Dep't of Education V

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Dep't of Education v. Moy

OATH Index No. 1719/05 (Feb. 13, 2006)

Supervisor of Carpenters found to have neglected his duties regarding the administrative tasks required of his position by not completing paperwork accurately or in a timely manner and by not responding to directions from his supervisors. Charge of excessive lateness not sustained where Department rule defines excessive lateness to be sixty times within a vacation year. Petitioner established only that respondent was late twenty times. Absent evidence that respondent was belligerent or disruptive and absent evidence that respondent was not a competent carpenter, ALJ recommends that respondent be demoted from his position.

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NEW YORK CITY OFFICE OF

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ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF EDUCATION

Petitioner

-against-

PETER MOY

Respondent

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REPORT AND RECOMMENDATION

DONNA R. MERRIS, Administrative Law Judge

This is a disciplinary proceeding referred by petitioner, the Department of Education ("Department" or "DOE") pursuant to section 75 of the Civil Service Law. Respondent, Peter Moy, a supervising carpenter assigned to the Division of School Facilities in Queens, New York, is charged in thirteen specifications with excessive lateness, insubordination, incompetence or inefficient performance of duties, neglect of duties and conduct unbecoming his position on various dates commencing in June 2003 through December 2004 (ALJ Ex. 1).[1]

A hearing was commenced before me on September 13, 2005 and continued to October 12, 2005 and October 17, 2005, at which time the proceeding was closed. At the hearing, petitioner presented the testimony of Department Supervisor of Mechanics Chandradat Singh, Supervisor of Mechanics Derrick Reid and Supervisor of Mechanics Peter Mischler and relevant documentary evidence. Respondent presented the testimony of Department Regional Facilities Planner David Lewis and Department Supervisor of Carpenters Anthony DeGori. Respondent testified in his own behalf and, except for the lateness allegation, denies that he engaged in misconduct.

For the reasons stated below, I find that the allegations have been sustained in part and recommend that respondent be demoted from his position as supervisor of carpenters.

ANALYSIS

At the hearing, respondent testified that he began his employment as a carpenter with the Division of School Facilities in 1989. He took the promotional examination for supervisor of carpenters in 1995, was appointed supervisor of carpenters in 1996 and assigned to the Queens area office. In 2000, respondent took the promotional examination for supervisor of mechanics. Respondent was interviewed for that position in March 2001 but was not promoted. In August 2002, respondent filed a discrimination complaint in federal court in the Eastern District of New York. It is respondent's contention that, since the filing of the complaint, he has been harassed by his immediate supervisors. According to respondent's testimony, kinds of behavior that were "let go" in the past are now subjects of the instant disciplinary proceeding (Tr. 177-78).

As respondent appeared pro se in the instant proceeding, I allowed the statements arguing that the supervisors were biased and that the instant charges were filed in retaliation for his filing of a discrimination action against the Department. However, respondent did not provide evidence to show the bias of any trial witnesses or that any bias of the Department witnesses led to the charges against him. See Dep't of Sanitation v. Yovino, OATH Index No. 1209/96 (Oct. 9, 1996), aff'd in part, rev'd in part, NYC Civ. Serv. Comm'n Item No. CD97-109-0 (Dec. 4, 1997). To the contrary, respondent does not contest the truth of the allegations. As a general matter, I found the Department supervisors to be credible. They testified in a straightforward manner, were professional in their demeanor, appeared diligent in the performance of their respective

responsibilities and, at the hearing, consistent in their testimony concerning their frustration with respondent's behavior. Nothing in the record before me would lead to the conclusion that respondent's immediate supervisors were biased toward respondent. In addition, testimony of the witnesses was consistent with their contemporary writings concerning the allegations. See, generally, Dep't of Sanitation v. Menzies, OATH Index 678/98, at 2-3 (Feb. 4, 1998), aff'd, NYC Civ. Serv. Comm'n Item No. CD98-101-A (Sept. 9, 1998).

Petitioner charges that the alleged conduct in the various specifications violates Department Rules and Regulations for Administrative employees (non-pedagogical), section 9.18, section 9.19 (eff. Apr. 1987) and Article 5 of the By-laws of the Board of Education. The Rules and Regulations cited by counsel for petitioner were updated in January 2004. In the 2004 updates, Section 9.18 of the rules was re-numbered as section 9.17 and section 9.19 became section 9.18. The rules are substantively the same. Accordingly, the references here will be to the January 2004 updated rules. Rule 9.17 instructs non-probationary employees that they may not be removed for cause absent a hearing and opportunity to be heard. Section 9.18 of the rules and Article 5 of the Board of Education By-laws are identical and provide:

Charges may be preferred against any employee for: unauthorized absence from duty or excessive absence/lateness; neglect of duty; conduct unbecoming his/her position, or conduct prejudicial to the good order, efficiency, or discipline of the Department of Education; incompetent or inefficient service; violation of the Bylaws, rules or regulations of the Department of Education; any substantial cause that renders the employee unfit to perform properly his/her obligations to the Department of Education.

