Dep t of Correction v. Harris

Transcription

1 Dep t of Correction v. Harris OATH Index No. 761/03 (Mar. 31, 2003), modified on penalty, NYC Civ Serv. Comm'n Item No. CD04-24-M (May 19, 2004). Summary: Respondent was responsible for the computer help desk on the overnight tour. Among her responsibilities was the monitoring of various programs. The Department alleges that she failed to make timely notification of the breakdown of an important program which notified victims and their families of the release of prisoners. ALJ finds that she did so but not for the amount of time alleged. ALJ had recommended, and petitioner imposed a thirty day suspension without pay. Civil Service Commission reduces penalty to a fifteen day suspension, noting in mitigation respondent's nineteen year tenure without prior discipline. RAY FLEISCHHACKER, Administrative Law Judge This disciplinary proceeding was referred for adjudication by the Department of Correction pursuant to section 75 of the Civil Service Law. A civilian Help Desk Operator, Lizzie Harris, is charged with five specifications of misconduct. The hearing, for the most part, revolved around the first specification which alleges that Ms. Harris failed to follow established protocol when she noticed that the Department s VINE system had failed for several hours. The hearing was conducted before me on February 26, Based upon the record, I recommend that the majority of the charges be sustained and that Ms. Harris be suspended without pay for thirty days. EVIDENCE Joel Schreibman is the Director of Systems Management for the Department. He is responsible for all of the computer systems located within the 60 Hudson Street computer room. At the time of the incident, he was a computer systems manager. Ms. Harris worked long shifts (thirteen hours) three nights a week at the Help Desk. On the date in question, Mr. Schreibman had been at the data center since the previous day or at least twenty-four hours. He may have taken one or two hours sleep a couple of times during the period. He first became aware of a problem at approximately 10:00 a.m. because there was a message up on a large screen that said, VINE problem. (Tr. 9-10, 25-26, 47-48). Mr. Schreibman explained that VINE stands for Victim Information and Notification Everyday. The program checks the inmate information system every fifteen minutes, extracting the names of inmates who have been recently discharged. That data is sent to a third party provider in Louisville, Kentucky, which is responsible for notifying interested victims and their families of the inmates release (Tr ). If the transmittal of the information does not occur, a message is generated. Policies and procedures are in effect for help desk workers when a transmission fails. At the time, if eight transmissions in a row were unsuccessful, which would occur over a period of two hours, since transmissions would be sent fifteen minutes apart, he was to be notified. He would then confer with more senior officials to decide whether Department facilities would be placed on a manual VINE system where they

2 would report inmate discharges directly to the third party provider. On January 14, when he checked the parameters, he found that there had been twenty unsuccessful transmissions, meaning there had been a problem for approximately five hours (Tr ). Sometime after 10:30 or 10:45, the senior officials, Assistant Commissioner ( AC ) Wax, Executive Director Waldmann and Leonard Nedzela were all present in the help desk area. AC Wax, who was the last to arrive, was very agitated and upset because of the severity of the problem. A loud shouting match between Mr. Wax and the respondent resulted. He wanted Ms. Harris removed from her position at the help desk (Tr ). Mr. Schreibman testified that it was the responsibility of anyone assigned to the help desk to monitor the messages displayed with regard to the VINE and other automated processes. VINE messages were not only displayed, but were accompanied by a bell and were recorded automatically in an operations log for future reference. The message would direct the person monitoring the system to contact VINE. Manual entries would also be made in the normal operations log and in the VINE error or audit log (Tr , 48). According to Mr. Schreibman, earlier on in the shift, Ms. Harris s co-worker, Ms. Hood, who worked until 6 or 7 that morning, complained that the respondent did not perform an equal amount of work because she took very long snooze breaks (Tr ). Mr. Schreibman testified that at the request of Messrs. Waldmann and Wax, he prepared a document in form, recalling to the best of his ability the sequence of events on January 14. The report is dated February 2 (Pet. Ex. 1). A second dated March 30, 2000 (Pet. Ex. 2) has an addenda to the original report in response to questions asked of him by AC Wax. He was asked if he had