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Dept. of Correction v. Sulehria

OATH Index No. 1904/08 (July 22, 2008)

Petitioner established that respondent, a legal coordinator, did not maintain a law library in proper order, failed to submit required reports, and harassed others. Penalty of suspension without pay for 60 days recommended.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF CORRECTION

Petitioner

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IQBAL SULEHRIA

Respondent

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REPORT AND RECOMMENDATION

KEVIN F. CASEY, Administrative Law Judge

The Department of Correction brought this proceeding under section 75 of the Civil Service Law alleging that respondent, legal coordinator Iqbal Sulehria, did not maintain a law library in proper order, failed to submit required reports, and harassed others (ALJ Ex. 1).

At a hearing on May 12, 14, and 23, 2008, petitioner presented five witnesses and respondent presented four witnesses. Both sides also offered documentary evidence.

For the reasons below, I find that petitioner proved most of the charges and recommend a penalty of suspension without pay for 60 days.

ANALYSIS

Introduction

Respondent is a legal coordinator responsible for maintaining a library, submitting reports, teaching basic legal research to inmate clerks and interns, and assisting inmates with their research (Tr. 28-31; Pet. Exs. 1 & 2). In 2006, he worked at the Eric M. Taylor Center (EMTC) and in 2007 he worked at the George Motchan Detention Center (GMDC) (Tr. 34-35).

In three sets of charges, petitioner alleged that respondent neglected his duties and treated others unprofessionally. Although respondent testified at length and offered voluminous documents in evidence, he did little to address the specific charges. Instead, he offered general denials and claimed that he was the victim of discrimination.

Pre-Hearing Motions

Prior to the hearing, respondent presented more than a dozen grounds for dismissal of the charges (Motion to Dismiss, dated May 5, 2008). He argued, for example, that the complaints lacked sufficient factual allegations; the charges were based upon hearsay; he was the victim of selective prosecution; and the complaints were time-barred. All of these claims lack merit. The pleadings gave respondent sufficient notice of the charges. See Block v. Ambach, 73 N.Y.2d 323, 333, 540 N.Y.S.2d 6, 10 (1989) (in an administrative forum, pleadings “need only be reasonably specific, in light of all relevant circumstances, to apprise party” of the charges and to allow for preparation of a defense). Moreover, an administrative pleading may be based upon hearsay and, indeed, the charges may be proved entirely by hearsay. See People ex. rel. Vega v. Smith, 66 N.Y.2d 130, 495 N.Y.S.2d 332 (1985). Also, selective prosecution is not a defense at the administrative level. See Dep’t of Environmental Protection v. Egonu, OATH Index No. 1944/07, at 8 (July 24, 2007); Bell v. New York State Liquor Auth., 48 A.D.2d 83, 84, 367 N.Y.S.2d 875, 876 (3d Dep’t 1975). In addition, all of the charges against respondent were filed within 18 months of the underlying acts. See Civ. Serv. Law § 75(4). The remaining claims in the motion to dismiss are similarly without merit.

Respondent also tried to compel production of numerous officials, including Mayor Bloomberg. Those requests were denied because there was no indication that the proposed witnesses had relevant testimony to offer. See Dep’t of Sanitaion v. Yovino, OATH Index No. 1209/06 (Oct. 9, 1996), aff’d in part, rev’d in part, NYC Civ. Serv. Comm’n Item No. CD 97-109-0 (Dec. 4, 1997). At respondent’s request, three Department employees testified. But respondent asked them few questions about the charges.

The Evidence

According to respondent, discrimination against him began before the Department hired him (Tr. 207). He recalled that an African-American woman with a high school diploma scored ahead of him on the civil service examination to become a legal coordinator, even though he had a bachelor’s degree and a law degree from Pakistan (Tr. 207, 231). In his view, that was “clear as crystal discrimination” (Tr. 207, 231). Similarly, respondent has not passed the bar examination in eight tries. He blamed his failures on humiliation inflicted by the Department (Tr. 241-42).

Representing himself at the hearing, with the assistance of stand-by counsel, respondent argued that his current problems arose because he fought the Department’s “Draconian rules” and unsuccessfully applied to be an as assistant deputy commissioner (Tr. 23). In respondent’s opinion, he was “being punished for doing a great job” while a multitude of co-workers were guilty of assorted misconduct (Tr. 212). For example, respondent noted, a correction officer sold candy at the workplace. Describing such conduct as disgraceful, respondent argued that it showed the officer’s lack of “morality” (Tr. 214-15).

