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Dep’t of Correction v. House

OATH Index No. 2710/08 (Sept. 4, 2008)

Correction officer found to have been absent without leave for four months and to have violated other sick leave and attendance rules. After the officer failed to appear, administrative law judge upheld all the charges and recommended penalty of termination.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF CORRECTION

Petitioner

- against -

TIMOTHY HOUSE

Respondent

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REPORT AND RECOMMENDATION

JOHN B. SPOONER, Administrative Law Judge

This disciplinary proceeding was referred to me in accordance with section 75 of the Civil Service Law. In eight sets of charges, petitioner, the Department of Correction, charged that respondent Timothy House, a correction officer, was absent without authority, failed to log back into his sick residence, failed to report for duty, was excessively late, failed to make log book entries, and was insubordinate to a captain.

A hearing on the charges was conducted before me on August 5, 2008. Petitioner’s attorney and an attorney for respondent’s union appeared, but respondent did not. Although the attorney for the union suggested that an adjournment would be appropriate, he indicated that he had had no contact with respondent, despite repeated efforts, and thus did not represent respondent and had no knowledge as to any reason for his failure to appear. The union attorney withdrew after this tribunal found no basis to adjourn the hearing. Upon presentation by petitioner’s attorney of proof that the charges and the notice of hearing had all been properly served (Pet. Ex. 1), the hearing then went forward in the form of an inquest and petitioner presented the testimony of a warden, an assistant deputy warden, and three captains.

For the reasons provided below, I find that all of the specifications have been proven and recommend that respondent be terminated.

ANALYSIS

Time and Leave Violations

Respondent is charged with repeatedly and persistently being absent or late, in violation of Department attendance and sick leave rules. At the time of the charges, respondent was assigned to the Eric M. Taylor Center (“EMTC”). Captain Wilson, the personnel captain at EMTC, testified that respondent failed to report for duty without notifying his command on the following dates: September 7 and December 17, 2007, and February 29, March 1, April 6, April 7, April 8, and April 11, 2008 (Tr.16- 22, 28-29; Pet. Exs. 2, 3, 5, and 6). He has also been absent without authority, most recently, for nearly four months, from April 26, 2008, to the date of the hearing on August 5, 2008 (Tr. 34; Pet. Ex. 7). From August 24, 2006, through December 30, 2007, he was late 16 times, for a total time of 17 hours and 19 minutes (Tr. 22; Pet. Ex. 4). Based upon this proof, the six charges alleging that respondent was absent and late must be sustained, since these absences violated Department rules 3.05.100, 3.05.110, and 3.05.120.

Captain Simpson, assigned to the Department Health Management Division, testified that on September 29, 2006, respondent was on sick leave. He logged out of his residence at 5:21 p.m. and failed to log back in (Tr. 40-42; Pet. Ex. 8). The charge alleging that respondent failed to log out must also be sustained, as in violation of Directive No. 2262R.

Incident of February 15, 2008

Specifications 1 and 2 of this charge allege that respondent failed to make log book entries and complete other paperwork prior to Captain Garel’s two visits to his post. Specification 3 alleges that respondent’s interactions with Captain Garel were insubordinate.

Captain Garel testified that, on February 14, 2008, she was assigned to supervise six housing areas at EMTC. Respondent was assigned to the A post in 7 upper, one of the housing areas under her charge. At around 11:57 p.m., as Captain Garel approached respondent’s post, respondent told her, “There’s no sense going over there or looking there. I haven’t signed my books yet. I haven’t filled anything out yet.” He also told her that “captains don’t normally tour that early.” Captain Garel asked respondent when he assumed the post, and he said at 11:20 p.m. Captain Garel then told respondent she would be back, after she toured the other housing areas (Tr. 61).

Some 18 or 20 minutes later, Captain Garel returned to respondent’s post. Respondent had still not filled out the post log book. She asked the B officer to assume respondent’s post while she and respondent went through a gate to a corridor so the captain could ask respondent again for an explanation as to why the log books had not been completed. As Captain Garel was speaking with the B officer, respondent scribbled several entries in the log (Tr. 62). In the corridor, respondent said, “This job is easy” and began to speak “in a loud boisterous unnerving manner,” standing only two inches from the captain (Tr. 63). Captain Garel ordered respondent to “move back away from me, you’re standing too close to me.” Respondent just stared at her. Captain Garel repeated a second time that respondent was standing too close. She then radioed for another captain to report and ordered respondent a third time to back away. At this point, the B officer “screamed” at respondent to “get out of the captain’s face” (Tr. 63).

At last, another captain entered the corridor. Respondent stated, “You know what? I can’t be bothered with this,” and then walked toward the stairs (Tr. 64). Captain Garel commanded, “Officer House, do not abandon your post. I’m ordering you to go back on your post.” Respondent then returned to the A post and Captain Garel went to report the incident to a deputy warden (Tr. 64).

Captain Garel returned to respondent’s housing area a few minutes later. At this time, she observed the B gate open and inmates surrounding the B post officer. Captain Garel knocked and then banged on the door, but no one responded. She then called Deputy Warden Morales to respond to the area (Tr. 64).

