Triborough Bridge & Tunnel Auth. v. Louisa
OATH Index No. 266/14 (Jan. 15, 2014), adopted, Pres. Dec. (Jan. 30, 2014)
Petitioner demonstrated that respondent engaged in several acts of
dangerous, threatening, and/or discourteous and insubordinate
behavior and made false statements about his conduct. ALJ
recommended that respondent’s employment be terminated.
______________________________________________________
NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
TRIBOROUGH BRIDGE and TUNNEL AUTHORITY
Petitioner
- against STEVEN LOUISA
Respondent
______________________________________________________
REPORT AND RECOMMENDATION
ALESSANDRA F. ZORGNIOTTI, Administrative Law Judge
Petitioner, the Triborough Bridge and Tunnel Authority (“TBTA”) brought this
proceeding pursuant to section 75 of the Civil Service Law. Respondent Steven Louisa, a Bridge
and Tunnel Maintainer (“maintainer”) is charged with several acts of dangerous, threatening,
and/or discourteous and insubordinate behavior. The charges include: (1) tailgating a passenger
vehicle with a flatbed truck, tossing a water bottle into that vehicle, cursing at the driver, and
making false statements about the incident; (2) intentionally causing a tow truck to make contact
with a co-worker’s body, making false statements about the incident, and subsequently
threatening and harassing the co-worker; (3) cursing at and dropping a radio on a supervisor’s
desk; and (4) insubordination and discourtesy to a supervisor (ALJ Ex. 1).
A hearing was conducted on October 30, November 8 and 15, and December 17, 2013.
Petitioner presented five TBTA witnesses, a civilian complainant, and extensive documentary
evidence including video footage. Respondent testified on his own behalf and presented the
testimony of a co-worker and his union vice president.
Respondent denied some of the
allegations, minimized the seriousness of others, and argued that termination from employment
is an excessive penalty.
-2In a disciplinary proceeding petitioner “has the burden of proving its case by a fair
preponderance of the credible 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 08-33-A (May 30, 2008). For
the reasons below, petitioner proved most of the charges.
Given the seriousness of the
misconduct, respondent should be terminated from his employment.
ANALYSIS
Respondent is employed by the TBTA as a maintainer at the Verrazano Narrows Bridge
(“bridge”). Respondent works out of a maintenance building located near the bridge’s toll plaza.
His duties include driving various-sized wreckers (tow trucks) and assisting disabled vehicles on
the bridge. Mr. Fortunato is the maintenance superintendent and is respondent’s supervisor.
April 9 and 24, 2013 charges involving a passenger vehicle
Petitioner alleges that on April 9, 2013, respondent: drove wrecker 819 too close to a
passenger vehicle; cursed at the driver over a loudspeaker; and threw a water bottle into the
vehicle. Petitioner also alleges that on April 24, respondent made false statements about the
incident. These charges should be sustained.
Wreckers are yellow and bear the TBTA logo.
They have two-way radios to
communicate with the facility and other drivers as well as a separate loudspeaker to
communicate with people outside the truck (Tr. 35-40). Several wreckers were operational on
April 9: 712, 713, and 714 which are medium duty trucks with a boom to tow disabled vehicles;
and 819 which is a large flatbed truck that carries vehicles (Tr. 30). At all times relevant, the onduty maintainers were respondent, Mr. LeBron, and Mr. Bonamico. Lebron was the relief driver
for respondent, who takes his meal between 10:00 and 11:00 a.m., and for Bonamico, who takes
his meal between 12:00 and 1:00 p.m. (Tr. 491).
At approximately 12:00 p.m. a call came in about a disabled vehicle near the toll plaza.
Respondent and LeBron cleared the car and brought it to 92nd Street. LeBron drove wrecker 712
and respondent drove 819. While they were at 92nd Street a call came in at 12:53 p.m. to clear a
disabled vehicle from the middle lane of the eastbound upper roadway on the bridge. At
approximately 1:00 p.m. LeBron and respondent drove to the disabled vehicle via the westbound
lane.
Mr. LeBron, who was in the medium wrecker, used a cutout on the bridge span and
-3reached the disabled vehicle first. Because respondent was in the flatbed wrecker, he had to
drive to the toll plaza and turn around so that he could get on the eastbound roadway (Lebron:
Tr. 494-512; Pet. Exs. 3, 4, 7, 9).
Ms. Isola testified that on April 9, 2013, at approximately 1:05 p.m., she was crossing the
bridge in her Nissan Sentra with her four and six year old niece and nephew in the back seat.
Ms. Isola was in the left lane of the eastbound upper roadway when traffic started to slow. Her
window was open. A truck pulled up behind close to her rear bumper. The driver of the truck
was honking his horn and she heard him say, “That’s right, get out of my way” (Tr. 110). Ms.
Isola testified that she felt nervous and annoyed. Even though she did not recognize the vehicle,
she eventually moved to the center lane thinking it could be an emergency. A yellow flatbed
truck with a TBTA logo started to pass her and she heard the driver say over a loudspeaker,
“fucking whore” (Tr. 113). Ms. Isola stated that she was angry and cursed back at the driver.
After that an almost empty plastic Poland Spring water bottle flew into her lap from the direction
of the truck. The truck passed her and she moved back into the left lane and passed two TBTA
trucks on the roadway (Tr. 109-15).
Ms. Isola reviewed video footage of the upper roadway at 1:02 p.m. (Pet. Ex. 9) and
identified her vehicle and the TBTA flatbed truck. The video does not show the alleged incident
but depicts the two vehicles seconds later. Specifically, the video shows wrecker 819 in the left
lane and Ms. Isola’s car two lengths behind moving from the middle to the left lane.
Ms. Isola testified that when she got home she searched for the TBTA’s phone number.
She spoke to Sergeant Patrillo and reported the incident (Tr. 116-18, 377; Pet. Ex. 1). The next
day Ms. Isola met with Investigators Cummins and Vasquez and repeated the story. They took
photos of her car and prepared a report (Tr. 118-20, 376-77, 382; Pet. Exs. 8, 23).
The TBTA opened an investigation (Tr. 376).
Investigators collected documentary
evidence including logs relating to the disabled vehicle calls and the maintainers’ daily tour
reports (Pet. Exs. 2, 3, 4, 5, 6). Respondent and Bonamico listed on their reports that they were
assigned wrecker 714; LeBron made no notation about his vehicle. According to their reports,
LeBron and respondent handled the two disabled vehicle calls (Pet. Exs. 3, 4, 5).
Investigators also reviewed an audio recording of the dispatcher’s conversation for the
second call at 12:53 p.m.
The recording has a maintainer stating, “Go for 819” and the
dispatcher responding, “Steve, upper, off roadway 2, there is a possible [inaudible] black
-4infinity” (Pet. Exs. 10, 24).
Mr. Fortunato testified that he recognized the voices on the
recording and that respondent was the maintainer who stated, “Go for 819” (Tr. 223-27).
