Dep t of Sanitation v. Amoto OATH Index Nos. 420/05 & 421/05 (June 17, 2005)

Transcription

1 Dep t of Sanitation v. Amoto OATH Index Nos. 420/05 & 421/05 (June 17, 2005) Petitioner failed to prove that respondent sanitation workers were unproductive from 6:45 a.m. through 7:27 a.m., as alleged. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of DEPARTMENT OF SANITATION Petitioner - against - JOHN AMOTO and ARMONDO STEIDELL Respondents REPORT AND RECOMMENDATION FAYE LEWIS, Administrative Law Judge This employee disciplinary proceeding was referred by petitioner, the Department of Sanitation, pursuant to section of the Administrative Code of the City of New York. Respondents are charged with being unproductive on July 5, 2003, from 6:45 a.m. to 7:27 a.m., in that they entered the garage at 6:45 a.m. without their route being complete, and, after being ordered back into the field, failed to perform their duties between 7:15 a.m. and 7:27 a.m. (ALJ Ex. 1). Trial was held on November 17, 2004 and January 12, Petitioner presented four witnesses, all supervisors in Staten Island: Deputy Chief Michael Mauceri, who on July 5, 2003 was the borough operations superintendent; Supervisor Michael Senno, District Superintendent Henry Wakie, and Supervisor Corey Epstein. Respondents testified on their own behalf, and produced five witnesses, all sanitation workers: Antonzo Zarcone, Ralph Spalding, Robert Gilmore, James Vocatura, and Sebastiano Friscia. As discussed below, I find that the charges are not sustained and recommend that they be dismissed.

2 -2- ANALYSIS It was not disputed that respondents Amoto and Steidell were assigned to the midnight to 8:00 a.m. shift at the Staten Island 2 garage on July 5, 2003 and were assigned a recycling truck to use to pick up garbage. The borough office is right above the garage. Borough Operations Superintendent Mauceri was assigned to the 7:00 a.m. to 3:00 p.m. shift, while District Superintendent Wakie was assigned to the 6:00 a.m. to 2:00 p.m. shift. Supervisor Epstein was assigned to the midnight to 8:00 a.m. shift. Chief Zarcone was not working on July 5, but stopped into the borough office for about two hours, beginning about 6:00 a.m., to make sure everything was running smoothly. Further undisputed was that respondents were directed to pick up backlog material not picked up on July 4, the preceding day. A recycling truck, number 25CM262, was assigned because a regular garbage truck was unavailable. At some point in the morning, estimated at 6:45 a.m. by Superintendent Mauceri, Chief Zarcone, Superintendent Wakie, and respondents, and 6:30 a.m. by Supervisor Epstein, respondents returned to the garage. The parties dispute why respondents returned, whether respondents actually drove their truck into the garage, or simply parked it by the back of the building, whether Superintendents Wakie and Mauceri spoke to respondents at this time, and whether a garage utility man, upon instruction by Superintendent Mauceri, cycled the hopper of the truck to see if there was any room for additional garbage. However, they agree that respondents were ordered back into the field, and that they went. The parties further agree that Superintendent Mauceri and Supervisor Epstein were directed to follow respondents into the field, and that they came across respondents at 7:27 a.m., on Steinway Avenue, which was off their assigned route, but which was close to the garage. In dispute is whether the respondents performed any work between the time they left the garage and 7:27 a.m., and whether they were authorized to be off their route at 7:27 a.m. What follows is a discussion of what the parties claim occurred when respondents pulled up to the garage in the morning, and once they returned to the field. At the Garage According to Chief Zarcone, Superintendent Mauceri, and Supervisor Epstein, the three of them, plus Deputy Chief Ralph Reed, were looking out the window of the main office area when they saw respondents truck come in. This was an unusual time for a truck to return. According to Superintendent Mauceri, a truck on the midnight to 8:00 a.m. shift would normally

