Taxi & Limousine Comm n v. Kowal OATH Index No. 1614/10 (Mar. 16, 2010), aff d, NYC Civ. Serv. Comm n Item No. CD A (May 4, 2011), appended

Transcription

1 Taxi & Limousine Comm n v. Kowal OATH Index No. 1614/10 (Mar. 16, 2010), aff d, NYC Civ. Serv. Comm n Item No. CD A (May 4, 2011), appended Inspector unnecessarily engaged an irate taxi driver and failed to make appropriate supervisory notifications including issuing a criminal court summons without prior approval. ALJ recommended that respondent be suspended for 10 work days. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of TAXI AND LIMOUSINE COMMISSION Petitioner - against - TOMASZ KOWAL Respondent REPORT AND RECOMMENDATION ALESSANDRA F. ZORGNIOTTI, Administrative Law Judge This employee disciplinary proceeding was referred by the Taxi and Limousine Commission ( TLC ) pursuant to section 75 of the Civil Service Law. Tomasz Kowal, an inspector, is charged with unnecessarily engaging a taxi driver who was visibly irate and failing to make proper supervisory notifications, including issuing a criminal summons without prior approval. Petitioner claims that due to respondent s misconduct and incompetence, a physical confrontation ensued (ALJ Ex. 1). A hearing was conducted on February 11, Petitioner presented four TLC witnesses and documentary evidence. Respondent testified on his own behalf and denied the charges. I find that respondent engaged in misconduct as charged and recommend that he be suspended for 10 work days. BACKGROUND Since 2003 respondent has been an inspector for TLC. Inspectors are peace officers in TLC s Uniformed Enforcement Division. They do not carry a firearm but have a baton and a

2 -2- radio which they are trained to use (Tr. 31). When not working undercover, inspectors wear dark blue police-like uniforms. An inspector s primary duty is to enforce TLC s rules, the Vehicle and Traffic Law, and the Penal Law. An inspector can make arrests and write summonses (Tr , 180). Inspectors work in pairs (Tr. 31) with one assigned as the operator of the patrol vehicle and the other as the reporter. Inspectors are supervised by lieutenants and captains in the field (Tr. 41). There is no patrol guide or written rules setting forth how inspectors should perform their duties (Tr. 5, 68-69). The Deputy Commissioner of Enforcement, Pansy Mullings, testified that TLC provides new inspectors with a 10 to 12 week training course which covers basic rules including how to make arrests and car stops (Tr. 29). Captain Lorenzi, who has been training inspectors since 1998 and prepared some of the instruction materials, testified that the training also includes the rules and regulations of the industry and TLC s code of conduct (Tr , ). Respondent denied that he was given a 10-week training course. He testified that his training lasted five days and covered street hails, how to write a TLC summons, and how to tow a vehicle (Tr ). Deputy Commissioner Mullings testified that inspectors are also given the Goodman training which involves verbal judo on how to deescalate a confrontation through words and gestures (Tr. 31, 34). The training also covers information on the laws relating to arrests and was introduced following the high profile arrest of a famous newscaster in Specifically, inspectors are trained to call a supervisor over the radio whenever they think something may be happening or when they want to make an arrest (Tr ). The rule to call a supervisor is not written in the training manual but is a common sense rule which the TLC drums into the inspectors heads (Tr. 33). Deputy Commissioner Mullings and Captain Lorenzi testified that because drivers often get irate when getting a TLC summons, inspectors are trained to ignore the driver, to issue the summons, and move on. If necessary the inspector should try to calm the driver down using verbal judo or have his partner speak to the driver. Licensees often calm down when more than one inspector is present. Inspectors are also instructed to call a supervisor or leave the area when they think that the situation is going to escalate beyond angry words (Tr , 73, , 159). Inspectors are told that they can mail an irate licensee a failure to comply summons (TLC s version of a criminal disorderly conduct summons) after the incident