Finally, video footage taken from various angles of the maintenance building, the
adjacent parking lot and roads, as well as the bridge and toll plaza were reviewed (Pet. Exs. 7, 9).
One video shows respondent picking up the keys for 819 at approximately 12:10 p.m. (Pet5. Ex.
7; Tr. 187-90). Other footage shows 714 and 819 leaving the parking lot and responding to the
disabled vehicles. The wrecker drivers are not identifiable in the videos (Pet. Ex. 9).
On April 24, 2013, respondent was interviewed by Investigator Cummins in the presence
of counsel and the union vice president. Respondent initially stated that he drove more than one
wrecker on April 9 but also stated that he drove only 714 and had no recollection of driving 819.
He claimed that if he had switched vehicles he would not have documented it in his tour report
but later stated that he would have made such a notation. He admitted that his record keeping
was poor. Even though respondent documented that he responded to a disabled vehicle in the
eastbound upper roadway at 12:50 p.m., he had no recollection of an incident with a passenger
vehicle.
Respondent denied tailgating a passenger vehicle and denied making derogatory
comments or throwing a water bottle into the vehicle (Pet. Ex. 28; Tr. 414-18).
On May 2, 2014, Cummins prepared a memorandum, finding that because there was no
video footage of the actual incident to confirm Ms. Isola’s allegations, the case should be closed
as unsubstantiated (Pet. Ex. 29; Tr. 418-19). Cummins’s superiors disagreed and referred the
matter for disciplinary action (Tr. 426-27, 430-31).
Because respondent steadfastly maintained before and during petitioner’s case that he
was not the driver of 819 during the alleged incident, much of petitioner’s proof focused on
witnesses reviewing the maintainers’ tour reports, the logs, the video footage, and the dispatch
recording to prove that respondent was the driver in question. When respondent testified, he
asserted that he drove several vehicles that day but ultimately admitted driving 819 during the
1:00 p.m. call (Tr. 641, 645, 682).
Respondent testified that after he turned 819 around at the toll plaza, he drove towards
the disabled vehicle on the eastbound upper roadway. Traffic was very heavy. As was his
practice, he used the loudspeaker to tell vehicles in front of him to “please move to the right” and
that nothing else happened (Tr. 642-43). Respondent denied tailgating Ms. Isola or saying
“fucking whore.” Respondent also denied throwing a bottle into Ms. Isola’s vehicle and asserted
-5that such a thing would “be almost impossible” given the windy conditions on the bridge and the
difference in speeds and heights of the two vehicles (Tr. 644-45).
Respondent also testified that during the interview on April 24, he denied driving 819
because he was unsure since “we didn’t keep proper documents on that as far as when we switch
vehicles” (Tr. 645). Respondent asserted that when he saw the video of him picking up the keys
for 819 he was sure he was in the flatbed wrecker that day (Tr. 646).
Since respondent admitted being the driver of 819, there is no need to determine this
question. Whether respondent engaged in misconduct towards Ms. Isola rests on a determination
of witness credibility because Ms. Isola and respondent were the only witnesses and gave
different versions of the events. To determine credibility, this tribunal has looked to witness
demeanor, consistency of a witness’ testimony, supporting or corroborating evidence, witness
motivation, bias or prejudice, and the degree to which a witness’ testimony comports with
common sense and human experience in determining credibility. Dep’t of Sanitation v. Menzies,
OATH Index No. 678/98 at 2-3 (Feb. 5, 1998), aff’d, NYC Civ. Serv. Comm’n Item No. CD 98101-A (Sept. 9, 1998). For the reasons below, Ms. Isola was more credible than respondent.
First, Ms. Isola had no apparent motive to lie. There was no evidence that she knew
respondent prior to April 9, 2013, or that she has a stake in the outcome of this proceeding. To
the contrary, Ms. Isola had to take time out of her personal schedule to make the complaint, meet
with investigators, and testify at the hearing. By coming forward, she opened herself to pre-trial
investigation by the parties and was subjected to vigorous cross-examination at the hearing.
Second, Ms. Isola provided the same consistent account to Sergeant Patrillo, Investigator
Cummins, and during her testimony at the hearing. Finally, portions of Ms. Isola’s testimony
were corroborated by other evidence in the record. Video evidence shows wrecker 819 after it
passed Ms. Isola’s vehicle at the time, place, and manner described by her. Also, consistent with
her testimony were that traffic had slowed because there was a disabled vehicle ahead of her, two
TBTA wreckers responded, and 819 was a yellow flatbed truck with a TBTA logo.
Ms. Isola’s failure to produce the water bottle did not diminish her credibility. Her
explanation that she did not want the bottle in her car and never thought that it could one day be
evidence for a trial made sense (Tr. 138-39). The fact that she incorrectly described the driver as
a male with dark hair instead of white hair (Tr. 142-43) was also of no moment. This was a brief
encounter on a crowded roadway and respondent, who admitted to being the driver, was sitting
-6much higher in his vehicle than Ms. Isola. Similarly, petitioner’s failure to interview the children
who were in the back seat was not an issue because they were four and six years old.
On the other hand, the testimony of respondent was not credible. Respondent’s initial
denial about being the driver of 819 and his vigorous challenge to petitioner’s evidence prior to
taking the stand was noteworthy. Not only were his interview and hearing versions vague and
inconsistent, his testimony that during the interview he was unsure whether he drove 819 was
incredible. Respondent had a motive to lie to avoid a finding of misconduct. It seems likely that
since his tour report listed vehicle 714, respondent dissembled the truth in the hope that there
would be no other evidence linking him to 819. When faced with overwhelming proof that
included a recording of respondent telling the dispatcher who called him Steve, “Go for 819” and
a video of him taking the keys for 819, respondent had little choice but to admit being the driver
in question. Under the circumstances there is no reason to accept respondent’s assertion that Ms.
Isola was lying (Tr. 683). Dep’t of Education v. Brust, OATH Index No. 2280/07 at 10 (Sept.
29, 2008), adopted, Chancellor’s Dec. (Oct. 22, 2008) (if a witness is found to have been false in
one instance, trier-of-fact may reject all of the witness’s testimony); see also People v. Barrett,
14 A.D.3d 369, 369 (1st Dep’t 2005) (the maxim falsus in uno falsus in omnibus (false in one
thing, false in everything) may be applied to witness testimony).
It is notable that respondent corroborated part of Ms. Isola’s testimony when he admitted
using the loudspeaker to tell the vehicle in front of him to move right. Given that respondent’s
response time was delayed because he had to turn around at the toll plaza and there was traffic
from the disabled vehicle, it is likely that he tailgated Ms. Isola and cursed at her when she did
not immediately move out of his way. It also is more likely than not that when Ms. Isola cursed
back respondent reacted by throwing a water bottle towards her open window. There was no
showing that the chances of a plastic bottle entering her vehicle were impossible. Indeed the
vehicles were moving relatively slowly, they were parallel to each other, and respondent was
sitting above Ms. Isola. The fact that Ms. Isola did not actually see the driver throw the bottle
was not fatal to her claim. There is no other logical place from which it could have come. Based
on the preponderance of the credible evidence, the charges that respondent tailgated a passenger
vehicle, cursed at the driver over the loudspeaker, and threw a bottle into that vehicle should be
sustained.
