Dep't of Sanitation v. Anonymous

REPORT AND RECOMMENDATION This is a disciplinary proceeding referred by petitioner, the Department of Sanitation (“DSNY” or “the Department”), under section 16-106 of the Administrative Code, against respondent, a sanitation worker.¹ Petitioner brings numerous charges against respondent, including unauthorized use of a Department collection truck, false statements, the use of racist and profane language, sick leave violations, absences without authorization, failure to report an arrest, and requesting sick leave for time when he was incarcerated (ALJ Ex. 1). Petitioner alleges that at the start of his shift on January 3, 2020, respondent drove a sanitation truck without authorization to his residence in Queens and loaded the truck with a piece of furniture from the curb, and that on January 22, 2020, he lied about the incident in an interview conducted by the Field Investigations Audit Team (“FIAT”) (complaint number 170883). Petitioner contends that later on January 3, 2020, when respondent was off-duty, he stole a different collection truck from a Department garage, drove it to his residence, and loaded it with .89 tons of material that appeared to belong to his previous tenant at that residence. Petitioner alleges that on January 24, 2020, respondent failed to cooperate with a FIAT interview by declining to answer any questions about this incident (complaint number 170884). Further, petitioner alleges that on June 9, 2023, respondent used racist and profane language toward New York City police officers while being detained in lower Manhattan, and used racist and profane language toward both police officers and a Department supervisor while being detained at a police precinct (complaint number 2316743, as amended). Also alleged is that respondent: violated the supervised sick leave policy while on sick leave on March 23, 2019, April 3, 2019, and August 14, 2019 (complaint numbers 164482, 165173 and 167122); was absent without authorization (“AWOL”) for three hours on February 3, 2021, and during assigned overtime shifts on July 30, 2021 and August 11, 2021 (complaint numbers 178610, 183579, and 183943); and was arrested for assault and harassment on July 9, 2021, failed to report his arrest within two days as required, and requested sick leave while in police custody (complaint 190196).² Trial was held over six days, on October 17, 2023, January 30, 2024, February 2, 2024, April 2, 2024, April 9, 2024, and May 31, 2024.³ Trial took place by videoconference except for on February 2, 2024, when it was held in-person. Petitioner called seven witnesses: Supervisor Jahmal Mills; Ryan David, Director of the Office of Equity, Diversity & Inclusion; New York City Police Officer Joel Chisolm; General Superintendent Marco Rojas; Supervisor Anthony Casaletti; Lieutenant Daniel Martinez, and Deputy Chief James Anderson. In addition, petitioner presented documentary, video, and audio evidence. Respondent testified in his own behalf and also presented his treating therapist, Michael Ash. For the reasons below, I find that respondent: engaged in the unauthorized use of a Department collection truck on the morning of January 3, 2020, and later lied about it to FIAT; misappropriated a Department collection truck on the evening of January 3, 2020, and later failed to cooperate with an official investigation about the misappropriation; used derogatory language toward police officers and a Department supervisor; violated sick leave rules on three occasions; and was AWOL three times. I recommend that respondent’s employment be terminated. ANALYSIS UNAUTHORIZED USE OF TRUCK ON JANUARY 3, 2020 Petitioner alleges that respondent engaged in the unauthorized use of Department collection trucks to pick up material outside his home on January 3, 2020, twice: once in the morning, during his shift, and then again in the evening, after his shift had ended. Petitioner also contends that respondent lied about the morning incident when interviewed by FIAT on January 22, 2020, and that he failed to cooperate with FIAT when interviewed on January 24, 2020, about the evening incident. Respondent acknowledges using a sanitation truck to pick up a piece of furniture outside his house on the morning of January 3, 2020, but denies picking up any material in the evening. Respondent said he was at dinner in Queens with his girlfriend, but was unsure what time he was at dinner, and did not call his girlfriend as a witness to corroborate his testimony. For both charges, petitioner relied upon the investigative file and report prepared by former Superintendent Tinkler, the FIAT investigator assigned to investigate these allegations (Pet. Ex. 6). Tinkler noted in his report that on the morning of January 4, 2020, John Neonakis, respondent’s next-door neighbor, telephoned him and said that the night before, he had seen respondent loading material from his home into a Department collection truck. That same day, Tinkler located the truck, which was in a Department yard, had it dumped, and video recorded the dumping. On January 6, 2020, he interviewed Neonakis and his son and retrieved videotapes taken from Neonakis’ home surveillance cameras. His investigative file includes the videotapes, audiotapes of the interviews, Department records pertaining to the trucks and to respondent’s work assignment on January 3, 2020, Department Bladerunner GPS records showing the movement of the trucks, various relevant photographs, and transcripts of interviews with respondent and Neonakis (Pet. Exs. 5, 7a-7d, 8, 8a, 9, 9a, 10a-10d, 11a-11b). The file also includes a closing letter to Stephen Calder, the Director of FIAT, summarizing Tinkler’s investigation (Pet. Ex. 5 at 1-4). Respondent and Neonakis have a history of conflict. Tinkler characterized respondent and Neonakis as having been involved in a “nasty neighbor dispute” and noted that Neonakis had made previous complaints against respondent which were closed in part because of that history (Pet. Ex. 2 at 8). Respondent told FIAT in a recorded interview that he has had an “ongoing feud” with Neonakis, who had videotaped his girlfriend and made “improper gestures” (Pet. Ex. 7b, 7d at 8). Petitioner did not call either Tinkler or Neonakis as a witness. Instead, petitioner called General Superintendent Rojas, who testified that Tinkler had retired in December 2020 or January 2024 (Tr. 428-29).⁴ Rojas is the lead investigator for FIAT and has been with FIAT unit for about ten years (Tr. 424, 427). Rojas testified largely based upon the investigative file, which he read. He also listened to the interviews and watched the videos, and he had two brief conversations with Tinkler about his investigation (Tr. 461). Rojas did not reopen the file as the case was already closed and he does not have the authority to reopen or re-evaluate closed cases and does not review them absent a specific request (Tr. 438, 471-72, 474-75). Petitioner did not explain why it did not call Neonakis. Following Rojas’ direct testimony, respondent’s counsel stated that he would be asking for a subpoena to call Neonakis as a witness, which I signed over petitioner’s objection that the subpoena should have been requested in advance (Tr. 414). However, by email dated February 6, 2024, respondent’s counsel reported that an attempt at personal service was fruitless as Neonakis had moved and the family who had moved into his former residence had no knowledge of his new location. As set forth below, I did not credit respondent’s uncorroborated alibi defense. Although much of Tinkler’s investigative file consisted of hearsay, I found it sufficient, coupled with the extensive corroborating evidence relied upon by petitioner, to establish that respondent engaged in the unauthorized use of two Department collection trucks. January 3, 2020, morning incident Respondent was assigned to the Queens East 11A (“QE11″) garage on the 0800 to 1600 shift (8:00 a.m. to 4:00 p.m.) on January 3, 2020 (Pet. Ex. 5 at 1, 3, 10; Pet. Ex. 7b, 7d at 10). From 8:08 a.m. to 9:55 a.m., respondent was assigned truck 25DP-495 (“truck 495″), for recycling relays (Pet. Ex. 5 at 10). At 9:55 a.m., respondent was assigned truck 25DE-214, also for recycling relays (Id.). Respondent resides at an address on 98th Street in East Elmhurst (Pet. Ex. 5 at 20, 50-55; Pet. Ex. 7a, 7d at 5).⁵ As respondent acknowledged to FIAT, collection days on his block are Monday and Thursday (Pet. Ex. 7a, 7d at 5). January 3, 2020, was a Friday morning. Neonakis lived in an attached house next to him (Pet. Ex. 5 at 001; Pet. Ex. 7a, 7d at 8; Pet. Ex. 8, 8a at 3-4). There is no dispute that respondent used truck 495 at about 8:30 a.m. on January 3, 2020, to pick up a piece of furniture outside his residence. The Department’s GPS Bladerunner records show the truck on respondent’s block between 8:23:06 and 8:25:58 (Pet. Ex. 5 at 99). In addition, Neonakis provided Tinkler with video files from fixed surveillance cameras affixed to his house, which showed the truck on the block at this time and showed a person who Neonakis identified as respondent getting out of the truck, picking up what appears to be a dresser, and loading it into the truck before driving away (Pet. Ex. 5 at 2-4, 43, 47; Pet. Ex. 8a at 5, 7; Pet. Ex. 10a at 8:23:23-8:25:37). The video does not show respondent going inside his house during this time. Moreover, respondent acknowledged using a sanitation truck to pick up a piece of furniture that he said that the collection truck had “left behind” (Tr. 698). He said that he was not under the influence of alcohol at this time (Tr. 725). The furniture was not his, he had not put it on the curb, and he did not know who it belonged to, but he had noticed it that morning in front of his house (Tr. 726-27). Respondent acknowledged that his house was not within his assigned district and that he had not spoken to the sanitation workers who were on the collection truck assigned to the block (Tr. 698). When interviewed by FIAT on January 22, 2020, respondent said that before he went to the dump on the morning of January 3, 2020, he “diverted by [his] house quickly” because he had forgotten his phone at home (Pet. Ex. 7b, 7d at 12). He said that he “guess[ed]” that his phone was on his night table where he charges it and that he “ ran in the house” to get it Pet. Ex. 7b, 7d at 12). Asked if he did “anything else” at the time, respondent said “no” (Pet. Ex. 7b, 7d at 13). Shown the video of truck 495 on his block, respondent said that he did not remember “any of this” (Pet. Ex. 7c, 7d at 14-15). Respondent acknowledged that he had been untruthful when interviewed by FIAT when he said that he ran into the house to retrieve his phone and did not do anything else (Tr. 724). Petitioner proved that by diverting from his route to pick up a piece of furniture outside his home and load it into the sanitation truck, respondent violated Department rules 3.2 (failure to promptly perform assigned duties and tasks); 3.25 (unauthorized absence from assigned work route); 3.27 (conduct prejudicial to good order and discipline); and 5.2 (unauthorized use of Department equipment and property). In addition, because respondent falsely told FIAT that he went into his home to retrieve his cell phone, which is not captured on the video, respondent violated rule 4.4 (making false reports, statements, or entries in connection with Department activities). However, petitioner did not prove that respondent violated rule 3.1 (failure to obey a direct order from a supervisor). January 3, 2020, evening incident The more serious of the charges relates to the evening incident on January 3, 2020. Petitioner contends that respondent misappropriated Department collection truck 25DN-611 (“truck 611″), which had been placed in a “downed” condition, drove it to his residence, and loaded it with .89 tons of material belonging to a former tenant. Respondent was not on duty at that time, as his shift ended at 4:00 p.m. (Pet. Ex. 5 at 12). Petitioner relies largely on documentary and video evidence, including GPS records tracking the truck, a videotape provided to Tinkler from Neonakis from his home surveillance cameras, and Neonakis’ recorded FIAT interview. As noted above, respondent denies the allegations, stating that he was out to dinner in Astoria with his girlfriend. Tinkler wrote in his investigative report that during his January 4, 2020, telephone call, Neonakis described seeing respondent and another person load “construction waste” from his residence and pile it on the curb and in the street on January 3, and that later on that night, around 9:00 p.m., he saw respondent drive to his house in a Department collection truck, load the material into the truck, and drive away. Tinkler wrote that Neonakis said that respondent drove around the block at least three times, stopping each time to pick up additional material (Id. at 1). In addition, when he visited Neonakis on January 6, 2020, and retrieved Neonakis’ video files, both Neonakis and his son identified respondent in the video files (Id. at 2-3). On January 30, 2020, during a recorded FIAT interview, Neonakis repeated that he had seen respondent load material onto the curb and later drive up in a sanitation truck into which he loaded the material. Neonakis confirmed that respondent made three passes around the block because traffic was backing up (Id. at 2-4, 47; Pet. Ex. 8a at 5, 7, 8). During this interview, Neonakis also identified respondent from an array of eight photographs which Tinkler showed him, pointing out respondent’s photo without hesitation when asked by Tinkler if he recognized respondent among the photographs (Pet. Ex. 8, 8a at 7; Pet. Ex. 5 at 3-4, 47). The photo array, included within the investigative file, shows respondent as balding, with close cropped hair, and a beard and moustache. The other seven men in the photo array are bald, balding, or have closecropped hair, and some have facial hair such as beards or moustaches (Pet. Ex. 5 at 47). Significant documentary and video evidence corroborate Neonakis’ statements to Tinkler, both initially and during his recorded interview. Department records show that truck 611 had been placed in “down” status since December 30, 2019, awaiting mechanical work. Its bin was empty, and it was parked within the Queens East 07 (“QE07″) facility (Id. at 2, 16; Rojas: Tr. 348, 352). As Tinkler noted, the truck remained within the facility until about 8:58 p.m. on January 3, 2020, when Bladerunner GPS records show that it began to move away from the facility into the East Elmhurst neighborhood (Pet. Ex. 5 at 2, 92). The Bladerunner records, which include GPS coordinates and matching street addresses, show that truck 611 made three passes on respondent’s block between 2105 and 2119 hours (9:05 p.m. and 9:19 p.m.) on January 3, 2020, remaining on or near the block before driving away (Pet. Ex. 5 at 1). More specifically, the Bladerunner records show the truck on respondent’s street, near his address on 98th Street, from 21:05:39 through 21:07:54 (Id. at 93). Upon leaving the block, the truck turns onto 32nd Avenue, then 97th Street, then 31st Avenue, and returns to 98th street, where it remains near respondent’s house from 21:09:59 to 21:13:39 (Id.). As before, the truck then turns onto 32nd Avenue, 97th Street, and 31st Avenue, before returning to 98th Street at 21:15:07 and remaining in the vicinity of respondent’s address until 21:19:17 (Id.). Then the truck moves onto 32nd Avenue, 97th Street, and 31st Avenue, but rather than returning to 98th Street, it goes onto Astoria Boulevard and at 21:28:56 returns to the QE07 yard in Flushing at 122-38 31st Avenue (Id. at 94). Tinkler confirmed on January 4, 2020, that truck 611 was parked in the yard across from QE07, with “broken furniture” in its hopper (Id. at 2, 56-60; Rojas: Tr. 381-82). He had the truck transported to the North Shore Marine Transfer Station, where its contents were dumped. The offloading of the truck was filmed, with Tinkler narrating (Pet. Ex. 5 at 2, Pet. Ex. 11a). A dump receipt, captioned, “DSNY Tonnage Delivery Report,” shows that the net weight of the material dumped from the truck was .89 tons (Pet. Ex. 5 at 18, 19). The record includes numerous video files which Neonakis produced to Tinkler. The files span portions of the period between 6:21 p.m. and 9:20 p.m., and are shown from two separate camera angles (Pet. Ex. 10b-10d). Tinkler wrote that he “confirmed the timestamp on the camera system” as accurate and that he inspected and “visually confirmed” the locations and angles of the two fixed video cameras (Pet. Ex. 5 at 2). The video files capture both the loading of material from respondent’s house onto the curb and street, and the subsequent loading of the material onto truck 611. The video files which show the material being loaded onto the truck are consistent with the Bladerunner records tracking the location of truck 611. Petitioner’s Exhibit 10b captures the scene outside respondent’s house from about 7:10 p.m. until about 7:30 p.m., which is when Neonakis said respondent was carrying material from his house to the street and curb. The video shows that at about 7:11 p.m., a tall, balding man (identified by Neonakis to Tinkler as respondent) emerges from respondent’s house carrying a long strip of wood that he puts on the street behind a parked car. The car is parked next to the tree in front of respondent’s house. There are already piles of household debris, spanning approximately a car length, on the curb next to the tree and on the street (19:10:05-19:11:15).