Suddenly she saw respondent come from behind the inmates with the A post keys in his hand, keys which could unlock every gate in the housing area. Respondent opened the door for the captain, laughed, and said, “I’m going to get you” (Tr. 65). Captain Garel asked the B officer what happened, and the officer said that respondent had entered the dorm area “yelling and screaming, kicking on the inmates’ beds, waking them up.” He said that he “is no f—ing punk” (Tr. 65). When Deputy Warden Morales arrived, she ordered the inmates all back to bed and spoke with respondent in the A station. Several times she ordered respondent to leave the area and he did not leave. Then he began scribbling in the razor log book and other logs (Garel: Tr. 66; Morales: Tr. 73-74). Respondent finally left the area after the deputy warden summoned a male captain to help persuade him to do so (Garel: Tr. 66; Morales: Tr. 75).

Captain Garel indicated that, in the A post log book (Pet. Ex. 15), respondent failed to make a required entry about the number of razors on post and how many were used and new (Tr. 70). Warden Davis indicated that maintaining the razor log was “very, very important” due to the dangers created if inmates were permitted to possess unauthorized weapons (Tr. 56). Based upon the credible testimony of Captain Garel, Deputy Warden Morales, and Warden Davis, I find that respondent failed to complete the required A post log book entries and also the razor log book entries. He argued loudly with Captain Garel when she pointed out his failure to make the log book entries, refused her order to move away, and later told her, “I’m going to get you.” These actions violated Department rules 3.05.010, 3.05.120, 3.20.180, and 3.20.010.

FINDINGS AND CONCLUSIONS

1.  Specification 1 of DR B0429/2006 should be sustained in that, on September 29, 2006, respondent failed to log back into his residence, in violation of Directive 2262R.

2.  Specification 1 of DR B0493/2007 should be sustained in that respondent failed to report for duty without permission on September 7, 2007, in violation of Department rules 3.05.100, 3.05.110, and 3.05.120.

3.  Specification 1 of DR B0738/2007 should be sustained in that respondent failed to report for duty without permission on December 17, 2007, in violation of Department rules 3.05.100, 3.05.110, and 3.05.120.

4.  Specification 1 of DR B0739/2007 should be sustained in that, from August 24, 2006, through December 30, 2007, respondent was late for duty on 29 occasions for a total of 30 hours and 14 minutes, in violation of Department rules 3.05.100, 3.05.110, and 3.05.120.

5.  Specifications 1 and 2 of DR B0194/2008 should be sustained in that respondent failed to report for duty without permission on February 29 and March 1, 2008, in violation of Department rules 3.05.100, 3.05.110, and 3.05.120.

6.  Specification 1 of DR B0280/2008 should be sustained in that respondent failed to report for duty without permission on April 6, April 7, April 8, and April 11, 2008, in violation of Department rules 3.05.100, 3.05.110, and 3.05.120.

7.  Specification 1 of DR B0393/2008 should be sustained in that respondent failed to report for duty without permission from April 26, 2008, to the date of the hearing, in violation of Department rules 3.05.100, 3.05.110, and 3.05.120.

8.  Specifications 1 and 2 of B0164/2008 should be sustained in that, at approximately 12:00 a.m., on February 15, 2008, respondent failed to make logbook entries and complete paperwork, in violation of Department rules 3.05.01 and 3.05.120.

9.  Specification 3 of B0164/2008 should be sustained in that, at approximately 12:00 a.m., on February 15, 2008, respondent refused to obey Captain Garel’s order to “move away” and told her “I’m going to get you,” in violation of Department rules 3.20.180 and 3.20.010.

RECOMMENDATION

Upon making the above findings, I requested and received a summary of respondent's personnel history in order to make an appropriate penalty recommendation. Respondent was appointed in 1989 and has been disciplined 12 times: in 1991, he received a five-day penalty for sleeping on post; in 1993, he received a 13-day penalty for being AWOL, various sick leave violations, and insubordination; in 1996, he was suspended for 10 days for being AWOL; in 1996, he was suspended again for 30 days for being AWOL; in 2006 he was suspended for 60 days for being AWOL; in 2000, he received a 15-day penalty for failing to log out of his sick residence; in 2001, he received an 8-day penalty for losing his ID; in 2004, he received a 10-day penalty for being AWOL; and in 2006 and 2008, he received two 20-day suspensions for being out of residence while on sick leave.

Without question, respondent’s sorry employment record leaves little doubt that he must be terminated for the multiple instances of misconduct which occurred here. His unrelenting AWOL’s and latenesses show him to be unreliable, while his multiple acts of insubordination indicate he is also unable or unwilling to obey Department procedure or the orders of his commanders. Respondent’s unexplained disappearance from his job for some four months and failure to appear at the hearing is a further indication of his irresponsibility and suggests that he himself may have walked away from his job, recognizing that his disciplinary record would make termination for this further misconduct inevitable.

Accordingly, I recommend that respondent be terminated for the misconduct proven to have occurred here.

John B. Spooner

Administrative Law Judge

September 4, 2008

SUBMITTED TO:

MARTIN F. HORN

Commissioner

APPEARANCES:

MARTHA IBIS BLAKE, ESQ.

Attorney for Petitioner

No Appearance for Respondent