1

Health and Hospitals Corp. (Cumberland Diagnostic

and Treatment Center) v. Lowe

OATH Index No. 1808/06 (Nov. 2, 2006)

A housekeeping aide was found guilty of leaving his post without permission, failing to perform his assigned duties, failing to exercise self-control, being discourteous to his supervisor by using intemperate and abusive language and engaging in disorderly conduct. Based upon the principle of progressive discipline, the Judge recommended that respondent be terminated.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

HEALTH AND HOSPITALS CORPORATION

(CUMBERLAND DIAGNOSTIC and TREATMENTCENTER)

Petitioner

-against-

ERROL LOWE

Respondent

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REPORT AND RECOMMENDATION

KARA J. MILLER,Administrative Law Judge

This is a disciplinary proceeding referred by petitioner, the Health and Hospitals Corporation, pursuant to Rule 7.5 of its Personnel Rules and Regulations. Petitioner alleged that respondent Errol Lowe, a Housekeeping Aide at Cumberland Diagnostic and TreatmentCenter in the North Brooklyn Health Network, had engaged in several acts of misconduct over a four-week period. In 12 charges, citing violations of eight rules of conduct, petitioner alleges that respondent: failed to perform his assigned duties satisfactorily, failed to promote safe and sanitary conditions in the facility, left his post without permission, failed to maintain high standards of courtesy, failed to exercise self-control toward his supervisor, threatened his supervisor, used intemperate or abusive language, and engaged in fights or disorderly conduct on facility premises.

Following a hearing on the charges conducted before me, I find respondent guilty of leaving his post without permission, failing to perform his assigned duties, failing to exercise self-control, being discourteous to his supervisor by using intemperate and abusive language and engaging in disorderly conduct. Based on the following, I recommend that respondent be terminated.

ANALYSIS

The 12 charges occurred over the course of five days between December 30, 2005 and January 24, 2006. The charges will be addressed in chronological order.

December 30, 2005 -Charges I, II, and III

The charges allege that on December 30, 2005, respondent left his work area without permission, failed to obey his supervisor's order to return to work, was discourteous, failed to exercise self-control, threatened or intimidated his supervisor by using intemperate or abusive language and engaged in boisterous or disorderly conduct. Gil Vega, Assistant Director of Facility Operations, testified that he had been conducting his housekeeping rounds on December 30, 2005, when he noticed that respondent was nowhere to be found in the B Building, where he was assigned to work. While inspecting another building, Mr. Vega observed respondent engaged in a conversation with a co-worker. Mr. Vega approached respondent and directed him to return to work in his assigned area. Mr. Vega testified that respondent refused, and told him that he could talk to whomever he chooses and would return to work when he was ready. Instead of arguing with respondent, Mr. Vega elected to document the incident (Tr. 30, 41).

Respondent testified that he had to use the bathroom, so he left his assigned area in the B Building to use the employee bathroom in the Cumberland building, near the housekeeping office. He maintained that when he came out of the bathroom he encountered a friend. He contended that he had only been engaged in conversation for approximately five minutes, when Mr. Vega approached him. Respondent denied telling Mr. Vega that he could speak to whomever he wants and that he would return to work when he felt like it. Instead, respondent testified, he immediately returned to his work area when he was asked to do so (Tr. 58, 60-61)

In assessing a witness's credibility, it is necessary to take into account several factors including bias, demeanor, consistency, and whether the testimony comports with common sense. Mr. Vega had a calm and professional demeanor. Although he exhibited some frustration with respondent's conduct, he did not appear to exhibit any animus towards respondent. His testimony was straightforward and credible.

In contrast, respondent's testimony was vague and confusing. When asked if there were bathrooms that he could have used in the B Building, he simply stated that he was not permitted to use the patient bathrooms. When further questioned about whether there were employee bathrooms in the B Building, respondent acknowledged that there were, but contended that they were locked and he did not have a key. Respondent testified that although his duties include cleaning both the patient and employee bathrooms, he was never given a key to the bathrooms. He maintained that the only way that he can enter an employee bathroom, is when someone with a master key unlocks the door for him (Tr. 87, 89).

