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					                         Human Resources Admin. v. Small
                                OATH Index No. 2019/04 (May 10, 2005)

                 Respondent was found to be excessively late (83 days over 20-
                 month period), insubordinate, and to have made an inappropriate
                 entry on an agency record, which included demeaning and profane
                 references to a client. Given respondent’s recent history and
                 clearly impaired judgment and insight, termination recommended.

                 ______________________________________________________

                              NEW YORK CITY OFFICE OF
                       ADMINISTRATIVE TRIALS AND HEARINGS
                                      In the Matter of
                        HUMAN RESOURCES ADMINISTRATION
                                         Petitioner
                                         - against -
                                    SIMONE SMALL
                                        Respondent
                 ______________________________________________________

                            REPORT AND RECOMMENDATION
RAYMOND E. KRAMER, Administrative Law Judge
        This is an employee disciplinary proceeding referred by petitioner, the Human Resources
Administration (“HRA”), pursuant to section 75 of the Civil Service Law. Respondent Simone
Small, a supervisor I assigned to the Rider Job Center in the Bronx, is charged in three sets of
charges with excessive lateness, insubordination, making an inappropriate entry on an agency
record, abusive performance of her official duties, and engaging in conduct prejudicial to the
good order and discipline of the agency (ALJ Ex. 1 – case tracking nos. 00835-02, 00835-03 and
00835-04).
        A hearing was conducted before me on August 11, 2004 and September 21, 2004. 1
Petitioner presented three witnesses, including the director and an administrative manager from
the Rider Center and the deputy director of petitioner’s auto time division, in support of the




1
  The record was held open through October 18, 2004, for the submission by petitioner of certain agency time
records and for respondent's written response.
                                                         -2-


charges. Respondent, appearing pro se but assisted by union-retained counsel, presented one
witness and testified on her own behalf.2
         Based upon the record before me, I find that petitioner properly proved that respondent
engaged in the charged misconduct, and I recommend that her employment be terminated.


                                          PRELIMINARY ISSUES
         Prior to the hearing respondent, appearing pro se, filed a pre-trial application for a
“change of venue” for her disciplinary proceeding, on the grounds that OATH could not possibly
provide her with a fair hearing after she had lost a previous disciplinary matter before another
OATH administrative law judge.3 I deemed the application to be a motion to disqualify all
OATH judges from hearing her pending disciplinary matter, and I denied the motion for the
reasons outlined in my memorandum decision issued on July 27, 2004 (ALJ Exs. 2, 3 and 4).
         Respondent further requested an indefinite “stay” of these trial proceedings because she
was trying to appeal her prior adverse disciplinary finding and raise other claims about improper
agency treatment and retaliation before the U.S. Supreme Court (ALJ Ex. 5). Respondent
submitted various papers that she had sought to file with the Court, which included
correspondence from Troy Cahill, a staff attorney in the clerk’s office of the Supreme Court,
confirming respondent’s attempts to file an appeal. Her “filings” were rejected by the Court as
improper, as noted in a letter to her from Mr. Cahill, dated August 12, 2004 (ALJ Ex. 6, Attach.
3). In any event, her application to me to “stay” these proceedings was denied (Tr. 10-12).
         At the outset of the hearing, respondent sought dismissal of the disciplinary charges
because, according to her, they had already been adjudicated in the prior disciplinary matter at
OATH in May 2001. A review of the decision issued in that case, and of the case file maintained
by OATH, confirmed petitioner’s representation that the pending charges were unrelated to the
prior disciplinary charges for which respondent was previously tried and penalized. Respondent
maintained that even if the pending charges were not previously tried at OATH, they were
somehow raised by her and addressed in her Article 78 appeal of her prior OATH matter, which

