Dep t of Information Technology and Telecommunications v. McCray OATH Index No. 546/06 (Feb. 24, 2006)

Transcription

1 Dep t of Information Technology and Telecommunications v. McCray OATH Index No. 546/06 (Feb. 24, 2006) Petitioner established that respondent was excessively late, absent without leave, and used offensive language towards a co-worker. Evidence failed to prove that respondent struck, attempted to strike, or threatened a colleague. Two-month suspension recommended. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of DEPARTMENT OF INFORMATION TECHNOLOGY AND TELECOMMUNICATIONS Petitioner - against - JAY McCRAY Respondent REPORT AND RECOMMENDATION KEVIN F. CASEY, Administrative Law Judge The Department of Information Technology and Telecommunications (the Department) brought this employee disciplinary proceeding pursuant to section 75 of the Civil Service Law. Petitioner charged respondent Jay McCray, a clerical associate, with misconduct for excessive lateness, absences without leave (AWOL), threatening a co-worker, and using offensive or obscene language towards a fellow employee. At the hearing, held on January 4 and 6, 2006, petitioner relied upon four witnesses and documentary evidence. Respondent testified on his own behalf and also submitted documentary evidence. For the reasons set forth below, I find that petitioner proved nearly all of the charges and recommend that respondent be suspended without pay for two months.

2 -2- ANALYSIS Time and Leave Violations (Charges I and II) Petitioner alleges that, from June 2004 to March 2005, respondent reported to work more than 15 minutes late on seven occasions and, during that same period, returned late from lunch on three occasions (ALJ Ex. 1). Oliver Mapp, respondent s supervisor in the Department s tape library, testified that respondent s starting time was between 7:00 and 7:30 a.m. (Tr. 111). This early starting time was flexible to accommodate respondent s need to pick up his grandchild from school in the afternoon, but respondent was deemed late if he arrived after 7:30 a.m. (Tr. 111, ). Timesheets, introduced through the Department s timekeeping manager Sylvia Johnson, indicated that respondent was late on each of the dates alleged in the charges, for a total of 349 minutes (Pet. Exs. 2 and 6). According to Mr. Mapp, respondent s lateness affected library operations, because work had to be reassigned (Tr. 116). Respondent did not deny arriving late on the dates alleged. Nor did he provide explanations for any specific instance of lateness. However, he testified that, due to personal problems, he was temporarily homeless from April 2004 to January 2005 (Tr ). Respondent, who served in the Air Force in the early 1970s, was referred by the Veteran s Administration to a shelter in Bushwick (Tr ). Each morning he had to wait on long line to check out of the shelter and take buses to get to work in downtown Brooklyn (Tr. 167). Respondent also testified that he frequently felt fatigued and, in July 2004, he was diagnosed with hepatitis C (Tr ). He further noted that he sought counseling from the New York City Employee Assistance Program (Tr. 168; Resp. Ex. C). As for his lateness at lunchtime, respondent explained that he was assisting his elderly mother with her doctor appointments. On his lunch hour, he occasionally took the train from downtown Brooklyn to the doctor s office, on East 29 th Street in Manhattan, where he would help his mother obtain car service (Tr. 172). Respondent presented a letter from the doctor indicating that respondent s mother was treated at the doctor s office on more than 30 occasions in 2004 (Resp. Ex. D). The letter indicated that respondent s mother was treated on June 23, 2004, a date when respondent was 12 minutes late returning from lunch (Pet. Ex. 2; Resp. Ex. D). Although Mr. Mapp recalled receiving the letter, via fax, in August 2004, he deemed it untimely and insufficient because it made no mention of respondent (Tr. 133).