Respondent's explanation for leaving the B Building to use a bathroom in the CumberlandBuilding was not credible. It is illogical that an employee assigned to clean the bathrooms would not be given a key to the bathrooms to accomplish this function. Moreover, respondent was unable to conceal an overwhelming resentment and hostility towards Mr. Vega. I found Mr. Vega to be the more credible witness. Accordingly, I find respondent guilty of leaving his work assignment and failing to obey Mr. Vega's order to return to work on December 30, 2005.

With respect to this incident, respondent was further charged with being discourteous, failing to exercise self-control, threatening or intimidating his supervisor by using intemperate or abusive language and engaging in boisterous or disorderly conduct. I credit Mr. Vega's testimony that respondent refused to go back to work and told him that he could speak to whomever he chooses and would return to work when he felt like it. I do not find, however, that respondent threatened Mr. Vega or that he engaged in disorderly conduct by talking back to him.

The remaining issue is whether respondent failed to exercise self-control and was discourteous to his supervisor. This inquiry is not simply whether respondent was being rude or discourteous, but whether his overall behavior was so discourteous, that it warrants discipline. See Tulloch, OATH Index No. 512/03 (May 13, 2003), aff'd, NYC Civ Serv. Comm'n Item No. CD05-45-SA (Aug. 11, 2005); Dep't of Sanitation v. Palmisano, OATH Index No. 2032/01 (Mar. 14, 2002). Whether conduct or remarks are insubordinate or disrespectful is a factual question to be decided in the totality of the circumstances. See Dep't of Correction v. Martin, OATH Index No. 431/95 (Jan. 17, 1995). Sanctionable insolent behavior is more than an expression of disagreement with another individual. It must take the form of disobedience, insubordination or disrespect directed at another employee or supervisor. See Tulloch, OATH Index No. 512/03; Dep't of Housing Preservation and Development v. Jones, OATH Index No. 1068/00 (July 7, 2000). Respondent's insolent comments coupled with his refusal to return to work constituted disobedience, insubordination and disrespect directed at his supervisor. Accordingly, I find respondent failed to exercise self-control and was discourteous to Mr. Vega.

January 10, 2006 - Charge IV

Respondent was charged with being discourteous to his supervisor, failing to exercise self-control, threatening or intimidating his supervisor by using intemperate or abusive language and engaging in boisterous or disorderly conduct on January 10, 2006. Mr. Vega testified that he approached respondent in the morning to discuss changes that he needed to make in the lunch schedule. Respondent got annoyed and said, that Mr. Vega thought he was "the big man" and that he could harass respondent directly. Mr. Vega, exasperated by respondent's reaction, pulled out his cell phone and called Pedro Rivera, in the disciplinary unit, for advice. Mr. Rivera asked to speak with respondent. Mr. Vega testified that respondent became more and more excitable and started yelling at Mr. Rivera on the telephone. Mr. Vega was concerned about the situation because patients were present in the area (Tr. 35-36, 42-44).

Although respondent recalls having a conversation with Mr. Vega on January 10, 2006, he does not remember the substance of the conversation and denies calling Mr. Vega "the big man." Respondent testified that he remembered speaking to Mr. Rivera on Mr. Vega's cell phone, but denied that he was speaking loudly to Mr. Vega. Respondent contended that there were no patients in the area who could have possibly overheard what was being said (Tr. 62-64, 66).

I find Mr. Vega's account of this incident to be more credible than respondent's. Respondent's recollection of the events was disjointed and ambiguous. It is difficult to believe that he had no recollection of the substance of the conversation or what prompted Mr. Vega to telephone Mr. Rivera. Respondent's contention that Mr. Vega approached him and then called Mr. Rivera with the sole purpose of harassing him is incredible. Something precipitated Mr. Vega's telephone call to Mr. Rivera, and it is more likely than not, that it was respondent's overreaction to having his lunch schedule changed. I further find respondent's adamant denial that there were no patients in the area highly suspect in light of his vague recall of other aspects of this encounter.

