Dep t of Environmental Protection v. Moriates OATH Index No. 1633/14 (July 8, 2014)

Transcription

1 Dep t of Environmental Protection v. Moriates OATH Index No. 1633/14 (July 8, 2014) Evidence failed to show that respondent was absent without leave or insubordinate when she mistakenly appeared at 10:00 a.m., instead of 2:00 p.m., for a hearing at this tribunal. Dismissal of charges recommended. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of DEPARTMENT OF ENVIRONMENTAL PROTECTION Petitioner - against - STACEY MORIATES Respondent REPORT AND RECOMMENDATION KEVIN F. CASEY, Administrative Law Judge Petitioner, the Department of Environmental Protection, brought this proceeding under section 75 of the Civil Service Law, alleging that respondent, director of quality assurance and control Dr. Stacey Moriates, was insubordinate and absent without leave (AWOL) when she appeared for a hearing at this tribunal on August 21, 2013, at 10:00 a.m., instead of 2:00 p.m. (Tr. ALJ Ex. 1). At a two-day hearing which ended on June 4, 2014, petitioner relied on the testimony of Virginia Smyth and Fausto Zapata. Respondent testified in her own behalf and presented testimony from Victor Berlyavsky. Both sides also offered documentary evidence. For the reasons below, I recommend dismissal of the charges. ANALYSIS Respondent, who has worked for the Department for more than 35 years, is director of quality assurance and control in the Bureau of Sustainability (Tr. 63; Pet. Ex. 1). She has also been a union official for more than ten years and currently serves as executive chair of Local 375 of District Council 37 (Tr ).

2 - 2 - The charges stem from respondent s testimony during an employee disciplinary hearing at this tribunal on August 21, 2013, on behalf of Mr. Berlyavsky, a member of her union. See Dep t of Environmental Protection v. Berlyavsky, OATH Index No. 181/14 (Nov. 26, 2013), rejected in part, Comm r Dec. (Dec. 26, 2013). Respondent had represented Mr. Berlyavsky in earlier stages of that proceeding and other disciplinary actions (Tr. 69). Petitioner alleged that respondent was insubordinate and AWOL because she had been ordered to appear for the August 21 hearing at 2:00 p.m. and she arrived at 10:00 a.m. instead (ALJ Ex. 1). Respondent maintained that there was miscommunication rather than misconduct (Tr. 92, 185). Petitioner failed to prove that respondent received a clear, unambiguous order. The evidence also showed that respondent honestly, but mistakenly, believed that she was required to attend the hearing in the morning. Thus, the charges should be dismissed. Ms. Smyth, director of administrative services in the Bureau of Sustainability, testified that her duties included overseeing budget, procurement, human resources, and timekeeping (Tr. 17, 36-37). She normally received an from the Department s labor relations office or the disciplinary unit whenever an employee requires release time to attend a hearing and she would forward that to the employee s supervisor (Tr. 16, 39). On Friday, August 16, Marcia Jones from the labor relations unit sent an to Ms. Smyth which stated, Please release Stacey Moriates on Wednesday, August 21, 2013, at 2:00 p.m. to attend an OATH hearing at 40 Rector Street, 6 th Floor in Manhattan (Resp. Ex. B). Below that line, Ms. Jones wrote, Please allow ample time for travel and inform Ms. Moriates. Thank you. (Resp. Ex. B). Shortly after 3:30 p.m. that day, Ms. Smyth forwarded that to respondent s supervisor, Michael Gilsenan, but she did not send a copy to respondent (Tr. 22). On Tuesday, August 20, the day before the hearing, Mr. Gilsenan was out of the office and his secretary forwarded a call from respondent to Ms. Smyth (Tr. 22, 40). Respondent asked if she was released for the next day s hearing and Ms. Smyth replied, Yes, it s at 2:00 p.m. at 40 Rector Street (Tr. 22). On direct examination, when asked if there was any further conversation between respondent and her, Ms. Smyth replied, No (Tr ). On cross-examination, however, Ms. Smyth conceded that later in the conversation she asked something about respondent s union giving her that information (Tr. 41). Ms. Smyth recalled that the conversation went as follows: respondent asked if she was released and Smyth said yes ; respondent asked Where? and Ms. Smyth said, It s at 40 Rector Street ;

