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Dep’t of Environmental Protection v. Danko

OATH Index No. 1060/08 (Apr. 11, 2008)

Machinist charged with threatening to “go postal” and to act like “the Virginia Tech shooter,” with failing to notify the agency of his arrest, with failing to appear at an OATH conference, and with being AWOL for ten days. Administrative law judge found undisputed evidence proved the threats, the failure to provide notice regarding an arrest, and the failure to appear at a conference. Proof also found sufficient to sustain eight of the absences due to the insufficiency of the employee’s initial telephone notification to cover all ten days of being out. Penalty of 55 days recommended.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF ENVIRONMENTAL PROTECTION

Petitioner

- against –

PAUL DANKO

Respondent

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REPORT AND RECOMMENDATION

JOHN B. SPOONER, Administrative Law Judge

This disciplinary proceeding was referred to me in accordance with section 75 of the Civil Service Law. Petitioner, the Department of Environmental Protection, filed charges against respondent Paul Danko, a machinist. The five charges alleged that respondent threatened to “go postal,” to act like “the Virginia Tech shooter,” failed to notify the agency of his arrest, failed to appear at an OATH conference, and was AWOL for ten days.

A hearing on the charges was scheduled to be conducted before me on February 13, 2008. On that date, petitioner appeared with five witnesses and respondent’s attorney also appeared. Respondent’s attorney sought an adjournment because respondent was allegedly unable to travel to the hearing from his home in Hopewell Junction, New York, due to the weather. Petitioner opposed the adjournment. Due to the fact that the case had been adjourned twice before, that two of the witnesses and also respondent’s attorney had been able to travel to the hearing from locations near respondent’s residence, and that respondent had been expressly warned by the judge at the previous conference that the hearing would go forward in his absence if he failed to appear as directed, the adjournment was denied and petitioner was permitted to call its five witnesses. However, the case was continued until February 28 to permit respondent a further opportunity to testify if he chose to. An expedited transcript of the February 13 proceeding was provided to respondent’s attorney on February 25, 2008, to assist him in preparing for the continued trial date. Respondent’s attorney was also given the opportunity to recall any of petitioner’s witnesses for further testimony if a need for further examination questions was demonstrated. At the February 28 hearing, respondent appeared with his attorney and testified. Respondent’s attorney did not request any further testimony.

For the reasons provided below, I find that the evidence was sufficient to sustain all but two of the charges and recommend that respondent be suspended for 55 days.

ANALYSIS

Respondent has worked at the Department for 15 years, beginning as a maintainer and later becoming a machinist. During that time, he has been assigned to various locations in upstate New York. During the months prior to July 2007, it was undisputed that respondent was complaining to management about his current work assignment and was seeking an assignment closer to his residence in Hopewell Junction, New York. The two charges arise out of remarks made during this period. As a result of a complaint made by the Department to the local police, respondent was arrested on July 12, 2007, and suspended for 30 days. When he returned to work, it was to a different location and supervisor. Charges III, IV, and V allege time-and-leave violations during this later period.

Threats and Failure to Notify Employer of Arrest

Charge I alleges that respondent made remarks in March, May, and July 2007 to supervisors and co-workers which constituted threats of violence. In a related charge, charge II alleges that respondent failed to notify the Department of his arrest on July 12, 2007, on criminal charges arising out of remarks made to a supervisor.

The first specification concerned remarks made by respondent in March 2007 as he repeatedly asked management to assign him to a location near his home. Deputy Commissioner Paul Rush recalled that, on March 2, 2007, respondent left a message on Mr. Rush’s cell phone regarding questions about a reassignment. Mr. Rush called respondent back and spoke to him at some length. During the call, respondent immediately began complaining about the adverse effects of the assignment change and the low morale in the agency generally. He then stated that he “could understand if someone could go postal around here” (Tr. 19). Mr. Rush assumed that the phrase “go postal” referred to the publicized instances where disgruntled postal employees had used firearms to shoot co-workers. Respondent continued the conversation, saying that he would not cause any trouble if he were to be assigned to a location near his home. Mr. Rush received several more messages from respondent indicating that all of the problems would go away if Mr. Rush would just assign respondent to his preferred location. Mr. Rush later received a letter from one of the machinists at the Croton Falls shop expressing concerns about working with respondent (Tr. 19-20).