2
 Despite being advised of the potential serious adverse consequences, respondent refused representation by union
counsel, and only reluctantly allowed counsel to be present to assist her during the trial (Tr. 6-8, 23-32, 37-38).
3
  Human Resources Admin. v. Small, OATH Index No. 241/01 (May 10, 2001), modified on penalty, Comm'r Dec.
(June 11, 2001), aff'd, 299 A.D.2d 238, 749 N.Y.S.2d 420 (1st Dep't 2002).
                                                -3-


appeal was heard and rejected by the Appellate Division. There was nothing in the Appellate
Division’s brief affirming opinion or anywhere else in the record to support respondent’s
rambling and rather confused representations in this regard. Her motion to dismiss the charges
was therefore denied (Tr. 5-6).
       Finally, respondent challenged the propriety of the service upon her of the two excessive
lateness charges, alleging “fraud” by petitioner in the procurement of its affidavits of service.
First, respondent, supported by testimony from her brother who resides with her, challenged the
authenticity of the signature of a “Will Small” on the certified mail receipt for the charges
denoted by the agency as case tracking no. 00835-02. Respondent and her brother claimed that
their father, whose name is William Small and who lived with them for a period of time, would
never sign his name in that fashion, that the signature did not appear genuine, and that their
father had retired and moved to Virginia well before the time of this alleged service. Respondent
and her brother also challenged the process server’s affidavit indicating that he left a copy of the
same set of charges with a relative named “Jeanette” at respondent’s premises. Respondent and
her brother contended that no one named “Jeanette” lived at the premises and that respondent’s
brother’s eighteen year-old daughter, whose name was “Jessica,” lived elsewhere at the time (Tr.
41-47, 137-42).
       Respondent further challenged the propriety of the service of the charges denoted as case
tracking no. 00835-03, claiming that the process server’s affidavit was false because his
description of her residence at which he purportedly left a copy of the charges as a four-family
home, was inaccurate (Tr. 142). She also claimed that nothing was ever posted at the premises
or left in the mailbox and that she never had notice of a certified letter. Petitioner submitted the
unopened letter, stamped “unclaimed” (Tr. 60-62; Pet. Ex. 12).
       Respondent’s protestations about service notwithstanding, I credited the testimony of
Elaine Darby, the Director of the Rider Center where respondent was assigned, who testified that
she personally served both sets of charges on respondent and that although respondent refused to
sign an acknowledgement of service, she accepted copies of the charges on both occasions (Tr.
56-60; Pet. Exs. 9 and 11). Thus, service of both sets of charges alleging excessive lateness was
properly effectuated.   Drolet v. N.Y.S. Racing and Wagering Board, 115 Misc.2d 7, 453
N.Y.S.2d 361 (Sup. Ct. Nassau Co. 1982)(technical defects in service are not fatal in
                                                 -4-


administrative proceedings, provided that the accused received actual notice of the charges);
Dep't of Transportation v. Deloach, OATH Index No. 2287/00 (Oct. 18, 2000)(respondent
properly served with notice of hearing and charges when handed to her, even though she refused
to sign an acknowledgment); Bd. of Education v. Roman, OATH Index No. 1555/97, at 16-17
(Sept. 30, 1997)(service of charges is valid where the charges were proffered to the employee,
but employee refused to sign for them or accept a copy); Human Resources Admin. v. Morris,
OATH Index No. 1683/95, at 3 (May 7, 1998)(service effectuated where charges handed to
employee and despite employee’s failure to read them).


                                           ANALYSIS
       Respondent is a conciliation supervisor, who has been assigned to the conciliation unit of
the Rider Job Center since 1996. Her primary duty is to meet with clients daily who miss
appointments or job assignments or fail to bring in proper documentation, and who thus lose
eligibility, to review the explanations for their infractions and to assess whether their eligibility
should be restored (Tr. 87-88). Despite her supervisory title, respondent does not supervise
anyone in the conciliation unit, although she asserted that in past years, she has supervised
employees in a different capacity and at another center.


I. Inappropriate Computer Entry and Use of Inappropriate and Demeaning Language in
Reference to Client

       Petitioner charged that on April 30, 2003, respondent made inappropriate entries in the
New York City WAY [NYC WAY] computer database, when she documented a dispute with a
client in the comments screen, referred to the client in the process as "a shit" and “stupid,” and
also noted that she had told the client during the incident to "get out of her face" [sic] (ALJ Ex. 1
– case tracking no. 00835-04, charges II, III and IV). NYC WAY is a computer database in
which all client activity is recorded, and it can be accessed citywide by users in a number of
programs and by certain outside vendors (Tr. 70).
       Elaine Darby, Director of the Rider Center, testified that on August 26, 2003, she
received a letter, dated August 25, 2003, from Sheila Holley, one of the managers of petitioner’s
Fair Hearings Division, complaining that one of Ms. Darby’s staff members had improperly used
                                                 -5-


