Dep’t of Sanitation v. Branch
OATH Index No. 1525/05 (Nov. 29, 2005)
Respondent, a sanitation worker, found to have been
insubordinate, confrontational, and threatening to his
supervisor. Thirty-day suspension recommended.
______________________________________________________
NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
DEPARTMENT OF SANITATION
Petitioner
-againstEVERETT BRANCH
Respondent
____________________________________________________
REPORT AND RECOMMENDATION
FAYE LEWIS, Administrative Law Judge
This is a disciplinary proceeding referred by petitioner, the Department of
Sanitation, pursuant to section 16-106 of the Administrative Code. The charges allege
that on August 12, 2004, respondent, sanitation worker Everett Branch, was
insubordinate, confrontational, and threatening to his supervisor, Jamel Rasheed.
A hearing was held on May 12, 2005 and July 12, 2005. Petitioner presented four
witnesses, including Mr. Rasheed. Respondent testified in his own behalf and presented
one additional witness. For the reasons set forth below, I find that the charges are
sustained, in large part. I recommend that respondent be suspended for thirty days, with
credit for time served.1
ANALYSIS
The following facts were undisputed. Respondent worked the 11:00 p.m. to 7:00
a.m. shift in the Manhattan 10 garage on August 12, 2004. This shift is designated for
“AFF” operations, in which workers operate roll-on/roll-off trucks to pick up
containerized boxes, dump the contents of the containers in New Jersey, and return to the
1
Counsel agreed that the Administrative Code, section 12-105, requires that employees be given credit for
time served on suspension, unless they are terminated (Tr. 228, 229, 236).
-2garage with the containers (Tr. 33, 59-60). Supervisor Rasheed was the 4:00 p.m. to
12:00 midnight garage officer on August 12, 2004, whose duties included dispatching the
sanitation workers on the AFF shift. Supervisor Sam Ervin was the midnight to 8:00 a.m.
supervisor, who relieved Supervisor Rasheed. He arrived for work at about 11:30 p.m.
(Tr. 103-04).
Respondent telephoned in shortly before the start of his shift and told Supervisor
Ervin that he might be late, because of traffic on the FDR Drive. However, respondent
arrived on time, shortly before 11:00 p.m.
Soon thereafter, respondent approached
Supervisor Rasheed in the garage office to complain that his route assignment and truck
assignment, as shown on the operations board, were incorrect.
declined to change respondent’s assignment.
Supervisor Rasheed
The two men argued for a time.
Respondent left and re-appeared. He entered the rear office (adjacent to the garage
office, separated by a door) and asked Supervisor Ervin for his paycheck. Supervisor
Ervin was in the process of giving respondent his paycheck when Supervisor Rasheed
intervened, telling Supervisor Ervin to stop. At that point Supervisor Ervin stopped and
put the checks and the envelope that contained the checks back into the “safe,” which in
actuality was not a safe, but rather a closet or cabinet where paychecks, radios, and other
items are stored. Respondent continued to protest and retrieved his check from the safe,
which was open. Supervisor Rasheed tried to take the check from respondent, but was
unsuccessful. Respondent then left the office.
Two technicians, Pedro Solla and Juan Garcia, were also present in the office
during a portion of the incident, as was sanitation worker Keith Carpenter, who had just
begun at the garage in May 2004 and was assigned that night as the “extra” worker on
respondent’s truck, because respondent’s usual partner was not present (Tr. 158).
In dispute is whether respondent was insubordinate and confrontational during the
argument, refused to perform his assigned route, took his check without authorization,
pushed Supervisor Rasheed, and threatened to return with a gun when he left.
With regard to the initial argument, respondent testified that management and the
union had agreed that particular workers were to be assigned particular positions, or
routes, on the operations board, depending on seniority.
Respondent believed that
Supervisor Rasheed had been rotating the truck assignments, in contravention of the
-3labor-management accord. Although respondent thought that he should have been placed
in the third position on the board, be was placed in the second position, which meant that
he was unable to use his regular truck. According to respondent, Supervisor Rasheed
replied to his question about the assignment by saying that the board had already been set
up when he arrived at work. After arguing with Supervisor Rasheed, respondent left the
office to call his union representative, Joseph Middleton, to ask Mr. Middleton to
intervene. A short time later, he returned to speak to Supervisor Rasheed again. At that
point, respondent asserted, Supervisor Rasheed was “very belligerent” and “agitated,” reiterated he was not changing the assignment and said that respondent could either do the
assignment or go home (Tr. 197, 221). Respondent testified that he decided at this point
to go home. He left the garage, but returned after getting into his car because he realized
that he had forgotten to pick up his paycheck for the week (Tr. 196-98, 221).
