Admin. for Children's Services v. Springer
OATH Index No. 665/05 (Jan. 5, 2006), modified on penalty, Comm’r Dec. (Feb. 3, 2006), appended
Child Protective Specialist Supervisor charged with insubordination, failing to perform duties, using inappropriate and abusive language, and inappropriate behavior over a six-month period. Judge finds respondent guilty of several of the charges and recommends that he be suspended without pay for 45 days in light of mitigating circumstances. Commissioner does not adopt penalty recommendation, and terminates employee.
NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
ADMINISTRATION FOR CHILDREN'S SERVICES
- against -
REPORT AND RECOMMENDATION
KARA J. MILLER, Administrative Law Judge
This is a disciplinary proceeding referred by petitioner, the Administration for Children's Services, pursuant to section 75 of the Civil Service Law. Respondent, Andre Springer, is a Supervisor II in the Division of Child Protection in the Brooklyn Field Office. Petitioner alleged that respondent engaged in several acts of misconduct between January and June 2003. In seven charges involving 36 specifications, petitioner alleges that respondent: failed to perform his duties; was insubordinate; used inappropriate and abusive language with a client, co-worker and supervisor; used language which would tend to arouse hatred or ill will against an individual based upon race, color or national origin; failed to ensure that subordinates under his jurisdiction properly performed their official duties; behaved in a manner prejudicial to good order and discipline; and engaged in conduct detrimental to the agency (ALJ Ex. 1).
Following a two-day hearing, I find respondent guilty of failing to timely complete performance evaluations, failing to monitor a subordinate's work on 17 unaccounted and open cases; refusing to comply with a supervisor's directive to complete the Dena M. case; failing to timely complete various supervisory reviews in the Susan C., Deborah C., Hui Mei C., Tina T., Sandra B., Trudy C. and Carmen S. cases; insubordination during a unit meeting; shouting hostile and derogatory insults at a subordinate; and creating a hostile work environment by making disparaging ethnic comments to a subordinate. The remaining charges are dismissed. Based on the following, I recommend that respondent be suspended without pay for 45 days.
The charges and specifications repeat and reallege many of the core incidents at issue. Accordingly, for the sake of clarity each incident of alleged misconduct will be discussed only once, and specifications that repeat other specifications of misconduct will not be discussed separately. "The severity of misconduct is not measured by the number of charges involved, but by the gravity of the misconduct proved." Dep't of Probation v. James, OATH Index No. 535/90, at 4 (Feb. 6, 1990).
These charges primarily stem from two personality conflicts between respondent and his supervisor, Almarie Buddington, and between respondent and one of his subordinates, Eugenia Amobi. Respondent and Ms. Buddington have different management styles. Ms. Buddington prefers a more serious or professional relationship with her subordinates and to memorialize things through e-mails and memos, while respondent prefers a more informal relationship with his subordinates and a more verbal approach to supervision. Respondent and Ms. Amobi have a communication problem that is exacerbated by the fact that Ms. Amobi is an inadequate employee who has trouble relating to others.
With respect to respondent's relationship with Ms. Buddington, Marsha Kellam, Deputy Director of Field Operations in the Brooklyn Division of Child Protection, testified that Ms. Buddington complained to her on several occasions about respondent's attitude and performance. Ms. Kellam recalled that in January 2003, Ms. Buddington informed her that respondent was difficult to supervise because he was rude, did not accept directives, failed to complete work within prescribed deadlines and walked out of meetings. Ms. Kellam directed Ms. Buddington to work with respondent to correct his behavior. Three months later, Ms. Buddington returned with similar complaints about respondent's conduct and demeanor. In response, Ms. Kellam met with respondent and Ms. Buddington, and after informing respondent that his behavior was unacceptable, she warned him that he faced disciplinary action if such behavior continued. According to Ms. Buddington, respondent's conduct did not improve (Tr. 11-14).