The second specification concerned a hearsay account of remarks allegedly made by respondent to a co-worker. Acting Regional Manager James Keesler testified that he became aware in May 2007 that several of respondent’s co-workers were complaining about respondent’s behavior and requesting that he be transferred to a different location (Tr. 32). Machinist Vincent Francia spoke with Mr. Keesler on May 24, 2007, about an earlier conversation with respondent. According to Mr. Keesler, Mr. Francia told him that respondent saw Mr. Francia’s signature on an employee petition complaining about respondent and said “nice signature.” Respondent then said to Mr. Francia, “I’m not here to make friends,” and “Everyone better watch their backs, especially management” (Tr. 33). Mr. Keesler recommended that Mr. Francia put his complaint into writing, which he did (Pet. Ex. 2). According to counsel for petitioner, Mr. Francia later refused to testify about the remarks by respondent, asserting that he did not remember them (Tr. 36).

Specifications 3, 4, and 5 of charge I concerned remarks allegedly made by respondent as his complaints about unfair treatment became more heated. Assistant Commissioner Gerould McCoy stated that he had picked up several messages left by respondent on an employee complaint hotline. On July 9, 2007, when Mr. McCoy spoke with respondent, respondent mentioned a letter he had written complaining about being transferred. Respondent remarked that, “if someone had seen that letter, then perhaps they would have understood what happened at Virginia Tech” (Tr. 46).

Daniel Baumgardner, supervisor of watershed maintenance, stated that, on July 10, 2007, he was supervising respondent. At the time, respondent was using large amounts of leave and complaining about his assigned work location. Respondent discussed with Mr. Baumgardner management’s refusal to transfer him to his old work location, stating, “[M]anagement is screwing with me and my job now is to screw them back” (Tr. 57). Mr. Baumgardner later quoted respondent’s remarks in an e-mail to his superiors dated July 10, 2007 (Pet. Ex. 4).

The following day, Mr. Baumgardner had another conversation with respondent when respondent arrived at work around 7:45 a.m. Respondent told Mr. Baumgardner that Fox 5 News had contacted him about an interview concerning his allegations of retaliation. He continued, “You know I have a doctor’s note saying I’m under a lot of stress because of the transfer here. Management knows that all they have to do is transfer me back to Croton Falls and all this stress will go away.” He then stated, “You know the guy who shot all those people at Virginia Tech was under a lot of stress and all it would have taken was a doctor to help him out! Well, I have a doctor’s note for my stress and management isn’t doing nothing to help me out! I don’t know what I’m gonna do, I really don’t! If I came in here with an Uzi and laid people out it’s because of management.” In a less excited tone, respondent said, “I [am] not saying I’m going to come in here and shoot anybody but you just never know.” With this remark, respondent “ran out of the office” (Tr. 59-60).

Even though Mr. Baumgardner testified that respondent’s third menacing remark did not make him concerned for his safety or feel endangered (Tr. 65), he was extremely troubled by respondent’s remark and, that evening, commemorated respondent’s statements in a letter (Resp. Ex. 5) which he addressed to Director of Waste Water Divisions Mike Keating and personally delivered to a mailbox the following day because he was not able to come in. Mr. Baumgardner also telephoned the facility and asked them to retrieve the letter from the mailbox and ensure that it was delivered promptly to Mr. Keating (Tr. 61-62).

