Dep't of Sanitation v. James
OATH Index No. 593/08 (Jan. 4, 2008)
Department established that sanitation worker refused to comply
with two orders of his superiors to remove certain items from his
truck and place them into the hopper. ALJ recommends an eightday suspension.
______________________________________________________
NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
DEPARTMENT OF SANITATION
Petitioner
- against MICHAEL JAMES
Respondent
______________________________________________________
REPORT AND RECOMMENDATION
TYNIA D. RICHARD, Administrative Law Judge
This disciplinary proceeding was referred by petitioner Department of Sanitation pursuant
to section 16-106 of the New York City Administrative Code. Respondent Michael James is a
sanitation worker charged with refusing to comply with the orders of two of his superiors,
passing a full litter basket on his assigned route without servicing it, and placing an aluminum
window frame that was put out for curbside recycling behind the cab of his truck for his own
personal use. Respondent denies the charges.
The hearing on the charges was held before me on November 1, 2007. Petitioner
presented the testimony of Deputy Chief Joseph Hickey, Supervisor Jack Malloy, Supervisor
Omar Evans, and Supervisor Kevin Duffy. Respondent testified on his own behalf and presented
the testimony of Sanitation Workers William Montero and Darren Peeples.
Based upon the record of the proceeding, I find respondent guilty of the insubordination
charges and recommend an eight-day suspension.
-2ANALYSIS
The Department submitted four charges against Sanitation Worker James in this case,
which include (i) refusing to comply with two orders of his superiors to remove certain items
from his truck and place them into the hopper, (ii) passing by a full litter basket on his assigned
route without servicing it, and (iii) placing an aluminum window frame that was put out for
curbside recycling behind the cab of his truck for his own personal use.
Nos. F-117625, F-117579
The Department’s proof on its charges numbered F-117625 and F-117579 was offered
principally by Deputy Chief Joseph Hickey and Supervisor Jack Malloy who testified that, on
May 11, 2005, they both gave respondent orders to remove certain improperly collected metal
materials and cycle them into the truck, and their orders were refused.
Deputy Chief Hickey testified that he was conducting oversight of respondent’s district
on May 11, when respondent was assigned as the driver on a recycling route (Tr. 11-13). He
went to respondent’s route after being told by the District Superintendent that the route would not
“clean” that day, which means in Department vernacular that the assigned crew would not
complete the entire route by the end of that day’s shift, approximately 1:20 p.m. (Tr. 98). The
Deputy Chief contacted Supervisor Malloy who told him that respondent’s crew was behind
schedule and confirmed that they probably would not clean the route that day.1 Around 12:20
p.m., the Deputy Chief found respondent’s truck at 91st Avenue between 196th and 197th Streets
(Tr. 14-16). Respondent was driving and an “out-of-town” sanitation worker assigned as his
partner was picking up the recycling.2
Deputy Chief Hickey asked respondent if there was a problem, and respondent said there
was not (Tr. 16, 63). The Deputy Chief told respondent that he was behind schedule and would
not clean his route by the end of the day and again asked if there was a problem. Respondent
said, “No, I’m working.” The Deputy Chief continued, telling respondent that this particular
route consistently cleans, and respondent replied, “I’m working.”
1
Supervisor Malloy testified that crews normally work until 1:20 p.m. at which time they have to drive back to the
garage so that they arrive in time for the end of the shift at 1:45 p.m. (Tr. 98). When Supervisor Malloy decided that
respondent’s route would not clean, he contacted other crews to assist in completing the route in time for the end of
the shift (Tr. 99).
2
An out-of-towner is a sanitation worker who normally works in another district.
-3As they spoke, the Deputy Chief noticed material protruding from the side bin of the
truck, which included aluminum pots and pans that should have been put into the truck’s rear
hopper (Tr. 17-19).
He said the metal section of the truck was not full and could have
accommodated the objects. He also saw an aluminum door stored in the space behind the
driver’s cab. These items, referred to as “mongo,” or scrap materials, should have been cycled
into the truck. Mongo is sometimes improperly collected by sanitation workers for personal use.3
Deputy Chief Hickey directed respondent to empty the metal materials from the side bin and to
cycle them along with the aluminum door into the body of the truck before finishing 91st Avenue
(Tr. 20, 65, 68). He said respondent had only a “couple” of houses left on the block to service
(Tr. 72-73). Respondent said “okay” and the Deputy Chief left (Tr. 76). Deputy Chief Hickey
was with the truck for approximately five minutes.
