Human Resources Admin. v. Freites, OATH Index No. 1793/02 (Oct. 30, 2002)*
Topic(s) :
1. Disruptiveness; insubordination; failure to adhere to agency procedures
2. Application for witness to testify via telephone
3. Penalty; loss of pension considered concerning long-time employee subject to
termination.
Judge:
RF
Disposition:
Charges, in part, sustained ; termination of employment recommended
* Employee was allowed to retired effective Nov. 28, 2002.
Discussion of Listed Topics:
1.
Employee found to have engaged in repeated acts of insubordination and
failure to adhere to agency procedures.
2.
Petitioner’s application to allow complaining witness to testify via telephone
denied based on ALJ’s finding that to deprive respondent of an opportunity
to cross-examine the witness in person would deprive her of a fair trial.
Witness was central to case and petitioner did not show that witness was truly
unavailable to appear and testify in person. Report at 6.
3.
Respondent is 32-year employee who risks losing her Tier I pension if
terminated from employment, even though misconduct was not morally
grave. However, when employee’s extensive disciplinary record is
considered, termination of employment is the only appropriate penalty. ALJ
recommends that agency head give employee a final opportunity to retire.
THE CITY OF NEW YORK
OFFICE OF ADMINISTRATIVE TRIALS
AND HEARINGS
In the Matter of
HUMAN RESOURCES ADMINISTRATION,
Petitioner,
REPORT AND
RECOMMENDATION
- against Index No. 1793/02
JOSEPHINE FREITES,
Respondent.
PRESENT:
RAY FLEISCHHACKER
Administrative Law Judge
TO:
VERNA EGGLESTON
Commissioner
APPEARANCES:
PAUL LIGRESTI, Esq.
Attorney for Petitioner
MARTIN DRUYAN, Esq.
Attorney for Respondent
- 2 This employee disciplinary proceeding was referred to this tribunal by the Human Resources
Administration (“HRA”), pursuant to section 75 of the Civil Service Law. The respondent,
Josephine Freites, in two sets of charges, is alleged to have engaged in the following misconduct:
refusing to service a client; berating supervisors in public and interrupting a meeting of supervisors;
insubordination; failing to remain at her post; and absences without leave.1
The hearing was commenced before me on August 15, 2002, and was concluded on
September 19, 2002. Based upon the record of the proceeding, I recommend that the employment
of Josephine Freites be terminated, but that before taking such action, the Commissioner offer the
respondent a final opportunity to retire.
EVIDENCE AND ANALYSIS
May 21, 2001
Stacey Oliver testified she has been employed by HRA for eight years and has been a
supervisor for one and one-half years. Prior to her promotion, she was a clerical worker. Currently,
she is assigned to the East End Food Stamp Program at 165 East 126th Street. Among her general
duties are the supervision of staff. On May 21, 2001, in her current position, she supervised Ms.
Freites, who worked in the reception area as an Eligibility Specialist. The respondent’s duties
included reviewing applications, and giving appointments to clients (Tr. 10-12, 42, 46).
Ms. Oliver testified that on May 21, 2001, Ms. Freites was involved in an incident with a
1
At the comme ncement o f the hearing, the agency was permitted to amend Specification I of Charges I, III and IV,
concerning September 28, 2001, to replace reference to Director Gaynor with reference to Assistant Director Purvis (Tr.
4-5). During the hearing (Tr. II 7-8), Charge VII, Specification II was withdrawn, and Charge VII, Specification I was
amended to reflect the date of October 1, 2001.
- 3 food stamp applicant, Denise Wright. Ms. Wright was at the center to be interviewed. Ms. Oliver’s
knowledge of the incident was derived from speaking with the applicant and with the respondent.
Ms. Wright told Ms. Oliver that she had been at the center since 11:00 a.m. She approached the
respondent at 1:00 p.m. and told Ms. Freites that she would have to leave to pick up her son if she
was not seen by 2:00 p.m. Ms. Freites stated that Ms. Wright would not be seen by two, so Ms.
Wright said that she would leave to pick up her son, but then return to the center. At that time, the
respondent told her that she had to make a decision - either she wants to be interviewed or she wants
to pick up her son. If she left, she would be rescheduled for an interview at a later date in June. Ms.
Freites was aware that Ms. Wright would return well before 5:00 p.m. (Tr. 12-14, 54).
According to Ms. Oliver, she spoke with Ms. Wright when Ms. Wright returned to the center
with her son, which was possibly between 3:00 and 4:00 p.m. Before that, Ms. Freites came over
when Ms. Oliver returned from lunch to tell her about the situation and that Ms. Wright would be
calling. However, when Ms. Wright returned, Ms. Freites attempted to reschedule her interview.
That is when Ms. Wright sought out Ms. Oliver. Ms. Oliver identified Petitioner Exhibit 1 as a
complaint which Ms. Wright prepared on May 21. Ms. Wright complained that Ms. Freites had
spoken to her in an unprofessional manner. After Ms. Wright handed the complaint to her, Ms.
Oliver took it to her supervisor, Jonathan Purvis (Tr. 14-19, 56-58, 61-63).
Ms. Oliver testified that agency procedure requires that clients who enter the center with
appointments must be serviced that same day. The client should still be seen even if she leaves the
center at 2:30, but returns, as long as she notified the receptionist of her departure. That is an inhouse rule, which everyone observes. However, because Ms. Freites had raised the issue, Ms. Oliver
checked with Mr. Purvis before she determined that Ms. Wright should be seen. There is no written
- 4 center policy or procedure regarding clients who leave before being seen. It was unusual that Ms.
Wright had not been seen by 1:00 p.m. It may have been due to a staff shortage that day (Tr. 19-20,
52-53, 54-55, 63-64).
Ms. Oliver stated that before she spoke with her supervisor, but after she spoke with Ms.