3 -3- Petitioner did not dispute that respondent had been living in a homeless shelter or caring for his mother. Also, Mr. Mapp noted that documented lateness due to transportation delays would have been excused (Tr. 133). However, Mr. Mapp insisted that respondent never offered any of those explanations when he reported late for work (Tr. 117, 127). Several times respondent simply told Mr. Mapp, I was late (Tr. 127). Based upon Mr. Mapp s credible testimony and the timesheets, petitioner established that the ten alleged instances of lateness were unexcused. Department rules do not define excessive lateness. Hence, the Citywide Employee Lateness Policy is applicable. See Dep t of Housing Preservation & Development v. Jones, OATH Index No. 1068/00, at 10 (July 7, 2000). That policy defines excessive lateness as seven or more late arrivals within twelve months. It also requires the immediate supervisor to meet the employee, after the fourth occurrence of an unauthorized lateness, to explain the lateness policy and develop methods to help the employee avoid future lateness. The employee must also be warned of possible disciplinary action following the fourth, fifth, and sixth unauthorized lateness. See Citywide Employee Lateness Policy, Personnel Services Bulletin No R, effective April 17, 2000, superseding Personnel Services Bulletin No Mr. Mapp claimed that he discussed lateness issues with respondent and completed a Departmental form, referred to as a lateness review, documenting their discussion about possible explanations and solutions for respondent s lateness (Tr. 116). But the form was never offered in evidence. Indeed, respondent testified that he believed his latenesses were acceptable because some of them were charged to his annual leave (Tr. 175). He further claimed that he was unaware that he could face termination because of his time and leave violations (Tr. 181). Ms. Johnson, who maintained the computerized payroll records, explained that two of respondent s instances of lateness were erroneously coded by data entry personnel as annual leave (Tr. 12, 38, 40-41; Pet. Ex. 1). However, Ms. Johnson insisted that, according to timesheets signed by respondent and a supervisor, all ten instances of lateness were unauthorized and unexcused (Tr ). Brenda McIntyre, the Department s former director of labor relations, testified that she spoke to respondent about his time and leave issues following an informal conference in July 2004 (Tr. 136, 138). She recalled that she warned respondent that, unless his behavior changed, it could lead to termination (Tr. 136). When respondent mentioned his mother s illness, he was advised to apply for family leave (Tr. 144, 150).

4 -4- Although respondent denied having this discussion with Ms. McIntyre (Tr. 155), there were three informal conferences from September 2003 to July 2004, where respondent received written notification that his attendance problems, including lateness, could result in disciplinary action (Pet. Exs. 7-9). Thus, contrary to respondent s claims, he had ample notice of the consequences of further lateness. See Fire Dep t v. Bayza, OATH Index No. 2053/01, at 17 (Feb. 22, 2002) (excusing agency s failure to comply with strict notice provisions of citywide lateness policy), citing Jones, OATH 1068/00, at Hence, petitioner proved that respondent was excessively late for work and charge I, specification 1 is sustained. Petitioner further alleged that from July 6, 2004, to March 10, 2005, respondent was absent from work for eight days without authorization. It alleged that he was AWOL on the following dates in 2004: July 6, July 30, October 8, October 22, and November 19. He was also allegedly AWOL on March 8, 9, and 10, Noting that four of the alleged AWOLs occurred on Fridays, petitioner asserted that this constituted a pattern (ALJ Ex. 1). According to Mr. Mapp, Department employees were required to give advance notice of all absences. In the event of an emergency, employees were required to call an hour before the scheduled start time and provide documentation upon their return to work (Tr. 89, 91). For each of the alleged instances of AWOL, petitioner presented timesheets reflecting respondent s absence from work (Pet. Exs. 2 and 5). In addition, Mr. Mapp presented memoranda that he wrote whenever respondent failed to document his absence from work (Pet Ex. 4). Mr. Mapp testified that, on the morning of July 6, 2004, respondent called and requested an emergency leave. Noting that respondent was scheduled to take annual leave the next day, Mr. Mapp asked him to provide documentation for the emergency within five business days (Tr ). When respondent later provided a note dated July 8, stating that there was a housing emergency on July 6, Mapp denied the request due to lack of documentation (Tr. 91, 107; Pet. Ex. 4). At the hearing, respondent testified, without elaboration, that something happened at the shelter on July 7, 2004 (Tr. 182). On July 30, 2004, respondent called and said that he had an emergency with his mother (Tr. 91). Once again, Mr. Mapp advised respondent to bring in documentation. After waiting five days, without receiving any documentation, Mr. Mapp drafted a memorandum stating that the absence was unexcused. Respondent shrugged his shoulders when Mr. Mapp handed him the memorandum (Tr. 91).