Supervisor Rasheed testified that although he does not set up the operations
board, which is arranged by the clerk in accordance with routes determined by the
Borough Office, he tries to accommodate workers’ desires to switch their routes if
everyone is in agreement. On this night, however, he told respondent that he could not
change respondent’s assignment because he was too busy, although he might have been
able to do if respondent had arrived earlier (Tr. 36, 37, 60, 61, 67, 71). According to
Supervisor Rasheed, respondent became “very hostile” (Tr. 38), accused him of “always
messing with the board,” and cursed at him, although he could not recall the exact words
used (Tr. 38). Supervisor Rasheed denied using any profanity in return. He testified that
he did not give respondent his check when he handed out the checks to the other
employees, because respondent had already left the office while shouting at him (Tr. 68).
He did not ask respondent where he went and assumed he was going into the locker room
to change into his uniform (Tr. 73).
With the exception of Mr. Carpenter, the other people who were in the office,
including Mr. Solla, Supervisor Ervin, and Mr. Garcia, offered only vague testimony
concerning the argument between respondent and Supervisor Rasheed.
Mr. Garcia
claimed to have been “involved in his work” (Tr. 136), as did Mr. Solla, who testified
only that respondent “might have mentioned something” about his truck assignment and
that he did not recall hearing any profanity (Tr. 12, 14). Supervisor Ervin’s recollection
-4was a little better, as he testified that respondent was in the process of going home after
complaining about his assignment (Tr. 105).
Mr. Carpenter, on the other hand, testified that respondent complained about his
route, as shown on the AFF board. Supervisor Rasheed and respondent argued over
whether Supervisor Rasheed was able to change the route. Respondent then said, “Well,
I’m not going to do that. I don’t have to,” to which Supervisor Rasheed retorted that
respondent could either do the route or go home (Tr. 153). Respondent replied that if
Supervisor Rasheed were sending him home, he would go home. At this point, both
men’s voices were raised, although neither was yelling or screaming (Tr. 163). As
respondent was leaving, Supervisor Rasheed told him, in a raised voice, to go home and
take his “fucking medicine” (Tr. 164). Respondent turned around and said, “Who are
you to talk to me like that? Fuck you” (Tr. 164). They continued to yell and curse at each
other. Mr. Carpenter was “just kind of frozen . . . watching what was going on,” since he
was only on the job for two months and “[t]his is not what you learn in training” (Tr.
165-66). He did not think that Supervisor Ervin was in the room at this time (Tr. 163).
Respondent then left the office, at about 11:05 p.m. or 11:10 p.m. after giving Supervisor
Rasheed a “big, giant ‘F you’” (Tr. 167).
As noted earlier, it was undisputed that respondent later returned, that Supervisor
Rasheed saw Supervisor Ervin giving respondent his paycheck and told him to stop, that
Supervisor Ervin complied and returned the envelope of checks to the “safe” or cabinet,
and that respondent continued to protest and later retrieved his check over Supervisor
Rasheed’s protests. However, Supervisor Rasheed and respondent differed markedly in
their description of these events.
According to Supervisor Rasheed, respondent became “very agitated” when he
directed Supervisor Ervin to stop issuing the check, and went “on and on” about this for
approximately five minutes before going into the safe and retrieving the envelope of
checks, which included his own (Tr. 46, 47). Respondent then placed the envelope of
checks on the desk in the rear office and looked for his own check, at which point
Supervisor Rasheed intervened and asked what he was doing. Respondent said he was
going to take his check and Supervisor Rasheed replied that he was not issuing
respondent a check and that respondent needed to put the checks back in the safe or give
-5him the checks. The two men discussed whether or not respondent was going to work;
Supervisor Rasheed testified both that respondent said that he was not working, and that
respondent would not give him a clear answer as to whether he was working. Supervisor
Rasheed testified that he told respondent that if he was not working, he would not be
getting his check (Tr. 48).
According to Supervisor Rasheed, as the argument continued, he tried to
“physically” take the checks away from respondent by reaching for the envelope, and
respondent elbowed him and pushed him away (Tr. 49, 94). Respondent “started talking
about he’s going to get a gun, and blah, blah, blah. And he’s tired of this. . . BS [sic]”
(Tr. 50). Supervisor Rasheed also characterized respondent as “yelling and talking”
about whether Supervisor Rasheed wanted to fight with him (Tr. 94). Respondent went
“on and on” and then took the envelope of checks, and left (Tr. 94). He returned ten
minutes later, laid the envelope of checks on the counter in the front office, and again
left. Supervisor Rasheed then called the police, but when they appeared, he said that he
did not want to file charges, because he knew that respondent had already been
suspended and did not think that he would be coming back to the office. (Tr. 50, 51, 54,
98).