Wright, she spoke with Ms. Freites. The respondent agreed that Ms. Wright had informed her about
departing. Ms. Freites denied telling the client that she could not return if she left, but she believed
the proper procedure was not to see the client if she left. Ms. Oliver denied that other applicants who
were waiting would have objected to Ms. Wright being seen (Tr. 20, 58).
According to Ms. Oliver, Ms. Freites asked whether the client was going to be serviced.
When Ms. Oliver told her the client would be seen that day, “She became very upset, very irate and
... started speaking loudly on the work floor, saying that ... management does not support us.” The
statement was improper because it was said loudly on the floor in front of everyone. Ms. Oliver
testified that she asked the respondent to walk over to her desk so that they could quietly have a
conversation. Ms. Freites was again irate, yelling, “Oh, I don’t want to speak to you. I don’t want
to hear anything you have to say.” Ms. Freites then walked away without allowing Ms. Oliver to
speak to her. Ms. Oliver identified Petitioner Exhibit 2 as the memorandum she wrote and provided
to the respondent about the entire incident on May 21. Attached thereto was Ms. Wright’s
complaint, although the memo does not refer to it. The memo was issued on June 4 because her
supervisor wanted to be sure he understood everything that had happened. Among other things, he
spoke with the client (Tr. 21-24, 65, 66, 71-72).
According to Ms. Oliver, she had spoken to the respondent on several occasions about not
making any comments towards clients. She had a habit of doing so and making the clients angry.
- 5 Further, Ms. Oliver told the respondent that, if there was a problem the respondent could not resolve
and things were about to get out of hand, the respondent should feel free to call her. She did not train
Ms. Freites because she could tell from the respondent’s actions that the respondent was already
trained.
Ms. Oliver testified that it was improper for the respondent to tell Ms. Wright that she had
to choose between getting food stamps or picking up her son, and that she would not be seen that day
if she left. That was not for Ms. Freites to decide. When there is a dispute, Ms. Freites should call
a supervisor (Tr. 52, 55, 59-60, 65-66).
Ms. Oliver was shown Respondent Exhibit A, and after reviewing it, stated that she recalled
it having been written by the respondent in June 2001. Ms. Oliver denied the respondent’s claim in
the memo, that Ms. Oliver, at times, appears to be asleep at her desk. Ms. Freites wrote the memo
in response to the Wright incident (Tr. 67-68, 70).
Jonathan Purvis testified that he is the Assistant Site Manager at the Harlem office at East
126th Street, where he oversees the Reception and Application units. The office provides food
stamps to eligible individuals. In 2001, he was responsible for the entire site. Ms. Freites is a
receptionist whose duties were to greet applicants, give them applications to fill out, check over the
submitted applications and schedule appointments. At the time there were four receptionists in
different areas with different duties (Tr. 74-75).
With regard to the incident which occurred on May 21, 2001, it was brought to his attention
by Ms. Oliver, who asked whether a person waiting to be seen should be rescheduled because she
indicated that she had to leave for a short time to pick up her child. He instructed her that the client
should be seen, because the client had notified the receptionist and had returned. Sometime after
- 6 the incident, he spoke with Ms. Wright via telephone to confirm what happened to her that day. Mr.
Purvis identified Petitioner Exhibit 5 as a memo he wrote. As he recalls, Ms. Wright was at the
center for an interview on her application. At the time, a two-hour wait to be interviewed was
unusual and was probably caused by a staff shortage (Tr. 75-77, 90-91).
Mr. Purvis described circumstances where an applicant might not be seen the same day as
he or she comes in. There is no written procedure regarding clients who leave the center and return
later. A lot of decision making falls to the receptionists. But in the case of Ms. Wright, Ms. Freites
should not have told Ms. Wright she would not be seen that day, because it was still early in the day
when Ms. Wright returned and there was still ample time for her to be seen. Additionally, presenting
Ms. Wright with a choice, “which is more important, your child or your case,” was unreasonable.
Mr. Purvis also found objectionable, because it was said to anyone within earshot, Ms. Freites’
statement that management never supports the workers (Tr. 78-79, 90-92).
The agency also sought for this tribunal to take the telephone testimony of Ms. Wright. Ms.
Wright claimed to be unavailable that day (Tr. 15). I advised the agency advocate that, in light our
contemplating a continuation date, he should endeavor to have Ms. Wright appear on that day, and
I would issue a subpoena, if requested. On the continued hearing date, the agency advocate renewed
his application to take the testimony of Ms. Wright via telephone because she was again unavailable.
I denied the application, finding that the Department had not demonstrated that Ms. Wright was truly
unavailable, that Ms. Wright’s testimony was central to the case and that the respondent would be
denied a fair trial if she was unable to cross-examine the witness in person at the hearing (Tr. 9; Tr.
II 4-5). "It is settled that even where administrative proceedings are at issue, no essential element
of a fair trial can be dispensed with unless waived” Hecht v. Monaghan, 307 N.Y. 461, 470.
- 7 Frank Maldonado testified that he works for District Council 37. He has known Ms. Freites
for more than twenty years, and he knows Mr. Purvis and Ms. Oliver because they are part of
management. According to the witness, he has been treated poorly by Mr. Purvis and Ms. Oliver,
just as he has seen them treat his members poorly. In particular, Ms. Freites has complained about
them. He is not aware of any disciplinary action taken against Ms. Freites over the years. When told
that there were several matters between 1994 and 1999, Mr. Maldonado suggested that they might
have been caused by her mental state after her son was paralyzed in an accident (Tr. II 9-11, 17-18).
Mr. Maldonado was asked about a petition signed by a group of the center’s workers. He
stated that he received a call from the workers one day. The workers, eight or ten in number, were
downtown, at HRA headquarters, submitting the petition. There has been no response by the agency.
No grievance has been filed, but the union may call for a labor-management meeting (Tr. II 13-16).
