Farace v. NYCHA

THE CITY OF NEW YORK CITY CIVIL SERVICE COMMISSION 12/04/12 IN THE MATTER ROF THE APPEAL OF: FARACE, MARIE: Appellant: -against NYC HOUSING AUTHORITY, Respondent: Pursuant to Section 76 of the New York State Civil Service Law PRESENT: RUDY WASHINGTON, COMMISSIONER VICECHAJR MATTHEW W. DAUS, COMMlSSfONBR CHARLES D. MCFAUL, COMMISSIONER ALINA A. GARCIA DIRECTOR & GENERAL COUNSEL RlCHARD SOTO, ESQ THADDEUS KWASNIK, ESQ. REPRESENTIVE FOR APPELLANT REPRESENTATIVE FOR RESPONDENT APPELLANT PRESENT STATEMENT On Thursday, October 4, 2012 the City Civil Service Commission heard oral argument in the appeal of MARlE FARACE, Procurement Analyst, NYC Housing Authority, from a determination by the NYC Housing Authority, finding her 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. COMMISSIONERS’ FINDINGS MARIE FARACE appeals from a determination of the New York City Housing Authority (“NYCHA ”) finding her guilty of incompetency and misconduct and imposing a penalty of termination following disciplinary proceedings conducted pursuant to Civil Service Law Section 75. The Civil Service Commission (“CSC” or “Commission”) conducted a hearing on October 4, 2012. NYCHA charged Appellant, a Procurement Analyst, with violence in the workplace and use of abusive language. The T.O. found Appellant guilty and recommended termination. NYCHA adopted the T.O. ‘s findings and imposed a penalty of termination. Appellant’s Position Appellant was represented by counsel, who argued that Appellant’s conduct did not warrant the charge made against her. Counsel argued that the penalty of termination was unduly harsh and shocking to the conscience, and that the principle of progressive discipline warrants a penalty less than termination in Appellant’s case. Counsel first argued that NYCHA exaggerated the comment underlying the disciplinary charges. Although the precise phrasing of the statement is disputed, Appellant stated that a coworker ate “like a pig:’ and that she wanted “to kill her.” Counsel argued that the context in which the statement was made demonstrated that no violence was meant or contemplated by Appellant. Counsel argued that Appellant did not intend to be confrontational, but merely made a passive statement in reference to a co-worker that was not present at the time. In addition, counsel argued that the reaction to her statement, her co-worker’s laughter, illustrated that the statement was not interpreted as a physical threat. Counsel further argued that The New York State Unemployment Insurance Board findings should be considered binding on the Commission under the doctrine of collateral estoppel. Since the Unemployment Appeal Board found that the credible evidence does not establish misconduct on the part of the claimant. Counsel argued that this provided a basis for the Commission to reverse the findings made by NYCHA. In addressing the previously decided cases provided by NYCHA to support their determination that Appellant’s statement warranted termination, counsel argued that each of the cases was distinguishable from Appellant’s conduct in the present case. In Mulligan v. NYC Housing Authority (NYCHA May 6, 2004), a statement was made in front of the person to whom the statements were directed and was accompanied by Mulligan locking himself in the room with that person. In Rivera v. NYC Housing Authority (NYCHA Feb. 8, 2009), a statement was made in front of the person to whom the statements were directed and was accompanied by Rivera clenching his fists and getting in the face of the other individual. NYCHA’s Position NYCHA’s counsel argued that the charges against Appellant are illustrative of a pattern of misbehavior and violence in the workplace and maintained that Appellant’s prior record which includes three prior incidences of violence in the workplace supported the penalty imposed herein. NYCHA’s counsel argued that Appellant’s statement was not merely a passing statement and did not have to be directed to the subject of the statement in order to be considered violent. NYCHA ‘s counsel also argued that NYCHA ‘s policy makes it mandatory for supervisors to report any acts or threats of violence immediately, and that Appellant was immediately moved away from the target of her statement. NYCHA’s counsel argued that this policy is illustrative of NYCHA’s unwillingness to tolerate language such as that used by Appellant. In support of his argument for termination, NYCHA’s Counsel relied on two previously decided cases, Mulligan and Rivera, and argued that each involved similar instances of verbal violence in the workplace that resulted in termination. Although Counsel conceded that both cases involved direct threats, he contended that both parties had less significant disciplinary records than Appellant, and were nonetheless terminated from their positions. Analysis The Commission has carefully reviewed the record adduced below and considered the arguments on appeal. We note that Appellant’s disciplinary history consists of nine counseling memoranda which proceeded to a local hearing, resulting in a penalty of a one-day suspension, and one general trial, resulting in a penalty of 20 days’ suspension, subsequently modified to a 10-day suspension by the CSC. We note that the T.O. found Appellant guilty of the charge in the present case and recommended that Appellant be terminated. At the hearing and in a post-hearing submission, Appellant’s counsel argued that the doctrine of collateral estoppel should govern the disposition of this appeal. Counsel referred to a decision issued by the New York State Unemployment Insurance Appeal Board finding the disciplinary hearing conducted by NYCHA to be unfair and granting Appellant unemployment insurance benefits. Since the Unemployment Appeal Board decision essentially dismissed NYCIIA’s findings of misconduct, Appellant’s counsel urged this Commission to accord it collateral estoppel effect and reverse the misconduct findings made by NYCHA. See generally, Ryan v. Nev.’ York Td (AJ., 62 N.Y.2d 494, 478 NYS 2d 823 {1984). NYCHA’s counsel contends that collateral estoppel does not apply here because the essential elements necessary to apply the doctrine are missing. The Unemployment Appeal Board’s decision may not be applied to bar the issues inherent in this appeal by operation of law. New York labor Law, section 632(2), states: “No finding of fact or law contained in a decision rendered pursuant to this article by a referee, the appeal board of a court shall preclude the litigation of any issue of fact or law in any subsequent action or proceeding” except in the context of the unemployment insurance benefit context. See, e.g., .S’trong v. New York City Dep ‘t Education, 62 A.D.3d 592, 880 N.Y.S.2d 39 On Dep’t 20{l9), lv. denied, 14 N.’l’.Jd 704, (2010), 898 NS.S.2d 100 (table), reargument denied, 14 N.Y3d 936 (2010), cert. denied, l3i SCt 652 (2010), rehearing denied 131 S.Ct 1560 (2011} Accordingly. the unemployment Insurance Appeal Board decision can have no preclusive effect on this appeal. With regard to the charges at bar. we find that Appellant’s statement, though abusive and inappropriate, does not support a finding of violence in the workplace. We note that the statement was not directed at her co-worker, but was made in the presence of co-workers who did not appear to be bothered by Appellant’s statement We further note that the statement was not accompanied by any physical conduct that would elevate the statement to a threat. The most serious prior penalty imposed on Appellant was a 20-day suspension, which was later modified to a 10-day suspension. We find that the significant increase in penalty from a 10-day suspension to termination is unduly harsh under the circumstances of this case. Accordingly, progressive discipline dictates that Appellant’s penalty should be significant, but less than termination. Decision The Commissions modifies the Trial Officer’s findings and finds the Appellant not guilty of violence in the workplace and guilty of use of abusive language. Accordingly, the Commission hereby modifies the determination of NYCHA to a suspension of time served. her position within thirty days.

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