The Deputy Chief then called Supervisor Malloy and met with him a few blocks away
(Tr. 21-22). He told Malloy about the mongo material he saw in the truck and about his direction
to respondent to cycle it before completing 91st Avenue. He wanted Malloy to ensure that
respondent complied with his direction.
When he saw respondent’s truck with the same materials on it around 1:00 p.m., after
respondent had finished 91st Avenue, Deputy Chief Hickey contacted Supervisor Malloy again
and told him that respondent had disobeyed his order and that he would be writing a complaint
(Tr. 23-24). He ordered Supervisor Malloy to make sure the materials were cycled into the truck
before respondent returned to the garage. Malloy later told him that respondent refused his order
also (Tr. 25).
Supervisor Malloy corroborated the Deputy Chief’s testimony in every significant respect
(Tr. 94). He said they met around 12:20 p.m. and the Deputy Chief told him about the material
in respondent’s truck, that he had ordered respondent to cycle the material before finishing the
line, and the Deputy Chief instructed him to make sure that it was done (Tr. 95, 99).
Department guidelines prohibit “[u]nauthorized sorting, or taking of any refuse or recycling material for personal
use” (General Order No. 2002-06, dated Mar. 1, 2002, rule 3.17). Respondent testified that even though he had
heard the term used on the job, he did not know what “mongo” was (Tr. 234-35). He understood that it meant
“scrap” but said he had never seen a definition of it. He admitted picking up scrap metals, or mongo, “plenty of
times” before becoming a sanitation worker, because he used to deliver them to scrap dealers. He also admitted
retrieving radios from the garbage as a sanitation worker and selling them as scrap (Tr. 236).
3
-4At about 1:10 p.m., Supervisor Malloy found respondent’s truck and saw the materials
still in the side bin and an aluminum door or window behind the cab (Tr. 100-02). He told
respondent to cycle the material as Hickey had instructed (Tr. 103). Respondent accused him of
harassing him. Malloy repeated that the Deputy Chief had instructed him to cycle the materials
“an hour ago” and that he had to do it. Respondent refused, saying “I’m not doing it.” Malloy
then cautioned that he was giving him a direct order and he would write up a complaint.
Respondent continued to refuse.
As Malloy spoke to respondent, Supervisor Evans stood a few feet away. Supervisor
Evans pulled respondent aside and talked to him (Tr. 103-04). According to Malloy, when they
returned, Evans said, “He’s going to cycle it up,” and respondent did so. Supervisor Malloy
wrote up a complaint because respondent disobeyed his order. He stated that he did not recall
respondent ever stating that he was planning to cycle the materials at the end of the shift (Tr.
130).
Supervisor Evans testified that, when he arrived on the scene, respondent and Supervisor
Malloy were “going back and forth” about throwing away the mongo and he intervened. He
pulled respondent to the side and “told him just throw it in the truck and he threw it in the truck”
(Tr. 138). He said he heard Malloy tell respondent that the chief had ordered him to cycle the
mongo. Respondent said that he was “being picked on, harassed.” He said he heard Supervisor
Malloy order respondent to cycle the materials “maybe twice” (Tr. 139), but respondent did not
comply with the order until after Evans pulled him aside (Tr. 140). Their conversation was
perhaps five seconds long, and it took a minute or two for respondent to throw the materials into
the truck (Tr. 141). Supervisor Evans stayed long enough to watch respondent throw the scrap
metal into the hopper, but did not recall seeing a window frame or door.
Respondent recounted the conversation with Deputy Chief Hickey as follows.
The
Deputy Chief approached him and asked what was wrong and respondent told him, “I’m working
and that’s it” (Tr. 217). The Deputy Chief asked what was the problem and respondent said,
“Hey, man, we’re working.” The Deputy Chief told him, “Before you come in, empty the bin.”