Isidore Deutou testified that he is employed by HRA at the East End Food Stamp Center.
He knows both Mr. Purvis and Ms. Oliver. Ms. Oliver was his supervisor for two months until he
requested a transfer because he could no longer work with her (Tr. II 19-20).
Mr. Deutou described Ms. Oliver as a very difficult person to work with. She is nasty,
confrontational and does not know how to speak with the people she supervises. In his case, Ms.
Oliver, rather than signing off on the cases he had completed (100 per month), allowed them to
languish on her desk. This caused delays in clients’ receipt of benefits. When clients in such
circumstances called, he would refer them to Ms. Oliver, who would try to blame him (Tr. II 20-21,
23).
Mr. Deutou testified that he signed the petition, along with twelve other workers at the center,
requesting that Ms. Oliver be transferred. Ms. Oliver has been transferred several times and now
- 8 only supervises two workers. Ms. Oliver, at the time he worked with her, did not appear
knowledgeable about the cases. She would not answer questions and she told him never to give her
number to a client (Tr. II 21-22).
Sylvia Brown testified that she is assigned to the East End center and that she works with
Ms. Freites. She also works in reception, one seat down from the respondent.
She does re-
certifications, while Ms. Freites does applications. Ms. Brown stated that she recalled the incident
involving Ms. Wright. It was an extremely busy day because the office was short-staffed. A woman
(Ms. Wright) was irate because she was waiting, and she kept coming back to the reception desk (Tr.
II 25-26, 30).
According to Ms. Brown, Ms. Wright was saying that she had to go pick up her child from
school. She heard Ms. Freites say, “The only thing I could do for you is to reschedule you for
another day. Your case won’t be closed....” Ms. Freites did not yell, but she did not pamper the
woman. The client should have asked to see a supervisor because only a supervisor could approve
the client leaving and still being seen that day. Ms. Brown believed that that was the end of the
matter. She does not know if the client returned, but she does not think so (Tr. II 27, 31).
Ms. Brown testified that, at the time, Ms. Oliver was the supervisor and Mr. Purvis
supervised Ms. Oliver. Ms. Brown stated that she signed the petition about Ms. Oliver, because she
felt that the workers were being harassed. Prior to that, the employees had spoken “lots of times”
with Mr. Purvis, but he had said that nothing was going to be done. Additionally, Ms. Oliver did not
know her job and was not knowledgeable about food stamps. She kept writing up the workers for
little things. On one occasion she called Ms. Brown “incompetent” (Tr. II 27-30 33).
- 9 According to Ms. Brown, she was aware that Ms. Oliver was not signing off on cases in a
timely manner. Clients came to her at reception complaining about not having received benefits.
Ms. Brown heard it was because Ms. Oliver did not sign off. Also, she saw that Ms. Oliver had
cases piled up on her desk. Ms. Brown stated that she rarely saw Ms. Oliver speak with clients and
that nobody ever answers her phone (Tr. II 29-30, 32-33).
The respondent, Josephine Freites, testified that she has been employed by HRA for thirtytwo years. She is in Tier I of the pension system. She would like to retire, but because of her age
(50), she would lose 25% of her pension. She plans to retire when she reaches 55. According to Ms.
Freites, her son was paralyzed as a result of a car accident in 1993. Two years ago, her son moved
to Raleigh, North Carolina. He has four children. Ms. Freites stated that her previous disciplinary
matters concerned AWOLs and concerned her son’s move (Tr. II 35, 47-48, 51-52, 66).
Ms. Freites stated that Ms. Oliver had become her supervisor on May 18, 2001. Ms. Freites
worked reception and she took care of applications. She did not recall what time Ms. Wright arrived
at the center on May 21, but she recalled that the center was very busy. After Ms. Freites returned
from lunch at approximately 1:00 p.m., Ms. Wright stated that she had to pick up her child by a
certain time. The group she was assigned to were fairly new workers, and there were five or six
clients ahead of her. Ms. Wright did not want to wait, but wanted to be seen before everyone else.
Ms. Freites explained that if Ms. Wright rescheduled, it would not affect her continued receipt of
food stamps. Ms. Wright continued to come to reception, but eventually she left. When she returned
between 4:30 and 4:45 p.m., her case had already been called. Nevertheless, Ms. Wright insisted on
being seen but Ms. Freites told her that she would have to be rescheduled. Ms. Wright then asked
to see a supervisor (Tr. II 35-37, 54-55).
- 10 Ms. Freites testified that she explained the situation to Ms. Oliver, who found a worker
willing to stay late and service the client. As Ms. Freites was leaving, which necessitated her
walking through the waiting area, she saw Ms. Wright writing on some memo paper. Ms. Freites
wondered what she was writing about, so the next day she asked Ms. Oliver. Ms. Oliver and Mr.
Purvis both denied that Ms. Wright had written a complaint (Tr. II 37-38, 56-57).
Ms. Freites denied stating to Ms. Wright, “Which is more important, your child or your
case?” Further, she denied that she had refused to service the client after Ms. Oliver told her to. She
had serviced the client by assigning her to a group. It was then Ms. Oliver’s responsibility to tell the
group that Ms. Wright was still going to be serviced that day. Ms. Freites denied that she yelled at
Ms. Oliver or walked away from the supervisor, telling her that she did not want to hear anything.
She did state to Ms. Oliver, “(H)ere I told the client what the rules and regulations are, and
management doesn’t back us up. That’s how we have problems with clients. They know if they yell
and scream, they will be serviced. Management should work together with the eligibility specialist.”
Also, she told Mr. Oliver that the conversation was finished (Tr. II 38-40, 57-58).
