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Dep't of Sanitation v. Frazier

OATH Index Nos. 1523/05 and 1524/05 (Sept. 16, 2005), aff’d, NYC Civ. Serv. Comm’n Item No.CD06-27-SA (Feb. 17, 2006) (Quinones, 1523/05)

Petitioner proved that sanitation worker failed to pick up spillage promptly. Five-day suspension recommended. Petitioner failed to prove that driver of the sanitation truck engaged in misconduct. Charges against him should be dismissed.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF SANITATION

Petitioner

- against -

FRED FRAZIER AND FELIX QUINONES

Respondents

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REPORT AND RECOMMENDATION

KEVIN F. CASEY, Administrative Law Judge

The Department of Sanitation (the Department) brought this employee disciplinary proceeding pursuant to section 16-106 of the New York City Administrative Code. Respondents Fred Frazier and Felix Quinones, sanitation workers, are charged with failing to obey Department rules and regulations, failure to perform work promptly and properly, and loitering while on duty. At the hearing, held on July 28, 2005, the Department relied upon the testimony of three witnesses. The respondents testified on their own behalf.

For the reasons stated below, I find that the Department proved the charges against Mr. Quinones, but failed to prove the charges against Mr. Frazier. I recommend that Mr. Quinones receive a five-day suspension and that the charges against Mr. Frazier be dismissed.


ANALYSIS

On February 14, 2004, respondents were responsible for collecting refuse in a section of Crown Heights, Brooklyn. It was a busy day, because the preceding Thursday, February 12, was a holiday when no garbage was collected.

At 11:05 a.m., supervisor Victor Hunt saw respondents working on the right side of Kingston Avenue near St. Johns Place (Hunt: Tr. 9, 77). According to Mr. Hunt, respondents had not serviced the left side of Kingston before they returned to the garage for their lunch break (Tr. 77). During the lunch break, superintendent George McLean assigned supervisor Rashid Smith to assist Mr. Hunt (Hunt: Tr. 66; McLean: Tr. 165).

At about 12:20 or 12:30 p.m., Mr. Smith spotted the respondents on Kingston and Eastern Parkway (Smith: Tr. 129). Mr. Smith, in a Department vehicle, was a car length away from the truck driven by Mr. Frazier (Tr. 115). According to Mr. Smith, he saw Mr. Quinones empty a basket on the right side of the street and another on the left side. But Mr. Smith claimed that the baskets were already empty and that the block had been serviced before the lunch break (Tr. 84).

As Mr. Smith watched, Mr. Frazier drove the truck to the left side of Kingston. Mr. Quinones picked up a box that was on the sidewalk, against a wall near a commercial bank (Smith: Tr. 87). Mr. Quinones brought the box to the back of the sanitation truck (Tr. 87). The box’s bottom fell out and the contents spilled onto the street. According to Mr. Smith, Mr. Quinones turned to him and said, “Supervisor, supervisor, what should I do?” (Tr. 87, 131). Mr. Smith replied, “Well, you shouldn’t be here anyway, but you have to clean it up” (Tr. 90).

Mr. Quinones started to pick up the spillage and Mr. Frazier got out of the truck to help (Tr. 90, 94). According to Mr. Smith, Mr. Quinones was “doing more talking, helping him, but not really making an effort to pick it up” (Tr. 94). In contrast, Mr. Frazier was not causing any problems, “He was doing his job” (Tr. 134).

Mr. Smith returned to his car and notified Mr. Hunt and Mr. McLean (Smith: Tr. 135). They arrived within a few minutes (Hunt: Tr. 18; McLean: Tr. 151). Mr. Hunt recalled that the respondents were “slow and deliberate” as they swept banking papers that had fallen out of a 3’ x 5’ box (Hunt: Tr. 17, 80).

According to Mr. McLean, Mr. Quinones picked up a few pieces of banking paper while walking “really slow and nonchalant and taking his sweet ass time” (McLean: Tr. 151, 183). Mr. McLean did not recall that Mr. Frazier got out of the truck (Tr. 151, 174-175). After speaking with Mr. Smith, Mr. McLean watched the respondents for “a few minutes” (Tr. 175).

