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Dep’t of Sanitation v. Griffith

OATH Index No. 308/07 (Feb. 9, 2007), modified on penalty, NYC Civ. Serv. Comm’n Item No. CD07-91-M (Sept. 21, 2007), appended

Sanitation worker charged with some 15 violations. ALJ found evidence sufficient to prove five of the charges and recommended that respondent be suspended for 31 days. On appeal, the CSC reduces the penalty to a 20 day suspension without pay.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF SANITATION

Petitioner

- against -

PHILLIP GRIFFITH

Respondent

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AMENDED 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 Phillip Griffith, a sanitation worker, is charged with 15 specifications of misconduct, ranging from insubordination and failing to follow Department collection rules to loitering.

A hearing on the charges was conducted before me on October 3, 18, and 24, November 14, and December 7, 2006. Petitioner relied primarily upon the testimony of respondent’s immediate supervisor, Louis Gallotta, and called five other supervisors as witnesses. Respondent testified himself, admitting most of the factual allegations but denying that he failed to perform any of his duties, and called ten other workers to corroborate his accounts.

For the reasons provided below, I find that the evidence was sufficient to sustain five of the charges and recommend that the other 10 charges be dismissed. I recommend that respondent be suspended for 31 days.

ANALYSIS

Respondent has worked for the Department since 1993. The charges here concern incidents which occurred in late 2004 and 2005, when respondent was assigned to the Brooklyn North garage.[1] During this period, respondent’s regular supervisor, Louis Gallotta, regularly filed complaints against respondent, mostly alleging various minor infractions regarding respondent leaving his route a few minutes early or taking excessive breaks. Respondent, who served as a shop steward for 2004 through 2005 (Tr. 821), asserted that Supervisor Gallotta issued the complaints out of spite for respondent’s union activities, although he offered no convincing evidence of this. As discussed below, problems with Supervisor Gallotta’s testimony and the other proof required that all but five of the charges be dismissed.[2]

Insubordination (F113771)

Complaint No. F113771 alleges that, on October 4, 2004, Supervisor Louis Gallotta ordered respondent to complete garbage collection at seven houses and respondent refused. In support of this charge, Supervisor Gallotta testified that, on that day, respondent was the loader and Worker Bobby Hines was the driver. At roll call, Supervisor Gallotta told respondent that he was expected to pick up “everything” off the route, including all baskets and all drop-offs on the street (Tr. 237). Respondent mentioned that he would not be completing the route in order, but would take lines out of order to be more efficient, a plan approved by Supervisor Gallotta (Tr. 300). Around 9:00 a.m., Supervisor Gallotta was checking respondent’s route and noticed that respondent and Mr. Hines were “bouncing around,” not doing the route in order. Some stops and baskets on the route had not been collected (Tr. 236-38), although at trial the supervisor indicated he was uncertain how many stops were missed or where the missed stops were located (Tr. 302-03).

Around 9:50 a.m., Supervisor Gallotta came across respondent’s truck at the last line on the route on Fulton Street. Supervisor Gallotta had a list of missed stops and told respondent to go back and pick them up. Respondent said he would “go back and get them Wednesday” (Tr. 239). Supervisor Gallotta stated that was unacceptable and that respondent had time to complete these stops that day. Respondent said he would discuss it with the driver and was going into the garage for lunch (Tr. 243). Supervisor Gallotta told respondent he “can’t do it” and then called into the garage and told the supervisor that respondent had to complete picking up the missed stops (Tr. 317). Respondent and Mr. Hines returned to the garage and Supervisor Gallotta called his superintendent for guidance (Tr. 243). Supervisor Gallotta later heard that Mr. Hines reported that he was sick and that respondent took the truck to the dump and emptied it (Tr. 244).