Ms. Freites claimed that Mr. Purvis and Ms. Oliver had recently married. Counsel for the
agency represented that Mr. Purvis was about to get married, but to someone else. Ms. Freites
countered that the other woman was supposed to be a cover-up person for Ms. Oliver. Ms. Freites
described Mr. Purvis as an uncontrollable fibber (Tr. II 41-42, 53).
Ms. Freites explained that she signed a petition about Ms. Oliver because: Ms. Oliver often
fell asleep at her desk; she was unable to answer questions Ms. Freites posed to her; she has been
unable to absorb the work despite having been sent to training three times. Ms. Freites has asked
Mr. Purvis why he always backs up Ms. Oliver, although hundreds of complaints have been made
- 11 about her. Mr. Purvis stated, “As long as you think I’m backing her up, you better watch your back.”
(Tr. II 42).
Ms. Freites testified that Ms. Oliver told her not to give out Ms. Oliver’s telephone number.
When clients come in or call, she refers them to Ms. Oliver. Ms. Oliver directs her to tell the clients
that they will hear from her in three days, but on the fourth or fifth day, the clients call again.
According to Ms. Freites, there are cases which were completed in April that have not been signed
by Ms. Oliver. The supervisor has four or five boxes of cases in her office; Mr. Purvis was supposed
to write her up (Tr. II 46).
Ms. Freites stated that although Ms. Oliver no longer supervised her, Ms. Oliver continued
to be responsible for Ms. Freites’s time records. On July 31, while Ms. Freites was out of the office,
Ms. Oliver approved her time for the weeks ending July 6, July 13, and July 27, but forgot to sign
for the week ended July 20, although she signed all the other employees’ time sheets. This
necessitated that Mr. Gainer correct the oversight on the computer, or Ms. Freites would not have
been paid for that week. Mr. Purvis asked her to write him a memo about the incident (Tr. II 46-47).
In determining what occurred on May 21, 2001, I note that Ms. Freites was at times elusive,
not directly answering questions posed to her (e.g., Tr. II 55), and, at other times, she conceded that
events Ms. Oliver described had taken place. For example, she admitted making a statement about
management not supporting the workers. Further, while denying that she told Ms. Oliver she did not
want to hear anything and that she walked away from their conversation, she admitted that she had
stated that their conversation was finished. Thus, I find that the descriptions of the events of May
- 12 21, 2001, put forth by Ms. Oliver, and the admissible and unexaggerated hearsay statements of Ms.
Wright2, are more believable than the respondent’s denials that she engaged in certain conduct.
While it appears that Ms. Freites was required to service Ms. Wright that day even though
the client left the office for some time, the agency did not produce any policy or directive which
barred Ms. Freites from rescheduling Ms. Wright in the circumstances. Indeed, Ms. Oliver appeared
to be unsure of whether Ms. Freites had taken the proper approach because she asked for Mr.
Purvis’s advise. Mr. Purvis too seemed uncertain of any in-house procedure, stating, “A lot of
decision-making falls to the receptionists.” Compare Human Resources Admin. v. Daughtry, OATH
Index No. 1713/99 (Aug. 4, 1999), aff'd, NYC Civ. Serv. Comm'n Item No. CD 00-75-SA (July 6,
2000).
I credit Ms. Wright’s claim that the respondent was disrespectful toward her, stating, “Which
is more important, your child or your case.” That statement, which appeared also in both
supervisors’ accounts of their discussions with Ms. Wright, had the ring of truth to it.
Further, employees cannot just walk away from employers who seek to meet with them about
the behavior they are engaging in at the moment, just as they cannot refuse to attend meetings to
discuss their work. Human Resources Admin. v. Delgado, OATH Index No. 1909/00 (Nov. 15,
2000), aff'd, NYC Civ. Serv. Comm'n Item No. CD01-63-SA (Aug. 1, 2001); see Heil v. Santoro,
147 F.3d 103, 110 (2d Cir. 1998).
2
While under the circ umstances, M s. Wright’s hearsay statement is not entitled to great weight, it corroborates the
testimony of M s. Oliver and Mr. Pu rvis, who spo ke with her after the incident.
- 13 The statements made by Ms. Freites about management are not, in themselves, actionable.
However, the circumstances under which such statements are delivered may turn them actionable.
An employee has the right to disagree with a supervisor, even vehemently, and may voice that
disagreement as long as no profanity is used, no clear threats are made and the office operations are
not disrupted. Human Resources Admin. v. Bichai, OATH Index No. 211/90 (Nov. 21, 1989), aff'd,
NYC Civ. Serv. Comm'n Item No. 90-54 (June 15, 1990). -SA (Aug. 1, 2001); Health and Hospitals
Corp. (Sea View Hospital Rehabilitation Center and Home) v. Cantres, OATH Index No. 1480/01
(Oct. 31, 2001). Loud statements which disrupt an office or are made within hearing of members of
the public, are actionable (Health and Hospitals Corp. (Kings County Hospital Center) v.
Hernandez, OATH Index No. 1056/02 (June 14, 2002)), and the agency need not show that the
speech actually disrupted the office, if a substantial showing is made that the speech was likely to
be disruptive. Jeffries v. Harleston, 52 F.3d 9 (2d Cir.), cert. den., 516 U.S. 862, 116 S.Ct. 173
(1995), following Waters v. Churchill, 511 U.S. 661, 114 S.Ct. 1878 (1994). Thus, Ms. Freites’s
outburst in the afternoon in the reception/waiting area was actionable misconduct, having been made
in a public area where opinions about management cannot be loudly voiced.
The respondent’s concerted effort to portray her supervisors as incompetent, dishonest and
in league to get her, to name just a few attributes ascribed to them, even if it were credited in part,
has no effect on the findings on this charge. There certainly was credible evidence, especially Mr.
Deutou’s testimony, which established that Mr. Purvis, and Ms. Oliver, in particular, were not
beloved by the employees they supervised. Nonetheless, the evidence did not suggest that the
supervisors made up any of the charges in this case. Incidents clearly occurred on May 21,
- 14 September 28 and October1, 2001, which arguably exposed Ms. Freites to disciplinary
consequences.