-7Petitioner also alleges that respondent caused unreasonable interference with a public
highway, engaged in violent and threatening behavior, made unreasonable noise, used obscene
language in a public place, and endangered the welfare of a child. These charges should be
sustained. To the extent the charges are duplicative they will be treated as one for purposes of
penalty. Dep’t of Buildings v. Lamitola, OATH Index No. 871/12 at 3 (Mar. 5, 2012).
Public servants can be disciplined for making false or misleading reports or statements.
This includes fundamental omissions which could not have been inadvertent. See Dep’t of
Correction v. Cooper, OATH Index No. 2585/08 & 2586/08 at 4 (Nov. 12, 2008) (finding the
intentional omission of a material fact in a report to be false or misleading). In reviewing false
statement claims, the first consideration is whether the underlying incident in question did in fact
occur. The second is whether a respondent made material deviations from the actual incident or
intentionally misrepresented the actual events in question. See Dep’t of Correction v. Rodriguez,
OATH Index No. 277/06 at 11 (Mar. 29, 2006).
Respondent was the driver of wrecker 819 and the record supports a finding that he
engaged in misconduct as charged. Thus, the first prong has been met. At the investigative
interview respondent claimed that he was not the driver of 819 and denied tailgating a passenger
vehicle, cursing at the driver over the loudspeaker, and throwing a bottle into that vehicle.
These statements were false and must be considered material deviations from the actual incident
or intentional misrepresentations of the events in question.
April 25, April 30, and May 21, 2013 incidents involving Mr. LeBron
Petitioner alleges that: on April 25, respondent intentionally caused a wrecker to make
contact with Mr. LeBron’s body with the intent to intimidate, threaten and harass him; on May
21, respondent made false statements about the incident; and on April 30, respondent threatened
and verbally harassed LeBron. These charges should be sustained in part and dismissed in part.
LeBron testified that on April 25, at 10:00 a.m., he was standing in the parking lot
speaking to Bonamico who was sitting in a medium wrecker. Several minutes later respondent
drove up in the new medium wrecker, 712. Respondent approached LeBron with the wrecker
and hit his leg. LeBron told Bonamico that respondent “must be out of his mind.” LeBron told
respondent to stop but respondent raced the engine and moved the truck forward. Eventually,
respondent backed up and parked the truck (Tr. 512-15).
-8LeBron did not move because he was fed up with respondent’s bullying (Tr. 520). He
did not think this was funny and took the matter very seriously. LeBron was concerned that
respondent’s foot could have slipped and hit the gas instead of the brake. LeBron explained that
712 was purchased on April 12 and that unlike the old wreckers, 712 had the same size brake and
gas pedals. When LeBron first drove 712, he hit the gas instead of the break. Moreover, the
hood on 712 was over five feet high making it hard to see someone below (Tr. 515-19).
Mr. Bonamico testified for respondent and stated that respondent approached LeBron
slowly, almost like he wanted to park in the spot that was open, and that there was a standoff
between them. LeBron was agitated but did not appear to be in any pain (Tr. 600-03, 615).
Respondent testified that when he pulled up, LeBron was standing in the parking spot.
Respondent was going on a break and needed to speak to Bonamico. LeBron said that he was
not going to move and respondent inched up on LeBron slowly. Respondent stated that he kept
his foot on the brake and eased off to move the truck forward (Tr. 687). When LeBron said that
he was not going to move, respondent backed up, pulled up beside LeBron, and spoke to
Bonamico. LeBron did not say anything but looked angry (Tr. 652-53). Respondent denied
touching LeBron with the truck (Tr. 687-88). He testified that his conduct “was stupid joking
around, it was uncalled for, it should have never happened” (Tr. 649).
Video footage (Pet. Ex. 12) shows two empty parking spaces. Next to the spaces is a
backed-in wrecker with the driver’s side door open. LeBron is standing at the edge of the empty
space next to the open door and is speaking to Bonamico who is in the wrecker. A new wrecker
driven by respondent pulls up quickly to the empty space where LeBron is standing and stops in
front of him. LeBron does not move and respondent slowly moves the wrecker up to the left side
of LeBron’s body. LeBron’s body sways slightly but he does not move. Eventually respondent
backs up and parks in the other empty space.
Immediately following the incident, LeBron documented it (Pet. Ex. 11). LeBron called
the union vice president, Mr. Mattia, about the incident (Tr. 624, 626). LeBron was “angry”
(Mattia: Tr. 626, 632). LeBron testified that he was very upset and asked Mattia what to do.
Mattia told him that he would call respondent (Tr. 522-23).
Mr. Mattia testified that he left a voicemail for respondent and “beat him up on the
message.” Mattia told respondent that he needed to “tell [LeBron] you’re sorry that you were
playing around.”
Mattia gave respondent “tough love” and said that he was under “the
-9limelight” because of the Isola complaint (Tr. 633, 635).
Respondent testified that he got
Mattia’s message “to make this go away” (Tr. 654).
At 1:00 p.m. respondent apologized by saying that the only reason he was doing so was
because of the Isola complaint. LeBron did not think that the apology was sincere (LeBron: Tr.
523-24; Mattia: Tr. 625-26). Respondent testified that he apologized to LeBron and said that his
actions were “stupid” and “uncalled for.” They shook hands and respondent thought it was
finished (Tr. 654). LeBron testified that he did not report the incident to Mr. Fortunato because
he did not want respondent to lose his job (Tr. 525).
LeBron testified that on April 30 at 10:00 a.m. he checked the log book for overtime. He
saw that respondent, who was in charge of assigning overtime, had taken overtime that should
have been given to another maintainer. LeBron questioned respondent who tried to downplay it
saying, “I don’t know” (Tr. 527). LeBron testified he told respondent that he was fed up and did
not want to talk to him about anything other than work (Tr. 528).
At 11:00 a.m. LeBron parked his truck and respondent was waiting to use it. LeBron got
out, and walked towards the maintenance building. Respondent asked LeBron if he knew what
was going on and LeBron ignored him and continued to walk away. Respondent followed
LeBron and asked, “What the fuck is wrong with you?” Respondent pointed his finger in
LeBron’s face and told him, “go fuck yourself” (Tr. 525-26, 528). LeBron responded, “Go fuck
yourself” (Tr. 550).
Respondent testified that by April 30, he had stopped taking care of overtime and did not
know who had more overtime. Mr. Fortunato offered respondent overtime and he refused
because he did not want to cause any problems. Fortunato said he would take care of it. When
LeBron approached him, respondent told him not to take it out on him but to go to Fortunato.