5 -5- At the hearing, respondent recalled that on July 29, 2004, the Department for the Aging sent someone to assist his mother with her visits to the doctor (Tr. 184). However, the assistant could not find the building and canceled the scheduled visit for the next day. As a result, respondent took off on July 30 to take his mother to the doctor (Tr. 183). According to a doctor s letter, dated August 2, 2004, respondent s mother received medical treatment on July 30, but the note did not mention respondent (Resp. Ex. D). On October 8, 2004, respondent never showed up at work and never called in. When he subsequently returned to work, he offered no explanation for this absence (Tr. 92). Similarly, on October 22, 2004, respondent called before 8:00 a.m. and said that he would be three hours late (Tr. 92). Respondent never showed up for work and never called back (Tr. 92). Mr. Mapp later handed respondent a memorandum regarding this absence (Tr. 92, Pet. Ex. 4). Respondent had no recollection of any reason for either of these absences in October 2004 (Tr. 185). On November 19, 2004, respondent left a voice mail and said that he was sick (Tr. 93). Mr. Mapp testified that this absence was unauthorized because respondent did not call him one hour prior to the scheduled start time or document his illness (Tr. 93; Pet. Ex. 4). Respondent presented evidence that he was treated at a hospital for two days in September 2004, but he offered no evidence concerning this November illness (Tr. 185; Resp. Ex. E). Mr. Mapp further recalled that, on March 8, 2005, respondent called in and requested seven hours leave without pay (Tr. 93). Observing that the request was untimely and that respondent did not have any accumulated vacation time available, Mr. Mapp told respondent that the request was denied (Tr ). Respondent failed to show up for work (Tr. 95). The next day, respondent called and said that he was in South Carolina and unable to return to New York because of a snow storm (Tr. 96). Respondent called in again on March 10 and said that he could not get to work (Tr. 97). He finally returned on March 11 (Tr. 97; Pet. Ex. 4). Respondent testified that he went to South Carolina in March 2005 to pick up a used automobile, which he expected to drive back to New York. When he arrived, he discovered that the car was a wreck, so he had to arrange for the disposal of that car and rent a car for the return trip (Tr ). Receipts introduced by respondent at the hearing indicated that he took a flight to South Carolina on March 6, 2005, and bought gasoline on March 10, 2005 (Resp. Ex. F). Although the documents confirmed that respondent was out-of-town, they did not establish that his trip was unplanned or that his absence was authorized.

6 -6- Based upon the evidence presented, petitioner proved each of the AWOL allegations. In the few instances where respondent was able to recall some reason for his failure to go to work, his belated explanations were vague and insufficiently documented. See Bayza, OATH 2053/01, at 21; see also Admin. for Children's Services v. Snead, OATH Index No. 333/04 (Oct. 19, 2004). Accordingly charge II, specifications 1 through 8, are sustained. However, I do not find the occurrence of some AWOLs on Fridays, four instances over an eight-month span, a sufficient pattern to constitute a separate act of misconduct. Thus, charge I, specification 2, should be dismissed. Threat to Co-Worker and Use of Offensive, Obscene Language (Charges III and IV) These charges arise from a dispute that took place on May 25, Charge III, specification 1, alleges that respondent threatened or intimidated a colleague and charge IV, specification 1, alleges that respondent used offensive or obscene language. Dmitry Meytim worked in the same cubicle as respondent. According to Mr. Meytim, who was a probationary employee at the time of the incident, a supervisor told him not to take any personal calls (Tr. 59). Thus, when he received a telephone call at about 8:00 a.m. from someone who wanted to leave a personal message for respondent, Mr. Meytim told the caller no and hung up (Tr. 57). Moments later, when respondent returned and found out what had happened, he pointed at Mr. Meytim and said, Next time this fucking shit happens again, you re going to stand up to me. Do you fucking understand that? (Tr. 59, 61; Pet. Ex. 3). Respondent was standing outside the cubicle, behind a half-partition, five feet away from Mr. Meytim, who was seated at a desk (Meytim: Tr. 75; Mapp: Tr. 87). Mr. Mapp was between respondent and Mr. Meytim (Mapp: Tr. 83). According to Mr. Mapp, respondent said, Why the fuck would you do something like that. The next time you do some fucking shit like that, you re going to have to fucking stand up to me (Tr. 86). Mr. Mapp interjected, don t threaten him, and left the cubicle to contact a manager (Meytim: Tr. 61, 65; Mapp: Tr. 86). He left respondent and Mr. Meytim alone together for a few minutes (Meytim: Tr ). In a written report drafted later that day, Mr. Meytim quoted respondent as saying, I gonna make it straight! Next time if you do that again you gonna face me! (Pet. Ex. 3). At the hearing, Mr. Meytim explained that he omitted obscenities from the memorandum because he did not feel comfortable writing them (Tr. 80).

