Dep't of Transportation v. Lopez-Zayas
OATH Index No. 934/06 (Mar. 3, 2006)
In an AWOL default proceeding, the evidence established that respondent has been continuously absent from work without leave since September 16, 2005. Termination recommended.
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NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
DEPARTMENT OF TRANSPORTATION
Petitioner
- against -
DAVID LOPEZ-ZAYAS
Respondent
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REPORT AND RECOMMENDATION
TYNIA D. RICHARD, Administrative Law Judge
-3-
This employee disciplinary proceeding was referred by petitioner Department of Transportation pursuant to section 75 of the Civil Service Law. Respondent David Lopez-Zayas is employed by petitioner as a Community Associate in its Permit Management Unit. He is charged with being absent without leave from August 21, 2005 to August 25, 2005, for 12 days from September 16, 2005 to September 29, 2005, and continuously since October 7, 2005. He is also charged with failing to appear for scheduled mental fitness exams and with excessive lateness.
The hearing on the charges was scheduled to be conducted before me on March 1, 2006. Upon respondent’s failure to appear, proof of service of the charges and the notice of hearing were submitted (Pet. Exs. 1-3). Such evidence established the jurisdictional prerequisites for finding respondent in default, and the hearing proceeded as an inquest.
Respondent’s supervisor, Andrea Batiste, testified that by September 2005, she had observed that respondent regularly arrived late for work and was not performing his duties. She spoke with him about it and gave him a memorandum outlining these problems (Pet. Ex. 7). The memo stated that he had been late to work on at least 80 occasions since January 2005, and that he was failing to perform his work adequately. Respondent’s time cards show that he appeared late to work on 84 occasions from January 19, 2005, until he stopped reporting to work altogether in September 2005 (Pet. Ex. 8).
Ms. Batiste testified that respondent has been absent without leave and had not reported to work since September 2005. Respondent’s time cards show that he was absent from work without authorization from September 16, 2005, through October 28, 2005 (Pet. Ex. 8). Time cards were not submitted for the period after October 28th. There was no evidence that respondent requested a personal or medical leave of absence or otherwise attempted to explain his absences. The time cards also showed that he was absent for periods of the day from August 22, through August 26, 2005.
Petitioner scheduled a medical examination for respondent, pursuant to section 72 of the Civil Service Law, and served notice upon him directing his attendance on October 20, 2005 (Pet. Exs. 4 & 6). Petitioner contends that respondent failed to appear for the examination.
As a result of the foregoing uncontested evidence, I find respondent guilty of being absent from his job without leave continuously since September 16, 2005. I also find him guilty of excessive lateness, and of failing to report to a scheduled medical examination pursuant to section 72 of the Civil Service Law.
FINDINGS AND CONCLUSIONS
1.Petitioner properly served respondent with the charges and
notice of hearing.
2.Respondent has been absent without leave as charged since
September 16, 2005.
3.Respondent was guilty of excessive lateness by incurring 84
latenesses in a nine-month period.
4.Respondent was guilty of failing to report to a scheduled
and properly noticed medical exam pursuant to section 72
of the Civil Service Law.
RECOMMENDATION
Respondent has been found guilty of several instances of misconduct, all of which indicate a lack of interest in continuing employment with the Department.
He is guilty of unauthorized absence from work for a continuous and extended period of time. Respondent's unauthorized absence is a fundamental form of misconduct which substantially impedes the agency's ability to fulfill its mission. By itself, a continuous long-term AWOL is a form of misconduct for which termination is an appropriate penalty. In this case, respondent is also guilty of excessive lateness and failing to report for a noticed medical exam.
The Department seeks respondent’s termination, and I so recommend.
Tynia D. Richard
Administrative Law Judge
March 3, 2006
SUBMITTED TO:
IRIS WEINSHALL
Commissioner
APPEARANCES:
TONYA MORGAN, ESQ.
ERICA CARAWAY, ESQ.
Attorneys for Petitioner
No Appearance by Respondent