⁶ After putting the wood down, the man walks from the street around the side of respondent’s house and disappears from the frame (19:11:12-19:11:20). About fourteen minutes later, someone tosses a large rectangular object from the door of respondent’s house down respondent’s front steps. The object is covered in what appears to be a plaid fabric (19:25:19). With the object still on the steps, a man who appears to be the same man who previously carried out the strip of wood walks down the steps, carrying what looks like another strip of wood, which he places on the street next to the other material (19:25:54-19:26:07). He is wearing a face mask, which is visible as he walks back to respondent’s house from the street (19:26:10). Rojas testified that Tinkler told him that the man in the mask was respondent (Tr. 402).⁷ The man then walks up the steps, retrieves the plaid-covered object, and puts it in the street next to the other material (19:26:10-19:26:31). The plaid cover is only on top of the object, which resembles a mattress or cushion (19:26:23). The man returns to the house, goes inside, and comes back out less than a minute later, carrying what looks like a chest of drawers, which he puts on the street next to the other material before going back inside (19:26:32-19:26:43, 19:27:02-19:27:32). Then, at 19:30:46, two people, including the man with the mask, emerge from respondent’s house, carrying what appears to be some type of shelving unit. They carry the unit down the steps of respondent’s house and the man with the mask puts the furniture in the street near the other material (19:31:05). The two people stand outside for approximately 30 seconds and then the man with the mask returns to respondent’s house (19:31:05-19:31:46). Petitioner’s Exhibit 10c shows truck 611 make three passes on respondent’s block between 9:05 p.m. and 9:18 p.m., during which respondent and another person load the material on the curb and street into the hopper of the truck. The truck first appears on screen slightly after 9:00 p.m. (21:05:44). It proceeds slowly down the block until 21:05:55, at which point it stops so that the hopper is in front of the material piled on the street and next to the material on the curb. At 21:05:59, the driver of the truck, who Neonakis identified as respondent (Rojas: Tr. 405; Pet. Ex. 8, 8a at 5),⁸ gets out of the truck, walks around the side of the truck to the hopper, and begins to load material from the street into the hopper. He loads until about 21:06:55, when he starts talking to the driver of a car that is stopped immediately behind the truck, unable to proceed because of the truck. Less than a minute later, the driver of truck 611 returns to the truck and drives away (21:07:33). About three minutes later, truck 611 re-emerges on the block and stops in the same location (21:10:13, 21:10:23). A person who has previously crossed the street and walked toward the pile of material in the street (21:09:04), starts loading material into the hopper (21:10:25). The driver of the truck (identified by Neonakis as respondent) exits the truck, walks back to the hopper, and with the other man, picks up material and loads it into the hopper (21:10:28-21:10:43). This lasts about three minutes, until the driver of truck 611 re-enters the truck and drives away while the other man remains on the street. The other person remains in the street, which now appears clear of material, although there is material still out on the curb (21:13:16-21:13:20). About two minutes later, truck 611 again appears on the street, stopping in the same spot (21:15:08-21:15:15). The other person begins to load as the driver (identified as respondent) exits the truck, walks around the side of the truck, and also loads material from the curb into the truck. The driver and the other person load the truck for about three minutes until the driver gets back into the truck and drives away. At this time the street and curb are clear of material (21:18:44). Among the material that the two people have loaded into the truck are the mattress or cushion with the plaid cover, many plastic bags, a sofa, a mirror, a chest of drawers, and what look to be pieces of wood. Petitioner’s Exhibit 10d is duplicative of Petitioner’s Exhibit 10c in that it shows the last pass-through of truck 611, from about 21:15:08 through 21:18:44. The video which Tinkler took showing the offloading of the truck shows that a considerable and varied amount of material was in the hopper of the truck, including a couch; cardboard boxes; what appears to be a mattress with a plaid cover; rugs; furniture; mirrors; and mail addressed to Samantha A. and Sabrina A.⁹ (Pet. Ex. 11a). Tinkler also took photographs of the material inside the hopper and the material that was dumped from the hopper (Pet. Ex. 5 at 62-70; Tr. 382). The photos show numerous cardboard boxes and bags, a couch, and a mattress with a checked cover (Pet. Ex. 5 at 64-65). They also show a close-up of various envelopes addressed to Sabrina A. at the 98th Street address, which sometimes includes “2ND floor” or “FL2″ or “2″ (Id. at 66-70). This includes a close-up of Sabrina A.’s voter registration card (Id. at 90). When shown photographs during the recorded FIAT interview of material retrieved from the dumped truck, Neonakis identified the material as the same material that respondent loaded into the truck, including several couches, dressers, and carpets (Pet. Ex. 8, 8a at 8-9). Tinkler concluded from the videos that the items were the same (Pet. Ex. 5 at 3). This is consistent with my assessment of the video evidence, which shows both the material taken from the house and loaded onto the truck and the material dumped from the truck. Notably, as Rojas noted, the plaid cover on the mattress or cushion from the material dumped from the truck looks identical to the plaid cover on the mattress or cushion that was removed from respondent’s house (Tr. 410-11). Considering the variety of items in the truck, including furniture, clothing, sheets, beddings, curtains, rugs, and mail, Tinkler concluded that the truck “contained material that appeared to be from an apartment cleanout” (Pet. Ex. 5 at 2).    Additionally, there was evidence showing that “Samantha A.” and “Sabrina A.” were tenants of respondent who had moved. Respondent told FIAT during his January 22, 2020, interview, that he owns his house and has lived there for two or three years and city records confirm that he is the deed holder (Pet. Ex. 7a, 7d at 5-6; Pet. Ex. 5 at 2, 30-39). Respondent told FIAT during his January 24, 2020, FIAT interview that he had tenants in the house in 2019, although he did not recall if Sabrina A. lived there and did not recall if anybody had moved out since December 2019 (Pet. Ex. 9, 9a at 5-6). Asked in that same interview if he had to clean out any floor of the house from December 2019 on, respondent answered, “I don’t remember doing anything” (Pet. Ex. 9, 9a at 6). A Lexis Nexis search for the location, conducted on January 4, 2020, shows that it is a “triplex” and that Sabrina A. resided at respondent’s 98th Street address, “APT 2ND,” from January 2015, through December 2019 (Pet. Ex. 5 at 2, 21, 23, 26). Neonakis also confirmed in his recorded interview that Sabrina A. resided on the second floor (Pet. Ex. 8a at 9). Respondent was interviewed by FIAT on January 22, 2020, and January 24, 2020, both times represented by counsel (Pet. Exs. 7a-d, 9, 9a). During the January 24, 2020, FIAT interview, respondent, through his counsel, declined to answer three questions asking if respondent could comment on: video showing material being taken out of his residence and placed curbside (Pet. Ex. 9, 9a at 7); video showing a sanitation truck pulling up to his residence three times and ultimately being loaded with all of the material that was curbside (Pet. Ex. 9, 9a at 8), and video and GPS records showing that the downed truck was driven to respondent’s residence and later returned to the garage (Pet. Ex. 9, 9a at 9-10). Respondent denied removing materials from his house, placing them on the curb, and loading them into a Department collection truck (Tr. 698, 733). He said that he was not home on the evening of January 3, 2020, because he had gone out to dinner with his girlfriend to an Italian restaurant in Astoria (Tr. 698, 729-30). He did not remember the name of the restaurant but recalled that it was recommended by “an older gentleman” from the district who had his wedding there (Tr. 699). He said that his girlfriend could support his “whereabouts” (Id.) but did not call his girlfriend as a witness or seek to introduce an affidavit or written statement from her. Respondent also did not recall when he and his girlfriend left for dinner (Tr. 729-30). He said he is “usually hungry 5:00-ish. 6:00-ish. Somewhere around there, I would say” (Tr. 730). Asked when he got home from dinner, respondent said that if he and his girlfriend went to dinner and then had some drinks, he “would say probably sometime after 10″ (Tr. 733). When he got home, he did not notice anything missing from his house (Tr. 734). Asked about the video, he said he did not know who put the materials out on the curb or drove the sanitation truck into which the materials were loaded (Tr. 733, 735). He did not ask anyone to do this (Tr. 733). He does not know anyone who would do that, although he believes there was “someone on the block” who “had some type of relationship with a sanitation worker” (Tr. 738). Respondent asserts that petitioner did not meet its burden of proof on this charge because much of its case rested on hearsay. I disagree. Hearsay is admissible in administrative proceedings and can form the sole basis for a disciplinary finding if sufficiently reliable and probative. See 48 RCNY §1-46(a) (Lexis 2024); People v. Smith, 66 N.Y.2d 130 (1985); S & S Pub, Inc., v. NYS Liquor Auth., 49 A.D.3d 654 (2d Dep’t 2008); Police Dep’t v. Ayala, OATH Index No. 401/88 (Aug. 11, 1989), aff’d sub nom. Ayala v. Ward, 170 A.D.2d 235 (1st Dep’t 1991). Double hearsay, or “hearsay upon hearsay” is less reliable and thus subject to greater scrutiny. See Dep’t of Correction v. Smith, OATH Index Nos. 2526/19, 2527/19, 2528/19 & 198/20 at 5 (Nov. 12, 2019), adopted, Comm’r Dec. (Aug. 13, 2020) (admitting investigative report containing summaries of an interview with a detainee as well as summaries of written reports written by correction personnel but noting this will “affect the weight” to be accorded them); Health & Hospitals Corp. (Queens Hospital Ctr.) v. Davis, OATH Index No. 660/14 at 3-4 (Jan. 15, 2014) (noting that “we have consistently questioned the reliability of hearsay upon hearsay” and that, standing alone, the testimony of a witness and that witness’ email about what someone else said to him “would be deemed too unreliable to support any fact-finding”). It is unclear why petitioner did not ask for a subpoena to call Tinkler or Neonakis as a witness, rather than rely on Tinkler’s investigative report, particularly given the record of animosity between Neonakis and respondent. See Dep’t of Sanitation v. Serrano, OATH Index No. 813/16 at 6-7 (Jan. 20, 2016), modified, NYC Civ. Serv. Comm’n Index No. 2016-243 (July 27, 2016) (finding that evidence failed to prove that sanitation worker made an offensive reference to sexual orientation where allegation was based solely on a hearsay statement from a potentially biased witness). However, here petitioner has met its burden of proof because of the consistency of the hearsay evidence, including recorded statements, and the extensive corroborating evidence. Petitioner did not rely solely upon Tinkler’s written report summarizing Neonakis’ complaint and Neonakis’ identification of respondent. Rather, petitioner introduced the recorded FIAT interview of Neonakis in which Neonakis unequivocally identified respondent as the person loading material onto the street and then on to the sanitation truck. In that same recorded interview, Neonakis selected respondent’s photo from a photo array of eight photographs. The consistency between Neonakis’ recorded interview and Tinkler’s report summarizing his phone call and interview with Neonakis confirms that Tinkler accurately reported what Neonakis told him. To that extent, it diminishes concerns about the double hearsay nature of Tinkler’s report. Compare Dep’t of Correction v. Thomas, OATH Index No. 2212/22 at 33 (Aug. 8, 2022), adopted, Comm’r Dec. (Sept. 29, 2022), aff’d, NYC Civ. Serv. Comm’n Case No. 2022-0682 (Jan. 17, 2023) (finding that correction officer committed excessive force against detainee where video evidence of incident corroborates portion of detainee’s statement, recorded as double hearsay in an investigative report, of the type of force used) with Dep’t of Correction v. Cerrato, OATH Index No. 2021/22 at 5-6 (May 31, 2022), adopted, Comm’r Dec. (July 6, 2022) (in absence of corroborating evidence, testimony of police officer who spoke to respondent’s wife on the day of respondent’s arrest over three years ago was insufficiently reliable to prove that respondent assaulted his wife); see also Dep’t of Correction v. Blackett, OATH Index No. 274/21 (July 13, 2021), adopted, Comm’r Dec. (Sept. 23, 2021) (denying respondent’s application to redact summary of written reports and Mayor’s Executive Order (“MEO”) interviews from closing investigative report where Department did not call the report writers as witnesses or introduce their recorded interviews, but noting “Clearly the better practice would have been to submit the actual MEO interviews, which were recorded, along with [the witnesses'] written reports”). In addition, the consistency between Neonakis’ initial statement by telephone (made on the morning of January 4, 2020), Neonakis’ initial interview with Tinkler (conducted on January 6, 2020), and Neonakis’ recorded statement on January 30, 2020, enhances the reliability of those hearsay statements. See Fire Dep’t v. Toner, OATH Index No. 2741/15 at 3 (June 30, 2016) (memoranda created by respondent’s immediate supervisors were “especially reliable” because they were created soon after the events described, based on personal observations, and “often corroborated each other”). There is also considerable documentary and video evidence consistent with Neonakis’ identification of respondent as the person who loaded debris to the street and curb and onto the truck. This includes GPS Bladerunner records, Department records showing truck 611 was in a “down” status since December 30, 2019, videotapes provided by Neonakis, the videotape of the dumping of tuck 611, and record searches showing that Sabrina A. resided at respondent’s 98th Street address through December 2019. Despite the history of animosity between Neonakis and respondent, there is no evidence to suggest that the videos supplied by Neonakis were fabricated or doctored. As Tinkler noted in his report, Tinkler was in Neonakis’ home when Neonakis gave him the video files. Tinkler confirmed that the location and angles of the video were consistent with the fixed surveillance cameras outside Neonakis’ house.