3 -3- because TLC has the licensee s contact information. Moreover, the inspector can refer the case to a TLC attorney who can bring the licensee before TLC s tribunal to determine fitness to be a licensee (Tr. 36, 42-44). Respondent acknowledged having the Goodman training but claimed that it did not cover disorderly conduct versus TLC summons (Tr. 183). Deputy Commissioner Mullings and Captain Lorenzi testified that inspectors are also told regularly at roll call how inspectors should perform their duties because TLC s primary concern is the safety of the inspectors and the licensees. Deputy Commissioner Mullings testified that she is a hands-on-manager and spends a lot of time working with staff at roll call. She tells officers that it is better to let an angry driver go than risk a confrontation because the licensee can always be contacted by TLC for further action (Tr , 35, 39-42, 73, 84). Deputy Commissioner Mullings testified that she has instructed inspectors at roll call and at training that a criminal summons can be issued when the driver is going to be arrested but that before doing so a supervisor must be informed and must authorize the summons (Tr , 63-64, ). Inspectors are also told that a criminal summons is not TLC s first option because criminal courts have more serious crimes to worry about and the summons requires that an inspector devote a considerable amount of time in court which could be better spent issuing TLC summonses. Because a criminal summons must be personally served, if one is warranted and the driver is irate, it is possible to call the driver into TLC after the incident and serve him there (Tr. 32, 45-47, 61-63). According to Captain Pagan, roll call is done at the start of each tour and in addition to giving assignments, officers are given a pep talk and various TLC rules are reviewed. Captain Pagan testified that he has addressed roll calls where respondent was present and discussed various safety issues including walking away from irate drivers who have been given a summons, mailing them a TLC summons, and calling for back-up when drivers get violent or out of control (Tr , ). Respondent admitted that he was instructed at roll call about the duty to notify a supervisor if he cannot control the situation with a driver but claimed that it is the reporter s job to make the call (Tr ). In addition to the training sessions and roll call instruction, Deputy Commissioner Mullings testified that respondent received counseling following an incident in 2006 where he approached a for-hire-vehicle driver who was parked illegally and was standing outside his

4 -4- vehicle. Respondent issued the driver a TLC summons and than asked for his credentials. Respondent got into a scuffle with the driver and was injured. According to Deputy Commissioner Mullings, immediately following the incident she spoke to respondent in the hallway and told him that it was unnecessary to ask the licensee for credentials after a summons had been issued because TLC had the necessary information to mail a second summons to the driver. Deputy Commissioner Mullings also told respondent that she thought he was being overzealous and that while he may have a belief that people need to respect his badge there was no reason for him to engage in further conversation and that he should have walked away because the TLC summons had been issued. When this incident occurred Deputy Commissioner Mullings learned that it was common practice at TLC to ask for credentials and it generated discussions with the entire Uniformed Enforcement Division that there is no need to do so once a TLC summons has been issued. Respondent was present for the group discussions (Tr , 75-77, 88, ). As a result of this incident respondent was also given a Conduct Conference Memorandum from the Chief Supervising Officer on June 21, 2006 (Pet. Ex. 2), which provided: You are in violation of the General Conduct Rule #3 & 23 of the Employee Code of Conduct. On Friday, June 9, 2006 you were involved in a confrontation at 95th Street and Ditmas Avenue which resulted in injuries to you and your partner (Sasso). After conducting enforcement (issued a summons) on a for hire vehicle, instead of departing, you chose to become involved in a argument with the driver that resulted in the injuries mentioned earlier. You failed to follow established guidelines as it pertains to uncooperative drivers, car stops, and Supervisory [sic] notification. This observation shows that you created a situation that was preventable. Respondent denied that he was ever counseled by Deputy Commissioner Mullings regarding this incident, his conduct in general, when to call a supervisor, or when to ask a driver for his credentials. Respondent also testified that no one ever spoke to him about the guidelines referred to in the Conduct Conference Memorandum. He claimed that he signed the memo under protest because he was not allowed to read it (Tr , 223; Pet. Ex. 1).

