Fire Dep’t v. Deans OATH Index No. 2093/20 (Dec. 3, 2020), adopted, Comm’r Dec. (Dec. 18, 2020), appended

Firefighter charged with being AWOL for a year. Termination recommended. ______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of FIRE DEPARTMENT

Petitioner - against -

ELROY DEANS Respondent

_________________________________________________

REPORT AND RECOMMENDATION

JOHN B. SPOONER, Administrative Law Judge

This is a disciplinary proceeding referred by petitioner, the Fire Department, pursuant to

section 15-113 of the Administrative Code of the City of New York. The charges allege that

respondent Elroy Deans, a firefighter, was absent without leave (“AWOL”) from November 20,

2018, to December 9, 2019. They also allege that he failed to report to the BHS clinic as ordered

on September 21, 2019.

A trial was held before me on October 13, October 14, and November 5, 2020. Petitioner

presented testimony and documents demonstrating respondent’s absence. As recounted below,

respondent appeared only on October 13 and then refused to participate further. He made

statements suggesting that the records were inaccurate and that he was being treated unfairly but

offered no actual witnesses or evidence.

For the reasons provided below, I find that the evidence is sufficient to prove the AWOL

charge and recommend that respondent be terminated.

PROCEDURAL BACKGROUND

The charges in this case were forwarded to this tribunal for conference and trial on May

27, 2020. A conference was scheduled for September 3, 2020, and a trial scheduled for September

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10, 2020. Due to the COVID-19 pandemic and the closing of most City offices, both the

conference and the trial were scheduled to go forward remotely by either video or telephone over

WebEx. The parties were sent the WebEx information via e-mail. After petitioner’s counsel

appeared via WebEx for the conference, Judge Casey, the conference judge, contacted respondent

by e-mail using an e-mail address provided by respondent to the Department. Judge Casey

repeated the instructions for joining the WebEx call. Respondent apparently attempted to connect

to the WebEx session, but after it had closed. Therefore, later that day, Judge Casey converted the

trial scheduled for September 10 to a conference, had a new WebEx session created, and e-mailed

the log-on information to the parties (ALJ Ex. 1A). Respondent then replied with an e-mail stating

that he preferred an “in-person” hearing because his internet was “not great” and because it was

his “right” (ALJ Ex. 1B).

On September 10, 2020, petitioner’s counsel appeared via WebEx for the conference but

respondent did not. The trial was adjourned by Judge Casey to October 13, 2020, and a new

WebEx session was created for this date with the understanding that the information would be sent

to respondent both by e-mail and with a written notice of trial by certified mail. After being sent

the scheduling e-mail by Judge Casey, respondent sent an e-mail repeating his request for an in-

person trial due to “no internet connection” and then demanded to know “who the FDNY is and

who is Deans?” (ALJ Ex. 1C). He then asked for judge’s name, title, supervisor, and “contact

information.” Judge Casey provided this information in a reply e-mail.

On September 15, 2020, I e-mailed the parties and requested a conference call to discuss

respondent’s application for an in-person trial and the parties anticipated witnesses and exhibits

(ALJ Ex. 2A). On September 17, 2020, respondent replied asking for my name and the agency I

worked for, even though both were part of the e-mail I had originally sent (ALJ Ex. 2B). I replied

indicating that, like Judge Casey, I worked for the Office of Administrative Trials and Hearings

and again asking respondent for his availability for a conference call (ALJ Ex. 2C). Without

replying to the conference call request, respondent sent an e-mail demanding what “NYC,”

“FDNY,” and “FD” were (ALJ Ex. 2D). After I replied that these were acronyms for New York

City and the New York City Fire Department, respondent than sent an e-mail asking, “Who is

Deans can you give me the full name for this person” (ALJ Ex. 2E). I replied giving respondent’s

name.

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Having been unable to obtain respondent’s cooperation in participating in a conference

call, I sent the parties an e-mail on September 18, 2020, denying respondent’s application for an

in-person trial on the grounds that I found his insistence that he had no means to obtain internet

access either with the help of family or friends implausible and indicated that the trial would

proceed remotely over WebEx (ALJ Ex. 2F). I encouraged the Department to arrange for

respondent to visit a Department facility where internet access could be provided. In reply to my

request, petitioner’s counsel sent an e-mail on September 28, 2020, indicating that the Department

would provide respondent access to Department headquarters where a computer would be made

available to permit him to participate in the October 13 trial (ALJ Ex. 2G).