Respondent denied saying anything about a gun and asserted that it had been
Supervisor Rasheed, not he, who initiated physical contact over the checks. Respondent
testified that he had taken the check out of the envelope and bent down to sign for it when
Supervisor Rasheed “bump[ed]” respondent with his shoulder and “snatche[d]” the
envelope away (Tr. 200). At that point, respondent admitted, he pushed Supervisor
Rasheed’s hand away. “And that was that” (Tr. 200). Supervisor Rasheed left the room
holding the envelope, but respondent actually was holding all the checks. Respondent
testified that he took his check, signed for it, and handed the other checks to Supervisor
Ervin as he left (Tr. 203). He testified that he did not “recall” cursing at Supervisor
Rasheed, but acknowledged that there was “a possibility” that he had cursed, because he
had become “agitated” when Supervisor Rasheed told him, “Go the fucking home and
take your medicine” (Tr. 205, 206).
He also acknowledged being “agitated” when
Supervisor Rasheed refused to change his assignment, because he knew that Supervisor
Rasheed had accommodated similar requests by another sanitation worker (Tr. 206).
-6Further, he admitted that his relationship with Supervisor Rasheed, which used to be
friendly, had deteriorated over time, precipitated in part by a disagreement over religion
during a Transit Authority “outing” to Virginia which he, Supervisor Rasheed, and two
other sanitation workers had attended (Tr. 210). Respondent also testified that he does
not own a gun. While he did not make reference to a gun, he testified that “someone said
something, ‘Oh, so you’re going to get your gun” (Tr. 207). He was not clear who this
person was (Tr. 207). He also acknowledged saying something about how he was “going
to show” Supervisor Rasheed (Tr. 207), by which he meant that he would save as “a fight
for another day” Supervisor Rasheed’s actions in sending him home (Tr. 207).
In a grievance filed in May 2005 against Supervisor Rasheed, which included
reference to five “incidents,” including the one at issue here, respondent also indicated
that he had told Supervisor Rasheed, “I’m going to show you,” which was
“misunderstood” as “I’m going to shoot you” (Resp. Ex. A). Respondent wrote in the
grievance that he had “pushed” Supervisor Rasheed away after Supervisor Rasheed
“bumped” him with his body and that Supervisor Rasheed had responded that he “gets off
at 12 o’clock.” This led respondent to ask, four times, if Supervisor Rasheed wanted him
to wait, and then to say that he was “going to show” Supervisor Rasheed (Resp. Ex. A).
Supervisor Ervin confirmed that respondent and Supervisor Rasheed had “some
words” over respondent’s attempt to retrieve his checks from the safe (Tr. 111). He
recalled respondent saying that he was “tired” of what was going was going on (Tr. 111).
He did not recall if respondent took the checks with him when he then left the room (Tr.
111, 112, 120). When asked if he recalled respondent saying anything about a gun, he
testified that he “believe[d]” that respondent said that he was going to get his gun (Tr.
111, 120), and he answered “yes” when asked on cross-examination if he was sure that
that was what respondent had said (Tr. 120).
Of the other witnesses, Mr. Solla testified that he did not witness any physical
confrontation between Supervisor Rasheed and respondent; he heard them arguing in the
outer office while he was working in the rear office, but when he signed out of the office
at about 11:45 p.m., he did not recall seeing respondent there (Tr. 12-16). Mr. Garcia
also testified to only hearing an argument over whether respondent could get his check
(Tr. 149). Mr. Carpenter testified that he saw respondent return to the garage office about
-7five or ten minutes after he initially left, and that about five minutes after that, he went
into the office to find out what his assignment was. At that point both respondent and
Supervisor Rasheed were cursing. Respondent walked out, Mr. Carpenter believed, with
a check in his hand. He did not hear anything about a gun (Tr. 171).
Among the various charges is that respondent refused to perform the route that he
was issued.
It was undisputed that respondent was quite upset about his route
assignment. Although Supervisor Rasheed denied telling respondent that he could either
do the route or go home (Tr. 71), and that he did not know where respondent went after
he left the garage office, I credited respondent’s testimony that, in the course of their
dispute, Supervisor Rasheed did indeed use that language, or something comparable. I
did so largely because respondent’s testimony was corroborated by Mr. Carpenter, who
provided what seemed to be a genuine account of a rather contentious argument between
two angry people, both of whom resorted to loud voices and profanity. I also credited
Mr. Carpenter’s testimony that Supervisor Rasheed told respondent to either do the route
or go home, after respondent said that he was not doing the route.
