Hearing officer recommends employee’s termination based on circumstantial evidence that was corroborated by other evidence

Hearing officer recommends employee’s termination based on circumstantial evidence that was corroborated by other evidence
NYC Department of Sanitation v O’Neill, OATH Index #2632/10

The New York City Department of Sanitation’s General Order No. 2001-19 addressing “trade waste” prohibits its employees from removing material originating from a home renovation performed by a contractor.*

OATH Administrative Law Judge Alessandra Zorgniotti found that circumstantial evidence,** supported by other evidence, proved the charge brought against Brian O’Neill, a sanitation worker employed by the Department.

Significantly, the ALJ found that a telephone tip from a man who called a Department Superintendent on July 30, 2007, was corroborated by other evidence gathered by the agency such as the caller’s description of the two sanitation workers involved. The descriptions matched O’Neill and his partner, and the caller’s reporting that “he saw these men loading construction debris onto a sanitation truck at a location at the end of [O’Neill’s] route in Brooklyn.”

The Department’s Borough Chief went to the location and he saw a house under renovation with signs of recent construction activity.

Additional circumstantial evidence consisted of the contents of O’Neill’s truck when it was “dumped.” The last material loaded came out first and it included construction debris, including carpet the Borough Chief had seen at the house.

In addition, there was testimony by a supervisor that the tonnage reports for July 30, 2007, for the section indicated that “most trucks picked up between nine and ten tons and that [O’Neill’s] truck was the only truck over thirteen tons” if waste,

Although the ALJ found that there was insufficient evidence to prove O’Neill had accepted a gratuity from anyone in connection with the removal of the “trade waste,” she recommended that O’Neill be terminated in view of his “short tenure and the absence of mitigating circumstances.”

* Even if collected materials have not been generated by a contractor for a fee, the trade waste directive can be violated if a sanitation worker services a residential stop which contains construction debris in excess of six bags, bundles, boxes, and cans. If the material exceeds this six-container limit, the sanitation worker is permitted to complete the collection only by notifying and procuring the approval of his or her supervisor.

** A finding of misconduct may be established in a disciplinary proceeding solely by circumstantial evidence. Dep’t of Sanitation v. Guastafeste, OATH Index No. 658/00, at 10, aff’d, 282 A.D.2d 398

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2632.pdf
NYPPL