NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS

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1 Dep t of Sanitation v. Hernandez OATH Index No. 106/09 (Nov. 26, 2008), modified on penalty, Comm r Decision (Dec. 19, 2008), modified on penalty, NYC Civ. Serv. Comm n Item No. CD M (Dec. 7, 2009) Petitioner established that sanitation worker violated the prohibition on collecting trade waste when he collected construction debris from a clearly marked construction site, in violation of the Department s trade waste policy. The evidence did not establish that respondent accepted a gratuity. 30-day suspension recommended. Commissioner imposed the penalty of termination, stating that is the appropriate penalty for trade waste violation, absent credible mitigating circumstances, beyond a clean conduct record. The Civil Service Commission, agreeing with the ALJ, found 30- suspension more appropriate. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of DEPARTMENT OF SANITATION Petitioner - against - ROBERT HERNANDEZ Respondent REPORT AND RECOMMENDATION KEVIN F. CASEY, Administrative Law Judge This is an employee disciplinary proceeding brought by petitioner, the Department of Sanitation ( Department ), pursuant to section of the New York City Administrative Code. Respondent, Robert Hernandez, is charged with collecting trade waste from a construction site on Hone Avenue in the Bronx on April 17, 2008, and accepting a $20 gratuity, in violation of rules 4.3, and 6.1, and Trade Waste Order (ALJ Ex. 1). At a two-day hearing, petitioner presented the testimony of four Department employees: Deputy Chief of the Bronx Steven Bucolo, Bronx Borough Chief Paul Visconti, Supervisor Jose Serrano, and Superintendent Charles Burge of the Field Investigative Audit Team ( FIAT ). The Department also introduced a videotape showing an interview with the property owner and

2 - 2 - the contents of the truck used by respondent on April 17, 2008, as well as other documents. Respondent testified in his own behalf, and presented the testimony of the property owner and photographs. For the reasons below, I find that the Department established that respondent improperly received trade waste. However, I find that the Department failed to prove that respondent accepted a gratuity. ANALYSIS On April 17, 2008, respondent was assigned as the loader for a collection truck in the Bronx. The driver was sanitation worker Kevin Riordan 1 (Pet. Ex. 3). At approximately 9:00 a.m., respondent and Riordan were working on Hone Avenue, near the end of their route (Tr. 210). Deputy Chief Bucolo was monitoring the routes under his supervision (Tr. 13). He turned onto Hone Avenue from Pelham Parkway South and saw a collection truck near the end of the block toward Esplanade Avenue. Two sanitation workers were working behind the truck. When he was approximately two or three car lengths behind the truck, Bucolo recognized respondent and Riordan, who had both worked for him for many years (Tr ). The rear end of the truck was in front of a construction site. The front of the truck was past the construction site, in front of the house to the left (Tr. 41). The house to the right of the construction site, at 2161 Hone Avenue, is a building owned and occupied by Prelja Nikac (Tr ). The construction site was a new house being erected by Nikac at 2159 Hone Avenue where there had formerly been a two-car garage (Tr ). A large construction sign and Department of Buildings work permits were hung prominently on the plywood fence (Tr. 17). The construction sign was marked with the name of the owner and the contractor. (Pet. Exs. 4, 4A; Tr. 111; Resp. Ex. B). Bucolo saw respondent and his partner taking construction material from the curb line and putting it in the hopper of the truck (Tr. 17). He testified that he saw respondent load something into the hopper, whether it would be a piece of wood, wood pallet or sheetrock, it was material (Tr. 18). On cross-examination, he was more specific, identifying the refuse that was taken from the curb as a wood pallet and sheetrock (Tr. 42). In a report prepared later that 1 The Department withdrew the charges against Riordan upon his retirement (Tr. 5).