Respondent
acknowledged going home, rather than agreeing to perform the route. Thus, I find that
respondent’s refusal to perform the route constituted insubordination, in violation of Rule
3.1 of the Code of Conduct (General Order 2002-06), as alleged.
I also find that respondent was insubordinate and acted without authorization by
retrieving his paycheck from the cabinet after Supervisor Rasheed said that he was not
giving respondent his paycheck. Further, I find that respondent acted insubordinately by
not returning the checks to the safe when told to do so. It was uncontroverted that
Supervisor Rasheed had directed Supervisor Ervin to stop issuing respondent his
paycheck. I credited Supervisor Rasheed’s testimony that he told respondent that he
would not give him a paycheck if respondent did not agree to work.
Therefore,
respondent knew when he took his paycheck from the safe that he did not have
authorization to do so. Moreover, I credited Supervisor Rasheed’s testimony that he told
respondent to return the envelope of paychecks to the safe, and that respondent refused to
do so. For these reasons, I find that respondent violated Rule 3.1 (insubordination).
However, I decline to find that respondent violated Rule 3.16 of the Code of Conduct,
which mandates that employees follow Department procedure when using Department
-8property. This rule seems inapposite to the situation, which deals with an instance of
insubordination rather than misuse of Departmental property.
In making these findings, I note that it was unclear from the record whether
Supervisor Rasheed acted properly in withholding respondent’s paycheck from him.
Supervisor Rasheed testified that he did not want to give respondent his check because
respondent had refused to work and he was waiting to hear from the borough whether
respondent was suspended. He believed that a person who is suspended would not be
able to get their paycheck from the worksite (Tr. 48, 82-84). However, Supervisor
Rasheed did not offer any support for his belief, explaining that “no one told me the rule”
which permits withholding of a check to a suspended employee, and acknowledging that
respondent had earned his check (Tr. 83). Moreover, Supervisor Rasheed’s actions
seemed unduly provocative and punitive in nature. However, respondent was bound by
the principle of “obey now, grieve later” to return the paycheck to the safe as instructed,
rather than take it upon himself to retrieve the check. Ferreri v. New York State Thruway
Auth., 62 N.Y.2d 855, 477 N.Y.S.2d 616 (1984); Bd. of Educ. v. Bey, OATH Index No.
1583/98 (June 23, 1998), aff'd, NYC Civ. Serv. Comm'n Item No. CD 00-57-SA (May 5,
2000); Health and Hospitals Corp. (Woodhull Medical and Mental Health Center) v.
Muniz, OATH Index No. 1666/05 (Oct. 17, 2005).
As for the remaining charges, I find the evidence insufficient to establish that
respondent committed misconduct by pushing Supervisor Rasheed, but I find it sufficient
to establish that respondent made a statement to Supervisor Rasheed which referenced
returning with a gun or shooting Supervisor Rasheed. With regard to the push, the
evidence was murky, at best. Respondent claimed that Supervisor Rasheed “bumped”
him and that he then pushed Supervisor Rasheed’s hand away. Respondent repeated the
allegation about the “bumping” in his May 2005 grievance, in which he also wrote that he
“pushed” Supervisor Rasheed away after being bumped. Although Supervisor Rasheed
denied “bumping” respondent (Tr. 90), he admitted that respondent was standing behind
a desk, and that he approached respondent from the side and reached to grab the checks
from respondent (Tr. 89-94). Supervisor Rasheed claimed that it was at that that point
that respondent grabbed the checks and shoved him to the side with his elbow (Tr. 91,
94). Given the close proximity of the men, and Supervisor Rasheed’s admitted attempt to
-9grab the checks from respondent, it seemed entirely plausible that Supervisor Rasheed
“bumped” respondent with his body, although perhaps not intentionally.
It seemed
equally plausible that respondent, in trying to keep possession of the checks, may have
elbowed respondent, perhaps unintentionally as well. To infer from these circumstances
a deliberate attempt by respondent to push Supervisor Rasheed to the side is unwarranted.
There was far less ambiguity to the testimony about the reference to the gun.
Supervisor Rasheed testified in some detail that respondent became so angry that he went
“on and on” about whether Supervisor Rasheed wanted to fight with him, and that he
included in his rant a reference to getting a gun.
