<p> Human Resources Admin. v. Williams OATH Index No. 1114/05 (Sept. 21, 2005), aff’d, NYC Civ. Serv. Comm’n Item No. CD06-60- SA (May 2, 2006)</p><p>Respondent, a clerical associate, was found to have used profanity and inappropriate language toward a security guard, and to have wrongfully converted a blank money order which was purchased by a HRA client, without taking reasonable steps to return it or have it returned to its owner. ALJ recommended termination of respondent’s employment.</p><p>______</p><p>NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS</p><p>In the Matter of HUMAN RESOURCES ADMINISTRATION Petitioner - against - SHARON WILLIAMS Respondent ______</p><p>REPORT AND RECOMMENDATION</p><p>FAYE LEWIS, Administrative Law Judge This is a disciplinary proceeding brought by the Human Resources Administration (HRA) pursuant to section 75 of the Civil Service Law. Respondent Sharon Williams, a clerical associate III at HRA, is charged with: using abusive and inappropriate language toward a security guard on October 7, and 8, 2003 (charges one and three, no. 00222-06); being absent from her assigned work area for forty-three minutes without authorization or consent on October 7, 2003 (charge two, no. 00222-06)1; being arrested for various crimes on December 30, 2003 (charge one, specification one, no. 00222-07); stealing a $700 money order that belonged to an agency client (charge one, specification two, and charge three, no. 00222-07); and failing to</p><p>1 The charge actually alleges that respondent was away from her workstation for sixty-three minutes, but the period of time referenced is from 5:40 p.m. until 6:23 p.m., forty-three minutes. -2- report her December 30, 2003 arrest in writing to the HRA Administrator/Commissioner and the Inspector General (charge two, no. 00222-07).2 A hearing was held on March 16 and April 14, 2005, and the record was closed on April 18, 2005, following the submission of post-trial memoranda. Petitioner presented the testimony of Mr. Ramoodit, the security guard, three of respondent’s supervisors, the U.S. postal inspector assigned to respondent’s case, and the client whose money order she allegedly converted for her personal use. For the reasons below, I find that, with regard to the charges relating to October 7 and 8, 2003, charge one, specification one is sustained, except for that portion which alleges that respondent threatened Mr. Ramoodit. Charges three and four are also sustained. With regard to the charges involving the money order, I find that charge one, specification two, and charges three through five are sustained. I recommend that respondent be terminated from her employment.</p><p>ANALYSIS Use of Abusive and Derogatory Language, October 7 and 8, 2003 (charge 1, specifications 1 and 2, charges 3 and 4, no. 00222-06)</p><p>These charges relate to an incident on October 7, 2003 and a meeting held the next day, October 8, 2003, to discuss the incident. Charge one, specification one, and charge three allege that respondent directed profanity and racial epithets toward Ramchand Ramoodit, a security guard working at the HRA center in Far Rockaway, Queens (“the center”), because he refused to open the center doors for respondent after 5:00 p.m. Allegedly, respondent called Mr. Ramoodit a “fucking dumb ass,” adding, “what the fuck they get you here for, fuckin’ bitch…you fuckin’ foreigner. I don’t know what you are doing in this country.” She then threatened Mr. Ramoodit, saying she would be back tomorrow and that he had better “get the fuck out of here, bitch.” Charge one, specification two alleges that respondent was loud, verbally hostile and inappropriate during the October 8 meeting with the center director by repeatedly calling Mr. Ramoodit a liar while he was describing the previous day’s encounter. </p><p>2 Respondent was also charged with engaging in conduct detrimental to the agency, as to both the October 6 and 7 charges (charge four, 00222-06), and the money order charges (charges three through five, 00222-07). These additional charges merely repeat and reallege the prior specifications. -3- It was not disputed that respondent was working on October 7, 2003, that she had gone outside the center at some point after 5:00 p.m., although her shift had not ended, that she asked Mr. Ramoodit, the security guard, to open the front door for her, that Mr. Ramoodit refused to do so, and that she ultimately gained access to the building and exchanged words with Mr. Ramoodit. According to Ayoola Fadeyi, the center director, and Noreen Bartolatta, the deputy director of the center prior to her retirement in December 2003,3 the front door to the building is locked at 5:00 p.m., as a security measure. Security officers are instructed not to open the front door for anyone after that time. Employees wishing to enter the building must use the back door (Fadeyi: Tr. 56; Bartolatta: Tr. 69, 71). According to Mr. Ramoodit, it was about 6:30 p.m. when respondent rang the doorbell to re-enter the building (Tr. 26). He did not open the front door because he knew it was against policy. Respondent cursed at