the NYC WAY system to document an incident the staff member had apparently had with a
client (Tr. 65-66; Pet. Ex. 7). Attached to the letter was a printout of the comments screen from
the NYC WAY system for the client Belinda I. for the period from March 27, 2003 through
August 13, 2003 (Pet. Ex. 3).
       The first two lines of a lengthy entry in the printout dated April 30, 2003, under the
heading “Case Note,” read “A SHIT. THIS TERM WAS USED TO FURTHER EXPLAIN MS.
I.’S [client’s last name redacted] MANNERISM AND BEHAVIOR BY SUPERVISOR I MS.
SMALL. SUPERVISOR I INFORMED MS. I THAT SHE WILL PUT HER ACCOUNT OF
THE INCIDENT TODAY IN THE NY WAY SYSYEM.” The entry goes on to detail a dispute
between respondent and the client, Belinda I., in which respondent noted that the client
threatened and cursed at her, and respondent further noted that she told the client to “get out of
her face” and called the client “stupid,” not only for her behavior at the time but for failing to
keep certain prior appointments or produce certain documentation.
       In her letter, Ms. Holley pointed out that such personal incidents were not to be
documented in the computer database regarding a client, particularly since the client’s computer
information was shared with hearing officers and representatives in the Fair Hearings Division,
as well as with clients. Ms. Holley noted that it was a Fair Hearings representative in her office
that brought the inappropriate entries to her attention (Pet. Ex. 7).
       Ms. Darby explained at trial that the Fair Hearings Division provides hearings before
hearing officers for clients who are disputing negative action taken with regard to their benefits
or eligibility. Ms. Darby further noted that the NYC WAY system automatically identifies case
entries by date and worker's ID number (Tr. 71). The entry in this case contained ID number,
E1198, which respondent acknowledged was hers (Tr. 72).
       Ms. Darby referred Ms. Holley’s letter with the attached printout to respondent’s
immediate supervisor, Stephen Spezzaferro, with instructions that he should hold a conference
with respondent to speak to her about the entry (Tr. 73-74).
       Mr. Spezzaferro, an administrative manager level I who has supervised respondent for a
little more than two years, testified that it was inappropriate and unprofessional for a staff
member to call clients names or to refer to them as “a shit” or “stupid,” whether directly or in a
computer database entry and regardless of whether the clients are discourteous or unruly toward
                                                -6-


the staff member. By the same token, a staff member should not tell a client to “get out of her
face,” even if the client is unruly, or, as respondent alleged occurred here, approaches a staff
member in a threatening or intimidating manner. According to Mr. Spezzaferro, use of such
language is not professional and is likely to provoke a confrontation or further rile the client.
Mr. Spezzaferro testified that staff members are instructed to avoid confrontations or altercations
with clients and to just get up and walk away from a situation in which the staff member may
feel threatened (Tr. 89, 104, 108).
       Respondent did not dispute that she made the lengthy April 30, 2003 entry in the NYC
WAY comments screen for Belinda I., which included the various comments described above.
       Respondent explained that on the day in question, April 30, 2003, Belinda I., appeared at
the Center for a scheduled appointment at which she was to provide certain information about
babysitting expenses that she had previously failed to provide. When she failed to bring the
information once again, respondent explained to her that she would automatically be infracted
for violating the work program rules (Tr. 146). Belinda I. got very upset, started yelling and
screaming at respondent, and called her “a bitch.” Respondent testified that at one point the
client was standing over her and yelling in her face, such that respondent feared that if she tried
to stand up to walk away, she might make inadvertent contact with the client (Tr. 109).
Respondent instead told the client to “get out of her face,” so as to not allow the client to think
that respondent was intimidated, "Because if I did that [walk away] I'm letting everybody know
you can come hit me" (Tr. 151). Respondent pointed out that there had been a prior incident at
the Rider Center, which was confirmed by Mr. Spezzaferro, where a caseworker had been struck
with a chair (Tr. 104). Before the incident escalated further, the security guards, having been
alerted to a problem by Belinda I.’s yelling and screaming, appeared and escorted her out of
respondent’s cubicle (Tr. 147-48, 151).
       Respondent acknowledged that she called Belinda I. “stupid” during their interview, and
further noted as much in her April 30, 2003, NYC WAY computer entry, explaining that she
used such term toward her because Belinda I. had four children in foster care, wanted them back,
but had made no attempts to visit them (Tr. 149; Pet. Ex. 3). Respondent argued that there was
nothing wrong with the use of the term in the context, that “stupid” was a common word in the
English language, and that it was an appropriate characterization of the client’s conduct (Tr.113).
                                                -7-


