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Dep’t of Sanitation v. Katalenas

OATH Index No. 1315/06 (June 13, 2006)

Sanitation superintendent charged with failure to complete paperwork in a timely fashion. One of three charges sustained and penalty of three days’ suspension recommended.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF SANITATION

Petitioner

- against -

PETER KATALENAS

Respondent

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REPORT AND RECOMMENDATION

KEVIN F. CASEY, Administrative Law Judge

The Department of Sanitation brought this proceeding pursuant to section 16-106 of the Administrative Code and charged respondent, district superintendent Peter Katalenas with three acts of misconduct: failure to update an absence and lateness log; failure to complete daily performance records; and failure to report that a route had not been completed.

A hearing on the charges was conducted before me on March 31, 2006. Petitioner relied upon documentary evidence and the testimony of Deputy Chief William Vadola. Respondent testified on his own behalf and also presented testimony from Superintendent Henry Wakie.

For the reasons stated below, I find that petitioner proved one of the charges and recommend that respondent be suspended for three days.

ANALYSIS

There are no major facts in dispute. Respondent, the superintendent of a Staten Island district, oversees 170 employees (Tr. 118). On March 7, 2005, following a review by Department auditors, Deputy Chief William Vadola examined respondent’s paperwork and found fault with three types of records (Tr. 12-13). Respondent’s principal defense was that there was an unavoidable backlog. From January 16 to February 16, 2005, he was on approved medical leave due to a work-related injury (Tr. 86, 118-19, 143). Of the 16 days that he worked from February 16 to March 7, 2005, half were snow days (Tr. 120). According to respondent, supervision of snow removal includes added responsibilities, especially for payroll-related matters, and is a Department priority (Tr. 119).

According to petitioner, the central issue was whether respondent’s month-long absence and the subsequent snow removal excused his failure to keep up with paperwork (Tr. 151). Although Mr. Vadola conceded that “snow is always a priority,” petitioner insisted that respondent was “responsible for all that goes on in the district” (Tr. 83, 155). Thus, petitioner argued, if respondent’s records were not up-to-date, he had to catch up or seek help (Tr. 155).

Respondent’s obligations are substantial, but not every omission amounts to misconduct. Petitioner must show that respondent willfully, intentionally, or negligently violated a Depart-ment rule. See Reisig v. Kirby, 62 Misc.2d 632, 635, 309 N.Y.S.2d 55, 58 (Sup. Ct. Suffolk Co. 1968), aff'd, 31 A.D.2d 1008, 299 N.Y.S.2d 398 (2d Dep't 1969); McGinigle v. Town of Greenburgh, 48 N.Y.2d 949, 951, 425 N.Y.S.2d 61, 62 (1979). A judgment error, lacking in willful intent and not so unreasonable as to be considered negligence, is not misconduct. See Ryan v. New York State Liquor Auth., 273 A.D. 576, 79 N.Y.S.2d 827, 832 (3d Dep't 1948); Dep't of Sanitation v. Richards, OATH Index No. 529/06, at 3 (Feb. 3, 2006) (minor errors, that are discovered and corrected during supervision, do not amount to misconduct); Human Resources Admin. v. Green, OATH Index No. 1794/02, at 17 (Dec. 6, 2002) (failure to make deadline does not constitute misconduct unless errors are repetitive and much worse than those of similarly-situated employees).

Based upon that standard, the Department proved that respondent negligently failed to complete daily performance records, but it did not establish that remainder of his acts or omissions amounted to misconduct.

The Absence and Lateness Log

District superintendents track unexplained absences and requests for emergency leave in the absence and lateness log. For example, if a worker is absent without leave, a complaint is issued and the superintendent makes an entry in the log (Tr. 30-31). Similarly, the superintendent makes an entry if a worker requests an emergency absence (Tr. 20-22). The employee must provide proof and a request for leave form DS 1050 within 48 hours (Tr. 22). If the employee fails to provide timely documentation, the superintendent initiates a complaint. Where timely proof is submitted, the superintendent verifies that the employee has not requested more than three emergency leaves within a year, completes the DS 1005, and forwards the form to the borough office (Tr. 23). The borough office reviews the documentation and returns it to the district (Tr. 41). If leave is approved, the superintendent notes it in the log; if the leave request is denied, the superintendent drafts a complaint.