verified the claims made by Ms. Hood. Mr. Schreibman testified that when Ms. Hood made her complaint, he got up, walked by the area and observed Ms. Harris sleeping. She was reclined back in a chair, with her eyes closed and her coat up over her. He made no effort to see if she was actually awake, by shaking her or doing anything similar. He remained there somewhere between thirty seconds and three minutes (Tr , 46). Mr. Schreibman observed the respondent at work at approximately 7:30 a.m. His cubicle was separated by a partition from the help desk. He re-affirmed the statement in his report that he did not recall if anything was said to him at around 7:30 about the VINE system (Tr ). The witness was shown a document dated October 27, 1999 and entitled Help Desk and Operations VINE Error Procedures. He does not believe that document was in effect on January 14, A later document contained the procedures for facilities initiating a manual VINES. Mr. Schreibman was shown a document dated December 2, 1999, entitled Procedures for Manual VINE. That is not the document he is referring to. The witness was shown respondent Exhibit C and asked if that was the document he was referring to. He stated that it appeared to be a part of Respondent Exhibit B (Resp. Ex. A; Tr , 33-37). There is a document which states that if the VINE count went above a certain value, he was to be contacted first, not the company in Kentucky. Thereafter, the procedure set forth in Respondent Exhibit B was to be followed. Although he was supposed to be notified, he was in the office and no

3 one notified him. Mr. Schreibman was shown Respondent Exhibit D. He stated that this procedure, entitled VINE System Failure Procedures, was in effect at the same time that Respondent Exhibit A was and it remained in effect in conjunction with the other three procedures on January 14, 2000 and afterward. That is the document which states that he was to be notified (Tr ). Based on the parameter and the fifteen minute intervals, Mr. Schreibman was able to opine that problems with VINE began at approximately 5:00-5:15 on the morning of January 14. He believes that at the time, manual VINE would only be put into effect after four hours. The manual procedure could not be initiated by the help desk. He was to be notified so that he could initiate level one troubleshooting. He believes that the help desk was also to initially contact VINE in Kentucky (Tr ). Mr. Schreibman stated that he was unaware what breaks, if any, help desk personnel were entitled to (Tr ). He agreed that employees are entitled to do anything they wish on meal or other breaks. The only caveat was that both help desk operators could not take breaks at the same time (Tr ). Sigrid Taylor testified that she has been employed by the Department for approximately twenty years. She is a data assistant manager at the 60 Hudson Street MIS (Management Information Systems) data center. In January 2000, she was the data center manager and had ten employees under her supervision (Tr. 50, 66-67). As Ms. Taylor recalled it, the procedure at the time required the help desk operator to notify the technician at the help desk in Kentucky when the parameter reached four and to follow their instructions. If the situation was not rectified, when the parameter hit eight, the supervisor was to be notified so that a decision about going to manual VINE could be made. Ms. Taylor was shown Respondent Exhibits A through D. According to her, Exhibits A and B were in effect in January 2000, but Exhibit D had been superceded. Ms. Taylor recalled the parameter rose past 20 on January 14. Based on her review of documents, Ms. Harris notified VINE but did not notify the supervisor, Mr. Schreibman. She reported to work that day at 9:30 a.m. Mr. Schreibman normally reported to work at 7:00 a.m. Ms. Harris s direct supervisor, Ms. Hill reported at 9:00 a.m. At the time, the help desk was manned by two people at all times. This allowed for one person to step away. A Ms. Hood worked with Ms. Harris (Tr , 67-68, 70-72). Ms. Taylor was asked if the workload also justified having two people at the help desk. Ms. Taylor described the work but did not directly answer the question. She was unaware that Ms. Hood left at around 7:00 a.m. on January 14, leaving Ms. Harris alone (Tr ). Ms. Taylor was asked to review Petitioner Exhibits 3 through 6. She identified Exhibit 3 as the operations log generated by the system on January 14, The first entry about a VINE problem is dated 6:37:45. She identified Exhibit 4 as what was shown on the overhead monitor at the help desk. It showed that the parameter had reached twenty. The display was so large that anyone walking by could see a message. Every message was accompanied by an audible sound. Exhibit 5