       Respondent also acknowledged that she used the term "a shit" in her computer entry to
refer to Belinda I., or more accurately, according to respondent, to describe Belinda I.’s behavior
and “mannerism.” Respondent denied, however, that she actually called Belinda I. “a shit” to her
face (Tr. 150). Respondent explained at trial that she felt that the client's “extreme” behavior
"needed a catchy term" to properly characterize it in the computer entry (Tr. 150). Respondent
used "shit" as a cruder term for human waste to more accurately describe the client's conduct
during the interview (Tr. 150).
       The undisputed evidence established that respondent made the lengthy April 30, 2003
computer entry in the comments screen of the NYC WAY computer database, which detailed a
personal altercation respondent had with a client, Belinda I., and in which respondent referred to
the client as “a shit” and “stupid.” The entire entry was inappropriate for the client’s NYC WAY
comments screen, as was pointed out by Ms. Holley’s letter, and as respondent, a veteran
employee of the conciliation unit, should well have known. While the mere making of the entry
in that database was not charged nor shown to be actionable misconduct, respondent’s
acknowledged references within that entry to the client, Belinda I., as "a shit" and “stupid,”
clearly violated agency rules and was sanctionable. Whether respondent actually called the
client those names directly (and she in fact acknowledged calling the client “stupid”) was not a
significant issue. Such derogatory terms are clearly unacceptable in referring to a client whether
directly or in an official agency record. Nor was it a defense that the client herself never filed a
complaint about respondent. Nor does it matter that respondent may have had reason to be upset
with the client or that she believed that the demeaning terms were accurate characterizations of
the client’s conduct. Indeed, respondent’s conduct cannot be mitigated here by any alleged
provocative or inappropriate behavior the client may have engaged in, since respondent
volunteered that she did not enter these offending comments into the computer database in the
heat of the moment, but several days later, when reason and better judgment, particularly for a
seasoned supervisor, should have prevailed.
       Respondent’s conduct in “publishing,” via computer, profane and demeaning references
about a client in a computer database which was accessible by other employees, outside
programs and vendors, and hearing officers, representatives and clients participating in the Fair
Hearings Division, was unprofessional, discourteous and inconsiderate, and violated Executive
                                                -8-


Order No. 651 (Code of Conduct for HRA Employees), section III, paragraph 11 (prohibiting an
employee from committing an act which constitutes an unauthorized and abusive exercise of the
employee’s official functions), paragraph 33 (prohibiting an employee from using obscene,
abusive or inappropriate language with respect to a participant, supervisor, fellow employee or
private citizen), and paragraph 36 (prohibiting an employee from engaging in conduct
detrimental to the agency).
        With respect to the reference in the entry, however, that respondent told the client to “get
out of her face” during their dispute, I found nothing demeaning about that reference that would
make it independently sanctionable for having been included in the entry. Moreover, to the
extent that the charge meant to include the allegation that respondent said, “get out of my face”
to the client, rather than simply included it in the computer entry, I still find no misconduct,
given the uncontroverted circumstances described by respondent.          While Mr. Spezzaferro’s
admonition that employees should refrain from confrontational words or conduct in the face of
threatening or aggressive behavior by a client was logical as a general principle, in any given
instance one might have to give authoritative directions or commands to simply protect oneself.
In this instance, respondent described being seated behind her desk, with the client hovering over
her and leaning her face down into respondent’s face, while yelling and screaming at her.
Respondent also claimed, without contradiction, that she was fearful that if she stood up to walk
away, she might make inadvertent physical contact with the client which might inflame the
situation.
        In the circumstances, I did not find that respondent’s saying to the client or entering into
the computer the phrase “get out of [my] face” or even its direct use toward the client, amounted
to misconduct. As noted above, however, respondent’s other demeaning references to the client
violated agency rules. Charges II, III, and IV of the charges denoted internally by the agency as
case tracking no. 00835-04 are sustained.


