right as the right to be put on notice of the charges made, prejudice will be presumed.

Id. at 157. The First Department followed this holding in Mayo v. Personnel Review Bd., 65 A.D.3d 470, 473 (1st Dep’t 2009), writing, “By switching the basis of the charges after the hearing . . . the PRB [Personnel Review Board] violated petitioner’s “right to be treated with elemental fairness.” See also Triborough Bridge and Tunnel Auth. v. Maitin, OATH Index No. 627/96 at 4 (Mar. 14, 1996) (because petitioner did not amend the charges before or during the trial, a finding on related but factually distinct charges was precluded); Taxi & Limousine Comm’n v. Kupferberg, OATH Index No. 2828/09 at 6 (July 28, 2009), modified on penalty, Comm’r Dec. (Apr. 14, 2010), modified on penalty, NYC Civ. Serv. Comm’n Item No. CD 11-12-M (Apr. 19, 2011) (finding that where an employer sought to introduce evidence of additional uncharged lateness, “an employee’s employment history [is] generally admissible only in consideration of penalty and not to adjudicate an allegation of misconduct.”); Dep’t of Correction v. Jenkins, OATH Index No. 3070/09 at 14 (Dec. 16, 2009) (declining to conform the charges to the proof, even where both parties presented testimony on the uncharged misconduct, because the failure of notice could be prejudicial and thus violative of due process). Here, the level of absence that respondent was actually charged with -- slightly over one week in a twelve week period or approximately 8% -- is far below the level found to constitute incompetence. See Triborough Bridge & Tunnel Auth. v. Rodriguez, OATH Index No. 729/04 at 3-4 (May 28, 2004), aff'd, President's Dec. (June 29, 2004) (absenteeism rate of 48.3% of scheduled work days is excessive per se and justifies charge of incompetence); Cicero v. Triborough Bridge & Tunnel Auth., 264 A.D.2d 334, 336 (1st Dep't 1999) (“80% absentee rate over a 19-month period must be considered excessive under any standard”). Nor was there any testimony that respondent was unable to do his job, or that his absences placed a burden on the Department or on respondent’s coworkers. Cicero, 264 A.D.2d - 14 -

at 336 (calling the “disruptive and burdensome effect” of respondent’s absences the “ultimate issue” in an incompetence case); see also Rodriguez, OATH 729/04 at 4 (although respondent’s absence rate fell slightly short of the 50% rate, testimony about the financial and logistical harm respondent’s absences wreaked on the TBTA supported a finding of incompetency). Thus, the allegation that respondent was incompetent by virtue of his 51.5 alleged hours of absence must be dismissed.

Misconduct - March 21, 22, 23 Fundamental due process requires “notice of the charges made.” Murray v. Murphy, 24 N.Y.2d at 157. Here, petitioner has charged respondent with two violation s: Rule 153, requiring employees to submit a green sheet, and Rule 168, prohibiting “excessive absence.” The Rule 153 charge is not sustained. Respondent submitted an “absence report” covering the March dates, dated March 25, 2011, indicating that his reason for absence was that he was “sick” (Resp. Ex. C). Counsel for petitioner noted that respondent’s supervisor had not signed the form in the space provided (Resp. Ex. C) and asserted that respondent could have completed the form at any time, not necessarily on March 25, 2011 (Tr. 113). However, there are indications that the form was submitted contemporaneously. Specifically, the form contains a space for the name and address of the doctor who treated respondent; respondent wrote the name and address of a “Dr. Roberts” (Resp. Ex. C). During the hearing, respondent submitted a copy of a note, written on the prescription pad of Dr. Roberts, dated March 21, 2011, indicating that Dr. Roberts had treated him on March 21, 2011. Regarding Rule 168, whether or not respondent was “excessive absent” requires an analysis of his absences on all of the dates charged, including the circumstances for the absences, and thus will be discussed in a subsequent section. While Rule 168 also prohibits employees from violating “any of the established rules of conduct or procedure of the Agency,” petitioner failed to prove that respondent violated an “established rule of conduct or procedure” by being absent for these three days due to illness when he did not have sick leave to cover the time. Petitioner did not cite any rule prohibiting employees from calling in sick if they do not have sick leave. A review of the Authority’s rules governing vacations, absences, and leave did not reveal any such rule. Rather, the rules speak to the procedures to be followed in granting or denying sick leave, the obligations of an employee - 15 -