3 - 3 - respondent said that nobody had told her that and Ms. Smyth replied, I m surprised no one told you, but it is at 40 Rector Street and its at 2:00 (Tr ). According to Ms. Smyth, she told respondent that she had read the information from an but, once again, she did not send her a copy of the (Tr. 43). The next week, when respondent submitted her timesheet, she requested excused absence from 9:30 a.m. to 3:30 p.m. on August 21 (Pet. Ex. 3). Mr. Gilsenan told Ms. Smyth to disapprove the request and mark the time from 9:30 a.m. to 12:30 p.m. as leave without pay because respondent was absent without leave (Tr. 25, 48; Pet. Ex. 3). The timesheet showed that she worked four days that week and every day she worked late, accumulating more than 17 hours of uncompensated overtime (Pet. Ex. 4). Respondent testified that, per her usual procedure, she checked with Aaron Feinstein, head of the labor relations office, two days before the hearing (Tr. 70). He told her, I received something last week and sent it to your Bureau, check with your supervisor to see if he ll approve your being released (Tr ). The next day, respondent called Mr. Gilsenan, but he was out of the office and Ms. Smyth answered his phone (Tr. 72). According to respondent, she said that she needed to speak to someone about release time for the next day s hearing (Tr. 72). Ms. Smyth replied, Oh, no problem (Tr. 72). Respondent asked, Do you have any information? and Ms. Smyth said, Didn t your union give it to you? (Tr. 72). Respondent replied, What does my union have to do with it? and asked Ms. Smyth for the date, time, and location of the hearing (Tr ). According to respondent, it was like pulling teeth to extract information from Ms. Smyth (Tr. 72). At one point, Ms. Smyth said that she had to go find the paperwork and then she said, It says here and Yeah, at 2:00 o clock you re released, without mentioning travel time (Tr. 73). Respondent, who had appeared at this tribunal on three prior occasions, was surprised that the hearing started so late (Tr. 75). When she previously appeared at this tribunal or at arbitration hearings, proceedings started in the morning (Tr ). Respondent mentioned the 2:00 p.m. release time to Mr. Berlyavsky and he was also surprised (Tr. 75). He sent respondent a copy of the hearing notice, signed by petitioner s disciplinary counsel, which stated that the hearing was scheduled for 9:30 a.m. (Tr. 77; Resp. Ex. C). Respondent tried to contact Mr. Berlyavsky s attorney, Mr. Zapata, but could not get through (Tr ).

4 - 4 - The next morning, respondent arrived for work at 7:52 a.m. in Lefrak City, Queens (Tr. 79). She took her work with her to this tribunal where she arrived shortly after 10:00 a.m. due to train delays (Tr. 79). When respondent arrived, petitioner s witnesses were already in the waiting room (Tr. 80). They had reported directly to this tribunal, instead of Lefrak City (Tr. 80). There was no evidence that anybody told respondent that she was too early. Mr. Zapata came out at one point and apologized to respondent for having to wait so long to testify (Tr. 93). Respondent worked in the waiting room until she was called to testify at 2:00 p.m. (Tr. 81). After testifying, she left this tribunal shortly after 2:30 p.m. and she returned to her office at about 3:30 p.m., where she continued to work until about 8:30 p.m. (Tr ; Pet. Ex. 4). Respondent testified that she had no idea that there was an issue about her release time until the next week, when she submitted her timesheet and Ms. Smyth rejected her request for release time (Tr , 90). When respondent called Ms. Smyth to find out what the problem was, she noted that all of the other witnesses had arrived at this tribunal in the morning (Tr ). In reply, Ms. Smyth sent respondent a copy of Ms. Jones s from the Department s labor relations office stating that respondent was released as of 2:00 p.m. (Tr. 88; Resp. Ex. B). Assuming that there was a mistake, respondent spoke to her supervisor Mr. Gilsenan who told her that she had not been released the morning of the hearing (Tr. 91). Respondent replied that she did not know what he was talking about, because she was required to attend the hearing (Tr. 91). Respondent told Mr. Gilsenan that there was an honest misunderstanding and she assumed that she had to be there at the start of the hearing like everyone else (Tr. 92). She offered to take the time as annual leave, noting that such a request would have been granted had it been requested in advance (Tr. 92). But Mr. Gilsenan denied her request, alluding to people upstairs, and informed respondent that she would be charged with being AWOL (Tr. 92). Mr. Berlyavsky testified that respondent was his union representative on all of his cases (Tr. 132). She was also one of his witnesses and he was concerned whether she needed a subpoena (Tr. 133). Mr. Zapata assured him that he had confirmed with agency counsel that respondent would be released (Tr. 134). As of Monday afternoon, she had not received her release (Tr. 135). On August 20, he ed her a copy of the hearing notice (Tr. 135; Resp. Ex. C). Later she told him that she did not have the release and she mentioned that she had been advised that she would be released at 2:00 p.m., Mr. Zapata told Mr. Berlyavsky that did not make any sense (Tr. 136, 145).