II. October 3, 2003 Insubordination
        Petitioner alleges that respondent refused a directive from Mr. Spezzaferro to appear in
his office on October 3, 2003 to discuss the inappropriate case notes she entered in the NYC
                                                 -9-


WAY database on April 30, 2003 with respect to client Belinda I. (ALJ Ex.1 – case tracking no.
00835-04, charge I).
       Mr. Spezzaferro testified that on October 3, 2003, he requested his administrative
assistant, Jeanine Carter, to give respondent a written directive to come to his office at 4:00 p.m.
that day to discuss her April 30, 2003 entry in NYC WAY (Tr. 92; Pet. Ex. 4). The directive
also advised respondent that her union delegate was welcome to attend the conference. Mr.
Spezzaferro testified that respondent refused to accept the memo from either Ms. Carter or the
union delegate, requesting instead that the memo be sent to her by certified mail (Tr. 94; Pet. Ex.
5). Mr. Spezzaferro thereafter submitted a request for a disciplinary charge to Ms. Darby.
       Respondent testified that Mr. Ramos, a union delegate, had informed her that Mr.
Spezzaferro wanted to meet with her. When respondent asked what the meeting was in reference
to, Mr. Ramos said it was related to discipline. Respondent told Mr. Ramos that it was not
necessary for respondent to meet with Mr. Spezzaferro because she did not know the particulars
of the meeting in advance (Tr. 153). Respondent further confirmed that Mr. Spezzaferro's
assistant, Jeanine Carter, told respondent that Mr. Spezzaferro wanted to give respondent some-
thing. Respondent told her to have it sent by certified mail (Tr. 154-55). Respondent testified
that Ms. Darby never tried to speak to her regarding the incident with the client (Tr. 154).
       I find respondent guilty of insubordination for refusing to obey Mr. Spezzaferro's
directive to meet with him. Refusal to obey a supervisor’s lawful directive, regardless of
whether it was delivered from a third party or pertained to discipline, and regardless of whether
respondent agreed with its propriety, is insubordination. Respondent was obligated to obey the
order and grieve any objections to it later. Human Resources Admin. v. Diggs-Rodriguez, OATH
Index No. 1733/00 (June 8, 2000), aff'd, NYC Civ. Serv. Comm'n Item No. CD01-66-SA (July
30, 2001); Human Resources Admin. v. Omosigho, OATH Index No. 755/02, at 8 (Apr. 10,
2002). Indeed, that principle is embodied in the rule respondent is alleged to have violated. See
Executive Order No. 651, section III, par. 20 (Dec. 17, 1998). The record established that
respondent was adequately notified by Mr. Spezzaferro’s assistant and Mr. Ramos that Mr.
Spezzaferro wanted to speak with her, even without her having accepted the written directive in
hand from either one. Moreover, when respondent refused to accept the written directive, and
instead retorted that Mr. Spezzaferro should mail it to her, she did so at her own peril. I find that
                                                  -10-


respondent knowingly failed to comply with a lawful directive of her supervisor, and therefore,
charge I of case tracking no. 00835-04 was sustained.


III. Excessive Lateness During the Periods from September 1, 2000 to April 20, 2001, and May
1, 2001 to April 30, 2002

        Petitioner alleges that respondent was late for work on 52 occasions for a total of 2,789
minutes, during the period from September 1, 2000 to April 20, 2001 (ALJ Ex. 1). Petitioner
also alleged that respondent was late on 39 occasions for a total of 1,721 minutes during the
period from May 1, 2001 to April 30, 2002. At the outset of the hearing, I dismissed seven
allegations of lateness, from May 1, 2001 through May 15, 2001, as time barred (Tr. 40), leaving
allegations of 32 instances of lateness for a total of 1,489 minutes for that period (ALJ Ex. 1 –
case tracking nos. 00835-02 and 00835-03).
        Harvey Gerstman, Deputy Director of Auto Time Administration, testified that auto time
is an electronic time-keeping system that tracks the times that staff members swipe into a multi-
purpose terminal at their work site as they enter and leave the work location (Tr. 115). At the
end of the day, auto time collects and transmits file information to the payroll management
system (Tr. 155). Under auto time, an employee is carried late when she arrives more than five-
minutes past her start time, if it is fixed, or, if she has flextime as respondent did, at any point
past the end period of her flextime, up to 120 minutes (Tr. 119). An employee who arrives more
than 120 minutes late for work is deemed to be absent for that period (Tr. 119).
        Mr. Gerstman identified the payroll management system computer printouts summarizing
respondent’s attendance during the periods August 2000 through April 2002 (Pet. Exs. 1 and 2).
According to Mr. Gerstman, the printouts reflect the various dates when respondent was carried
as late and indicate that the periods of lateness were charged to her annual leave balance (Tr.
116-21, 123-24). Respondent did not dispute the accuracy of the dates and times of her late
arrivals as listed in those exhibits (Tr. 124).
        The payroll management system records established that respondent was late without
authorization on 52 days from September 1, 2000 to April 20, 2001, and on 32 days from May 1,
2001 to April 20, 2002, for a total of 84 late arrivals in a twenty-month period. On the various
charged dates, respondent arrived between one and 145 minutes late. More than half of the
                                              -11-