4 is the audit log staff fills out when they have to notify the company in Kentucky. There is no entry for the time when the VINE problem began, and indeed, none until 19:35 when another VINE problem was reported after five parameters were reached. Ms. Taylor identified Exhibit 6 as a statement she was asked to write (Tr , 74). Ms. Taylor was asked to review Petitioner Exhibits 7 through 11. Petitioner Exhibit 7 is a time line of the incident which AC Wax asked her to prepare. Exhibit 8 is her recollection of the confrontation between AC Wax and Ms. Harris, as requested by Mr. Waldmann. The report makes reference to Mr. Wax s comment to Ms. Harris that this was the second incident in which her shift failed to follow proper procedure during VINE system failure. Exhibit 9 is a record of a corrective interview which Ms. Harris received when proper procedure was not followed on November 2-3, Ms. Taylor was asked about Mr. Harris s statement to AC Wax that the parameters rose up and then went back down. She called the statement untrue based upon the log documentation. Exhibits 10 and 11 were ruled inadmissible (Tr ). Ms. Taylor agreed that Mr. Wax s face was red and his voice was raised when he confronted Ms. Harris. They stood about two and one-half feet apart. Ms. Taylor was aware that the respondent had her daughter on the premises at the time. She did not recall Ms. Harris cursing. However, she termed the respondent s behavior as disrespectful because she was defensive in the light of the severity of what had transpired, the correctness of what AC Max stated and his position (Tr ). On January 14, 2000, when she learned of the problem from Mr. Schreibman, she called Kentucky and spoke with a technician, who stated that he was still working on the problem. She accepted as fact that Ms. Harris had already notified VINE (Tr ). Leonard Nedzela testified that he is the Director of Systems Management for MIS and that he held the same position in January He supervises programmers and system analysts, among other duties. Mr. Nedzela recalled an incident which occurred on January 14, At approximately 10:30, he was notified that the VINE system was down and had been for about four hours. Concerned, he went over to the help desk area to find out what was going on. One of the issues he had was whether, after two hours, manual VINE procedures had commenced. He learned that they had not (Tr , 85-86). Mr. Nedzela was told that Ms. Harris had been on duty at the help desk with another employee who had left earlier. Ms. Harris told him that she had been too busy to deal with the VINE problem. He expressed his disapproval. At about that time, Mr. Wax took over. Mr. Max and Ms. Harris had heated words. Mr. Wax spoke of the importance of the VINE system. He recalls Ms. Harris stating something like you ve always had it in for me. Mr. Nedzela identified Department Exhibit 12 as a memo about the incident which Mr. Waldmann asked him to prepare (Tr ). Susan Hill testified that she is assigned to MIS as the help desk manager and that that was her position in January She supervises the people assigned to the help desk. Ms. Hill stated that Ms. Harris had received training by her on VINE error procedures in October Ms. Harris and other staff were also provided with a pager number if they had difficulty reaching VINE staff in Kentucky. Ms. Hill was shown respondent Exhibits A through D. She stated that each addressed

5 a different item and that they built on each other (Pet. Exs. 13 and 14; Tr , 108). On January 14, she was involved with Mr. Nedzela and Ms. Taylor in trying to find out why the VINE system had reached a critical level. She learned that a problem had been picked up but not followed through on. Ms. Hood had left before the problem had reached a critical level. According to Ms. Hill, once an hour, the help desk operator must check the VINE parameter because at 5, an error message will be received, at 6 a supervisor must be notified and at 8, manual procedures should be implemented (Tr , 110). Ms. Hill testified that she overheard Ms. Harris say that she was told by Kentucky that everything was okay and that the parameter had jumped back to zero. If that had occurred, the parameter would not have continued to rise as it did. If any communication takes place with Kentucky it must be noted in the VINE log. Although Ms. Harris had placed a call, there was no entry made in the log. At approximately 10:40, a call was made to Kentucky and after a brief delay, the parameter returned to zero (Tr , 111). Ms. Hill recalled the exchange between AC Wax and Ms. Harris as loud, but not inappropriately loud. Mr. Wax had come storming out of his office. He was upset and then Ms. Harris became upset. Afterwards, AC Wax asked everyone to document exactly what they had heard. Her report of January 14 is part of a number of reports marked as Petitioner Exhibit 15. At the request of Mr. Wax, she had gathered the reports of the other staff (Tr , ). Ms. Hill confirmed that Ms. Harris had