5 -5- The facts underlying the charges are not in dispute; petitioner accepted respondent s version (Tr. 260). On February 9, 2009, respondent was assigned to uniform patrol in Manhattan. Respondent was the operator and his partner was the recorder. At approximately 12:50 a.m., respondent stopped a male taxi driver on 42 nd Street and 8 th Avenue for picking up a passenger while the driver s off-duty light was on. The driver complied with respondent s request to pull over and produce his license and TLC documents. Respondent served the driver with a TLC summons for misuse of off duty which carries a $25.00 fine and two points on his hack license (Tr. 187, 204-5; Pet. Ex. 1). The driver was angry and cursed and screamed about the summons. Respondent told him to leave (Tr. 188; Pet. Ex. 4). Instead, the driver, who is approximately 6 2 and weighs 295 pounds, got out of the taxi and got into [respondent s] face (Tr , 189; Pet. Ex. 1). The driver returned to his taxi, got in, then got back out, and then reentered the cab; he was screaming and cursing the entire time. Respondent told the driver several times to leave but he continued to curse and scream at respondent. A crowd of bystanders gathered (Tr. 189, 205-6). Respondent decided to serve the driver with a criminal summons for disorderly conduct (Tr. 189). Respondent asked the driver again for his license. The driver refused to produce his license, opened the cab door hitting respondent in the knee, got out, and screamed at respondent. Respondent stated that the driver intentionally assaulted him with the door (Tr ; Pet Ex. 4). At this point respondent determined that the driver should be arrested. When the driver got back in the cab and respondent lost sight of the driver s hands, respondent yanked him out of the taxi (Pet. Ex. 4; Tr , ). The driver resisted and a struggle ensued. The driver overpowered respondent and pushed him several times against a barricade (Tr ). Respondent s partner called for back-up and assisted respondent. The driver was subdued and handcuffed by respondent (Tr. 171, 193; Pet. Exs. 1, 3). Captain Pagan, TLC personnel, and the police responded. The driver was arrested by TLC and processed at the police precinct (Tr ). The driver was subsequently admitted to the hospital because he complained of high blood pressure. TLC inspectors were assigned to guard the driver until his release on February 14, 2009 (Tr. 110). The driver was charged criminally with assault, resisting arrest, and disorderly conduct (Pet. Ex. 1) but the case was not

6 -6- prosecuted (Tr. 7). The driver has filed a federal action against respondent and his partner which the City of New York is defending (Pet. Exs. 4, 7). Respondent s hand, back, and neck were injured during the struggle and he was out of work for almost one year. Respondent s partner was also injured and was out for one month (Tr. 51, 194; Pet. 1). Respondent s partner prepared a written summary on the day of the incident but respondent was unable to do the same due to his injuries. On July 9, 2009, petitioner s counsel interviewed both inspectors about the incident (Pet. Ex. 4, 7). 1 When asked why he issued the driver a criminal summons rather than a TLC summons, respondent stated that he did so because he thought the driver was a tough guy and he wanted the driver to explain himself in criminal court (Tr. 211; Pet. Ex. 4). Respondent repeatedly expressed disdain for joke tribunals that do not do justice and claimed that the criminal court was better. Specifically, respondent stated that the TLC tribunal often favors drivers and views inspectors as the criminals whereas the criminal court is stricter and provides better correction for drivers who are disrespectful to the uniform. Respondent also claimed that a criminal summons is easier to write than a TLC summons which requires that the inspector complete a long narrative (Tr. 194; Pet. Ex. 4). When asked why he did not walk away from the irate driver, respondent stated that it is not his job to walk away when a driver is disrespectful, that is not why he was sworn in to be a peace officer (Pet. Ex. 4). ANALYSIS Respondent is charged with incompetence and misconduct, specifically, unnecessarily engaging a taxi driver who was visibly irate at being issued a TLC summons and with failing to make appropriate supervisory notifications in violation of TLC s Code of Conduct rules 3 and 49 (ALJ Ex. 2). Rule 3 states that, Employees shall obey and not violate any rule, code, internal regulation or order of the TLC. Rule 49 states that, Employees shall perform their duties in a 1 In the future petitioner should consider providing transcripts of taped interviews so that they can be used as an aid to the tribunal.

