THE CITY OF NEW YORK CITY CIVIL SERVICE COMMISSION
IN THE MATTER OF THE APPEAL OF:
NYC HOUSING AUTHORITY,
Pursuant to Section 76 of the New York State Civil Service Law
NANCY G. CHAFFETZ, COMMISSIONER
RUDY WASHINGTON, COMMISSIONER
CHARLES D. MCFAUL, COMMISSIONER
AMANDA M. WISMANS
ALINA A. GARCIA
DIRECTOR & GENERAL COUNSEL
ARTHUR Z. SCHWARTZ, ESQ GERALD STERNBERG, ESQ.
REPRESENTIVE FOR APPELLANT REPRESENTATIVE FOR RESPONDENT
On Thursday, August 2, 2012 the City Civil Service Commission heard oral argument in the appeal of ANTHONY DEPOMPEIS, Elevator Mechanic, NYC Housing Authority, from a determination by the NYC Housing Authority, finding him guilty of charges of incompetency or misconduct and imposing a penalty of TERMINATION following an administrative hearing conducted pursuant to Civil Service Law Section 75.
ANTHONY DEPOMPEIS appeals from a determination of the New York City Housing Authority (“NYCHA”) finding him guilty of incompetency and misconduct and imposing a penalty of termination following disciplinary proceedings conducted pursuant to Civil Service Law (“CSL”) Section 75. The Civil Service Commission (“CSC” or “Commission”) conducted a hearing on August 2, 2012.
NYCHA charged Appellant, an Elevator Mechanic. with eight charges involving verbal threats, abusive language. failure to perform duties in a satisfactory manner, and absenting himself without approval. The most serious of the charges were related to an October 18. 2010 incident involving profane, abusive, and offensive language directed at Appellant’s supervisor. The Trial Officer (“T.O.”) found Appellant guilty of charges involving making verbal threats, abusive language, and failure to perform his duties in a satisfactory manner and recommended termination, NYCHA adopted the T.O. ‘s findings and imposed a penalty of termination.
Appellant was represented by counsel who argued that Appellant’s defense was threefold. First, Appellant was suffering from a documented mental illness as defined by New York Human Rights Law (“HRL”). Second, Appellant had little prior discipline and therefore progressive discipline prohibits Appellant’s termination. Third, Appellant was being retaliated against as a result of whistle blowing regarding fraud.
Appellant’s counsel argued that at the time of the misconduct in question, Appellant was suffering from a documented mental illness as defined by NY HRL. and was hospitalized for psychiatric illness for two weeks during August and September of 2010. According to HRL Section 8-I 02.16, mental and psychological impairments are protected disabilities and Counsel argued that Section 8-107.15 requires that such disabilities be accommodated unless the individuals cannot satisfy the essential requisites of the job. Given Appellant’s disability, Counsel argued that he should have been given the necessary accommodations instead of being terminated. Counsel further argued that the T.O. determined that Appellant’s outburst on October 18, 2012 was neither perceived nor intended to be a legitimate threat. Appellant’s counsel also pointed out that Appellant was a 15 year employee of NYCHA with only counseling memoranda on his record and that progressive discipline does not support terminating such an employee based upon the October 18, 2010 incident, which was a general rant and not directed at particular individuals.
Counsel also asserted that at the time of the misconduct in question, Appellant was being asked to participate in extensive fraud by his supervisors, which included falsifying records and reports. Appellant experienced anxiety related to the fraud and when he indicated that he did not want to participate, he was unfairly written up and his employment was threatened.
Counsel fur NYCHA argued that termination is warranted because Appellant was found guilty of making verbal threats of physical violence and there was no finding below that the threats were not made willfully. Counsel explained that on October 18.2010, Appellant stated on the job to supervisor Douglas Engstler “if you come after my job, it is like coming after my family, and I will fucking kill everyone.” NYCHA takes threats of this nature very seriously because historically it has experienced employee threats escalating to physical violence. NYCHA pointed to the fact that Appellant was kept out of work with pay after his pre-trial suspension because NYCHA did not want the lives of their staff to be at risk due to Appellant’s behavior.
