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Dep’t of Sanitation v. Susino

OATH Index No. 1526/05 (June 8, 2005)

Sanitation worker charged with being out of sick residence at a second job. ALJ sustains charges and recommends penalty of 24 days.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF SANITATION

Petitioner

- against -

JOHN SUSINO

Respondent

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REPORT AND RECOMMENDATION

JOHN B. SPOONER, Administrative Law Judge

This disciplinary proceeding was referred to me pursuant to section 16-106 of the Administrative Code by petitioner, the Department of Sanitation. Respondent John Susino, a sanitation worker, is charged with being away from his residence while on sick leave on three days in December 2003.

A hearing on the charges was conducted before me on May 10, 2005. Petitioner called a Department of Education investigator who, in investigating a complaint from a school custodian, discovered that respondent was working as a custodian assistant on three dates when he had reported sick at the Department of Sanitation due to a line-of-duty injury. Respondent admitted working at a Brooklyn school on the three days in question, but insisted that his employment at the school was known to his supervisors and that he reported at the school only after seeking to take sick leave, being denied leave, and being threatened with being fired from the school job if he did not appear.

For the reasons provided below, I find that the charges should be sustained and recommend that respondent be suspended for 24 days.


ANALYSIS

The out-of-residence charges against respondent, who is currently a sanitation worker at the Bronx 2 garage, relate in part to respondent's part-time employment as a custodial employee at a City school. Prior to becoming a sanitation worker, he worked as a custodian cleaner at Public School 77 in Brooklyn for five years. After joining the Department in 2000, respondent continued to work for the school part time, with the full knowledge of both his supervisors at the Department and the custodians at the school. It was undisputed that Department of Sanitation rules permit employees to work a second job, so long as there is no conflict with their Department duties.

Respondent testified that, at around 8:30 a.m. on December 2, 2003, he was involved in an on-duty collision with another vehicle and was taken from the scene in an ambulance. According to the hospital records (Resp. Ex. D), respondent complained to emergency room workers of pain in his neck and was treated for neck injuries. After being examined, he returned to the garage and was sent home, driving back to his residence on Staten Island. Although he was scheduled to report to his school job that day, respondent had Superintendent Robert Mancuso from his district telephone the custodian at the school and relate the details of the accident and respondent's inability to come to work. Respondent stated that he had the superintendent place this call due to strained relations with the custodian, who was challenging respondent about his attendance and other matters (Tr. 73-75).

The following day, December 3, respondent reported to the Department clinic, complaining again of neck pain. He was continued on sick leave and told to return to the clinic on December 8, as reflected in the clinic records (Resp. Ex. B). According to respondent, he then telephoned the school and stated that he was still sick and could not come in. The school custodian told respondent that he would have to report for work or he would be fired. Fearing that he might lose the income from his school job, which he felt was necessary in order to meet his family obligations, respondent reported to the school at around 7:45 p.m. that day. By reporting for work at the school, respondent admitted that he was aware he was violating the Department rule prohibiting workers on sick leave from leaving their sick residence. Respondent insisted that, although he did appear at the school, he felt unable to perform any work and, in fact, did no work that night (Tr. 76-80).

The following day, December 4, respondent again telephoned the custodian and tried to report sick. Again the custodian threatened him with termination if he failed to report for work and again respondent went to the school around 4:45 p.m., hiding to avoid work until his six-hour shift was over (Tr. 80).

On December 5, it was snowing. Pursuant to the school rules, custodian assistants were required to report for work on a snow day or could be subject to immediate termination. When respondent telephoned the custodian to report sick on this day, the custodian reminded him of the snow day policy and again threatened to terminate him. Respondent reported for work around 12:15 p.m. (Tr. 81). At around 1:50 p.m., respondent was told to see the custodian, Mr. Manca. Mr. Manca told respondent that a teacher named Mr. Berman had been observed punching out on respondent's time card and that respondent would be immediately terminated. Respondent therefore left the school (Tr. 82).

Mr. Manca reported the incident involving respondent and the teacher to the Office of the Special Investigator, who assigned the investigation to Investigator Dennis Boyles. On February 2, 2003, Mr. Boyles interviewed Mr. Berman, who stated that he was never asked by respondent to punch the time card and only did so as a prank (Tr. 13; Pet. Ex. 5). On February 12, 2003, Mr. Boyles interviewed respondent concerning the time card incident of December 5. Respondent denied having any knowledge that Mr. Berman had punched his time card (Tr. 15). Mr. Boyles wrote in a memo (Pet. Ex. 5) summarizing this interview that respondent allegedly stated that, at the time that Mr. Berman punched his time card, he was "shoveling snow."

Respondent testified that, at the time of the incident, he was under unusual pressure, both financial and emotional, due to the illness of his mother and his family situation. His mother was diagnosed with terminal cancer in 2001 and respondent and his sister were her primary care givers up until her death in May 2004 (Tr. 88). Respondent was divorced in 2001 and paid some $520 per month in child support to his ex-wife. He remarried in late 2001 and had another child with his new wife (Tr. 71-72). Respondent later consulted his union and filed a grievance, which resulted in the custodian rehiring him and awarding him back pay for the time since his termination (Boyles: Tr. 30).

Respondent's admission of being at the Brooklyn school on three days for which he had taken Department sick leave was sufficient to sustain the allegation that respondent left his sick residence, in violation of the requirement that workers on sick leave remain in their residence unless given permission to leave. See Department Code of Conduct 7.5.