Respondent said that metal pots and tops were inside the bin on the side of the truck, along with
a radio. He said he did not know how the material got into the bin; it must have been on the
truck when he got it that morning (Tr. 218).
He denied that either the Deputy Chief or
-5Supervisor Malloy said anything about an aluminum window being behind the cab and insisted
there was nothing back there (Tr. 224, 229).
He stated that the Deputy Chief’s direction to him was to cycle the materials into the
hopper before returning to the garage (Tr. 218). He had no problem with the instruction, he said.
He later saw Supervisor Malloy who said that Hickey said to empty the bin before returning to
the garage (Tr. 219). He admitted asking Malloy, “Why are you harassing me? Why don’t you
talk to my partner?” (Tr. 219-20). Malloy replied that the Deputy Chief had asked him to do it,
not his partner. Then Supervisor Evans approached him and respondent “turned my attention to
him for a minute or two.” Afterward, he looked at Supervisor Malloy and said “all right.”
Respondent threw the metal and the radio into the bin and cycled it up. He said that Supervisor
Evans stated to him, “You might as well just go ahead and dump it. You know you’re going to
wind up dumping it anyway” (Tr. 232). Respondent claimed that he was moving even as Evans
spoke to him.
Respondent denied refusing his supervisors’ orders to cycle the materials into the bin (Tr.
220). Respondent did not deny receiving orders from the two supervisors, but he disputed the
content of the orders. Respondent testified that Deputy Chief Hickey ordered him to cycle the
materials before he returned to the garage; thus, he was not in violation of their directions. For
several reasons, I did not credit respondent’s testimony.
First, I found Deputy Chief Hickey, Supervisor Malloy, and Supervisor Evans to be
consistent and credible in their testimony that they either made or witnessed multiple demands
that respondent cycle the materials. The testimony about the numerous requests, which was
largely undisputed by respondent, supports petitioner’s contention that respondent was
noncompliant. I also credited the supervisors’ testimony that Deputy Chief Hickey ordered
respondent to cycle the materials before finishing work on 91st Avenue, not later. Deputy Chief
Hickey, by his demeanor and testimony at trial, indicated that he was insistent and pointed about
achieving prompt compliance with his order. If he had casually instructed respondent to cycle
the materials at anytime before returning to the garage, he would not have wasted time checking
on him before that time and insisting that Supervisor Malloy also follow up.
The evidence clearly and convincingly showed that respondent refused his supervisors’
orders until Supervisor Evans intervened.
-6In addition, I found that respondent’s denials and excuses lacked credibility. Even though
it would have taken only a minute or two to dump the materials, respondent claimed that he did
not act sooner to dispose of the materials because it would have broken the stride of his work (Tr.
224-25). Since respondent was driving the truck while his partner loaded the recycling, it was
unclear what he was doing to prevent him from acting. Moreover, there was no evidence to
support his lawyer’s contention that he had intended to cycle the materials before returning to the
garage; not even respondent’s own testimony supported this view (Tr. 219-20). I did not find
credible respondent’s testimony that, until the Deputy Chief called his attention to them, he had
not seen the materials in the side bin since he also said that he inspected the truck before they
started work that day.
Chief Hickey insisted that respondent’s initial refusal of his and Supervisor Malloy’s
orders constituted insubordination even though respondent eventually complied by placing the
objects into the hopper (Tr. 28). The caselaw of this tribunal supports this view. See Dep’t of
Correction v. Garrity, OATH Index No. 184/95, at 10 (Feb. 15, 1995); Health and Hospitals
Corp. (Coler-Goldwater Specialty Hosp. & Nursing Facility) v. Ramsay, OATH Index No.
724/04, at 5 (Apr. 16, 2004) (“Respondent’s ultimate obedience does not negate his initial
refusal”).
Petitioner must establish three elements to prove misconduct by refusal to obey an order:
(1) that an order was communicated to respondent which he heard and understood; (2) the
contents of the order were clear and unambiguous; and (3) respondent willfully refused to obey
it. Dep't of Correction v. Graham, OATH Index No. 1380/03, at 16 (Feb. 25, 2004), modified on
penalty, Comm’s Dec. (Aug. 6, 2004), modified on penalty, NYC Civ. Serv. Comm’n Item No.