while on sick leave, and the way in which a sick leave allowance is granted. Rules and Regulations Governing Bridge and Tunnel Operating Forces § II. Superintendent Smith’s testimony that the March dates were considered unauthorized absences because respondent had exhausted his sick leave (Tr. 99), is insufficient, in and of itself, to show that respondent violated an established rule of conduct or procedure. Superintendent Smith testified that she “did not believe” that there were circumstances under which an employee’s absence due to sickness could be authorized (Tr. 104), but this was confusing in light of her testimony that employees could request “anticipated sick leave” (Tr. 106). Moreover, respondent’s time records for the March dates coded his absence as “AWOP,” or absent without pay, not “Q” or unauthorized absence (Pet. Ex. 5; Tr. 107). And Marc Mendes, the General Manager at the Brooklyn Battery Tunnel, where respondent is assigned, testified that employees are “responsible” for keeping track of their own time, and that if they are absent when they do not have a leave balance, they will be marked “AWOP,” or absent without pay (Tr. 233). He did not testify that employees are considered to have an “unauthorized” absence solely because they do not have a sick leave balance. Thus, petitioner has failed to establish that respondent violated an established rule or procedure by being absent without sick leave on March 21, 22, and 23. There is a separate reason why respondent’s absences on these dates do not constitute misconduct. Respondent had applied for and received intermittent leave under the Family Medical Leave Act (“FMLA”)5 from June 13, 2010 through June 13, 2011 (Tr. 121, 210). On February 11, 2011, Deborah Wells, an Acting Human Resources Analyst, sent respondent a letter which stated that he had used 444.50 hours of the 480 FMLA hours approved in June 2010. Thus, respondent had 35.3 hours remaining (Pet. Ex. 7, Resp. Ex. H). It was not disputed that he used 16 of these 35.3 hours on February 12, 2011 and February 21, 2011 (Pet. Ex. 7, Resp. Ex. H). This left 19.5 hours available as of March 21, 2011. Thus, as of March 21, 2011, petitioner had a reasonable basis to believe that he had leave time for March 21, 22, and part of March 23, because the Authority had told him so.

5 The FMLA provides for up to 12 weeks of unpaid leave, which may be taken intermittently, for a serious health condition that prevents the employee from performing job functions. 29 U.S.C. §§ 2612(a)(1)(D); 2612(b)(1) (Lexis 2012). A serious health condition is defined as “an illness, injury, impairment, or physical or mental condition” requiring either inpatient care or continuing treatment by a health care provider. 29 U.S.C. § 2611(11).