3 - 3 - day, Bucolo noted that he saw a wood pallet, sheetrock, and some loose wood in the hopper (Pet. Ex. 1). After respondent loaded the refuse, Bucolo saw him walk around to the right side of the truck, toward the cab and out of sight (Tr ). Bucolo observed Nikac hand something to Riordan at the rear of the truck (Tr. 19). When he finished talking to Nikac, Riordan got in the truck and continued the route with respondent. Bucolo followed the truck as it turned onto Lurting Avenue. He stopped his car, approached behind the truck, and ordered respondent and Riordan to stop loading (Tr ). Bucolo called Borough Chief Visconti and the district superintendent. Visconti told him to secure the scene and notified FIAT (Tr. 23). When Visconti and the superintendent arrived at Lurting Avenue, Bucolo briefed them on the events. Bucolo and Visconti walked back to the construction site on Hone Avenue (Tr ). Bucolo and Visconti spoke to Nikac at the construction site. When Bucolo said that he saw the workers picking up construction material, Nikac acknowledged that they had, but not a lot (Tr. 69). According to Bucolo, Nikac said that he had given the workers twenty dollars as a Christmas tip, even though it was April. Nikac told Bucolo and Visconti that the workers took some material and he wanted to give them some money (Tr. 26). Visconti testified that Nikac said, I gave them twenty dollars, I feel bad that they didn't get a Christmas gift this year, it wasn't that much material they took, but they did take construction material (Tr. 68). The videotape recorded at approximately 10:30 that morning by FIAT investigator Charles Burge shows the building under construction: a brick façade surrounded by scaffolding within a plywood fence (Pet. Ex. 4). Nikac testified that the outside brickwork and windows were finished. Beams and plywood were installed inside (Tr. 179). Burge interviewed Nikac on the videotape. Nikac told him that the only construction material removed by the sanitation workers were three two-by-six pieces of wood tied in a bundle. Nikac admitted giving the workers a twenty-dollar tip, saying it was just a gift. He denied paying the workers to remove construction debris and compared the money to a Christmas gratuity. Nikac pointed to other construction debris leaning against the plywood fence and said that the gift wasn t for anything. Nikac told Burge that if he had wanted to pay the sanitation workers to take construction debris, he would also have had them take the material leaning against the fence (Pet. Exs. 4, 4A).

4 - 4 - The videotape shows white marks in the street in front of the construction site (Pet. Ex. 4). Burge opined that the marks were made by sheetrock dragged into the traffic lane where a collection truck would have been parked (Tr. 114). In the videotape, the white markings are partially covered by a parked van. Pallets of new sheetrock are lined up alongside the construction site (Pet. Ex. 4). While the truck was stopped at Lurting Avenue, Burge opened the hopper and noted black garbage bags that had been ripped open by the action of the hopper. He estimated that seven to ten bags were filled with construction debris. Burge also saw loose wood, tile, and sheetrock (Tr. 119; Pet. Ex. 2D). Burge escorted the truck to a Department facility (Tr. 120). He videotaped sanitation workers dumping the trunk and separating the contents. A great deal of construction debris is visible in the videotape. The debris includes at least ten bags containing sheetrock and wood. The contents of the truck also included tied-up pieces of sheetrock, loose wood, and a rolled-up rug or carpet (Pet. Ex. 4). Bucolo had told Burge that there was a wood pallet in the truck, but Burge did not see a pallet when the truck was dumped (Tr ). Instead, there were a few pieces of loose wood, similar to the bundle described by Nikac (Tr. 141). Burge estimated the amount of construction debris to be one eighth of a truckload (Pet. Ex. 2D). Respondent s witness, Nikac, testified that he was in front of his house when the sanitation workers arrived. After chatting about the progress of the construction with Riordan, Nikac gave him twenty dollars and told him to have cup of coffee on me [sic]. Respondent, who was already sitting in the truck, was not present when Nikac gave Riordan the money (Tr. 168). Nikac explained that he gave Riordan the money because I felt good that day, I felt the house was going along. He was happy that the construction was going well and the sanitation workers seemed pretty tired (Tr. 168). Nikac testified that construction at 2159 Hone Avenue had started in February, when the two-car garage had been demolished. The material from the demolition was taken away the same week (Tr. 179, 195). He hired dumpsters to cart away construction material generated between February and April (Tr ). On April 17, the workers picked up only two small black bags of garbage and some wood. The wood had been used to support the old boiler in his house, which was being replaced (Tr. 167, 197). Nikac testified that he did not put anything in front of the construction site at 2159 Hone Avenue. The only refuse on the curb that day was

