Human Resources Admin. v. Agakpe OATH Index No. 318/15 (Nov. 7, 2014)

Transcription

1 Human Resources Admin. v. Agakpe OATH Index No. 318/15 (Nov. 7, 2014) Fraud investigator was found guilty of a long-term continuous AWOL and additional instances of AWOL, and directing profanity at a co-worker. Charge that he threatened supervisors should be dismissed. ALJ recommends his termination. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of HUMAN RESOURCES ADMINISTRATION Petitioner - against - PETER AGAKPE Respondent REPORT AND RECOMMENDATION TYNIA D. RICHARD, Administrative Law Judge This employee disciplinary proceeding was referred by petitioner Human Resources Administration ( HRA ) pursuant to section 75 of the Civil Service Law. Petitioner charged respondent Peter Agakpe, a fraud investigator, with directing profanity toward a co-worker, using threatening language in a meeting with superiors, and with being absent without leave ( AWOL ) on September 20, 25, 26 and 27, 2013, and continuously from October 21, 2013, to the present. A hearing was scheduled to be held before me on October 16, Upon respondent s failure to appear, proper proof of service of the charges and notice of the hearing was submitted (ALJ Exs. 1, 2). Such evidence established the jurisdictional prerequisite for finding him in default, and the hearing proceeded as an inquest. Petitioner presented four witnesses in addition to its documentary evidence. Based upon the record of the proceeding, I find that petitioner established the long-term AWOL, along with other misconduct, and recommend termination of respondent s employment.

2 - 2 - Long-term Absence Without Leave ANALYSIS Petitioner charges that respondent was continuously AWOL from October 21, 2013, to the present. The charge was sustained. Maria Ciniglio, the Executive Director of Administration for Investigations, Revenue, and Enforcement, testified that she spoke with respondent near the end of October 2013, explained to him that he was AWOL, and urged him to return to resolve his status (Tr ). Respondent told her he would return to work on November 1st. She said he returned to work about a week later. He was assigned to a new work location, where he worked for a day and a half and never returned to HRA (Tr. 14). She sent respondent a letter on December 2, 2013, informing him of his AWOL status and advising him to return to work to resolve his employment status, or to submit a letter of resignation (Tr. 14; Pet. Ex. 1). None was received (Pet. Ex. 2 16). Ms. Ciniglio indicated that respondent is still carried as AWOL in the system (Tr. 17). No one has informed her that he ever returned to work. In an affidavit sworn on October 15, 2014, Miranda Baptiste, an implementation officer in the Employee Discipline Unit of HRA s Office of Staff Resources states that she is familiar with agency records pertaining to employee absence and leave status, that respondent has been continuously absent since November 13, 2013, and he has never submitted a letter of resignation (Pet. Ex. 2 6, 10, 14, 16). Angela Heywood, respondent s immediate supervisor, testified that sometime in November 2013, she received the following voic message from respondent, which she transcribed and sent in an to her superior, Denese Clue on November 14, 2013: Ms. Heywood, Peter Agakpe, I just wanted to call you to I reported working somewhere, I don t know if, but I don t think I will be going back there anymore, and unfortunately I don t have any of their phone numbers, some people were genuinely concerned when I was there, some people they will be wondering why I don t want them stuck wondering why, I m very fine, I just can t go there, I don t have their phone number to anybody to call to say I m sick, but I m not feeling fine and I cannot continue working there either. So I just wanted to call you just in case anybody calls there to ask tell them Peter is alive and fine, he can t come back to work there anymore. I think I finally decided to give up on working. Please process my, the thing I sent you an the other day. Please process my expense sheet for God sake. Ok,