him, telling him to “open the fucking door” and calling him a “dumb bitch” (Tr. 26). She kept ringing the door bell, and he ultimately opened it. When he did, she said, “Oh no, you fucking finally open the door now? What the fuck are they doing with you here? . . . I don’t know what you fucking foreigners do in this country” (Tr. 26-27). He denied ever cursing at her (Tr. 27, 35-36). Respondent denied cursing at Mr. Ramoodit as alleged. She testified that she left the building to escort a blind co-worker to his bus, and that Mr. Ramoodit turned his back on her when she banged on the front door to come back in. She continued to ring the doorbell and the custodian, Patrick Fisher, opened the door. She asked Mr. Ramoodit why he had not done so and he replied that it was because “[she was] an asshole,” to which respondent answered, “Well, you’re an asshole” (Tr. 79). She also said that another co-worker heard Mr. Ramoodit call her a “stupid American,” although she did not hear this comment (Tr. 80). She denied ever calling him a “foreigner” (Tr. 85). She told Mr. Ramoodit that she was going to write him up. The next day, October 8, 2003, Mr. Ramoodit’s supervisor, Mr. Spurill, told her “to be humble” and “to let it go” and not “say anything” (Tr. 82). At that point respondent was called to the director’s office for a meeting. </p><p>3 Ms. Bartolatta testified via conference call from her home in Florida, where she is retired. Her testimony was taken over the objection of respondent’s counsel, who claimed respondent was prejudiced by not being able to observe the witness in the courtroom (Tr. 18). It was noted that this tribunal has in the past taken testimony by conference call, when a witness is unable to be present, and that this method permits the opposing party the opportunity to cross-examine, and thus is preferable to merely accepting a prior written statement of the witness as a hearsay document (Tr. 19). -4- Respondent acknowledged raising her voice and calling Mr. Ramoodit a liar during this meeting, because she believed that he was lying (Tr. 81-82). Mr. Ramoodit did not testify about what happened during the meeting, but explained that, immediately after the meeting, respondent started calling him names and pointing her finger at him. However, he professed not to know what she said, because he was walking away and did not hear her (Tr. 32). The other people at the meeting, Ms. Fadeyi and Ms. Bartolatta, described respondent as “very volatile” (Pet. Ex. 3) and “very loud and very angry” (Fadeyi: Tr. 49; Bartolatta: Tr. 60). Ms. Fadeyi also testified that immediately after the meeting, respondent repeatedly cursed at and threatened Mr. Ramoodit and appeared on the verge of hitting him. She claimed to have stepped in between the two to prevent an attack (Tr. 52-53). Ms. Fadeyi’s testimony was consistent with statements made in her memorandum of October 20, 2003, requesting that disciplinary action be taken against respondent (Pet. Ex. 3). Respondent denied ever getting “up in the security guard’s face,” indicating instead that she talked to her shop steward after the meeting (Tr. 83, 85). As between the testimony of Mr. Ramoodit and respondent regarding their exchange of words on October 7, 2003, I found Mr. Ramoodit to be the more credible witness. In particular, I did not find respondent’s contention that she did not curse at Mr. Ramoodit, except to respond to his calling her an “asshole,” to be creditable. It was apparent that respondent was upset and angry when Mr. Ramoodit did not open the door for her. She emphasized that she was “soaking wet” and had left the building only to escort a blind co-worker to his bus (Tr. 80). I also did not find respondent’s contention that Mr. Ramoodit initially cursed at her to be convincing. Mr. Ramoodit exhibited a calm and low-key demeanor at trial, consistent with Ms. Fadeyi’s description of him as being “quiet” and not “loud or easily angry or agitated” (Tr. 58). He explained that he did not curse at respondent, because he has had prior negative encounters with her4 and tries to avoid confrontations with her. “I have to ignore her. If I were to say something, we could end in a fight” (Tr. 35). Indeed, Mr. Ramoodit professed to have asked for a transfer in order to get away from respondent (Tr. 41). I also credited Mr. Ramoodit’s testimony as to the profanity used by respondent and the reference to him as a foreigner. This testimony was corroborated in part by Ms. Fadeyi, who</p><p>4 It was undisputed that Mr. Ramoodit and respondent had had a prior disagreement over whether respondent or her nephew could bring a bicycle into the building’s vestibule. Mr. Ramoodit claimed that respondent had cursed at him during this disagreement (Tr. 38). -5- testified that Mr. Ramoodit related the profanity and ethnic slurs in their meeting the next day (Tr. 49). Mr. Ramoodit’s testimony was also consistent with his memorandum, written on October 7, soon after the incident (Tr. 28, 29; Pet. Ex. 1). In sum, the preponderance of the credible evidence establishes that Mr. Ramoodit did not permit respondent to re-enter the building