5 - 5 - residential garbage in front of his residence at 2161 Hone Avenue (Tr. 183). He stated that he did not throw out bags of sheetrock, a rug, or a wood pallet (Tr ). There was more construction debris behind the plywood fence, which Nikac did not ask respondent and Riordan to remove. Nikac did not move that material to the curb for removal, and it was not taken by the sanitation workers (Tr. 173). Nikac also testified that sheetrock was delivered that day. He claimed that there had been no prior deliveries of sheetrock at the construction site (Tr. 165). He asserted that sheetrock found in the truck could not have come from his site because he had only pallets of new sheetrock at the site that day (Tr ). Any debris or sheetrock dust in the street was from that day s delivery (Tr. 167, 196). In the video, workers can be seen moving new sheetrock into the construction site (Pet. Ex. 4; Visconti: Tr. 70). Respondent denied taking a pallet, sheetrock, or construction debris from the construction site at 2159 Hone Avenue (Tr. 209, 214). Riordan stopped the truck with the loading end directly in front of 2161 Hone Avenue (Tr. 229). Nikac was in front of the house and asked respondent to take two or three pieces of wood. Respondent asked Nikac if the wood came from the construction site. Nikac assured him that it was from the house and respondent picked it up and threw it in the truck (Tr , 231, 233, 250). Riordan got out of the truck and loaded two bags of household garbage (Tr. 207, 229, 232, 250). According to respondent, any refuse he picked up from Nikac came from 2161 Hone Avenue and he never set foot in front of 2159 Hone Avenue (Tr. 231). Respondent suspected that the construction debris that supervisors discovered in the truck came from an earlier stop, a large apartment house, where the volume of garbage was greater than normal (Tr. 204, 218). Instead of the usual thirty bags, there were about fifty (Tr. 221). After loading some of the bags, respondent cycled the hopper and saw that some of the bags contained construction debris (Tr. 206, 224). After that stop, respondent and Riordan resumed their route. At 2161 Hone Avenue, after throwing the wood in the hopper, respondent saw Nikac approach Riordan and start to talk to him. Respondent got into the cab to wait for Riordan, since it was the last stop on the block (Tr. 207). He waited in the truck for two or three minutes. Respondent was in the cab, and he could not see Nikac or Riordan (Tr. 208, 235). He did not see Nikac give money to Riordan (Tr. 234). When Riordan got back in the truck, he did not say anything to respondent about the money (Tr. 236).

6 - 6 - I find that it is more likely than not that respondent accepted construction debris from the site at 2159 Hone Avenue in violation of the Trade Waste Order. The Department defines trade waste, in relevant part, as: Any material originating from the alteration, construction, repair or maintenance of a residential building ( Work ), which was performed for a fee, by a contractor or any person engaged in the home improvement business ( Contractor ). Such material may include, but is not limited to cement, concrete, lumber, plasterboard, plaster, rock, or timber ( Construction Debris ). General Order II(A)(3). The Order permits sanitation workers to service a stop which contains up to a total of six (6) bags, boxes, bundles and cans of Construction Debris that may be considered Trade Waste which is placed out for collection at the curb adjoining a residential building on their route if the Work is not being performed by a Contractor. But sanitation workers are not permitted to service a stop if there is a sign containing the name of a Contractor on the building. In that case the workers must report the stop to a supervisor. Id. III(A). Based upon Bucolo s eyewitness testimony and the videotape evidence, I find it more likely than not that respondent picked up unauthorized trade waste from a clearly marked construction site at 2159 Hone Avenue. Bucolo s testimony was credible and he had no reason to be untruthful. He has known respondent for a number of years and there was no suggestion of any animus between them. Bucolo s eyewitness account regarding the bulk of the trade waste and the gratuity were corroborated by the subsequent discovery of sheetrock in the truck and Nikac s concession that he tipped one of the workers. The videotape supported Bucolo s testimony because it shows large amounts of construction debris at the front of the hopper. Among the debris there were bags of sheetrock and loose sheetrock. Since very little refuse was loaded into the truck after the construction site, it is likely that the debris came from 2159 Hone Avenue. I did not credit respondent s assertion that the construction debris came from an apartment building earlier on his route. If there were numerous bags filled with sheetrock at that location, it would have been readily apparent that it was construction material based upon the quantity, size, and shape of the bags. Yet respondent claimed that he did not realize the bags contained construction debris until after he loaded them in the truck and cycled the hopper. Even if he had unwittingly loaded many bags of construction debris at the apartment house, respondent

