Fire Dep t v. Buttaro OATH Index No. 2430/14, mem. dec. (July 17, 2014)

Fire Dep t v. Buttaro OATH Index No. 2430/14, mem. dec. (July 17, 2014) Respondent s motion to dismiss is denied in part and denied in part with leave to renew. Respondent s motions to preclude interview statements and to depose a witness are denied. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of FIRE DEPARTMENT Petitioner - against - THOMAS BUTTARO Respondent MEMORANDUM DECISION ALESSANDRA F. ZORGNIOTTI, Administrative Law Judge This employee disciplinary proceeding was referred by the Fire Department ( FDNY or Department ) pursuant to Administrative Code section 15-113 against firefighter Thomas Buttaro. Petitioner alleges that respondent engaged in conduct meant to create a hostile work environment for another firefighter who was perceived to be involved in a federal discrimination lawsuit against FDNY. Specifically, between January and October 2012, respondent failed to wear Department-issued clothing while on and off-duty in the firehouse but instead wore t-shirts that the other firefighter told him were offensive. Petitioner further alleges that on 20 occasions respondent refused orders to remove the t-shirts, that respondent asked a civilian visiting the firehouse to wear one of these t-shirts in the presence of the other firefighter, and that respondent was disruptive and refused to attend a discrimination class taught by the other firefighter. On July 9, 2014, respondent filed an omnibus motion alleging that the petition should be dismissed because petitioner violated his rights under the applicable collective bargaining agreement ( CBA ) and because the initiation of disciplinary charges violated his First Amendment rights. Respondent also seeks to preclude statements he made during an investigatory interview because he did not receive a transcript of the interview for nine months. Finally, respondent seeks to depose a witness who is ill. Petitioner filed papers in opposition on

- 2 - July 14, 2014. A copy of the CBA s grievance procedures was subsequently requested and provided by respondent s counsel (Resp. Ex. F). Respondent s motion to dismiss the petition for violations of the CBA is denied. The motion to dismiss for violations of the First Amendment is denied with leave to renew. Respondent s motions to preclude his interview statements and to depose a witness are denied. Motion to Dismiss Pre-trial motions to dismiss are disfavored at OATH and have only been granted in the clearest cases of failure by petitioners to state a viable claim. Dep t of Correction v. LaSonde, OATH Index No. 2526/11, mem. dec. at 2 (July 8, 2011); Comm n on Human Rights ex rel. Hsu v. HSBC Bank, OATH Index No. 522/09, mem. dec. at 4 (Jan. 22, 2010); Fire Dep t v. Zollner, OATH Index No. 623/92 at 2-3 (June 12, 1992). Moreover, the burden of establishing the legal necessity of dismissal is particularly high in a case such as this because the tribunal makes recommended findings that are submitted to the referring agency for final decision. See Matter of Tenants of 51-55 West 28th Street, OATH Index No. 2877/09, mem. dec. at 2 (June 26, 2009), adopted, Loft Bd. Order No. 3580 (June 17, 2010). A. Violations of CBA Respondent argues that the petition should be dismissed because his rights under Article XVII, sections 2 and 5 of the applicable CBA were violated. First, respondent alleges that he was not given written notice of his investigative interview regarding these charges as required by section 2 of the CBA (Resp. Ex. B). Second, respondent alleges that at the start of the interview he was advised of his right to counsel but not his right to union representation as required by section 5 of the CBA (Resp. Ex. E). Under section 8 of the CBA, If the Department fails to comply with the provisions of this Article, any questions put to the employee shall be deemed withdrawn.... (Resp. Ex. C). Petitioner contends that on October 12, 2012, respondent and his union were notified in writing about the interview with FDNY s Equal Employment Opportunity ( EEO ) office regarding the charges (Pet. Ex. 2). On November 14, 2012, Paul Linzer, Esq., notified FDNY that he had been retained as union counsel for respondent. On December 7, 2012, respondent