There was inadequate evidence to support the claim that Ms. Freites refused to service the
client after being told by Ms. Oliver to do so. Accordingly, Charge I, Specification I and Charge II,
Specification I should be dismissed. Further, the allegations in Charge I, Specification IV and
Charge IV, Specification 3, were inconsistent with Ms. Oliver’s testimony. There was no indication
that Mr. Freites made her statements about management at Ms. Oliver’s desk and walked away from
the desk. Those specifications should also be dismissed. The proof did support Charge III,
Specification I.
September 28, 2001
Ms. Oliver identified Petitioner Exhibit 3 as a memo which she addressed to all the reception
staff (Ms. Freites, Ms. Brown and Ms. Hairston) and gave to them on August 28, 2001. Its purpose
was to make sure the reception area is covered at all times, because, at times, the area had been left
uncovered. The effect of lack of coverage is that the clients on line become agitated and hostile. As
the memo indicates, the matter was discussed with the receptionists on August 22 (Tr. 24-25, 49).
Ms. Oliver testified that on September 28, 2001, Ms. Freites left to go to lunch at or before
11:30 a.m. without notifying anyone and without anyone having relieved her in the reception area.
Ms. Oliver discovered the situation at 11:30 as she passed the reception area and found a very long
line with clients complaining. She always walks by at that time to make sure that coverage has
arrived. There is always a person assigned to cover when a receptionist goes to lunch. If no one
- 15 relieves the receptionist as scheduled, the receptionist should call a supervisor. In this case, Ms.
Freites should have called her (Tr. 25-28, 45).
Ms. Oliver explained that Ms. Hairston was supposed to have relieved the respondent at
11:30, but had not. Ms. Oliver went to Ms. Hairston’s area to speak with her. Ms. Hairston stated
that time had slipped by and she had forgotten to relieve Ms. Freites. Ultimately, Ms. Hairston acted
as the relief for the respondent (Tr. 27-29, 47).
Ms. Oliver identified Petitioner Exhibit 4 as a memo she wrote on September 28, regarding
the reception area incident which occurred that day. Ms. Freites had been informed on several
occasions that if the relief person did not arrive on time, she was to call a supervisor. Later, on the
28th, while Ms. Oliver was speaking with Mr. Purvis in his office, the respondent barged in, without
knocking or excusing herself, and, yelling, began accusing Ms. Oliver of being unfair, stating that
neither she nor the other workers liked Ms. Oliver and that Ms. Oliver was harassing her. Ms. Oliver
did not recall whether Mr. Purvis’ door was open or closed or what she and her supervisor were
discussing. Ms. Oliver denied that the respondent knocked on the door and was told that she could
enter (Tr. 28-30, 66-67).
Ms. Oliver testified that she tried to speak with Ms. Freites reasonably, but the respondent
was hysterical. Ms. Freites was asked by Mr. Purvis several times to leave. Instead, she continued
speaking, stating that she was going to leave when she was finished with what she had to say.
Finally, when she was done, she left. Ms. Oliver stated that she was aware that a number of workers
wrote a petition claiming that Ms. Oliver harassed them and that Ms. Freites was one of the workers
who signed the petition (Tr. 31, 67).
- 16 Ms. Oliver acknowledged her awareness that workers at the center have a contract with the
City as to their working conditions. For instance, workers are entitled to a one-hour lunch between
12:00 noon and 2:00 p.m., whether or not their post is relieved. But they have been instructed to
notify a supervisor. The supervisor will instantly send someone to cover. As a courtesy, Ms. Freites
was allowed to go to lunch at 11:30 on pay days. Employees do not lose their lunch hour (Tr. 42-44,
47-48).
Furthermore, Ms. Oliver acknowledged that there is always a line at the center, but the line
is short, not like it was on September 28, when it was the longest she had ever seen at the center.
Ms. Oliver agreed that the receptionist leaves her post to make copies related to servicing a client.
This does not anger clients because they see that someone is being waited on (Tr. 46-49).
After having his recollection refreshed, Mr. Purvis testified that a receptionist should not
leave the reception area unless she has been relieved, except for copying documents. Mr. Purvis
identified Petitioner Exhibit 6 as a memo he wrote. He witnessed the unusually long line at Ms.
Freites area on September 28, 2001 at approximately 11:30 a.m. His office is on the same floor. He
left the area to find out where the respondent was. Someone had seen her take her things and go.
Next, he looked for Ms. Oliver to provide an explanation why no one was covering the reception
area. Ms. Hairston was supposed to have covered beginning at 11:30 a.m. Ms. Freites did not return
until approximately 1:00 p.m. She should not have left if her relief did not show up, a point Mr.
Purvis had previously impressed upon essential staff and supervisors at a meeting (Tr. 79-83).
Mr. Purvis testified that Ms. Freites was served that day with a memo to put her on notice
that another infraction of this kind could subject her to disciplinary charges. Later, the respondent
came into his office uninvited (the door was open) and began berating Ms. Oliver, with whom he had
- 17 been meeting. Ms. Freites was very condescending, pointing a finger at Ms. Oliver, accusing Ms.
Oliver of singling her out and claiming that supervision was out to get her. She was agitated and
upset. Ms. Freites did not address herself to Mr. Purvis. He told Ms. Freites that Ms. Oliver wrote
the memo at his direction. Nevertheless, the respondent continued berating Ms. Oliver. The
respondent ignored his request that she lower her voice. At that point, she was out of control so he
asked her to leave his office. Ms. Freites refused to leave, stating that she would when she finished
saying what she had to say. He asked her to leave six times (Tr. 83-84, 96-98).
Mr. Purvis acknowledged that he was aware of a petition signed by workers including Ms.