NYCHA’s counsel further argued that Appellant’s mental illness is not relevant because the T.O. did not consider it in his report and recommendation. Further, Appellant’s medical records were not admitted below because Appellant would not consent to enter the records without redacting certain information. NYCHA also asserted that progressive discipline is superseded when the conduct is as grave as it was here. Appellant was found guilty of three incidents, all of which involved profanity and abusive language, including threats of violence. NYCHA also argued that the defense of retaliation for whistle blowing is without merit because the T.O. made no reference to fraud and no fraud took place.
The Commission has carefully reviewed the record adduced below and considered the arguments on appeal.
The Commission notes with some concern that two defenses put forward by Appellant at the hearing below were not fully discussed in the report and recommendation, and thereby limited the Commission’s ability to review these issues on appeal. The T.O’s decision lacked both a factual and legal analysis of whether and to what extent Appellant’s mental health defense had any bearing on the disposition of the misconduct charges. Appellant testified that he was hospitalized for psychiatric reasons in or around the time of most of the charged misconduct. He further testified that he suffers from “several medical conditions which can lead to outbursts” and that he was “taking medication and seeing a therapist before this incident [on October 18, 2010], and that afterwards he enrolled in an anger management program.” Report at p.7. Yet. the T.O. failed to discuss or analyze whether as a matter of law Appellant could be found guilty of intentional misconduct when his conduct might have been attributable to a mental health condition beyond his control or that was in remission at the time of trial. See, e.g .. Resig v. Kirby, 62 Misc.2d 632, 635, 309 N.Y.S.2d 55, 58 (Sup. Ct., Suffolk Co. 1968), aff’d, 31 AJ).2d 1008, 299 N.Y.S.2d 398 (2d Dep’t 1969); McEni1y v.
Landi, 84 N.Y.2d 554, 620 N.Y.S.2d 328 (1994); Housing Auth. v. Cosentit1(), OATH Index No. 535/88, at 12 (Mar. 31, 19&9), aff’d. NYC Civ. Serv. Comm’n Item No. CD 90-72~1 (Feb. 21, 1990).
The, importance of this issue is underscored by the T.O.’s penalty recommendation, which states: “Mr. DePompeis has severe and persistent emotional problems which are clearly affecting his ability to function at his job. He claims to be getting treatment, but there is no indication that his emotional condition is improving.” We note as well that the T.O. refused to admit Appellant’s hospital medical records because the agency representative objected to the fact that portions of the record were redacted. While that objection would undo the previous stipulation to admit the medical records, the records should have nonetheless been admitted based on Appellant’s testimony that they corroborated his testimony about his mental status and hospitalization. At the very least, the medical records should have been preserved in the trial record as an exhibit marked for identification.
The other defense put forward by Appellant– which consumed several heating days, was the fact that he was being retaliated against by his supervisors because he was a whistleblower. Appellant contends that his elevator inspection reports were being intentionally removed from the record system or were being changed to reduce the number of violations he reported. When he refused to go along with this, he claims he was retaliated against. The Commission notes that while the trial officer apparently rejected Appellant’s whistleblower defense, the decision is silent on the reasons for reaching that conclusion. The Commission is thereby unable to properly review the trial officer’s reasoning supporting the conclusion that Appellant’s whistleb!ower defense was ineffective. Further, we note that while NYCHA argued before us that it had not reinstated Appellant pending trial. based on concerns that he might be violent and the knowledge he had. been hospitalized for psychological reasons, it chose not to evaluate Appellant’s mental status ill accordance with the provisions of CSL Section 72, but proceeded to terminate him for willful misconduct.
In the absence of reviewable findings below on the bearing Appellant’s psychological
condition might have had on his conduct, or whether or not he had been retaliated against, the
Commission is limited to considering Appellant’s misconduct in the context of his fifteen year
employment history without incident in his previous position of Elevator Mechanic’s Helper.
Appellant’s file also contains two commendations for outstanding work performance and a third commendation for participation in the WTC disaster relief program. Given Appellant’s long tenure, lack of disciplinary history, and the mitigation described above, we find termination is in violation of the principle of progressive discipline in this case. We therefore modify Appellant’s penalty to time served plus probation.
Accordingly, the Commission hereby modifies NYCHA’s penalty of termination to time served plus one year probation. Under the terms of probation, any further misconduct may result in Appellant’s immediate termination without a showing of progressive discipline or the availability to section 75. Appellant is to be restored to his position within 30 days.
New York City Nancy G. Chaffetz
Conunissioner, Vice Chair