through the front door after 5:00 p.m., in accordance with office policy. However, he eventually let her in, at which point she began cursing at him, referring to him as a “fucking dumb ass” and as a “fucking foreigner.” Hence, charge one, specification one is sustained, except as it alleges that respondent threatened Mr. Ramoodit. The reference in the charge to the threat was apparently taken from Mr. Ramoodit’s memorandum (Pet. Ex. 1), but the charge is not an accurate transcription of the memorandum. Moreover, the memorandum itself is unclear, providing in the relevant third paragraph, “This is the second (2) time she is cursing me. The she said tomoro you will see you get the fuck out of here (bich/) [sic]". Mr. Ramoodit’s testimony, that respondent said, “You come tomorrow, you going to see who the fuck, get the fuck out of here, you dumb bitch,” while obviously establishing that respondent was discourteous, was insufficient to establish a threat. Charge three, which prohibits the use of speech which may “tend to arouse hatred or ill will against any individual or group on the basis of their . . . national origin . . .” is also sustained, given respondent's disparaging reference to Mr. Ramoodit as a "foreigner." Charge one, specification two, is not sustained. The charge alleges only that, on October 8, 2003, respondent became “loud, verbally hostile, and inappropriate by repeatedly calling Mr. Ramoodit . . . a liar.” Respondent admitted as much. However, we have held that not every disagreement between a co-worker and supervisor, or, as in this case, between two co-workers constitutes misconduct. Health and Hospitals Corp. (Lincoln Medical and Mental Health Center) v. Thomas, OATH Index No. 531/04 (May 4, 2004) (using a “southern colloquialism” to tell a co-worker to mind her own business not misconduct, where respondent neither threatened the co-worker nor used profanity); Health & Hospitals Corp. (North Central Bronx Hospital) v. Diaz, OATH Index No. 783/02 (Apr. 8, 2002) (respondent's comment to a co-worker that her "attitude was fucked up" did not constitute misconduct because of respondent's non-belligerent manner, the context in which the comment was made, and the fact that it was not made in the -6- presence of a patient). Notably, this charge does not allege the more serious use of profanity and physically threatening behavior which Ms. Fadeyi insisted occurred after the meeting.5 Finally, charge four is sustained insofar as it re-alleges charge one, specification one, except for the allegation as to the threat, which is not sustained.</p><p>Absence without authorization, October 7, 2003 (charge 2, no. 00222-06) Charge two alleges that respondent was absent from her assigned work area without authorization from 5:40 p.m. until 6:23 p.m. on October 7, 2003. In support of the charge, Ms. Bartolotta testified that she saw respondent leaving the center at 5:40 p.m. on October 7. She did not see respondent return, but when she checked respondent’s “auto-time” the next day, she saw that respondent had clocked out at 6:23 p.m. (Tr. 67, 68, 72). According to Ms. Bartolatta, the only time HRA workers were allowed to leave the building during the workday was during lunch or a smoke break, or to go home (Tr. 68). She did acknowledge, however, that respondent would have been permitted to leave the building to walk a blind co-worker to the bus (Tr. 70). Respondent testified that on October 7, she had left the building after 5:00 p.m. to escort a blind co-worker to the bus (after which she had words with Mr. Ramoodit), and also to retrieve a bag that she had left at a grocery store during her lunch break. She insisted that she had made the latter trip with the permission of Ms. Bartolatta. She denied being gone for more than five minutes, because the store is directly across the street from the center (Tr. 84). Charge two is not sustained. Ms. Bartolatta’s testimony that employees can not leave the building except on designated breaks referred to the general policy, and she did not specifically rebut respondent’s testimony that, in this instance, she had been given authorization to leave the building. More importantly, even if Ms. Bartolatta’s testimony that she saw respondent leave the building at 5:40 p.m. is credited, petitioner presented absolutely no evidence as to what time respondent returned to the building. Ms. Bartolatta admitted that she was not present when</p><p>5 Even if the charge were amended to conform to the proof, see Francis v. West, 81 A.D.2d 714, 439 N.Y.S.2d 471 (3d Dep’t 1981); Mendoza v. Jacobs, 14 A.D.2d 521, 217 N.Y.S.2d 122 (1st Dep’t 1961); Dep’t of Correction v. Velez, OATH Index No. 376/88 (Dec. 22, 1988), Mr. Ramoodit did not mention either the use of profanity or any physically threatening behavior in his testimony, instead indicating that he had walked away from respondent as she was pointing her finger at him and did not hear what she was saying. The divergence between Mr. Ramoodit’s and Mr. Fadeyi’s testimony on this point is too critical to sustain the charge, if it were to be amended. -7- respondent returned, although she later learned that respondent clocked out of the building at 6:23 p.m. Petitioner’s theory is apparently that respondent clocked out at the time that she returned to the building, but it presented no evidence to this effect. It is equally plausible that respondent returned to work earlier and clocked out when she actually left. Additionally, petitioner failed to present evidence as to what shift respondent was working that day, what time she arrived in the morning, and what time her shift ended. Thus, in addition to not proving what time respondent re-entered the building, petitioner failed to prove that respondent was required to be at work until the time that she clocked out.