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Petitioner has asserted, however, that the letter sent to respondent on February 11, 2011, was incorrect. More specifically, relying upon an affidavit submitted by Gloria Colon, the Authority’s Chief Equal Employment Opportunity Officer, petitioner contends that the February 11, 2011, letter contained a “typographical error” -- that the “correct effective date” was June 14, 2011 and that as of February 21, 2011, respondent had only l.5 hours of FMLA leave remaining (Pet. Ex. 7). Ms. Colon wrote a letter to respondent, dated May 25, 2011, in which she explained these particulars (Pet. Ex. 7).6 However, Ms. Colon admitted in her affidavit that she did not send respondent this letter but instead “explained the particulars to him in a telephone conversation” (Pet. Ex. 7, Colon Affidavit ¶ 3). Ms. Colon did not state when she spoke to respondent. However, if Ms. Colon shared the “particulars” of the letter with respondent, the reasonable inference is that their conversation occurred after the date of the letter -- May 25, 2011. This is consistent with respondent’s testimony that he talked with Ms. Colon by telephone in May 2011. Thus, there is absolutely no basis for finding that the Authority informed respondent of its error prior to May 2011. Thus, even if the Authority has a rule against unauthorized absence, which it does not, respondent could not be penalized for relying in good faith upon the Authority’s February 11, 2011 representation that he had a leave balance. See Reisig v. Kirby, 62 Misc.2d 632, 635 (Sup. Ct. Suffolk Co. 1968), aff’d, 31 A.D.2d 1008 (2d Dep’t 1969); McGinigle v. Town of Greenburgh, 48 N.Y.2d 949, 951 (1979) (to find misconduct under the Civil Service Law, there must be some showing that an agency rule, if violated, was violated intentionally, willfully, carelessly, or negligently). Petitioner’s assertion in his post-trial submission that FMLA leave “is not part of this case” because respondent requested sick leave, not FMLA leave (Pet. Ex. 7), is misplaced. First, it is not clear that respondent requested “sick leave.” On his application for absence form, he wrote that his reason for the absences was “sick.” He produced a doctor’s note documenting that he was sick. This is not the same, however, as requesting “sick leave.” There is not space on the form, as submitted, to indicate the type of leave which respondent was requesting. Moreover, Superintendent Smith testified that leave is considered unauthorized when there is no leave balance from which to draw (Tr. 125-26): thus, if there is an FMLA balance, the leave would not be unauthorized.

6 It is not clear how the correct effective date of the leave could have been June 14, 2011. Perhaps there was a typographical error in Ms. Colon’s May 25, 2011 letter. - 17 -

For all these reasons, the charges relating to March 21, 22, and 23 were not proven and should be dismissed.

Misconduct - May 15 Petitioner has also failed to show that respondent committed misconduct by his absence on May 15, 2011, because it failed to show that he violated Rule 153, Rule 168, or any established rule of conduct or procedure. Regarding Rule 153, counsel for respondent represented that petitioner had supplied him in discovery with “green sheets” for all of the absence dates in the charges (Tr. 114). Petitioner’s counsel did not rebut this representation. Petitioner did not present a witness to establish that respondent failed to submit the requisite “green sheets.” Cf. Triborough Bridge & Tunnel Auth. v. Rodriguez, OATH 729/04 at 5 (finding misconduct based upon testimony that respondent failed to submit absence report or “green sheet”). Moreover, respondent produced a doctor’s note which showed he was ill on May 15, 2011, which tended to support his counsel’s assertion that he had submitted a green sheet, at least for May 15 (Resp. Ex. E). Regarding Rule 168, Superintendent Smith’s testimony that the absence should be considered “unauthorized” because respondent lacked sick leave balance (Tr. 103) was insufficient, for the reasons just discussed, to prove that respondent violated any established rule of conduct or procedure. Thus, given the scant record, petitioner failed to establish that respondent violated an established agency rule of conduct or procedure by virtue of his absence on May 15, 2011. The misconduct charge as to May 15, therefore, should be dismissed.

Misconduct – June 13 and June 14 Petitioner did not prove that respondent failed to submit a green sheet. Although respondent did not produce a doctor’s note at trial, as he did for the March dates and May 15, petitioner did not present a witness to testify that the green sheet was not in respondent’s sick leave file, nor did petitioner’s counsel rebut respondent’s assertion regarding the green sheets. However, unlike the other charges, petitioner established that respondent violated an established agency rule or procedure by virtue of being absent in June without having sick leave. On May 24, 2011, Superintendent Smith sent respondent an “unauthorized absence” - 18 -

memorandum, referencing his absence on May 15, 2011 as unauthorized and without pay, because he had depleted his sick leave balances as of May 15, and explicitly warning, “Unauthorized absences may result in disciplinary charges being preferred against you” (Resp. Ex. B). There is no evidence that she previously sent respondent an “unauthorized absence” memorandum and it appeared from the record that she did not.7 Thus, on this record, May 24th marks the first time that respondent was given any notice that being absent without sick leave could result in discipline. Although he received the May 24 letter, the evidence established that respondent was absent on June 13 and 14 and that his absence was deemed unauthorized because he did not have sick leave (Smith: Tr. 103). As respondent was warned that absences for which he did not have sick leave could result in discipline, the charge that respondent violated Rule 168 is sustained as to the June 13 and 14 absences. As noted , the other charges relating to June 13 and 14 are not sustained.

