Transit Auth. v. Etienne OATH Index No. 1467/08 (May 16, 2008) Respondent found guilty of falsifying timesheets on 36 occasions and submitting false mileage reimbursement requests. Termination of employment recommended. ______________________________________________________ NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of TRANSIT AUTHORITY Petitioner - against - GRAMATONE ETIENNE Respondent ______________________________________________________ REPORT AND RECOMMENDATION KEVIN F. CASEY, Administrative Law Judge The Transit Authority brought this proceeding, under section 75 of the Civil Service Law, charging respondent, civil engineer Gramatone Etienne, with submitting false timesheets and expense reports from January 2005 to January 2006. At a three-day hearing that concluded on March 19, 2008, petitioner relied upon documentary evidence and an investigator’s testimony. Respondent testified in his own defense. For the reasons below, I find that petitioner established that respondent falsified his timesheets on 36 occasions and submitted false mileage reimbursement requests, and recommend termination of his employment. ANALYSIS Background Respondent inspected construction work performed by a private contractor at various bus depots. Every two weeks he submitted a timesheet to his supervisor. As a non-managerial employee who worked in the field, respondent was required to confirm the times that he started and finished work each day. In four specifications, petitioner alleged that respondent routinely submitted false time sheets from January 2005 to January 2006. A fifth specification alleged that - 2 - respondent submitted false mileage reimbursement requests in September 2005 (ALJ Ex. 1). Respondent denied that he committed any fraud, insisted that he routinely worked a full day, and asserted that his supervisor regularly allowed him to work through lunch. There is little doubt that respondent ignored timekeeping procedures, but it was not clear that he falsified timesheets on all of the dates alleged by petitioner. There was, however, sufficient proof that respondent falsified his timesheet on 36 occasions and submitted false requests for mileage reimbursement. Petitioner relied primarily on documentary evidence gathered by its Office of the Inspector General. Based upon an anonymous complaint regarding respondent’s work hours, investigators reviewed documents, conducted surveillance, and interviewed witnesses. Investigator Charles Lienau summarized the results of those efforts. Respondent monitored the John McCullough Company’s installation of heavy-duty parallelogram lifts, under contract B-33054, at the following depots: Kingsbridge, near 215th Street, Bronx; Mother Clara Hale, near 146th Street, Manhattan; East 126th Street, Manhattan; Ulmer Park, near 25th Avenue, Brooklyn; and Liberty, Yonkers (Pet. Ex. 1). When not in the field, respondent went to his office at 2 Broadway in lower Manhattan. Respondent’s flexible schedule allowed him to begin his eight-hour shift from 7:00 a.m. to 9:30 a.m. and he accounted for his hours and work on bi-weekly timesheets (Pet. Ex. 1 at 5-6). Respondent’s supervisor, John Goonan, issued several memoranda regarding the time confirmation procedures. In 2002, Goonan advised his staff, including respondent, to call from a depot telephone when he arrived and left each day. Respondent could use a cell phone only if a specific person was available to confirm his presence at the work site. If the third party was unavailable, respondent had to use the depot’s phone (Pet. Ex. 15). In May 2004, Goonan told respondent and his colleagues to punch in and out each day at the depot clocks used by drivers and mechanics (Pet. Ex. 5A). In a November 2004 memo- randum, Goonan instructed his staff that, if there was no operating punch clock, they had to swipe their employee identifications at the nearest subway station. This method, called “back- swiping,” electronically recorded arrival and departure times. In a handwritten note, dated June 6, 2005, Goonan reminded respondent that if he used the back-swipe method he had to do so “at the start and finish of each day” (Pet. Ex. 5D). If there was no station near the depot, the - 3 - employee had to call Goonan from a landline telephone, but Goonan told investigators that he did not strictly enforce the landline requirement (Pet. Exs. 1 at 16 and 5C). Timesheets For most of 2005, respondent routinely wrote on his timesheets that he worked from 7:00 a.m. to 3:00 p.m. or 8:00 a.m. to 4:00 p.m. (Pet. Ex. 3). In late October 2005, he began to vary his schedule and reported that he started at 8:45 or 9:10 a.m. (Pet. Ex. 3). Throughout the year, respondent also reported on his timesheets that he only worked on contract B-33054 (Pet. Ex. 3). Respondent testified that Goonan allowed him to leave work after seven hours when he skipped lunch (Tr. 