5 - 5 - Petitioner called Mr. Zapata as a rebuttal witness (Tr. 161). Due to attorney-client privilege and his ongoing ethical obligations to his client, Mr. Zapata declined to testify about conversations between him and Mr. Berlyavsky (Tr. 167). However, Mr. Zapata confirmed that he ed disciplinary counsel on Friday, August 16, asking for respondent to be released on August 21 (Pet. Ex. 6). In the , Mr. Zapata added, To be clear, we expect to call her as a witness in the afternoon session, after 2:00 p.m. (Tr. 166; Pet. Ex. 6). Mr. Zapata testified that respondent served a dual role (Tr. 174). Though respondent was a fact-witness regarding one of the charges against Mr. Berlyavsky, she was also available as a resource to consult with in a conference room, if needed (Tr. 173). According to Mr. Zapata, union representatives provide a vital function at hearings, providing insights about working conditions and internal procedures (Tr , ). Mr. Zapata had subpoenaed respondent to be a potential witness at another hearing involving Mr. Berlyavsky in February 2013, but elected not to call her after petitioner presented its case (Tr. 161). Petitioner has the burden of proving the charges by a fair preponderance of the evidence. Dep t of Correction v. Hall, OATH Index No. 400/08 at 2 (Oct. 18, 2007), aff d, NYC Civ. Serv. Comm n Item No. CD SA (May 30, 2008) (citation omitted). Preponderance has been defined as the burden of persuading the triers of fact that the existence of the fact is more probable than its nonexistence. Richardson on Evidence (Lexis 2008); Dep t of Sanitation v. Figueroa, OATH Index No. 940/10 at 11 (Apr. 26, 2010), aff d, NYC Civ. Serv. Comm n Item No. CD A (July 12, 2011). To prove insubordination, petitioner needed to show that respondent willfully refused to obey an unambiguous order. Dep t of Sanitation v. Smyth, OATH Index No. 2178/05 at 7 (Feb. 14, 2006), aff d, NYC Civ. Serv. Comm n Item No. CD SA (Nov. 14, 2006). Here, petitioner failed to meet its burden. To begin with, petitioner failed to prove that respondent received a clear, unambiguous order. The evidence established that on August 16, five days prior to the August 21 hearing, two s were sent regarding respondent s release time. Disciplinary counsel wrote to the labor relations office and the labor relations office sent an to Ms. Smyth. But neither was sent to respondent before the hearing. Had respondent been copied on any of those s, or had her supervisor forwarded either to her, any miscommunication may have been avoided. Any misunderstanding could also have been avoided if respondent s supervisor had discussed the release time with her prior to the hearing.

6 - 6 - Instead, Ms. Smyth spoke to respondent the afternoon before the hearing. Though Ms. Smyth appeared to make a sincere effort to recall things as they occurred, petitioner failed to establish that respondent received a clear, unambiguous order. As an administrative director, who reported directly to a deputy commissioner, Ms. Smyth had the authority to give respondent a direct order. But it is unclear what, if any, order Ms. Smyth gave on August 20. On direct examination, Ms. Smyth testified that their conversation was short and to-thepoint. Respondent asked if she was released for the next day s hearing and Smyth replied, Yes, it s at 2:00 p.m. at 40 Rector Street (Tr. 22). Nothing else was said (Tr ). On crossexamination, Smyth described a much different conversation, in which respondent asked her a series of questions and she replied by answering the questions and expressing surprise that the union or others had not spoken to her (Tr. 41). As cross-examination continued, Ms. Smyth claimed that she told respondent that she was reading the information from an -- an important claim that Ms. Smyth never made during direct examination (Tr. 43). It also appeared that Ms. Smyth described a slightly different version of the conversation at a grievance hearing. According to the hearing officer s determination, Ms. Smyth said that the release was not a problem and [respondent] should report to 40 Rector Street, 6 th Floor at 2:00 p.m. (Pet Ex. 5). Petitioner offered no contemporaneous report or notes from Ms. Smyth memorializing what was said. Instead, she was testifying from memory regarding the exact words of a conversation that took place more than nine months earlier. Thus, it is not surprising that her recollections were conflicting or unclear. Dep t of Sanitation v. Beecher, OATH Index No. 569/04 at 6-7 (Dec. 16, 2004), aff d, NYC Civ. Serv. Comm n Item No. CD SA (Jan. 9, 2006) (insubordination not proved where it was unclear what order was given to employee, especially in light of contemporaneous documentation of what was said); Dep t of Correction v. Hipp, OATH Index No. 337/00 at 3-5 (Dec. 3, 1999) (evidence did not prove that correction officer willfully disobeyed captain s order to report to an office, where there was conflicting evidence, order was unclear, and officer misunderstood when she was expected to report); Dep t of Parks & Recreation v. Wilson, OATH Index No. 398/91 at (May 3, 1991) (insubordination unproved where supervisor could not recall wording of an order and may have told employee that it was not a good idea to attend a protest meeting at an agency site). The evidence also failed to prove that respondent willfully disobeyed an order. Respondent credibly maintained that she had to elicit all of the information from Ms. Smyth,