Misconduct – May 7, 2011 Respondent was absent from work on May 7, 2011, having requested an emergency personal leave day (“EPB”) to attend a christening. Petitioner has charged violations of Rule 168 and 153. The Rule 153 charge is not sustained because Mr. Mende, respondent’s supervisor, acknowledged that respondent submitted a green sheet for May 7 (Tr. 222). As noted, Rule 168 also encompasses the failure to comply with established agency rules of conduct or procedure. This includes Rule 22 of the rules pertaining to time and leave provides that absence due to personal reasons “[m]ust not exceed seven days in any vacation year and must be approved by the Facility Supervisor or Division Head,” and further, that “application for such absence shall be made three days prior to the absence except in an emergency when this rule may be waived . . .” Rules and Regulations Governing Bridge and Tunnel Operating Forces § II(22). Superintendent Smith testified that respondent’s absence was considered unauthorized because he did not have any vacation balances (Tr. 101). She explained that officers are permitted seven emergency personal business (EPBs) days each year, so long as they have a

7 Counsel for respondent represented that in discovery, counsel for petitioner did not provide him with an “unauthorized absence” memorandum issued to respondent prior to May 24, 2011, and Superintendent Smith then “agreed” that May 24, 2011 would have been the first memorandum issued to respondent (Tr. 109). - 19 - vacation balance to charge the time to; the first three EPBs do not require documentation of the emergency (Tr. 102). It is unclear whether this rule puts respondent on notice that EPBs for which a vacation balance is lacking are deemed misconduct or instead treated as absences without pay. However, this question need not be decided, for two reasons. First, although respondent did not specifically address whether he had a vacation balance on May 7, he testified that he took five days of vacation in late July 2011, and that he gets 20 days of vacation a year (Tr. 171, 208). Neither he nor Superintendent Smith explained how vacation leave accrues. Petitioner did not present underlying evidence, such as leave balance records or testimony from a human resources specialist, to explain what respondent’s leave balance was as of May 7. With this limited record, respondent’s testimony that he took a full week of vacation in late July cast doubt upon Superintendent Smith’s testimony that he lacked a vacation balance on May 7. Second, it was undisputed that respondent did not request the EPB day in advance. Rule 22 requires that an application for absence for personal reasons must be made three days “prior to the absence except in an emergency.” Mr. Mende testified that respondent had “called in EPB” (Tr. 222). He explained that he spoke to respondent on the day that he requested the EPB day. He denied ever telling respondent he could take the day (Tr. 227). He testified that he denied the EPB day because it was for a family event scheduled in advance and not an unplanned emergency (Tr. 222). He told respondent that he must have known of the christening weeks or a month ahead of time and that a christening was not something “that just pops ups out of the blue” (Tr. 222). Respondent testified that he knew of the christening for “a couple [of] weeks” (Tr. 207). Asked why he had not requested a personal business day in advance, rather than requesting emergency leave, respondent said he has never requested a personal business day, or has perhaps had done so once, and that he “just always” takes emergency personal business leave (Tr. 207). I did not credit respondent’s testimony that Mr. Mende changed his mind, and told him just weeks prior to his scheduled vacation in July that he was granting respondent the EPB for May 7 (Tr. 204-05). Mr. Mende denied verbally approving the EPB after first denying it, and said he lacked the authority to overturn the initial denial (Tr. 220, 229, 236). Mr. Mendes’ straightforward, consistent testimony was far more plausible than respondent’s confused and - 20 - convoluted explanation that Mr. Mende first denied him the EPB, then said he would grant it, but never put the approval in writing. Rule 22 is unambiguous that leave requests for personal business must be submitted in advance, except for emergencies. Respondent submitted his request for an EPB on the same day that he was absent. Yet by his own admission, he knew about the christening for weeks. Thus, it was not an emergency. Thus, as respondent failed to follow the Authority’s rule on emergency leave, the misconduct charge relating to his absence on May 7, 2011 is sustained. See Triborough Bridge and Tunnel Auth. v. Andreola, OATH Index No. 1385/03 at 19 (June 7, 2004), modified on penalty, President Dec. (July 9, 2004), modified on penalty, NYC Civ. Serv. Comm'n Item No. CD05-64-M (Aug. 18, 2005) (house hunting, assembling a computer for personal use, and driving wife to work are not bona fide emergencies under the TBTA rules).

