Human Resources Admin. V. Mcneil

1

Human Resources Admin. v. McNeil

OATH Index No. 684/09 (Dec.26, 2008)

Petitioner established that respondent submitted false and inappropriate claims for overtime and compensatory time. Suspension without pay for 30 days recommended.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

HUMAN RESOURCES ADMINISTRATION

Petitioner

-against-

JOANNE MCNEIL

Respondent

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REPORT AND RECOMMENDATION

KEVIN F. CASEY, Administrative Law Judge

The Human Resources Administration (“HRA”) brought this disciplinary proceeding under section 75 of the Civil Service Law, and charged respondent,Joanne McNeil, an eligibility specialist,with making falseand inappropriate overtime entries on automated timekeeping records on 38 occasions from January 31 through August 2, 2007, in violation of petitioner’s Code of Conduct, Executive Order No. 651, section II, paragraph 1 and section III, paragraph 4 (ALJ Ex. 1).

At a two-day hearing, petitioner relied on documentary evidence and testimony of five HRA employees. Respondent testified on her own behalf and also presented testimony from four witnesses, including three current or former co-workers.

For the reasons below, I find that petitioner proved that respondent made false and inappropriate claims for overtime and compensatory time from January through August 2007. Petitioner did not prove, however, that respondent failed to work the hours that she had claimed. Accordingly, I recommend that respondent be suspended for 30 days without pay.

PRELIMINARY MATTER

At the hearing’s outset, petitioner moved to amend allegations regarding false overtime claims in two specifications, from 105 to 60 minutes, and 30 to 105 minutes, respectively (Tr. 5). Under this tribunal’s rules, amendments to pleadings less than twenty-five days before the beginning of a hearing require approval of an administrative law judge. 48 RCNY § 1-25 (Lexis 2008). Absent prejudice to respondent, such an amendment is freely granted. See Matter of Zabari, OATH Index No. 419/96 (Oct. 16, 1995), aff’d sub nom. Zabari v. New York City Loft Bd., Index No. 107964/96 (Sup. Ct. N.Y.Co. Feb. 11, 1997), rev’d in part on other grounds, 245 A.D.2d 200, 666 N.Y.S.2d 598 (1stDep’t 1997) (petitioner’s motion to amend made on day of trial granted where respondent was unable to show any prejudice). Here, amendment was granted to correct an apparent clerical error where there was no prejudice to respondent.

ANALYSIS

Background

Petitioner’s Child Support Litigation Unit is located on Water Street in Manhattan. Some attorneys from that unit are assigned to the Child Support Enforcement Term (“CSET”) in Family Court onLafayette Street inManhattan. CSET provides litigation services to the Office of Child Support Enforcement (“OCSE”) (Tr. 10-14). CSET and OCSEare located on the same floor at Family Court, but they are distinct units with different personnel. OCSE seeks to locate absent parents and recover child support. After serving and filing Family Court petitions, OCSE forwards case files to CSET. Based upon those petitions, CSET attorneys seek child support orders against non-custodial parents in an effort to obtain reimbursement of public assistance funds disbursed by petitioner (Tr. 178-79). CSET attorneys handle a large volume of cases, up to 2,000 per week, on behalf of OCSE (Tr. 14-17; 45-51).

In October 2006, respondent began working for CSET as a principal administrative associate. Her responsibilities included answering telephones and transporting files to and from OCSE (Tr. 17-18).

Manager Alan Ferster supervisedCSET attorneys during 2006 and 2007. His office was not located in the Family Court building, but he visited there almost daily to meet with the attorney team leaders. The team leaders assigned respondent tasks and supervised her day-to-day work (Tr. 105-09). From October 2006 to July 2007, Mr. Ferster approved respondent’s time and leave requests (Tr. 17-18, 43, 45-51, 105-09).

Petitioner’s timekeeping records are maintained by a paperless system referred to as “Autotime.” Employees swipe cards which register their arrival and departure times. To obtain overtime, employees must request permission from their supervisor in advance (Tr. 33, 110-12). After working overtime, employees make entries into Autotime specifying whether they are seeking compensatory time or overtime pay. Supervisors review those computer entries (Tr.19).

Evidence Regarding Respondent’s Overtime and Compensatory Time Charges

There is no dispute that from Januarythrough August 2007, respondent submitted 38 claims on Autotime for overtime and compensatory pay. All of those entries were approved by supervisors. According to Mr. Ferster, respondent expressed an interest in overtime shortly after she started working for the unit. Mr. Ferster met with his supervisor, deputy counsel Arlene Weberg, and confirmed that overtime was rarely granted(Ferster: Tr. 109-10; Weberg: Tr. 21). Mr. Ferster also spoke with Cathy Barrett, the director of Central Court Services at OCSE, which had an overtime budget and was understaffed.