7 -7- competent manner. 2 Petitioner alleged that respondent violated the following unwritten rules: (1) failing to withdraw or retreat from a confrontation with a driver; (2) failing to call a supervisor when dealing with a driver who is getting out of hand ; (3) failing to prefer a TLC summons over a criminal court summons; and (4) failing to call a supervisor before issuing a criminal summons (Tr. 250). In a disciplinary proceeding petitioner has the burden of proving its case by a fair preponderance of the credible evidence. Dep t of Correction v. Hall, OATH Index No. 400/08 at 2 (Oct. 18, 2007), aff d, NYC Civ. Serv. Comm n Item No. CDO8-33-SA (May 30, 2008). Incompetence is defined as either the inability to perform one s job or the persistent unwillingness or failure to do the work. Law Dep t v. Stanley, OATH Index No. 1540/05, at 4 (June 15, 2005), aff d, NYC Civ. Serv. Comm n Item No. CD SA (Jan. 9, 2006). Charges of incompetence involve an agency s complaints about an employee s general performance over a period of time, and are supported by overall assessments. A determination of incompetence is judged by an objective standard; petitioner must prove that respondent is unable to meet the minimally acceptable threshold requirements of the duties of his title. Employers Retirement System v. Myrick, OATH Index No. 505/95 at 20 (Apr. 11, 1995). Here, petitioner failed to demonstrate that respondent is unable or unwilling to perform his job as an inspector. Except for a prior isolated incident in 2006, there is no evidence that respondent s overall performance over a period of time was insufficient. Indeed, Captain Pagan testified that respondent is a conscientious officer who works hard and that he has not had prior problems with respondent (Tr. 137, 142). Thus, respondent s actions should be analyzed under the framework of misconduct, not incompetence. Cf. Transit Auth. v. Wong, OATH Index No. 1866/08 at 11 (Aug. 28, 2008) (respondent s inability to comprehend the nature of his work was indicative of incompetence, not misconduct). In order to sanction a civil service employee for misconduct, there must be some showing of fault on the employee s part, either that he acted intentionally or negligently. Dep t of Sanitation v. Banton, OATH Index No. 336/07 at 3 (Dec. 1, 2006). Employees may only be disciplined for rule violations that they have notice of. Dep t of Sanitation v. Shinnick, OATH 2 Rule 23 of TLC s Code of Conduct states, Employees shall not conduct themselves in a manner prejudicial to good order and discipline (ALJ Ex. 2).

8 -8- Index No. 1466/07 at 3 (June 29, 2007); see also Transit Auth. v. Ondeje, OATH Index No. 1339/04 (Dec. 30, 2004) (receipt of from political group, though non-business related, was not misconduct as it was not prohibited by petitioner s policy); Dep t of Correction v. Brooks, OATH Index No. 690/95 (Jan. 24, 1995) (where rule is vague, notice not given). Where an officer exercises reasonable and prudent judgment under the circumstances, no misconduct is found. Dep t of Correction v. Allen, OATH Index Nos. 510/04 & 624/04 (Oct. 13, 2004); Dep t of Correction v. Nickless, OATH Index No. 1658/95 (Dec. 4, 1995); see also Dep t of Correction v. Messina, OATH Index No. 738/92 at (July 9, 1992) (officer cannot be penalized for a discretionary act simply because his exercise in judgment, in hindsight, turned out to be mistaken; the issue is whether, at the time, respondent acted reasonably). In evaluating the reasonableness of an officer s judgment, due deference must be given to his experience, knowledge of the persons involved, and assessment of the situation as it unfolded before him. Dep t of Correction v. Rivera, OATH Index No. 1249/96 at (Oct. 4, 1996). Thus, determination of the charges turns on whether respondent had notice of TLC s policies regarding car stops, uncooperative drivers, and supervisory notifications and whether he exercised reasonable judgment under the circumstances. Petitioner argued that based on the orientation training, the Goodman training, the training at daily roll call, the 2006 conference memo, and his five years on the job, respondent was on notice of TLC s unwritten rules. Respondent claimed that he was not on notice of the rules and that he should not be penalized for exercising his judgment in a situation that escalated quickly. To the extent resolution of these questions calls for a credibility determination this tribunal has considered witness demeanor, consistency of a witness testimony, supporting or corroborating evidence, witness motivation, bias or prejudice, and the degree to which a witness testimony comports with common sense and human experience. Dep t of Sanitation v. Menzies, OATH Index No. 678/98, at 2-3 (Feb. 4, 1998), aff d, NYC Civ. Serv. Comm n Item No. CD A (Sept. 9, 1998). Despite weaknesses in petitioner s proof, the totality of the record supports a finding that respondent knowingly engaged in misconduct. As a preliminary matter I find petitioner s proof regarding respondent s basic training to be deficient. Petitioner failed to provide evidence, such as sign-in sheets, showing that respondent actually attended the 10-week training given to new inspectors. Neither Deputy

