Disciplinary charges alleging AWOL, neglect of duty and insubordination served on employee for leaving work to attend a baseball game
OATH Index No. 1618/13
A Yankee baseball game had been “rained out” the night before and rescheduled for the following afternoon. The employee, “an avid Yankee fan,” asked his supervisor for permission to take the afternoon off to go to the game. Explaining that she was “short-staffed,” the supervisor denied the employee’s request. When the employee said that he would go anyway, the supervisor said that if he did he would be reported as being absent without leave [AWOL].
True to his word, the employee attended the baseball game and true to her word, the supervisor reported that the employee was AWOL. The employee was subsequently served with disciplinary charges alleging AWOL, neglect of duty,” and insubordination.
At the OATH disciplinary hearing the employee testified that he planned to attend all Yankee home games “even if his leave applications are denied” because he had a season ticket and it's something that “I always do all the time.” According to the decision, the employee went to his first Yankee game at age ten and testified that since June 1975 he had attended every Yankee game played in New York City and had told his superior that “he intends to continue his streak, even if he is unable to get leave to attend a home game.”
OATH Administrative Law Judge Faye Lewis found the employee guilty of “neglect of duty” and being AWOL. She recommended that the employee be terminated from his position. Judge Lewis said that while “[c]learly [the employee] was driven, perhaps even obsessed, by his desire to continue this streak … this does not constitute a defense to leaving work after his leave request was denied.”
The decision also notes that this was not the first such incident. Previously the employee had served disciplinary charges for similar misconduct, found guilty and suspended without pay for 60-days and given “a final warning.”
As to the charge that the employee had been insubordinate, the ALJ found that it was not clear that the employee “was given a direct order to remain at work,” and thus the charge of insubordination was not proven and should be dismissed. In order to sustain a charge of insubordination, Judge Lewis explained, there must be proof “that a clear and unambiguous order was communicated to an employee and that the employee willfully failed to obey.”
The appointing authority adopted Judge Lewis’ recommendation and terminated the employee.
The decision is posted on the Internet at:http://archive.citylaw.org/oath/13_Cases/13-1618.pdf