Fortunato told LeBron to call the union and LeBron got upset with respondent. In the parking
lot, LeBron called respondent a “fucking liar” and told him to stay away. Respondent tried to go
towards him to explain but LeBron kept calling him a liar so respondent told him “fuck you” and
walked away (Tr. 655-57). Respondent denied following LeBron and claimed that he did not use
any profanity until the end of the conversation (Tr. 693-94).
Video footage (Pet. Ex. 33) shows LeBron parking a wrecker, exiting the vehicle, and
leaving the door open for respondent who walked up to the driver’s side door. LeBron walks
quickly away. Respondent calls to LeBron. LeBron turns slightly towards respondent and
- 10 continues walking. Respondent quickly follows LeBron and they speak by another wrecker.
Their interaction is obscured by the wrecker.
Immediately following this interaction, LeBron went to Fortunato to make a complaint
about this encounter as well as the incident on April 25. LeBron gave him the prior written
statement (Pet. Ex. 11) and advised that he was fed up with respondent’s bullying and could not
take it any longer (Fortunato: Tr. 231-35; LeBron: Tr. 530-31).
On April 30, 2013, Investigator Cummins interviewed LeBron who explained how
respondent pushed him with the wrecker (Cummins: Tr. 433; LeBron: Tr. 532; Pet. Exs. 31, 32).
LeBron also told Cummins about April 30 when respondent cursed and yelled at him (Cummins:
Tr. 436-37). Cummins interviewed Bonamico who stated that respondent drove the wrecker
close to LeBron until the bumper made contact with his leg and that LeBron stated, “Does this
guy think I am playing with him?” Bonamico did not think that respondent’s actions were
malicious (Pet. Ex. 34, 35).
On May 8, 2013, Cummins interviewed respondent in the presence of counsel and the
union vice president. Respondent stated that LeBron was standing in the spot that he wanted to
park in. LeBron refused to move and he backed out. Respondent denied touching LeBron with
the wrecker but admitted that he was laughing when he told LeBron to move and claimed that
they were kidding around. Respondent admitted that LeBron had asked him twice to stop, that
later LeBron confronted him and complained that respondent had struck him, and that respondent
apologized (Pet. Exs. 36, 37; Tr. 446-47)
Respondent also acknowledged that: he was the overtime chairman; he worked more
overtime than other drivers; and on April 30, LeBron complained that respondent had worked
overtime on April 28. Later in the parking lot LeBron informed respondent that he did not want
to have anything to do with him and called him a liar. Respondent admitted following LeBron
and that he replied “fuck you” when LeBron called him a “fucking liar” (Pet. Exs. 36, 37).
The record supports a finding that respondent intentionally caused a wrecker to make
contact with LeBron’s body with the intent to intimidate, threaten and harass him. Respondent’s
assertion that he never touched LeBron was contradicted by the credible testimony of LeBron as
corroborated by the video and Bonamico.
Incredibly, respondent held LeBron partially
responsible for the incident because LeBron did not move out of the way (Tr. 689-90).
Respondent’s assertion that he needed to speak to Bonamico does not explain why respondent
- 11 could not have parked in the adjacent spot. It seems more likely than not that respondent
laughed and raced the engine to intimidate LeBron into moving. Respondent’s contention that
he was merely joking was undermined by his being told by the union to apologize and LeBron’s
credible testimony that the apology was insincere. Respondent’s attempts to characterize his
relationship with LeBron as friendly co-workers who often eat lunch together (Tr. 650) was
unpersuasive. LeBron credibly denied this assertion. LeBron is the meal relief for respondent
who takes his lunch at 10:00 a.m. while LeBron takes his meal at 3:00 p.m. (Tr. 491, 596, 611).
The record also support a finding that respondent gave false statements about this
incident during the investigative interview.
Respondent denied touching LeBron with the
wrecker and attempted to characterize the incident as horseplay. These statements were false
and constitute material deviations from the actual incident.
Finally, the record supports a finding that respondent verbally harassed LeBron on April
30, but not that he threatened him. I credit LeBron’s testimony that he ignored respondent and
that respondent followed him and asked, “What the fuck is wrong with you?” Although the
video did not capture it, I credit LeBron that respondent pointed his finger and told LeBron to
“go fuck yourself” before he responded in kind. Respondent admitted cursing at LeBron.
Respondent’s suggestion that LeBron provoked this verbal altercation was inconsistent with
Lebron’s testimony and the video showing LeBron trying to avoid respondent. I further credit
LeBron’s testimony that he did not report the wrecker incident because he did not want
respondent to lose his job but that this bullying was the proverbial straw that broke the camel’s
back. Notably, respondent’s testimony about the overtime issue that precipitated the incident
was vague and inconsistent with his interview statement.
Since there is no evidence that
respondent threatened LeBron, this portion of the charge should be dismissed.
May 1, 2013, incident with a supervisor
Petitioner alleges that on May 1, 2013, respondent: cursed at Mr. McCann; refused an
order to sign a sheet that he was being served with charges; and cursed at and dropped a radio on
Mr. Fortunato’s desk. These charges should be sustained in part and dismissed in part.
Fortunato testified that on May 1, respondent reported to his office to be served with
charges for misconduct and be suspended. Respondent wanted to call his union and was told that
he could not.
He was told to sign for the charges and be escorted out of the building.
- 12 Respondent refused to sign (Pet. Ex. 16) and said, “This is fucking bullshit.” When asked to turn
in his keys and radio, respondent dropped the radio on the desk (Tr. 257-60).
Respondent testified that when he was advised by McCann about the 30-day suspension
without pay, he asked why. McCann said he did not know and respondent replied, “This is
bullshit.” McCann asked him to sign the sheet and respondent asked to speak to his union. He
was denied this request and refused to sign as was his right. Respondent acknowledged that was
asked to hand over his keys and his radio. He asserted that when he reached for his radio, the
microphone that was clipped to his shirt inadvertently fell and hit the table. He handed Fortunato
the radio; he did not drop it. Respondent also denied cursing at Fortunato (Tr. 664-65).
This tribunal has held that not every disagreement with a supervisor amounts to
insubordination or misconduct. Dep’t of Citywide Admin. Services v. Phillip, OATH Index No.
114/10 at 7 (Sep. 10, 2009). An employee may disagree with a supervisor as long as the
disagreement remains within the bounds of decorum and discretion. Human Resources Admin. v.
Bichai, OATH Index No. 211/90 (Nov. 21, 1989), aff’d, N.Y. Civ. Serv. Comm’n Item No. CD
90-54 (June 15, 1990).
Here, respondent admitted that he said, “This is bullshit” to McCann and this charge
should be sustained. However, there was no testimony that when respondent handed Fortunato
the radio, he said, “Here’s your fucking radio” as charged. Thus, the charge that respondent
cursed at Fortunato should be dismissed.