3 -3- not return to the garage until at least 7:30 a.m., unless it was coming in to be cleaned, which did not appear to be the case (Tr. 9). Chief Zarcone told Superintendent Mauceri to go downstairs to the garage and see what was going on. Either Chief Zarcone or Superintendent Mauceri also asked District Superintendent Wakie, who was on the garage floor, to investigate why the truck was in (Zarcone: Tr. 116; Mauceri: Tr. 78, 79; Wakie: Tr. 173). Although Superintendent Mauceri initially testified that he did not recall seeing the truck actually enter the garage, and that he recalled Superintendent Wakie going outside the garage, he then testified that [t] he truck must ve been in the garage, because I remember checking the truck in the garage (Tr ). He also testified that Superintendent Wakie went outside onto the garage floor although he did not recall whether or not Superintendent Wakie spoke to the sanitation workers or whether he went over to Superintendent Wakie (Tr. 81, 83, 84). He was clear that he had the garage utility man run the hopper of the truck and move the blades. The blades moved freely, which meant there was more room for garbage. Although Mr. Mauceri did not remember the garage man s name, he later testified that it must have been Mr. Spalding (Tr. 81, 217). Superintendent Mauceri was also unclear as to whether he saw the two sanitation workers on the floor; initially, he testified that he thought he saw respondent Amato, then he testified that he did not really recall (Tr. 83). He was not even sure whether the sanitation workers were there when he checked the truck, or whether he spoke to them after he found out there was room on the truck (Tr. 86). However, he subsequently testified that he spoke to the two respondents before they went back on their route (Tr. 87). He later testified that he believed he spoke to respondent Amoto; but corrected himself to identify respondent Steidell as the person he spoke to (Tr. 88, 91). 1 He testified that he did not recall seeing the other sanitation worker, except in the truck as it went back out (Tr. 90). He did not recall whether the other worker was present at the time he spoke to Mr. Steidell (Tr. 90). According to Superintendent Mauceri, he asked why the men were in the garage, and Mr. Steidell said that he did 8.5 (meaning that he loaded 8.5 tons). Superintendent Mauceri also quoted Mr. Steidell as saying, I can t finish the route, or I am loaded out. The truck had not yet been to the dump at this time. However, according to Superintendent Mauceri, some [sanitation workers]... are pretty smart. They know exactly what they got on the truck (Tr. 1 Initially Mr. Mauceri believed Mr. Amoto to be Mr. Steidell. He realized his error when Mr. Steidell identified himself from the respondents table (Tr. 91).

4 -4-90). Superintendent Mauceri told Mr. Steidell, or perhaps both Mr. Steidell and Mr. Amoto, that the truck was not loaded out and to go back to the route, which Mr. Steidell had admitted they had not finished (Tr. 30, 31, 89). According to Superintendent Mauceri, the trucks pack 10 to 11 tons of garbage (Tr. 90). He estimated that his inspection of the truck took about two minutes, and that the respondents were in the garage for some ten to fifteen minutes before they left to resume their route (Tr. 31). Mr. Mauceri initially denied that Mr. Steidell told him that he had to go to the men s room, but testified on re-direct that the sanitation workers might have mentioned this to Superintendent Wakie (Tr. 254, 255). Superintendent Wakie corroborated Superintendent Mauceri s testimony that respondent s truck pulled inside the garage. According to Superintendent Wakie, two other trucks pulled inside at that time. Upon a phone call from Chief Zarcone asking him to investigate why the trucks were in, he approached respondents, who were walking toward the garage office. One of the respondents, whose name he did not recall, just kept walking. Superintendent Wakie did not ask where he was going and did not see him again for about ten minutes he never asked where the respondent had gone (Tr. 182). The other respondent just stood there. Superintendent Wakie asked this respondent if the route was clean. He said no, but also said that the truck was loaded. He denied that Mr. Steidell told him that he came into the garage to use the bathroom (Tr. 163, 175, 178). According to Superintendent Wakie, Superintendent Mauceri spoke to one of the respondents, although Superintendent Wakie did not remember which. After this respondent told him that the truck was loaded out, he then had a garage utility man cycle the hopper. The hopper blade and packer blade moved, which indicated to Superintendent Mauceri that there was still more room (Tr. 164, 165, 180). Superintendent Wakie testified that at this time he was on the floor, but a good distance from this truck, because he was checking the other two trucks (Tr. 164). On cross-examination, he acknowledged that he did not see the utility man check the truck, but asserted that he could hear the truck cycling (Tr. 181). Superintendent Wakie testified that Mr. Spaulding usually works the 6:00 a.m. to 2:00 p.m. shift as the garage utility man, and that if he were working on July 5, he would have been the person called over to check the truck (Tr. 180). On re-direct examination, however, he testified that there is usually a garage utility man assigned to the midnight to 8:00 a.m. shift, who on that day was sanitation worker Mazziliano, as well as a garage utility man assigned to the 8:00 a.m. to 4:00 p.m. shift (Tr. 197, 198; Pet. Ex. 5).