9 -9- Commissioner Mullings nor Captain Lorenzi was working at TLC when respondent was hired and neither knew specifics about respondent s training. Their belief that the standard training was in effect in 2003 (Mullings: Tr. 67; Lorenzi: ) was insufficient to establish that respondent received it. Despite repeated requests by this tribunal for specificity about what training respondent actually received, none was given. Remarkably, the training manuals that Deputy Commissioner Mullings asserted were comparable to a patrol guide and contained some of the disputed rules (Tr. 32), were never produced. Thus, petitioner did not establish by a preponderance of the credible evidence that respondent was on notice of the rules regarding car stops, irate drivers, and supervisory notifications because of his orientation training. On the other hand, I find suspect respondent s claim that his five-day training only covered street hails, how to write a TLC summons, and how to tow a vehicle. Respondent testified that he had a safety concern when he lost sight of the driver s hands during the incident because, I was always told in training, make sure you know where his hands are (Tr ). Moreover, when respondent denied that he was given training about criminal court summonses (Tr. 194), he gave confusing testimony that according to the training manual it is the reporter s responsibility to call Central after a criminal summons is issued so that it can be logged in and a supervisor can collect it (Tr ). Petitioner s proof that respondent was on notice of the rules because they were regularly discussed at roll call was also equivocal. I credit the testimony of petitioner s witnesses that inspectors are told at roll call that they can issue a criminal summons for disorderly conduct but that a supervisor must authorize the summons, that safety is a primary concern and that inspectors should walk away from irate drivers, mail them a summons, or call for back-up (Tr , 40, 47, 64, 73, 84, 130, , 137). However, in his report following the incident Captain Pagan stated: Clearly we need to remind the officers not to engage irate drivers but just walk away and mail the summonses to avoid any assaults in the future (Pet. Ex. 5). Here, the proof leaves open the question whether respondent was present at roll call when these topics were discussed and whether the material was effectively presented. On the other hand respondent admitted that he was told at roll call about the duty to notify a supervisor if he cannot control the situation. However, he claimed that it is the duty of the reporter to call for back-up and to notify TLC once a criminal summons has been issued (Tr.

10 , ). I found this assertion to be a transparent attempt to shift his obligation to make supervisory notifications to his partner. All inspectors wear radios with an emergency button to call a supervisor (Tr ). It makes no sense that an officer in danger of an assault would wait for his partner to call a supervisor merely because he is the operator of the patrol vehicle. Similarly, if the operator is the officer who decides to issue a criminal summons, it is illogical to expect his partner to notify the supervisor solely because he is the reporter. I find petitioner s proof that respondent was on notice of the rules because of the Goodman training to be compelling. Even though the training manual was not produced, I credit the testimony of Deputy Commissioner Mullings that inspectors are told to ignore irate drivers, issue the TLC summons, and move on. I further credit her testimony that inspectors are trained, if necessary, to calm an irate driver down using verbal judo or to have their partner speak to the driver because drivers often back down when there is more than one officer present. I further credit her claim that inspectors, who do not carry guns, are instructed to call a supervisor or leave the area when they think the situation is going to escalate beyond angry words and that they can mail a disorderly licensee a failure to comply summons because TLC has the licensee s contact information. Given that an arrest involves a significant time commitment by the arresting officer and the Goodman training was instituted in response to a high profile arrest, I find respondent s assertion that the training did not cover the issuance of criminal summons incredible. Moreover, his assertion does not negate that respondent was trained to deescalate a confrontation and that he was instructed to walk away or call a supervisor when the situation escalates. Also compelling on the question of notice was the memo given to respondent following a prior incident that is similar to the instant case. In 2006 petitioner alleged that respondent unnecessarily asked a driver for his credentials after issuing a TLC summons and that, rather than leaving the scene, respondent became involved in a confrontation with the driver which resulted in injuries. As a result respondent was given a Conduct Conference Memorandum advising that he failed to follow established guidelines pertaining to uncooperative drivers, car stops, and supervisory notifications, thereby, creating a situation that was preventable. Even though the memo does not explicitly define the rules alleged to have been violated, I credit the testimony of Deputy Commissioner Mullings that she instructed respondent individually and in a group that it is unnecessary to ask a licensee for credentials after a summons has been issued