incidents of lateness exceeded 30 minutes, and almost half of them exceeded one hour; only
twelve incidents of lateness were for less than 15 minutes. On average, respondent was late about
four times a month throughout this period.
       Respondent offered several vague and general explanations for her lateness, which were
unsupported by any documentation or other proof.         Respondent asserted that many of her
charged late arrivals were simply the result of her being “unhappy” with her job location and
environment and her not being motivated to get there on time (Tr. 155). Respondent testified
that she had wanted to transfer out of the Rider Center since her assignment there in 1996, but
had been frustrated in her efforts. She stated that the primary reason she wanted a transfer was
because she lived in Brooklyn, her daughter went to school in lower Manhattan, and the Rider
Center was in the Bronx, which made for a long commute. She indicated that her unhappiness
with her work environment increased after disciplinary charges were filed against her for prior
unrelated conduct, which she had to address during the periods of lateness charged here.
       In addition, respondent, who had one hour flextime during this period and was thus
allowed to arrive at work anytime between 8:00 a.m. and 9:00 a.m., volunteered that she simply
had a “propensity for lateness” and had advised petitioner as much when she was hired (Tr. 157).
Respondent also testified that she is a diabetic and that her diabetic condition may have
contributed to her lateness, although she was vague as to how and when that may have been an
issue (Tr. 159-60). Although respondent produced no medical documentation in this proceeding,
she maintained that she had produced various doctor’s notes in the past to document her
condition and to justify absences, but that her supervisors usually disapproved them (Tr. 164-65).
Respondent acknowledged that she has never requested an accommodation for her diabetic
condition (Tr. 165).
       Respondent maintained that she usually included an explanation in the auto time
computer comments screen on those occasions when she was late. Based on that representation,
I directed petitioner to produce the auto time records and relevant comments screens for the
periods at issue, which petitioner submitted post-hearing (Pet. Exs. 14 and 14A). A review of
those records, which corroborated many of the occasions of respondent’s charged lateness,
revealed, as petitioner’s counsel acknowledged, that one of the occasions of charged lateness was
erroneously charged. Respondent’s late arrival (101 minutes) on January 2, 2001, was approved
                                                -12-


as leave by the agency, and thus petitioner withdrew that particular allegation of lateness post-
hearing (Pet. Ex. 14). Therefore, petitioner proved that respondent was late on 83, rather than
84, occasions during the period at issue.
       Petitioner further indicated in the post-hearing submission that the auto time comments
screen is only generated when an employee requests leave to cover an absence or lateness, and
that because respondent did not request leave for the majority of her latenesses during this
period, there were few explanatory comments entered in the computer for her late arrivals. On
those occasions where she requested leave and entered explanatory comments, her explanations
did not invoke medical reasons for her late arrivals (Pet. Ex. 14).
       In her post-hearing written response to the auto time documents, respondent continued to
maintain that she had provided explanations whenever she was late and that petitioner’s counsel
simply failed to produce all of the appropriate records as directed (Resp. Ex. A). I found no
basis to credit such assertion. Although her written submission was not always clearly compre-
hensible, respondent further asserted that she was the victim of “fraudulent” and retaliatory
conduct by various agency personnel who deleted her comments from the comments screen and
altered her time records on various occasions, either to make it appear as if she were late when
she was not, that her leave had been disapproved when it had not been, or that she arrived later
than she really did (Resp. Ex. A). I did not credit respondent’s uncorroborated assertions.
       In sum, the evidence established that respondent was late on 83 occasions during the
period from September 1, 2000 through April 30, 2002. Such lateness is clearly excessive and in
violation of agency rules. See Agency Procedure No. 99-07, section V (D) (Apr. 27, 1999).
Respondent’s various proffered excuses or explanations at trial were lacking in detail, credibility
and/or reliable documentation or corroboration, and were thus insufficient to justify her late
arrivals. Human Resources Admin v. Metz, OATH Index No. 1000/02 (Dec. 20, 2002); Dep't of
Housing Preservation and Development v. Thomas, OATH Index No. 1175/99 (June 10, 1999).
       Accordingly, I find that the charges of excessive lateness filed against respondent and
internally denoted as case tracking nos. 00835-02 and 00835-03, were sustained to the extent
noted above.
                               FINDINGS AND CONCLUSIONS
               1.      On October 3, 2003, respondent was insubordinate when
                       she refused to meet with her supervisor as directed.
                                               -13-