It is impermissible for respondent to scream at his supervisor, regardless of respondent's feelings for his supervisor or the directives that are given. It is well settled that not every disagreement with a supervisor rises to the level of misconduct. The disagreement, however, must remain within the bounds of decorum and discretion. SeeHuman Resources Admin. v. Bichai, OATH Index No. 211/90 (Nov. 21, 1989), aff'd. N.Y. Civ. Serv. Comm'n Item No. CD 90-54 (June 15, 1990); Dep't of Correction v. Martin, OATH Index No. 431/95 (Jan.17, 1995). When examining the tenor and tone of respondent's comments and the fact that respondent disrupted the workplace by yelling at his supervisor in front of patients, it becomes clear that this disagreement exceeded the bounds of decorum and discretion. As such, I find respondent failed to exercise self-control, and was discourteous and disorderly on January 10, 2006. I do not find, however, that respondent threatened or intimidated Mr. Vega by calling him "the big man."

January 20, 2006 - Charge V

The charges allege that respondent failed to perform his duties on January 20, 2006. Alexis Geraldo, Housekeeping Supervisor, conducted an inspection of the bathrooms assigned to respondent at approximately 4:15 p.m. on January 20, 2006, and found them to be dirty. Although respondent's tour ended at 4:30 p.m., he had already left for the day. Mr. Geraldo informed Mr. Vega about the situation (Tr. 23). In response, Mr. Vega inspected the bathrooms and confirmed that there was garbage on the floor and the sinks were dirty. Since respondent was already gone for the day, the night crew had to clean the mess (Tr. 46-47). Respondent testified that he is responsible for three floors and he always does his job. He denied leaving the bathrooms dirty (Tr. 67).

I found Mr. Geraldo to be credible. He did not demonstrate any bias against respondent, testifying that they generally got along. Moreover, Mr. Geraldo's testimony was consistent and was corroborated by Mr. Vega. In contrast, respondent's denial was less than credible. Accordingly, I find respondent failed to clean the bathrooms on January 20, 2006.

January 23, 2006 - Charges VI, VII, VIII, IX, X

The charges allege that on January 23, 2006, during the course of three separate incidents, respondent was discourteous to his supervisor, failed to obey two orders, left his assigned work area, failed to exercise self-control, threatened or intimidated his supervisor by using intemperate or abusive language and engaged in boisterous or disorderly conduct. Mr. Vega testified that as he was opening up the housekeeping officer on Monday, January 23, 2006, he asked respondent to come into the office to speak with him privately. Mr. Vega had received a complaint towards the end of the day on the previous Friday about respondent's failure to clean the bathrooms. Mr. Vega maintained that he was attempting to ascertain what had happened, when respondent launched into a verbal tirade, accusing Mr. Vega of being racist and giving special treatment to Hispanics. He told Mr. Vega that this was a "black lynching." Respondent yelled that, "Nelson Mandela did not get harassed as much as I get from this stupid place," and informed Mr. Vega that his sister was an attorney who specializes in labor relations. Mr. Vega tried to calm respondent down. Eventually, respondent stopped yelling (Tr. 31, 47-50).

Respondent acknowledged that he was speaking loudly because he was upset about being accused of not doing his job. He admits that he called Mr. Vega a racist because he treats the Hispanic people who work in Housekeeping more favorably. Respondent further acknowledged that he referred to Nelson Mandela and discussed the fact that his sister is an attorney (Tr. 67-70).

With respect to this undisputed incident in the housekeeping office, I find respondent did not commit misconduct. Despite how distasteful it is to be called a racist, respondent's behavior under these circumstances falls short of misconduct. As mentioned above, it is permissible for an employee to disagree with his supervisor. The factors that would transform an ordinary disagreement into misconduct, include profanity, threats, and disruption in the workplace. This conversation occurred in the housekeeping office with no one else present. Indeed, Mr. Vega made a point of saying that respondent stopped yelling on his own accord because he did not have an audience present (Tr. 49). Respondent never used profanity. Respondent's reference to his sister being an attorney did not constitute a threat. Accordingly, the charges pertaining to this incident should be dismissed.

Later that same day at around 3:45 p.m., Mr. Geraldo was conducting his rounds when he observed that someone had vomited in the hallway. Mr. Geraldo directed respondent to clean up the spill. Respondent refused, telling Mr. Geraldo that he was almost done for the day, so the night crew could take care of it. Mr. Geraldo repeated his order that respondent clean up the spill and respondent replied that he would rather go home sick than clean it. Mr. Geraldo testified that respondent never filed sick leave papers nor did he ever clean the spill. The night crew cleaned it when they came on duty (Tr. 24-25). Respondent disputed that there was a spill. He denied having any conversation with Mr. Geraldo on January 23, 2006 and that he was told to clean up a spill. Respondent asserted that if he had been told about a spill, he would have cleaned it, because he "loves to mop" (Tr. 70-72).

