Department of Transportation v. K.M.


          The Petitioner, Department of Transportation, brought about these proceedings for employee disciplinary action under section 75 of the Civil Service Law against respondent, a highway repairer for absence without leave and excessive lateness. 

          Respondent had been with the Department since 1985 and was characterized as a hard worker with a poor attendance record. 

          Respondent did not argue that he had been AWOL for several days and late on ten separate occasions. 

          The ALJ had agreed with the Department of Transportation on each instance of respondent’s absence without leave except for one.  This instance was where respondent was denied emergency leave in order to bring his wife to see her brother who was undergoing a biopsy and was being treated for an unknown blood disorder, and still went.  “According to the doctor, the presence of respondent and family members was important to the patient’s well being.” 

          The ALJ believed that because this was an exceptional circumstance this AWOL instance should be dismissed. 

          The Department rules concerning excessive or habitual lateness is expressed by the Citywide Employee Lateness Policy.  “That policy provides for a five minute grace period and defines excessive lateness as seven or more late arrivals.” The policy mandates that a supervisor meet with the employee after the fourth lateness to explain the policy to them and develop methods to help avoid tardiness in the future.  As well, the employee must be warned of the possibility of disciplinary action following further lateness. 

          The ALJ established that it was unclear if the respondent was warned of how future lateness could result in disciplinary action, the petitioner’s compliance with the policy was not followed.  He also expressed that four of respondent’s lateness’s were less then ten minutes each and that excessive tardiness is considered seven within a twelve month period.  Therefore the excessive lateness charge was dismissed. 

          Petitioner sought a 20-day suspension without pay.  Since the respondent had no previous disciplinary record and was expressed as a good worker who needed to improve his attendance.  The ALJ therefore recommended a 10-day suspension.  Dep’t of Transportation v. K.M. (in PDF)