Mr. Smith claimed that Mr. Quinones was putting on “a show” for pedestrians and complaining to them about “so many supervisors” (Smith: Tr. 93, 139). Neither Mr. Hunt nor Mr. McLean testified about such comments. Mr. Smith also recalled that the box of papers had been next to a dumpster, but Mr. Hunt and Mr. McLean had no recollection of a dumpster (Smith: Tr. 130-131; McLean: Tr. 178; Hunt: Supplemental Affidavit).

Although the respondents had not finished their route and had several more hours to work, Mr. McLean deemed them unproductive (McLean: Tr. 140, 153). Thus, at 12:36 p.m., as Mr. Quinones walked very slowly up the block towards the next stop, Mr. McLean ordered the respondents to take the truck to the dump (Pet. Ex. 1; Hunt: Tr. 24, 29; Smith 140, 142; McLean: Tr. 196).

Mr. Quinones, a sanitation worker for 18 years, testified that, as a shop steward, he occasionally filed complaints against supervisors. A week before this incident, Mr. Smith wrote Mr. Quinones up on unrelated charges (Quinones: Tr. 136, 164-165).

As for this incident, both respondents testified that, after lunch, Mr. Smith followed them the entire way from the garage back to Kingston and Eastern Parkway, where they needed to service the left side of Kingston (Quinones: Tr. 244; Frazier: Tr. 268). When Mr. Quinones stepped off the truck on Kingston, there was a half-full basket on the right side of the street (Quinones: Tr. 222). Although they had already serviced that side, Mr. Quinones was concerned that Mr. Smith was watching (Tr. 222). To avoid a problem, he emptied that basket on the right side before crossing the street to empty a basket on the left side. He then approached a box that had been dropped off near the curb (Tr. 223-224). Mr. Quinones recalled that the box contained ordinary litter rather than bank papers (Tr. 228). After the bottom fell out, he began to clean the mess with a hand broom. Mr. Smith told him to use a push broom (Tr. 226-227).

When the superintendent arrived and asked what was going on, Mr. Quinones told him that they were cleaning up spillage from garbage that had been dropped off (Tr. 230). Mr. McLean directed him to go to the next stop and Mr. Quinones asked whether he was being told to leave garbage in the street (Tr. 230). In reply, Mr. McLean told Mr. Quinones to work quickly (Tr. 230). Upon removing the spillage, the respondents proceeded to the next stop. Mr. Quinones estimated that it took three or four minutes to pick up the spillage (Tr. 230).

Mr. Frazier has 32 years experience as a sanitation worker (Frazier: Tr. 250). He recalled that the box was in the middle of the sidewalk near the corner (Tr. 255). After the contents spilled, Mr. Frazier assisted his partner by using a push broom (Tr. 257). When Mr. McLean arrived at the scene, they were nearly finished cleaning up the spillage (Tr. 270). Mr. McLean asked the respondents what they were doing and Mr. Frazier told him that they were finishing the route (Tr. 259). Mr. Frazier told Mr. McLean that the left side of the street had not yet been serviced (Tr. 259).

Under Department Rule 3.6, employees are required to perform all assigned duties “promptly and properly.” Similarly, Rule 3.19 mandates that employees “shall not loiter” while on duty. These rules are violated, for example, when a sanitation worker walks lethargically from one basket to another. See Dep’t v. Ambrosino, OATH Index No. 208/01 (May 30, 2001), aff’d in part, rev’d in part and modified on penalty, NYC Civ. Serv. Comm’n Item No. CD-02-28-M (Apr. 10, 2002).