I credit Fortunato’s testimony that respondent dropped the radio on his desk in an
inappropriate manner. It was undisputed respondent was angry that he was not allowed to call
his union and that he was being suspended without an explanation. Respondent’s assertion that
the radio microphone inadvertently fell on Fortunato’s desk was not credible.
To prevail on a charge of insubordination, petitioner must show by a preponderance of
the evidence that: (1) a supervisor gave an unambiguous order; and (2) the order was willfully
refused. 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 06-122-SA (Nov. 14, 2006). The order need not be in the
form of a command, as long as it is a clear request. Dep’t of Environmental Protection v.
Schnell, OATH Index No. 2262/00 at 7-8 (Oct. 25, 2000). The refusal need not be announced; it
may consist of a deliberate, passive failure to comply.
See Health & Hospitals Corp.
(Correctional Health Services) v. LaSane, OATH Index No. 1165/02 at 7 (Aug. 8, 2002).
- 13 Once a directive has been given, an employee must abide by the principle of “obey now,
grieve later.” This means that an employee is required to obey the order when it is given and
subsequently challenge it through formal grievance procedures if there are any substantive or
procedural objections. See Ferreri v. New York State Thruway Auth., 62 N.Y.2d 855 (1984).
There are few exceptions to the “obey now, grieve later” principle, including orders: (1) that are
clearly in excess of the agency’s authority under the collective bargaining agreement; (2) that are
unlawful; and (3) that would threaten the health or safety of any person if followed. Health &
Hospitals Corp. (Queens Health Network) v. Smith, OATH Index No. 2019/08 at 4 (Oct. 17,
2008).
The burden of proof is on respondent to demonstrate, by a preponderance of the
evidence, that an exception to the “obey now, grieve later” principle exempts him from
compliance with an agency order. Health & Hospitals Corp. (Coler-Goldwater Hospital) v.
Hinkson, OATH Index No. 163/04 at 4 (Nov. 21, 2003).
It was undisputed that respondent was ordered to sign a sheet acknowledging he was
served with charges and that he refused to do so. Respondent failed to show that this order was
unlawful or in excess of his supervisor’s authority. Respondent was asked to acknowledge
receipt of charges, not to admit to them. This charge should be sustained.
February 13, 2013, incident with a supervisor
Petitioner alleges that respondent: was unprepared and/or failed to promptly respond to
radio calls for a wrecker; was off his post twice; refused an order; and was discourteous to a
supervisor.
Petitioner’s motion to amend the charges to allege this incident occurred on February 13
instead of February 20 is granted. See 48 RCNY § 1-25 (Lexis 2013); see also Dep’t of
Correction v. Sostre-Valentin, OATH Index No. 1923/99 (Sept. 22, 1999), aff’d, NYC Civ. Serv.
Comm’n Item No. CD 00-94-SA (Nov. 14, 2000) (appropriate to conform charges to proof since
respondent was not prejudiced by the inaccuracy and was on notice of the incident).
Respondent’s regular work hours were from 6:00 a.m. to 2:00 p.m. On Wednesday,
February 13, 2013, at approximately 6:29 a.m., a call came in for an eastbound disabled five-axle
tractor trailer on the bridge. Captain Eckert testified that a disabled truck at rush hour can pose a
safety hazard to responders, can back up traffic, and that time is of the essence (Tr. 568-69).
- 14 The dispatcher and Sergeant Cupo called several times for a wrecker and no one
responded. Cupo and Eckert searched the maintenance building and found respondent in the
locker room. Respondent was supposed to be on patrol (Cupo: Tr. 340; Eckert: Tr. 565-68).
Eckert asked respondent what he was doing and said they had been calling him. Respondent
stated that he was changing his shoes and did not hear the call because the battery on his radio
was dead. When Eckert told respondent to get moving, respondent stated that he needed to go to
the desk to get a new battery. To save time, Cupo offered respondent the battery on his radio.
Respondent waved his hand, refused to take it, and stated, “Jesus Christ, this is fucking bullshit.”
Respondent went to the desk to get another battery. Eckert escorted respondent out the back
door and asked which vehicle he was taking to make sure that respondent followed through as
quickly as possible (Cupo: Tr. 341-43; Eckert: Tr. 568-71).
While Cupo and Eckert were briefing Lieutenant Cowan about the disabled truck,
respondent entered the front door and went to the locker room. Cupo and Eckert were shocked.
They went to the locker room and respondent told Eckert that he had been rushed out and had
forgotten his bag and that another driver advised him he was not needed on the bridge. When
Eckert told respondent to get in his wrecker and remain on patrol except for his meal break,
respondent spoke in a sarcastic tone and stated, he was “being punished for being a bad boy.”
When Eckert stated that this was normal procedure, respondent stated, “What else is new? What
do you think, I was sneaking in here?” (Cupo: Tr. 343-47; Eckert: Tr. 571-74, 576-78). Cupo,
Eckert, and Cowan wrote statements about the incident (Pet. Exs. 18, 20, 21).
Respondent testified that when he reported to work on February 13, his batteries were
dead. He had just worked a 16-hour tour on Sunday because of a massive snow storm and he
had Monday off. As a result, he did not hear the radio call (Tr. 658-59). Respondent testified
that he heard the call over “the box” in the locker room. As he was on his way to get a new
battery, Eckert came into the locker room with Cupo and asked what he was doing. Respondent
tried to explain that he was changing his wet shoes but Eckert kept talking over him. Eckert
wanted respondent to get going but he could not leave because they were questioning him.
When Cupo offered him a battery, respondent said he had to go to his vehicle and that he had
spare batteries there. Respondent went downstairs and got into his vehicle. As he was driving
around the building, he got a call that he was no longer needed on the bridge (Tr. 559-60).
- 15 Respondent stated that he went back to the locker room because he had forgotten his bag
that had his gear. Cupo and Eckert asked why he was there. He told them that the call had been
cancelled and that he had forgotten his bag. They started to argue with him and Eckert told him
to be on constant patrol which was unusual because that only happens during inclement weather.
Respondent stated, “Oh, you’re punishing us now because you caught me in the building” and
“may” have also said, “This is fucking bullshit.” Respondent testified that he tried to explain
that he was not sneaking into the building but that Eckert kept talking over him. Respondent
denied refusing an order to respond to a call (Tr. 661-62).
Respondent testified that as he was leaving the locker room Eckert told him that he
needed to be on constant patrol. Respondent admitted that he asked, “Is this punishment for
being a bad boy?” He later realized this was insubordinate (Tr. 663-64).
Respondent admitted that he cursed at Eckert and that his comments were insubordinate.
The charges that respondent was discourteous to a supervisor should be sustained.
Respondent also admitted that he heard the call for a wrecker over the call box and that
he did not respond. His explanation, that his radio battery was dead because he worked the
previous Sunday, made little sense because this incident occurred on a Wednesday. Moreover,
respondent had been at work for almost a half hour before the radio call and had ample time to
get a fresh battery. The charge that respondent was unprepared for and failed to promptly
respond to radio calls for a wrecker which he heard over the call box should be sustained.