¹⁰ In addition, the GPS records and the video of the dumping of the truck are consistent with the videos produced by Neonakis. Consistent with Neonakis’ videos, the GPS records establish that truck 611, which was in a “down” status parked in a Department yard, remained in the yard until about 9:00 p.m. on January 3. After that time the GPS records show that the truck began to move in the direction of respondent’s residence and then made three passes on respondent’s block starting about 9:05 p.m., during which respondent and another person loaded material that was on the curb and street in front of respondent’s house into the truck’s hopper. The videotape of the dumping of the truck corroborates Tinkler’s statement, confirmed by Neonakis in his recorded interview, that the material dumped from the truck was the same as the material loaded into the truck, including the furniture and the plaid-covered mattress. And the photographs and video of mail contained within the dumped material correlate to Sabrina A., a former tenant of respondent. On three separate occasions, one during the recorded interview which also included a photo array, Neonakis identified respondent as the person who brought furniture and other material from his house onto the curb and street, and who later drove the collection truck to the block and loaded the material into it. Moreover, respondent’s testimony about the incident was not credible. Notably, although respondent claimed that he was not home on the evening of January 3, 2020, because he had gone to dinner with his girlfriend, he did not call his girlfriend as a witness despite saying that she could support his defense. Petitioner contends that respondent’s failure to call his girlfriend would warrant a missing witness inference (Petitioner’s Closing Arguments at 8). A fact-finder may but is not required to draw an adverse or negative inference against a party where the party fails to produce a witness within its control who is expected to testify favorably to that party in a manner that is not cumulative. See DeVito v. Feliciano, 22 N.Y.3d 159, 165-66 (2013) (noting that the “missing witness” jury charge instructs a jury that it may draw an adverse inference against a party based upon that party’s failure “to call a witness who would normally be expected to support that party’s version of events”) (internal citations omitted); People v. Gonzalez, 68 N.Y.2d 424, 427 (1986) (noting that the missing witness charge “derives from the commonsense notion that the nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party’s cause” (internal citations omitted); see also 318 E. 93, LLC v. Ward, 276 A.D.2d 277 (1st Dep’t 2000) (noting, in a nonjury trial, that the missing witness inference is permissive rather than mandatory). As the Court noted in DeVito, the missing witness jury instruction advises that if a party “fails to offer a reasonable explanation for its failure to call a witness to testify on a question, then the jury may, although it is not required to, conclude that the testimony of the witness would not support that party’s position on the question and would not contradict the evidence offered by the opposing party on this question.” 22 N.Y.3d at 165 (internal citations omitted). However, while the missing witness inference permits the trier of fact to draw the strongest possible inference that the opposing evidence permits, DeVito, 22 N.Y.3d at 165, it may not be used to fill in a gap in the requesting party’s proof. Dep’t of Consumer & Worker Protection v. Judson Management Group, Inc., OATH Index No. 032/20 at 25-26 (Apr. 20, 2022), adopted, Comm’r Dec. (June 30, 2022); Matter of Romano, OATH Index No. 2661/14 at 23 (Nov. 18, 2015), adopted, Loft Bd. Order No. 4459 (Jan. 21, 2016); Dep’t of Sanitation v. Richins, OATH Index No. 167/01 at 12-13 (Oct. 15, 2001). Here, respondent confirmed that the person who was his girlfriend in 2020 is still his girlfriend and that she could “support” his testimony about going to dinner on the night of January 3, 2020 (Tr. 699, 729-30). His unexplained failure to call his girlfriend as a witness is puzzling. See Gonzalez, 68 N.Y.2d at 428 (finding that once the party seeking the inference establishes a prima facie case that the uncalled witness is knowledgeable about a pending material issue and would be expected to testify favorably, the burden shifts to the opposing party, “in order to defeat the request to charge [the inference], to account for the witness’ absence or otherwise demonstrate that the charge would not be appropriate”). Moreover, courts have held that while corroborative, an alibi witness’s testimony is not cumulative where there are substantial issues of credibility raised by an alibi defense. See People v. Days, 131 A.D.3d 972, 974 (2d Dep’t 2015) (finding that trial court did not err in finding that the defendant’s mother’s testimony would not have been cumulative of alibi testimony submitted by other witnesses at trial); People v. Dantzler, 53 A.D.3d 504 (2d Dep’t 2008) (finding that trial court properly granted request for a missing witness charge regarding the defendant’s mother, “since, according to the defendant’s own testimony, she was sufficiently knowledgeable about his whereabouts at the time of the crime as to make her testimony material to his defense and not cumulative”); People v. Torres, 255 A.D.2d 129, 130 (2d Dep’t 1998) (finding that trial court properly granted request for missing witness charge regarding defendant’s mother and that her testimony would not have been cumulative of the testimony of other alibi witnesses because “the lines of dispute were drawn sharply in terms of credibility” and the testimony of the defendant’s mother, who was the only other person with the defendant at the time of the crime, “might have made the difference on this material issue”) (internal citations omitted). Thus, it would be permissible, but not mandatory, to infer from respondent’s failure to call his girlfriend that she would not support his testimony about being out to dinner at the time that material directly outside respondent’s house was loaded onto truck 611 and that his girlfriend’s testimony would not contradict the opposing evidence offered by petitioner. While I draw this limited inference, I also find, for separate reasons, that respondent’s testimony about his alibi was not credible. The incident in question happened over four years ago. Respondent did not explain why he would recall where he went to dinner on the night in question. He did not, for example, testify that it was his birthday or an anniversary, or that he had any photographs or bank statements that might have refreshed his recollection about where he went for dinner. And respondent did not mention during his FIAT interviews on January 22, 2020, or January 24, 2020, that he had not been home when material was taken out of his house or loaded onto truck 611, but instead had been out to dinner with his girlfriend (Pet. Exs. 7, 9). These interviews were conducted no more than three weeks after the incident in question, at a time when someone who had been out to dinner during the time he was accused of misconduct might have been expected to both recall that he had been out to dinner and convey that information to investigators questioning him about the alleged misconduct. Respondent’s failure to say anything about an alibi to FIAT in January 2020 further diminishes the credibility of his trial testimony. In addition, respondent was unclear about when he went to dinner and when he returned home. He could not pinpoint when he went to dinner, saying that he usually gets hungry “somewhere around” 5 p.m. and 6 p.m. Nor could respondent pinpoint when he returned home, saying that he would have come home after 10 p.m. if he and his girlfriend went to dinner and had drinks, but not saying that in fact they had drinks and returned home late. Thus, even if I were to credit respondent’s testimony, which I do not, that he and his girlfriend went to dinner in Astoria some time on January 3, 2020, there is no reliable, credible evidence on this record to establish that respondent was not home when materials were carried out of respondent’s house after 7 p.m., and when those same materials were loaded onto truck 611 (after 9 p.m.). Respondent’s testimony about the events depicted on the video was also incredible. When asked about the video, respondent said that he did not know who would have driven the truck or put out the materials on the curb and that he did not ask anyone to do so. He speculated that there was someone on the block who had “some type of relationship” with a sanitation worker. That answer did not explain why the other unnamed sanitation worker would have access to go in and out of his house carrying furniture, wood, a mattress, and other material for about twenty minutes starting about 7 p.m. and later make three turns around the block to pick up that material. Respondent’s testimony during his January 24, 2020, FIAT interview that he recalled having tenants in 2019 but did not recall if anyone had moved out since December 2019 or if a Sabrina A. lived there further undermined his testimony. Consistent with the video evidence showing envelopes and a voter registration card addressed to Sabrina A. at respondent’s address (at the second floor), the January 4, 2020, Lexis Nexis search shows that Sabrina A. was a tenant in the second-floor apartment of respondent’s house. It is not credible that respondent, who owns a triplex and not a large apartment building, would not know the names of one of his tenants. Similarly, it is not credible that three weeks into January of 2020, respondent would not recall, as he told FIAT, whether anyone had moved out in 2019, or whether he had had to clean out any floor of the house from December 2019 forward. Put simply, respondent’s testimony made no sense. See Dep’t of Sanitation v. Menzies, OATH Index No. 678/98 at 2 (Feb. 5, 1998), aff’d, NYC Civ. Serv. Comm’n Item No. CD98-101-A (Sept. 9, 1998) (factors to be considered in assessing credibility include witness demeanor, consistency of 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”). Thus, considering the evidence as a whole, including Tinkler’s report, the GPS Bladerunner evidence, the videos produced by Neonakis, and Neonakis’ recorded statements to FIAT, petitioner proved that respondent, on the evening of January 3, 2020, engaged in the unauthorized use of truck 611, which had been downed and stored in a Department yard awaiting mechanical work, by driving that truck to his house, loading materials onto the truck which he had earlier removed from his house, and driving away. See Dep’t of Sanitation v. Jefferies, OATH Index Nos. 2529/09, 2530/09 (Sept. 18, 2009), aff’d sub. nom. Andruszkiewicz v. Doherty, 84 A.D.3d 595 (1st Dep’t 2011) (finding that sanitation workers went off their route with a Department truck and picked up a large quantity of garbage from a home on two non-collection days based largely upon video recorded by a neighbor who lived about three houses away from the home in question); Dep’t of Sanitation v. Kallinicos, OATH Index No. 485/05 (May 24, 2005) (finding sanitation worker liable for picking up trade waste where civilian witness gave two hearsay statements stating that worker picked up construction debris but failed to respond to subpoenas to testify where the hearsay statements were corroborated by documentary evidence showing that respondent was the only worker assigned to the truck at that time and that construction material was found inside the hopper of the truck); see also Dep’t of Education v. Halpin, OATH Index No. 818/07 at 12-13 (Aug. 9, 2007), adopted, Chancellor’s Dec. (Aug. 23, 2009), aff’d sub nom. Halpin v. Klein, 62 A.D.3d 403 (1st Dep’t 2009) (finding that employee submitted false time records indicating that he worked a full day on 63 occasions based upon GPS software installed in employee’s Department-issued cell phone that tracked his movements during work hours and showed that he left work early on these dates). Given the nexus between respondent’s unauthorized use of a sanitation truck and his job as a sanitation worker, the off-duty nature of his misconduct does not bar discipline. See, e.g., Logan v. New Paltz, 129 A.D.2d 935, 936 (3rd Dep’t 1987). By misappropriating the downed truck to remove material from outside his house, respondent violated Department rule 5.2 (unauthorized use of Department equipment or property) and rule 3.27 (conduct prejudicial to good order and discipline). Although it is duplicative of the charge that respondent engaged in the unauthorized use of Department property, the charge that respondent violated rule 5.3 by permitting the unauthorized use of Department property is also sustained. Petitioner charged that respondent also violated rule 4.5 (stealing, attempting to steal, or allowing anything to be stolen from Department premises, or property, or any equipment or vehicle belonging to the Department); rule 4.6 (knowingly possessing or attempting to possess stolen property); and rule 4.10 (engaging in criminal activity while on duty or on Department premises or property, or while using or operating Department vehicles or equipment, or engaging in any Department activities). The violations of rules 4.5 and 4.6 are not sustained. Rules 4.5 and 4.6 charge that respondent stole or knowingly possessed stolen property. However, there is no dispute that respondent returned the truck and thus it is not clear that he “stole” the truck as that term is commonly defined. Compare Steal Definition & Meaning, Merriam-Webster, https://www.merriam-webster.com/dictionary/steal (accessed Aug. 22, 2024) (defining steal as “to take the property of another wrongfully” or “to take or appropriate without right or leave and with intent to keep or make use of wrongfully”) with STEAL, Cambridge Dictionary, https://dictionary.cambridge.org/us/dictionary/english/steal (accessed Aug. 22, 2024) (defining steal as “to take something without the permission or knowledge of the owner and keep it”). But see Dep’t of Sanitation v. Rivera, Comm’r Dec. at 15 (June 22, 2009), aff’g in part, rev’g in part, OATH Index No. 2056/09 (June 4, 2009) (finding that sanitation worker who misappropriated but returned truck was guilty of stealing truck because “[a] review of any dictionary shows that Respondent’s admitted actions fit the exact definition for the word ‘steal’” and respondent’s ultimate return of the truck was “ultimately meaningless”). Moreover, even if rules 4.5 and 4.6 were sustained, they are duplicative of the charge that respondent misappropriated the truck and would not affect penalty. I do not reach whether respondent violated rule 4.10 by engaging in criminal activity by misappropriating the truck. This tribunal does not adjudicate Penal Law violations, except in limited circumstances when necessary to determine if an employee has committed misconduct, such as where disciplinary charges would be barred by the statute of limitations unless the crimes exception applied. See, e.g., Office of the Comptroller v. Lattanzio, OATH Index No. 1029/04 at 11-13 (Oct. 13, 2004). By contrast, where the evidence establishes that respondent engaged in misconduct, there is “no reason for this tribunal to make a finding as to whether [the respondent's] acts also may have constituted crimes.” Id. at 13. Here, having found that respondent’s misappropriation of the truck violated rule 5.3, there is no reason to find whether it also violated the Penal Law. Finally, petitioner alleges that respondent violated rule 4.1, requiring an employee to cooperate