After someone from the Department contacted the Port Jervis police department, respondent was arrested on July 12, 2007, and charged with attempted coercion in the first degree under Penal Law section 135.65 (1). The written criminal complaint (Pet. Ex. 13), based upon the sworn statement of a local police officer, indicated that it was founded upon the remarks recounted by Mr. Baumgardner in his July 11 letter. It was undisputed that respondent did not notify the Department of his arrest on July 12, despite his obligation to do so within three days, under a memorandum (Pet. Ex. 11) distributed to respondent and the other Department staff in 2005. The criminal charges were still pending at the time of the hearing.

For his part, respondent chose not to testify about the alleged threats due to the pending criminal case.

None of the comments made by respondent to his supervisors are alleged to be expressly insubordinate, in that the form of the remarks was not discourteous or profane. Rather, petitioner contends that all five remarks are misconduct because they contain veiled threats of violence intended to coerce the supervisors into acceding to his demands about changing his work location. Respondent’s May 2007 remark, observing that supervisors better “watch their backs,” was ambiguous in two ways. Such an oblique remark about watching their backs, made to a co-worker regarding others not present, seemed at least as likely to be a complaint as a threat. See Health and Hospitals Corp. (Woodhull Medical and Mental Health Center) v. Alexis, OATH Index No. 1373/03 (July 11, 2003) (employee’s statement, “That’s why some people come back and hurt people,” which was not addressed to her supervisor, not found to constitute a threat). In addition, the proof of the statement was double hearsay, with Mr. Keesler testifying to what Mr. Francia told him about a remark made by respondent. Consequently, it is difficult to make findings on either the exact remark made or the context in which it was uttered. I therefore found that this remark was not proven to constitute misconduct.

For similar reasons, I also find that the July 10 remark to Mr. Baumgardner about “screwing” management back was not misconduct. Nothing in the remark referred to physically harming anyone. Respondent clearly made the remark in anger while discussing the on-going dispute he was having about his job assignment and other matters he regarded as unfair treatment. In this context, the remark could be interpreted as a statement of respondent’s resolve to generally pursue his rights in whatever forums were available.

As to the other three remarks, however, the proof suggests that they were deliberate threats of violence, calculated to force management into granting respondent’s request to be relocated. As to the March remark alluding to “going postal,” the general import of the comment to Mr. Rush was to point up the low morale at the agency. However, the context in which the remark was made demonstrates that it was also intended as an implicit threat. The remark was made in the midst of a dispute about respondent’s work assignment, and respondent immediately followed the remark with assurances as to how the supervisor could make the problem disappear by reassigning him to the closer work location. It is true that there was very little proof to establish that respondent truly intended to harm any of his supervisors. However, under these circumstances, I find that the “going postal” remark was intended to incite fear in Mr. Rush that respondent might harm his fellow workers if his demands were not met. Regardless of whether respondent actually intended to “go postal,” his announcement of the possibility of doing so, in the context of pressing Mr. Rush for a transfer, was a threat and improper. See Health and Hospitals Corp. (Woodhull Medical and Mental Health Center) v. Alexis, OATH Index No. 1373/03 (July 11, 2003) (employee’s remark to supervisor that "you're going down with me” and will “not be around here too very long" found to be a threat and to constitute misconduct); Dep’t of Sanitation v. Kingwood, NYC Civ. Serv. Comm’n Item No. CD 91-115 (Sept. 16, 1991) (employee’s remark to supervisor that “you better stay away from me from now on or you will get yours” held to be a threat and misconduct).

I also find that respondent’s remarks made on July 9 and 11, concerning Virginia Tech and laying co-workers out with an Uzi, were also proven to be deliberate threats, intended to induce management to accede to his complaints. Both remarks were evidently made by respondent while he was angry and suggested the possibility that respondent himself might resort to shooting his co-workers if his employment demands were not met. It is no wonder that Mr. Baumgardner was haunted by the last statement to the point he felt compelled to relay it his own supervisor later that evening. Even though Mr. Baumgardner did not perceive respondent as posing an immediate physical threat, respondent’s suggestion that he would be justified in shooting his co-workers due to unfair treatment by management was a calculated attempt to obtain a transfer and unquestionably a violation of Department rules on decorum.