5 -5- Respondents acknowledged returning to the garage about 6:40 a.m., after their 6:30 a.m. break, although both asserted that they did so because Mr. Steidell had to use the bathroom (Steidell: Tr. 317; Amoto: Tr. 342). According to respondent Steidell, who was driving, he saw Superintendent Wakie, who was standing outside, and who asked them why they were back. He replied that he had to use the bathroom, and was directed by Superintendent Wakie to pull the truck to the side of the building, go upstairs to use the bathroom, and then continue on the route. Respondent followed these instructions, and went to the bathroom, seeing two sanitation workers, Mr. Gilmore and Mr. Vocatura, along the way. He denied seeing or talking to Chief Mauceri at that time (Tr. 317, 318, 336). He also denied that the truck was cycled, until after he returned to the garage from the field with Mr. Amoto at about 7:30 a.m. According to respondent Steidell, at that point Mr. Spalding approached him and said that he had just cycled up his hoppers, having been ordered to do so by Superintendent Mauceri (Tr. 323). Mr. Steidell testified that he wrote on the back of the DS 350 card, in the remarks section, that he had gone to use the bathroom at 6:45 a.m. (Tr. 328). However, the original of the DS 350 card could never be located; the copy that was produced at trial, according to Mr. Steidell, had his remarks missing, as well as the mileage, which ordinarily would have been noted on the front (Tr. 328). 2 According to counsel, respondent Steidell had a copy of the original 350 card, but it had gotten lost in the mail when he sent it and other color copies to counsel; accordingly, respondent s testimony was not corroborated by actual physical evidence. Mr. Steidell also testified that he did not know how many tons of garbage were on the truck until he returned from the dump at about 10:15 a.m. or 10:30 a.m., having worked overtime once his tour ended (Tr. 324, 325, Resp. Ex. A). The dump receipt showed that his truck had picked up 8.58 tons of garbage (Resp. Ex. A). Respondent Amoto corroborated Mr. Steidell s testimony that the truck was parked on the side of the garage, while Mr. Steidell went to the bathroom. He claimed to have seen 2 Superintendent Mauceri also noted that there was other information missing on the Department s copy of the 350 form, which normally would have been included (Tr. 51, 53, 54). Given this testimony, as well as petitioner s failure to produce a witness to testify that the copy was an accurate and complete copy of the original, I only took into evidence those portions of the card (Pet. Ex. 1) which contained handwriting which Supervisor Senno attested was his (Tr. 205). However, in light of respondent Steidell s subsequent testimony that exhibit one accurately reflected all the markings on it when he submitted it after returning to the garage from the field (Tr. 326), I now admit the entire document into evidence, as a copy of the DS 350 which was produced by respondent to the garage after returning from the field. However, as respondent Steidell denied that the exhibit was an accurate copy of what he handed in after going to the dump, the DS 350 card was not admitted as an accurate copy of what was submitted after respondent returned from the dump.