Misconduct – Excessive absence for 51.5 hours of absence from March 21, 2011 through June 14, 2011 Finally, petitioner failed to establish that respondent’s 51.5 hours of absence constituted “excessive absence.” As explained above, 51.5 hours of absence, or slightly over six days, over almost three months falls far below the fifty percent benchmark typically required to find excessive absence per se in the absence of an agency rule defining excessive absence. See Rodriguez, OATH 729/04 at 3; Davi, OATH 339/01 at 7. In some cases, however, excessive absence may be found based upon the circumstances of the absences, including the availability of leave accruals, the legitimacy of the need for the absences, and whether respondent was ever warned about the possibility of discipline based on his absences, or upon evidence that respondent’s absences disrupted the agency’s operations. See, e.g., Health & Hospitals Corp. (Metropolitan Hospital Ctr.) v. Ricketts, OATH Index No. 2386/09 (June 22, 2009) (ten absences over five months found excessive where all of the absences were unscheduled, no documentation was submitted for the absences, and where there was evidence that respondent’s frequent absences had an adverse effect upon the hospital). Here, although respondent’s absences were unscheduled, petitioner failed to present any evidence that they adversely impacted the Authority. Moreover, respondent submitted doctor’s notes at trial which indicated that he was sick on four days of the total six and a half days. And there is no evidence that respondent was warned prior to late May that he could be disciplined - 21 - for taking absences without having sick leave available. Most significantly, approximately forty percent of the absences charged (19.5 hours out of 51.5) were for the dates in March, for which respondent had the basis to reasonably believe -- because the Authority had told him -- that he had leave time available. No fault can reasonably be attributed to respondent based upon his absences on those dates. Thus, the circumstances of this case do not permit a finding of excessive absence for this limited number of absences.

FINDINGS AND CONCLUSIONS

1. Petitioner established by a preponderance of the credible evidence that on July 18, 2011, while off-duty, respondent engaged in misconduct when he failed to obey directives from a fellow officer to pull over his vehicle, as alleged in Exhibit A, paragraph one of the charges.

2. Petitioner established by a preponderance of the credible evidence that on July 18, 2011, while off-duty, respondent engaged in misconduct when he was discourteous and used profanity while speaking to a fellow officer and a sergeant, as alleged in Exhibit A, paragraph one of the charges. However, petitioner failed to prove by a preponderance of the credible evidence that respondent was “combative” with the officer and the sergeant, nor that he made “extensive use of profanity,” as also alleged in Exhibit A, paragraph one.

3. Petitioner failed to meet its burden of establishing that respondent’s 51.5 hours of absences from March 21, 2011 through July 14, 2011 constituted “incompetence” under the Civil Service Law, as alleged in Exhibit B.

4. Petitioner failed to meet its burden of establishing that respondent’s 51.5 hours of absences from March 21, 2011 through July 14, 2011 constituted “excessive absence,” in violation of Authority Rule 168.

5. Petitioner failed to meet its burden of showing that respondent’s absences on March 21, 22, and 23, and May 15, 2011, were unauthorized absences or constituted misconduct. Petitioner also did not establish that respondent failed to submit an application for absence form for these dates.

