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Dep’t of Transportation v. Jackson
OATH Index No. 1607/05 (July 12, 2005)
Undisputed evidence established that respondent was continuously absent without leave since January 3, 2005, and from June 15 to July 29, 2004, and also excessively or habitually late or absent from work or assigned duties. Termination recommended.
NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
DEPARTMENT OF TRANSPORTATION
Petitioner
-against-
DREW JACKSON
Respondent
REPORT AND RECOMMENDATION
JOAN R. SALZMAN, Administrative Law Judge
This is a disciplinary proceeding referred by the petitioner, the Department of Transportation, pursuant to section 75 of the Civil Service Law. Respondent Drew Jackson, a highway repairer employed by the Department since 1980, is charged with being absent without authorization (AWOL).
A hearing was scheduled to be conducted before me on June 2, 2005. Upon respondent’s failure to appear, petitioner presented proper proof of service of the charges and of the notice of the hearing (Pet. Exs. 1, 2). Such evidence established the jurisdictional prerequisites for finding respondent in default.
An attorney filed a notice of appearance on behalf of respondent and appeared at the hearing on June 2, 2005. The respondent did not appear and his counsel moved to adjourn the hearing. The Department had its witnesses and trial exhibits ready, and opposed the motion. At the start of the hearing, on the record, I denied the request to adjourn the hearing, in the absence of a showing of good cause and given the record of ample notice of the hearing. The Department had served notice of the hearing upon respondent at his last known address of record months prior to the hearing. Once the adjournment was denied, counsel then moved immediately to withdraw from the matter on the basis that his client had not communicated with him sufficiently to enable him to familiarize himself with the defense, and that he was unprepared to try the case. He stated that he was not adequately prepared to cross-examine the witnesses the Department had brought to the hearing, even if the hearing were begun as scheduled and continued such that the record would be re-opened to allow additional testimony with a full opportunity to defend the matter. For the reasons stated on the record, including the fact that respondent’s counsel represented that he was having trouble reaching respondent, but that respondent had not changed his address from the one on file with the Department, I conditioned the grant of counsel’s oral motion to withdraw on his commitment on the record that he would notify his client in writing on June 2, 2005, and by phone or other means, of the following: that I would hold the record open until June 17, 2005, and would continue and reopen the hearing if respondent made an application by June 17th for a continuation of the trial; that I would grant respondent’s request, if any, to present additional testimony; that respondent could also submit written materials in his defense by that date; and that respondent had the right to be represented by counsel or another representative. Counsel then withdrew (Tr. 1-9). This tribunal has received no communication since the hearing date from respondent or any representative of respondent.
In support of the charges, petitioner submitted an affidavit sworn to by Marlene Probherbs, Administrative Manager at the Department (Pet. Ex. 5). This affidavit establishes that respondent has been absent without authorized leave from June 15, 2004-July 29, 2004, and from January 3, 2005 to the present. The Department also presented the testimony of two supervisors, Biagio Cantatore and Thomas Bazerjian, supported by agency correspondence with respondent and by respondent’s time sheets (Pet. Exs. 1-8), which proofs amply demonstrated that respondent has been AWOL during the periods noted and has failed to respond to the Department’s notices. The supervisors testified that respondent has failed to report for work without explanation and without even calling. The agency has notified respondent repeatedly at his last known address of record that he must respond to agency notices and was facing termination. Both men testified that the highway work of the Department is hampered and productivity reduced by respondent’s absence, and that the Department has had to call upon other workers to perform respondent’s duties in addition to their own.
It appears from this record that respondent has abandoned his job and has failed to communicate with the Department. Accordingly, I find that respondent engaged in the charged misconduct.
FINDINGS AND CONCLUSIONS
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- Respondent was properly served with the charges and notice of hearing.
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- Respondent has been absent without authorized leave June 15, 2004-July 29, 2004, and from January 3, 2005 to the present.
RECOMMENDATION
Upon making the above findings, I obtained an abstract of respondent’s personnel history. His recent annual reviews in 2003-2005 all noted serious problems with his absences that downgraded his evaluations and ultimately rendered him impossible to rate. Respondent has a record of various disciplinary actions, with penalties ranging from suspensions to verbal reprimands. A stipulated probation for charges brought in 1998 and 1999 was conditioned on respondent’s adherence to agency time and leave rules and respondent’s agreement to enter an employee assistance program. The Department thus has made consistent efforts to accommodate respondent in recognition of his long service, and has applied principles of progressive discipline. It is clear now, however, that respondent has abandoned his job. Respondent has been absent from work without authorization for an extended period of time. Respondent’s unauthorized absence is a fundamental form of misconduct that substantially impedes the agency’s ability to fulfill its mission. The only appropriate penalty for such misconduct is termination. See, e.g., Dep’t of Information Technology and Telecommunications v. Sepulveda, OATH Index No. 1695/05 (May 24, 2005) (three-month AWOL). I recommend the termination of respondent’s employment with the Department.
Joan R. Salzman
Administrative Law Judge
July 12, 2005
SUBMITTED TO:
IRIS WEINSHALL
Commissioner
APPEARANCES :
ERICA CARAWAY, ESQ.
TONYA MORGAN, ESQ.
Attorneys for Petitioner
No Appearance for Respondent