               2.     On April 30, 2003, respondent made inappropriate
                      computer entries on the NYC WAY computer database, in
                      which she referred to a client in a demeaning manner as "a
                      shit" and "stupid." Such conduct also constituted an
                      abusive performance of her official duties and was
                      prejudicial to the good order and discipline of the agency.

               3.     Respondent was late without justification or authorization
                      on 83 occasions from September 1, 2000 to April 30, 2002.
                      Such lateness is excessive and sanctionable.

THEREFORE:
       I find that petitioner has proved all of the pending charges by a preponderance of the
credible evidence.


                                    RECOMMENDATION
       Upon making the above findings, I obtained and reviewed an abstract of respondent’s
employment record as provided by petitioner.
       Respondent’s personnel file reveals that she began her employment with petitioner in
May 1989. She was promoted to her current title of supervisor I in October 1995. She has one
prior disciplinary matter. In June 2001, the Commissioner doubled the recommended penalty of
the administrative law judge and imposed a forty-day suspension from work without pay on
respondent as a penalty for insubordination and confrontational and discourteous conduct toward
clients, including calling a client “ignorant.” Human Resources Admin. v. Small, OATH Index
No. 241/01 (May 10, 2001), modified on penalty, Comm'r Dec. (June 11, 2001), aff'd, 299
A.D.2d 238, 749 N.Y.S.2d 420 (1st Dep't 2002).
       Petitioner provided several older performance evaluations for respondent from years prior
to her promotion to supervisor in October 1995, most of which were favorable.                Two
performance evaluations were provided for periods after her promotion, one for her first year as a
supervisor, during which her performance overall was rated as "very good,” and the second for
the period from October 1997 through September 1998, in which her performance overall was
rated as "good." No more recent performance evaluations were provided. Most noteworthy for
purposes of this recommendation were comments made by her then supervisor David Joseph in
the October 1997 through September 1998 evaluation, in which he noted that respondent's time
                                               -14-


and attendance needed to improve and that twice during the rating period he had “had to address
the issue of her behavior towards clients and fellow staff members,” indicating that such
problems for respondent are not recent ones. Non-Managerial Performance Evaluation (Oct. 1,
1997 - Sept. 30, 1998), “Justification for Overall Rating” (Nov. 9, 1998).
       Petitioner argued that termination was the only appropriate penalty for respondent’s
misconduct as established in this case.     Despite her long tenure and lack of an extensive
disciplinary history, I must agree.
       Respondent’s lateness as established in this proceeding was extensive and substantial.
Despite a one-hour flextime for arrival, she often arrived more than an hour late. A computer
printout of her leave usage during the same period, from September 1, 2000 through April 30,
2002, which was part of petitioner’s post-hearing submission (Pet. Ex. 14), reflected such
extensive use of annual leave, personal leave and sick leave, that, in combination with her 83
occasions of lateness, it seemed apparent that she hardly worked during this period. For most of
the twenty-month period, as the time records reflect, she carried a negative leave balance (Pet.
Exs. 1 and 2). Nor is this a recent problem, as her comments about her history of lateness and
her supervisor’s comments in her 1998 evaluation indicate. Moreover, there has apparently been
little improvement since the period at issue here. Indeed, Mr. Spezzaferro, in his trial testimony,
commented that respondent’s attendance record was “horrible,” to the point that he characterized
her as “a part-time” worker.
       Significantly, respondent gave no compelling reasons for her extensive lateness, and
disturbingly suggested it was often willful because she was not happy working at the Rider
Center in the Bronx. She equivocated as to whether her diabetic condition affected her ability to
arrive on time. Moreover, she provided no medical documentation to show how it might have
had such impact, and she admittedly never asked the agency for an accommodation.
       Equally disturbing was respondent’s misconduct in the form of making an unauthorized
and inappropriate computer entry in a widely accessed database about a client, in which she
referred to the client with profane and demeaning language.          Such misconduct cannot be
condoned by any agency employee, let alone by a supervisor. Nor was this the first time
respondent engaged in such inappropriate behavior in reference to clients.           In her prior
disciplinary matter, respondent was severely sanctioned for being confrontational toward clients
                                               -15-