Rules and Regulations for Administrative Employees (non-pedagogical), §§ 9.17, 9.18 (updated Jan. 30, 2004); Bylaws of the Board of Education, § 5.3.1 (adopted Feb. 1977, amended Feb. 1977 to May 1985).

The issue to be determined is whether or not the allegations, if proven by a preponderance of the credible evidence, rise to the level of sanctionable misconduct.

As respondent does not contest the fact that he was late on the charged occasions, specification 11 is addressed first. The remaining allegations will be addressed in seriatim.

Specification 11, Excessive Lateness

At the commencement of the hearing on September 13, 2005, the parties stipulated to and submitted into evidence as petitioner's exhibit 2, a group of respondent's time cards for various dates commencing June 2, 2003 and ending October 24, 2003 (Tr. 6; Pet. Ex. 2 ).[2] The evidence reveals, according to petitioner's argument, that respondent was late in reporting to his 8:00 a.m. to 3:30 p.m. tour on thirty-three occasions during the period (Pet. Exs. 2, 22). Respondent does not contest the accuracy of the allegation.

Respondent's supervisor during 2003 and 2004, Chandradat Singh testified at the hearing that, because respondent is a supervisor and responsible for several work crews, it is imperative that respondent report to work by 8:00 a.m., the beginning of the scheduled tour. Respondent must be there in order to handle any work related issue that may arise, e.g., the need for equipment or material or scheduling matters. If respondent is not present, the crew or crews must wait for him to appear thereby causing delay in the commencement of the scheduled work (Tr. 85-89). Mr. Singh discussed the impact on the various work crews caused by his continued lateness with respondent on June 13, 2003 and in November 2003 (Tr. 85-6; Pet. Exs. 22, 23). Respondent told Mr. Singh that he had family issues that caused him to be late. However, respondent would not discuss any specifics with Mr. Singh (Tr. 85-6).

It is respondent's testimony that other supervisors were also consistently late in arriving for their scheduled tours (Tr. 179).

As noted above, the rules and regulations governing Department non pedagogical administrative employees and cited by petitioner provide that, "Charges may be preferred against any employee for: unauthorized absence from duty or excessive absence/lateness. . ." Dep't Rules and Regulations for Administrative Employees, § 9.18 (updated Jan. 30, 2004); Bylaws of the

Bd. of Education, § 5.3.1 (as amended to May 1985). However, the Department has had in place, at least since 1987, a lateness policy that specifically defines excessive lateness as:

Excessive lateness is defined as more than sixty (60) latenesses in the vacation year (May 1 to April 30 of the following year). In the case of excessive lateness, the employee's supervisor may recommend that disciplinary action be taken under Section 75 of the New York State Civil Service Law. This action may result in a reprimand, fine, suspension, demotion, or dismissal.

Rules and Regulations Governing Non-Pedagogical Administrative Employees, § 9.6.3 (updated Jan. 30, 2004).

In addition, the rules provide that penalties for lateness will be imposed for the occurrence of fewer than twenty latenesses in articulated three month periods as deductions of the time lost from annual leave or compensatory time balances on a straight-time basis. If there are more than twenty latenesses in any of the stated three month periods, the deductions from annual leave or compensatory time balances is on a double-time basis. Rules and Regulations, §§ 9.6.2.1, 9.6.2.2. Finally, employees are allowed a five minute grace period at the start of the workday. Rules and Regulations § 9.6.1.2.

It is to be noted that, on thirteen of the charged thirty-three occasions of lateness, respondent arrived after 8:00 a.m. but before or at 8:05 a.m. According to Mr. Singh's testimony, the Department allows a five-minute grace period for lateness because of the possibility of time variance among the clocks at the different facilities to which the employees report. In preparing the report of lateness in order to discuss the issue with respondent, Mr. Singh recorded those thirteen occasions when respondent reported to work after 8:00 a.m. and before or at 8:05 a.m. in order to underscore the pattern of lateness exhibited by respondent during the charged time period (Tr. 87). Pursuant to the Department's rule, those thirteen occasions must be dismissed from the charged latenesses. Accordingly, during the defined vacation year (May 1 to April 30 of the following year), i.e., June 2003 through October 2003, respondent was late on twenty occasions.