7 - 7 - who had to look for an or paperwork regarding the matter, and that Ms. Smyth referred to 2:00 p.m. as the release time, without any reference to travel time. Ms. Smyth had no prior dealings with respondent regarding release time, and the information that she conveyed was inconsistent with respondent s experience of appearing in the morning for arbitration proceedings and hearings at this tribunal. And, taken literally, the 2:00 p.m. release time would mean that respondent would not arrive at this tribunal until 3:00 p.m. or later. Under these circumstances, it was reasonable for respondent to conclude that there may have been a mistake. That conclusion was supported by the hearing notice that Mr. Berlyavsky forwarded to respondent. According to that notice, the hearing began at 9:30 a.m. (Resp. Ex. C). Mr. Berlyavsky, a participant in the hearing who had no supervisory authority over respondent, could not tell respondent when to report to the hearing. But the official notification was signed by petitioner s disciplinary counsel (Resp. Ex. C). Though it was addressed to Mr. Berlyavsky, it was the only official written document that respondent saw prior to the hearing. An experienced union representative, such as respondent, could reasonably conclude after reading that notice, that the hearing was scheduled for the morning. Furthermore, on the morning of August 21, nobody told respondent that she had done anything wrong. There was no evidence that anyone at the Lefrak City office asked her where she was going when she left there to come to this tribunal. There was no evidence that anyone from her office called this tribunal to ask her what she was doing here. None of petitioner s witnesses who were in the waiting room told her that she was not supposed to be here. Nor was there any indication that petitioner s counsel said anything to respondent that morning. The evidence tends to show that there was some miscommunication and respondent made an honest mistake. That is not misconduct. Transit Auth. v. Alday, OATH Index No. 475/12 at (Dec. 22, 2011) (insubordination and abandonment of job assignment not proved where there was inconsistent and unclear evidence regarding work to perform at Staten Island job site and employee mistakenly returned to office in lower Manhattan to sign out); Dep t of Sanitation v. Munnerlyn, OATH Index No. 1843/01 at 7-8 (Oct. 31, 2001), modified on penalty, Comm r Dec. (Nov. 16, 2001) (AWOL not proved where employee temporarily reassigned to a new location on date at issue and was unaware that normal tour hours had changed); Transit Auth. v. Rothstein, OATH Index No. 562/94 (Mar. 25, 1994) (AWOL not proved where, employee who was member of union that did not have Columbus Day as a holiday, mistakenly thought that he

8 - 8 - had that day off, where he had taken day off for the previous three years without penalty and agency allowed him to use annual or personal leave without prior notice). Petitioner argued that this case is about a union representative seeking special treatment (Tr. 196). I disagree. This case is about an employee who mistakenly showed up a few hours early for a hearing. Thousands of people appear at this tribunal each year as litigants, representatives, or witnesses. Some of them, including attorneys, show up at the wrong time or the wrong day. Such mistakes are infrequent and unfortunate, but they are usually nothing more than a mistake. That is what happened here. The charges should be dismissed. 1 FINDINGS AND CONCLUSIONS 1. Petitioner did not prove that respondent committed insubordination, in violation of section E 5 of the agency s Code of Conduct on August 21, 2013, as alleged in Charge Petitioner did not prove that respondent was absent without leave, in violation of section E 24 of the agency s Code of Conduct on August 21, 2013, as alleged in Charge 1. I recommend dismissal of the charges. RECOMMENDATION Kevin F. Casey Administrative Law Judge July 8, Had I sustained the charge, I would not have recommended a penalty harsher than a reprimand. Respondent is a dedicated employee, with more than 35 years of unblemished service. The alleged misconduct was not willful and respondent worked from before 8:00 a.m. until nearly 9:00 p.m. that day (Pet. Ex. 4). There was no evidence that any call went unanswered, any task went undone, or that respondent was out of contact with the agency. Indeed, the unrefuted evidence established that respondent continued to work, in the presence of other agency employees, while she sat in this tribunal s waiting room, awaiting her turn to testify. See Alday, OATH No. 475/12 at (reprimand recommended for single act of insubordination in light of employee s 28-year tenure, lack of prior formal disciplinary history, and miscommunication that contributed to the charges).

9 - 9 - SUBMITTED TO: EMILY LLOYD Commissioner APPEARANCES: CARLA LOWENHEIM, ESQ. Attorney for Petitioner AARON S. AMARAL, ESQ. Attorney for Respondent