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Dep't of Sanitation v. Hyatt

OATH Index No. 2009/06 (Dec. 8, 2006)

In an employee disciplinary proceeding, the agency established a violation of the prohibition on accepting trade waste by a sanitation worker. Termination is recommended.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF SANITATION

Petitioner

- against -

ROBERT HYATT

Respondent

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REPORT AND RECOMMENDATION

KARA J. MILLER, Administrative Law Judge

This employee disciplinary proceeding was referred for trial by petitioner, the Department of Sanitation, pursuant to section 16-106 of the Administrative Code of the City of New York. Respondent Robert Hyatt, a sanitation worker, is charged with violating the Department's prohibitions on accepting trade waste (ALJ Ex. 1).

Following a hearing before me, I find that the trade waste violation should be sustained and recommend that respondent be terminated.

ANALYSIS

Respondent was charged with accepting trade waste. After reviewing the record and the evidence presented at trial, I find the following facts to be true. On July 12, 2005, respondent and his partner for the day, Daniel Conway, were collecting trash on 76th Road in Queens, New York (Tr. 11; Pet. Ex. 1A). Coincidentally, at about 11:20 a.m. that same day, Vitaly Zubry, an investigator for the Department of Buildings, was questioning construction workers at 153-02 76th Road, as to the nature of their work (Tr. 20). During his investigation, Mr. Zubry attempted to speak to several Asian construction workers, who were having difficulty communicating in English. He observed scaffolding in front of the residence, work permits in the window and construction materials and debris in the yard (Tr. 23).

While Mr. Zubry was questioning one of the construction workers, the worker ran away from him towards his van, where he retrieved two bottles of water. The worker then proceeded to approach the driver’s side of respondent’s sanitation truck and gave the bottles of water to the driver, Daniel Conway. Mr. Zubry was puzzled by the construction worker’s actions until he observed some of the other workers removing construction debris from the work site and dumping it into the hopper of the sanitation truck. Respondent, who had been emptying trash cans into the hopper, was standing by the back of the truck and was unaware of the interaction between one of the construction workers and Mr. Conway (Tr. 24-25). Mr. Zubry wanted to photograph the sanitation workers accepting trade waste, so he got back into his car with his supervisor and drove around the block. As Mr. Zubry approached the sanitation truck from behind, he took several pictures of respondent standing at the back of the sanitation truck watching two different construction workers dump construction debris into the truck (Pet. Ex. 3A, 3B, 3C, 3D; Tr. 27).

Respondent testified that he did not actually observe anyone dump debris into the truck. Instead respondent asserted that he noticed construction debris in the hopper and saw a construction worker standing next to the truck. He maintained that he asked the construction worker what he was doing and received no clear response (Tr. 62-63).

Respondent further testified that he returned to the cab of the truck and told Mr. Conway that he thought a construction worker threw construction debris into the truck. Mr. Conway told him not to worry about it (Tr. 62). This was the first time that respondent, who has worked for the Department for five years, was assigned to this particular route or worked with Mr. Conway, who had been collecting on this same route for approximately twenty years (Tr. 60-61). Respondent maintained that he relied on Mr. Conway’s judgment, given his familiarity with the route and length of tenure with the Department (Tr. 64). Respondent acknowledged that he did not call his supervisor to inform him about the situation nor did he make a notation on the 350 card (Pet. Ex. 1; Tr. 14-15, 63-64).

The resolution of a trade waste charge depends upon whether the quantum of the evidence sufficiently meets petitioner's burden of establishing that it was more likely than not that respondent picked up commercial waste. Bazemore v. Friday, 478 U.S. 385, 400-01 (1986). In the present case, the Department has established that commercial construction was being done at 153-02 76th Road and that respondent allowed two construction workers to dump trade waste into the truck (Pet. Exs. 2H, 2J, 3A-D). Moreover, respondent did not seek guidance from his supervisor on this matter nor did he report that commercial waste had been dumped in to the truck (Pet. Ex. 1A; Tr. 10, 14-15, 64).