CD-07-83-M (July 27, 2007) (correction officer disobeyed order that was posed as a favor by his
supervisor); Dep't of Homeless Services v. Ferguson, OATH Index No. 1611/02 (Jan. 22, 2003),
modified on penalty, NYC Civ. Serv. Comm’n Item No. CD04-27-M (May 24, 2004); Dep't of
Correction v. Hipp, OATH Index No. 337/00 (Dec. 3, 1999). All three elements are present here.
Respondent’s eventual compliance with the orders given by his two superiors, after the same was
requested by a third supervisor, does not immunize his initial misconduct.
In framing the supervisors’ motivations, counsel argued that they fabricated the
insubordination charges, because they believed respondent and his partner did not clean the route
-7that day because they were working too slowly (Tr. 47, 54). Counsel argued that the supervisors
drummed up false charges in order to blame the failure to clean on the sanitation workers,
because of the stigma attached to a supervisor having to report to headquarters that one of his
routes did not clean. Thus, charges that respondent was collecting mongo would place the blame
for not cleaning the route squarely on the crew. Petitioner countered that, if respondent’s theory
were true, the Department would have also charged respondent with malingering or failing to
clean his route, and it did not (Tr. 49). I was unconvinced that the Department falsified these
charges or acted out of any ulterior motive in bringing them.
It was conceded that the Department typically did not enforce its rules against collecting
mongo unless a sanitation worker failed to complete his route (Tr. 124). The fact that this rule
was not regularly enforced does not undermine the Department’s decision to enforce it in this
instance. See Dep't of Sanitation v. Yovino, OATH Index No. 1209/96 (Oct. 9, 1996), rev'd in
part on other grounds, NYC Civ. Serv. Comm'n Item No. CD 97-109-O (Dec. 4, 1997) (the
defense of selective prosecution is available only if allegedly based on constitutionally suspect
criteria, and only upon judicial review of an adverse administrative determination).
Accordingly, I find that petitioner proved that respondent refused to comply with the
orders of Deputy Chief Hickey and Supervisor Malloy to cycle scrap metal materials into the
truck, as alleged in Complaint Nos. F-117625 and F-117579.
No. F-117592
Sanitation workers are required to service all litter baskets on their assigned routes (Tr.
28). Respondent is charged with passing a full litter basket located on the corner of Farmer’s
Boulevard and Murdock Avenue on August 3, 2005, without servicing it.
Supervisor Duffy testified that on August 3, he was located at the corner of Farmer’s
Boulevard and Murdoch Avenue as he waited for respondent to begin the first stop of the last line
on his route (Tr. 147-48). The first block of the line had only one basket on it and the rest
consisted of commercial storefronts. The one basket was full. Supervisor Duffy testified that
respondent’s truck bypassed the first block and failed to service the basket, but he did not recall
whether the truck drove down the first block past the basket, or entered the street at the second
block past where the basket was located (Tr. 149, 153). He did not recall observing the truck
-8drive down the first block. He said he made no attempt to tell the crew to return to the missed
basket and service it. After the crew finished the end of the line, they headed back to the garage.
Back at the garage, Supervisor Duffy said he asked respondent’s partner, Sanitation
Worker Montero, why they did not service the basket at the beginning of the last line, and
Montero stated that they had done so earlier in the day (Tr. 150, 166). The supervisor conceded
that the crew was not required to collect the route in any particular order. However, he stated
that he did not believe that they actually serviced the basket earlier in the day (Tr. 151). He also
stated that, if they were returning to complete the line, they should have serviced the basket a
second time. Supervisor Duffy noted that the crew completed everything else on the route (Tr.
167).
Sanitation Worker Montero testified that he did not recall speaking to Supervisor Duffy at
the garage; he said he never spoke to him about having missed a basket on Murdock and
Farmer’s Boulevard (Tr. 197). He later learned about the missed basket after he received a
complaint for it. He said that he and respondent serviced the basket before lunch, which was at
10:30 a.m. He said when they returned to finish the area after lunch, they bypassed the block
where the basket was and never passed it a second time (Resp. Ex. D; Tr. 198). He said he did
not notice from a distance that the basket was full because it had a raised enclosure (Tr. 205). He
said he would have serviced it had he seen that it was full.