6 -6- Superintendent Wakie standing outside the building, but purported to have not spoken to him, nor to any other supervisor at that time (Tr. 343, 349). He denied absolutely that any garage utility man cycled the truck (Tr. 350). Mr. Spalding denied ever cycling the truck at 6:45 a.m. or 7:00 a.m. He testified, rather, that Superintendent Mauceri asked him to cycle up a truck at about 7:30 a.m. or 7:35 a.m., when he first entered the garage for the day. He did so by pushing up bars on the outside of the truck; he was never asked to move the packer blade and did not do so. Mr. Spalding asserted that he then went upstairs to the locker room where he saw respondent Steidell at about 7:40 or 7:45 a.m. He told Mr. Steidell that Mr. Mauceri had asked him to cycle up Mr. Steidell s truck. Mr. Spalding asserted, erroneously, that the truck that he cycled was a garbage truck, not a recycling truck (Tr ). Two sanitation workers, Mr. Vocatura, and Mr. Gilmore, who were working the midnight to 8:00 a.m. shift on July 5, 2003, corroborated respondents testimony that they went to the garage to use the bathroom, although Mr. Vocatura asserted that both of the respondents claimed that they needed to use the bathroom. Mr. Gilmore testified that he passed Mr. Steidell on his way up to the locker room to change at about 6:45 or 6:50 a.m.; Mr. Steidell was coming downstairs at the time. There are bathrooms in the locker room (Tr ). Mr. Vocatura, similarly, testified that he saw respondents at the garage about 6:40 a.m.; he asked if they were done with their route; they said they were not, but that they had to use the bathroom. They used the bathroom and then returned to their truck, and left (Tr ). After the respondents truck left: 7:00 a.m. to 7:27 a.m. According to petitioners witnesses, after respondents truck left, Chief Zarcone told Superintendent Mauceri to check the route to make sure the respondents went back to work (Zarcone: Tr. 121; Mauceri: Tr. 32). Taking Supervisor Epstein with him, Superintendent Mauceri left the garage at about 7:00 a.m. Before he left, Superintendent Wakie handed him a route sheet, listing the streets to be covered on the regular Tuesday/Friday route. The witnesses testified that this route was to be used by respondents, since they were assigned to collect garbage not collected on July 4, 2003, which was a Friday. On this route sheet, five ITSA s or route numbers had been circled indicating that there was still garbage left out on these streets (Pet. Ex. 2). Superintendent Mauceri testified that this information had most likely been called

7 -7- in to the borough by a supervisor during lunchtime, that is, between 4:00 a.m. and 4:30 a.m. (Tr. 33, 68). Superintendent Mauceri and Supervisor Epstein both testified that they did not see respondents truck on the route until about 7:27 a.m., when they came up to the truck on Steinway Avenue. Superintendent Mauceri was driving, and he had the route sheet with him. After they returned to the garage, according to Mr. Mauceri, he made markings on a map with yellow highlighter to indicate the areas in which garbage had already been picked up (Tr. 37, 98). He also made three notations on the map indicating where he and Supervisor Epstein were at 7:17 a.m., 7:19 a.m., and 7:27 a.m. (Pet. Ex. 3). He did not have the map with him in the car (Tr. 87). He did not explain why he made notations as to only these particular times and streets. Superintendent Mauceri testified that he drove up Richmond Avenue from the garage, that he saw the truck make a left turn onto Richmond Avenue onto Travis, but that instead of following the truck, he continued down Richmond and made a left onto Signs Road to try to see if the truck was on Victory Boulevard (Tr ). His testimony on this point was contradictory and confusing. For example, he could not really explain how he had lost sight of the truck, other than being stopped at a light on Richmond, or why he did not simply follow the truck, with which he had previously been keeping pace (Tr. 220, 222). Similarly, he initially testified that he wanted to go to Victory Boulevard because it has a spot where trucks sometimes hide (Tr. 103, 108), but he then indicated that a truck would not have been able to hide on that part of Victory, and that he did not know why he drove to Victory (Tr. 235). Finally, on the continued date of trial, Mr. Mauceri changed his testimony to indicate that the truck had not turned left onto Travis, but had continued straight up Richmond, a fact that he had not been really clear on the first day of trial, due to his mother s illness at that time (Tr. 219). Mr. Epstein provided little clarification on this point, indicating that the truck might have made a left on Travis, and that he and Chief Mauceri continued straight down Richmond Avenue (Tr. 254, 264). Superintendent Mauceri s testimony with regard to whether he drove up Signs Road, one of the streets on the route schedule, was too scattered and inconsistent to be credited. Initially Superintendent Mauceri testified, as set forth above, that he drove up Signs on the way to Victory (Tr. 98, 99). He admitted that, although he was supposed to be checking the streets that were not projected to be completed, Signs was not one of these streets (Tr. 101). He testified