7 -7- Recalling the incident, Mr. Meytim testified, I felt very uncomfortable (Tr. 59). Asked to clarify, Mr. Meytim said that he was shocked (Tr. 60). When prompted by petitioner s counsel, he added that he felt threatened (Tr ). He later explained that when he testified that he was uncomfortable, he meant that he was threatened and shocked (Tr. 65). Mr. Mapp and Mr. Meytim conceded that it was not unheard of for Department employees to curse (Meytim: Tr ; Mapp: Tr. 131). Indeed, Mr. Mapp acknowledged that a supervisor once admonished him for cursing at respondent (Tr. 131). Never before, or since, was there any difficulty between Mr. Meytim and respondent (Tr ). After writing up his version of the dispute, Mr. Meytim went outside for some fresh air and returned to his desk where he worked with respondent for the rest of the morning (Tr. 70). At mid-day, Mr. Meytim went out for lunch. By the time he returned, respondent had been suspended (Meytim: Tr. 79; Mapp: Tr. 88). Respondent admitted that he was upset with Mr. Meytim and cursed at him (Tr. 158). He recalled pointing his hand and saying, The next time somebody call and you re rude to them, don t think that you re not going to be talking to me about it and Why the fuck would you be rude to somebody who called for me? You don t think that I m going to talk to you about that? (Tr. 158, ). I credited Mr. Meytim s recollection of the incident. His testimony was clear, he had no motive to lie, and his version was corroborated by Mr. Mapp. Although respondent sought to downplay his remarks, the evidence established that this was more than a routine disagreement. Respondent s comments were profane and unprofessional. Such behavior constituted misconduct because they were disrespectful towards Mr. Meytim. See 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. CD SA (Aug. 11, 2005) (disrespectful use of profanity is misconduct); see also Human Resources Admin. v. Bichai, OATH Index No. 211/90 (Nov. 21, 1989), aff d, NYC Civ. Serv. Comm n Item No. CD (June 15, 1990). Evidence regarding the use of profanity by others on earlier occasions does not excuse respondent s misconduct. However, petitioner did not prove that respondent threatened or intimidated Mr. Meytim. There was no indication that respondent advanced towards Mr. Meytim or intended to use any force. Instead, his remarks were a momentary, frustrated outburst. Mr. Mapp, a supervisor who had other difficulties with respondent, was quick to characterize the remarks as a threat. But his

8 -8- actions belied his words. Immediately after the supposed threat, Mr. Mapp walked away and left respondent alone with Mr. Meytim for several minutes. If Mr. Mapp seriously believed that one worker had threatened another, he would not have left them together. Moreover, at the hearing, when given repeated opportunities to describe his reaction, Mr. Meytim first testified that he was uncomfortable and then said he was shocked. As an afterthought, with some prompting, he finally mentioned that he felt threatened. Notably, on the day of the incident, after writing up his version of events and going outside for some fresh air, he returned to his desk. For the remainder of the morning, he continued to work side-by-side with respondent in a confined cubicle. In short, respondent s comments were offensive and unprofessional, but they were not threatening. See Tulloch, OATH 512/03, at 5-6 ( I m sick of this shit is misconduct, but this place is not big enough for both of us was too ambiguous to constitute a threat); see also Dep t of Sanitation v. Palmisano, OATH Index No. 2032/01, at (Mar. 14, 2002) (pointing at supervisor accompanied by ambiguous comment about when you need to worry did not place supervisor in fear for safety). Thus, charge III, specification 1, should be dismissed and charge IV, specification 1, is sustained. FINDINGS AND CONCLUSIONS 1. Petitioner was excessively late for work as alleged in charge I, specification Petitioner proved that respondent was repeatedly AWOL as alleged in charge II, specifications 1 through Petitioner failed to prove that respondent engaged in pattern of being AWOL on Fridays, as alleged in charge I, specification Petitioner failed to prove that respondent threatened or intimidated a co-worker, as alleged in charge III, specification Petitioner proved that respondent used offensive and obscene language towards a co-worker, as alleged in charge IV, specification 1.