Respondent and Mr. Hines both admitted that they did not obey Supervisor Gallotta’s order about the missed stops but agreed that this was due to Mr. Hines’s anger at the manner in which the order was given. Respondent recalled that, while he and Mr. Hines were completing collections on the last line, Supervisor Gallotta pulled up in front of them and spoke with Mr. Hines. Mr. Hines then came to respondent and told him that Supervisor Gallotta said they had missed some stops and needed to go back. Although respondent denied that the workers missed any stops (Tr. 827), respondent said to Mr. Hines, “All right. No problem. Let’s go get them.” Mr. Hines said, “No, I’m not going back because I know I do my work. I always do my work, and I’m not going to go back” (Tr. 826). Although respondent tried to persuade Mr. Hines to return to the route, Mr. Hines refused. Respondent then went over to Supervisor Gallotta and said he himself was willing to go back but that he needed to speak further with Mr. Hines about it. Supervisor Gallotta commented that Mr. Hines was “hot” and “upset” while respondent was “cool.” Respondent promised again to speak further with Mr. Hines and the two workers returned with their truck to the garage (Tr. 826). On the way back, Mr. Hines said that he would not be caught in the middle of the argument between Supervisor Gallotta and respondent. At the garage, Mr. Hines reported that he was sick (Tr. 826).

Mr. Hines recalled that respondent had been told by Supervisor Gallotta to do the route in order. Mr. Hines remembered seeing Supervisor Gallotta around 9:00 a.m. at Fulton Street as Mr. Hines and respondent were finishing up the last line of their route (Tr. 457). Supervisor Gallotta told Mr. Hines that the workers had left some material out on Grand Avenue. Mr. Hines denied that any stops had been missed and suggested that the garbage was placed out after the truck had gone by (Tr. 457). Supervisor Gallotta insisted that the workers had, in fact, missed these stops and ordered the workers to go back and collect the garbage from the missed stops (Tr. 458-59). When Mr. Hines continued to insist that the garbage was late put-out and asked whether Supervisor Gallotta was calling him a liar, Supervisor Gallotta said, “Yes” (Tr. 459). Mr. Hines stated that it was this remark which angered him so much that he refused to pick up the missed stops. Instead he dumped the truck and returned to the garage (Tr. 459). Mr. Hines insisted that Supervisor Gallotta never spoke directly to respondent (Tr. 460). Mr. Hines received a complaint from Supervisor Gallotta but it was later “thrown out” and he was given a written reprimand (Tr. 460).

I found the testimony of respondent and Mr. Hines to be credible and largely consistent with the version offered by Supervisor Gallotta. This testimony established that Supervisor Gallotta ordered Mr. Hines and respondent to pick up the missed stops. Mr. Hines became indignant at Supervisor Gallotta’s remarks and refused to obey and either Mr. Hines or respondent conveyed this refusal to Supervisor Gallotta. The workers drove back to the garage, where Mr. Hines reported sick, leaving respondent without a partner.

Because it was undisputed that respondent could not do the additional pickups by himself, respondent had no alternative but to return to the garage with Mr. Hines. After Mr. Hines then reported that he was sick and was permitted to leave, respondent still had no obligation to return to the collection route until he was assigned a new partner. Since neither Supervisor Gallotta nor the garage foreman ever assigned a different partner, respondent was clearly unable to obey Supervisor Gallotta’s order. Respondent was therefore not in violation of the cited Department rules, requiring employees to obey the orders of their supervisors. See Department Code of Conduct rule 3.1. This charge must therefore be dismissed.

Leaving Route without Authority (F116001)

Complaint F116001 alleges that, on January 25, 2005, respondent was missing from his route at various times during the day and inaccurately reported that his route was completely clean. Superintendent Richard Guttieri was a temporary superintendent for the day on the charged date, which was a snow day. Supervisor Gallotta was the snow inspector, responsible for assigning snow clearing duties to the workers. Respondent had been assigned to clear snow with a shovel at the crosswalks, fire hydrants, and bus stops (Guttieri: Tr. 157).

