New York Civil Service Attorney Law Blog : New York Civil Service Lawyer & Attorney : Kevin P. Sheerin : Article 78 : Serving New York City, Long Island, Manhattan, Bronx, Brooklyn, Queens, Staten Island

Department of Sanitation v. Perez

          Employee disciplinary proceeding was brought about by Petitioner, Department of Sanitation pursuant to Section 16-106 of the Administrative Code.  Petitioner charged respondent, a sanitation worker, with being absent without leave and out of residence during supervised sick leave.

          Respondent was charged with being AWOL, for failing to report to work and failing to call in.  Respondent did not deny this charge.  This was respondent’s 13^th such absence in a 12 month period. 

          Respondent was charged with being away from the home without authorization while being on supervised sick leave.  Respondent claimed that he was home but, the Court believed that the Investigators testimony, who had gone to respondent’s home to make sure he was at home during his sick leave, was more credible than respondent’s denial. 

          Respondent was charged with: “Charge No. 8475 is sustained in that, … respondent was absent without authorization, in violation of Department rules.”  As well “Charge No. E156891 is sustained in that, … respondent was absent from home during supervised sick leave, without authorization, in violation of sick leave rule.” 

          Respondent had been a sanitation worker since 2000.  Since that time respondent has been disciplined on 10 separate occasions concerning time and leave violations.  He had “unsatisfactory” overall evaluation in 2008 and 2009 due to these violations. 

          Respondent acknowledged his disciplinary issues concerning time and leave and said that it was due to child care difficulties.  In 2009, he filed for hardship and was given a new work shift for nights to alleviate this burden.  He had less absences and had improved his sick leave status to the A category, from the chronic absence or C category. 

          The court found that although there were disciplinary issues in the past, they did not warrant termination.  Since the respondent had reversed a pattern of poor performance in his time and attendance since the commission of the misconduct two years ago. 

          The ALJ therefore recommended a 30 day suspension for the misconduct proven, which should adequately address the need for progressive discipline. Dep’t of Sanitation v. Perez (in PDF),

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In the Matter of Department of Correction v Stanley Saint-Phard

In this disciplinary proceeding, pursuant to Article 75 of the Civil Service Law, Respondent, a Correction Officer, allegedly used impermissible force against an inmate by dispersing a chemical agent in the inmate’s face and also placed the inmate in a chokehold.

On October 16, 2008, Eric Smith, an inmate at George Motchan Detention Center was mopping up an area near the A station. Respondent entered the area and asked Smith to return to his cell. After some conversation between the two, Respondent dispersed oleoresin capsicum (“OC”) spray towards Smith’s face. Then Smith began to leave the room when Respondent grabbed him and walked him to the front of the A station wall. Smith began to remove one of his hands from the wall when Respondent brought him to the ground and restrained him.

There were several testimonies by witnesses, but the crucial evidence in this case was the videotape of the incident. The videotape did not have sound, but it depicts that Smith’s hands were behind his back when Respondent used the OC spray within a the three feet radius and is also shows that Respondent’s left arm was around Smith’s neck and he maintained that hold while forcing him to the floor.

First, the video evidence showed that Smith was compliant and not aggressive immediately prior to being sprayed and contradicts Respondent’s written statement. Respondent use of the OC spray was prohibited under the Directive 4501R-E. Directive 4501R-E states that “that dispersal of hand-held chemical agents is authorized to defend oneself, another employee, inmate or visitor, to maintain the safety and security of the facility, or to enforce Department rules where necessary to promote the good order and safety of the facility.” Also, Respondent use of the OC spray was impermissible because the directive states that use the spray in less than three feet away from the intended target because spraying the OC spray in close range can cause severe eye and skin irritation or other injuries.

Second, Respondent’s written statement he maintained that he put Smith in an upper body control hold. However, in. the videotape showed that Respondent pushed Smith up against the wall and then put his arm around Smith’s neck. Directive 5006R-C § V (C) prohibits the use of the chokehold except in situations where there is deadly physical force. According to Directive 5006R-C § V (C), you are allowed to use deadly physical when there is no other reasonable alternative to stop or prevent an escape, or when an officer must “defend him/herself of another person from what he/she reasonably believes to be the use or imminent use of Deadly Physical Force by the inmate.” Respondent’s use of the chokehold was unnecessary and is constituted as excessive force.

Lastly, Respondent written statement and use of force report was false and misleading and he submitted the report approximately eleven days after the incident, on October 27, 2008. When an officer is in a use of force incident, a report must be submitted before leaving the facility on the day of the incident. The only exception to this is if you are injured than the use of force report can be submitted at a later time. Respondent claimed that he sustained an injury during the use of force incident and was immediately taken to the hospital. Respondent acknowledges that he may have been back to work before October 27, but cannot provide any plausible reason as why he did not submitted the use of force report earlier.

The Administrative Law Judge has come to the following conclusions: (1) although there was no evidence of actual choking, the use of pressure around someone’s neck can potentially cause serious or even fatal consequences; (2) the use of the OC spray at a close range is also dangerous because of the risk of retinal damage with a pre-existing condition; and (3) submission of a late and misleading use of force report is wrong. Due to Respondent have no prior disciplinary record during his five years as a Correction Officer, it is recommended that Respondent be suspended for 60 days.

Read more about this case here.

To read about more similar cases go to http://www.sheerinlaw.com/?id=78.

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A Nassau County Supreme Court judge has recently ruled that an employer need not attend a anger management counseling to accommodate an employees disability. In the decision issued recently employee alleged that his Parkinson's disease was exacerbated by an employer's volatile behavior. The plaintiff alleged that the employer assured him he would remain calm to avoid disturbing the plaintiff/employee. When the employer failed to do so the employee brought suit. Among other determinations the judge hearing the case found that although anger management may be imposed in child neglect and matrimonial cases the for an employer to attend anger management goes beyond "reasonable" accommodation in the workplace Racing Recovery LLC V. Abbate 017764\2005 Decided 8/10/07

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