with an official inquiry, by failing to answer questions during his January 24, 2020, FIAT interview. As noted above, during that interview, respondent, through his attorney, declined to answer questions about what the video showed relating to the loading of materials curbside from respondent’s house as well as the loading of truck 611 with that material. Respondent also declined to answer questions regarding video and GPS records showing the location of truck 611 at and around the time of the incident. This charge is sustained. ARREST ON JUNE 9, 2023 Respondent was arrested on June 9, 2023, and charged with driving while intoxicated or driving while impaired. The parties agree that the criminal charge was later dismissed (Tr. 16, 257, 319). Petitioner does not charge respondent with driving while intoxicated. Rather, petitioner contends that respondent used racist and profane language to police officers and supervisors and a Department supervisor, in violation of the Department’s rules and the City’s EEO policy. Petitioner introduced video and audio footage taken from a body camera worn by one of the arresting officers (Pet. Ex. 4), which records the incident from the time that this arresting officer encounters respondent on the sidewalk where he was detained until the time that respondent is put into a holding cell at the 7th precinct. Respondent does not dispute that he made the statements recorded by the camera. The footage establishes that respondent directed multiple slurs and obscenities to police officers and supervisors at the scene of his arrest and at the precinct. In addition, Supervisor Mills testified about statements that respondent made to him when he visited respondent in his holding cell to try to pick up Department property in respondent’s possession. Respondent expressed remorse for his statements, stating that he had been drinking at the time, that the video was “very difficult” for him to watch, and that the person in the video is “not the person I am” (Tr. 695). Respondent and his therapist, Mr. Ash, also testified about respondent’s mental health struggles, which manifested that day in his intoxication. As discussed below, however, respondent’s struggles with depression, anxiety, and related disorders, while significant, do not constitute a defense to his use of racist and profane language. Thus, based upon the video evidence and upon Supervisor Mills’ testimony, which I found credible, I find that respondent used racist and obscene language, in violation of various Department rules, and that he violated the Department’s EEO policy with respect to language used in the patrol car and in the precinct. Given my finding that respondent violated various Department rules through his language toward police officers while detained on the street, I need not and do not reach the issue of whether the use of such language on a public street violated the Department’s EEO policy. Petitioner’s Evidence of Respondent’s Interaction with Police Officers on the Street and at the Precinct Petitioner’s primary evidence consisted of Officer Chisolm’s testimony about the incident and of video footage, with audio, taken from Officer Chisolm’s body-worn camera (Chisolm: Tr. 236; Pet. Ex. 4). Chisolm explained that he has been a police officer with the New York City Police Department for three years and has been assigned to the 7th Precinct on the Lower East Side of Manhattan for over two years (Tr. 235). On June 9, 2023, he activated his body-worn camera while he and his partner, Officer Gore, were in a patrol car driving to a Target Store after receiving a report of a possible larceny at the store (Tr. 254). He did not turn off the camera until he returned to the precinct later that day with respondent, and after respondent was placed in a holding cell (Id.; Pet. Ex. 4). Chisolm explained that while he and Gore were in Target, they received a call over the radio from plainclothes officers who requested additional units (Tr. 241). The radio run was “10-10,” relating to a suspicious person, which Chisolm testified is sometimes used to describe someone who is driving while under the influence of alcohol (“DUI”) (Tr. 300). The video footage (Pet. Ex. 4) shows respondent making numerous racist and profane statements, on the street, in the patrol car, and in the precinct.¹¹ On the street, the video shows respondent, hands behind his back, standing next to a person whom Officer Chisolm identified as a plainclothes supervisor whose name he did not know (16:56:21;¹² Tr. 264). Respondent is wearing a t-shirt, the back of which says, “Miami Dade Fire Rescue.” Gore is also present, in uniform, wearing glasses. There are also two plainclothes supervisors present. Chisolm is not shown in the video because he is filming (Tr. 264-65). Chisolm described both himself and Officer Gore as “African” and the plainclothes supervisors as “Asian” (Tr. 242, 244). Soon, one of the plainclothes supervisors, who is standing next to respondent, points to respondent and says, looking towards Gore, “This guy, right here, drove his unregistered vehicle back into [complainant's] car, [and] damaged [complainant's] car.” The plainclothes supervisor also comments that respondent “smells like he is DUI right now” (Pet. Ex. 4, 16:56:25). Respondent, noting that he is standing on the sidewalk, asks, “How am I DUI,” the plainclothes supervisor responds, “I can smell that you are” (16:56:38). There is additional conversation in which respondent denies drinking (16:57:02) and one of the plainclothes supervisors comments that respondent is “beyond drunk” (16:57:49). Respondent then refers to the officers and/or supervisors as “clowns” (16:57:49-50) and notes, “I work for the city. I pick up garbage every day of the week. I did nothing wrong” (16:57:53-56). Respondent then declines, twice, to provide his name (16:58:01-16:58:15). Gore again asks for respondent’s name and respondent replies, “No, you’re “n***ers” (16:58:21). Turning his head toward the “Asian” supervisors on the scene, respondent states that they are “fucking g***ks” (16:58:24). Respondent then says, “I’m a fucking white guy and that’s that plain and simple” (16:58:28). He adds, “Suck my dick” (16:58:35) and that the officers “fucking got what you wanted” and he did nothing wrong (16:58:40). Asked for his name again, respondent declines, and when asked why not, says, “Get the fuck out of here. Jerk-off monkey motherfucker” (16:59:03), followed by various other comments of a racist and/or obscene nature, including: “Dumb n***er” (16:59:07), “Dumb motherfuckers over here. Fuck you motherfuckers” (16:59:31), “Suck on my dick” (16:58:34), two references to a police officer’s children dying of cancer (17:00:08, 17:00:14), “Fucking jerk-offs” (17:00:26), and, “Fuck you. Go back to Main Street, motherfucker” (17:00:28). Respondent also references President Kennedy putting “the fucking 1965 Immigration Act into effect,”¹³ stating, “we would not have none of you fucks over here.” The conversation continues, with respondent appearing to speak in another language toward the plainclothes supervisors, then commenting that they are not Korean, then stating, among other things, “Fucking jerk-off” (17:00:09), “You’re a fucking clown” (17:01:17-18), and, in apparent reference to a uniformed officer who just arrived, “He’s their only white guy, right” (17:01:09). He then refers to one or more of the officers as a “jerk-off” three times (17:01:21-26). The conversation shifts as an officer asks if a vehicle is respondent’s and if respondent has weapons. Respondent denies both. An officer pats down respondent and retrieves keys from his pocket. Gore asks respondent if these are his keys, to which respondent replies, “You n***ers think I’m fucking dumb, right. Talk to my attorney” (17:03:44). Respondent says that there is no damage to the complainant’s car. One of the plainclothes supervisors says, “You work for Sanitation and you’re acting like that?” (17:04:06). Respondent replies, “Yeah, yeah, that’s right brother,” adding, “And you know what you guys are? A bunch of fucking scumbags” (17:04:06-10). Respondent then contends that there are “two Asian officers there protecting their own kind,” asks again where the damage is to the complainant’s car, and references his cousin, now deceased, who respondent says was in the “vice squad” (17:04:21-17:04:30). Respondent notes that his cousin “hated you guys, hated you “n***ers,” repeating the latter phrase three times, while also saying that that was “what the force was like,” and that “I don’t mean no disrespect” (17:04:48-52). The police officers escort respondent to the patrol car. Chisolm is filming and Gore is driving. As respondent is walked to the patrol car, he says, “you’re a n***er though. You know you’re a n****er right,” and as he is put into the patrol car, he uses the phrase, “dumb n***ers” (17:05:46-48, 17:06:06). On the drive respondent says that the police officers are playing Jay-Z’s music on the radio and comments, “Fucking dumb n***ers” (17:06:49). Despite his use of derogatory language, respondent appears to banter with the officers: he says he has millions of dollars, one of the officers asks how that happened, and respondent tells them to invest in their 401(k) and 457 plans. He then adds, “But you guys are fucking dumb n***ers and there are dumb fucking white motherfuckers who don’t do it either” (17:07:05-10). He repeats his admonition that the officers “gotta max it out every year bro, the 401 and 457, max it the fuck out,” says the criminal charge will be dismissed because there is no damage to his car, and notes, “You know what? I grew up Black so I don’t even give a fuck what I said” (17:07:39). Before reaching the precinct, respondent complains that he “can’t even have a little fun” when he works (17:08:26) and asks the officers if they are going to “blow my spot up at the job” (17:08:30-31). He also makes a comment, “fucking white trash,” although it is not clear to whom he is alluding (17:09:10). At the precinct, the officers bring respondent before the desk sergeant for processing (17:09:40). Chisolm appears to take the body camera off and turn it around so that it continues to record. Chisolm then searches respondent and retrieves twelve dollars and change from one of respondent’s pockets. Respondent becomes agitated, referring to the officers as “fucking jerk-offs” (three times) and “motherfucker” (17:10:45-48), and commenting, “I fucking pick up your garbage you fucking jerk-offs. Yeah, yeah, fuck you. I pick up your garbage. My cousin fucking did everything over here…vice squad” (17:10:53-11:03), followed by, “Fuck you and the fucking 12 dollars” (17:11:07) and “scumbags” (17:11:10). Respondent then comments, “Fucking Irish…. Listen, these Irish motherfuckers hate all you…colored people…people of color” (17:11:12-29). Someone says that there are no Irish people at the precinct and respondent comments that two men “look pretty white to me” and that an unnamed individual is “white, though” (17:11:24-17:11:31). Respondent adds, “In the end they don’t want your kind. Trust me” (17:11:39). Respondent again declines to give his name, says that the officers should talk to his lawyers, says that the “Asian boys…were discriminating” against him, and that the “Asian guys kept pushing and pushing and pushing,” apparently referring to the plainclothes supervisors (17:12:22-17:13:01, 17:13:10). While Gore is at the desk in front of him, respondent repeats his advice that the officers should “max out” their retirement plans (17:13:55), and adds: “He looks like a gorilla, this guy” (17:33:55), “Gorilla, over here,” and, twice, “Gorilla, wear vanilla” (17:14:11-17). A number of officers, including Chisolm, then escort respondent to a holding cell and tell him to take a seat, which he does (17:14:49). Chisolm starts to say something about taking off respondent’s shoes and respondent says, “You take them off, n***er” (17:14:58). Another officer, who respondent identifies as Officer Rodriguez, comes in and starts to take off respondent’s shoes. After respondent’s shoes are off, the officers lock him in the holding cell. At this point, there are four officers immediately outside the cell: Officers Chisolm, Gore, Rodriguez, and Pena. Another individual in plainclothes, who Chisolm said was his administrative supervisor (Tr. 251), is also present (17:15:35). Respondent curses, “Fucking dumb motherfuckers” (17:15:32), “motherfuckers” (17:15:47), and “s**c motherfuckers” (17:15:40), as the officers leave. Regarding the last racial slur, Chisolm explained that Officers Pena and Rodriguez, as well as his administrative supervisor, are all Hispanic (Tr. 251, 277-78). Chisolm testified that he felt “degraded” by respondent’s repeated use of racial slurs and internally questioned whether he should be working for the police department (Tr. 280). He also confirmed that respondent was intoxicated (Tr. 243), noting that he smelled of alcohol (Tr. 312). In addition to the video footage, petitioner introduced a report by the Department’s Office of Equity, Diversity and Inclusion (“OEDI”) about the incident (Pet. Ex. 2). The report notes that OEDI interviewed respondent on July 20, 2023. Respondent recalled being arrested and taken into custody but said that he did not recall anything that happened afterwards, including whether he made any racial slurs or other disparaging statements. According to the report, respondent denied that his ability to recall was due to intoxication (Id.; Tr. 721). The report also notes that OEDI interviewed a police captain who was at the precinct on the day in question, who recalled that respondent was drunk, belligerent, and using multiple racial slurs (Pet. Ex. 2). Petitioner’s Evidence of Respondent’s interaction with DSNY Supervisor at the Precinct Respondent’s interaction with Supervisor Mills was not filmed. Petitioner’s case rested primarily upon Mills’ testimony, and to a lesser extent, statements attributed to Mills in the OEDI report about the incident (Id.). A supervisor for four years, Mills has been a night district superintendent assigned to the Manhattan 5 garage for three years, overseeing two sanitation districts (Tr. 22-23). Mills explained that on June 9, 2023, a clerk at the Borough Office asked him to retrieve the badge, license, and parking plaque of a sanitation worker who had been arrested and was being detained at the 7th precinct.