Freites. They comprised approximately seven of the center’s twenty-two workers. Not all of them
had been written up by Ms. Oliver. Their complaints, that Ms. Oliver was mean, were not justified.
Ms. Oliver, unlike the previous supervisor, was methodical in her work. She did not do the
employees’ work. Some employees took offense that she was not personable. Later on, they also
accused him of being unfair. Mr. Purvis stated that he had never seen Ms. Oliver sleeping at her
desk or nodding off (Tr. 98-99, 101-03).
Ms. Freites wondered why she was written up, and not Ms. Hairston, who had failed to
relieve her for lunch at 11:30 a.m. It was a pay day, so she was entitled to go to lunch at 11:30 in
order to cash her check. Ms. Freites conceded that she had received a memo like Petitioner Exhibit
3. She left her post because she anticipated that Ms. Hairston would be there on time as she always
had been (Tr. II 43, 48-49, 58-59).
Ms. Freites testified that she did not enter Mr. Purvis’s office uninvited during the late
afternoon on September 28. She knocked and Ms. Oliver stood up and opened the door for her. She
entered and asked, “What is this memo all about?” The memo concerned her having left for lunch
- 18 at 11:30. She did not yell and loudly berate Ms. Oliver. She merely asked, “Why do you continue
on this harassment?” Ms. Oliver did not respond, so Ms. Freites said to Mr. Purvis, “You know this
is pure harassment.” Mr. Purvis twice asked her to leave. The second time, Mr. Purvis got up, body
slammed her on her shoulder and motioned for her to leave. He again told her that she had better
watch her back. Ms. Freites denied that she interrupted a meeting; Ms. Oliver and Mr. Purvis always
spoke behind closed doors. She did not leave the first time Mr. Purvis asked because she wanted to
discuss the memo. She denied stating that she would leave when she was ready (Tr. II 50-51; 63-66).
The respondent concedes that she left her reception area post without coverage on September
28, 2001. She claims that she left because it was time for her lunch period and she knew Ms.
Hairston would arrive shortly. Only one month earlier, the reception staff had received the following
memorandum from Ms. Oliver: “As discussed with you on August 22, 2001, any person covering
a reception station may not leave unless relieved. Anyone not adhering to this directive will be held
accountable.” The agency conceded that, on September 28, the designated employee, Ms. Hairston,
failed to relieve Ms. Freites at 11:30 a.m., as was her duty. Nevertheless, given the recent directive,
Ms. Freites was required to wait until her replacement appeared. Neither agency witness indicated
that Ms. Freites notified them that Ms. Hairston was late, thereby giving them an opportunity to find
Ms. Hairston or another person to relieve the respondent. Because the situation was not of an
emergency nature, Ms. Freites was required to remain at her post and her leaving amounts to gross
misconduct. Transit Auth. v. Pierre, OATH Index No. 2175/96 (Oct. 1, 1996), aff'd, NYC Civ.
Serv. Comm'n Item No. CD 97-77-SA (Sept. 26, 1997); Dep’t of Correction v. Oliver, OATH Index
No. 931/93 (July 14, 1993); Dep’t of Correction v. Heredia, OATH Index No. 1070/91 (Aug. 23,
1991).
- 19 Refusing to leave a supervisor’s office when directed to, whether or not the employee was
engaging in protected speech, is actionable misconduct. Admin. for Children's Services v. Martinez,
OATH Index No. 1176/99 (July 30, 1999), aff'd, 281 A.D.2d 187, 721 N.Y.S.2d 235 (1st Dep't
2001); Dep't of Sanitation v. Chunn, OATH Index No. 322/01 (Jan. 29, 2001), aff'd, NYC Civ. Serv.
Comm'n Item No. CD02-26-SA (May 8, 2002); Bd. of Education v. Forde, OATH Index No. 491/95
(Mar. 29, 1995). Ms. Freites, in effect, corroborated Ms. Purvis’s testimony, when she conceded that
she did not immediately leave the first time Mr. Purvis asked her to because she wanted to discuss
the memo she had received about her conduct earlier that day.
Therefore, I find that the agency has established the charges relating to September 28, 2001.
October 1 and 2, 2001
Ms. Oliver testified that on October 1, 2001, she passed by the reception area on her way to
Mr. Purvis’s office. Ms. Freites yelled to her, “Miss Oliver, I have to go to the bathroom.” Ms.
Oliver replied, “Okay, hold on a minute and let me get someone to relieve you.” Ms. Freites then
stated, “No. You come and cover.” With that, the respondent got up and left the reception area (Tr.
31-32).
According to Ms. Oliver, Ms. Freites did not state that it was an emergency. Therefore, she
should not have left until relieved. Ms. Oliver instantly got a worker from another area to perform
relief. She does not perform relief. An employee need not get relief every time he or she goes to the
bathroom, but because Ms. Freites had notified her that she required relief, the respondent should
have waited until it was provided. Ms. Oliver denied telling Ms. Freites that she could not go to the
bathroom. Ms. Oliver denied any knowledge that the respondent had urinated on herself, although
- 20 close to the trial, she learned that that was what Ms. Freites was claiming. Ms. Freites never put it
in writing (Tr. 32, 48, 50-52).
Ms. Oliver testified that she was unaware of an incident on October 1 involving security and
an irate client. Ms. Oliver conceded that in July 2002, she did not approve the respondent’s timecard
for a week, due to an oversight, and that, as a result, Ms. Freites was not paid for that week (Tr. 6869; see also Tr. 89-90).