</p><p>Taking and Cashing For Her Personal Use a Money Order Belonging to Someone Else, April 1, 2002 (charge 1, specifications 1 and 2; charge 2-5, charge no. 00222-07)</p><p>These charges allege that: respondent stole a $700 money order on April 1, 2002 (charge one, specification two, and charge three); respondent was arrested on December 30, 2003, was charged with four crimes relating to the theft, and entered a guilty plea to disorderly conduct on May 5, 2004 (charge two)6; respondent failed to report her December 30, 2003 arrest in writing as required to the office of the HRA Administrator/Commissioner (charge three); and, by engaging in the above, respondent brought discredit upon the agency and engaged in conduct prejudicial to good order and discipline (charges four and five). It must first be noted that the most serious charge, relating to the April 1, 2002 purported theft, alleges misconduct occurring more than eighteen months prior to the date of service of the charges (ALJ Ex. 1).7 Thus, the charge would be time-barred by the eighteen-month statute of limitations in Section 75 of the Civil Service Law unless one of the exceptions to the statute of limitations applies. Petitioner seeks to invoke the crimes exception in Section 75(4) of the Civil Service Law, which requires that the misconduct described in the disciplinary charges would constitute a crime if established in a court of competent jurisdiction. An agency which relies upon the crimes exception to the limitations period must establish by a preponderance of the</p><p>6 Petitioner moved to have charge one, relating to the arrests, amended to conform to the proof that respondent entered a plea of guilt to disorderly conduct. Respondent objected (Tr. 157). Although the better practice would have been to amend the charge in advance of the trial date, the motion was granted given the lack of any prejudice to the respondent resulting from the amendment (Tr. 159). </p><p>7 Affidavits annexed to the charges indicate that attempted personal service at respondent’s home was made on January 29, 2004, January 30, 2004, February 13, 2004, and February 14, 2004. Personal service of respondent at the workplace was not made until December 23, 2004. -8- evidence all of the elements of the alleged crime as defined in the Penal Law. Dep't of Correction v. Battle, OATH Index No. 1052/02, at 7-8 (Nov. 12, 2002), citing Aronsky v. Bd. of Education, 75 N.Y.2d 997, 1000, 557 N.Y.S.2d 267, 268 (1990); Triborough Bridge and Tunnel Auth. v. McRae, OATH Index No. 480/92, at 4 (Aug. 10, 1992); Human Resources Admin. v. Man of Jerusalem, OATH Index No. 936/90, mem. dec., at 17 (Aug. 2, 1990). In this case, respondent admitted finding the blank money order (Pet. Ex. 7) on the vestibule floor of the center where she was working, and, a few days later, asking the father of her daughter, John Williams, to cash the money order. He did so, writing in his name and address on the money order before cashing it on April 4, 2002 (Pet. Ex. 7). He handed respondent the cash and she took it and used it to make some purchases (Tr. 163). It was not disputed that the money order belonged to a center client, Maria C.,8 who subsequently reported the money order as lost and requested a replacement, at which point the Postal Service discovered that the money order had already been cashed by Mr. Williams (Bourdon: Tr. 104). Respondent testified that she locked the money order in her desk drawer for several days before having it cashed, during which she waited to see if anyone claimed it. She checked the front of the center, where notices are posted, to see if anyone posted a notice for a missing money order, but no one did (Tr. 162). She did not post a notice herself. She indicated that anyone could have brought in the money order, including a client (Tr. 162, 169). She did not inform Ms. Fadeyi about the money order, because she and Ms. Fadeyi “never clicked” (Tr. 168). Nor did she tell anyone else “in management” (Tr. 168). However, she did mention it to two co-workers, whom she named (Tr. 168). The criminal charges were resolved by her plea to disorderly conduct, which required that she make restitution to Ms. C. (Tr. 165). </p><p>8 Pursuant to Social Services Law § 136 (“protection of public welfare records”, petitioner requested that this tribunal maintain the confidentiality of the client, Maria C. by not disclosing her full name or other identifying