Each month, the superintendent checks on all outstanding leave requests and closes out the log (Tr. 20, 26). Department rules mandate that the log must be kept current (Tr. 87; Resp. Ex. D). Because it takes approximately a week for the borough office to return paperwork to the district office, there is necessarily a gap from the end of the month to the closing of the log (Tr. 26, 95). Mr. Vadola did not specify the normal lag time.

On March 7, 2005, when Mr. Vadola reviewed the log, January and February had not been closed out. Mr. Vadola recalled that respondent said he had been out on medical leave and also that he was awaiting responses from the borough office, located in the same building as the district office (Tr. 16, 32-33, 86). Mr. Vadola assigned a rotating superintendent, Henry Wakie to review the log and close it out (Tr. 33-34). After reviewing the log, Mr. Wakie issued 11 complaints to employees (Tr. 33-34; Pet. Ex. 2).

Rotating superintendents filled in daily entries in the log while respondent was out on medical leave from January 15 to February 16, 2005 (Tr. 96, 101). But nobody followed up on leave requests or closed out the log during respondent’s absence (Tr. 101). Thus respondent claimed, when he returned to work he needed to go through the log and check all of the entries (Tr. 123). Even under ordinary circumstances, Mr. Vadola conceded, the log took “some time to keep up with” (Tr. 96).

Respondent was not expected to close out the log book within seven days. Thus, his failure to close out February by March 7 was not misconduct. He could have been more diligent closing out January, but his failure to do so within 16 work days of his return from medical leave was not negligent. Respondent credibly testified that he needed additional time because he had to check entries that others had made in his absence. He also made a judgment call that supervision of snow removal had priority. Perhaps, as petitioner suggested, respondent should have asked for help. But respondent’s supervisors knew that he was on medical leave for a month, including the first two weeks of February, and they could have assigned another superintendent to close the log in February. That was not done. This strongly suggests that respondent’s supervisors shared his judgment that other tasks, including snow removal, had higher priority.

Furthermore, there was no prejudice from the delay in closing the log. All of the complaints against employees fell well within the 18-month statute of limitations (Tr. 87). Although another superintendent was later assigned to close the log, that does not constitute an added burden. As petitioner conceded, another superintendent would have been assigned if respondent had asked for help (Tr. 101, 151).

In short, a lag was not unusual, nobody was assigned to close the log while respondent was on medical leave, and there was no prejudice from the delay. Under these circumstances, respondent’s failure to close the log by March 7, 2005, was not so unreasonable that it amounted to negligent misconduct. Thus, this charge should be dismissed.

Daily Performance Records

The DS 350 card is the “daily performance record” for each piece of equipment where the Department initially records a variety of information, including start and finish times, truck conditions, routes completed, and any unusual events (Tr. 50-51; Resp. Ex. C). Superintendents are required to ensure that the cards are accurate and complete (Resp. Ex. C). According to Mr. Vadola, the cards are very important and serve a number of purposes, including use in litigation, and are usually completed daily (Tr. 63).

On March 7, 2005, Mr. Vadola found DS 350 cards stacked on respondent’s desk (Tr. 59). There were 11 days worth of unfinished cards, spanning from February 14 and March 5, 2005 (Tr. 58). When questioned by Mr. Vadola, respondent again attributed the delay to his medical leave (Tr. 62). Mr. Vadola assigned Mr. Wakie to help with the backlog (Tr. 59-60).

As the official name of the form implies, DS 350 cards must be completed daily. Unlike the absence and lateness log, which normally takes at least a week to close and had been neglected while respondent was on medical leave, the failure to review daily performance cards cannot be readily excused by respondent’s absence. There was no credible evidence that respondent faced a substantial backlog of DS 350 cards when he returned from medical leave. Thus, his negligent failure to perform this task constitutes misconduct. This charge should be sustained.