3 - 3 - (Pet. Ex. 8; Tr ). God Bless You, may you prosper in your life, I m going to prosper very well too. Thank you. Bye. This was the last communication Ms. Heywood received from respondent (Tr. 43). Respondent never submitted any documentation of illness for his absences in September or October 2013 (Tr. 46). A certified letter was sent to respondent s last address of record on December 19, 2013, advising him of his AWOL status since November 13, 2013, and asking that he either resign or submit appropriate documentation for his absence by December 26, 2013 (Pet. Ex. 2 9 and attachment). Respondent has never responded by submitting a formal resignation (Pet. Ex. 2 10, 16). There were no records offered in the record of the hearing indicating a medical excuse for respondent s absence. Ms. Ciniglio s testimony did not establish the date that respondent s AWOL commenced; there was no evidence that it commenced on October 21, The evidence established that respondent was AWOL for the period November 13, 2013, to the present. Indeed, his last phone message to Ms. Heywood indicates an intention not to return to employment with HRA. September 2013 Absences Petitioner charges that respondent was AWOL on September 20, 25, 26, and 27, 2013 (Specifications III & IV). The charges should be sustained. Ms. Heywood tracked respondent s time and leave on an Absence and Tardiness Calendar (Pet. Ex. 6) because his attendance was problematic (Tr. 35). The calendar indicates he was absent from September 20 through October 7, 2013, and was carried as leave without pay (Pet. Ex. 6; Tr. 46). Ms. Heywood testified that he called on September 19 and reported he would be out that day; he did not come to work on the following days and he did not call again during that period of absence (Tr. 37). After October 11, 2013, he was no longer assigned to her unit (Tr. 47). Ms. Ciniglio testified that she reviewed respondent s time records and confirmed that he was AWOL on September 21, 25, 26, and 27, 2013 (Tr ). She referred the AWOLs for disciplinary action. The uncontroverted evidence, specifically Ms. Ciniglio s testimony, is sufficient to prove the charge that respondent was AWOL on September 21, 25, 26, and 27, 2013.

4 - 4 - Directing Profanity at Co-Worker Petitioner charges that, on July 2, 2013, respondent directed profanity at a co-worker during a field visit, stating that he was a fucking stupid asshole, you have been a fucking idiot for a long time, take this case home fucking asshole, and other offensive language (Specification I). Mohammad Hossain, a fraud investigator employed by HRA for 10 years, was partnered with respondent while conducting field visits on July 2, 2013 (Tr ). As a team, they were to alternate responsibility for conducting case interviews. That day, respondent refused when it was his turn to conduct the interview on the third case of the day (Tr ). When Mr. Hossain insisted it was respondent s turn, respondent began to curse at him, using the F word (Tr. 24). Mr. Hossain did not know what to do. He pulled out his cell phone and began recording respondent because he expected him to deny that he used profanity when they returned to the office (Tr. 24). They called the office and Mr. Hossain explained what happened to Denese Clue, Deputy Administrative Director. Ms. Clue asked to speak to respondent who got on the phone and admitted cursing Mr. Hossain (Tr ). Respondent admitted telling Hossain that he as a fucking idiot (Tr. 53). Hossain told Ms. Clue that respondent also said told Hossain to go fuck yourself, all of you are fucking fools. You don t know what you re fucking doing and on and on (Tr. 53). Ms. Clue told them to return to the office (Tr. 24). Ms. Clue testified that Hossain called her again, minutes later, and reported that respondent continued to curse at him in the subway station (Tr ). Hossain told her that [e]verybody s looking and he s just still telling me, go fuck yourself, you fucking idiot.... Why did you tell Ms. Clue you re not working with me? You re so fucking stupid. (Tr. 54). When they returned, Ms. Clue spoke with the men individually and separately. She said that respondent both apologized for his behavior and, shortly thereafter, denied doing it. Hossain told her that he had taped respondent s statements, and he played the recording for her (Tr. 55). Hossain said that respondent s eyes were red as he berated him, and he gesticulated with his hands (Tr ). When he began to use the F word, Hossain decided respondent was not respecting him so he refused to talk with him. Upon his return to the office, Hossain spoke with Ms. Clue who told him to write a memo describing the incident and he did so (Tr ). Ms. Clue described the incident as reported to her by Hossain in a memorandum she sent to her supervisor, Sandra Stephens (Pet. Ex. 9).

5 - 5 - Respondent submitted a memorandum that described a different version of events. In it, he does not mention Hossain s allegation that he cursed at him. Rather, he reports a verbal altercation in which Hossain yelled profanities at him and stated that respondent was a known habitual cheat and a silly man who always made sure that he did fewer cases (Pet. Ex. 9, attachment). Nothing about Hossain s soft-spoken demeanor at the hearing suggested he would yell profanities at respondent. I did not credit respondent s account stated in the memo. As a result of this incident, Ms. Clue conducted a counseling session with respondent on July 9, 2013, which she, Ms. Stephens, Ms. Heywood, and respondent and his union representative attended (Pet. Ex. 10). Ms. Clue and Ms. Heywood testified that in the session, respondent denied addressing Mr. Hossain with profanity -- despite his prior admission to Ms. Clue by phone -- and he blamed a conspiracy against him (Tr , 54). His supervisors told him his conduct was totally unacceptable and violated the Code of Conduct and provided him with a copy (Pet. Ex. 5, Tr. 34, 60). They also offered him the services of the Employee Assistance Program ( EAP ) (Tr. 33, 60). Clue later memorialized the July 9 counseling session in a memorandum she provided to respondent (Pet. Ex. 10). Ms. Heywood also memorialized the session (Pet. Ex. 4). The Clue memo noted prior counseling sessions conducted with respondent due to inappropriate behavior in 2009, 2010, and The memo also noted that respondent was offered EAP assistance in October 2012, and again on July 9. Mr. Hossain testified that he was scared of working with respondent and he refused to do so again (Tr. 27). Similarly, in his memorandum to Ms. Clue, he reported that respondent stated you are fucking stupid asshole, I am going to fuck you fucking asshole, you ve been a fucking idiot for a long time. I am going to fuck you, take this case home fucking asshole (Pet. Ex. 3). As a result of this and other incidents, Mr. Hossain asked not to be partnered with respondent because his sudden outbursts, the foul languages [sic] that he shouts at me, his lack of respect for me, [and] his intimidating, aggressive and hostile manner that s displayed towards me leaves me feeling extremely afraid troubled and threatened. It is impossible to do my field work under such [a] menacing situation (Pet. Ex. 3). Petitioner offered credible and persuasive evidence that respondent accosted Mr. Hossain, unprovoked, with vile profanity during a field assignment on July 2, His conduct not only violated the agency s Code of Conduct, it also constitutes misconduct under section 75 of the