According to Mr. Ferster, when he asked whether someone from his staff could work overtime for OCSE, Ms. Barrett told him that “it could be doable” (Ferster: Tr. 110). Ms. Barretttestified that she was skeptical whether someone from another unit could work overtime for her. She recalled telling Mr. Ferster,“I didn’t know” and that she would “get back to him” (Barrett: Tr. 162). Ms. Barrett later spoke with her deputy director and they decided that the proposal was not feasible (Tr. 162, 164). However, Ms. Barrett forgot about the issue and never got back to Mr. Ferster (Barrett: Tr. 161-62, 164).

Meanwhile, Mr. Ferster told his supervisor, Ms. Weberg, that Ms. Barrett had agreed to allow respondent to work overtime for OCSE (Tr. 110). Ms. Weberg agreed to the proposal but cautioned that the overtime had to be charged to OCSE’s budget (Tr. 110). Mr. Fersterthen told respondent that if she wanted to work overtime she needed to speak with Ms. Barrett (Tr. 130).

Shortly afterwards, when respondent began to claim overtime, Mr. Ferster assumed that the work was for OCSE (Tr. 111-12, 114, 116). He never visited CSET before 10:00 a.m. or after 5:30 p.m.and was unable to confirm that respondent had worked the overtime hours that she claimed. Instead, he simply approved all of respondent’s overtime claimsfrom January 31 to June 18, 2007, because she was a good worker, he had never received any complaints about her, and he trusted her (Tr. 117-19, 127; Pet. Ex. 3). In March 2007, after respondent began to receive overtime pay on a regular basis, Ms. Weberg sent an e-mail to respondent advising her that she should note on all overtime claims that the work was performed for OCSE (Pet. Ex. 1; Tr. 26-27). From March 28 to August 2007, respondent routinely wrote “OCSE” on her overtime entries (Tr. 27).

Maureen Rodney became respondent’s supervisor in July 2007. In the five years that Ms. Rodney had worked in their unit, overtime had never been approved for clerical support staff (Tr. 152). On July 23, 2007, Ms. Rodney noticed respondent’s overtime claims for July 18 and 19 and asked her about them. Respondent told Ms. Rodney that she worked overtime for OCSE and that Ms. Weberg knew about it. The next day, Mr. Ferster told Ms. Rodney that respondent worked overtime for OCSE. Though she could not authorize overtime, Ms. Rodney approved respondent’s requestbecause it was a payroll week and Ms. Weberg was on vacation (Tr. 145-50, 154; Pet. Ex. 3).

Ms. Weberg signed off on overtime claims that were approved by unit supervisors. On August 14, 2007, while Ms. Rodney was on vacation, Ms. Weberg noticed a number of overtime claims by respondent, including one on a day when there was a storm that prevented many people from going to work. Ms. Weberg e-mailed respondent and asked her to identify the OCSE supervisor for whom she had worked (Tr. 20-22). Ms. Weberg called OCSE’s deputy director, who informed her that nobody from CSET had worked overtime for OCSE. The OCSE director, Ms. Barrett, also testified that respondent had never spoken with her about working overtime for OCSE. Instead, respondent e-mailed her about overtime for the first time in August 2007 (Tr. 162, 164). After receiving confirmation from OCSE’s deputy director, Ms. Weberg reported the matter to senior deputy general counsel (Tr. 19-27, 32-33, 41; Pet. Exs. 4, 5, 9).

In reply to Ms. Weberg’s inquiry, respondent sent an e-mail explaining that her OCSE overtime was forcases prepared for CSET attorneys and that she had not been assigned a supervisor (Pet. Ex. 6). Ms. Weberg advised respondent that OCSE work was not considered CSET attorney preparation work and overtime could not be unsupervised. She also advised respondent that further overtime would not be authorized. Relying upon recommendations of Mr. Ferster, Ms. Weberghad signed off on several of respondent’s earlier overtime claims without question, before instructing her toidentify the unit for which she had worked the overtime (Tr. 27-35, 39-40, 43, 45; Pet. Exs. 1, 2).