11 -11- because TLC can mail the second summons and that it is better to walk away than to get into an argument with an irate driver. Respondent s claims that no one ever spoke to him about guidelines pertaining to uncooperative drivers, car stops, and supervisory notifications as they related to the 2006 incident and that he was not allowed to read the memo were not credible. Viewing the record as a whole, I find that respondent was on notice of TLC s unwritten rules regarding car stops, irate drivers, and supervisory notifications and that he intentionally failed to follow these rules. To the extent respondent had some leeway to exercise discretion and the situation with the driver escalated quickly, I conclude that respondent failed to exercise reasonable judgment and that he allowed his personal opinions and emotions to interfere with proper procedures. The absence of written procedures does not release respondent from his obligation to exercise good judgment in the performance of his duties. Health & Hospitals Corp. (Harlem Hospital Center) v. Nesbitt, OATH Index No. 676/04 at 9 (June 2, 2004); see also Human Resources Admin. v. Bellamy, OATH Index No. 1665/03 (Jan. 9, 2004), aff d, NYC Civ. Serv. Comm n item No. CD SA (Feb. 9, 2007) (employers are entitled to expect their employees to exercise at least a modicum of judgment in the performance of their duties); Police Dep t v. Massas, OATH Index No. 745/91 at 4 (May 22, 1991) (same). Respondent admitted that initially the taxi driver cooperated and that he was able to issue the TLC summons which formed the basis for the stop without incident. It was undisputed that licensees routinely get upset about fines and points and that it was not surprising the driver got angry about this summons. Rather than walk away after issuing the summons, respondent engaged the visibly irate driver in an argument. It was apparent from his interview that respondent did so because he believed it was his duty to confront a disrespectful driver who had challenged his authority. After a crowd gathered and the driver refused to leave the scene, rather than serve the driver by mail with a TLC summons or call his partner or a supervisor to calm the driver down, respondent decided to issue a criminal court summons on the spot. In his interview respondent admitted that he made this decision because he believed a criminal summons was easier to write than a TLC summons and the criminal court would be more effective than TLC at dealing with the driver. Although an inspector is not obligated to call a supervisor every time he is confronted by an irate driver, once respondent decided to issue the criminal court summons and arrest the driver the situation escalated beyond a routine situation which warranted a

12 -12- supervisory notification. Following this decision, respondent yanked the irate driver, who outweighed him, out of the vehicle. Not surprisingly a physical confrontation ensued. It was not until respondent was overpowered by the driver that a supervisor was finally called, and this was done by respondent s partner. Under the circumstances, I find that respondent s actions were not in compliance with TLC s rules regarding car stops, irate drivers, and supervisory notifications. Accordingly, the charge should be sustained. FINDINGS AND CONCLUSIONS Petitioner demonstrated that on February 9, 2009, respondent unnecessarily engaged an irate taxi driver and failed to make appropriate supervisor notifications including issuing a criminal court summons without prior approval in violation of TLC s rules. RECOMMENDATION Upon making these findings, I obtained and reviewed an abstract of respondent s work history for purposes of recommending an appropriate penalty. Respondent was appointed to TLC on April 13, Respondent has a minor disciplinary record. On March 13, 2007, respondent accepted a two-day penalty for failure to use reasonable care with a TLC vehicle and with failing to safeguard agency property. Respondent s evaluations in 2003 and 2007 were good and his evaluation in 2004 was conditional. The Department Advocate seeks a penalty of a two week suspension, or 10 work days (Tr. 263). I agree that this request is reasonable. Here, respondent has been found to have unnecessarily engaged an irate taxi driver and failed to make appropriate supervisor notifications in violation of TLC s rules. Penalties for failing to adequately perform one s duties have ranged in suspensions from 10 to 60 days. See e.g., Human Resources Admin. v. Green, OATH Index No. 1231/05 (June 21, 2005) (45-day suspension for eligibility specialist who improperly turned away applicant for emergency benefits); Nesbitt, OATH 676/04 (10-day suspension for special officer who failed to challenge visitors who passed his post and was insubordinate and disrespectful toward hospital administrator); Bellamy, OATH No. 1665/03 (60-day suspension imposed upon eligibility specialist who negligently failed to provide assistance to homeless client and his two children);