On October 6, 2020, respondent sent an e-mail renewing his request for an in-person trial

due to “weak internet” and further indicating that it would be a “conflict of interest” for him to go

to a Department facility (ALJ Ex. 3A; Pet. Ex. 3).

On October 7, 2020, this tribunal sent the parties an e-mail stating that a telephone or

WebEx conference would be scheduled for October 8, 2020, at 11:00 a.m. to discuss respondent’s

request for an in-person trial and to obtain further information about his efforts to arrange for

internet access (ALJ Ex. 3B). The e-mail stated that without further information respondent’s

request would be denied and the trial would proceed via WebEx on October 13, 2020, at 10:00

a.m. by either video or telephone, for which no internet connection was needed. Petitioner’s

counsel confirmed his availability for an October 9 telephone conference but respondent did not

reply. On October 8, 2020, this tribunal sent the parties another e-mail directing them to provide

each other and this tribunal with a witness list and copies of trial exhibits no later than 5:00 p.m.

on October 9, 2020 (ALJ Ex. 3C). On October 9, petitioner’s counsel provided a witness list and

copies of exhibits. Respondent did not reply.

On October 13, 2020, petitioner’s counsel appeared via WebEx for the scheduled trial but

respondent did not. However, petitioner’s counsel was able to reach respondent’s wife by

telephone and she indicated that respondent was at the OATH offices in lower Manhattan. When

he was told that the offices were closed, he then drove back to his home in the Bronx. At around

1:00 p.m., respondent called into the WebEx session by telephone from his home and a settlement

conference was conducted by Judge Casey. No settlement was reached and, at around 3:00 p.m.,

the trial went forward with petitioner’s counsel and this tribunal participating by video and with

respondent participating by audio over the telephone.

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During the trial, respondent was informed of his right to have an attorney. When asked

whether he wished to represent himself, respondent answered, “At this time, we’re here, you know,

and it’s, you know, I guess, if, if, you know, if this case is truly looked over in light, I should

prevail. If not, we’ll be year and years into legal and federal court or state court or wherever else

it has to go” (Tr. 5). Respondent then objected that he not been “properly served” without

identifying what document he was referring to (Tr. 7). He then insisted that his due process rights

were violated because a “hearing” was held in March and demanded a transcript (Tr. 8). He also

asserted that the Department had violated the Health Insurance Portability and Accountability Act

of 1996 (“HIPAA”) laws and the collective bargaining agreement (Tr. 9).

After petitioner’s opening statement, respondent stated that he would show that the

Department had violated his due process rights, his “civil liberties,” and his HIPAA rights. He

contended that the Department was submitting “falsified” documents and was seeking to terminate

him for making EEO complaints about people “tampering with” his food (Tr. 13). He denied that

he was absent without leave and stated that the Department’s records did not “add up” (Tr. 14).

He asserted that he had made complaints to the Department of Investigation, to EEOC, and to the

Fire Department Commissioner and that he “will prevail at the end” (Tr. 14).

A few minutes later, he stated that, instead of being at his residence as he had indicated he

would be, he was instead in a “McDonald’s parking lot” and his phone was running out of charge.

When he was offered time to go home to get to his phone charger, he said he wanted to “move

forward to federal court and take my issues up there” and indicated he would be filing a “HIPAA

complaint” (Tr. 36-37).

After another 30 minutes, when offered the option of a short adjournment of the October

13 trial so that the Department could send him paper copies of the exhibits, respondent refused,

stating, “No, no. That just gives him more time. No. Let’s move forward” (Tr. 64). A few

minutes later he again demanded to move forward, objecting to continued dates the following week

(Tr. 74). Respondent then agreed to appear over WebEx the following morning at 9:30 a.m. to

complete the trial (Tr. 78). He was told that if he failed to appear as promised the trial would go

forward without him.

On the morning of October 14, counsel for petitioner appeared at 9:30 a.m. but respondent

did not. At 10:19 a.m., I sent respondent an e-mail reminding him of the WebEx proceeding, once

more supplying the WebEx login information, but respondent did not reply (ALJ Ex. 4A). Because

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it was clear that respondent was placed on notice of the continued trial and, indeed, confirmed that

he would be present and offered no excuse for failing to appear, I found respondent in default. At

10:34 a.m., the trial went forward and petitioner presented two witnesses and further exhibits (Tr.