Ms. Barrett and Mr. Ferster did not clearly distinguish between the work performed by OCSE and CSET attorneys. Ms. Barrett said the work was the same (Tr. 162-63, 165). Mr. Ferster denied that the responsibilities of OCSE and CSET overlapped, but he described some duplication of effort. OCSE was responsible for obtaining relevant documents for litigation files. After CSET attorneys received the files, they prepared for court by reviewing each file. If a file was incomplete, an attorney could withdraw the case or adjourn it and have the file returned to OCSE for completion (Tr. 121-23, 125-26, 136).

Other witnesses offered more details of respondent’s duties. Child support magistrate Kevin Mahoney, a CSET team leader during the period in question, testified that respondent was occasionally asked to prepare case files. Mr. Mahoney acknowledged that respondent’s work was similar to work performed by OCSE, but he never authorized overtime and did not know who kept track of respondent’s time (Tr. 82-93). Patricia Callahan, a CSET attorney who has worked for petitioner for nearly 20 years, testified that she had difficulty keeping up-to-date with case preparation in 2007 and much of that work wasreassigned to respondent (Tr. 176-77). Ms. Callahan said that respondent was dedicated and very thorough. Respondent knew exactly what was needed for the files and how to locate missing information(Tr. 179-80). Ms. Callahan was unsure whether respondent prepared case files during normal work hours and shenever asked respondent to work overtime (Tr. 183).

Co-worker Sheryl Liburd confirmed that respondent handled case preparation. Respondent was familiar with specialized databases to gather information needed for a support order (Tr. 185-86). Ms. Liburd, the only other support staff person in CSET, knew that no overtime was authorized inher unit and she did not work extra hours (Tr. 187-88). She never heard anyone assign respondent overtime but indicated that, when work was assigned, it was expected that it would be completed (Tr. 190-91).

Respondent has worked for HRA for approximately 23 years (Tr. 198). In October 2006, she was promoted to principal administrative associate and assigned to work with the CSET attorneys in the Family Court building. Previously, she worked in petitioner’s fraud investigations unit.

When respondent began working at CSET, she had to wait with the public in long lines to enter the Family Court building. To avoid delays, respondent arrived as early as 7:30 a.m. and would begin working before her 9:00 a.m. designated start time. Respondent recalled asking Mr. Ferster if she could be paid for working early and he said, “Put it in. I’ll approve it”(Tr. 197-99, 202, 219-20). InJanuary 2007, Mr. Fersterdirected respondent to indicate “OCSE” on her overtime claims, because she retrieved missing documents which should have been provided by OCSE (Tr. 199-201, 223). According to respondent, Mr. Ferster told her that Ms. Weberg was aware ofthis overtime arrangement (Tr. 199).

At the hearing, respondent maintained that her overtime claims from January through July 2007 were primarily for file preparation of cases assigned to her by CSET attorneys and team leaders. Respondent knew that petitioner had a policy that overtime had to be pre-approved and supervised (Tr. 218-19). Conceding that no one at OCSE nor any CSET team leaders authorized or supervised her overtime, respondent claimed that Mr. Ferster’s authorization was sufficient (Tr. 201, 203, 206, 212, 219, 221-22, 228, 251).

Respondent also conceded that she may have worked more overtime hours beginning in March 2007, which coincided with deductions from her pay due to absenteeism (Tr. 233-34). Moreover, respondent acknowledged that she changed one of her overtime entries for July 18, 2007, from “voluntary” to “involuntary,”after Ms. Rodney questioned the claim (Rodney: Tr. 149; McNeil: Tr. 236-39; Pet. Ex. 16). Respondent denied, however, that she had cancelled overtime claimsin August 2007 after they were questioned by Ms. Weberg; instead, respondent said that she had previously cancelled the overtime claims (Tr. 244).

Based upon the evidence presented, it appears that respondent worked all or most of the overtime hours that she claimed. The CSET attorneys who testified all agreed that respondent worked extra hours preparing files. Petitioner offered no evidence to show that respondent was paid for any hours which she did not, in fact, work. It is also undisputed that Mr. Ferster, and later Ms. Rodney, approved respondent’s overtime claims on Autotime.

The central issue, however, is whether respondent secured overtime by submitting false and inappropriate claims. Resolution of this matter depends, in large part, on whether Mr. Ferster told respondent to check with Ms. Barrett about overtime for OCSE, which respondent failed to do. The credible evidence established that Mr. Ferster gave this directive to respondent and she ignored it. As a result, respondent submitted misleading overtime claims which created the impression that she had worked for OCSE with Ms. Barrett’s approval.