Mr. Purvis testified that, on October 1, 2001, the respondent contacted him to inform him
that an irate client wanted to speak to somebody in charge. Apparently, the supervisor was out that
day. He asked Ms. Freites to have the worker who was involved come to see him first. When the
worker did not show up, he called the worker. She stated that she was never told to see him. He
called back Ms. Freites and spoke to the client over the phone. Apparently, the client was not
satisfied because the respondent again called stating that the client wanted to see his supervisor. At
that point, he told the respondent not to lend any more assistance to the client, who according to the
respondent, remained out of control, and not to stand in the way of security doing their job. Later,
he learned that Ms. Freites had ignored his direction and had called the director, Lloyd Gainer, which
was an act of insubordination. There was another incident that day concerning Ms. Freites leaving
her area without a relief person. Even if a receptionist goes to the bathroom, she should call a
supervisor for relief. Ms. Freites had no right to tell Ms. Oliver to act as her relief and no right to
leave once Ms. Oliver stated that she would get a relief (Tr. 85-86, 93-94, 100-01).
Mr. Purvis denied that Ms. Freites had urinated on herself that day. She would have said so
long before now and she would have claimed that her going to the bathroom was an emergency. Ms.
- 21 Freites was merely being defiant. Ms. Freites often goes to the bathroom without being relieved, but
no issue is made of it, especially if there is no one on line (Tr. 94, 96).
Mr. Purvis testified that he spoke with Ms. Freites. “I told Miss Freites that it was my
opinion that she was upset over the things that happened previous days and again asked for her
cooperation and I said to her that her behavior was counterproductive and that she should stop.” Ms.
Freites said nothing about having urinated on herself. Further, had she done so, she would have
gone home, not to her union. According to Mr. Purvis, she just blew him off. After about two hours
at work, Ms. Freites gathered her belongings and left, without seeking or receiving permission. Ms.
Freites also did not come in the next day. No one knew where she was. When she came back, she
put in for the time, providing documentation that she had gone to see her union representative. He
does not know whether her absence was approved. He has no time records indicating that she was
marked AWOL. Mr. Purvis stated that Petitioner Exhibit 7 is his memo of these incidents (Tr. 8688, 94-95).
Ms. Freites testified that, on October 1, 2001, she was in the reception area on a very hectic
day. She had to go to the bathroom, but “one client kept holding me.” She kept servicing the client,
but she was shaking. Ms. Oliver walked by, so she told her supervisor, “I have to go,” and that it was
an emergency. Ms. Oliver told her to wait until she was able to get someone to cover, even though
Ms. Freites was in obvious discomfort. Ms. Freites told Ms. Oliver that she could not hold it
anymore, but Ms. Oliver said that she could not leave. Nonetheless, Ms. Freites ran for the
bathroom, but halfway there, she urinated anyway. The incident was the fault of Ms. Oliver because
she delayed Ms. Freites from going to the bathroom (Tr. II 43-44, 60-61).
- 22 According to Ms. Freites, when she returned to her desk, no one was covering. People were
all over the counter and the phone was ringing. Supervisors often cover when no one else is
available. Every day, Ms. Oliver would forget to send coverage for Ms. Freites’s contractually
mandated breaks. After returning to her desk, Ms. Freites called the center’s director, Mr. Gainer,
told him what had occurred and stated that she could not take it anymore. She was upset and crying.
She told Mr. Gainer that she was going to the union. She did not speak with Mr. Purvis (Tr. II 44-45,
62).
Ms. Freites testified that she left the center, bought a pair of underwear and then went straight
to the Lincoln Hospital, where she spoke with one of the union reps. Ms. Freites stated that she was
hysterical. The union rep called Mr. Gainer, who stated that Ms. Freites had come to his office
numerous times to complain about Ms. Oliver, but never had any proof (Tr. II 45-46).
Ms. Freites testified that she did not come to work on October 2 because she had severe
diarrhea. She went to the doctor and obtained a note. Mr. Gainer approved her absences for October
1 and 2 (Tr. II 49).
Ms. Freites testified concerning a second incident which occurred on October 1, claiming that
it has been blown all out of proportion. According to the respondent, on that day, a client wanted
to see a supervisor. Because her supervisor was absent that day, Ms. Freites spoke with Mr. Purvis.
Mr. Purvis refused to see the client and told Ms. Freites to tell security “to take them out of here.”
Ms. Freites stated that the client was very nice, but was upset about her food stamps and that she told
Mr. Purvis there was no need for security. The respondent felt that calling in security would only
make the matter worse. Accordingly, she told Mr. Gainer about the situation and asked if he would
come out and speak with the client. Ms. Freites denied that she disobeyed Mr. Purvis’s order.
- 23 Rather, she tried to avoid further confrontation. She did not call security because security was
already there (Tr. II 49-50, 62-63).
Ms. Freites stated that if she goes back to work, she will obey all rules and directives of her
supervisors. She wishes to work for four more years. There have been no incidents since October
1, 2001 (Tr. II 67-68).
Mr. Maldonado testified that he received a call from Ms. Freites on the day she urinated on
herself. She was upset and crying. He could not leave his work location that day, so their
conversation was over the phone. According to the witness, Ms. Freites was harassed that day. She
wanted to change, but management gave her a hard time, claiming that urinating on herself was her
own fault (Tr. II 12-13, 16).
The respondent admits that she left her reception area post on October 1, 2001, claiming that
she had to urgently go to the bathroom. She further claims that because she was not immediately
allowed to leave her post, which Ms. Oliver could have relieved, at least temporarily, she soiled
herself. This is given as the explanation for why she left the center after only two hours of work that
day.
Ms. Freites, as was proper, advised Ms. Oliver of her need to be relieved, but when Ms.
Oliver declined the respondent’s demand that Ms. Oliver relieve her, in favor of finding an
appropriate employee for that post, Ms. Freites left her post without waiting for the relief Ms. Oliver
had promised to obtain. However, I credit Ms. Freites’s testimony that Ms. Oliver was aware that
it was an emergency and nonetheless did not allow Ms. Freites to go to the bathroom. Further, I
credit Ms. Freites’s claim, as partially corroborated by Mr. Maldonado, that she soiled herself and
- 24 left work for that reason. Apparently, the center director, Mr. Gainer, sided with Ms. Freites because
he approved her absence that day and the next.