Stressing that he is a notary public, respondent said that some of his co-workers were not notaries or commissioners of deeds even though they were required to apply for such an appointment within 30 days of their assignment to a law library (Tr. 313). At the hearing, respondent expressed disdain for colleagues who were not notaries and testified, “I don’t want to learn my job by those people” (Tr. 207). Referring to a co-worker who failed the notary exam, respondent declared, “I will never take directions from these people” (Tr. 207). As for Karen Powell, the director of the Department’s libraries, respondent said, “I came here 13 years ago. I cannot learn anything from her … I am not bound to respond to her inquiry” (Tr. 323).

Unlike respondent’s rambling and unpersuasive arguments, petitioner’s witnesses gave detailed, credible testimony. The specific charges are addressed below.

Charge 75/2006

In four specifications, the Department alleges that respondent failed to update legal materials, failed to submit reports, and failed to attend meetings from January to June 2006.

The first specification accuses respondent of failing to maintain a law library in proper working order. Larry Triplett, deputy director of law libraries, testified that legal coordinators such as respondent, are responsible for making sure that legal materials are current (Tr. 72-73). In March 2006, Triplett inspected the law library at EMTC. He discovered that pocket parts were “way out of date” (Tr. 80). Although current pocket parts were available in the library, respondent had failed to insert them in the proper books (Tr. 81). Triplett spoke to respondent about this matter and sent him a memorandum on March 8, 2006, requesting an explanation for the delay before the end of the month (Tr. 81; Pet. Ex. 8). According to Triplett, respondent neither updated the pocket parts nor complied with the request for an explanation (Tr. 81-82).

This specification is sustained. In crisp detail, Triplett answered every question posed to him. His contemporaneous notes corroborated his credible testimony. Although respondent named him as a defendant in some federal lawsuits, Triplett did not exhibit bias or hostility. In fact, years ago, Triplett wrote a reference letter for respondent and described him as an “exemplary employee” (Tr. 94). Unlike Triplett’s persuasive and clear account, respondent vaguely claimed that he worked hard, kept materials current, and submitted all necessary reports (Tr. 221, 239).

The second specification alleges that respondent failed to submit reports for quarterly inventories, weekly self-evaluations, and inmate surveys from January to June 2006. Triplett testified that the reports were required to comply with mandates for the provisions of services, to identify damaged or missing materials, and to track assistance that legal coordinators provide to inmates (Tr. 74). Up until a few years ago, respondent routinely filed these reports (Tr. 98-99).

On January 17, 2006, Triplett e-mailed respondent that he had not received the quarterly inventory report for the fourth quarter of 2005. Triplett directed respondent to file that report as soon as possible (Tr. 76; Pet. Ex. 6). On January 26, 2006, Triplett sent respondent a memorandum stating that he had not received weekly self-evaluation reports for the month of December 2005 and he had not received any inmate service reports for the last five months of 2005 (Tr. 76; Pet. Ex. 5). Triplett directed respondent to provide copies of those reports as soon as possible (Pet. Ex. 5). On April 8, 2006, Triplett notified respondent in writing that he had not received the first quarter inventory report, which was due March 3, 2006 (Pet. Ex. 7). Triplett directed respondent to provide, by April 21, 2006, a written explanation for his failure to submit a timely quarterly report (Tr. 77; Pet. Ex. 7). As of May 2008, respondent had not provided any of the requested reports or explanations for his failure to do so (Tr. 82-85).

Triplett’s testimony was credible and straightforward. On the other hand, respondent offered vague and unsupported denials. For example, he testified, “I always submitted all of the required reports in a timely fashion with due diligence” (Tr. 221). Pressed for specifics, respondent explained, “Once he [Triplett] requested those reports, I wrote a memorandum and I sent by certified mail, a copy of that memorandum” to the assistant commissioner for programs (Tr. 221). Asked when he sent that memorandum, respondent testified, “sometime between 2003 and 2006” (Tr. 221). Respondent offered no documentation, such as a report or copy of a memorandum, to bolster his testimony. Because Triplett was more credible than respondent and supported his testimony with detailed documentation, this specification is sustained.

The third specification alleges that respondent failed to attend mandatory staff meetings from January to June 2006 and refused to submit a report explaining his failure to attend such meetings. Petitioner’s evidence concerned one meeting. Triplett testified that respondent failed to attend a mandatory staff meeting on March 24, 2006 (Tr. 73, 85). Later that day, director of law libraries Karen Powell sent respondent a memorandum asking him to explain in writing why he had failed to attend the meeting (Pet. Ex. 9; Triplett: Tr. 86). As of May 2008, respondent had not complied with that request (Tr. 86).