The record also supports a finding that respondent was off his post in that he should have
been on patrol at the time the radio call came in and should not have returned to the building
without obtaining supervisory approval. I credit Eckert’s testimony that respondent was required
to be on patrol and not in the locker room a half hour after his start time. This was rush hour and
respondent had been previously given a memo to remain on patrol during rush hours unless
otherwise directed (Pet. Ex. 40).
Finally, the record supports a finding that respondent failed to immediately comply with
an order to get in his wrecker and respond to the disabled truck. I credit the testimony of Eckert
and Cupo that respondent was argumentative and unwilling to expedite his departure by
accepting the battery offered by Cupo. Respondent’s testimony that he had a spare battery in his
truck was inconsistent with Cupo’s testimony that respondent first went to the storeroom to get a
battery and with respondent’s assertion during cross-examination of petitioner’s witnesses that
- 16 the storeroom was in the vicinity of the locker room (Tr. 361-62, 585). Respondent’s claim that
Eckert was keeping him from responding to the disabled vehicle (Tr. 675) was incredible.
However, to the extent petitioner charged respondent with not following through on the order to
respond to the disabled vehicle, it was undisputed that respondent subsequently received a call
that he was not needed on the bridge. This portion of the charge should be dismissed.
FINDINGS AND CONCLUSIONS
1. Petitioner demonstrated that on February 20, 2013, respondent
was discourteous to a supervisor.
2. Petitioner demonstrated that on February 20, 2013, respondent
was off his post on two occasions.
3. Petitioner demonstrated that on February 20, 2013, respondent
failed to immediately follow a supervisor’s order but failed to
show that he failed to follow through on the order.
4. Petitioner demonstrated that on April 9, 2013, respondent
drove too close to a passenger vehicle; threw a bottle into that
vehicle; and cursed at the driver.
5. Petitioner demonstrated that on April 24, 2013, respondent
gave false statements about the April 9, 2013 incident.
6. Petitioner demonstrated that on April 25, 2013, respondent
intentionally caused a wrecker to make contact with a coworker with the intent to intimidate, threaten and harass him.
7. Petitioner demonstrated that on April 30, 2013, respondent
verbally harassed a co-worker but not that he threatened him.
8. Petitioner demonstrated that on May 1, 2013, respondent
cursed at one supervisor but not a second supervisor.
9. Petitioner demonstrated that on May 1, 2013, respondent
dropped a radio inappropriately on a supervisor’s desk.
10. Petitioner demonstrated that on May 21, 2013, respondent
gave false statements about the April 25, 2013 incident.
- 17 RECOMMENDATION
Upon making these findings, I obtained and reviewed an abstract of respondent’s work
history for purposes of recommending an appropriate penalty. Respondent was employed by the
TBTA in 2002. He has no formal disciplinary history. In 2003 respondent received a letter of
appreciation for his perfect attendance that year.
Respondent has been found guilty of twice engaging in dangerous behavior with a tow
truck and of making false statements.
Respondent has also been found guilty of being
discourteous to supervisors, harassing a co-worker, insubordination, and being off his post.
Petitioner seeks respondent’s termination from employment. This request is reasonable.
The most serious charge involves respondent’s conduct towards a member of the public.
Civil servants have an obligation to be courteous and professional in their interactions with the
public. See Dep’t of Finance v. Zindel, OATH Index Nos. 168/06 & 223/06 (Oct. 3, 2006), aff’d,
NYC Civ. Serv. Comm’n Item No. CD 07-63-SA (June 12, 2007). This tribunal has assessed
penalties in the range of five-day suspensions to termination for improper actions with members
of the public, depending on the severity of the misconduct. See e.g. Dep’t of Education v. Smith,
OATH Index No. 2546/09 (Aug. 6, 2009), modified, Chancellor’s Dec. (Nov. 16, 2009)
(termination for employee who was insubordinate and disrespectful toward two supervisors and
was disrespectful toward a member of the public); Triborough Bridge & Tunnel Auth. v. Bell,
OATH Index No. 1635/08 (June 3, 2008), adopted, Acting President’s Dec. (July 11, 2008)
(termination for officer who was discourteous and unjustifiably refused to take a customer’s toll,
which led to officers drawing their weapons on the customer); Dep’t of Finance v. Anderson,
OATH Index No. 1485/08 (May 6, 2008) (45-day suspension for auditor for leaving a rude and
discourteous voicemail for a taxpayer); Comm’n on Human Rights v. McCormick, OATH Index
No. 710/07 (Feb. 9, 2007), modified on penalty, Comm’n Dec. (March 7, 2007), aff’d, NYC Civ.
Serv. Comm’n Item No. CD 07-89-SA (Sept. 20, 2007) (10-day suspension for employee who
called a member of the public a “sick fuck”); Human Resources Admin. v. Rosier, OATH Index
No. 1951/04 (Mar. 31, 2005) (20-day suspension for employee who when asked by a client to
identify herself stated her name was “shit” and hung up the phone and who also made a taunting
phone call to a former supervisor); Triborough Bridge and Tunnel Auth. v. Forte, OATH Index
No. 232/04 (Jan. 27, 2004) (termination for officer who went to a member of the public’s home
after obtaining her address at a checkpoint stop and who upon learning she had a fiancé, stated,
- 18 “Well, I guess sex is out of the question”); Police Dep’t v. Beirne, OATH Index No. 506/03 (Jan.
14, 2003) (five-day suspension for officer who directed obscene gesture at member of the public
and then refused to identify himself when asked).
Here, respondent’s unprovoked verbal harassment of Ms. Isola was totally uncalled for
and unprofessional. Moreover, respondent’s tailgating a passenger vehicle on a crowded bridge
and aggressively honking his horn was unsafe and unnecessary. The most serious aspect of
respondent’s misconduct was throwing a plastic bottle into a passenger vehicle. This was a
dangerous and reckless act. Not only did respondent imperil the safety of the passengers in Ms.
Isola’s car, which included two young children, he endangered the safety of other motorists in
the area. This conduct is shocking and no doubt an embarrassment to the TBTA. Respondent’s
actions suggest such a lack of judgment that dismissal seems the only appropriate penalty.