Therefore, I find that Ms. Freites had good cause to leave her post and should be excused for
leaving it before a replacement was obtained, and that her absence on October 1 was not without
leave. Therefore, the agency has failed to establish Charge III, Specification IV and Charge VII,
Specification I.
Ms. Freites, in Charge III, Specification III, is alleged to have disobeyed a directive of Mr.
Purvis to have security handle an irate client. Even if Ms. Freites’s motive was pure, she had no
authority to ignore a supervisor’s order, which she did by contacting Director Gainer about the
situation. The agency has established the specification.
In summary of all of the charges, the evidence showed that Ms. Freites’s supervisors were
demanding of their subordinates and that the deputy director, Mr. Purvis, protected the respondent’s
immediate supervisor, Ms. Oliver, although he was aware of her shortcomings. Nevertheless, it is
clear that Ms. Freites engaged in the misconduct that I found the agency had established.3
FINDINGS AND CONCLUSIONS
1.
3
On May 21, 2001, the respondent acted discourteously toward
a client, made statements critical of management in a public
area of the center and walked away when her supervisor
sought to discuss the respondent’s behavior. The agency did
not establish that Ms. Freites improperly refused to service the
client.
Subsequent to the close of the hearing, on September 30 , 2002, I received a faxe d, handwritten, two sentence requ est
to reopen the hearing. By le tter dated O ctober 1, 2 002, I instruc ted counse l to comply with OATH’s Rules of Practice,
and to submit a proper motion to reopen by October 15, 2002. No such motion has been received.
- 25 2.
On September 28, 2001, Ms. Freites wrongfully left her
reception post without awaiting a coverage replacement.
Later that day, she entered Mr. Purvis’s office without
permission and refused to leave when asked by him to do so.
3.
The agency failed to establish that Ms. Freites abandoned her
post on October 1, 2001, or was AWOL for five hours that
day. The agency did establish that Ms. Freites ignored the
directive of Mr. Purvis to let security handle an irate client,
when she contacted Director Gainer about the situation.
THEREFORE, I find that the petitioner has established Charge I, Specifications II and IV,
Charge III, Specification I, Charge IV, Specification I, and has not established Charge I,
Specifications I and III, Charge II, Specification I, and Charge IV, Specifications II and III of the
May 21, 2001 charges. Charge V should be dismissed. because it is a “catchall” rule, whereas Ms.
Freites’s conduct is covered by specific rules.
With respect to the September-October, 2001 charges, I find that the petitioner has
established Charge I, Specification I, as amended, Charge II, Specification I, Charge III,
Specifications I, II and III, and Charge IV, Specification I; and has not established Charge III,
Specification IV, Charge V, Specification I, Charge VI, Specification I, and Charge VII,
Specification I.
RECOMMENDATION
Upon making the above findings, I obtained and reviewed an abstract of the respondent’s
work record. Josephine Freites commenced her employment with the predecessor agency to HRA
in and around 1972.
At the hearing, Ms. Freites claimed that her prior disciplinary problems
concerned absences without leave and occurred because of her incapacitated son’s move to North
- 26 Carolina approximately two years ago. However, her personnel file is replete with prior disciplinary
findings which were made over the course of her career.
As early as 1974, Ms. Freites began receiving disciplinary penalties. In 1974, she received
an official reprimand about her latenesses. In 1976, she accepted a penalty of one day’s pay in
settlement of lateness charges. In 1977 and in 1978, the respondent was again fined one day’s pay
for latenesses. The penalty was increased to two day’s pay in 1979. As early as 1972, the respondent
claimed that her excessive latenesses were caused by child care problems, and in particular the need
to take her son to the nursery before coming to work. As late as 1979, she continued to use that
excuse the reason for her latenesses. In 1981, Ms. Freites accepted a penalty of six day’s pay is
satisfaction of unspecified charges.
On a positive note, throughout the 1980s and through 1993, Ms. Freites received only
outstanding or superior work performance evaluations. The respondent received her first negative
evaluation in 1994. The supervisor made clear that the evaluation was affected by the respondent’s
attendance. For 1998,4 the respondent received an overall evaluation of “good.”
In March 1996, Ms. Freites entered into a stipulation in settlement of charges that she had
neglected her work in 1995 and 1996, and she agreed to serve one year probation limited to time and
leave violations, and to forfeit five days annual leave. In October 2000, the respondent agreed to a
thirty-day suspension on two sets of charges referred to OATH for hearing. Both concerned aberrant
behavior, including using profanities and engaging in violent acts.
In this case, Ms. Freites has been found to have been disruptive and insubordinate on May
21, 2001; disruptive and insubordinate on September 28, 2001; and insubordinate, once more, on
4
Evaluations for other years were not provided with the personnel file.
- 27 October 1, 2001. Her conduct shows that she is stubborn and that she often does not follow the
directives of management. However, many of the charges were duplicative and do not merit
additional sanctions.
Mitigation is supplied by the many years Ms. Freites worked without disciplinary problems,
and the possibility that she could lose her pension, even though her conduct, while unacceptable, was
not of the sort (e.g., bribe receiving or other morally grave misconduct) that should result in the loss
of a pension one has earned. See Winston v. City of New York, 759 F.2d 242 (2d Cir. 1985).
However, when Ms. Freites’s extensive disciplinary record is considered, together with the
misconduct she was found guilty of in this case, termination of employment is the only appropriate
penalty. Nonetheless, given that the respondent’s loss of her pension will be automatic if her
employment is terminated, I recommend that the agency give Ms. Freites a final opportunity to retire.
___________________________
Ray Fleischhacker
Administrative Law Judge
Dated: October 30, 2002