85-86).

At the close of the October 14, 2020 trial, the record was left open to provide respondent

another opportunity to appear and present evidence. At 12:05 p.m., after the trial was completed,

respondent sent an e-mail stating that he called and received a message that the meeting had not

started (ALJ Ex. 4A). At 12:09 p.m., I sent respondent an e-mail indicating that we were still on

the WebEx call and including once more the WebEx login information (ALJ Ex. 4B). At 12:39

p.m., I sent respondent another e-mail stating that we left the WebEx session after he failed to

appear. I told respondent that I would resume the trial at 2:30 p.m. to permit him to participate

(ALJ Ex. 4C). After respondent failed to appear at 2:30 p.m., I ended the trial for the day.

On October 20, 2020, evidently after receiving certified paper copies of the Department’s

trial exhibits which I had requested be mailed to him, respondent sent an e-mail indicating he

objected to the exhibits as “new discovery” and in violation of HIPAA laws (ALJ Ex. 5A). He

also demanded that all communication sent to him indicate the “title and/or rank” and “employer

name.”

On October 28, 2020, I sent an e-mail to the parties indicating that we would continue the

trial over WebEx on November 5, 2020, at 11:00 a.m. to provide respondent a final opportunity to

offer testimony and evidence in his defense (ALJ Ex. 5B). I advised respondent to reply and

indicate whether he would be offering any evidence. I also confirmed that, according to

petitioner’s counsel, the Department had sent respondent paper copies of all exhibits by certified

mail. Attached to the e-mail was a copy of the transcript from the October 14 trial at which

respondent failed to appear.

On November 2, 2020, this tribunal sent the parties an e-mail containing the WebEx login

instructions (ALJ Ex. 6A). At 11:00 a.m. on November 5, petitioner’s counsel appeared on the

scheduled WebEx session, but respondent did not. At 11:30 a.m., having heard nothing from

respondent, petitioner’s counsel made his closing argument and the record was deemed closed.

At 2:30 p.m. on November 5, respondent sent an e-mail to an OATH administrative

assistant which she forwarded to me (ALJ Ex. 6B). In this e-mail, respondent complained again

that he lacked an “internet connection to support video.” He also renewed his demand for an in-

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person trial, directed that all communication to him be by certified mail as well as by e-mail, and

promised to “submit support by e-mail” as to why the remedy sought by the Department should

be withheld. As of the date of this report, no further communication from respondent has been

received.

ANALYSIS

Respondent has been employed by the Department since 2000, first as an emergency

medical technician from 2000 to 2004 and then as a firefighter from September 2004 to the present

(Pet. Ex. 2). According to Department records, since February 2013, respondent has been assigned

to light duty because of a shoulder injury he incurred while off duty (Tr. 92). As summarized

above, after respondent’s request for an in-person trial was denied, he participated in a few hours

of the three-day trial and then failed to appear for the remainder. Based upon the undisputed

evidence, the charges should be sustained in that respondent was AWOL for a year and failed to

appear for an ordered medical appointment.

Request for In-Person Trial

Respondent’s demand for an in-person trial was properly denied because he failed to

present (or even cooperate in discussing) compelling circumstances warranting an in-person trial

during the COVID-19 pandemic. The COVID-19 contagion struck New York City in

approximately March 2020, when all non-essential City offices were closed and, wherever

possible, government services and customer assistance was provided virtually by means of

electronic, rather than face-to-face, communication.

Like the rest of the City, OATH staff began scheduling and conducting conferences and

trials using a platform called WebEx, which permits participants to communicate on audio and/or

video over the telephone or a computer. Pursuant to the Chief Judge’s Order of July 20, 2020, all

trials before the OATH Trials Division since the pandemic arrived were conducted via WebEx due

to the on-going COVID-19 pandemic. Parties who wished to have an in-person trial were required

to make a written request demonstrating a “particularized compelling need for an in-person

proceeding and the proceeding can be conducted while providing sufficient social distancing and

other public health protections to comply with state and local government public health

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guidelines.” Examples of a compelling need include an inability to submit evidence by e-mail or

a disability preventing participation in a remote trial.

In this case, respondent framed his demand for an in-person trial in two e-mails sent on

September 3 and October 6, 2020 (ALJ Exs. 1B, 3A). In the first e-mail, he stated that his internet

was “limited and not great.” He also stated it was his “right” to have an in-person trial, that all

courts were “open,” and that “everybody” had previously had trials in person at the OATH offices.