been involved in a similar VINE incident in November On January 15, Mr. Waldmann was trying to contact Ms. Harris by telephone. Ms. Hill provided him with a phone number she had. That turned out to be the house of Ms. Harris s sister. Mr. Waldmann was told that Ms. Harris would be given the message, but he was given no direct number for her. Mr. Wax s secretary had a different emergency contact number which must not have been useful since Ms. Hill was asked for a number (Tr ). Ms. Hill testified that she was aware that in or around January 2000, Ms. Harris s mother-in-law had a serious health problem. She was unaware of any arrangements the respondent made to regularly stay at her mother-in- law s house (Tr. 105). Ari Wax testified that in January 2000, he was the Assistant Commissioner in charge of the MIS and telecommunication systems of the Department. Ms. Harris was part of the MIS staff at the time. According to Mr. Wax, he was paged at approximately 10:00 a.m. on January 14, 2000, about a problem with the VINE system and he was advised that the system had been down for about five hours (Tr ). AC Wax testified that he was in a meeting at the time. He arrived in the help desk area at about 10:30. He asked Ms. Harris what was going on with the system. She reported that the parameter had gone back down to zero at approximately 8:30, which was an impossibility, given that the system showed a parameter of twenty. He next asked Ms. Harris why supervisors had not been informed that the system was down. Her response was that she was not the only person working the system. He asked why she did not make such a notification. One of her responses this time was, Well, I

6 don t know when to decide to go to manual procedures or not. He replied that that was exactly why a supervisor needed to be notified, and, indeed, that morning, Mr. Schreibman was present in the office and could have been told (Tr ). Mr. Wax testified that Ms. Harris became hostile during the course of their conversation and that their voices became raised. They stood a couple of feet apart. Two or three other people were present. Mr. Wax did not recall whether he had pointed his finger at Ms. Harris. He was not aware that her daughter was in the vicinity. Much of Ms. Harris s statements were not in explanation but were statements that he was picking on her, that she was not the only one, and that no one talks to me this way. He brought up that two month s earlier, she had failed to notify a supervisor when there had been a VINE system failure, and that she was placing people s lives at risk. As he left the area, he told Ms. Harris that he did not want her working in the area anymore (Tr ). Mr. Wax was shown Respondent Exhibits A through D. The 1997 procedure required that Mr. Schreibman be notified of a problem. The October 1999 procedure related to VINE system errors. The December 1999 procedure addressed notifications when the VINE system malfunctioned or broke down. Both Exhibits A and D were in effect in January 2000 (Tr ). The respondent, Lizzie Harris, testified that she has been employed by the Department since She held and still holds the title of Computer Associate - Operations. In January 2000, she was a help desk operator. She worked Tuesday, Wednesday and Thursday nights from 10:00 p.m. until 11:00 a.m. Someone worked with her on each shift. On Thursdays, it was Ms. Hood. Ms. Harris stated that her duties included monitoring the computer room, troubleshooting users out at various facilities, preparing letters which notified people of court dates and running some tape jobs (Tr ). According to Ms. Harris, she was allowed a one-hour lunch break and either two fifteen minute breaks or one thirty minute break. There were no restrictions on what she could do during a break, except she was not allowed to do anything on the Internet and she could not take a break if it would leave the help desk unattended (Tr ). Ms. Harris testified that she is familiar with the VINE system. On January 14, 2000, it was down for a couple of hours. She first discovered that at approximately 6:30-6:35 a.m. First she informed Ms. Hood and then she called a technician in Kentucky. She spoke with someone by the name of Don. She told him that they were receiving error messages that the system was down. He said that he would take a look at it. She held on for a few minutes, then he came back on and said, I don t see any problems. I don t know why you re getting that message. He stated that he would get back with me. (Tr ). Ms. Harris testified that she advised Ms. Hood as to what Don had said and she typed what he had told her into the computer. She did not make a log entry because Ms. Hood stated that she would. At approximately 8:00 a.m., Mr. Schreibman came over to the cubicle and saw there was a message about VINE. He asked if anyone had been contacted and she mentioned that Don in Kentucky had. He also asked why he had not been contacted. He did not ask her to do anything. Between the time she spoke with Don (6:35) until 8:00 a.m., she went into the computer room to take care of other