6 - 6 - Civil Service Law. Dep t of Correction v. Peterson, OATH Index No at 7 (Jan. 11, 2013) (employee s use of profanity in argument with co-worker constituted misconduct); Dep t of Information & Technology v. McCray, OATH Index No. 546/06 at 7 (Feb. 24, 2006) (disrespectful use of profanity is misconduct); Dep t of Housing Preservation & Development v. Tulloch, OATH Index No. 512/03 at 5-6 (May 13, 2005), aff d, NYC Civ. Serv. Comm n Item No SA (Aug. 11, 2005) (disruptive conduct and disrespectful use of profanity is sanctionable). Threatening Language Respondent is charged with causing his supervisors to feel threatened during a counseling meeting when he stated whenever I feel my stress level rising, instead of getting a gun and shooting up the place, I stay away and the devil you know is better than the angel that you don t know. I have proof that people have gotten sick here and that people have died because of the environment. (Specification V). As a result of spotty attendance at work in September and October 2013, Ms. Clue and Ms. Heywood met with respondent on or about October 11, 2013, about his time and leave. Ms. Clue thought the meeting was sometime in September (Tr. 63), but she documented the meeting in a memorandum dated October 11, 2013 (Pet. Ex. 11), and said the memo was contemporaneously written (Tr. 64). According to the memo, respondent told Ms. Clue and Ms. Heywood that we all make him sick and that managers should provide an environment that is conducive to peoples [sic] health (Pet. Ex. 11). The memo also quoted respondent saying (i) [w]henever I feel my stress level rising, instead of getting a gun and shooting up the place I stay away, and (ii) when I feel my stress level is going up instead of doing what some people do and coming back and shoot up their work place I stay away (Pet. Ex. 11). The memo states that Ms. Heywood told respondent that he could request a transfer or go to EAP and he stated, Well the devil you know is better than the angel you don t know, I told personnel to let me go and they say no, I told them the last time they call, and they said no, I have proof that people have gotten sick here and that people have died because of the environment. (Pet. Ex. 11). The basis for charging the latter comments as misconduct is not clear to me. The devil you know comment is an old folk adage that advocates remaining in a stagnant situation because new opportunities are not assured to be better ones. As for respondent s stated fear that

7 - 7 - people were getting sick because of the environment there is nothing to put the comment into context on this record. The comments are not obscene, discourteous, abusive, or threatening, and I do not understand how they could be interpreted to be misconduct. Ms. Heywood testified about the meeting and wrote a memo describing it (Pet. Ex. 7). She testified that respondent indicated he had been sick when asked about his failure to follow time and leave procedures (Tr ). He then said this is why people come and shoot up the place at work because of discussions like this (Tr. 39). She said Ms. Clue then terminated the meeting (Tr. 40). She did not indicate that he made the statement several times; nor did she indicate that she felt threatened by respondent s statement. Her memo similarly quoted respondent s statements and added that he rejected EAP (Pet. Ex. 7). She said respondent apologized at the end of the meeting (Tr. 40). With respect to respondent s comments that he stays away from work whenever he feels his stress level rising so as to avoid shooting up the place, they are certainly inappropriate to the workplace, even jarring. Threats about getting a gun and shooting up the place are plainly misconduct and should be taken seriously. I was not certain that respondent s statements were threats, however. According to Ms. Clue, the statement was respondent s explanation for why he had been absent from work (Pet. Ex. 11). She testified that each time he said it Ms. Heywood would say, Peter, listen to what you just said. You have options, you can transfer [w]hy don t you think about what you re saying and respondent would repeat the same thing again (Tr. 67). Clue said he did so four or five times before she ended the meeting, at which time he had started to get erratic, raised his voice, and his eyes turned red (Tr. 65, 67). She testified that his behavior made her feel threatened (Tr. 68). None of this detail is provided in Clue s memorandum, which she forwarded up the chain to her superiors (Tr. 68). Nor was it corroborated by Heywood. Clue s memo records respondent s statements but does not characterize them as threats or indicate that she felt fearful or believed he should be disciplined for them. Nor does the memo render an opinion of the statements or record her reaction to them. Moreover, her testimony that he said: sometimes I need to come in and shoot up, shoot everybody. I just want to kill all of you (Tr. 63) differed significantly from her memo which did not report that he made a direct threat such as I want to kill all of you. The marked difference between the urgency of the latter statement and the one recorded contemporaneously in her memo was not explained and it