8 -8- that, nonetheless, he went down Signs, because he had seen the truck turn somewhere (Tr. 102). He testified that he did not see the truck on Signs and noticed that all the garbage was picked up (Tr. 234). Mr. Mauceri then testified that he did not actually turn onto Signs Road, but continued up Richmond to Victory Boulevard, and that he simply glanced down Signs Road, from Richmond Avenue, to see if the truck was there (Tr. 232). 3 He acknowledged at this time that he was unable to look into the smaller streets that intersected with Signs Road, which were on the route sheet, and that it was possible that respondent s truck was on one of those smaller streets (Tr. 236). Superintendent Mauceri did testify, however, that because he could see only about half way on Signs Road from Richmond, that he went back onto Signs Road from Victory Boulevard and checked the other half of the street, which again was an area noted as being completed (Tr. 237). He then turned right from Signs Road onto Park Drive North, which meant he would have bypassed some of the small side streets cutting into Signs, and turned from Park Drive North onto Rivington, which was an area indicated as not having been completed (Tr. 238). He did not see the truck and saw garbage on the street. Superintendent Mauceri s testimony about Rivington was at odds with the route map, which shows Rivington as highlighted, and thus, as an area having been completed, and with the route sheet, on which Rivington is not circled as being incomplete (see Pet. Exs. 2, 3). Superintendent Mauceri then testified that he rode around the rest of the blocks (Tr. 238), including Plymouth and Mulberry, which were two of the streets indicated as streets where garbage was left out, but that he did not find anybody and decided to return to the garage via Richmond Avenue, where he spotted the truck. Supervisor Epstein did not provide much in the way of clarification as to the streets actually rode, because although he testified they proceeded towards the route from Signs Road and went up and down those blocks (Tr. 265, 286), he did not specify the blocks, and indicated that he could not, because he was not familiar with the route (Tr. 287, 288). Steinway Avenue, the spot where the truck was spotted at 7:27 a.m., was not on respondents assigned route (Tr. 42). According to Superintendent Mauceri, when he stopped the truck to talk to respondents, respondents said they were going back to the garage. Respondents indicated they had been on the route; Mr. Mauceri said he had been on the route, 3 As noted above, Supervisor Epstein testified that the truck proceeded down Richmond to Victory, hence not turning onto Signs.

9 -9- but had never seen them, and ordered them to go back to the garage. He testified that there is a grocery store on Nome Avenue where coffee is available, and that Steinway intersected with Nome (Tr. 44). Superintendent Mauceri also testified that he might have spoken to Mr. Steidell back at the garage, that Mr. Steidell indicated that he had a good load on the truck, but that he told Mr. Steidell that he had been unable to find the truck (Tr. 252). When asked at what time workers could return to the garage if their route was not completed, Mr. Mauceri first said 7:35 a.m. (Tr. 243), then indicated that the workers could start to return from the field at 7:30 a.m., so as to get back to the garage at 7:45 a.m. and have fifteen minutes to wash up (Tr. 248, 249). Supervisor Epstein did not testify concerning any conversation with respondents. He claimed to have sat in the car while Superintendent Mauceri spoke to the two sanitation workers. He did not recall speaking to Mr. Mauceri about their conversation. He believed that, for the particular route that respondents were working, which was very close to the garage, the cut-off time at which they could leave the field to head back to the garage was 7:30 a.m. (Tr. 267, 269, 292). With regard to the cut-off times, Superintendent Mauceri testified that the cut-off time varies depending on how close the section is to the garage; this section was close to the garage and he believed the cut-off time to stop working to be either 7:20 a.m. or 7:25 a.m. (Tr. 168). Similarly, although Supervisor Senno indicated that he did not know for sure what the cut-off time was, he believed that, for that section, it might be 7:15 or 7:20 a.m. (Tr. 129). He also asserted that one could leave the route to go to the bathroom without getting prior permission (Tr. 130). Supervisor Senno testified that he was also driving around the section between 6:30 a.m. and 7:20 a.m., to see if there was garbage on the streets. He had initially been assigned to another section, section 21, but the supervisor of respondent s section, section 24, had a line-ofduty injury at 4:10 a.m., so he had to cover both sections starting around 6:30 a.m. (Tr. 126). With regard to section 24, he was told that there was not much garbage out, but when he drove up and down the section, he saw that there was still a lot of garbage left out, perhaps over a truckload (Tr. 127). He guessed that perhaps two tons were out (Tr. 149). He saw a number of trucks in the field, but he did not remember how many trucks, or who was assigned to them (Tr. 152). Nor did he recall speaking to any sanitation workers on route, including respondents (Tr. 128, 129). He indicated that he did not come across any supervisors or chiefs. Chief