9 -9- RECOMMENDATION Upon finding respondent guilty of misconduct, I requested and reviewed respondent s personnel history. Respondent started working for the City of New York in February He transferred to the Department s predecessor, the Computer and Data Communications Agency, in Respondent has received penalties following three prior disciplinary actions. In September 2003, he forfeited two days annual leave for attendance violations and sleeping on duty. In May 2004, he received a seven-day suspension for sleeping while on duty and time and leave violations, including five instances of AWOL and 13 instances of lateness. Following an informal conference on July 21, 2004, respondent received a three-week suspension for sleeping while on duty and seven instances of AWOL between April 8 and July 6, Petitioner now seeks termination of respondent s employment. The penalty for excessive time and leave violations coupled with discourteous or abusive language can range from a lengthy suspension to termination. See Admin. for Children s Services v. Goodman, OATH Index Nos. 986/05 and 1082/05, at (Aug. 12, 2005) (twomonth suspension for insubordination, excessive lateness, and multiple absences without leave); Bayza, OATH No. 2053/01, at 22 (two-month suspension for employee with poor disciplinary record found guilty of using abusive language and violating time and leave regulations); Dep t of Correction v. Crenshaw, OATH Index No. 172/04 (Feb. 20, 2004), aff d, NYC Civ. Serv. Comm n Item No. CD SA (Nov. 17, 2004) (termination for insubordination, excessive lateness, and AWOLs, in light of lengthy disciplinary record and absence of mitigation). Although the incident with Mr. Meytim appears to be a complete aberration, respondent s time and leave violations are cause for greater concern. Here, the Department zealously enforced its attendance regulations. For example, one lateness charge was based upon respondent s sixminute delay in returning from lunch. The Department s vigilance is understandable in light of respondent s recent history of poor attendance. Furthermore, respondent s decision to go to South Carolina in March 2005, after his supervisor denied a last-minute request for unpaid leave, was especially troubling. 1 Respondent s most recent prior disciplinary penalty was imposed, in part, for his AWOL on July 6, 2004 (Pet. Ex. 7). That AWOL was also one of the acts of misconduct charged here. See charge II, specification 1. Because respondent has been previously punished for that misconduct, I have not made a penalty recommendation for that specification.

10 -10- Yet there is mitigation justifying a penalty short of termination. Respondent is a veteran who suffers from a debilitating medical condition. Some of his absences and latenesses may have been excusable, but he failed to provide sufficient documentation in a timely fashion. Other attendance issues appear related to his temporary residence in a homeless shelter. Also, despite all of his hardships, respondent assists in the care of his elderly mother and a grandchild. Respondent has worked for the City for more than 20 years. It appears that only recently has his attendance become an issue. This suggests that lately he has been overwhelmed by personal and medical problems. I strongly urge him to seek professional help, from the Employee Assistance Program and elsewhere, to address those concerns. Otherwise, his attendance problems will jeopardize his career. Accordingly, I recommend a two-month suspension without pay, with credit for time that respondent has already served. February 24, 2006 SUBMITTED TO: GINO MENCHINI Commissioner APPEARANCES: EMILY JOHNSON, ESQ. Attorney for Petitioner DRUYAN & ASSOCIATES Attorneys for Respondent BY: MARTIN DRUYAN, ESQ. Kevin F. Casey Administrative Law Judge