¹⁴ Upon Mills entering the precinct, a police captain told him that the sanitation employee in detention was making racist comments (Tr. 24-25). Either the captain or a police officer added that respondent had been arrested for an “under intoxication” offense (Tr. 33, 69-70). The police gave Mills respondent’s identification and parking plaque, but they did not have respondent’s badge (Tr. 27, 31). Mills then telephoned Mario Evering, the night borough superintendent, who suggested that Mills find out if respondent had his badge with him (Tr. 27-28, 71). With Evering still on speakerphone, Mills, the police captain, and the police officer walked to the holding cell to see respondent (Tr. 28, 32). Mills, like the police officer and captain, is Black (Tr. 29, 32, 33; Pet. Ex. 2). Mills had not met respondent before (Tr. 24). As soon as they walked up to the holding cell, respondent looked at the police officer, and said, “Fuck you, n***er” and “Fuck the borough, too” (Tr. 29). Mills, the captain, and the officer all looked at each other, with Mills “shocked” by “the racism” (Tr. 29). Respondent told Mills to run his badge number and told him, “Suck my dick” and “Fuck you n***er” (Tr. 29). Although respondent “calmed down for a little bit” after that, he also blurted out, several times, said, “No disrespect, no disrespect, but…suck my dick” (Tr. 30). Mills described respondent as on a “rant” or “rampage” (Tr. 29), “just blurting out constantly, just yelling and screaming basically” (Tr. 30). Mills was not able to obtain respondent’s badge. When he asked if respondent had the badge with him or wanted Mills to get the badge from his car, respondent declined both options (Tr. 29). Mills described himself as hurt and upset by respondent’s language (Tr. 30). He “felt ashamed” that respondent was a sanitation worker. The police officer and captain asked him if this was how his employees treated him, and he replied that respondent’s conduct was “not representative of the job” (Tr. 30). Once he left the precinct and returned to the district office, Mills called Evering, who had heard the incident on speakerphone and told him to write an “unusual” report to document it (Tr. 33). Within an hour, Mills called the civilian clerk at the borough office and described the incident, which the clerk summarized on an unusual occurrence report that she emailed to Mills and which Mills confirmed as accurate (Pet. Exs. 1b, 2). That same day, Mills also sent an email describing the incident (Pet. Ex. 1a, 1b, 1c; Tr. 36-37, 44-45, 53). Both the unusual occurrence report (Pet. Ex. 1b) and Mills’ email (Pet. Ex. 1c) are consistent with Mills’ testimony (Tr. 33-38). On July 20, 2023, OEDI interviewed Mills, who stated that respondent had used racist and other disparaging language (Pet. Ex. 2). On July 24, 2023, OEDI interviewed Evering, who confirmed having been on speakerphone with Mills and hearing respondent direct profanity and a racial slur toward Mills. The OEDI report, while hearsay, was consistent with Mills’ sworn testimony. Respondent’s Evidence of the June 9, 2023, Incident At trial, respondent did not specifically address his encounter with Mills. Instead, he focused on his statements as shown on video, noting that he had been intoxicated throughout the incident. Respondent voiced regret over his statements, said he should have been much more respectful, and that the way that he acted was “not an acceptable way for anybody to act” (Tr. 693, 712). Respondent explained that on June 9, 2023, while he was parking his car on the way to a restaurant, he “bumped” someone else’s car (Tr. 690). He had not had any alcohol at the time (Tr. 691). He told the driver of the other car, who was “kind of aggressive,” that he was sorry and did not see any damage to the car (Tr. 691). Respondent then went into the restaurant where he had some drinks (Id.). When he left the restaurant, the police were there and they began questioning him (Tr. 690). Respondent acknowledged that his driver’s license was revoked as a result of this arrest. As of the last trial date, he does not have a driver’s license (Tr. 740). Expressing remorse repeatedly, respondent stated he “would have been more cooperative, but being under the influence, that just wasn’t [him]” (Tr. 695). Respondent explained that he has not drank any alcohol since this incident (Id.). He used to drink alcohol both to relieve physical pain from his job, which involves heavy physical labor, as well as to alleviate “ mental pain” from not being happy and being depressed (Tr. 696). In November 2023, respondent completed a 28-day inpatient alcohol rehabilitation program (Tr. 696, 702; Resp. Ex. C). This was the first time that he had sought treatment for alcoholism or substance abuse (Tr. 738). He was diagnosed with depression and anxiety in April 2024 by a mental health provider, after which he met with a psychiatrist and began psychotherapy, in addition to attending and completing a 12-session, 12-hour, anger management course and starting on medications to help him manage his mental health (Resp. Exs. A, B, C; Tr. 696, 704, 708, 717, 738). This was the first anger management class that he had ever completed (Tr. 738). Respondent stressed that he is “on the road to recovery” and that the programs he has attended, and his ongoing, frequent therapy, have provided him with “a lot of tools to deal with things that could possibly happen in [his] life that could trigger [his] anger or trigger [him] to having a drink” (Tr. 702, 707-08). Seeing Ash, his treating therapist, has helped him learn to cope without using alcohol or getting angry and has helped him with his communication skills by learning how to listen without reacting (Tr. 710-11). He continues to work on self-improvement by attending counseling and meetings (Tr. 712). Respondent acknowledged that he had not spoken to Mills or the police officers since his arrest (Tr. 719). He read from a brief statement that he had composed in which he said he was “very sorry” for his actions, said, “This is not the person I am,” and stressed that he was “doing everything I can to rectify my unacceptable behavior, and hoped for “forgiveness” (Tr. 715). Respondent’s treating therapist, Ash, explained that he has been a social worker for 27 years, has a master’s degree in social work, maintains a clinical practice, and serves as an adjunct professor and curriculum developer at a state university (Tr. 747, 748). He was not compensated by respondent for testifying at trial (Tr. 776-77). He noted that when he first saw respondent, in an April 2024 intake visit, respondent mentioned the incident with the police, said it was recorded, and expressed remorse (Tr. 757-58, 780-81, 788). Specifically, respondent told Ash that the person on video is “not who he is” (Tr. 759). Ash included in the “legal history” section of his intake notes that respondent had been arrested for DWI in June 2023 but did not discuss the statements which respondent had made to the police officers on the scene (Resp. Ex. D). Ash diagnosed respondent with panic disorder, major depressive disorder, post-traumatic stress disorder, generalized anxiety disorder, and alcohol use and remission disorder. He is working with respondent so he remains alcohol-free (Tr. 781; Resp. Ex. D).¹⁵ The panic disorder manifests as intense, sudden, and unanticipated physical symptoms such as chills and trouble breathing and is linked to past trauma as well as triggers including work and stress-related triggers, and respondent’s “negative thinking” (Tr. 752). According to Ash, respondent’s past trauma and “unresolved grief” relates to respondent being in a motorcycle accident in his late teens, resulting in his being unable to join the police force as members of his family had (Tr. 756, 772). The past trauma has manifested itself in alcoholism as well as poor coping and conflict resolution skills and difficulty in managing anger and dealing with authority (Tr. 755). When respondent drinks, he has cognitive dissonance, meaning that his beliefs differ from his actions (Tr. 757).¹⁶ Ash highlighted that the video shows that respondent makes derogatory statements to the responding police officers but also gives them financial advice (Tr. 759). Ash concluded that respondent was “sort of disconnected from what…[were] probably his feelings” and was “emotionally connecting to something else,” possibly his desire to become a police officer (Id.). However, while noting that respondent’s use of alcohol had “loosened” his “inhibitions,” Ash acknowledged that “maybe [respondent] actually felt that way, maybe not” (Id.). Ash stressed that respondent has remained alcohol-free and has complied with ongoing treatment and with medication management (Tr. 769, 793). Respondent been “working on” managing his anger, self-awareness, self-control, and reaction to stress, including thinking before he acts (Tr. 743-54, 793). Ash described respondent as being thoughtful and engaging in therapy and gaining understanding and awareness (Tr. 793). Petitioner’s proof was sufficient to prove misconduct Petitioner charges that, through his use of racist and profane language, respondent violated the City of New York EEO policy (“EEO policy”), as well as Rules 3.14, 3.23, and 3.27 of the Department’s Code of Conduct. The EEO policy prohibits “harassment,” including “derogatory or demeaning statements” relating to a protected category, including a person’s actual or perceived race, national origin, or ethnicity (Pet. Ex. 2 at 34). Rule 3.14 requires employees to treat “all other persons fairly and with respect” and without discrimination, including but not limited to “all aspects of employment, terms and conditions of employment, any relationship with other government employees, and the general public.” Rule 3.14 requires that employees “become familiar with and comply with” the city-wide EEO policy. Rule 3.23 prohibits employees from using “offensive, abusive, obscene or sexual language, ethnic slurs, threats or gestures toward a superior, subordinate, or fellow employee, or a member of the public.” More broadly, Rule 3.27 prohibits employees from conducting themselves “in a manner prejudicial to good order and discipline, or which tends to discredit the City or the Department.” Petitioner proved the rule violations and, with one caveat, the EEO violation. The evidence established that respondent used profane and racist language toward police officers and the Department supervisor The evidence established that respondent used profane and racist language toward police officers, police supervisors, and Department supervisor Mills. The unrefuted bodycam evidence showed that respondent used racist and profane language toward police officers and supervisors, both at the time of arrest and at the precinct.¹⁷ The evidence also showed that respondent used similar language toward Mills. Mills was a credible witness who recalled respondent’s racist and profane statements with particularity, noting that he was “shocked” and felt ashamed and that he told police officers that respondent’s behavior was not typical of the Department. Mills acknowledged that the 7th precinct is connected to the firehouse, is located next to the Williamsburg Bridge, and is near high-rise residential buildings (Tr. 54). However, he was unequivocal that he accurately heard the statements which respondent made. When asked by respondent’s counsel if “background noise could have interfered with [his] perception” of what he heard in the precinct, he immediately said “no,” noting that the door to the precinct closed behind him (Tr. 55). The off-duty nature of the misconduct does not bar discipline The off-duty nature of respondent’s comments to police officers and Mills does not bar discipline. Off-duty misconduct is subject to discipline if there is a sufficient nexus between the conduct and an employee’s job. This includes the use of abusive conduct or speech toward coworkers or members of the public, as well as other behavior that brings discredit upon their public employer. See, e.g., Pappas v. Giuliani, 290 F.3d 143, 145-47 (2d Cir. 2002) (upholding dismissal of police officer who worked in information systems division and who, at least twice, anonymously mailed “offensive racially bigoted materials” to a Long Island auxiliary police department that had solicited charitable contributions from him, only to have his identity revealed in an investigation); Logan, 129 A.D.2d at 936 (finding that public works superintendent employed by municipality could be disciplined “for abusive conduct occurring in the course of an after-hours phone call made to a fellow employee to discuss village affairs” and noting that “a public employee may indeed be disciplined for off-duty misconduct”); Dep’t of Sanitation v. Guarneri, OATH Index No. 1159/12 at 7 (May 22, 2012), modified on penalty, Comm’r Dec. (Aug. 15, 2012) (finding that sanitation supervisor who was arrested in connection with buying cocaine committed misconduct by bringing negative attention upon the Department and the city, because of newspaper and blog articles describing the arrest and identifying the employee by his name and city title); Dep’t of Transportation v. Khan, OATH Index No. 1093/06 at 18-19 (Apr. 27, 2006), aff’d, NYC Civ. Serv. Comm’n item No. CD07-15-SA (Feb. 12, 2007) (finding off-duty misconduct where employee intimidated his supervisor by following the supervisor to the supervisor’s house in his car, noting, “The fact that the incident occurred during off duty hours was no bar to discipline, since the work relationship between the two men provided a clear nexus between the incident and respondent’s employment such that respondent could properly be sanctioned”). There is a sufficient nexus between respondent’s comments toward Mills and respondent’s civil service position. Respondent is a sanitation worker. Mills is a supervisor within the Department, and at the time was the night district superintendent dispatched by the borough office to retrieve respondent’s badge. In addition, respondent’s obscene and racist comments reflected poorly on the Department. Mills acknowledged as much in noting that he assured the police officers at the precinct that respondent was not representative of Department employees. Respondent’s statements to the police officers, both on the street and at the precinct, are also disciplinable as off-duty misconduct, for several reasons. First, although respondent was wearing a shirt referencing the Miami-Dade Fire Rescue, he identified himself as a city employee early on in his interaction with the police offices and supervisors (“I work for the city. I pick up garbage every day of the week”). He later said, “Yeah, yeah,” when asked, “You work for Sanitation and you’re acting like that?” At the precinct, where he met additional police officers and supervisors who were not present at the scene, respondent again identified himself by saying, “I fucking pick up your garbage…I pick up your garbage.” Having identified himself as a city employee, respondent repeatedly used abusive, profane, and racist language, reflecting poorly upon and tending to discredit the Department and creating a nexus between his city employment and his interaction with the police officers. In addition, there is a nexus between respondent’s repeated use of various racial slurs and profanity and his job as a sanitation worker. Respondent picks up trash on public streets every day. His visible, daily presence makes it more likely than not that he has at least some interaction with the public during his collection duties. The Department has a substantial interest in maintaining a workforce that treats members of the public and others with respect and without discrimination. See Locurto v. Giuliani, 447 F.3d 159, 183 (2d Cir. 2006) (upholding termination of employment of police officer and two firefighters who participated in a racist parade float upon finding that the government’s interest in maintaining trust between the police and fire departments and the communities they served outweighed the employees’ “expressive interests”). Respondent’s intoxication is not a defense to the charges, nor his asserted status as a recovering alcoholic I credited respondent’s testimony that he was intoxicated when he encountered the police officers on June 9, 2023. His testimony was corroborated by the police supervisors on the scene, one of whom referred to him as “beyond drunk,” and by Chisolm in his testimony. I also credited respondent’s testimony, corroborated by Ash, that he has not consumed alcohol since that time. However, neither respondent’s intoxication at that time nor that he is currently in recovery constitutes a defense to his use of racist and derogatory language toward the police officers and supervisors and Mills. Respondent asserts in his post-trial brief that respondent’s “alcoholism and mental health disabilities established a lack of intent” (Resp. Post-Trial Br. at 5). Respondent relies heavily upon Ash’s testimony that he believed respondent was in a state of “cognitive dissonance” during the encounters with the police officers and Mills and that his “psychological state, exacerbated by alcohol use, resulted in behaviors that were not intentionally discriminatory or malicious but rather symptoms of his underlying mental health issues” (Id.). Respondent’s argument, however, overstates Ash’s testimony. Ash testified that he believed, based upon the financial advice respondent appeared at times to be offering, that respondent was in a state of “cognitive dissonance,” meaning that his actions did not necessarily correlate with his beliefs, but he also said that he did not know whether respondent meant the things that he said. There is no doubt that respondent was intoxicated when approached