Ms. Buddington, a Child Protective Manager, was respondent's immediate supervisor. She testified that prior to January 2003, respondent had done very good work and they had a positive working relationship. She stated that respondent often made comments which he perceived as funny, but that co-workers felt were inappropriate. She further maintained that on other occasions, respondent would "become explosive" when he disagreed with a directive. She testified that prior to January 2003, she met with respondent three or four times regarding his conduct and explained to him that as a supervisor, he should set the tone for his subordinates through exemplary behavior. Around January 2003, Ms. Buddington became concerned about respondent's response to her directives and his behavior during staff meetings, so she began documenting his conduct. She stated that respondent would get upset and yell whenever she issued him a directive he did not agree with, that he would sleep during supervisory meetings and call them a waste of his time, and that he would delete her e-mails without reading them. Ms. Buddington contended that respondent's inappropriate conduct persisted even after she addressed it with him (Pet. Ex. 5; Tr. 36-40).
On March 24, 2003, respondent sent a memo to Ms. Kellam accusing Ms. Buddington of harassment by constantly sending e-mails to him. He explained that he did not respond to all of Ms. Buddington's e-mails because he knew what he was doing and did not need her telling him how to handle his job (Resp. Ex. BB; Tr. 301, 346-48, 359-60). Respondent testified that before he sent the memo, he had never been accused of making racially or ethnically disparaging comments in the workplace (Tr. 301). He intimated that these charges were a form of retaliation.
With respect to respondent's relationship with Ms. Amobi, it is rather apparent that neither liked or respected the other, which created a hostile and distrustful work environment. Ms. Amobi requested a transfer into respondent's unit in 2002, and he supervised her for approximately one year. Respondent testified that several clients have complained about Ms. Amobi's attitude and demeanor. He maintained that she is not a very good employee and he had to speak to her on a number of occasions about her poor work performance. Respondent testified that Ms. Amobi was unreceptive to his instructions. He acknowledged that most of his directives to Ms. Amobi were verbal, but once he realized that her work was not improving he began to document her deficiencies in writing (Tr. 209, 300, 357-58).
Ms. Amobi testified that respondent did not provide adequate supervision and guidance. She found him unapproachable and on certain occasions he ignored her requests for assistance. Ms. Amobi contended that respondent treated her differently than other employees in the unit and she felt uncomfortable when her colleagues discussed topics such as age or religion. Ms. Amobi filed a complaint against respondent with the Administration's Office of Equal Employment Opportunity ("EEO") in May 2003. The complaint was never substantiated, but led to an even larger rift in their relationship (Tr. 209-12).
On May 30, 2003, respondent returned approximately a dozen cases to Ms. Amobi because of her failure to properly complete the work. Ms. Amobi got annoyed with respondent and their discussion deteriorated into name calling and profanity. Respondent was transferred out of the unit shortly thereafter (Tr. 227-30, 325-26).
The following are the charges that resulted from the breakdown of these two relationships.
Failure to Perform All Duties and Insubordination
Petitioner withdrew charge I, specifications 1, 10, 11, 12 and 16, alleging that respondent failed to perform certain duties with respect to the following cases: Trudy C., Castillo P., Wei-Qun C., Racquel D., and Rosario B. In addition, petitioner withdrew charge V, specification 1, alleging that respondent failed to ensure that his subordinates performed their official duties with respect the to the Trudy C. case.
Charge I, Specification 4, Charge II, Specification 2, Charge VI, Specification 1 and Charge VII, Specification 1
Respondent was charged with failing to complete performance evaluations for the preceding year for all of the Child Protective Specialists under his supervision by May 5, 2003, despite directives from his supervisor to do so.
Ms. Buddington testified that respondent was responsible for completing and submitting the 2002 annual performance evaluations of his subordinates by April 1, 2003. She contended that she requested the evaluations from respondent in March, April, May, and June. Although there were other supervisors who missed the April 1, 2003 deadline, she testified that she received everyone's evaluations by June with the exception of respondent's unit, which she never received despite several requests that he complete them (Pet. Exs. 6, 25; Tr. 54, 56, 58, 122-24).
In July, after respondent had been transferred from the unit, Ms. Buddington had asked respondent's subordinates if they had ever received an evaluation and none of them had. In September 2003, she was surprised when Emmanuel Otoigiakhi submitted for her signature, a copy of a backdated 2002 evaluation with both Mr. Otoigiakhi's and respondent's signatures on it. Ms. Buddington had never seen the evaluation before (Tr. 124-126, 137).