information in the report and recommendation (see letter dated April 14, 2005). Social Service Law § 136 provides, "The names or addresses of persons applying for or receiving public assistance and care shall not be included in any published report or printed in any newspaper or reported at any public meeting ..." Despite respondent’s objection, respondent did not articulate any prejudice that would ensue from granting petitioner’s request. Respondent was fully aware of the client’s last name, which is contained in the record. Accordingly, and in line with our prior decisions, petitioner’s request was granted. See Human Resources Admin. v. Bellamy, OATH Index No. 1665/03 (Jan. 9, 2004); Admin. for Children’s Services v. Gold, 585/05 (Apr. 13, 2005) (not publishing an applicant’s full name in order to protect privacy, in accordance with Social Service Law §136(1)). -9- Respondent denied “stealing” the money order, indicating rather that she had used “very bad judgment” in having it cashed (Tr. 167). She testified that being arrested made her “depressed” and that she and her daughter had to move because other neighborhood children told her daughter that respondent was a “welfare thief”(Tr. 167). She would have made restitution earlier but her first lawyer told her that if she did, it would make her look guilty (Tr. 167). She has no personal contact with agency clients, and does not handle money orders in the course of her work (Tr. 168). Ms. C. testified that she had purchased the money order approximately a month and a half before bringing it to HRA in April 2002, to show her caseworker, Ms. Delgato, how much money she needed for rent (Tr. 130). Once she arrived at HRA, Ms. C. gave the money order to an HRA worker to make copies, along with electricity and telephone bills, and documentation of the names of her children (Tr. 131). Because Ms. C. was in a rush to return home, she did not notice until she returned home that the money order was not in the pile of papers returned to her by the HRA worker who made the copies (Tr. 131). Once she realized that she did not have the money order, Ms. C. called HRA’s offices, but they were already closed (Tr. 132). She returned to HRA in the morning and told Ms. Delgato that she had left the money order with the clerk who had made the copies. Ms. Delgato could not find the money order, and told Ms. C. that she was “stupid because she did not know what she was doing,” and that without the receipt the money order was not worth anything (Tr. 133). Ms. Delgato asked her if she could remember what the clerk who had photocopied the documents looked like, and Ms. C. said she was “tall and black” (Tr. 146). At no point did Ms. C. explicitly describe this clerk to Ms. Delgato (Tr. 145-49). Four days later, the money order was cashed (Tr. 133). Upon Ms. C.’s filing of a complaint with the police department, the matter was referred to the postal inspector’s office, and assigned to Postal Inspector Ana Bourdon for investigation (Tr. 133). Ms. C.’s landlord deferred payment of the overdue rent until respondent made restitution (Tr. 134). When asked if she knew who she gave the papers to, Ms. C. identified the respondent, testifying, “I only remember when I saw that woman [the respondent] coming out, I believed it was her. I don’t want to make any sort of mistake, but . . . I do remember that it was this woman that is here,” identifying the respondent (Tr. 132). She re-iterated that she recognized the -10- respondent upon seeing her in the hearing room (Tr. 144, 146). Respondent denied ever taking the money order from Ms. C., or ever seeing Ms. C. prior to the hearing date. She testified that she worked in February 2002 as a group clerk, preparing reports, and that she did not make photocopies of documents for agency clients (Tr. 161). The critical issue is whether petitioner established that respondent’s involvement in cashing the money order and taking the cash constituted a crime, such that specification two is not time-barred. Petitioner alleged that respondent’s actions constituted larceny (post-trial submission, Apr. 18, 2005). Under the Penal Law, “[a] person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.” Penal Law § 155.05(1). Property is defined as “any money, personal property, real property…evidence of debt or contract, or any article, substance or thing of value[.]” Penal Law § 155.00(1). Larceny also includes: a wrongful taking, obtaining or withholding of another’s property…by acquiring lost property. A person acquires lost property when he exercises control over property of another which he knows to have been lost or mislaid, with the [aforementioned] intent, without taking reasonable measures to return such property to the owner.