Also serious is the confrontation involving respondent touching a co-worker with the
wrecker. The appropriate penalty for on-duty altercations vary from a five-day suspension to
termination. See, e.g., Dep’t of Consumer Affairs v. Wilson, OATH Index No. 1402/08 (May 2,
2008), modified on penalty, NYC Civ. Serv. Comm’n Item No. CD 09-11-M (Feb. 18, 2009)
(five-day suspension for inspector who engaged in verbal and physical altercation where brief
fight was provoked by supervisor and no injuries resulted); Dep’t of Sanitation v. Bacigalupo,
OATH Index No. 2091/07 (Jan. 25, 2008) (60-day suspension for employee who engaged in
mutual combat and punched the supervisor in the eye); Dep’t of Correction v. Mapp, OATH
Index No. 1305/05 (June 30, 2005), aff’d, NYC Civ. Serv. Comm’n Item No. CD 06-58-SA
(May 2, 2006) (30-day suspension where officer scuffled with co-worker, grabbed her hair, and
refused to let go, despite a captain’s order); Health & Hospitals Corp. (Seaview Hospital
Rehabilitation Ctr. & Home) v. Cantres, OATH Index No. 1142/03 (May 29, 2003), modified,
Chief Operating Officer’s Determination (July 1, 2003), aff’d sub. nom. Cantres v. NYC Health
& Hospitals Corp., 30 A.D.3d 164 (1st Dep’t 2006) (termination of an institutional aide, with a
prior disciplinary history, guilty of intimidating and threatening co-workers); Admin for
Children’s Services v. Thomas, OATH Index No. 1118/02 (Mar. 29, 2002), modified, Comm’r
Dec. (May 9, 2002) (30-day suspension for fighting, where employee had no prior disciplinary
history and did not strike first blow); Health and Hospitals Corp. (Coney Island Hospital) v.
Gelfand¸ OATH Index Nos. 1788-89/99 (July 27, 1999), modified, Director’s Dec. (Aug 6, 1999)
- 19 (two employees terminated for brawl that resulted in physical injuries, where both had been
warned about fighting and had previously committed misconduct).
Here, respondent drove a large tow truck up to and made contact with a co-worker’s
body.
This action was unprovoked and unnecessary.
While there were no injuries, the
consequences could have been dire. Clearly, respondent intended to intimidate a co-worker.
Respondent’s actions were reckless and further suggest that dismissal is the only logical penalty.
In addition, respondent committed acts of rude, harassing, and insubordinate behavior
and made false statements in his investigative interviews. Respondent’s versions of the events
involved more than mere omissions or minor modifications of the facts. Respondent lied about
his actions. Such dishonesty further calls into question respondent’s character and erodes the
trust between him and his employer.
Respondent has been employed by the TBTA for 11 years and has no prior disciplinary
record which ordinarily would militate against termination under the concept of progressive
discipline. Dep’t of Transportation v. Jackson, OATH Index No. 299/90, at 12 (Feb. 6, 1990)
(“it is a well-established principle in employment law that employees should have the benefit of
progressive discipline wherever appropriate, to ensure that they have the opportunity to be
apprised of the seriousness with which their employer views their misconduct and to give them a
chance to correct it.”). However, respondent’s reckless and unpredictable behavior renders him
unreliable and the TBTA has a right to a workforce upon which it can depend. The TBTA
should not be expected to risk that respondent will not bully other members of the public or his
co-workers to the detriment of their safety. Dep’t of Correction v. Andino, OATH Index Nos.
731/13 & 1000/13 at 27 (May 14, 2013) (respondent’s unpredictable behavior rendered him a
liability which justified termination from employment despite no prior disciplinary record).
Under the circumstances, termination from employment would not be disproportionate to
the sustained misconduct as to be shocking to one’s sense of fairness. See Pell v. Bd. of
Education, 34 N.Y.2d 222 (1974). Accordingly, I recommend that respondent be terminated
from his employment.
Alessandra F. Zorgniotti
Administrative Law Judge
January 15, 2014
- 20 -
SUBMITTED TO:
JAMES FERRARA
President
APPEARANCES:
EDUARDO MIYASHIRO, ESQ.
Attorney for Petitioner
FAUSTO E. ZAPATA, ESQ.
Attorney for Respondent
THE CITY OF NEW YORK
OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS
----------------------------------------------------------------------------x
In the Matter of
TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY,
Petitioner,
-against-
PRESIDENT’S
DECISION
STEVEN LOUISA,
Respondent.
----------------------------------------------------------------------------x
I received and reviewed the Report and Recommendation (OATH Index No. 266/l4)
dated January 15, 2014, issued by the Honorable Alessandra F. Zorgniotti, Administrative Law
Judge (“ALJ”) of the City of New York, Office of Administrative Trials and Hearings
(“OATH”), the transcript of the hearing held before the ALJ and the exhibits introduced at the
hearing. I have also reviewed the comments on the report submitted by Fausto E. Zapata, Jr.,
Esq., attorney for Maintainer (Level I) Steven Louisa (“Respondent”). In the Report and
Recommendation, the ALJ concluded the following:
1. On February 20, 2013, respondent was discourteous to a supervisor.
2. On February 20, 2013, respondent was off his post on two occasions.
3. On February 20, 2013, respondent failed to immediately follow a supervisor’s order.
4. On April 9, 2013, respondent drove too close to a passenger vehicle; threw a bottle into
that vehicle; and cursed at the driver.
5. On April 24, 2013, respondent gave false statements about the April 9, 2013 incident.
6. On April 25, 2013, respondent intentionally caused a wrecker to make contact with a coworker with the intent to intimidate, threaten and harass him.
7. On April 30, 2013, respondent verbally harassed a co-worker, but did not threaten him.
8. On May 1, 2013, respondent cursed at one supervisor but not a second supervisor.
9. On May 1, 2013, respondent dropped a radio inappropriately on a supervisor’s desk.
10. On May 21, 2013, respondent gave false statements about the April 25, 2013 incident.
ALJ Zorgniotti recommended that Respondent be terminated from his employment for
the misconduct proven at the hearing.
The hearing at OATH on the charges against the Respondent was held over four days on
October 30, November 8 and 15, and December 17, 2013. Closing arguments were heard at the
conclusion of the case.
In determining the Respondent’s guilt and the appropriate penalty to recommend, the
ALJ carefully analyzed the evidence presented at the hearing and then reviewed prior cases. The
ALJ determined that Respondent was guilty of twice engaging in dangerous behavior with a tow
truck and of making false statements. Respondent was also found guilty of being discourteous to
supervisors, harassing a co-worker, insubordination, and being off his post. The ALJ took into
consideration, among other things, that Respondent has been employed by the TBTA since 2002,
his lack of prior formal discipline, and that in 2003 he received a letter of appreciation for his
perfect attendance that year.
The ALJ noted that the most serious charge involved Respondent’s conduct toward a
member of the public. The ALJ recognized that civil servants have an obligation to be courteous
and professional in their interactions with the public. The ALJ carefully and thoughtfully
considered prior cases that assessed penalties for improper actions with members of the public
and determined the following:
“Here, respondent’s unprovoked verbal harassment of
Ms. Isola was totally uncalled for and unprofessional.
Moreover, respondent’s tailgating a passenger vehicle on
a crowded bridge and aggressively honking his horn was
unsafe and unnecessary. The most serious aspect of
respondent’s misconduct was throwing a plastic bottle
into a passenger vehicle. This was a dangerous and
reckless act. Not only did respondent imperil the safety of
the passengers in Ms. Isola’s car, which included two
young children, he endangered the safety of other
motorists in the area. This conduct is shocking and no
doubt an embarrassment to the TBTA. Respondent’s
actions suggest such a lack of judgment that dismissal
seems the only appropriate penalty.”