The Department’s Code of Conduct requires employees to be familiar with the Department’s order on trade waste. In addition, rules 5.3 and 6.2 of the Code of Conduct prohibit employees from permitting unauthorized use of Department vehicles and permitting the disposal of trade waste material in Department vehicles. Respondent’s claims of passivity and ignorance are incredible. Mr. Zubry reliably testified that he heard respondent utter, “let’s hurry up with that,” as one of the construction workers dumped the contents of a wheel barrel into the truck (Tr. 25). Moreover, Mr. Zubry’s testimony that at least two different workers dumped construction debris into the back of the truck, is corroborated by the photographs that he took at the time of the incident (Tr. 25, 27, 28). The photographs, demonstrate that respondent stood a few feet away from two different construction workers at the back of the truck. One of the photographs shows respondent looking at a man with a white top and dark pants standing in front of the hopper of the truck (Pet. Ex. 3D), while another photograph shows respondent looking at a man with a dark top and light pants in the same location (Pet. Ex. 3C).

In response to a direct inquiry from me, respondent testified that he had observed only one construction worker by the back of the truck and at no time did he see any other construction workers approach the truck (Tr. 65). Respondent’s testimony is directly contradicted by Mr. Zubry’s credible testimony and the Department’s photographic evidence. It appears that in an attempt to deny his participation in collecting trade waste, respondent was less than truthful. The fact that respondent encountered more than one construction worker next to the truck supports the conclusion that he permitted and acquiesced in the dumping. At the very least, respondent tacitly permitted the dumping of trade waste in the sanitation truck by passively observing the construction workers and not reporting the situation to his supervisor.

I find that respondent permitted the unauthorized use of a Department vehicle by the construction workers and permitted the disposal of trade waste material in a Department vehicle in violation of the Department’s trade waste rules.

FINDINGS AND CONCLUSIONS

On July 12, 2006, respondent allowed construction debris to be deposited in his truck in violation of the Department’s prohibition against accepting trade waste.

RECOMMENDATION

Upon making these findings, I requested and reviewed a copy of respondent’s disciplinary record. It indicates that respondent has worked for the Department for five years and has never been disciplined.

The Department considers trade waste violations to be a very serious form of misconduct. General Order 2001-19, the trade waste directive, puts employees on notice that anyone who knowingly violates the trade waste prohibitions will be subject to a disciplinary penalty, including termination of employment. Department General Order 2001-19 (Dec. 24, 2001). The Department’s trade waste regulation is an integral component of the Department’s plans for meeting its goals and objectives. The Department’s mission is to collect residential refuse. In order to accomplish this objective, the Department must manage the waste stream and prevent the misuse of City equipment and resources. In addition, the Department has an intrinsic interest in eliminating the potential for corruption which may occur as a result of accepting trade waste. Consequently, the Department requested termination if respondent was found guilty. With few exceptions, the sanction for such conduct has been termination, even in instances where the sanitation worker has a lengthy tenure and an unblemished disciplinary history. See Dep’t of Sanitation v. Lowe, OATH Index No. 1499/06 (Sept. 22, 2006); Dep’t of Sanitation v. Mallon, OATH Index Nos. 1209-10/98 (May 6, 1998), aff’d, 269 A.D.2d 282, 703 N.Y.S.2d 137 (1st Dep’t 2000). Where an agency has sound justifiable reasons for imposing stern disciplinary sanctions on employees who violate important and longstanding policies governing its mission and integrity, the mitigating factors must be compelling in order to justify a lesser penalty. Dep’t of Sanitation v. Joyce, OATH Index Nos. 888-89/00, at 23 (Aug. 16, 2000), aff’d, NYC Civ. Serv. Comm’n Item No. CD00-75-SA (Oct. 22, 2001).

In the present case, there was no evidence that respondent accepted a gratuity and he has an unblemished record during his relatively short tenure with the Department. While these are mitagatory factors, they are not compelling. Moreover, I cannot overlook respondent’s misrepresentation at trial of what actually occurred. In addition, to permitting construction workers to dump trade waste into the sanitation truck, respondent was untruthful about it. Falsely testifying while under oath is an aggravating factor in determining a penalty. See Dep’t of Sanitation v. Cerulli, OATH Index No. 2272/01 (Jan. 28, 2002). Had respondent plead his case in a forthright manner, he may have redeemed himself to the extent of mitigating the penalty. He did not do so and therefore, I recommend that respondent be terminated.

Kara J. Miller

Administrative Law Judge

December 8, 2006

SUBMITTED TO:

JOHN J. DOHERTY

Commissioner

APPEARANCES:

CARLTON LAING, ESQ.

Attorney for Petitioner

STEVEN B. KIRSHNER, ESQ.

Attorneys for Respondent