7 duties. This included taking a thousand or more letters off the printer and getting them ready for pick up, checking the temperature and looking at all the other jobs that were running. During that period, Ms. Hood was present in the cubicle outside the computer room. According to the respondent, Ms. Hood left between 7:00 and 7:30 a.m. (Tr , 138). Ms. Harris testified that between 8:00 and 8:30, she also had a conversation with Mr. Waldmann. He came over and asked if there was a problem with the VINE system and whether Mr. Schreibman knew about it. She answered both questions in the affirmative. He did not ask her to do anything at that time (Tr , 138). Between 8:30 and 10:00, she was explaining what had happened with VINE to several people. Between 8:30 and 9:00, she overheard a conversation about VINE which Mr. Schreibman was having with who she believed to be AC Wax. Before 9:00 a.m., Mr. Wax came into her cubicle and asked what had happened. She tried to explain, but he was very upset, his voice was loud and was accusing her of having done something wrong. They were standing less than a foot apart for five to ten minutes and during the whole time he was pointing his finger towards her face and saying, I want you out of here now. Her eighteen year old daughter was there so that the respondent could take her to a dentist appointment. Because, Mr. Max said he wanted her out of there, she left sometime before 10:00 a.m. Ms. Harris denied having told Mr. Wax that the parameters had reset to zero. In fact, she had not checked the parameters because she thought everything had been taken care of by her co-worker and because Don had told her several times that morning that he did not see anything wrong. She denied raising her voice; she did cry. Ms. Harris agreed that she told Mr. Wax that no one talked to her that way, referring to pointing a finger in her face. Mr. Wax replied that he could talk to her any way he wanted to (Tr , ). Ms. Harris denied that she was sleeping anytime during the January 14 shift (Tr. 125). She stated that in January 2000 her primary residence was in New Jersey, but on the days that she worked, she stayed over at her mother-in-laws and helped out in the evening after the home attendant left. Her mother-in-law was on dialysis and her father-in-law had heart problems (Tr. 128). Ms. Harris confirmed that she had been asked at work for a number where she could be reached. She gave the telephone number of her mother-in-law as well as her husband s beeper number. On January 15, sometime during the midday, someone tried to reach her at her mother-in-laws. Her mother-in-law called her husband on the beeper. She gave her mother-in-law a number and later Mr. Waldmann called her at that number. She was never asked for a number other than an emergency contact number (Tr , 135). Ms. Harris conceded that in light of the error messages which were still showing up, she should have notified DOC staff (Tr. 134). ANALYSIS Specification 1 alleges that Ms. Harris, on or about January 14, 2000, failed to efficiently perform

8 her duties in that she failed to follow established Departmental protocol when the VINE system failed for approximately five hours. The Department witnesses did not uniformly agree as to which of several protocols (marked Respondent Exhibits A through D) were in effect on January 14, My review of the documents leads me to agree with Ms. Hill and Mr. Wax who opined that all of the protocols were in effect. Exhibits A, B and D are co-existent and not contradictory. A involves what to do when a VINE error message appears (that would be after a parameter of 5 was reached), B concerns setting manual VINE in motion and D covers what to do if a VINE system failure has continued for two hours. Exhibit C is a partial duplication of B, and indicates that the protocol was posted in the log as well as ed to the help desk operators. Whatever confusion may have surrounded the four pronouncements regarding VINE procedures, Ms. Harris was put on notice after a similar occurrence in November 1999 that Mr. Schreibman was to be promptly notified if the VINE system was down for more than two hours (Pet. Ex. 9). The first VINE message appeared at 6:22 when the parameter reached 5. At 6:37, Ms. Harris called Kentucky (Pet. Ex. 7). If a parameter of 5 occurred at 6:22, then by 7:07 the parameter should have reached eight, by 8:07, 12, and by 8:30, 14. Clearly, Ms. Harris did not notify Mr. Schreibman or any other supervisor at around 7:07, so to that extent, she failed to perform her duties. In fact, in her testimony and in her conversation with Mr. Nedzela on January 14, she in effect conceded that she had ignored the VINE