295). If he started at 7:00 a.m. and worked through lunch, respondent left at 2:00 p.m. and wrote on the timesheet that he had worked to 3:00 p.m. (Tr. 294). According to respondent, there was no way to note that he “worked through lunch” on a timesheet and it was “Transit Authority policy” to write 4:00 p.m. even if he only worked to 3:00 p.m. (Tr. 295-96). At first, respondent suggested that working through lunch was an unusual event, limited to exceptional days, such as when the contractor poured concrete (Tr. 238). He later claimed that he worked through lunch “many days” and eventually said that he skipped lunch “almost every day” (Tr. 293, 298). Respondent also admitted, contrary to his timesheets, that he did not work exclusively on contract B-33054. He claimed that Goonan told him to use that contract number if another contract was “out of funds” (Tr. 299, 344). Respondent’s testimony regarding his timesheets was inconsistent, improbable, and uncorroborated. There was no evidence to support the claim that he had permission to work through lunch and leave after seven hours. Nor was there any evidence to confirm that it was impossible to write the correct hours on his timesheet. Likewise, there was no evidence to support his claim that he had authority to enter incorrect contract codes on his timesheets. Time Cards After visiting bus depots and interviewing managers, investigators reported that every depot, including Yonkers and College Point had functioning time clocks. At Kingsbridge, when the time clock occasionally ran out of ink, employees had to sign a log. Respondent’s name was not in the log for 2005 (Pet. Ex. 16). Goonan gave investigators all of the weekly punch cards that respondent submitted in 2005. There were only eight cards, which covered dates from March 12 to May 27, 2005. On each card, the date was handwritten and at least once each week there was a workday without - 4 - any times punched. Investigators noted some odd similarities. There were identical entries for May 4 and May 12, 2005; respondent punched in at 9:08 a.m. and punched out at 3:53 p.m. (Pet. Ex. 1, p. 10). Similarly, on May 5 and May 13, 2005, respondent failed to punch in but he punched out at 4:05 p.m. (Pet. Ex. 10). Respondent offered conflicting testimony regarding his use of punch cards. At first, he testified that most of the depots did not have time clocks (Tr. 239). He later conceded that there were time clocks at many locations, including Ulmer Park, Mother Clara Hale, and Kingsbridge (Tr. 281-82, 285, 288-89). As for College Point, he testified that he did not know where the time clock was located, he claimed that Goonan told him that there was no clock there, and he insisted that he could not use that clock because it lacked a New York City Transit logo (Tr. 284-85). Contradicting Investigator Lienau, respondent testified that there was no time clock at the Yonkers depot (Tr. 285-86). Respondent also insisted that, if there was a working clock, he gave punch cards to Goonan every two weeks in 2005 (Tr. 289-90). The evidence demonstrated that respondent routinely failed to use time clocks that could have easily documented his arrivals at and departures from work sites. Respondent’s inconsistent and implausible testimony regarding the time clocks was not credible. MetroCard Usage Except for College Point and Yonkers, there are subway stations within three blocks of the depots where respondent worked. For example, the Ulmer Park depot in Brooklyn is less than two blocks from the D train’s 25th Avenue station (Pet Ex. 16). Respondent testified that he did not know that there was a subway station near the Ulmer Park depot even though he worked there for several months (Tr. 286). Petitioner issued respondent a MetroCard. A printout of that card’s usage identified respondent’s location at specific times. Although the printout understated respondent’s subway usage, because he occasionally entered the subway system by displaying his employee identification, it showed that some timesheet entries were false. For example, at 3:54 p.m. on December 30, 2005, respondent entered the Wall Street subway station, located a short walk from his office in lower Manhattan, but he wrote on his timesheet that he worked until 4:45 p.m. that day (Pet. Exs. 3 & 7). - 5 - Evidence Regarding Phone Calls Respondent offered odd testimony regarding his phone calls to Goonan. He claimed that there were no landline phones at the bus depots and he had to wait until after 9:00 a.m., when Goonan arrived for work, to call via cell phone (Tr. 302-04). These claims were not credible. It is difficult to believe that there were no landline phones at various bus depots. Furthermore, if the purpose of the phone call was to confirm respondent’s arrival time, he could call Goonan’s office phone and leave a message rather than wait an hour or more to check in.