Supervisor Rasheed also gave
unrebutted testimony that he called the police after this encounter, which would tend to
support his claim that respondent did indeed threaten him. Moreover, Supervisor Ervin,
who generally came across as the more level-headed and even-tempered of the two
supervisors, testified that he was certain that respondent made reference to getting a gun.
As to respondent, while he adamantly denied making any such reference, his testimony
that someone else (whom he could not identify) made reference to him getting his gun
was incredible. Similarly lacking in credibility was respondent’s statement that he said
that he was going to “show” Supervisor Rasheed, which was somehow misconstrued as
saying that he was going to “shoot” Supervisor Rasheed.
I make this finding even though both Mr. Carpenter and Mr. Garcia testified that
they did not recall hearing respondent say anything about a gun (Tr. 150, 171), and Mr.
Solla made no mention of any such statement in his testimony. I did not find Mr. Solla
and Mr. Garcia to be particularly credible witnesses, in that I concluded that both
displayed a certain disinclination to testify as to what they observed that evening.
Notably, although both Mr. Solla and Mr. Garcia testified that they were in the rear office
until close to midnight, both claimed to have not witnessed any physical confrontation
between respondent and Supervisor Rasheed. I found this highly unlikely, in light of the
undisputed fact that a physical confrontation of some nature occurred. In this regard Mr.
Garcia’s testimony was particularly revealing. When asked if respondent said or did
“anything” when Supervisor Rasheed said that he could not get his check, he testified, “If
he did, I didn’t see anything, I was involved in my work” (Tr. 149). This testimony was
on its face incredible. Although he was not as poor a witness, Mr. Solla’s initial refusal
- 10 to even acknowledge that it was respondent who was arguing with Supervisor Rasheed
(Tr. 12, 13) was similarly revealing.
With regard to Mr. Carpenter, by his own
admission, he was standing outside the garage when respondent re-entered and for some
time thereafter; he appears not to have witnessed the physical confrontation over the
paycheck, and to have returned to the office only as respondent was leaving. Thus, his
testimony that he did not hear respondent make mention of a gun was not dispositive, in
light of both Supervisor Rasheed’s and Supervisor Ervin’s credible testimony to the
contrary.
In sum, I find that respondent refused to perform the route that he was issued,
took his paycheck from the safe without authorization, refused Supervisor Rasheed’s
order to return his paycheck to the safe, and made a threat about returning with a gun or
shooting Supervisor Rasheed. I find that these actions were in violation of Rule 3.1
(insubordination), and Rule 3.22 (prohibiting the use of threats and requiring that
employees be courteous and professional). I also find that petitioner did not establish that
respondent pushed supervisor Rasheed, nor that he violated Rule 3.21 (striking a
superior) or Rule 3.24 (possessing a firearm or other dangerous weapon while on duty).
FINDINGS AND CONCLUSIONS
On August 14, 2004, respondent refused to perform the route that
he was issued, took his paycheck and a number of other
paychecks from the safe without authorization, refused to put his
paycheck back in the safe, and made a threatening comment
concerning either returning with a gun or shooting Supervisor
Rasheed, in violation of Rules 3.1 and 3.22 of the Code of
Conduct.
THEREFORE:
Petitioner established by a preponderance of the evidence the majority of the
allegations in complaint no. 114003, as noted.
RECOMMENDATION
Upon making these findings, I requested and received an abstract of respondent’s
disciplinary record.
It indicates that respondent began as a sanitation worker in
September 1995. He has had one prior penalty, a three-work day suspension imposed in
January 2001 as a result of a profane comment to a civilian.
Sanitation v. Branch, OATH Index No. 169/01 (Dec. 6, 2000).
See Department of
- 11 Petitioner has requested that I recommend that respondent be suspended for thirty
days, with credit for the thirty-day pretrial suspension already served (Tr. 235-37). This
is the maximum penalty available under the Administrative Code, short of termination.
Petitioner did not seek a recommendation of termination, perhaps because of the
somewhat provocative nature of Supervisor Rasheed’s conduct or perhaps because the
threat he uttered to Supervisor Rasheed appeared more a product of his hotheaded nature
than something genuinely intended.
Accordingly, in conformance with petitioner’s
request, I recommend that respondent be suspended for thirty days, with credit for time
served. Respondent, is on notice, however, that any future misconduct involving a threat
of violence will likely result in his termination from employment.
Faye Lewis
Administrative Law Judge
November 29, 2005
SUBMITTED TO:
JOHN J. DOHERTY
Commissioner
APPEARANCES:
RITA R. BRACKEEN, ESQ.
Attorney for Petitioner
KIRSCHNER & COHEN, P.C.
Attorneys for Respondent
BY: ALLEN COHEN, ESQ.