Twenty latenesses within one year do not constitute excessive lateness under the Department's rule defining excessive lateness to be more than sixty latenesses within one vacation year. See Bd. of Education v. Hunter, OATH Index No. 384/90 (Mar. 5, 1990), aff'd in

part, rev'd in part, Decision of the Board (Apr. 4, 1990), aff'd sub nom, Hunter v. New York City Bd. of Educ., 190 A.D.2d 851, 594 N.Y.S.2d 649 (2d Dep't 1993). Moreover, while civil service law section 75 penalties are applicable to excessive lateness, they are not applicable to lateness which is, pursuant to Department rule, subject only to earned leave time deductions. Hunter; Bd. of Educ. v. Anderson, OATH Index No. 343/90 (Jan. 13, 1990), aff'd, NYC Civ. Serv. Comm'n Item No. CD93-26 (May 20, 1993) (more than twenty but less than sixty latenesses in one year are punishable under Department rules, but may not be the subject of discipline under section 75); Bd. of Educ. v. Bracho, OATH Index No. 477/91 (Apr. 9, 1991).

Petitioner's charge that respondent was excessively late during the period June 2003 through October 2003 falls short of the sixty latenesses required under Department rule 9.6.3 and must, therefore, be dismissed.

The remaining charges allege general neglect of duty or incompetence on respondent's part by his failure on several occasions in 2003 and 2004 to complete required paperwork accurately and failure to respond to instructions from respondent's supervisors to correct submitted paperwork. In addition, petitioner alleges that respondent neglected his duties by failing to properly supervise a work crew and failed to order necessary materials in a timely fashion (ALJ Ex. 1).

"A finding of incompetence only requires evidence of some dereliction or neglect of duty." Phillips v. LePage, 4 A.D.3d 704, 705, 772 N.Y.S.2d 422, 424 (3d Dep't 2004), quoting Branam v. Simons, 300 A.D.2d 973, 974, 750 N.Y.S.2d 905 (3d Dep't 2002). Incompetence has been found where evidence establishes that there are constant and repetitive errors made in the performance of routine tasks. FISA v. Boritz, OATH Index No. 744/91 (Apr. 16, 1991), aff'd, NYC Civ. Serv. Comm'n Item No. CD91-147 (Dec. 10, 1991), motion to reopen denied, NYC Civ. Serv. Comm'n Item No. CD92-22 (Feb. 26, 1992) (incompetence lies not in the fact that errors are made, but in the constant and repetitive errors made in the performance of fundamental tasks that technicians must perform on a daily basis without supervision). See also, Dept. of Housing and Preservation and Development v. Ray, OATH Index Nos. 1460/00 & 2135/00 (Sept. 14, 2000), aff'd, NYC Civ. Serv. Comm'n Item No. CD01-84-SA (Dec. 28, 2001) (incompetence has been defined to include the inability to perform one's job as well as the persistent unwillingness and failure to do so); Dep't of Transportation v. Deloach, OATH Index

No. 2287/00 (Oct. 18, 2000) (failure to perform duties properly and failure to obey orders from superiors constitutes incompetence).

Here, petitioner has shown a persistent pattern of respondent's failure to complete work accurately and timely and an apparent unwillingness to comply with the supervisors' instructions.

At the hearing, Mr. Singh, respondent's supervisor during the period 2002 to 2004, testified that, as supervisor of carpenters, respondent was charged with overseeing carpentry repairs in the schools assigned to him in Queens. He was responsible for material handling, the ordering of material and accounting for the daily itineraries for the personnel assigned to him. Respondent made individual work assignments, was required to keep daily records, was responsible for reviewing time cards and turning them in and responsible for the review of car fare requests for his crew (Tr. 10-11). Respondent supervised eight to ten men during the relevant time period.

The Department provides a Supervisor's Handbook to its employees and Mr. Singh provided the handbook to respondent. In addition, Mr. Singh provided a copy, for which respondent signed that he had received, in June 2004 (Pet. Exs. 3, 4 (Tr. 11-13). The guidelines address the issues of work assignments, how to complete a work order, how to review time cards and overtime sheets and sick-leave forms (Tr. 12). If respondent had questions about his duties, he should have asked his supervisors, either Mr. Singh during part of the period in issue or, in Mr. Singh's absence, another supervisor, David Lewis. Respondent did not ask for any help or guidance (Tr. 13).