6. Petitioner established by a preponderance of the credible evidence that respondent violated the Department’s policies - 22 -

and procedures through his unauthorized absences on May 7, 2011, and June 13, 2011, and June 14, 2011. Petitioner did not establish that respondent failed to submit an application for absence form for these dates.

RECOMMENDATION Upon making these findings, I requested and reviewed an abstract of respondent’s personnel history. This revealed that respondent has been employed by the Authority since December 16, 2002. Since this time he has amassed three sets of disciplinary charges, which were resolved by his agreement to waive trial and accept these penalties: a 40-day suspension on August 25, 2004; a 45-day suspension on May 2, 2007, and a 60-day suspension, including a “final warning” for violations of a “same or similar nature,” on May 14, 2010. All of the charges alleged time and leave violations. The 2010 charges alleged “unauthorized and/or excessive absences and latenesses,” including 13 instances of unauthorized emergency personal business days or EPBs. Petitioner has requested termination. Respondent has asserted that, if any charges are sustained, termination would not be appropriate because the allegations are “minor” (Respondent’s Written Closing Statement at 8). While I would not characterize the charges as “minor,” I do agree that the misconduct which was proven, standing alone, would be insufficient to warrant termination. Indeed, given the history of progressive discipline in respondent’s case, it is doubtful that the Authority would have sought termination were these the first instances of misconduct in an otherwise unblemished career. Unfortunately, however, this is not the case. Respondent has been on the job for slightly over nine years, in which time he has amassed three disciplinary penalties for time and leave violations similar to those proven here. Moreover, while the 2010 “final warning” is not binding upon this tribunal, it should have served to alert respondent that the Authority would consider additional similar misconduct grounds for termination. However, despite settling charges alleging 13 unauthorized EPBs on May 14, 2010, respondent elected to call in on May 7, 2011, not even one year later, to request EPB rather than have requested leave, paid or unpaid, in advance. Respondent’s absences in June 2011 were similarly troubling given his prior disciplinary record. Respondent’s behavior on the Bridge, while not relating to time and leave, was consistent with a disregard for the Authority’s rules and procedures. This is a distressing - 23 -

characteristic for a bridge and tunnel officer charged, among other things, with enforcing the law. As this tribunal has noted, even if an act of misconduct, “taken individually is not serious enough to warrant termination, respondent’s overall record must be considered when formulating a penalty recommendation . . . It is the cumulative effect of the acts of misconduct and the repeated failure to comply with the . . . leave rules in close proximity to a settlement of similar charges that warrants a severe penalty . . .” Dep’t of Sanitation v. Todd, OATH Index No. 1643/01 at 16, 17 (Nov. 13, 2001). In that case, Administrative Law Judge Merris recommended a 30-day suspension, the maximum short of termination under the Administrative Code, for one violation of the medical leave rules where the respondent had an extensive history of medical leave violations. She noted that she was unprepared to recommend termination for this one infraction because it was not clear from the record whether respondent had ever been warned that future similar infractions would result in termination. Id. at 17. Here, given that respondent was given a final warning regarding similar misconduct in 2010, this concern does not exist. Moreover, this is not a case in which respondent is a twenty- year employee presenting a history of commendations and a slew of witnesses to testify as to his exemplary work on the job. Nor is this a case in which respondent had time and leave problems long ago in the past, even including a final warning, but had had an excellent time and leave record for many years prior to the misconduct proven. In either of those instances, there would be justification to disregard the “final warning” and recommend a lesser penalty. In this case, however, the overall circumstances of respondent’s employment do not merit a recommendation of other than termination. See Health & Hospitals Corp. (Metropolitan Hospital Ctr.) v. Ricketts, OATH Index No. 2386/09 at 7 (June 22, 2009) (termination recommended “despite the relatively modest number of absences,” because of respondent’s “dismaying disciplinary record,” which included a 60-day suspension and “last chance” warning). Accordingly, I recommend that respondent’s employment be terminated.