system for a substantial amount of time. The Department s evidence does not demonstrate by a clear preponderance of the credible evidence that Ms. Harris should be charged for the full four to five hour period that the system was down. Mr. Schreibman, in his report (Pet. Ex. 1), and in his testimony, did not rule out the possibility that he learned of the VINE problem as early as 7:30 a.m. Thus, the report states, I do not recall if anything was said to me regarding VINE or if I saw or enquired about the message that gets displayed when there are problems with VINE. Mr. Waldmann s report of February 2 (Resp. Ex. E) confirms that Mr. Schreibman did not give a definitive answer to Mr. Waldmann s inquiry about whether he had been informed about the VINE problem. Mr. Schreibman s inability to rule out that he knew of the VINE system problem well before 10:00 a.m., strongly suggests that he indeed did know earlier. What lends further credence to the scenario that Mr. Screibman knew of the problem earlier, is the unlikelihood that he discovered the problem at 10:00 a.m. Mr. Waldmann had been told by Ms. Harris as early as 8:30 a.m. If no action was taken before sometime after 10:00 a.m., then Messrs. Schreibman and Waldmann bore the responsibility. The charge should be conformed to the proof that Ms. Harris failed to follow established Departmental protocol when, after the VINE system had failed for two hours, she failed to notify Mr. Schreibman. Specification 2 alleges that Ms. Harris was observed sleeping on duty on January 14, There is something troubling about the documentary proof of this specification. Mr. Schreibman entirely omits mention in his report of February 2, that he observed Ms. Harris sleeping on the job

9 on January 14, although he mentions Ms. Hood s complaints about Ms. Harris. It makes sense that the sleeping incident would have been discussed in the report, not only to confirm Ms. Hood s complaint but to show that Ms. Harris was inattentive during the shift when the VINE incident occurred. However, it is not until March 30 (Pet. Ex. 2) that Mr. Schreibman commits his sleeping accusation to writing, at the request of AC Wax, and adds that this was not the first date I had observed Ms. Harris sleeping... While I have no doubt that Mr. Schreibman, at some time, found Ms. Harris to be asleep, the preponderance of the credible evidence does not support the allegation that Mr. Schreibman found the respondent asleep on January 14, Specification 2 should be dismissed. Specification 3 alleges that Ms. Harris submitted a false and misleading report pertaining to the facts outlines (sic) in specification number one. The report referred to was Ms. Harris s oral report to Mr. Wax that, at 8:30 a.m., the parameter had gone back down to zero. Not every supervisor precisely recalled the same false statement, but the differences were not significant. Ms. Harris was very unclear as to whether, and, if so, when she spoke with Kentucky after her initial call. As several Department witnesses testified, a claim that the parameter returned to zero or went up and down sometime before 10:00 a.m. is an impossibility based on the reports generated by the VINE system and by the fact that the parameter was observed to be at twenty before the problem was corrected and it returned to zero sometime after 10:30. I find that the Department has established Specification 3. Specification 4 alleges that Ms. Harris failed to have her correct phone number with her command as required. The testimony of each of the witnesses on this specification relied upon certain assumptions. Mr. Waldmann would be the best source since it was he who sought the telephone number. His report of February 2 (Resp. Ex. E) addresses the issue: On January 15 I phoned Ms. Harris at , the phone number listed on the MIS Emergency Contact sheet dated 12/27/99. That number was a wrong number; no other number other than her husband s beeper number is given. I then called Susan Hill to obtain a correct number. I was given the number , Ms. Harris s sister. I called that number and requested Ms. Harris s number. They would not give it to me, but told me they would have her call me. Ms. Harris then called me and, at my request, gave me her home phone number. The respondent does not dispute that the Department did not have her home telephone number. Her explanation for why she provided the telephone number of her mother-in-law was less than convincing. Department Rule provides that members of the Department shall have recorded with their command and the Personnel Division their correct residence address and telephone number. As explained at the hearing, that number is important if an employee needs to be contacted to substitute for an unavailable employee or for other legitimate work-related reasons. The circuitous route in which Ms. Harris s number had to be obtained is unacceptable.