Here, petitioner showed that Mr. Quinones failed to carry out his responsibilities in a timely fashion. After the mishap with the box, Mr. Quinones, apparently upset with Mr. Smith’s close supervision, engaged in an impromptu slowdown. It took a few minutes for Mr. Hunt and Mr. McLean to respond and, when they did, they saw Mr. Quinones working slowly for several more minutes. I credit the testimony from petitioner’s three witnesses that Mr. Quinones deliberately failed to pick up the spillage promptly. Thus, the charges against him are sustained.

However, I was not persuaded that the respondents deliberately returned to a route that they had already serviced. Mr. Smith’s recollection was contradicted by the respondents and a fellow supervisor, Mr. Hunt, who testified that the respondents needed to return to the left side of Kingston after lunch. This testimony was bolstered by Mr. McLean who noted that, after removing the spillage near the bank, Mr. Quinones walked down the block to pick up additional garbage.

Nor was I convinced that the respondents improperly stopped to pick up the box. Mr. Smith recalled that the box was next to a dumpster and he tried to suggest that it was obviously commercial material. But no other witnesses recalled seeing a dumpster and the respondents were not charged with picking up commercial or “trade waste.” Although there was disagreement about the precise location of the box and its contents, there was no indication from the box’s outward appearance that it contained commercial documents. Thus, it was reasonable for respondents to stop and pick it up. Indeed, at the beginning of their shift they were issued a written reminder to pick up dropped-off garbage (Pet. Ex. 1).

Petitioner also failed to prove that Mr. Quinones complained to pedestrians. The comments, according to Mr. Smith’s recollection, supposedly referred to multiple supervisors. Yet neither Mr. Hunt nor Mr. McLean made any reference to such remarks.

Finally, the evidence fell far short of proving that Mr. Frazier committed misconduct. On this point, petitioner presented conflicting testimony. Mr. Hunt recalled that Mr. Frazier was behind the truck, slowly assisting his colleague; Mr. McLean did not see Mr. Frazier get out of the truck; and Mr. Smith candidly conceded that Mr. Frazier was doing his job. Among these three versions, Mr. Smith’s detailed account -- after realizing that there was a problem, Mr. Frazier got out of the truck and helped pick up the spillage while his co-worker dawdled -- was the most credible. Thus, the charges against Mr. Frazier should be dismissed. See Dep’t of Sanitation v. Amoto, OATH Index Nos. 420/05 & 421/05, at 11 (June 17, 2005).

FINDINGS AND CONCLUSIONS

1)  Petitioner proved that respondent Quinones disobeyed Department rules and regulations when he took an excessive amount of time to clean up documents that he had spilled in the street.

2)  Petitioner did not prove that respondent Frazier disobeyed Department rules and regulations, failed to perform work promptly, or loitered while on duty.

RECOMMENDATION

After making the above findings, I requested and reviewed Mr. Quinones’s personnel history. The Department hired him in 1987. His prior disciplinary record includes a six-day suspension in 1991 and forfeiture of one vacation day in 2001. Both penalties resulted from charges that he had been absent without leave.

The Department requested a five-day suspension. Under the circumstances, where Mr. Quinones was insubordinate in the presence of three supervisors, this is an appropriate penalty. It is within the range of penalties imposed for similar misconduct. See, e.g., Dep’t of Sanitation v. Williams, OATH Index Nos. 320/01 and 321/01 (May 17, 2001) (five-day penalty for disrespectful comments to supervisor); Department of Sanitation v. Ambrosino, OATH No. 208/01 (May 30, 2001), aff'd in part, rev'd in part and modified on penalty, NYC Civ. Serv. Comm'n Item No. CD 02-28-M (Apr. 10, 2002) (seven-day suspension for failure to empty baskets promptly). Accordingly, I recommend that respondent Quinones be suspended for five days.

Kevin F. Casey

Administrative Law Judge

September 16, 2005

SUBMITTED TO:

JOHN J. DOHERTY

Commissioner

APPEARANCES:

RITA R. BRACKEEN, ESQ.

Attorney for Petitioner

KIRSCHNER & COHEN, P.C.

Attorneys for Respondent

BY: ALLEN COHEN, ESQ.