</p><p>Penal Law § 155.05(2)(b). The wrongful cashing of a blank money order has been held to constitute the crime of petit larceny, see People v. Adkins, 236 A.D.2d 850, 653 N.Y.S.2d 1007 (4th Dep’t 1997).9 Under the circumstances, I conclude that respondent wrongfully acquired lost property, because, with the intent to appropriate the money order to herself, she failed to take reasonable measures to return it to its owner. In so doing, however, I do not credit Ms. C.’s testimony that she handed respondent the money order. Although quite adamant that she had handed the money order to a tall, black woman, Ms. C.’s in-court identification of respondent as that woman was completely unreliable. Ms. C. acknowledged that it was her son, then 13 years old, who had 9 Respondent has asserted that the money order was not “property,” as it was blank, and, further, that Mr. Williams was a holder in due course under the New York Uniform Commercial Code (“UCC”) who was entitled to keep the proceeds of the money order. Respondent’s contention, made by her counsel in a letter dated April 2, 2004, but in an envelope post-marked April 28, 2005, was untimely, as any additional argument was due April 18, 2005, and was also erroneous. As noted above, the Fourth Department has construed a blank money order to be “property” under the Penal Law. In addition, Mr. Williams would not meet the definition of a holder in due course, as set forth in UCC §3-302 (1). -11- accompanied her to HRA that day, who had described the clerk as a “tall, black woman” (Tr. 143). Ms. C.’s recollection was far vaguer. She testified, for example, that she thought but was not sure that the clerk had on a white shirt, but she then acknowledged that she was not certain. More strikingly, Ms. C., a Hispanic woman, indicated that she had difficulty distinguishing between different black women: “There’s a lot of people of her race that look similar . . . black people are sometimes difficult to recognize” (Tr. 144, 148). Significantly, Ms. C. acknowledged previously identifying another woman, not respondent, as the clerk to whom she had handed the money order. She did so the very next day, when she visited the center and spoke to Ms. Delgato. She saw a woman dressed in a blue suit and told her son that that was the person who had taken the money order for photocopying. Her son responded that this was not the correct person (Tr. 148). Someone from HRA asked her, in Spanish, if this was the person she remembered, but she was unsure, because she had difficulty distinguishing one black woman from another (Tr. 148). It defies reason to believe that some three years later, Ms. C. would correctly identify respondent as the clerk who took her money order, having failed to do so the day after the incident, and having admitted, more than once, some difficulty in distinguishing between different black women. Moreover, respondent testified that she is only five feet, four inches in height (Tr. 162), not particularly tall. The more appropriate inference is that Ms. C. identified respondent because she was the only black woman seated in the hearing room at counsel’s table. The wholly suggestive nature of in-court identification of a defendant (here, a respondent) has been amply noted, see, e.g., United States v. Archibald, 734 F.2d 938, 941, 943 (2d Cir. 1984); United States v. Domina, 784 F.2d 1361, 1368 (9th Cir. 1986) (citing cases), cert. denied, 179 U.S. 1038, 107 S.Ct 893 (1987). The potential for misidentification of persons of one ethnic or racial group by persons of a different ethnic or racial group, evident here, has also been acknowledged. People v. Radcliffe, 196 Misc.2d 381, 764 N.Y.S.2d 773 (Sup. Ct. Bx. Co. 2003) (citing Arizona v. Youngblood, 488 U.S. 51, 72 n.8, 109 S. Ct. 333, 345 (1988), rehearing denied, 488 U.S. 1051, 109 S. Ct. 885 (1989); State v. Cromedy, 158 N.J. 112, 727 A.2d 457 (1999). In sum, therefore, I do not find that Ms. C. handed the money order to Ms. Williams and that Ms. Williams failed to return it. Instead, in the lack of any other plausible scenario, I must -12- credit Ms. Williams’s testimony that she found the money order lying on the vestibule floor in the center. However, even crediting this testimony, respondent’s subsequent conduct did not consist of reasonable measures to return the money order to its owner. Although the Penal Law does not specifically define “reasonable measures,” the New York State Personal Property Law provides that the finder of any lost property, including money and instruments payable to the bearer or cash in excess of twenty dollars, must return the property to the owner or deposit it with the local police. Personal Property Law §251, 252 (Lexis 2005). The New York City Administrative Code, similarly, mandates that lost property or money in excess of ten dollars must be deposited with the police. NYC Administrative Code §10-106(a)(Lexis 2005). Here, not only did respondent fail to return the money order to the police, she failed to tell anyone, apart from two colleagues, that she had found the money order. She professed to have checked a bulletin board to see if anyone reported the lost money order, but she neglected to put up a notice herself. Her failure to tell the Director or any member of management that she had found a $700 money order that she knew full well might belong to a client was unreasonable and appears calculated to avoid having to take any steps to report the money order missing or return it to its purchaser. I