Supervisor Gallotta recalled that respondent’s assigned shoveling route included Smith Street from Warren Street to Jay Street, from Jay Street to Tillary, then from Adams into Boerum (Tr. 339). Around 9:40 a.m., Supervisor Gallotta checked respondent’s route, beginning at Smith and Warren Streets. Only one of the corners was shoveled and no bus stops or fire hydrants had been cleared of snow (Tr. 341-42). He then spent 15 minutes driving the entire route without finding respondent (Tr. 343-44). Supervisor Gallotta reported respondent’s absence to Superintendent Guttieri, who told him to document his observations. At around 10:55 a.m., Supervisor Gallotta spied respondent at the beginning of the route, leaving his vehicle (Tr. 346). Supervisor Gallotta asked where respondent had been and he said he had gone to the bathroom (Tr. 348). Supervisor Gallotta pointed out to respondent the significant areas which remained covered with snow, including many fire hydrants. Supervisor Gallotta then returned to his general snow duties (Tr. 349). At 12:20 p.m., Supervisor Gallotta again failed to find respondent on the route and waited at Warren and Smith Streets. At around 12:45 p.m., respondent returned to the route and told Supervisor Gallotta that he had been to a bathroom on Baltic Street (Tr. 352, 366).

At 1:25 p.m., Supervisor Gallotta again returned to respondent’s route and could not find him. Supervisor Gallotta called Supervisor Newland and asked him to assist in locating respondent (Tr. 353-55). Supervisor Gallotta recommended that respondent be taken off the clock (Tr. 357). Around 2:20 p.m. Supervisor Gallotta finally found respondent at the last hydrant on Jay Street (Tr. 358, 372). He told respondent he had cleaned only one corner, to which respondent said that he had completed all of the work and the route was clean (Tr. 361). Supervisor Gallotta pointed to a fire hydrant which remained covered with snow, and respondent walked over and shoveled snow around it (Tr. 362). He then ordered respondent to report immediately to the Borough Commissioner (Tr. 358-59). Respondent was docked salary for 2 hours and 30 minutes and issued a complaint (Tr. 361).

Superintendent Guttieri recalled that, on the morning of January 25, Supervisor Gallotta contacted him to say that he could not find respondent on his route. Supervisor Gallotta said he had checked the first line on respondent’s route and the snow had not been cleared. Superintendent Guttieri instructed Supervisor Gallotta to search the entire route. A while later, Supervisor Gallotta reported that he had searched the entire route and had not found respondent (Tr. 153-54). Upon receiving the third report, Superintendent Guttieri called the borough command and was told to order respondent to report to the borough commissioner (Tr. 158-59). Respondent returned to the garage at 2:40 p.m. (Pet. Ex. 2), and was later ordered to shovel snow in front of the garage (Tr. 160). Superintendent Guttieri told Supervisor Gallotta to dock respondent for all the time he could not be found on his assigned route (Tr. 161).

Superintendent Guttieri conceded that during the initial call Supervisor Gallotta reported that some snow had been cleared, although not along the route to which respondent had been assigned (Tr. 172).

At the request of Supervisor Gallotta, Supervisor William Newland also looked for respondent on route 5 for about 20 minutes, starting at the beginning of the route, and failed to find him (Tr. 188-89, 195).

Respondent testified that, after being assigned to spread salt using a haulster, he left the garage just after 8:00 a.m. and went first to Smith Street (Tr. 832-33). Because Smith Street is a busy one-way street, he double-parked his truck and shoveled and salted the walkways, bus stops, and hydrants. He stated that he “might have” left the route in order to move his truck and permit buses to go by (Tr. 834-35). Around 2:00 or 2:15 p.m., he saw Supervisor Gallotta, who said, “That’s it; that’s the end of the day. That’s it for you” (Tr. 835-36). Although respondent did not recall exactly when he took his lunch, he did indicate that during snow removal days lunch breaks were staggered so some workers were always in the field (Tr. 836). Back at the garage, respondent discovered that the other workers had been authorized for overtime. He therefore asked Supervisor Gallotta why he was not being given overtime. Supervisor Gallotta told respondent to speak with ABS Saggese. Respondent called the union to explain what had happened and then spoke with ABS Saggese, who told respondent to wait. After a few minutes, Supervisor Gallotta told respondent to shovel snow by hand in front of the garage, an assignment which respondent argued was intended to humiliate him (Tr. 841).