Respondent also testified that they had serviced the basket earlier that day (Tr. 212). He
said that, at the time that Supervisor Duffy saw them, they had bypassed the first block on the
line and entered a block below where the basket was located (Tr. 233).
Deputy Chief Hickey testified that a litter basket that was serviced earlier in the day
should be serviced a second time if the truck passes it a second time and the basket has more
garbage in it (Tr. 30). He acknowledged, however, that a basket that had been previously
serviced would not have to be re-inspected by a sanitation worker passing the location a second
time, unless the garbage was noticeable (Tr. 33). Supervisor Malloy said that a sanitation worker
would have to service the basket again, because they are supposed to “tip every basket” (Tr. 109,
111).
Although the evidence was undisputed that respondent failed to service the litter basket at
the time that Supervisor Duffy observed the truck, the record did not prove that the crew was
-9obligated to service the basket under the existing circumstances. According to the Department’s
testimony, a sanitation crew is obligated to service each basket on its designated route and will
have to re-service the basket if the crew passes the basket a second time and it has refuse in it.
According to the testimony of respondent and his partner, which was undisputed, they did not
drive past the basket and they were unable to see that it needed servicing again. Supervisor
Duffy was not sure where they entered the street; he could not recall whether they drove past the
basket. The Department’s witnesses all agreed that workers are not required to work the route in
any particular order (Tr. 34-35, 105-06), so they were not obligated to drive down the block past
the basket if they had already serviced the basket. Although Supervisor Duffy did not believe
that the crew had serviced the basket earlier, he had no basis for his unbelief and he conceded
that it was possible in some locations for a basket to become full again a short time after being
serviced (Tr. 151).
Petitioner’s advocate argued, without factual support, that respondent should have passed
the basket again so that he would have been obligated to service it (Tr. 251), but there was no
testimony on the record indicating that the Department’s rules required respondent to drive past
that basket a second time.
Accordingly, I find that petitioner failed to establish that respondent drove past the litter
basket and, thus, failed to prove that respondent was obligated to service it, as alleged in
Complaint No. F-117592.
No. F-118478
Respondent is charged with placing an aluminum window frame behind the cab of his
truck for his own personal use (ALJ Ex. 1).
Supervisor Duffy testified that on August 16, 2005, he saw respondent load an aluminum
door that had been put on the street for recycling behind the cab of his garbage collection truck
(Tr. 175-77, 180). Supervisor Duffy, who was the recycling officer that day, stated that it was
not protocol for a collection crew to pick up recycling materials but he did not approach or say
anything to respondent about it. He later spoke with Supervisor Klingler, who was the collection
officer, and Deputy Chief Hickey, among others, and was told to write a complaint. Deputy
Chief Hickey eventually wrote the complaint himself (ALJ Ex. 1).
-10Departmental guidelines prohibit “[u]nauthorized sorting, or taking of any refuse or
recycling material for personal use” (General Order No. 2002-06, dated Mar. 1, 2002, rule 3.17).
In 2005, rules against collecting scrap materials, or mongo, were not strictly enforced and did not
typically result in discipline unless a worker failed to complete his route that day (Tr. 189).
Supervisor Duffy said that respondent failed to complete his route that day (Tr. 183).
Respondent denied putting a door into his truck (Tr. 215). He sought to discredit the
complaint, which is dated September 21, 2005, because it was drafted five weeks after the
incident and because Supervisor Duffy recalled few other facts surrounding the incident.
I noted with interest Supervisor Duffy’s failure to recall details, and the conflict between
his testimony and the allegations in the complaint. Although he seemed very clear about having
seen respondent place a door in his truck, the complaint accuses respondent of placing an
aluminum window frame in the truck – not a door. Inexplicably, petitioner made no effort to
explain the discrepancy between the testimony and the complaint, or to conform the charge to the
proof. No other evidence in the form of testimony or written report was offered to corroborate
the supervisor’s testimony.