did not credit respondent’s explanation, proffered for the first time on cross examination, that she attempted to return the money order to the post office. Respondent claimed on cross-examination that, prior to asking Mr. Williams to cash the money order, she had visited the post office and showed the money order to one of the postal clerks. Perhaps because it was around Christmas, the clerk was “nonchalant” and said, “so what do you want me to do?” (Tr. 169). On its face, respondent’s claim strained credulity, given Ms. Bourdon’s testimony that postal money orders have serial numbers by which they can be tracked and replaced (Tr. 104, 123). Additionally, respondent made no mention of this purported attempt in the narrative which she initially provided on direct examination. Indeed, when asked what she did with the money order after holding it in her desk drawer for a few days, she immediately described asking her daughter’s father to cash it (Tr. 163). Nor did respondent mention attempting to return the money order in either of her two written statements to Ms. Bourdon, which were provided on December 23, 2003, at 12:23 p.m. (Pet. Ex. 9) and 1:56 p.m. (Pet. Ex. 10). -13- I did not find respondent’s testimony that she omitted this important detail from her two statements to Ms. Bourdon because she was “upset” (Tr. 170) to be believable. It is not disputed that respondent was upset. Indeed, Ms. Bourdon testified that respondent kept crying and was very apologetic, while insisting that she did not know that it was wrong to cash a blank money order (Tr. 111). However, almost an hour and a half elapsed between the time that respondent wrote her first statement and the time that she wrote her second statement. Ms. Bourdon continued to question her, insisting that she was not convinced by respondent’s initial statement that she did not recall how she came to have the money order (Tr. 110, 113, 114). Respondent wrote the second statement, in which she admitted finding the money order on the floor in her building at work, after Ms. Bourdon indicated that she might be able to arrange for respondent to be arrested after Christmas (Tr. 113). Respondent had every incentive at this time to include any detail in her second statement that was mitigatory. It is not plausible that she simply forgot to do so. Further, respondent could offer no cogent explanation as to why, if the postal clerk declined to take any action on the money order, she did not simply cash it at the time. She insisted, both in her testimony before this tribunal, and initially to Ms. Bourdon, that she could not cash the money order because she lacked a driver's license. She acknowledged, however, having a state and city identification (Williams: Tr. 171; Bourdon: Tr. 118). I did not credit respondent's uncorroborated testimony that she needed a driver's license to cash the money order, and therefore asked Mr. Williams to do so. Rather, I found it more probable that respondent asked Mr. Williams to cash the money order in an attempt to distance herself from the transaction, knowing that the money order may have come from a client at the center at which she worked. Thus, the petitioner has established by a preponderance of the credible evidence that respondent’s cashing of the money order, through Mr. Williams, constituted the crime of larceny, in that she wrongfully took lost property, without taking reasonable steps to return it. Accordingly, the crimes exception to the statute of limitations in the Civil Service Law is satisfied, and charge one, specification two, is sustained. With regard to charge one, specification one, which alleges that respondent was arrested and charged with four separate crimes, we have held on numerous occasions that an arrest in and -14- of itself is not misconduct, but merely an allegation of illegal activity. Health and Hospitals Corp. (Queens Hospital Center) v. Jones, OATH Index No. 1505/00 (June 2, 2000); Dep't of Correction v. McDermott, OATH Index No. 280/96 (June 26, 1996), aff'd, 250 A. D. 2d 538, 673 N.Y.S.2d 127 (1st Dep't 1998); Dep't of Correction v. Dent, OATH Index No. 563/94 (Aug. 8, 1994). The plea to disorderly conduct also would not constitute misconduct. Disorderly conduct is a violation, not a crime, and there was no proof introduced on this record as to what respondent allocuted at the time that she entered her plea. It can not be inferred from her plea to disorderly conduct that she admitted engaging in any of the crimes for which she was arrested. See Transit Auth. v. Brooks, OATH Index No. 128/92 (Feb. 7, 1992), aff’d, 222 A.D.2d 502, 635 N.Y.S.2d 74 (2d Dep’t 1995) (collateral estoppel effect not given to criminal conviction of menacing, where petitioner failed to produce the indictment or any other proof of the factual allegations which supported the menacing charge); Dep’t of Correction v. Breland, OATH Index No. 128/85 (May 14, 1985) (a plea to a lesser included offense does not have a collateral estoppel effect on more serious charge with which respondent was charged but to which she did not plead guilty). Charge two, alleging that respondent