7 - 7 - should have notified a supervisor or made a notation on the DS 350 form. Respondent did not do either of those things (Tr , ; Pet. Ex. 3A). I also discounted Nikac s testimony. He attempted to support respondent s version of events, but it is clear that he felt partially responsible for respondent s predicament and was trying to protect him. On the day of the incident and at the hearing, Nikac repeatedly apologized for the trouble he felt he had caused (Pet. Exs. 4, 4A; Tr. 174, 195, 198). It is not likely that Nikac spontaneously decided to give $20 to a sanitation worker simply because he was in a good mood. The more plausible explanation is that he was paying for the removal of trade waste. To be sure, there were some gaps in petitioner s case. For example, Bucolo insisted that he saw sanitation workers tossing a pallet into the truck, but it was unclear from the video whether a pallet was ever recovered. Instead, the video shows a few pieces of wood, most of which were loose. Similarly, much of the construction debris on the video seems to be falling out of torn garbage bags and, in his descriptions of the incident, Bucolo did not mention garbage bags (Tr. 17, 40, 42-44; Pet. Ex. 1). Although these inconsistencies are troubling, they are not enough to rebut petitioner s case. From his vantage point on Hone Avenue, Bucolo may have mistaken loose wood for a pallet or the pallet may have come apart inside the truck. It is also apparent that Bucolo turned on to the block as respondent and Riordan were finishing their work at 2159 Hone Avenue. He arrived as the two sanitation workers removed wood and sheetrock from in front of the construction site and then Riordan accepted money from Nikac. By then the sanitation workers had already loaded bags of debris in the truck. Viewed in its entirety, the evidence was sufficient to prove that respondent improperly removed trade from in front of the construction site at 2159 Hone Avenue. Despite some inconsistencies, the remaining evidence -- including Bucolo s testimony, the discovery of trade waste in the truck, Nikac s admission that he gave one of the workers money, and respondent s unlikely explanations -- were enough to prove a violation of the Trade Waste Order. The Department, however, did not prove that respondent accepted money in exchange for disposing of construction debris. There was no evidence that respondent received or was even aware of the money that Nikac gave to Riordan. Bucolo did not see Nikac give anything to respondent. Respondent was out of Bucolo s sight and not present when Nikac gave the money to Riordan (Tr. 18, 51-53). At the hearing, Nikac stated that respondent never asked him for

8 - 8 - money or took money from him at any time (Tr. 175). He asserted credibly that respondent was sitting in the truck when he spoke to Riordan and gave him the twenty dollars (Tr ). The testimony of Bucolo, Nikac, and respondent was consistent in this regard. Although the reasons that Nikac gave for paying Riordan were not entirely credible, Riordan is not charged here, and I cannot make the inferential leap required to find respondent guilty of this charge based on the evidence presented. See Dep t of Sanitation v. Tribble, OATH Index Nos. 994/03 & 995/03 (May 16, 2003), aff d, NYC Civ. Serv. Comm n Item No. CD04-07-SA (May 19, 2004) (charge dismissed when videotape and audiotape evidence, and witness testimony failed to establish that respondent accepted money); Dep t of Sanitation v. Wall, OATH Index No. 127/03 (Oct. 24, 2002) (respondent not guilty of accepting a gratuity when no evidence was presented to show that he was aware of or participated in his partner s conversation about the gratuity). The Department simply did not carry its burden of proof. Accordingly, the charge that respondent violated rule 4.3 by accepting money should be dismissed. FINDINGS AND CONCLUSIONS 1. The Department proved by a preponderance of the evidence that, on April 17, 2008, respondent accepted trade waste from a clearly marked construction site at 2159 Hone Avenue in The Bronx. 2. The Department failed to prove by a preponderance of the evidence that respondent accepted a gratuity in return for picking up trade waste. RECOMMENDATION After making the above findings, I requested and received a summary of respondent's personnel history. The Department hired respondent on October 1, He has no previous disciplinary record. Section of the Administrative Code limits the penalties that may be imposed after a finding of misconduct to suspension without pay for a period not exceeding thirty days or dismissal from the Department. The Department seeks termination of respondent s employment. General Order puts employees on notice that anyone who knowingly violates the trade waste prohibitions will be subject to a disciplinary penalty, including termination of