Faye Lewis Administrative Law Judge March 21, 2012

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SUBMITTED TO:

JAMES FERRARA President

APPEARANCES:

CHRISTOPHER M. BEERMAN, ESQ. Attorney for Petitioner

MATTHEW S. PORGES, ESQ. Attorney for Respondent

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Commissioner’s Decision (Apr. 11, 2012)

After a complete review of the record and the enclosed Report and Recommendation of Administrative Law Judge Faye Lewis, duly designated to conduct a disciplinary hearing on the charges and specifications dated September 2, 2011 I make the following determination. I concur with Judge Lewis’ Recommendation that respondent’s employment with the Authority be terminated.

In this matter Judge Lewis found that respondent was guilty of the following: Respondent engaged in misconduct by failing to obey directives from a fellow officer while off duty on July 18, 2011; that he engaged in misconduct and used profanity while speaking to a fellow officer and a sergeant while off duty on July 18, 2011; and that he violated the Authority’s policies and procedures through unauthorized absences on May 7, 2011, June 13, 2011, and June 14, 2011.

I accept Judge Lewis’ findings regarding the sequence of events which occurred at the Verrazano Bridge on July 18, 2011. Judge Lewis found that both Officer Cirksey and Sergeant Bayer were very credible witnesses. She noted that the events, as testified to by Officer Cirksey were supported by Officer Cirksey’s notations in his memo book. Judge Lewis also credited Sergeant Bayer’s testimony, citing his clear memory of the incident and the detailed memorandum prepared by him on the date of the incident. Along with Judge Lewis, I give great weight to the honest testimony of the witnesses in acknowledging that, but for respondent’s own actions and behavior on that date, he would not have been cited for speeding.

I must also concur with Judge Lewis’ finding that respondent’s testimony was not credible. His testimony that he did not notice the lights and sirens of the marked patrol vehicle attempting to stop him, that he did not hear Officer Cirksey’s order to pull over to the right, and that he did not know he had to stop, are all implausible, especially from a Bridge and Tunnel Officer trained in traffic enforcement. Thus, I support Judge Lewis, who was in the best position to evaluate the credibility of the witnesses before her, in her finding of misconduct on July 18, 2011.

I also support Judge Lewis’ findings of unauthorized absences on May 7, 2011, June 13, 2011 and June 14, 2011. I find respondent’s attempt to utilize an Emergency Personal Business Day on May 7, 2011 when, by his own admission, he was aware of a scheduled christening weeks ahead of time, particularly troubling.

In view of the foregoing, I do not concur with the assertion proffered by respondent’s counsel at trial that the allegations are minor in nature. Respondent’s disregard of the directives of his fellow Officer and a Sergeant on an Authority facility represents an inability to obey the direction of law enforcement personnel. Respondent’s actions undermine the Authority’s confidence in his ability to work competently in a law enforcement setting. Respondent’s continued attendance issues are equally troubling, especially in view of his disciplinary history. The three sets of previous charges resulting in penalties of a 40 day suspension in 2004, a 45 day suspension in 2007, and a 60 day suspension in 2010 including a final warning, placed him on notice that respondent was in jeopardy of losing his employment for additional violations.

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Accordingly, I hereby find that respondent should be terminated from his employment as recommended by Judge Lewis.

By letter dated March 22, 2012 from Authority Labor Counsel Christopher M. Beermann to respondent’s counsel, Matthew Porges, Esq., Mr. Porges was given until April 6, 2012 to provide comments in this matter. To date, Mr. Porges has failed to provide any comments on respondent’s behalf. Thus, this determination is being made without benefit of input from his counsel.

Under the provisions of Section 75 of the Civil Service Law, respondent is entitled to appeal from this determination by application either to the Civil Service Commission or to a court in accordance with the provisions of Article 78 of the Civil Practice Law and Rules.

If respondent elects to appeal to the Commission, such appeal must be filed in writing within twenty (20) days of receipt of this determination. A decision of the Commission is final and conclusive. Sincerely,

James Ferrara President cc: OATH M. Porges, Esq.