To begin with, Mr. Ferster was a credible witness. He candidly admitted that he was a lax supervisor who was distracted by other matters. His willingness to accept responsibility lent credence to his testimony. Thus, I believed him when he recalled telling respondent that she had to check with Ms. Barrett. Because overtime was generally unavailable at CSET, it made sense for Mr. Ferster to direct respondent to the manager of another unit on the same floor.

Respondent did not dispute that Mr. Ferstertold her to check with Ms. Barrett. Instead, at the hearing, when asked whether Mr. Ferster told her to contact Ms. Barrett about overtime, respondent replied, “I did send an e-mail to her” (Tr. 221). Presented with evidence that she did not e-mail Ms. Barrett until August 28, 2007, respondent claimed that she sent an earlier e-mail (Tr. 221). When pressed on this point, respondent claimed that she sent e-mails to Ms. Barrett’s assistant that went unanswered (Tr. 245-46). Respondent offered no evidence to support her claim that she sent prior e-mails to anyone requesting overtime at OCSE. She also conceded that she never had a conversation with Ms. Barrett at OCSE regarding overtime (Tr. 251).

When her requests were later disputed, respondent’s reaction further demonstrates that she knew that she did not have proper authority to work overtime. In July 2007, after a new supervisor inquired, respondent suddenly claimed that her overtime was involuntary. On August 27, 2007, when Ms. Weberg asked for more information, respondent withdrew her request for payment for overtime that she had supposedly worked. The next day, respondent sent an e-mail in which she introduced herself to Ms. Barrett and inquiredabout the possibility of working overtime at OCSE (Tr. 245; Pet. Ex. 4, 12). Had respondent’s overtime been authorized since January, as she claimed, there would have been no need for her actions in July and August.

In sum, petitioner’s evidence demonstrated that Mr. Ferster told respondent, before she submitted her overtime claims, to check with Ms. Barrett at OCSE. Respondent failed to do that. Instead, she went ahead and submitted overtime claims to Mr. Ferster. Shortly afterwards, she began entering specific references to OCSE on those forms. Taking advantage of Mr. Ferster’s poor supervision, respondent sought to create the impression that she was performing overtime work for OCSE thatdiffered from her normal duties at CSET. This was false and inappropriate. Thus, the charges are sustained.

FINDINGS AND CONCLUSIONS

1.Petitioner sustained Charge I, that respondent made false and inappropriate timekeeping entries, in violation of section III, paragraph 4, of petitioner’s Code of Conduct.

2.Petitioner sustained Charge II, that respondent’s conduct was prejudicial to good order and discipline, in violation of section III, paragraph 1, of petitioner’s Code of Conduct.

RECOMMENDATION

After making the above findings, I requested and received a summary of respondent’s personnel history. Petitioner hired respondent as an eligibility specialist in 1986. In her first twenty years with the agency, she had a minor disciplinary record: a reprimand in 1988 for punctuality problems and a two-day pay deduction in 1990 for inadequate work performance. Recent evaluations describe her as “a very good worker” who is courteous and conscientious.

In October 2006, respondent was promoted to principal administrative aide. In September 2007, respondent was charged with misconduct similar to the present charges. Petitioner accused her of making three false overtime entries in August 2007, swiping in at an unauthorized location on one date, and being absent without proper approval on seven days. As a result of those charges,petitioner immediately demoted respondent from her probationary title and sought termination of her employment. Following a “step two” hearing, the recommended penalty was a 30-day suspension and an appeal is pending. Respondent’s defense to those charges is the same as here; she maintains that she worked every hour for which she sought payment and that any lack of proper approval for overtime was due to a misunderstanding.

For the present charges, petitioner seeks termination of respondent’s employment. Termination would be unduly harsh given respondent’s two decades of employment with the agency, the circumstances of the charges,and principles of progressive discipline. See Dep’t of Finance v. Anderson, OATH Index No. 1485/08, at 7-8 (May 6, 2008) (termination inappropriate for tax auditor with no prior formal disciplinary history who engaged in misconduct with customer); see alsoPell v. Bd. of Education, 34 N.Y.2d 222, 356 N.Y.S.2d 833 (1974).

Although respondent failed to obtain the appropriate approval for overtime, there was no evidence that she was paid for hours that she had not worked. Indeed, petitioner’s and respondent’s witnesses agreed that CSET handled an extraordinary number of cases and that respondent routinely prepared files before and after regular working hours. Current and former CSET attorneys praised the quality of her work. Moreover, attorneys and the agency benefited from respondent’s diligent efforts to prepare files. Every hour that respondent spent locating missing information enabled attorneys to secure court orders and recoup support payments.