When offered several opportunities to provide further details as to his circumstances and his need

for an in-person trial, he declined to cooperate. In the second e-mail, he stated that his internet

was “weak” and “no good.” He stated that he refused to access the internet at the Department

offices because it was a “conflict of interest.” He again declined to participate in a telephone

conference call to provide further information.

None of the reasons offered by respondent in his request for an in-person trial were

persuasive or in any way “compelling.” As recognized by Judge Gloade in Department of

Sanitation v. Gilchrist, OATH Index No. 1897/20, Letter Dec. at 2 (July 27, 2020), the COVID-

19 pandemic has been found by numerous courts to be a justifiable and constitutional means of

conducting judicial proceedings via audio and video conference (ALJ Ex. 7). See, e.g., Argonaut

Ins. Co. v. Manetta Enters., 2020 U.S. Dist. LEXIS 103625 at *5 (E.D.N.Y., June 11, 2020)

(finding that the COVID-19 pandemic presents “good cause and compelling circumstances” to

conduct a three-day bench trial via videoconference); Rouviere v. Depuy Orthopaedics, Inc., 2020

U.S. Dist. LEXIS 122184 at *7 (S.D.N.Y, July 11, 2020) (denying a request that a deposition be

conducted in person rather than via Zoom because “[c]onducting court proceedings remotely in

the Southern District of New York has become the ‘new normal’ since the advent of the public

health emergency created by the spread of the coronavirus and COVID-19”).

Further, OATH, like many of the courts, has long permitted remote trial testimony to

accommodate the needs of witnesses or parties who are unable to travel to participate in person.

Comm’n on Human Rights v. A Nanny on the Net, LLC, OATH Index No. 1364/14 at 1-2 (Aug. 8,

2014), modified on penalty, Comm’n Dec. & Order (Feb. 10, 2017); Taxi & Limousine Comm’n

v. Ahmed, OATH Index No. 1182/16 at 2 (Mar. 16, 2016). A trial conducted either via audio or

video does not deny a party due process since it permits presentation of documentary evidence and

live testimony of witnesses. On this basis, Judge Gloade and other OATH judges have denied

applications for in-person trials based solely upon a party’s assertion of due process rights or a

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personal preference for in-person proceedings. See Dep’t of Sanitation v. Garcia, OATH Index

No. 2051/20, Letter Dec. (July 30, 2020). In fact, no in-person trials have been conducted at

OATH since March 2020 due to the difficulties of complying with health and safety guidelines of

distancing and masking, making the gathering of litigants, attorneys, witnesses, and the judge into

a small space next to impossible.

In the instant case, respondent had access to e-mail, a phone, and internet. Although he

stated that his internet was “not great,” he repeatedly declined to provide further information as to

his internet or as to his efforts to discover a location where he could access the internet close to his

home. When offered the possibility of accessing the internet with a Department computer at a safe

location in Department headquarters, he rejected the offer as a “conflict of interest,” an objection

devoid of reason or logic. Using WebEx, he actively participated in a lengthy settlement

conference and the first day of trial by phone, reviewing and objecting to exhibits and indicating a

strong desire to cross-examine petitioner’s witnesses. He then failed to participate further in the

second day of trial, when petitioner’s witnesses testified, providing no excuse. He also failed to

participate in a third day of trial some three weeks later, a trial date scheduled after he had been

provided further paper copies of all trial exhibits and copies of the transcripts of the two previous

trial dates, again without excuse.

In sum, respondent failed to establish compelling circumstances to warrant an in-person

trial and the remote trial offered him ample opportunity to participate and defend against the

charges here.

The Proof of the Charges

The charges, dated December 9, 2019, allege that respondent failed to report for light duty

as ordered from November 20, 2018, to the present. They further allege that respondent failed to

report to the Department as ordered on September 21, 2019. The AWOL charge was proven at

trial while the failure to report charge was not proven.

During the trial, petitioner submitted certified copies of Department time-and-leave

records. Respondent’s attendance records indicate that he was absent without authority from

November 20, 2018, through December 9, 2019 (Pet. Exs. 5, 6). Lieutenant Murray, the executive

officer of the Department Bureau of Health Services (“BHS”) and respondent’s supervisor,

confirmed that respondent failed to appear to his light duty work assignment at BHS for this period

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(Tr. 115). Petitioner offered a logbook from April 16 and 17, 2018, showing that respondent

properly signed into his light duty assignment at BHS on that day (Pet. Ex. 9). He failed to sign

any of the logbooks from November 2018 through December 2019.