by the police on June 9, 2023. I credited both respondent’s and Ash’s testimony that respondent’s intoxication on June 9, 2023, impaired his judgment and self-control, loosening his tongue in a manner he now regrets and is embarrassed by. However, while intoxication may have been a contributing factor in respondent’s behavior, respondent did not establish that it alone caused him to make the type of statements that he made, particularly the multiple types of racist statements. Among other things, Ash noted that respondent had difficulties with anger management and authority and had “unresolved trauma” over being ineligible to serve as a police officer due to an injury. This plausibly affected the manner in which he acted toward the various authority figures whom he encountered that day, including the Black, Asian, and Hispanic police officers and supervisors who were on the police force while he was not. Even when alcoholism has played a role in employee misconduct, courts have been reluctant to consider the employee’s alcoholism or intoxication at the time of misconduct as a defense. The New York Court of Appeals has held that the New York City Human Rights Law, Admin. Code §8-101 et. seq., does not permit a recovering alcoholic to be terminated from his employment for excessive absenteeism caused by their alcoholism where the employer did not prove that, at the time of trial, the employee was incapable of performing their job because of the alcoholism. McEniry v. Landi, 84 N.Y.2d 554 (1994). However, the Court limited its holding, noting that it was not intended to “imply that in every case where an alcoholic is purportedly rehabilitated all disciplinary action is prohibited. The review is individualized.” Id. at 560-61. Subsequent appellate courts emphasized the limited scope of McEniry in rejecting employee defenses to disciplinary charges based on their alcoholism at the time of the misconduct. See Riddick v. City of New York, 4 A.D.3d 242, 256 (1st Dep’t 2004) (upholding termination of police detective for several instances of verbal abuse and assault where employee claimed he was terminated because of his alcoholism; Court finds that employee did not show that he had recovered at the time of termination and, employee was not terminated because of his alcoholism but because of his “violent, assaultive behavior”); Murolo v. Safir, 246 A.D.2d 653, 655 (2d Dep’t 1998) (upholding termination of firefighter who called in a false alarm to commit theft at his firehouse, finding “no direct, causal connection between [respondent's] status as an alcoholic and his deliberate and calculated act of calling in a false alarm”); Hagmaier v. Bratton, 245 A.D.2d 147 (1st Dep’t 1997) (rejecting employee’s argument that his termination was based upon his alcoholism rather than his misconduct; while staying in an out-of-town hotel to attend a memorial service for slain police officers, employee twice slid down an escalator banister in a hotel, in the nude, and discharged a fire extinguisher without cause, resulting in the hotel’s evacuation). Here, as in these cases, respondent’s intoxication at the time of his misconduct does not constitute a defense to that misconduct. Petitioner established the rule violations and, at least in part, the EEO violation Petitioner established that by making racist and profane comments toward Mills and the police officers and supervisors, respondent violated rules 3.14, 3.23, and 3.27. Rule 3.14 requires employees to treat “all other persons” with respect and without discrimination and to become familiar with and comply with the city EEO policy. Rule 3.23 prohibits employees from using offensive, abusive, obscene, or sexual language or making ethnic slurs, threats or gestures to a superior, subordinate, fellow employee, or member of the public. Rule 3.27 prohibits employees from conducting themselves in a manner prejudicial to good order and discipline, or which tends to discredit the City or the Department. In addition, petitioner proved that respondent violated the EEO policy through his comments to Mills and through his comments to the police officers and supervisors in the patrol car and the precinct. The EEO policy applies to “any city workplace,” as well as certain “extensions” of the city workplace, including a “City vehicle” (Pet. Ex. 3 at 9). The police precinct was a city workplace, even though not respondent’s workplace. It is less clear whether the EEO policy extends to the racial slurs which respondent uttered on the street, which is not a city “workplace,” unless the term is construed so broadly that police officers are considered to have the entire city as their workplace. Additionally, although the EEO policy states that it extends to certain off-duty misconduct, it gives as examples social media, texts, and emails (Pet. Ex. 2 at 9). It is not clear whether the policy was intended to reach beyond the realm of social media and the internet to extend to comments made in a public space to another city employee. However, because the rule violations are sustained as to all of respondent’s comments, I need not and do not reach the issue of whether the slurs which respondent uttered while on the street also violated the Department’s EEO policy. In sum, petitioner proved that respondent violated Department rules 3.14, 3.23, and 3.27 through his use of racist and profane language toward police officers and a Department supervisor on June 9, 2023. Petitioner also proved that respondent violated the EEO Policy through his use of racial slurs while in the patrol car and in the police precinct. SICK LEAVE VIOLATIONS: MARCH 23, 2019, APRIL 3, 2019, AUGUST 14, 2019 These charges allege that respondent failed to be home while on sick leave. Petitioner’s primary evidence in support of the charges were written reports prepared by various investigators in the Department’s Supervised Sick Leave Unit (“SSLU”) who made home visits to respondent’s home on the dates in question. Petitioner also called Mr. Casaletti, who is now a supervisor in the Department’s Drug and Alcohol Testing Unit but before that was the executive supervisor within SSLU (Tr. 155). Mr. Casaletti conducted the August 14, 2019, home visit, but his knowledge of what occurred on March 23, 2019, and April 3, 2019, was limited to information contained on the investigators’ reports. As Mr. Casaletti explained, the Department’s medical leave control policy, Policy and Administrative Procedure 2007-04, requires all employees who are on medical leave to remain at home except when granted authorization to leave home (Tr. 155; Pet. Ex. 12 at 7, 15). SSLU investigators conduct home visits of employees who are on medical leave to make sure that they are home as required (Tr. 152). Employees are grouped in different leave categories, depending on their use of sick leave (Pet. Ex. 12 at 4). Employees with three or less incidents and eight or less days of sick leave used are placed in category “A” (Id.). Category A employees whose absence is due to a line of duty injury (“LODI”) or an injury covered by workers’ compensation are subject to home visits (Id. at 10). Such category A employees must contact SSLU to request authorization to leave home and must submit required medical documentation when granted permission to leave home for a medical visit (Id. at 11, 14). To request authorization to leave home, employees must call the SSLU automated telephone system, which is part of a computerized system known as “DiRad,” input their employee reference number, and state the reason for the request. If approved, employees receive an authorization code, which they should include on any documents relating to their absence from home while on leave (Tr. 156-58). Petitioner presented documentary evidence, including a computerized personnel inquiry abstract, establishing that on each of the dates in question, respondent was a category A employee whose absence was attributable to a LODI (Pet. Ex. 13 at 3, 6, 11, 13, 17, 19). As such, he was subject to home visits by SSLU. Respondent did not testify or offer any evidence relating to these charges. As set forth below, while much of the petitioner’s evidence was hearsay, the reports were detailed and contemporaneously made, and they are unrebutted. With one exception, relating to the failure to submit medical documentation pertaining to his April 3, 2019, absence from home, these charges are sustained. The specific charges are discussed below. March 23, 2019 Petitioner alleges that on Saturday, March 23, 2019, respondent was not at home while on medical leave and had not received authorization from the home visitation program to be away from home in violation of rules 7.5 (requiring employees to remain at home while on sick leave unless they have received authorization to leave) and 7.6 (requiring employees to remain accessible and available for a telephone sick leave visit call and/or home visit while on sick leave). To prove its case, petitioner relied primarily on the home visitation program investigator’s notice, signed by Investigator Park, who Casaletti explained is an investigator within SSLU, and dated March 23, 2019 (Tr. 162; Pet. Ex. 13 at 2). Park submitted the form to Casaletti the next day (Tr. 163). The form states that at 11:38 a.m. on March 23, 2019, Investigator Park visited respondent at his residence in Queens. Park wrote respondent’s address on the form and described the house as a brown brick house (Pet. Ex. 13 at 2). Park wrote that respondent was not at home and that she left respondent’s residence ten minutes later, at 11:48 a.m. She checked boxes on the form indicating that she rang the front doorbell three times and telephoned respondent at 11:46 a.m. at a phone number which she included on the form (ending in 5135). When she called the telephone number, she could not leave a message because the voicemail was full (Id.). Park also checked a box next to bolded language, “Employee Not at Home When Visited,” directing an employee who was not home and did not have an authorization code to call a particular number and to submit documentation to “substantiate [their] whereabouts” within 48 hours to the Home Visitation Program Coordinator. The form provided an address and post office box for the Authorization Unit (Id.). Park left a copy of the form in respondent’s mail slot (Tr. 162; Pet. Ex. 13 at 2). The Department’s computerized databases, including a personnel record inquiry generated by the Department on April 23, 2019, shows a telephone number and address for respondent that are the same as those shown on Park’s March 23, 2019, home visitation notice (Pet. Ex. 13 at 3, 6). In addition, a “messages left report,” which Mr. Casaletti testified he understood as a screenshot from the DiRad program, shows a list of all authorization codes generated for sanitation workers on March 23, 2019 (Tr. 166; Pet. Ex. 13 at 4). The workers are identified by employee identification number. Respondent’s employee identification number, which is listed on the first page of the personnel record inquiry (ending in “0777″) is not listed (Pet. Ex 13 at 3, 4). A screenshot from the DiRad computerized system report, showing a query under employee’s identification number for any calls made by respondent to SSLU on March 23, 2019, shows that “[t]here are no items to display” (Id. at 5). Mr. Casaletti testified that if respondent had requested an authorization code, it would have reflected in the printout from the DiRad system (Tr. 168). He concluded that the DiRad documents establish that respondent did not receive an authorization code to be absent from his home on March 23, 2019, the day that Investigator Park made a home visit (Tr. 166). I credited his testimony and found his conclusion to be rational. The unrebutted and detailed documentary evidence establishes that respondent failed to respond when Park rang his doorbell multiple times and when she telephoned him. Petitioner proved that respondent failed to make himself available and accessible for a sick leave home visit or telephone visit call, as required by rule 7.6. Dep’t of Sanitation v. Rodriguez, OATH Index No. 1638/12 at 5 (July 18, 2012), adopted, Comm’r Dec. (Aug. 23, 2012) (sanitation worker’s failure to answer his telephone or doorbell during investigator’s home visit established that he was inaccessible for the sick leave home visit); Dep’t of Sanitation v. Shands, OATH Index No. 1320/05 at 3 (May 16, 2005) (failure to answer telephone calls or respond to messages left on answering machine establishes a violation). In addition, where respondent did not testify or provide any evidence that he was home, the reasonable inference to be drawn is that respondent was not home as required while on sick leave. Compare Shands, OATH 1320/05 at 3-4 (even though sanitation worker testified that he was home and slept through phone calls made by home visitation inspector, his lack of response and inability to show that he was home warranted an inference that he was not home during a sick leave visit) with Rodriguez, OATH 1638/12 at 5 (sanitation worker’s failure to answer his doorbell or phone “did not rebut [his] credible claim that he was at home”). This charge is sustained as to both the rule 7.5 and rule 7.6 violations. However, the violations are duplicative as they are based on the same underlying facts and thus will be considered as one instance of misconduct for purposes of penalty. Savello v. Frank, 48 A.D.2d 699 (2d Dep’t 1975); see also Dep’t of Sanitation v. Anonymous, OATH Index No. 0056/16 at 11-12 (Jan. 4, 2016) (finding that where two charges were based on the same conduct, they would not be considered separately for purposes of penalty). April 3, 2019 Petitioner alleges that respondent failed to remain home while on sick leave, in violation of rule 7.5, and that he also failed to submit medical documentation as required by the Department’s Medical Leave Unit, in violation of rule 7.9. In support of its charge, petitioner presented a home visitation program investigator’s notice, signed by Investigator Park, dated April 3, 2019 (Tr. 171; Pet. Ex. 13 at 9). Park stated on the notice that she visited respondent at his home at 11:49 a.m. on April 3, 2019. She noted his address on the form and described the house as a brown brick house. Park wrote that she knocked six times at the front door and rang the doorbell four times. She also telephoned respondent at 11:53 a.m. at the phone number ending in 5135 (the same number on the report relating to March 23, 2019). Because the voice mailbox was full, she could not leave a message. As she had on the March 23, 2019, form, Park checked the box instructing any employee who was not at home when visited to submit documentation of their whereabouts within 48 hours at the Beaver Street address or by mail to the designated post office box (Pet. Ex. 13 at 9). Park left respondent’s house at 11:59 a.m., leaving a copy of the form in respondent’s mailbox. The Department’s computerized databases, including a personnel record inquiry generated on May 15, 2019, shows an address and phone number for respondent that are the same as those indicated by Park on the April 3, 2019, home visitation notice (Id. at 11, 13). The Department’s computerized records establish that respondent was seen by doctors at the Department clinic on March 21, 2019, while in LODI status (Id. at 10). A screenshot showing notes by the clinic medical officer relating to the March 21, 2019, visit does not indicate that respondent was given any exemptions from home visits that would permit him to be away from home without authorization (Id.). According to Casaletti, whose testimony I credited, if respondent had been given such “walking privileges,” it would have been reflected on the form (Tr. 171-72). Despite the evidence showing that respondent did not respond to repeated attempts to contact him at home at 11:53 a.m. on April 3, 2019, a screenshot of a DiRad report shows that just nine minutes later, at 12:02 p.m., respondent called the DiRad system to request an authorization code, received a code to make a court appearance or