Specification 1

Petitioner alleges that respondent was directed to submit corrected requests for car fare reimbursements from his crew members on June 15, 2004. Respondent did not submit the forms to his supervisor until August 30, 2004 (ALJ Ex. 1).

Employees who travel from borough to borough or between or among the various school buildings may claim a car fare expense. The employee completes a reimbursement form, submits the reimbursement request to a supervisor who is responsible for verifying the accuracy of the request and for submitting the request for payment (Tr. 13-14). In order to verify the accuracy of the request, the supervisor must look at the employee's time cards and the relevant daily itinerary in order to make sure that the employee went to the recorded borough or school on the day for

which the reimbursement is requested. The requests are completed by the employees on a monthly basis. Officially, the employee has three months from the date of the occurrence of the expense to claim the reimbursement. Generally, the employees submit the requests with their time card. The reimbursement claims are periodically audited by the City (Tr. 14-15).

Between June 1, 2004 and June 7, 2004, respondent submitted more than five car fare reimbursements to Mr. Singh that dated back to February 2004 and March 2004. Mr. Singh testified that this was not an appropriate amount of time to wait to submit the reimbursements because of the auditing process and because of the delay in paying the reimbursement to the individual employee (Tr. 15). On April 14, 2004, Supervisor Singh and Area Manager David Lewis met with respondent on a variety of issues and discussed the timely submission of requests for reimbursement of car fare (Tr. 16; Pet. Ex. 5). Respondent was instructed to review the car fare submissions in a timely manner for discrepancies and accuracy and to submit them to Mr. Singh. The submissions were to be free of grammatical and mathematical errors and submitted to Mr. Singh in order that the employees could be timely reimbursed (Tr. 16).

Mr. Singh reviewed the submissions and returned fourteen of the forms to respondent later in June 2004 because of errors in the forms and asked respondent to make needed corrections (Tr. 18-19; Pet. Exs. 6, 8). Mr. Singh noted the corrections to be made on the documents he returned to respondent and asked that the corrections be made and the forms returned to Mr. Singh as soon as possible. Respondent did not re-submit the forms until after Mr. Singh questioned him about the corrections and after respondent's crew members began to ask where their reimbursements were. Mr. Singh believes he received the corrected forms sometime in September 2004 (Tr. 19).

According to a memorandum from Mr. Singh to respondent dated September 30, 2004, the car fare reimbursement requests were made by the crew members in April 2004 and were not processed by respondent until June 2004, returned to respondent for corrections on June 15, 2004 and not resubmitted to Mr. Singh until August 30, 2004 (Pet. Ex. 8, pgs. 1-2). Mr. Singh testified that there was too much lapsed time between when he returned the forms to respondent for correction and when respondent re-submitted the forms. Mr. Singh had to consult the back-up materials in order to understand some of the information on the submissions. In addition, the

individual employees were contacting Mr. Singh directly to inquire as to why they had not received their car fare reimbursements (Tr. 21).

On August 30, 2004, respondent sent a letter to David Lewis and Mr. Singh, among others, in which he states that the employees' claims for car fare reimbursement were reviewed, signed and submitted to Mr. Singh and subsequently returned to respondent by Mr. Singh. Respondent states that the travel expenses requested were necessary in the performance of the crews' job functions and that respondent or his "stand-in" authorized the travels and the employees incurred the expenses by using their personal vehicles. Respondent requested a copy of the Department of Education's Standard Operating Procedure on Local Travel and memoranda concerning the topic (Pet. Ex. 7).

Mr. Singh provided a copy of the supervisor's handbook to respondent on June 1, 2004. It is Mr. Singh's testimony that he explained to respondent that not every aspect of his job had to be written as a directive. Some elements involve the use of common sense and experience. There is no directive to tell a supervisor that the form he is completing has been done so incorrectly. For example, in a request from mechanic Kenneth Kravak in March 2003, the form indicates that he was doing plumbing work and, there is time charged to work orders that were supposed to have been finished several months prior to the dates on the submissions. Thus, the mechanic, according to the form, was traveling to a school after the work order had been cancelled. When Mr. Singh asked respondent for the reason why the mechanic would go to the school three months after the job is finished, respondent provided no explanation (Tr. 93). The note on the form to respondent asks respondent to review and return the forms on March 23, 2004 and March 24, 2004. When respondent returned the packet to Mr. Singh in August 2004, some corrections had been made and some had not (Tr. 93-95). The difficulty with respondent's work was that the cards were submitted three or four months late and the numbers, i.e., the school that the mechanic had gone to and the job on which the mechanic was working, should have been correctly recorded (Tr. 100).