The ALJ also noted the seriousness of the confrontation involving Respondent touching a
co-worker with a wrecker and that, incredibly, Respondent held his co-worker partially
responsible for the incident because the co-worker did not move out of the way. The ALJ
concluded the following:
“Here, respondent drove a large tow truck up to and made
contact with a co-worker’s body. This action was
unprovoked and unnecessary. While there were no
injuries, the consequences could have been dire. Clearly,
respondent intended to intimidate a coworker.
Respondent’s actions were reckless and further suggest
that dismissal is the only logical penalty.”
With respect to Respondent’s false statements in his investigative interviews, the ALJ
wrote the following:
“Respondent’s versions of the events involved more than
mere omissions or minor modifications of the facts.
Respondent lied about his actions. Such dishonesty
further calls into question respondent’s character and
erodes the trust between him and his employer.”
Lastly, the ALJ carefully considered the concept of progressive discipline and wrote the
following:
“Respondent has been employed by the TBTA for 11
years and has no prior disciplinary record which
ordinarily would militate against termination under the
concept of progressive discipline [citation omitted].
However, respondent’s reckless and unpredictable
behavior renders him unreliable and the TBTA has a right
to a workforce upon which it can depend. The TBTA
should not be expected to risk that respondent will not
bully other members of the public or his co-workers to
the detriment of their safety.”
“Under the circumstances, termination from employment
would not be disproportionate to the sustained
misconduct as to be shocking to one’s sense of fairness.
See Pell v. Bd. of Education, 34 N.Y.2d 222 (1974).
Accordingly, I recommend that respondent be terminated
from his employment.”
On January 15, 2014, the ALJ sent a letter to the Authority and to Respondent’s attorney,
Fausto E. Zapata, Jr., Esq., instructing that Respondent’s counsel is entitled to comment on the
OATH report and recommendation prior to my final action and that the Authority should notify
Mr. Zapata of the time period permitted for such comment. The Authority complied in a letter to
Mr. Zapata dated January 15, 2014 in which he was advised to submit any comments by end of
business on January 29, 2014. On January 29, 2014, Mr. Zapata submitted a typewritten, 20-page
letter with comments for my consideration. I reviewed the submission by Respondent’s attorney
wherein it is urged that I reject the findings of ALJ Zorgniotti and dismiss the disciplinary
charges against Respondent, or in the alternative, impose a 30 day suspension.
As the President of the Triborough Bridge and Tunnel Authority I have the authority,
pursuant to Section 75 of the New York State Civil Service Law, to accept or reject the
recommendation of the OATH ALJ. In rendering my decision, I reviewed the Report and
Recommendation issued by ALJ Zorgniotti, the hearing transcript and the evidentiary exhibits in
this case. Furthermore, I gave careful consideration to the written comments dated January 29,
2014 that were offered by the Respondent’s attorney. In that letter, Respondent’s counsel
requests, among other things, that I reject the credibility determinations made by the ALJ who
heard witness testimony and assessed witness credibility and demeanor for both direct and cross
examination at the hearing.
I accept the ALJ’s conclusions as they were supported by the record developed before the
ALJ. With respect to the civilian witness, Ms. Isola, the ALJ found that she had no apparent
motive to lie, that she provided the same consistent account to Sergeant Petrillo on the date of the
incident, to Investigator Cummins the next day and during her testimony at the hearing six
months later, and that portions of her testimony were corroborated by other evidence in the
record. On the other hand, the ALJ did not find the Respondent to be credible. For example,
Respondent initially denied being the driver of vehicle 819, but then in the face of overwhelming
evidence, admitted to being the driver in question.
With respect to witness Elias Lebron, a maintainer and fellow co-worker of the
Respondent, the ALJ found him credible and that his testimony was corroborated by video
evidence and the testimony of Respondent’s own witness, Mr. Bonamico. Furthermore, despite
the assertion in the comments submitted by Respondent’s attorney, Respondent did not accept
“full responsibility” for the incident that occurred on April 25, 2013 when he dangerously drove
a wrecker vehicle toward and made contact with Mr. Lebron’s body. Rather, as the ALJ correctly
pointed out, the Respondent, during cross-examination, testified that he felt that Mr. Lebron was
partially responsible for the incident because Mr. Lebron did not move out of the way of the
wrecker. Accordingly, I reject the false notion espoused by Respondent’s attorney that the
Respondent accepted full responsibility for the incident that occurred on April 25, 2013.
I also concur that the record developed at the hearing supports the credibility
determinations made by the ALJ with respect to the other eyewitnesses – Maintenance
Superintendent Daniel Fortunato, Captain Robert Eckert and Sergeant Richard Cupo.
I find that based upon my review of the materials above there exist substantial evidence
for me to accept the findings and recommendation of the OATH ALJ that the Respondent be
terminated from his employment with the TBTA.
I concur with the ALJ that the hearing record amply proves the charges for which the
ALJ found Respondent guilty. I also concur with the ALJ’s sound reasoning in her determination
that a penalty of termination is warranted under these facts.
A bridge and tunnel maintainer must maintain a professional demeanor, be in control of
his or her emotions and be respectful during his or her interactions with supervisors, colleagues
and the general public. The Respondent’s proven actions involved several acts of dangerous,
threatening, discourteous and/or insubordinate behavior. The reckless, aggressive, dangerous and
unpredictable nature of his behavior renders him unreliable. The TBTA cannot depend on the
Respondent to carry out our mission statement – to provide safe, efficient and courteous service
to our customers. Respondent’s behavior renders him a liability to the TBTA which justifies
termination from his employment despite no prior disciplinary record. We cannot take the risk
that Respondent will not be able to control himself and endanger the safety and welfare of other
members of the public or his co-workers. Furthermore, Respondent’s false statements to
investigators were more than mere omissions or minor modifications of the facts. They were lies
that reflect a lack of character and integrity. These acts of dishonesty are such a fundamental
breach of the necessary trust that must exist between an employer and employee that Respondent
can no longer be depended upon or trusted.
Therefore, it is my determination, given the substantial evidence to support a finding that
the Respondent is guilty of serious misconduct, that the penalty of termination from his
employment is appropriate and not shocking to one’s sense of fairness.
I direct that Respondent be terminated from his employment with the TBTA effective
immediately.
Under the provisions of Section 75 of the Civil Service Law, the Respondent is entitled to
appeal from this determination by application either to the Civil Service Commission or to a
court in accordance with the provisions of Article 78 of the Civil Practice Law and Rules. If
Respondent elects to appeal to the Commission, such appeal must be filed in writing within
twenty (20) days of receipt of this determination. A decision of the Commission is final and
conclusive.
James Ferrara, President
Dated: January 30, 2014
New York, New York