failed to notify the office of the HRA Administrator/Commissioner and the Inspector General in writing, of the circumstances of her arrest, is not sustained, as no evidence was offered in support thereto. Charge three, alleging that respondent violated the Code of Conduct section prohibiting theft or conversion of another’s property, is sustained, as are charges four and five, alleging that respondent engaged in conduct which brings discredit to the agency and is prejudicial to good order and discipline. </p><p>FINDINGS AND CONCLUSIONS 1. Petitioner established by a preponderance of the credible evidence that respondent used profanity and threats toward a security guard, as alleged in charge one, specification one, charge three, and charge four (00222-06). Petitioner did not establish that respondent threatened the security guard, as also alleged in charge one, specification one (00222-06). -15- 2. Petitioner did not prove by a preponderance of the credible evidence that respondent committed misconduct by calling the security guard a liar, as alleged in charge one, specification two (00222-06).</p><p>3. Petitioner did not establish by a preponderance of the credible evidence that respondent was away from her assigned work location without prior or subsequent authorization, as alleged in charge two (00222-06).</p><p>4. Petitioner failed to establish that respondent’s arrest on December 30, 2003 and her subsequent guilty plea to disorderly conduct constituted misconduct, as alleged in charge one, specification one (00222-07).</p><p>5. Petitioner established by a preponderance of the credible evidence that in April 2002, respondent improperly engaged in the cashing of a blank money order that had been purchased by an agency client, without taking reasonable steps to report the lost money order or return it to its owner, as alleged in charge one, specification two, and charges three through five (00222-07).</p><p>6. Petitioner failed to establish by a preponderance of the credible evidence that respondent failed to report her arrest in writing, as alleged in charge two (00222-07).</p><p>Therefore, with regard to charge no. 00222-06, charge one, specification one, is sustained, in part; charge one, specification two, and charge two, are not sustained; and charges three and four are sustained. With regard to charge no. 00222-07, charge one, specification one is not sustained; charge one, specification two, and charges three through five, are sustained; and charge two is not sustained. RECOMMENDATION Having made these findings, I requested and received information pertaining to respondent’s disciplinary history and performance evaluations. The information provided indicates that respondent began employment on July 6, 1987, as an eligibility specialist II. She became an eligibility specialist III in 1994, and in 2000, was demoted to a clerical associate III. The demotion occurred pursuant to the settlement of four sets of disciplinary charges which alleged that, in 1998 and 1999, respondent had neglected to service clients and cooperate with -16- colleagues, spoken rudely and inappropriately to clients and colleagues, violated agency policy regarding conflict of interest by providing a furniture allowance and rental arrears to her brother, and made a false case entry in a participant's case record. In addition to the demotion, respondent agreed to be placed on termination probation from March 2000 through March 2003. Respondent had previously accepted a ten-day suspension in 1990, as a result of charges alleging that she was verbally abusive to clients and a supervisor, and inflicted physical injury upon a co-worker. Petitioner seeks respondent’s termination from employment, asserting that she committed theft and is not trustworthy. Although I have not found that Ms. C. handed the money order to respondent for photocopying, respondent’s conduct was nonetheless serious. A long-term employee, respondent admitted knowing that the money order might have been brought in by an agency client; yet, she failed to report it missing, either to the post office, police, or any supervisor. Her failure to do so was egregious and evinced a lack of good judgment, as well as a lack of concern for the welfare of the clients served by her agency. Respondent’s use of profanity toward Mr. Ramoodit, while less serious, also demonstrated poor judgment and a lack of self-control. Moreover, respondent’s prior disciplinary record is significant. Her demotion from an eligibility specialist to a clerical associate, following serious charges of unprofessional conduct and impropriety, should have served as a deterrent to any future misconduct. Apparently, it did not. -17-</p><p>Thus, considering all of the circumstances, I am constrained to find that the only appropriate penalty is termination, and I so recommend.</p><p>Faye Lewis Administrative Law Judge</p><p>Dated: September 21, 2005</p><p>SUBMITTED TO:</p><p>VERNA EGGLESTON Commissioner</p><p>APPEARANCES: CATHERINE A. KENDRICK, ESQ. Attorney for the Petitioner</p><p>DRUYAN & ASSOCIATES Attorneys for Respondent BY: MARTIN DRUYAN, ESQ.</p>