Dr. Beecher, the deputy chief medical officer of BHS, testified that members of service

assigned to light duty are examined periodically to determine whether their duty status can be

changed. She examined respondent on August 29, 2018, and, based upon her examination, ordered

respondent to continue on light duty. She also directed him to report back to the Department clinic

a year later on August 28, 2019 (Tr. 92). Respondent failed to appear for this appointment (Tr.

94). She stated that the appointment was “postponed” first to September 5, then to September 13,

and finally to September 21, 2019, when respondent was “determined” to be a “failure to report”

(Tr. 97). Clinic records for August 28, 2019, confirm that respondent failed to report to the clinic

as scheduled (Pet. Ex. 8).

The charge that respondent failed to report for an appointment on September 21, 2019, was

not proven. The records and the testimony of Dr. Beecher indicate only that respondent was

ordered to report for a clinic appointment on August 28, 2019, and failed to do so. There was no

evidence that he was ordered to report on September 21, 2019, or that he was placed on notice that

such an appointment was scheduled. This portion of the charges should be dismissed. See Dep’t

of Correction v. Callabrass, OATH Index No. 1981/10 at 11-12 (July 23, 2010) (absent proof of

direct order charge of failure to obey dismissed).

None of the other objections raised by respondent to the Department records had merit.

Respondent first objected the certified copies of records stricken on the grounds that they identified

him as “Elroy Deans, Jr.” while the charges identified him as simply “Elroy Deans” (Tr. 18-19;

Pet. Ex. 6). This document, which identified respondent by his employee number and his job title

code, was demonstrated to be an accurate time-and-leave record of respondent’s attendance and

respondent offered no evidence that it could have referred to a different employee.

Respondent objected that a record of his duty determination dated August 29, 2018, was

inadmissible under HIPAA, 42 U.S.C. § 1320d et seq. and insisted that petitioner’s counsel could

not obtain it without a subpoena (Tr. 28; Pet. Ex. 7). This record was not a medical record protected

by HIPAA but rather a Department database printout regarding respondent being placed on light

duty in 2013 due to a shoulder injury. Furthermore, even had it been medical evidence of a

shoulder injury, it would still have been admissible because respondent waived confidentiality

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when he submitted it to his employer in order to support a light duty assignment and obtain sick

leave. See Fire Dep’t v. Palleschi, OATH Index No. 192/11 at 5-6 (Dec. 20, 2010), aff’d, 102

A.D.3d 603 (1st Dep’t 2013); Dep’t of Environmental Protection v. Rodriguez, OATH Index No.

1438/08 at 4-5 (Apr. 29, 2008) (“HIPAA does not create a new evidentiary privilege for

disciplinary hearings. A patient’s remedy for a HIPAA violation is to notify the United States

Department of Health and Human Services”), modified on penalty, Comm’r Dec. (May 15, 2008),

aff’d sub nom. Rodriguez v. City of New York, 2009 N.Y. Misc. LEXIS 3962 (Sup. Ct. N.Y. Co.

2009), aff’d, 71 A.D.3d 512 (1st Dep’t 2010).

Respondent argued that because Department records showed that he was on vacation for a

month in May and June 2019 he could not have been AWOL (Tr. 55; Pet. Ex. 6). Lieutenant

Murray conceded that respondent’s time records reflected that respondent used vacation time from

May 13 through June 13, 2019. He explained that this was a timekeeper error made because

respondent had put in for vacation for this period prior to being AWOL. But because respondent

was AWOL for the preceding seven months, he was ineligible and not approved for vacation (Tr.

112).

Respondent offered a number of exaggerated statements and implausible assertions during

his brief participation in the trial which he seemed to believe provided defenses to the AWOL

charges. He complained that he was not being paid and that the Department’s attendance records

“doesn’t make any sense” (Tr. 38). He referred to the Department log-in book as a “book of lies”

showing “nothing” except that the Department was “cooking the books” (Tr. 45-46).

Respondent complained that the Department’s delay in serving him with misconduct

charges displayed a lack of concern as to whether he might be dead (Tr. 53). He insisted that

because the Department sent no one to look for him he could not have been AWOL (Tr. 54) and

that the Department had perpetrated a “hoax” to “jam me up” (Tr. 55).