10 I find that the Department has established Specification 4. Specification 5 alleges that Ms. Harris, on January 14, 2000, treated a supervisor with disrespect in both language and deportment when she was questioned about the performance of her duties. Not every disagreement with a supervisor is actionable as misconduct. It must be accompanied by profanity, threats or some form of insolence or conduct disruptive to the workplace. Admin. for Children's Services v. Martinez, OATH Index No. 1176/99 (July 30, 1999), aff'd, 281 A.D.2d 187, 721 N.Y.S.2d 235 (1st Dep't 2001). The agency has not shown anything that Ms. Harris did that would be considered misconduct. Having a disagreement, claiming that you are being picked on (Human Resources Admin. v. Bichai, OATH Index No. 211/90 (Nov. 21, 1989), aff d, NYC Civ. Serv. Comm n Item No (June 15, 1990)), not responding directly to or being defensive during what appears to have been a diatribe, are not actionable as disrespect. Mr. Waldmann s account (Pet. Ex. 8), which appears complete and unbiased, describes no behavior on the part of Ms. Harris which might be actionable (See also, the reports of Ms. Hill (Pet. Ex. 15) and Mr. Griffin ( there was no abusive language, threats or physical contact )). Nor was Ms. Harris responsible for the argument taking place in front of several other staff members or for its volume, factors which might otherwise have militated against her. AC Wax is the one who chose a public venue to begin loudly berating the respondent. As Ms. Hill described it, Mr. Wax had come storming out of his office. Ms. Taylor stated that he approached Ms. Harris red-faced with voice raised. If the respondent actually had been directed to but failed to answer specific questions or gave evasive answers, then she should have been so charged. To the extent her responses were false, that has already been dealt with in Specification 3. I recommend that this specification be dismissed. FINDINGS and CONCLUSIONS 1. The respondent, Lizzie Harris, on January 14, 2000, failed to efficiently perform her duties in that she failed to alert Mr. Schreibman after the VINE system had failed for two hours. 2. The Department has failed to establish by a fair prepon-derance of the credible evidence that Ms. Harris was sleeping on duty on January 14, Ms. Harris gave a false and misleading oral report to Assistant Commissioner Wax when asked about the failure of the VINE system. 4. Ms. Harris, on January 15, 2000, failed to have recorded her correct phone number with her command, as required. 5. The Department failed to prove by a fair preponderance of the credible evidence that Ms. Harris treated AC Wax with disrespect on January 14, 2000.