Petitioner also asserts that respondent's reporting for work at the Brooklyn school violated the rule forbidding employees from falsely claiming or exaggerating injuries. See Department Code of Conduct 7.2. The central allegation here is that respondent deceived the Department concerning his injuries and obtained sick leave to which he was not entitled.

The sole evidence relied upon by petitioner to prove that respondent was able to work his Department assignment on the three days in question and therefore misrepresented his need for sick leave is the undisputed fact that he reported for work at the Brooklyn school on all three days. Assessment of this issue requires evaluating the credibility of respondent's testimony that, on December 3, 4, and 5, he went to the school, but did no work and "hid out" until his six-hour shift was over. Of course, this uncorroborated contention must be considered in light of respondent's significant motive to avoid being disciplined for not being truly sick. Nonetheless, by his demeanor both on direct and cross-examination, respondent seemed to be candid and even somewhat embarrassed at having to admit that he avoided work at the school. The hostile work relationship with the custodian who employed him was significantly corroborated by Superintendent Mancuso, who confirmed that he called the school at respondent's request in order to report respondent's accident and his need for sick leave.

Petitioner also challenged respondent's credibility by emphasizing his allegedly inconsistent statement in his interview with Investigator Boyles that he was shoveling snow at the time of the time card incident. In his investigative memo (Pet. Ex. 5), Investigator Boyles wrote that when confronted with information that Mr. Berman had punched his time card, respondent stated that "he was shoveling snow outside of PS 77K." Certainly, a statement by respondent that he shoveled snow on December 5 is inconsistent with his contention that he did no physical work assignment on any of the three December dates that he reported for work at the school.

There are problems with the reliability of the hearsay proof of respondent's interview remarks. At the hearing, Investigator Boyle apparently had no recollection of respondent's statement. Thus, the only evidence of respondent's remark is the memo, which was apparently written over a month after Investigator Boyle conducted the interview with respondent. Furthermore, Investigator Boyle seemed to attach little significance at the time to precisely what respondent said about performing work, being far more interested in finding out whether respondent was aware that the teacher had punched his time card. While I found Investigator Boyles to be truthful, there were portions of his report and his testimony that were unreliable and inaccurate. In the report, and in his cross-examination, he repeatedly became confused about an accusation that respondent may have worked overtime for the Department on December 5, 2002, with the time card incident on December 5, 2003.

All of these factors suggested that, while the investigator was truthful in relating that respondent made some remark about shoveling snow, it is difficult to determine with any degree of precision exactly what the remark was. Thus, it seemed conceivable that respondent could have stated that he was outside with the other custodians who were shoveling snow. I also found it likely that respondent would have been extremely reluctant to admit during his interview with Investigator Boyles that, on December 5, 2003, he reported to the school but avoided doing any work, since such an admission could easily have resulted in disciplinary measures by the custodian. He might very well have recounted doing some task in order to emphasize that he remained at the school even after Mr. Berman had supposedly punched out his time card, in order to show that the punch out was without his knowledge. Thus, even assuming that respondent told Investigator Boyles that he was "shoveling snow," the statement seems equivocal in establishing that he was actually doing so.

Other than the "shoveling snow" remark, there was no other evidence of deception by the respondent in this case. The vehicle collision on December 2 involving respondent's truck and another truck was documented, as was respondent's immediate complaint of neck pain and treatment at a hospital as a result of his vehicle stopping suddenly upon impact with another. It was plausible that the driver of a truck involved in a collision would experience neck pain due to an impact. During the following weeks, there is no indication that respondent reported any other symptoms or any increase in the initial pain he felt, statements which might be indicative of malingering. Indeed, the doctors' notes (Resp. Ex. D) and clinic notes (Resp. Ex. C) support the conclusion that the primary reason for placing respondent on line-of-duty injury appears to have been due to a diagnosis of a "neck sprain" (see Resp. Ex. A) and concern that there might be a more serious spinal injury.

The medical documentation is consistent with this conclusion, and offers corroboration that the neck injury was real and not fabricated. In an examination conducted on December 30, 2003, nearly four weeks after the accident, Dr. Stephen Andrus, an orthopedist, noted that he identified a "muscle spasm" in the cervical muscles where respondent was complaining of pain. He further noted that respondent reported "tightness and pain" on the left side of his neck, but denied any radiating arm pain, any numbness or tingling, or any weakness (see Resp. Ex. D4). Respondent's denial of pain under these circumstances strongly suggests to me that he was not prone to exaggerate his symptoms in order to extend his sick leave, as argued by petitioner.

Petitioner's theory that respondent deliberately lied about having neck pain in order to obtain Departmental sick leave so that he could work at his second job makes little sense, in that there seems to have been no motive for him to do so. Respondent's taking sick leave from the Department provided no benefit, either in hours or in wages, with regard to the second job. As his school time records (Pet. Ex. 4) indicate, he was regularly working at the school from around 4:00 p.m. to 10:00 p.m., after his shift at the garage was over. He had taken paid sick leave from the school on the previous Wednesday and, after the telephone call from Superintendent Mancuso, was also permitted to take sick leave for December 2, the day of the accident. Thus, his school employment offered no financial incentive for respondent to take unwarranted sick leave from the Department, since he would work the same hours and receive the same second salary without it. Nor does respondent's sick leave history with the Department suggest that he was in the habit of using excessive sick leave.

In sum, I concluded that there was insufficient proof here to support a finding that respondent lied about his neck injury or that he was otherwise not entitled to the sick leave he was given. The violation of being out of residence is sustained, but the separate violation of falsely procuring sick leave must be dismissed.