When asked what witnesses he would be calling, he listed “Fire Commissioner, the Chief

of the Department, Chief of Operations, both the assistant, the deputy, the chief medical officer,

both current and former, and, and the EEO Commissioner, both current and former, as well as the

BHS Commissioner, both current and former” (Tr. 52-53). He insisted that these witnesses would

testify he was “knocking down their doors trying to find out why he was not being paid” (Tr. 53).

Notably respondent did not deny failing to appear for work during the charged period.

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None of these uncorroborated statements were credible and, even if true, would not have

excused respondent’s absence from work for over a year.

Based upon the undisputed proof, I find that respondent was absent without approval from

November 20, 2018, to December 9, 2019. Respondent’s absence of a year violated the basic

Department rule that firefighters must obey all orders and rules, including those involving

attendance. Department Regulation 25.1.1.

FINDINGS AND CONCLUSIONS

1. Specification 1 should be sustained in that respondent was absent without leave (“AWOL”) from November 20, 2018, to December 9, 2019, in violation of Department Regulation 25.1.1.

2. Specification 2 should be dismissed in that petitioner failed to prove that respondent failed to report for an appointment as ordered on September 21, 2019.

RECOMMENDATION

Upon making the above findings, I requested and received records regarding respondent’s

personnel history. He is 44 years old and was originally hired in 2000 as an emergency medical

technician. He was then appointed as a firefighter in 2004. He has no formal disciplinary record.

Certainly, respondent’s good 20-year work record provides grounds for mitigation of penalty.

Respondent’s records show several awards and recognitions. In 2007, respondent and 30

other employees received an award relating to diversity recruitment. In 2011 and 2013,

respondent, along with a large number of other firefighters, received three “pre-hospital save”

commendations, evidently for providing assistance to emergency callers needing assistance.

These, too, provide some grounds for mitigation.

While respondent insisted that he loved his job and career and resented having his integrity

challenged by being served with charges (Tr. 57), he offered no excuses or defense for his failure

to report to work for over a year. Respondent also displayed a desultory attitude toward

disciplinary proceedings, failing to appear for most of the trial. In fact, respondent’s records

indicate that he has also been absent without authority from September 30, 2019, through February

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10, 2020 (Pet. Ex. 3). This general refusal to recognize his obligation as an employee provided

ample grounds for a severe penalty.

Petitioner has requested that respondent be terminated for the charges based upon his

lengthy unexcused AWOL. Indeed, most employees found to have been absent without leave for

a year or more have been terminated. See, e.g., Admin. for Children’s Services v. Goldman, OATH

Index No. 681/07 (Dec. 13, 2006) (recommending termination for employee who was continuously

absent without leave for approximately one-year). Termination has been imposed even when the

employee has returned to work. See, e.g., Dep’t of Sanitation v. Wallace, OATH Index No. 887/00

(May 15, 2000), adopted, Comm’r Dec. (May 19, 2000), aff’d, 303 A.D.2d 295 (1st Dep’t 2003)

(AWOL for nine months). In a few instances, however, employees found to have been AWOL for

lengthy periods have received suspension penalties. In Department of Sanitation v. Anonymous,

OATH Index No. 181/11 (Dec. 9, 2010), an enforcement agent was absent without authorization

for a year, calling in sick but never requesting long-term leave or supplying documentation. The

reasons for her absence included her daughter’s attempted suicide and hospitalization for

psychiatric problems, her son’s prosecution and conviction of murder, and a subway accident

resulting in a knee injury. In light of her 17-year tenure, her lack of any prior discipline, and the

mitigating factors regarding her injuries and her children’s problems, the agent received a penalty

of 60 days instead of termination. See Admin. for Children’s Services v. Keyes, OATH Index Nos.

230/06 & 559/06 (Mar. 13, 2006) (two-month suspension for employee with prior disciplinary

record who was AWOL on 13 occasions and late for work 47 times).

Despite respondent’s 20 years of service, I find that the most appropriate penalty for a year

of being AWOL without excuse is termination and I so recommend.

John B. Spooner Administrative Law Judge December 3, 2020 SUBMITTED TO: DANIEL A. NIGRO Commissioner

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APPEARANCES: MATTHEW QUIGLEY, ESQ. Attorney for Petitioner ELROY DEANS Self-Represented