9 - 9 - employment. We have noted, repeatedly, that trade waste collection is an abuse of public property and resources... misconduct that undermines the Department s responsibility for enforcing the Administrative Code and adds to the expense of exporting refuse. Dep t of Sanitation v. Kempf, OATH Index No. 998/03, at 4 (Oct. 22, 2003). Termination of employment is the usual penalty for improper collection of trade waste. See e.g. Dep t of Sanitation v. Lowe, OATH Index No. 1499/06 (Sept. 22, 2006); Dep t of Sanitation v. Hyatt, OATH Index No. 2009/06 (Dec. 8, 2006); Dep t of Sanitation v. Cerulli, OATH Index No. 2272/01 (Jan. 28, 2002); Dep t of Sanitation v. Mallon, OATH Index Nos. 1209/98 & 1210/98 (May 6, 1998), aff d sub nom. Mallon v. Doherty, 269 A.D.2d 282, 703 N.Y.S.2d 137 (1st Dep t 2000). In some instances where this tribunal has recommended termination for trade waste violations the parties later agreed to a non-termination penalty. See Dep t of Sanitation v. Anthony, OATH Index Nos. 793/07 & 794/07, at 7 (Feb. 27, 2007), modified on penalty sub nom. Anthony v. Doherty, Index No /07, Stipulation of Settlement and Discontinuance (Sup. Ct. N.Y. County, Dec. 14, 2007); see also Dep t of Sanitation v. Kallincos, OATH Index No. 485/05 (May 24, 2005) (termination recommended where circumstantial evidence showed that sanitation worker, with 15 years experience and minimal disciplinary record, accepted trade waste; parties later agreed to lengthy suspension and probation); Dep t of Sanitation v. Morales, OATH Index Nos. 2184/99 & 2196/99 (Sept. 24, 1999) (termination recommended for two sanitation workers who knowingly collected construction debris from an apartment building, parties later agree to 90-day suspensions and other conditions); Dep t of Sanitation v. Diamond & Tepedino, OATH Index Nos /96 (Dec. 18, 1995), modified on penalty, Tepedino v. Dep t of Sanitation, NYC Civ. Serv. Comm n Item No (Oct. 25, 1996) (termination recommended for two workers who accepted commercial waste, Civil Service Commission modified penalty to 30-day suspension for less culpable participant who had ten years of service and no prior disciplinary record). On rare occasions, this tribunal has recommended penalties short of termination for trade waste violations. Among the mitigating factors that may be considered are: lengthy tenure, the lack of a prior disciplinary record, and the absence of any financial benefit. See Tribble, OATH Nos. 994/03 & 995/03 (30-day suspension recommended for respondent who did not accept gratuity and only accepted trade waste after undercover detective threatened to dump the debris

10 in the street); Dep t of Sanitation v. Sanchez, OATH Index No. 1722/98 (Feb. 3, 1999), aff d, NYC Civ. Serv. Comm n Item No. CD SA (Apr. 7, 2000) (30-day suspension recommended in view of respondent s tenure and lack of prior disciplinary record). This is an exceptional case where leniency is appropriate. Respondent has an extraordinary unblemished tenure. He has served the Department for more than 19 years without any prior disciplinary incident. Moreover, there was no evidence that he accepted or was even aware of a gratuity. Without minimizing the seriousness of the proven charge, a penalty short of the extreme sanction of termination is appropriate in this case. Accordingly, I recommend that respondent be suspended without pay for 30 days. November 26, 2008 Kevin F. Casey Administrative Law Judge SUBMITTED TO: JOHN DOHERTY Commissioner APPEARANCES: CARLTON LAING, ESQ. Attorney for Petitioner MARTIN GALVIN, ESQ. Attorney for Respondent