13 -13- Police Dep t v. Negron, OATH Index No. 466/93 (Mar. 31, 1993) (30-day suspension for officer who wrongfully used force and wrongfully arrested someone for disorderly conduct). It is a well-established principle in employment law that employees should have the benefit of progressive discipline wherever appropriate, to ensure that they have the opportunity to be apprised of the seriousness with which their employer views their misconduct and to give them a chance to correct it. Dep t of Transportation v. Jackson, OATH Index No. 299/90 at 13 (Feb. 6, 1990). The theory of progressive discipline is to modify employee behavior through increasing penalties for repeated same or similar misconduct. Police Dep t v. Schaefer & McGrath, OATH Index Nos. 1114/99 & 1169/99 (July 2, 1999), aff d, sub nom. Schaefer v. Safir, 281 A.D.2d 163 (1st Dep t 2001). A fair penalty must take into account the particular circumstances of the incident and individual mitigating factors, as appropriate. Admin. for Children s Services v. Goodman, OATH Index Nos. 986/05 and 1082/05 (Aug. 12, 2005) (respondent s lack of a prior disciplinary record is a mitigating factor). Respondent is a member of a paramilitary organization where following the rules and the chain of command is vital to the safe and efficient operation of its mission. It is evident that respondent thinks he knows better than his employer how to deal with irate drivers and that he intentionally failed to follow TLC s rules. Under the circumstances a stern penalty is warranted to remind respondent that such conduct can not be tolerated. Considering all of the circumstances, the requested penalty is not so disproportionate to the sustained misconduct as to be shocking to one s sense of fairness. Pell v. Board of Education, 34 N.Y.2d 222 (1974). Accordingly, I recommend that respondent be suspended for 10 work days. March 16, 2010 Alessandra F. Zorgniotti Administrative Law Judge SUBMITTED TO: MATTHEW W. DAUS Commissioner

14 -14- APPEARANCES: DAVID NIDA, ESQ. Attorney for Petitioner DAVID MCGRUDER, ESQ. Attorney for Respondent

15 -15- THE CITY OF NEW YORK CITY CIVIL SERVICE COMMISSION X IN THE MATTER OF THE APPEAL OF: TOMASZ KOWAL DATE: 5/4/11 Appellant: -against- : ITEM NO. CD A NYC TAXI & LIMOUSINE COMMISSION Respondent: Pursuant to Section 76 of the New York State Civil Service Law X PRESENT: NANCY G. CHAFFETZ, COMMISSIONER ACTING CHAIR RUDY WASHINGTON. COMMISSIONER ALINA A. GARCIA DIRECTOR/ GENERAL COUNSEL AMANDA M. WISMANS ATTORNEY FOR THE COMMISSION APPELLANT PRSENET DAVID NIDA, ESQ. REPRESENTATIVE FOR RESPONDENT APPELLANT PRESENT STATEMENT On Thursday, February 10, 2011 the Civil Service Commission heard oral argument in the appeal of TOMASZ KOWAL, Inspector, NYC Taxi and Limousine Commission (TLC), from a determination by the TLC, finding her guilty of charges of misconduct and imposing a penalty of 10 DAYS SUSPENSION following an administrative hearing conducted pursuant to Civil Service Law Section 75. COMMISSIONERS FINDINGS After careful review of the testimony adduced at the departmental hearing and based on the record of this case, the Civil Service commission finds no reversible error and affirms the decision and penalty imposed by the Taxi and Limousine Commission. NANCY G. CHAFFETZ, COMMISSIONER ACTING CHAIR

16 -16- RUDY WASHINGTON. COMMISSIONER MATTEW W. DAUS, COMMISSIONER Date: May 4, 2011