Auxiliary Field Force Report

The Auxiliary Field Force (AFF) services large roll-on/roll-off containers (Tr. 64). Twice per week, the borough office schedules containers to be serviced (Tr. 64). If there is a problem during an AFF shift, the sanitation worker must call the district office (Tr. 65, 121; Pet. Ex. 3). After an AFF shift, the sanitation worker files a report in a box at the district office (Tr. 65). The superintendent reviews the AFF report and forwards a copy to the borough office (Tr. 65-66). If a container is not serviced as scheduled, the superintendent must notify the borough office (Tr. 65). The AFF report must be submitted to the borough office every day (Tr. 75). It was not unusual for Mr. Vadola to call respondent at 2:00 p.m. and request the AFF report. Respondent or a clerk would deliver it by 3:00 p.m. (Tr. 76).

On March 7, 2005, the AFF shift began very early. Instead of the typical tour, from 7:00 a.m. to 3:00 p.m., the AFF shift started at midnight and ended at 8:00 a.m. (Tr. 81, 104). According to the AFF report, containers at two of the scheduled sites were not working properly (Tr. 69-70, 82; Pet. Ex. 3). Mr. Vadola assumed that the workers filed that report in the district office between 6:30 a.m. and 7:00 a.m. (Tr. 71). Acknowledging that it was hectic at 7:00 a.m., Mr. Vadola stated that respondent should have reviewed the AFF report and forwarded it to the borough office within “a reasonable amount of time, by 7:30 (a.m.) at the latest” (Tr. 71). The report was not filed until 3:00 p.m. or later (Tr. 67, 71).

Respondent insisted that in March 2005 there was no set deadline for filing AFF reports (Tr. 121). Mr. Wakie, an experienced superintendent, was also unaware of any such requirement in March 2005 (Tr. 109). According to Mr. Wakie, the policy later changed. The superintendent is now required to hand-deliver the AFF report to the borough office (Tr. 109-110).

Petitioner charged respondent, who worked the 7:00 a.m. to 3:00 p.m. shift, with failure to notify the borough office that AFF workers had not completed their atypical early route on March 7, 2005. That charge was not proved. Indeed, petitioner’s witness conceded that the AFF report was filed with the borough office that day.

Perhaps respondent should have delivered the AFF report to the borough office at the outset of his shift rather than at the end of the day, but there was no evidence that any rule imposed such an obligation. Nor was there any evidence that this arguable delay of seven or eight hours had any discernable impact on Department operations. On the contrary, the evidence established that two sites were not serviced because the containers were malfunctioning. There was no proof that this would have changed if respondent had reported this condition earlier. Because petitioner did not prove that respondent failed to forward the AFF report on March 7, 2005, this charge should be dismissed.

FINDINGS AND CONCLUSIONS

1. Charge No. F115884 should be dismissed, because the Department failed to prove that respondent negligently failed to update an absence and lateness log.

2. Charge No. F115883 should be sustained, because petitioner proved that respondent failed to review and complete several days worth of daily performance cards.

3.  Charge No. F115885 should be dismissed because petitioner did not prove that respondent failed to notify the borough office that a truck had not completed its route.

RECOMMENDATION

After making the above findings, I requested and received a summary of respondent's personnel history. The Department hired respondent in 1982, promoted him to supervisor in 1987, and promoted him to general superintendent in 1998. His disciplinary record consists of one serious matter from long ago and two relatively minor infractions that led to the following penalties: a 20-day suspension in 1994 for insubordination; a reprimand in 1995 for failure to submit medical documentation; and the loss of one vacation day in 2002 for insubordination.

Petitioner requested a penalty ranging “anywhere between three and five days” suspension without pay (Tr. 158). Noting that respondent was not a shirker, petitioner conceded that respondent’s tardy recordkeeping was due, in part, to the conscientious manner in which he normally did his work. Petitioner opined that respondent may be “somewhat of a perfectionist” who would not sign a DS 350 card without carefully reviewing it (Tr. 153). In light of petitioner’s comments, and because only one charge of unintentional misconduct was proved, a penalty at the low end of the requested range is appropriate. See e.g., Transit Auth. v. Copeland, OATH Index No. 385/01 (Mar. 21, 2001) (three-day suspension for supervisor who negligently handled emergency leave records).