8 - 8 - appeared to indicate the latter statement was embellished. I found her testimony, given a year after the encounter with respondent, to be less reliable than her contemporaneous written statement. Transit Auth. v. Victor, OATH Index No. 799/11 at 4 (Mar. 3, 2011), aff d, NYC Civ. Serv. Comm n Item No. CD A (Aug. 9, 2011) (contemporaneous statements evince reliability); Dep t of Sanitation v. Sanders, OATH Index No. 558/09 at 4 (Jan. 5, 2009); Dep t of Correction v. Odle, OATH Index No. 118/07 at 7 (Dec. 22, 2006) (ALJ did not credit respondent s testimony that she received approval for leave request where respondent failed to mention the approval in a contemporaneous memo). Respondent did not return to work after this encounter so Ms. Clue never addressed the incident with him (Tr. 69). She did receive a voice message from respondent indicating that he was not returning to work, which she initially did not believe. She later was advised by a superior that respondent would be transferred to another office in Brooklyn. She saw respondent once when he reported to the office and was told to report to Brooklyn and he left. On this record, the question of whether respondent threatened his supervisors must be answered in the negative. Although the language is extremely inappropriate, the evidence did not establish that he made a threat. Neither supervisor reported contemporaneously that they felt threatened by respondent. In fact, they considered an appropriate resolution to respondent s behavior to be an interoffice transfer, which supports a belief that he was not a threat. Manifestly, if his supervisors had pegged him as a danger, they would not have transferred him to another position in the same agency at another location. Such a concern would have been reported immediately in the written memoranda submitted by both supervisors and it was not. The charge should be dismissed. FINDINGS AND CONCLUSIONS 1. Respondent was properly served with notice of the hearing, which he failed to attend and was declared in default. 2. Petitioner proved that respondent committed misconduct by cursing at his co-worker on July 2, 2013, during a field visit. 3. Petitioner failed to prove that respondent threatened his supervisors when he stated during a meeting that they should provide an environment conducive to people s health and that

9 - 9 - he stays away from work when his stress level rises instead of getting a gun and shooting up the place. 4. Petitioner proved that respondent was AWOL on September 21, 25, 26, and 27, Petitioner proved respondent s guilt of misconduct for his continuous AWOL from October 21, 2013, to the present. RECOMMENDATION Respondent has been continuously AWOL from his job for more than a year. During this time, he has communicated with the agency but has not resolved his employment status, despite the agency s efforts. He has also been found guilty of other instances of AWOL. Respondent s failure to report to work is a fundamental form of misconduct which substantially impedes the agency s ability to fulfill its mission. Dep t of Housing Preservation & Development v. Sanchez, OATH Index No. 1019/13 at 2 (Jan. 17, 2013); Health & Hospitals Corp. (Harlem Hospital Ctr.) v. Lawal, OATH Index No. 317/13 at 2 (Oct. 1, 2012). The only appropriate penalty for this misconduct is termination. Petitioner also proved that respondent directed profanity toward a co-worker while on a field visit to a client, humiliating and frightening the co-worker. Respondent was not present at the hearing to dispute these actions. The uncontroverted evidence showed that in this instance respondent demonstrated a lack of self-control in publicly berating a colleague in the most profane and humiliating fashion and then attributed fault to a conspiracy against him conceived by others, both of which characteristics are troubling. For the misconduct proven here, I recommend termination of his employment. November 7, 2014 SUBMITTED TO: STEVEN BANKS Commissioner Tynia D. Richard Administrative Law Judge

10 APPEARANCES: DANIEL KORENSTEIN, ESQ. Attorney for Petitioner No Appearance by or for Respondent