to appear at a Department trial, and was reported to have left home at 12:02 pm. (Pet. Ex. 13 at 12). Although the report contains a field for information as to when an employee returns home, that field was not completed (Id.). Casaletti testified that the Department’s sick leave policy requires employees who have authorization to leave their residence to call SSLU when they return home and that the absence of any such information in the report means that respondent did not call with this information (Tr. 175). He also testified that respondent did not provide documentation relating to his court appearance or trial, as required (Tr. 176). The unrebutted report of Inspector Park shows that respondent did not respond to her repeated knocks on his front door, doorbell rings and telephone call, when she visited at 11:53 a.m. on April 3, 2019. Yet he requested an authorization code to leave his house just nine minutes later. However, absent testimony from respondent, it is not clear whether respondent was actually home at 12:02 p.m., when he accessed the DiRad system. The evidence that he called for an authorization code at 12:03 p.m. is thus insufficient to rebut the inference flowing from Inspector Park’s report that respondent was not home at 11:53 a.m., during her home visit. Accordingly, the charge that respondent failed to remain home while on sick leave, in violation of Department rule 7.5, is sustained. However, petitioner did not introduce any evidence showing that respondent failed to submit medical documentation and therefore the charge that respondent failed to do so in violation of Department rule 7.9 is dismissed. August 14, 2019 Petitioner charges that respondent failed to remain home and was not home for a clinic visit or telephone call, in violation of Department rules 7.5 and 7.6. Casaletti testified, consistent with the home visitation program investigator’s notice (Pet. Ex. 13 at 16), that he visited respondent’s residence, rang the doorbell, and received no answer. He then telephoned respondent, who answered and said that he had stepped out to get food. Mr. Casaletti waited about ten minutes but respondent did not return so he wrote up the notice and left it at respondent’s residence (Tr. 179). The home visitation notice records the time of his arrival at respondent’s residence as 5:32 p.m. and his departure at 5:42 p.m. and indicates that he called respondent’s telephone number at 5:35 p.m. It describes respondent’s house as a red brick house and says that Casaletti rang the doorbell three times. Two boxes are checked on the notice: the first requires respondent to submit documentation to substantiate his location during the home visit, and the second orders him to report to the Department’s clinic the next day. A personnel record inquiry generated on August 21, 2019, confirms the address and telephone number shown on the investigator’s report (Pet. Ex. 13 at 17). A DiRad printout for the day lists the employee identification codes for four employees who had requested authorization codes to leave their residence. Respondent’s employee identification code does not appear (Id. at 18). Another printout indicates that respondent’s LODI status ended on August 15, 2019 (Id. at 19). Mr. Casaletti concluded as a result of his home visit and a review of the documentation that respondent was not home and had not requested permission to leave his residence (Tr. 179). I credited Casaletti’s unrebutted testimony, corroborated by his contemporaneous home visitation report, that respondent was not home when he visited at 5:32 p.m. and told Casaletti that he had stepped out to buy food. However, while the Medical Leave Control Policy permits employees to request an authorization code for certain grocery shopping (Pet. Ex. 12 at 16), the evidence shows that respondent did not request an authorization code to leave the house to buy groceries or for any other reason. These charges are sustained. AWOL CHARGES: FEBRUARY 3, 2021, JULY 30, 2021, AND AUGUST 11, 2021 (complaints 178610, 183579, 183943) Petitioner alleges that respondent was absent without authorization (“AWOL”) on these dates, in violation of rule 1.4. Petitioner’s main witness on these charges was Deputy Chief James Anderson, who was formerly a general or district superintendent managing the district to which respondent was assigned (Tr. 553). Respondent testified briefly about the incidents. As a preliminary matter relating only as to this charge, Anderson testified on April 9, 2024, in respondent’s absence, but in the presence of respondent’s counsel. By email sent late in the day on April 8, 2024, respondent requested an adjournment of respondent’s testimony on April 9, and possibly the next scheduled trial date (April 19), based upon respondent’s recent diagnosis of anxiety and depression, and commencement of therapy sessions to begin April 12. However, counsel noted that respondent did not oppose proceeding to take the testimony of Anderson, who was respondent’s final witness, so long as respondent could testify on another day. On the morning of trial, however, respondent’s counsel advised that his client had called out sick for mental health reasons (Tr. 542). Counsel indicated that he was amenable to proceeding in respondent’s absence but that respondent had said that he did not want the trial to proceed in his absence but would like to appear on the next possible hearing date so he could at least “be a resource witness” to his attorney (Id.). As noted above, there had already been a significant number of adjournments in this case, including several adjournments when Anderson was scheduled to testify. Based upon his failure to provide documentation showing that he could not appear for remote trial on April 9, at which Anderson would be testifying, I found that respondent’s adjournment request did not meet the “good cause” requirement. See 48 RCNY §1-32(b) (“Applications for adjournments are addressed at the discretion of the administrative law judge, and will be granted only for good cause.”). I did, however, give his counsel time to call his client between direct and cross-examination of Anderson and I also forwarded both counsel the transcript of Anderson’s testimony so that respondent’s counsel could show it to respondent before respondent testified. In addition, I told respondent’s counsel that he should advise me if he had any other questions he wanted to pose to Anderson (Tr. 596). Respondent’s counsel did not advise me that he had any additional questions and, ultimately, respondent testified about the AWOL charges. Anderson, who was general superintendent on the dates in question, was not at the location to which respondent was assigned on the three dates in question, except for July 30, 2021, when he became aware of respondent’s absence (Tr. 581). His knowledge of what occurred on February 3, 2021, and August 11, 2021, stems solely from documentation prepared by other supervisors (Tr. 576, 586). Respondent denied being AWOL on all the dates charged although he did not recall anything more about these particular dates. For the reasons discussed below, these charges are sustained. February 3, 2021 Petitioner alleges that respondent was AWOL for three hours on the morning of February 3, 2021. Petitioner contends that respondent worked the 7:00 p.m. to 3:00 a.m. shift in Queens 11 (“Q11″) garage, assigned to vehicle 25DD-534 (“vehicle 534″); that he entered the Q11 garage for a scheduled lunch break between 11:30 and midnight; and that at midnight, the assigned garage supervisor, Supervisor Torres, saw that vehicle 534 was still parked in the garage, checked the entire facility, and could not locate respondent. Respondent was marked AWOL as of midnight. The absence and lateness log for February 3, 2021, shows that respondent was marked as AWOL at 2400 hours, or midnight (Pet. Ex. 14 at 2). Anderson did not know who made that entry but believes that it was the garage supervisor on that shift. The telephone order book for February 4, 2021, shows there was a call received by Supervisor Torres and transmitted by Qeboco (Hyde) dated 0330, stating that respondent “is to be marked AWOL as of 2400,” and that respondent “was called by myself and Supv Bonnell. No answer. Facility & Parking lot checked” (Id. at 4). The daily attendance record for February 3, 2021, shows that for the 7 p.m. to 3 a.m. shift, respondent signed in but was that he was marked “AWOL as of 2400″ (Id. at 5). Based upon the telephone order book, Anderson testified that the supervisors checked the entire facility to look for respondent (Tr. 577). He did not ask respondent if he had told his supervisor about his location or if he was working on another task (Id.). Nor did he know if the supervisor who wrote the complaint made any attempts to determine if respondent was performing any other Department-related work after lunch (Tr. 578). Respondent testified that he did not recall “the incident” relating to his alleged AWOL on February 3 (Tr. 699, 701). However, he said he was working, not AWOL, on all of these dates (Tr. 699, 701). He was not aware of any attempts by supervisors to locate him (Tr. 699). He also said that when he has a break, he can go to a few different areas, but usually goes to the lunchroom. He does not recall any of the supervisors coming to the lunchroom to see if he was there during any roll calls (Tr. 701). Although respondent denied being AWOL after his lunch break, he acknowledged that he did not remember this specific date. Given respondent’s lack of recall, the telephone order book, while hearsay, is sufficiently detailed to establish that respondent could not be found after his lunch break, he did not answer his phone, and he could not be found when his supervisors looked for him. This charge is sustained. July 30, 2021 Petitioner contends that respondent was AWOL on July 30, 2021, because he had been assigned to work a cleaning overtime shift commencing after his midnight to 8:00 a.m. shift, but was missing as of 8:00 a.m. and could not be reached by cell phone. The charge alleges that his supervisor, Jamie Weiss, checked the entire facility but could not locate respondent, who was marked AWOL as of 8:00 a.m. Anderson testified that he realized that respondent was not in the facility and asked Weiss to search the entire facility, specifying that he check personnel spaces like the locker room, break room, lunchroom, parking lot, and the garage floor (Tr. 582-83). According to Anderson, Weiss “eventually” reached respondent by telephone after the start of respondent’s overtime shift. Respondent told the supervisor that he was not coming back to work and was advised that he would be carried as AWOL (Tr. 583). Supervisor Weiss notified Anderson of Weiss’ conversation with respondent (Tr. 584). Anderson did not personally investigate where respondent was during the period charged as AWOL (Tr. 592). He acknowledged that the other sanitation worker who was assigned to overtime cleaning reported to work and completed his tasks. No additional overtime was required (Tr. 593). The telephone order book for July 30, 2021, has a notation by the garage supervisor, Supervisor Weiss, that respondent “is to be knocked off the clock and carried AWOL from 0800 on. Missing during CV OT” (Pet. Ex. 14 at 9). The reference to “CV OT” is to Covid cleaning overtime, for which respondent did not appear (Tr. 566). As Anderson testified, the daily attendance record shows that respondent signed in for the midnight to 8:00 a.m. shift but was marked as AWOL for “CV,” meaning the Covid overtime shift (Pet. Ex. 14 at 14; Tr. 567). While denying the AWOL allegations and saying that he was unaware of supervisors ever searching for him in the lunchroom where he would usually go to take a break, respondent said he did not remember the July 2021 incident involving Covid overtime (Tr. 700). Given respondent’s lack of recall relating to July 30, 2021, Anderson’s testimony, in addition to the detailed notes made by Weiss, is sufficient to establish that respondent did not appear for a scheduled overtime post on July 30, 2021. This charge is sustained. August 11, 2021 Petitioner alleges that respondent was AWOL on August 11, 2021. According to the charge, respondent was assigned to the QE11 garage on August 11, 2021, on the midnight to 8:00 a.m. shift and had volunteered for four hours overtime from 8:00 a.m. to noon on August 11, 2021, to do Covid cleaning in the garage. Superintendent Joseph Forgione had ordered all sanitation workers who had volunteered for Covid overtime cleaning to sign the blotter (or daily attendance record) every hour. At 10:30 a.m. Forgione checked the blotter and found that respondent had not signed the blotter from 8:00 a.m. to 10:30 a.m. The charge further alleges that Forgione tried without success to locate respondent in the garage and that, as of 8:00 a.m., respondent was “taken off the clock.” The absence and lateness log for August 11, 2021, states that respondent was marked AWOL as of 8:00 a.m. (0800 hours) (Ex. 14 at 17). According to Anderson, respondent volunteered for the overtime, which is seniority-based (Tr. 570). The daily attendance record, signed by the “start of shift” and “end of shift” supervisors and reviewed by Forgione, states that respondent was marked AWOL from 8:00 a.m., that respondent did not sign the blotter, and that he could not be located at 10:30 a.m. for Covid overtime work (Pet. Ex. 14 at at 22). Anderson acknowledged that he did not personally verify whether respondent was working during the alleged AWOL (Tr. 586, 592). According to Anderson, respondent was supposed to be in the garage supervisor’s office for roll call at the start of his overtime shift, waiting for his orders (Tr. 586). Anderson acknowledged that “[t]here were general guidelines and recommendations as far as social distancing during roll call” at this time (Tr. 588) but that sanitation workers were still required to appear at roll call for overtime shifts (Tr. 587-88). Sanitation workers who arrived late for work had to tell the district superintendent that they had arrived and see if they would be allowed to work (Tr. 589). Anderson acknowledged that a sanitation worker who missed roll call could possibly get his assignment from another sanitation worker who was present at roll call, but said he was not aware of this happening without the sanitation worker signing in (Tr. 589-90). Respondent did not testify about this incident other than to say he was not AWOL, he was not aware of any supervisors ever looking for him, including in the lunchroom, and that he does not know Anderson (Tr. 699). Given respondent’s lack of recall about this date and the documentary evidence establishing that he did not sign the daily attendance record and could not be located in the garage, this charge is sustained. FAILURE TO REPORT ARREST ON JULY 9, 2021, AND REQUESTING SICK LEAVE WHILE IN POLICE CUSTODY This charge alleges that respondent failed to report his July 9, 2021, arrest to the Department Advocate’s office within two days as required, in violation of rule 3.3 (employees must report arrest to supervisor and Department Advocate within two business days of arrest), and that he requested sick leave while in police custody, in violation of rule 7.2 (prohibiting employees from falsely claiming, exaggerating, or prolonging any injury or illness).