11 THEREFORE: I find that petitioner has established Specifications 1, 3 and 4, and has failed to establish Specifications 2 and 5. RECOMMENDATION Upon making the above findings, I obtained and reviewed an abstract of the respondent s personnel file. Lizzie Harris was first employed by the Department in She has had no prior disciplinary adjudications. Her attendance record is, at best, satisfactory. In this case, Ms. Harris has been found to have neglected to timely report the failure of a crucial Department system, which potentially risked the safety of crime victims and their families. Such conduct occurred despite the fact that Ms. Harris had been called to task for a similar lapse just two months earlier. She compounded her misconduct by providing false information concerning her negligence. The agency advocate asked for the recommendation of a sixty-day suspension (Tr. 151). Given the fact that the Department did not prove a considerable part of its charges, given Ms. Harris s unblemished record over nineteen years, and considering the doctrine of progressive discipline, I recommend, without consideration of any pre-hearing suspension, a thirty-day suspension without pay as a more appropriate penalty. P R E S E N T : RAY FLEISCHHACKER, Administrative Law Judge T O : MARTIN F. HORN, Commissioner A P P E A R A N C E S : MARTHA-IBIS HERNANDEZ, Attorney for Petitioner JAMES A. BROWN, Attorney for Respondent Civil Service Commission's Decision, May 19, 2004 STANLEY K. SCHLEIN, Chairman/Commissioner STATEMENT On Thursday, December 18, 2003, the City Civil Service Commission heard oral argument in the appeal of LIZZIE HARRIS, Help Desk Operator, New York City Department of Correction, from a determination by the New York City Department of Correction, finding her guilty of charges of misconduct and imposing a penalty of a 30 DAY SUSPENSION following an administrative hearing conducted pursuant to Civil Service Law Section 75.

12 COMMISSIONERS' FINDINGS: LIZZIE HARRIS appeals from a determination of the New York City Department of Correction finding her guilty of incompetency or misconduct and imposing a penalty of a 30-day suspension following disciplinary proceedings conducted pursuant to Civil Service Law Section 75. The Commission conducted a hearing on December 18, Appellant was charged with (1) failing to efficiently perform her duties in that she failed to follow established Department Protocol when the V.I.N.E. (Victim Information and Notification Everyday ) system failed for five hours; (2) failed to efficiently perform her duties and exhibited conduct unbecoming a member of the Department in that she was observed sleeping on duty; (3) submitted a false and misleading report pertaining to the facts outlined in Charge 1; (4) failed to efficiently perform her duties in that she failed to have recorded her correct phone number with her command as required; (5) engaged in conduct unbecoming a member of the department and of a nature to bring discredit upon the department in that she treated a supervisor with disrespect in both language and deportment when she was questioned about the performance of her duties. Appellant was found not guilty of charges 2 and 5. We note that the Administrative Law Judge (ALJ) amended charge 1 to the evidence presented and that appellant was found guilty of failing to efficiently perform her duties in that she failed to alert Mr. Schriebman after the VINE system had failed for two hours. The Commission has carefully reviewed the record adduced below and considered the arguments on appeal. We note that in relation to charge 1 appellant acknowledged that she failed to notify Mr. Schriebman that the system had failed for two hours. However, we note that the testimony of Mr Schriebman stated that he was not aware of the system failure until after five hours. Moreover, the ALJ found through the testimony of DOC's witnesses that Mr. Schriebman had seen the error message after the two-hour period but prior to the three hour time period, which was not at the critical time to switch to manual notification. In addition, DOC showed that appellant had been informed prior to January 2000 that Mr. Schriebman should have been notify immediately at the two hour mark and that she failed to do so. We find appellant guilty of the amended charge 1, and charges 3 and 4. However, we believe that there are mitigating circumstances. We note that appellant has been with the DOC since 1984 without any previous disciplinary actions. Considering the circumstances, together with appellant's 19-year work history, the Commission finds the penalty to be excessive. Therefore, the Commission hereby modifies the determination of DOC to a suspension of 15 workdays without pay. Appellant is to be reimbursed for the excess 15 days suspension she served within 45 days from the date of this determination. STANLEY K. SCHLEIN, Chairman/Commissioner, Civil Service Commission DAVID S. LANDE, Vice Chairman/Commissioner, Civil Service Commission NICHOLAS LAPORTE, Commissioner, Civil Service Commission RUDY WASHINGTON, Commissioner, Civil Service Commission