Respondent testified that he prepared performance evaluations for the individuals he supervised every year, including the evaluation period from April 1, 2002 - March 31, 2003. He maintained that he prepared all of his performance evaluations before he was transferred out of the unit, using the previous evaluations he had saved on his computer, changing the dates and making the appropriate changes if the worker's performance changed (Tr. 313-17). Respondent's testimony was corroborated by two of his former subordinates, Kim Harper-Johnson and Mr. Otoigiakhi, who testified that respondent had given them their performance evaluations before he was transferred out of the unit (Tr. 277).
Respondent maintained that he completed the evaluations, but Ms. Buddington insisted that he change his evaluation ratings from "outstanding" to a lower assessment, which he refused to do. He told Ms. Buddington that he was not changing his evaluations and that if she disagreed with his assessments, she had the ability to change them through an addendum. Ms. Buddington did not accept them because he did not make the requested changes (Tr. 314-17).
In assessing a witnesses credibility, it is necessary to take into account several factors including bias, demeanor, consistency, and whether the testimony comports with common sense. Ms. Buddington was on the witness stand for approximately six hours. During that time, she never lost her composure or contradicted herself. On the whole, she was professional, consistent, and articulate. With respect to the performance evaluations, Ms. Buddington credibly testified that respondent never submitted performance evaluations for his unit for her signature.
In contrast, I found respondent's testimony to be a self-serving attempt to excuse his failure to complete the evaluations. I do not credit respondent's contention that Ms. Buddington refused to accept his performance evaluations because she felt his ratings were gratuitously inflated. Ms. Buddington credibly testified that she had never seen any of the evaluations until Mr. Otoigiakhi submitted his evaluation for her signature. Furthermore, the record contradicts respondent's testimony that he provided half of his employees with performance reviews before March 31, 2003. Of the four evaluations in the record, three of them are signed by respondent and the employee, and dated April 30, 2003 (Resp. Ex. AA; Tr. 314). It appears that respondent completed these evaluations by backdating them to April 30, 2003.
I find that respondent did not complete the evaluations for the employees in his unit by May 5, 2003, as directed by his supervisor.
Charge I, Specification 8, Charge VI, Specification 1 and Charge VII, Specification 1
Respondent was charged with failing to report to the unit clerk, that one of his subordinates had 17 open cases.
On May 27, 2003, respondent informed both Ms. Buddington and Ms. Kellam that 17 unaccounted for, incomplete cases had been found in Ms. Amobi's desk drawer. Respondent told Ms. Buddington that he believed that Ms. Amobi was hiding the cases (Pet. Exs. 1, 2; Tr. 15-17, 20, 70-71, 161).
Ms. Buddington reviewed Ms. Amobi's casework and did not see any written directives from respondent. Ms. Kellam and Ms. Buddington maintained that as Supervisor II, respondent was accountable for all the cases in his unit, and it was insufficient for him to issue verbal directives without written follow-ups since it is the Administration's procedure to issue directives in writing (Pet. Ex. 1; Tr. 15-17, 20, 77). Respondent's failure to document his directives, made it impossible to verify that he had even given Ms. Amobi verbal instructions (Tr. 161). Ms. Buddington expressed concern about respondent's lack of knowledge about the cases in his unit, making her question his ability to supervise (Pet. Ex. 10; Tr. 76-77).
Respondent testified that he met frequently with each of his workers, including Ms. Amobi. Respondent described these meetings with his subordinates as one-to-one discussions about each of their assigned cases. He testified that when he initially assigns a case, he meets with the case worker to discuss the issues involved and how they should be addressed. Respondent explained that he usually closes his unit's cases by asking the workers about the status of their cases, instead of issuing written directives (Tr. 15-17; 300-01).
Respondent testified that he assigned eight to fifteen cases per month to Ms. Amobi, the same amount of cases as every worker in the unit. He maintained that in the beginning he tried to help improve her performance by showing her the correct way to do the work. Respondent further testified that as soon as he discovered Ms. Amobi's work product was inadequate, he began documenting it in order to keep a record of her poor performance and to protect himself. He contended that prior to her filing the EEO complaint, she had been completing her work and closing out her cases. The 17 unaccounted cases were found in Ms. Amobi's desk after she filed her complaint. Respondent suspected that Ms. Amobi was trying to get him in trouble (Resp. Ex. J; Tr. 357-59).