10 -10- Mauceri had a jeep at that time, which he asserted that he would recognize as a sanitation vehicle, even though it may not have been marked (Tr ). His testimony with regard to receiving information as to which lines still had garbage out was imprecise: he testified that somebody gave him the lines that had not been completed, and that he had to ride some of the routes, but then he also testified, [W]hether it was this particular route or not, I don t remember and that he normally gets information as to incompleted lines from the sanitation workers (Tr ). Respondents asserted that they had worked on the route after returning from the garage to the field. According to Mr. Steidell, they did not expect to finish the route, because it was not a typical Tuesday/Friday route; instead, because it was a backlog route, it was a piece of three routes. One street on the route, Rustic Woods, line 23, was by itself one route (Tr. 320). Mr. Steidell testified that they initially drove down Travis Avenue to Mulberry Circle (Tr. 338). They previously had completed only one side of Mulberry, so they completed the other side and then proceeded to Doe Court, the last ITSA on the route, where they picked up garbage from about 30 houses (Tr. 319). They closed the hopper after Doe Court, because it was 7:20 a.m., the cut-off time. They then drove to Draper Place, onto Richmond, where they saw an official car, which turned out to be Superintendent Mauceri s car, and which met them on Steinway Avenue. According to respondent Steidell, he told Superintendent Mauceri that he had closed up the hopper and was going to get some coffee because he knew he would be stuck on overtime. Superintendent Mauceri asserted that respondent must have had to leave his route fifteen minutes early to be on Steinway Avenue at 7:27 a.m., and respondent retorted, presumably referring to Doe Court, which, as shown on the map, is approximately eight blocks away from the location on Steinway where the truck was found, that his route was around the corner (Tr. 322). Using some profanity, Superintendent Mauceri told him to get back to the garage, because he was getting a complaint anyway, for coming in early. Mr. Steidell asked why he was getting a complaint for coming in earlier to use the bathroom (Tr. 322). According to Mr. Steidell, after he dumped the truck, he returned to speak to Mr. Mauceri, arguing that he should not get a complaint for not working, because he worked hard that night, collecting 8.5 tons; Chief Mauceri indicated that was not good enough (Tr. 325). Mr. Steidell also testified that he did not speak to Supervisor Senno until 7:30 a.m., when he came into the garage. It was at that time that Supervisor Senno asked which streets had not

11 -11- been cleaned and circled them on the route sheet (Tr. 330). Supervisor Senno testified that he put the information as to which ITSAs were not complete on the DS 350 card either from the workers themselves or from the route sheet (Tr. 136). For his part, Mr. Amoto was unable to testify as to which lines they completed, or what time they stopped but he did confirm that they were heading to the store to get a cup of coffee when they ran into Mr. Mauceri (Tr. 343, 344, 346, 350). He denied ever speaking to Mr. Mauceri, indicated that he did not really hear the conversation between Mr. Mauceri and Mr. Steidell, and that he did not recall whether he spoke to Mr. Steidell subsequently about that conversation (Tr. 345, 347, 348). With regard to productivity, the productivity index for respondent s shift, midnight to 8:00 a.m., indicates that the tonnage they picked up, 8.58, was the highest for the trucks that went out at that time (Pet. Ex. 4). Conclusions Disciplinary cases must be proven by a preponderance of the credible evidence. Where the evidence is equally balanced, the party having the burden of proving its case by a preponderance of the credible evidence has not met its burden. Dep t of Sanitation v. Bruce, OATH Index No. 1045/04 (July 28, 2004); Police Dep't v. Brown, OATH Index No. 943/97 (June 20, 1997). See Dep't of Correction v. Probherbs, OATH Index No. 413/92, at 22 (Apr. 27, 1992); Rinaldi & Sons, Inc. v. Wells Fargo Alarm Service, Inc., 39 N. Y. 2d 191, 196, 383 N. Y. S. 2d 256, 258 (1976). Here, petitioner s theory of the case appears to be that respondents arrived back at the garage at 6:45 a.m. solely to avoid work. Superintendent Mauceri denied that respondents told him they came back to use the bathroom. Instead, he testified that respondent Steidell said that he had loaded 8.5 tons of garbage and that his truck was loaded out. According to Superintendent Mauceri, this conversation took place around the time that the garage utility man, who would have been Mr. Spalding, ran the hopper and moved the blades, revealing that the truck had more room for garbage. Superintendent Wakie confirmed that a garage utility man had checked the truck at that time, whom he indicated probably would have been Mr. Mazziliano, not Mr. Spalding. He also testified that when he approached respondents, one of the respondents kept walking, while the other told him that the route was not clean but that the truck was loaded. He denied having been told that either respondent had to use the bathroom, but, curiously, could