and calling a client “ignorant,” and then as here, being insubordinate when her supervisor tried to
address her about it. Indeed, her supervisor’s comments in her 1998 evaluation, as noted above,
implied that she had acted similarly improperly even back then.
       What was clear from the trial record, from respondent’s testimony and prior history, and
from her conduct of this trial, in which she insisted on appearing pro se and only reluctantly
accepted help from union counsel despite being advised of the potential consequences, was that
respondent’s insight and judgment are seriously impaired and that she is not likely to change her
behavior, at least without outside help, in the future. Respondent was often argumentative and
combative at trial in a way that I was convinced reflected her workplace conduct and interactions
with supervisors.   Her prior and present insubordination charges further reflect a difficult
employee to manage.
       Moreover, while respondent essentially acknowledged her various alleged misconduct,
she saw nothing wrong with any of it. With regard to her lateness, she adopted a “let the buyer
beware” attitude, stating that she had warned the agency years ago that she had a “propensity for
lateness” and thus that they should not have been surprised (Tr. 157). She also saw nothing
wrong with referring to a client as “a shit” and “stupid” because, in her mind, they were accurate
descriptions of the client’s behavior. Indeed, she indicated that her computer entries were a test
of sorts, to let her know “where I stand with the City” (Tr. 150). Indeed some of respondent’s
comments, such as her stated desire to emigrate to the Netherlands (Tr. 136) and her belief that
her computer has been tapped and monitored for years (Tr. 152), as well as her written
submissions, including her attempts to appeal her last disciplinary matter to the U.S Supreme
Court and her letter to UN Secretary-General Kofi Annan about her legal troubles (ALJ Exs. 5
and 6, including attach.10), can only be characterized as bizarre. Respondent appeared to be in
need of a psychological evaluation and indeed may be suffering from some untreated disorder,
but when the prospect of such was raised with her, she immediately denied any such problems
and referred to herself as “the most sanest person you will ever meet in your life” (Tr. 162).
       In the circumstances, I see no viable penalty alternative to termination of respondent’s
employment. I have little doubt that another substantial suspension from work without pay
would have no positive impact on her work behavior but simply fuel her desire to challenge the
agency and her supervisors further. Respondent is still trying to challenge her last disciplinary
                                               -16-


penalty and continues to see herself as the victim of agency machinations, rather than
acknowledging any inappropriate conduct on her part.
       Respondent is a supervisor whose job involves daily contact with clients in what must
often be stressful or volatile circumstances. Furthermore, she must make significant decisions
about their continued eligibility for benefits.       It is a position carrying with it serious
responsibility and the need for the exercise of sound judgment.            Respondent has amply
demonstrated her inability to be trusted to carry out such duties appropriately, to be responsive to
supervision, or to conduct herself with proper restraint toward difficult clients. Indeed, she is a
potential liability to the City and the agency if she remains in her position. Nor is a demotion in
title a viable alternative, since it would only mean that she would become a caseworker whose
duties would involve continued extensive client contact.
       Absent acknowledgement from respondent that she needs help and proof that she has
actively sought it, in which circumstances the agency might consider entering into some sort of
voluntary settlement agreement with her that would allow her to retain her job under strict
conditions, I must recommend that her employment relationship with petitioner be severed.
       Accordingly, I recommend that respondent be terminated from her position with the
agency.


                                                             Raymond Kramer
                                                             Administrative Law Judge
May 10, 2005

SUBMITTED TO:

VERNA EGGLESTON
Commissioner

APPEARANCES:

CATHERINE A. KENDRICK, ESQ.
Attorney for Petitioner

SIMONE SMALL
Pro Se

JILL MENDELBERG, ESQ.
Assisting Respondent

				
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