Mr. Geraldo subsequently notified Mr. Vega that respondent refused to clean up the spill. Mr. Vega was in a meeting with Tinga Tamboura at the time, so he asked Mr. Tamboura to accompany him while he inspected the area and talked with respondent. At approximately 4:15 p.m., Mr. Vega and Mr. Tamboura exited the elevator in the CumberlandBuilding and observed respondent standing there. Mr. Vega asked respondent what he was doing out of his assigned work area, and respondent replied that he had finished his job for the day. Mr. Vega responded that his tour was not over until 4:30 p.m. and that he had to return to the B Building. Respondent took exception to Mr. Vega's directive and started yelling at him and calling him a racist.

Respondent testified that at approximately 4:25 p.m., he had finished his work for the day and was in the process of washing out his bucket and mop, when Mr. Vega approached him. He acknowledged that Mr. Vega ordered him to go back to work and that he refused because the order did not make sense. It was very close to the end of his tour and he still had to clean his equipment. He asked Mr. Vega why he was harassing him and then called him a racist. Respondent maintained that he did not sign out that day until 4:35 p.m., because he had to return his equipment to the other building after he finished cleaning it (Tr. 73-74).

With respect to these two incidents, I find respondent guilty of misconduct. Mr. Geraldo credibly testified that he directed respondent to clean up the spill in the hallway and respondent refused. Respondent's denial that he was notified about the spill was unbelievable. Thus, I find respondent failed to obey Mr. Geraldo's order. It is undisputed that respondent refused to return to his assigned work area when directed by Mr. Vega. Regardless of respondent's assessment of the directive, Mr. Vega gave a clear order that respondent was obligated to follow. It is well settled that once a directive has been given, an employee must abide by the principle of "obey now, grieve later." This means that an employee is required to obey the order when it is given and subsequently challenge it through formal grievance procedures if there are any substantive or procedural objections. See Ferreri v. New York State Thruway Auth., 62 N.Y.2d 855, 477 N.Y.S.2d 616 (1984); Strokes v. City of Albany, 101 A.D.2d 944, 475 N.Y.S.2d 635 (3d Dep't 1984); Dep't of Correction v. Shabazz, OATH Index No. 111/03 (Aug. 21, 2003); Health and Hospitals Corp. (Kings County Hospital Center) v. Gordon, OATH Index No. 1843/98 (Nov. 2, 1998). Respondent should have returned to his assigned work area and subsequently addressed the matter to his union. Accordingly, respondent failed to obey Mr. Vega's order. I further conclude that respondent committed misconduct by challenging Mr. Vega's order and yelling, in front of other employees, that Mr. Vega was a racist. Respondent's actions disturbed the workplace. Although respondent's conduct was not threatening or intimidating, it was insolent and discourteous, and disturbed the workplace. I find that on January 23, 2006, respondent left his assigned work area, failed to exercise self-control and engaged in disorderly conduct in violation of the Hospital's Code of Conduct.

January 24, 2006 - Charges XI and XII

Respondent was charged with failing to perform an assignment, being discourteous to his supervisor, failing to exercise self-control, threatening or intimidating his supervisor by using intemperate or abusive language and engaging in boisterous or disorderly conduct on January 24, 2006. On this date, Mr. Vega and Mr. Tamboura were conducting a housekeeping tour of the facility. When they arrived at the first floor bathrooms, they observed that they were "filthy." There was trash on the floor and the sinks and toilets were dirty. They asked respondent to clean the bathrooms, but he refused. Respondent told them that it was the night crew's job. He became very angry and yelled at Mr. Vega that, "he was not a leader" and that this was "not a plantation" (Tr. 15-33). Respondent had become so angry and out of control, that Mr. Tamboura stepped in between them and held respondent back. Both Mr. Tamboura and Mr. Vega testified that respondent was very loud and there were patients in the area. Respondent eventually swept the floor of the bathrooms to remove the trash, but did not clean the sinks or toilets (Tr. 15-16, 20, 33-34).