12 -12- not explain why one respondent walked past him on the way to the garage office and did not reappear for ten minutes. The sole witness presented by respondents to explain why both superintendents would be fabricating their testimony was Mr. Friscia, a sanitation worker with the Department for 24 years and a shop steward for the union. Mr. Friscia testified that respondent Steidell told him about the incident, probably the following day, and that when he went to Chief Zarcone to discuss it, Chief Zarcone said, don t waste your breath, indicating that respondent Amoto, in particular, was not in good standing with Superintendent Mauceri, because of several prior incidents involving Mr. Amoto being out of uniform in a tee shirt rather than his uniform (Tr. 310, 311). Although this testimony was plausible, I was not convinced that it explained why both Superintendent Mauceri and Superintendent Wakie would be lying about what occurred. On the other hand, the charge dates to 2003, and the incident was not memorialized in any memorandum or other written communication. Moreover, Superintendent Mauceri s recollection as to what occurred, both back at the garage and in the field, seemed uncertain and imprecise. In view of the passage of time, and lack of any written corroborative record, Mr. Spalding s testimony that he did not cycle the truck until later that morning, at approximately 7:30 a.m., is worthy of consideration. Mr. Spalding also testified, as noted above, that he was never asked to move the packed blade, which also contradicted both Superintendent Mauceri s testimony and Superintendent Wakie s testimony. Mr. Spalding s testimony that he told Mr. Steidell that he had been asked to cycle the truck was corroborated by Mr. Steidell. Further, both respondents testified in addition that they had gone to the garage to use the bathroom, which was corroborated by both Mr. Gilmore and Mr. Vocatura. Finally, although he initially denied hearing anything about a bathroom, Superintendent Mauceri later acknowledged that Superintendent Wakie might have told him that respondents had mentioned this. On balance, I was not convinced that the evidence presented by petitioner outweighed that presented by respondent. More specifically, regardless of when the truck was cycled, I credited respondents assertions that they returned to the garage to use the bathroom. Petitioners do not contend that returning to the garage for this purpose was misconduct, and even petitioner s witnesses admit that, when ordered back to the field, respondents went. With regard to the second half of the case, that respondents were unproductive because they failed to perform their duties between 7:15 a.m. and 7:27 a.m., I find that petitioners have

13 -13- also not sustained their burden of proof. First, Supervisor Senno testified that he believed the cut-off time for the midnight shift to be either 7:15 a.m. or 7:20 a.m., while Superintendent Wakie estimated it at either 7:20 a.m. or 7:25 a.m. While Superintendent Mauceri put the cut-off time at 7:30 a.m., he admitted that there was no written rule about the cut-off time, and appeared to indicate that it was up to the individual supervisor s discretion (Tr. 249). The location at which respondents truck was found was in close proximity to Doe Court, line 39 on the route sheet. Petitioners offered no testimony to indicate that there was traffic at that time in the morning, such that it would have taken significant time to get from Doe Court to Steinway Avenue. Thus, given Superintendent Mauceri s and Supervisor Senno s testimony about a cutoff time as early as 7:15 a.m. or 7:20 a.m., the discovery of the truck on Steinway Avenue at 7:27 a.m. does not in and of itself establish misconduct. Second, the fact that respondents collected 8.58 tons of garbage, the most collected on the route, tends to rebut the charge that they were unproductive. Third, both Superintendent Mauceri s testimony and Supervisor Epstein s testimony about what they did when they went to follow respondents sanitation truck was too convoluted and inconsistent to be reliable. On the first date of trial, Superintendent Mauceri was unable to explain why he and Supervisor Epstein did not follow respondent s truck after it turned on to Travis, but instead continued down Richmond. He could offer no plausible explanation as to why he could not simply catch up to the truck once the light changed. Given Superintendent Mauceri s obvious difficulties explaining himself, his alternate explanation on the continued date that respondents truck had instead proceeded on Richmond, was not convincing. Even if I credited this explanation, which I did not, it still would not explain why Superintendent Mauceri and Supervisor Epstein could not have caught up to the truck. In any event, having managed to lose track of the sanitation truck, Superintendent Mauceri and Supervisor Epstein simply drove around for a period of time until they encountered the truck on Steinway Avenue. Based on their testimony that they did not see respondents truck during this time, and that they saw garbage left out on the streets, petitioner alleges that respondents were unproductive from 7:15 a.m. to 7:27 a.m. The problem with this theory is that, even in the best possible scenario, with supervisors using extreme care to drive down every street in the section and to document their route thoroughly, it is plausible that they might simply miss the truck, because two drivers could be on different streets at the same time and not run into each