Respondent testified that Ms. Amobi never told him that she had 17 pending cases that she needed guidance on. He stated that at the meeting with Ms. Buddington and Ms. Kellam, he had taken responsibility for being unaware of the 17 cases because he was the unit supervisor, but he said that he would not accept the blame if Ms. Amobi was deliberately hiding the cases. He contended that he was aware of all of the other cases in the unit, and the fact that the discovery of these cases was contemporaneous with Ms. Amobi filing an EEO complaint led him to believe that she was intentionally hiding them (Tr. 323-24).
Ms. Amobi testified that shortly before she brought EEO charges against respondent, Ms. Buddington questioned her about the 17 cases that respondent had found in her desk. She asserted that she routinely gave respondent cases to close out and frequently they would remain pending awaiting respondent's approval for up to three weeks. She maintained that respondent approved other people's cases while ignoring hers. Ms. Amobi acknowledged that she never reported this to Ms. Buddington because she did not think Ms. Buddington could do anything about it. Ms. Amobi testified that it is her practice to leave the cases she is presently working on in her desk drawer and place her finished cases on respondent's desk for respondent to sign and close out. She insisted that she was not hiding the 17 cases (Tr. 225-26, 241-44).
I found Ms. Amobi to be an incredible witness. Her testimony was exaggerated and self-serving. Her attempt to obfuscate her failure to complete her work by casting blame on respondent left the impression that she deliberately hid the files to cover-up her incompetence. Nevertheless, respondent, as Ms. Amobi's supervisor, should have been aware that the cases were incomplete and missing. As a supervisor, respondent is responsible for monitoring his subordinates and ensuring that their work is being completed. It is well established that in order to sanction an employee for misconduct there must be some showing of fault on the employee's part, either that he acted willfully or intentionally (Reisig v. Kirby, 62 Misc.2d 632, 635, 309 N.Y.S.2d 55, 58 (Sup. Ct.SuffolkCo. 1968), aff'd, 31 A.D.2d 1008, 299 N.Y.S.2d 398 (2d Dep't 1969)), or carelessly or negligently (McGinigle v. Town of Greenburgh, 48 N.Y.2d 949, 951, 425 N.Y.S.2d 61, 62 (1979)). Respondent was negligent in his supervision of Ms. Amobi. These 17 cases involve the welfare of children and should not have been overlooked or forgotten. Fortunately, nothing catastrophic resulted from the failure to follow-up on them in a timely manner. Accordingly, I find that respondent's failure to monitor Ms. Amobi's progress on these cases is misconduct.
Charge I, Specifications 7, 9, Charge II, Specification 2, Charge VI, Specification 1 and Charge VII, Specification 1
Respondent was charged with generally failing to give written directives to child protective specialists under his supervision and with specifically failing to document written directives to a subordinate for appropriate follow-up on the matter of Phyllis R.
Ms. Buddington and Ms. Kellam testified that respondent told them that he gave verbal, rather than written directives to his workers because he "didn't want to leave a paper trail." In addition, Ms. Amobi asserted that during the 13 months that respondent was her supervisor, he never actually supervised her, despite her requests for one-to-one supervision. She testified that when she approached respondent, he would ignore her and walk away. She did, however, admit receiving written directives from respondent in the form of supervisory notes. Ms. Amobi testified that after complaining to Ms. Buddington that she was not receiving the supervision that she needed, respondent became cold and distant, and "developed an attitude that he did not like me" (Tr. 20912).
Respondent maintained that he often met with employees to discuss issues on their cases as they arose. Respondent testified that he gave Ms. Amobi written directives to perform the necessary follow-up on cases, as he did with his other subordinates (Tr. 325).
Respondent denied telling Ms. Buddington that he did not want to create a paper trail. He explained that giving directives to workers and conducting case reviews automatically creates a "paper trail" when he enters his notes and directives into the computer system. Respondent explained that his management style is to give verbal instructions and not to document something just because a subordinate did something wrong. He believes that this type of documentation is done primarily to use as evidence in a disciplinary proceeding and does not really help the employee to become a more effective worker (Tr. 356-59).