Respondent elicited evidence that meetings were infrequent (Powell: Tr. 51-52; Ruth Marcano: Tr. 293-94). He also testified that he attended meetings that he knew about, unless he was physically unable to attend because he was receiving therapy (Tr. 310). But respondent did not credibly challenge the specific evidence that he was absent from a mandatory meeting on March 24, 2006 and failed to explain his absence in writing. This specification is sustained.

The fourth specification alleges that, from January to June 2006, respondent engaged in conduct unbecoming a member of the Department and created a hostile work environment by coercing inmates to write false statements, engaging in rude behavior towards staff, attempting to undermine uniformed staff, preparing inflammatory entries, and engaging in conversations with inmates that were inconsistent with Department anti-discrimination policies.

Correction officer Linda Murdaugh testified that she worked with respondent at the EMTC law library. At first, she had a cordial relationship with respondent and they discussed family and religion (Tr. 176). That relationship soured in November 2004, when respondent falsely accused her of calling him “a Muslim terrorist bastard” (Tr. 176). A year later, Murdaugh recalled, respondent offered to drop those charges if she had sex with him (Tr. 177). In reply, Murdaugh called respondent “an asshole” and filed a complaint (Tr. 177).

In 2006, inmates and co-workers repeatedly told Murdaugh that respondent was falsely accusing her of misconduct (Tr. 179). On January 13, 2006, a grievance counselor told Murdaugh that respondent said that she had been improperly distributing grievance forms to inmates (Tr. 181; Pet. Ex. 13). A week later, officers told Murdaugh that respondent had asked them to be character witnesses because “Murdaugh is harassing me” (Pet. Ex. 14; Tr. 182). The following month, an inmate told Murdaugh that respondent would not notarize a document unless the inmate wrote a note stating that Murdaugh had refused to notarize a document (Tr. 185; Pet. Ex. 17). On February 15, 2006, another inmate told Murdaugh that respondent pressured him to track the hours worked by Department employees. Respondent also told the inmate that women, such as Murdaugh, belonged in the bedroom rather than the library (Tr. 187-88; Pet. Ex. 16).

This specification rested upon hearsay, but petitioner’s proof sufficiently established that respondent harassed Murdaugh. She credibly described various complaints that she had received about respondent. Written reports from different sources corroborated each other and showed that respondent engaged in a pattern of harassment. See Dep’t of Correction v. Woodson, OATH Index Nos. 603/04 & 597/04, at 7 (July 1, 2004) (multiple hearsay statements from inmates sufficient to prove charges where statements corroborated each other). Based upon his arguments and submissions, it is evident that respondent spent a great deal of time and energy tracking the whereabouts of his co-workers and gathering evidence of supposed transgressions. By belittling Murdaugh, respondent undermined her authority. His unprofessional conduct interfered with the agency’s mission. This specification is sustained.

Charge 130/2007

This charge alleges that respondent refused to provide guidance to inmate clerks and used profanity when referring to an inmate seeking assistance on April 19, 2007. Petitioner also accuses respondent of failing to supervise interns and clerks who were responsible for providing guidance to inmates who were seeking assistance in a law library on August 2, 2007.

In the first specification, petitioner charges respondent with failing to provide inmate law clerks with guidance and instruction on April 19, 2007. The second specification alleges that, on that same date, respondent used profane and disrespectful language when referring to an inmate.

Correction officer Lavel Saunderson testified that he saw respondent standing behind a counter, speaking to inmate Pedro Almonte at about 2:15 p.m. (Tr. 104). Respondent walked from behind the counter, approached Saunderson and said in a loud voice, “get this piece of shit out of here” (Tr. 104, 106). Suddenly, the forty or so inmates in the library became quiet (Tr. 104-05). To diffuse a volatile situation, Saunderson asked Almonte to go into a hallway. After Almonte left, respondent returned to his desk (Tr. 108). Saunderson could not leave the area because correction officer John Brutus, the other officer assigned to the post, was in the bathroom (Tr. 105).

Saunderson was a particularly strong witness. He offered very specific testimony and he was one of the few witnesses that respondent had not sued (Tr. 117). Written reports from Saunderson and Almonte corroborated the officer’s testimony (Pet. Exs. 10 & 11). Officer Brutus, called by respondent as a witness, did not see the incident. However, Brutus confirmed that Saunderson promptly reported the incident to him moments after it occurred (Tr. 273, 287). Although there is no record that Almonte requested legal assistance that day, a log book confirms that he was in the library on the date of the incident (Tr. 279; Resp. Exs. GG and HH).