14 -14- other. Along these lines, it is telling that neither Superintendent Mauceri nor Supervisor Epstein recalled seeing Supervisor Senno, who testified that he was driving around the section at the same time and did not see Superintendent Mauceri. Moreover, it is apparent that the best-case scenario does not apply here. In particular, Superintendent Mauceri s testimony concerning whether or not he turned off Richmond Avenue onto Signs Road was convoluted and contradictory. After he indicated that he had turned on Signs, he acknowledged that he had not, but had simply glanced down Signs Road. As he admitted later in his testimony, he would not have been able to see all the way down Signs Road from Richmond Avenue, and he would not have been able to look on any of the side streets intersecting Signs to see if the truck was there. Although Superintendent Mauceri testified that he later drove down Signs, and that he drove around the rest of the blocks, including the blocks where garbage was left out, he did not testify specifically that he drove on either Travis, Mulberry Court, or Doe, which respondent Steidell identified as the streets to which he and respondent Amoto returned to pick up garbage. Thus, on this record, I find that petitioner failed to establish that respondents were unproductive from 6:45 a.m. until 7:27 a.m. In so finding, I am cognizant that respondent Steidell s testimony was not without question. Specifically, although respondent Steidell asserted that he returned to three streets to pick up garbage, the streets that he identified were not circled on the route sheet as being incomplete. However, the record is unclear as to when this route sheet was prepared. Superintendent Mauceri claimed he had been given the route sheet prior to leaving the garage at 7:00 a.m., but respondent Steidell testified that Supervisor Senno made the circles on the route sheet once respondent handed him the route sheet upon returning to the garage after 7:30 a.m. Although respondent Steidell s testimony was neither corroborated nor rebutted by Supervisor Senno, who was not asked directly about the route sheet, it was curious that Superintendent Mauceri checked some areas on the route sheet which were also not circled, and that he gave no plausible explanation for so doing. In any event, both respondent Steidell and respondent Amoto adamantly insisted that they returned to the route to finish up work. We have held that where an agency fails to establish essential elements of its case, as petitioner did here, it may not rely upon inconsistencies in a respondent s testimony, or even a lack of credibility, to substitute for proof. See Dep't of Transportation v. Mendez, OATH Index No. 384/05 (Jan. 19, 2005); Bd. of Educ. v. Fuccio,

15 -15- OATH Index No. 924/01, at (June 21, 2001), aff d, NYC Civ. Serv. Comm n Item No. CD03-37-SA (Apr. 11, 2003); Police Dep t v. Duane, OATH Index No. 1891/99 (July 21, 1999); Police Dep t v. Miller, OATH Index No. 513/92 at 7 (Mar. 2, 1992). FINDINGS AND CONCLUSIONS Petitioner failed to prove by a preponderance of the credible evidence that respondents were unproductive from 6:45 a.m. to 7:27 a.m. Accordingly, the charges against both respondents should be dismissed. Faye Lewis Administrative Law Judge June 17, 2005 SUBMITTED TO: JOHN J. DOHERTY Commisioner A P P E A R A N C E S: RITA BRACKEEN, ESQ. Attorney for Petitioner ALLEN COHEN, ESQ. Attorney for Respondent