I found the witness’s failure to recall details about the incident, along with his
unexplained divergence from the complaint, to be troubling. The inconsistency between the
testimony and the complaint supports the belief that the five-week delay before the complaint
was drafted was meaningful and it greatly undermined the witness’s credibility. While petitioner
might have argued that this conflict could be simply resolved by conforming the allegation to the
proof, it failed to do so at trial and I decline to do so now. See Police Dep’t v. Colon, OATH
Index No. 834/93 (July 1, 1993); Dep’t of Correction v. Hamlin, OATH Index No. 110/02 (May
21, 2002) (ALJ declines to conform charges to proof sua sponte when skeptical about the
evidence).
Accordingly, I find that petitioner failed to prove the charge.
FINDINGS AND CONCLUSIONS
1.
Respondent disobeyed the orders of Deputy Chief Hickey
and Supervisor Malloy to cycle metal materials into the
hopper before completing his route on 91st Avenue, as set
-11forth in Complaint Nos. F-117625 and F-117579.
2.
Petitioner failed to establish that respondent drove past a
litter basket without servicing it, as alleged in Complaint
No. F-117592.
3.
Petitioner failed to establish that respondent placed an
aluminum window frame behind the cab of his truck for his
own personal use, as alleged in Complaint No. F-118478.
RECOMMENDATION
After making the above findings, I requested and received a summary of respondent's
personnel history. Respondent received his appointment as a sanitation worker on April 3, 2000.
He has one prior incident of misconduct, receiving a one-day suspension in 2002 for being absent
without authorization. He has no other history of discipline.
Petitioner seeks a penalty of 10 days’ suspension for each charge of refusing to obey his
supervisors’ orders. The typical penalty for insubordination of this kind has tended to be in the
area of five or six days. See, e.g., Dep't of Sanitation v. Neal, OATH Index No. 1318/05 (June
16, 2005) (six-day suspension recommended for sanitation worker for failing to tow a disabled
sanitation truck to the location ordered); Dep't of Sanitation v. Connors, OATH Index No.
417/05 (June 1, 2005) (five-day suspension for isolated act of insubordination where employee
had minor prior disciplinary record); see also Dep’t of Sanitation v. David, OATH Index No.
766/07 (Jan. 25, 2007), modified on penalty, NYC Civ. Serv. Comm’n Item No. CD07-101-M
(Oct. 25, 2007) (15-day suspension recommended by ALJ for sanitation worker who negligently
operated Department vehicle, failed to obey an order, and was discourteous was reduced by CSC
to an eight-day suspension).
Although insubordination may be more heavily penalized, the circumstances in such
cases have warranted it. For example, in Dep’t of Sanitation v. Tripplin, OATH Index No.
1016/07 (Apr. 5, 2007), a Department computer technician received a 30-day suspension for two
instances of insubordination and for sending a disrespectful email about his superior to other coworkers. In that case, the two instances of insubordination were distinctly separate occurrences,
one of which resulted in respondent’s supervisor having to clean up a computer room that
respondent was ordered to clean after his refusal continued for several days. Here, respondent’s
-12refusal to follow essentially the same order given by two supervisors continued for only a period
of an hour. Thus, respondent’s penalty should skew to the low end of the range.
Accordingly, I recommend an eight-day suspension, four days for disobeying the order of
each of his supervisors. There was no attendant disrespect or loud confrontation involved in
respondent’s interactions with his supervisors and the disobedience was remedied in a short time.
The circumstances of his insubordination, along with his prior good disciplinary record, makes
this penalty a reasonable one. See Dep't of Sanitation v. Smyth, OATH Index No. 2178/05 (Feb.
14, 2006), aff'd, NYC Civ. Serv. Comm'n Item No. CD06-122-SA (Nov. 14, 2006) (eight-day
suspension for sanitation supervisor found insubordinate when he engaged in a heated argument
with his supervisor and failed to follow orders; penalty was mitigated by respondent’s long and
unblemished record).
Tynia D. Richard
Administrative Law Judge
January 4, 2008
SUBMITTED TO:
JOHN J. DOHERTY
Commissioner
APPEARANCES:
CARLTON LAING, ESQ.
Attorney for Petitioner
KIRSCHNER & COHEN, P.C.
Attorneys for Respondent
BY: ALLEN COHEN, ESQ.