11 NYC Department of Sanitation Comm r Decision, December 19, 2008 In the Matter of DEPARTMENT OF SANITATION Petitioner - against - ROBERT HERNANDEZ Respondent JOHN J. DOHERTY, Commissioner DECISION A copy of the November 26, 2008 Report and Recommendation submitted by OATH Administrative Law Judge (ALJ) Kevin F. Casey was forwarded to this office following a disciplinary proceeding pursuant to Section of the Administrative Code. After reviewing the evidence, hearing transcript and report and recommendation, I find that I must modify ALJ Casey's recommendation as to the penalty. Specifically, though not limited to the following, I find that ALJ Casey failed to give the proper weight to or missed the following: 1) This is a recommendation that is a stark divergence from OATH's jurisprudence and penalty recommendations in trade waste cases over the last 10 years. Recognizing "the abuse of public property and resources" implicit in trade waste violations, OATH has consistently recommended (and appellate bodies have affirmed) a penalty of termination for trade waste violations even where the sanitation workers involved have had lengthy tenures and unblemished records. See Dep't of Sanitation v. Lowe, OATH Index No. 1499/06 (Sept. 22, 2006); Dep't of Sanitation v. Mallon, OATH Index No. 1209/98 & 1210/98 (May 6, 1998), aff'd sub nom. Mallon v. Doherty, 269 A.D.2d 282, 703 N.Y.S.2d 137 (1st Dep't 2000); 2) OATH has recommended termination even in the absence of proof that the worker accepted a gratuity. See Dep't of Sanitation v. Hyatt, OATH Index. No. 2009/06 (Dec. 8, 2006) (termination recommended for five year sanitation worker with prior unblemished record even though no evidence of a gratuity); Dep't of Sanitation v. Cerulli, OATH Index No. 2272/01 (Jan. 28,2001) (sanitation worker's prior twelve-year unblemished record insufficient to warrant penalty less than termination, even absent proof of gratuity); Dep't of Sanitation v. Joyce, OATH Index No. 888/00 & 8889/00 (Aug. 16,2000), aff'd, NYC Civ. Serv. Comm'n Item No. CD00-75-SA (Oct. 22, 2001) (employee's lengthy tenure did not constitute compelling mitigation against termination, even absent proof of gratuity); Dep't Sanitation v. Macari, OATH Index No. 606/00 & 607/00 at 9 (Apr. 4, 2000) (termination recommended for 17-year employee with minor disciplinary record, where there was no evidence of gratuity, but a very large amount of commercial waste was collected); Mallon, OATH Index No. 1209/98 & 1210/98 (termination recommended for employees found to have collected construction waste; no evidence of gratuity; one employee had 9 years on the job and no history of prior discipline); 3) In the isolated cases where lesser penalties have been recommended, the ALJ's have been careful to cite and articulate credible mitigating circumstances, other than tenure or conduct record, to justify the lesser penalties. See Dep't of

12 Sanitation v. King, OATH Index No. 295/04 (Feb. 2, 2004) (ALJ credited sanitation worker's assertion that he was intimidated by his partner into taking trade waste and found this compelling mitigation to recommend penalty short of termination); Dep't of Sanitation v. Tribble, OATH Index No. 994/03 & 995/03 (May 16, 2003), aff'd, NYC Civ. Serv. Comm'n Item No. CD SA (May 19, 2004) (ALJ cited sanitation worker's credible testimony that he took trade waste from under cover officer only after the officer told him that he would dump it in the street as sufficient mitigation to recommend penalty short of termination); and 4) In light of this line of cases, ALJ Casey's recommendation of a penalty less than termination in this case, without citing or articulating any reason other than the tenure and the conduct record of the Respondent to justify his recommendation, represents a stark departure from long standing OATH trade waste jurisprudence. This would send the message that a long tenure and a clean conduct record can confer a license to veteran sanitation workers or give them a pass to abuse public property and resources without much risk to their employment. Therefore, the recommendation of Kevin F. Casey is rejected. Based on the severity of the misconduct, it is my decision that the appropriate penalty for the proven misconduct is termination. JOHN J. DOHERTY, Commissioner, NYC Department of Sanitation