¹⁸ Lieutenant Martinez testified that he is currently the commanding officer with the Manhattan Enforcement Agents, and from 2019 to the beginning of 2023, was an investigator within the Department’s Office of Employee Disciplinary Matters (Tr. 199-200). The Department’s General Order 2015-08 requires any Department employee who has been arrested to report the arrest to their immediate supervisor immediately upon release before returning to regular duty and within two calendar days to the Office of the Disciplinary Advocate (Pet. Ex. 16). Employees are also required to submit an original certificate of disposition relating to the arrest within two weeks of the date of disposition (Id.). This Order is normally handed out to each newly hired class of sanitation workers, is posted on all bulletin boards at all locations, and is read at three consecutive roll calls on the first regular workday of each month (Id; Martinez: Tr. 202). As indicated in a certificate of disposition from the Queens Criminal Court dated January 25, 2022, respondent was arrested on July 9, 2021, and arraigned on July 10, 2021 (Pet. Ex. 15 at 6). The arrest related to off-duty conduct (Id. at 2, 3; Tr. 210). The criminal charge was dismissed and sealed on July 29, 2021 (Pet. Ex. 15 at 6). Respondent did not timely notify the Department of his arrest or the dismissal of the charges (Tr. 210). The Department first learned of his arrest on January 26, 2022, when it received an arrest notification from the Department of Citywide Administrative Services (Tr. 210; Pet. Ex. 15 at 3). Lieutenant Martinez interviewed respondent shortly after respondent submitted the certificate of disposition for the arrest (Pet. Ex. 15 at 6). He recalled asking respondent why he had not notified the Department of the arrest and respondent replying that his arrest was not the Department’s business (Tr. 212). The Department’s telephone order book shows that respondent called a supervisor at about 11:30 p.m. on July 9, 2021. The supervisor recorded in the book that respondent was “going sick for body aches” for his July 10 shift from midnight to 8:00 a.m. (Pet. Ex. 15 at 7; Martinez: Tr. 213). Lieutenant Martinez maintained that respondent told him during his interview that he was in police custody when he requested sick leave (Tr. 210, 214; Pet. Ex. 15 at 2). Martinez noted on an arrest intake form that respondent was released from custody on July 10, 2021 (Pet. Ex. 15 at 2; Tr. 210). Respondent’s approved timesheet for the week shows that he used eight hours of sick leave on July 10, 2021 (Pet. Ex. 15 at 8). Although employees get paid for sick time, employees who cannot come to work because of an arrest are carried as AWOL and are not paid (Martinez: Tr. 215, 217; Pet. Ex. 16 at 1 (General Order 2015-08, “Report of arrest and disposition of any criminal charge relating to any Department employee”)). Ultimately, respondent’s failure to notify a supervisor resulted in his being carried as AWOL for July 10, 2021, and July 12, 2021 (Pet. Ex. 15 at 4). Lieutenant Martinez maintained that it was “a possibility” that someone who spends an overnight in a holding cell might complain of body aches and that sanitation workers can call out sick for body aches (Tr. 219). He agreed that sanitation workers could simultaneously be sick and in police custody (Tr. 221) but also thought that the medical leave policy does not permit a sanitation worker to take sick leave while in police custody (Tr. 221). Respondent did not testify about this charge. The undisputed evidence shows that respondent did not report his arrest, as required by rule 3.3. This charge is sustained. The unrebutted evidence also shows that respondent reported sick while in police custody, for a shift commencing at midnight on July 10, 2021, half an hour later. The evidence also shows that respondent was not arraigned until sometime on July 10, 2021, establishing that he remained in custody for at least some of his overtime shift. It was improper for respondent to request sick leave for a shift that he could not work because he was in custody. Under these circumstances, absent any evidence to the contrary from respondent, it is reasonable to infer that respondent falsely claimed or exaggerated an illness so he could get paid for sick leave rather than placed in unpaid AWOL status for the day. This charge is sustained. FINDINGS AND CONCLUSIONS 1. Respondent engaged in the unauthorized use of a collection truck on the morning of January 3, 2020, when he diverted from his route to pick up a piece of furniture from the curb outside his house and load it into the truck, in violation of rules 3.2, 3.25, 3.27, and 5.2. 2. Petitioner did not prove that by diverting from his route on the morning of January 3, 2020, respondent also failed to obey a direct order from his supervisor, in violation of rule 3.1. 3. Respondent made a false statement to FIAT about the January 3, 2020, morning incident, in violation of rule 4.4. 4. Respondent misappropriated and engaged in the unauthorized use of a downed Department collection truck on the evening of January 3, 2020, to drive to his house and remove material from the street and curb in front of his house onto the truck, in violation of rules 3.27, 5.2, and 5.3. 5. Petitioner did not prove that by misappropriating the downed truck on the evening of January 3, 2020, respondent stole or attempted to steal Department property or knowingly possessed stolen property, in violation of rules 4.5 and 4.6. 6. It is unnecessary to reach whether petitioner proved that respondent engaged in criminal activity by misappropriating the truck on the evening of January 3, 2020, in violation of rule 4.10, as this tribunal generally refrains from adjudicating Penal Law violations except in limited circumstances to determine if the alleged misconduct would fall within the applicable statute of limitations. 7. Respondent failed to cooperate with an official inquiry by declining to answer questions during a January 24, 2020, interview with FIAT about the incident on the evening of January 3, 2020, in violation of rule 4.1. 8. Respondent used profane and racist language toward police officers and a Department supervisor on June 9, 2023, in violation of Department rules 3.14, 3.23, and 3.27. 9. Through his use of racist and profane language to Department supervisors and to police officers in the patrol car and at the precinct, respondent violated the Citywide EEO policy. 10. On March 23, 2019, respondent failed to be home while on sick leave and failed to remain accessible for a sick leave visit, in violation of rules 7.5 and 7.6. 11. On April 3, 2019, respondent failed to remain home while on sick leave, in violation of rule 7.5. 12. Petitioner did not prove that respondent failed to submit medical documentation relating to his April 3, 2019, absence, in violation of rule 7.9. 13. On August 14, 2019, respondent failed to be home while on sick leave and failed to remain accessible for a sick leave visit, in violation of rules 7.5 and 7.6. 14. Respondent was absent without authorization on February 3, 2021, July 30, 2021, and August 11, 2021, in violation of rule 1.4. 15. Respondent failed to timely report his arrest on July 9, 2021, and requested sick leave while in police custody, in violation of rules 3.3 and 7.2. RECOMMENDATION Upon making these findings, I requested and received respondent’s disciplinary history. The requested material shows that respondent was appointed as a sanitation worker on May 24, 2004, and resigned on August 12, 2004. He was re-appointed to the Department as a sanitation worker on December 5, 2005. Since that time, he has been disciplined six times. The first five instances of discipline, from April 2008 through December 2014, involve settlements in which respondent pleaded guilty to the charges, as follows: (1) a one-day suspension on April 8, 2008, for one charge of AWOL and two charges relating to being out of residence during a sick leave visit; (2) a two-day suspension on September 22, 2008, for four instances of AWOL; (3) a oneday suspension on April 28, 2010, for being AWOL and failing to follow the Department’s orders; (4) a one-day suspension on April 20, 2011, for being out of residence while on sick leave; and, (5) a five-day suspension on December 17, 2014, for being AWOL, absent from his assigned work location, and out of residence while on sick leave on two occasions. Respondent’s sixth instance of discipline was a 45-day suspension imposed after a trial before this tribunal in which the administrative law judge sustained charges of misconduct arising in 2015 and 2016, including: being absent from his home while on sick leave on four occasions; failing to sign the daily blotter on one occasion; being AWOL on two occasions during part of his shift; and being insubordinate and profane on one occasion. According to the information provided by petitioner, respondent has not received any awards, commendations, or promotions. On his yearly performance evaluations beginning on July 1, 2019, respondent received an overall rating of unsatisfactory, except for the evaluation between July 1, 2020 and June 30, 2021, on which he received a satisfactory overall rating. Petitioner asserts that termination is the only appropriate penalty for the proven misconduct. Respondent contends otherwise. Respondent denies having misappropriated a collection truck on the evening of January 3, 2020, asserts that his diversion off route on the morning of January 3, 2020, to pick up a piece of furniture is not a terminable offense, argues that the AWOL charges were not proven, and contends that his use of derogatory language toward police officers and a Department supervisor should not result in termination because he was intoxicated and suffering from mental health conditions at the time. Respondent’s argument is not persuasive. This is a case involving serious misconduct. Petitioner proved that respondent, while offduty, misappropriated a downed sanitation truck on the evening of January 3, 2020, drove it to the street on which he owned a house, and made three passes on his block while he loaded it with .89 tons of materials that he had removed from his house. This alone would warrant termination of his employment. Unlike the circumstances relating to the morning of January 3, 2020, when respondent was authorized to drive a collection truck but briefly diverted from his route to pick up a piece of furniture outside his house, respondent was not working his shift on the evening of January 3, 2020. He did not have authorization to operate the truck, which had been downed and was waiting repairs. He did not sign out the truck or otherwise document that he was using it. There is no evidence to suggest that the Department had any idea that the truck had been taken from the yard and was being driven on New York City streets. This was a completely rogue operation on respondent’s part, for his personal benefit, which displayed a calculated disregard for Department rules. See Dep’t of Sanitation v. Rivera, Comm’r Dec. at 15 (June 22, 2009), aff’g in part, rev’g in part, OATH Index No. 2056/09 (June 4, 2009) (in rejecting ALJ’s recommendation of a 30-day suspension for sanitation worker who borrowed collection truck after his shift ended to run errands and imposing termination, Commissioner notes that Department policy requires that every Department vehicle “be accounted for at all times” and that the “unauthorized taking and use of a DSNY truck is an incredibly serious security issue and potential legal liability issue”). Notably, while respondent asserts that any penalty for his derogatory and profane statements should be mitigated because he was intoxicated at the time and is actively attempting to “rehabilitate himself” through various therapy programs and medication protocols (Resp. Post-Trial Br. at 7), respondent makes no such claim with regard to his unauthorized use of the truck on the evening of January 3, 2020, nor his less egregious but still serious diversion from his route on the morning of January 3, 2020. Thus, to the extent that respondent claims that he should be given a “workplace accommodation” because of his disabilities and efforts toward rehabilitation (Id. at 9), this argument goes only to his use of profane and derogatory statements on June 9, 2023, not his misappropriation of the truck. Moreover, to the extent that respondent claims that his efforts toward rehabilitation should mitigate any penalty for his use of profane and derogatory language on June 9, 2023, McEniry and its progeny do not require a non-termination penalty, even when an employee is actively engaged in rehabilitation. See Murolo, 246 A.D. 2d at 653 (in upholding termination, noting that employee had undergone counseling for his alcoholism and was a recovering alcoholic, but holding that his status as a recovered alcoholic did not prohibit the Fire Department from “imposing appropriate disciplinary measures”). I credited respondent’s expression of regret about his behavior on June 9, 2023, and his testimony, corroborated by Ash, that he is actively engaged in treatment through extensive counseling and medication. However, the fact remains that from when respondent was initially detained by the police, through the time he was transported to the precinct, brought before the desk sergeant, and ultimately placed in a holding cell, respondent directed numerous racial slurs and other insults toward police officers and supervisors and a Department supervisor who were simply doing their jobs. To say that respondent’s behavior brought discredit upon the Department is an understatement. Respondent has a public-facing job where he is expected to interact with members of the public in accordance with the Department’s rules and the City’s policies. Given the Department’s substantial interest in maintaining a workforce that treats all members of the public with respect and without discrimination, respondent’s prolific use of racial slurs on June 9, 2023, brings into serious doubt whether continuation of his employment would be proper. Ultimately, however, I need not decide the issue of whether termination of respondent’s employment based on his use of racial slurs and profanity on June 9, 2023, would be excessive, because termination is warranted on the basis of the January 3, 2020, evening incident alone. The other charges of proven misconduct, along with respondent’s substantial disciplinary history, further demonstrate that termination is appropriate. In making this recommendation, I have considered respondent’s testimony that he would lose his healthcare if he was terminated from employment, could not continue with therapy and did not know what “could happen” (Tr. 713). I have also considered Ash’s testimony that he believed respondent would be severely depressed and might be hospitalized if he was fired because termination would be “totally devastating for him” (Tr. 770). It is my hope that respondent is able to find a way to continue with therapy, which both he and Ash believe has been productive. However, given the severity of the proven misconduct, I do not believe that a penalty other than termination of respondent’s employment would be appropriate. Accordingly, I recommend that respondent’s employment be terminated. Dated: September 9, 2024 IN THE MATTER OF DEPARTMENT OF SANITATION, Petitioner v. Respondent A copy of the September 9, 2024, Report and Recommendation submitted by OATH Administrative Law Judge (“ALJ”) Faye Lewis was forwarded to this office following a disciplinary proceeding pursuant to Section 16-106 of the Administrative Code of the City of New York. I have reviewed the evidence and hearing transcript as well as ALJ Lewis’ thorough and well-reasoned Report and Recommendation. After six (6) days of hearings between October 2023 and May 2024, ALJ Lewis found that respondent, [E]ngaged in the unauthorized use of a Department collection truck on the morning of January 3, 2020, and later lied about it to FIAT; misappropriated a Department collection truck on the evening of January 3, 2020, and later failed to cooperate with an official investigation about the misappropriation; used derogatory language toward police officers and a Department supervisor; violated sick leave rules on three occasions; and was AWOL three times.¹⁹ ALJ Lewis further found that “the unrefuted bodycam evidence showed that respondent used racist and profane language toward police officers and [police] supervisors” and that respondent used similar racist and profane language toward a Department supervisor.²⁰ After making those findings, which I accept, ALJ Lewis recommended that ‘s employment with the Department be terminated. I concur with ALJ Lewis. Based on the foregoing, ALJ Lewis’ recommended penalty of termination is hereby accepted.