- 3 - and his counsel appeared for the EEO interview. The interview did not go forward in order to determine whether respondent could tape the interview. The interview was subsequently referred to FDNY s Bureau of Investigations and Trials to be held pursuant to Mayoral Executive Order 16 ( MEO-16 ). The MEO-16 interview was scheduled and an e-mail was sent to Mr. Linzer confirming the date and subject matter of the interview (Pet. Ex. 3). Respondent and his counsel appeared for the interview on January 29, 2013. Respondent was provided with and signed a Preliminary Statement form which advised him of his rights against self-incrimination and the right to counsel (Pet. Ex. 9). The statement was also read to respondent. During the interview respondent made various statements regarding the charges (Pet. Ex. 4). It is undisputed that respondent and his union were advised about the initial EEO interview. After respondent retained counsel through his union and the EEO interview did not go forward, an interview pursuant to MEO-16 was scheduled. Respondent s counsel was advised in writing of the time and nature of the interview. Respondent appeared for the interview with union counsel and was read his rights pursuant to MEO-16. Respondent voluntarily participated in the interview. To the extent respondent alleges that petitioner violated his rights under the CBA, OATH s jurisdiction is limited to hear the disciplinary matter pursuant to Administrative Code section 15-113. OATH does not have jurisdiction to hear the alleged violation of the parties CBA which is governed by the impartial arbitration procedures set forth in the CBA (Resp. Ex. F), FDNY Order PA/ID 7-73 (June 15, 1973) (Pet. Ex. 10), and section 12-312 of the New York City Collective Bargaining Law. See e.g., Health and Hospitals Corp. (Harlem Hospital Ctr.) v. Norwood, OATH Index No. 143/05, mem. dec. at 5 (Mar. 7, 2005) ( grievance proceedings, are creatures of collective bargaining agreements, and are therefore governed by those collective bargaining agreements ); Dep t of Correction v. Smith, OATH Index No. 496/95 at 6 (Jan. 3, 1995) (OATH should not venture to interpret the CBA of the parties which should be done through the impartial arbitration procedures set forth in the CBA). Even if OATH had jurisdiction to hear the grievance, the remedy under section 8 of the CBA for violations of Article XVII is withdrawal of the questions made during the interview, not dismissal of disciplinary charges related to the incident investigated during the interview.

- 4 - The motion to dismiss the petition for alleged violations of the CBA is denied. B. First Amendment Respondent alleges that the petition should be dismissed because disciplining him for wearing t-shirts that another employee found offensive violates his First Amendment right to freedom of speech. Petitioner argues that it has the right to discipline respondent for violations of FDNY s rules and regulations and to limit speech that is disruptive to the workplace. Public employees do not relinquish their First Amendment rights to comment on matters of public interest by virtue of their government employment. The courts have sought to balance a public employee s interest in engaging in constitutionally protected speech with the government s interest in ensuring that the speech does not adversely affect its ability to provide services to the public. Pickering v. Board of Education, 391 U.S. 563 (1968). A court must first determine whether the employee is speaking as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on the employer s reaction to the speech. If the answer is yes, the speech may be deserving of constitutional protection. The burden then shifts to the government employer to demonstrate that potential workplace disruption outweighs the value of the speech. If the government makes such a showing, it may take action against the public employee. Garcetti v. Ceballos, 547 U.S. 410, 418 (2006); Locurto v. Giuliani, 447 F.3d 159, 172-73 (2d Cir. 2006). As noted by the Second Circuit: Because of the infinite variety of factual circumstances in which such conflicts might arise, the Court has not announced a general standard in this area, but has instead relied upon an identification and weighing of competing interests on a case-by-case basis. McEvoy v. Spencer, 124 F.3d 92, 98 (2d Cir. 1997) (citation omitted). A determination on whether respondent can be disciplined for wearing a t-shirt with allegedly offensive language or whether wearing such a t-shirt constitutes speech that is protected by the Frist Amendment is premature. There are insufficient facts presented to determine whether respondent was speaking as a citizen on a matter of public concern, and, if so, whether the speech created a disruption in the workplace that outweighs the value of the speech. Accordingly, the motion to dismiss is denied but may be renewed at the conclusion of the evidentiary hearing. See 48 RCNY 1-50 (Lexis 2013) ( In cases referred to OATH for

- 5 - disposition by report and recommendation to the head of the agency, motions addressed to the sufficiency of the petition or the sufficiency of the petitioner's evidence shall be reserved until closing statements. ). Request for deposition Respondent seeks to depose a Battalion Chief who allegedly was an eyewitness to the events at the discrimination training. According to respondent, the Battalion Chief has medical issues that may affect his ability to appear as a witness for the August 6 and 7, 2014 trial. Petitioner objects to the request. Depositions are unusual in administrative proceedings, which have at their core the streamlined and efficient adjudication of cases. Tenants of 51-55 West 28th Street v. Jo-Fra Properties, Inc., OATH Index No. 1019/05, mem. dec. at 2 (July 19, 2005) (owner s motion for permission to take oral depositions denied). Under OATH s rules of practice, depositions are extraordinary discovery devices, permissible only upon motion for good cause shown. Id.; 48 RCNY 1-33 (b) (Lexis 2013). We have held that the good cause standard is manifestly stricter than the material and necessary standard applicable to as of right discovery, such as requests for document production. Human Resources Admin. v. Ben-Siyon Man-of-Jerusalem, OATH Index No. 790/91, mem. dec. at 9 (Nov. 12, 1991). A party seeking permission to take depositions must therefore show a special heightened need for depositions before they will be authorized. Conflict of Interests Bd. v. Katsorhis, OATH Index No. 1531/97, mem. dec. at 11 (June 27, 1997) (denying motion to take depositions absent a showing of special need ). See Jo-Fra Properties, OATH 1019/05 at 2. Respondent has failed to establish good cause to depose the Battalion Chief. First, respondent failed to explain why the witness would be available for a scheduled deposition but not the hearing, which is less than three weeks away. Second, except for speculation, there is no showing that the witness will be unavailable for the hearing. Finally, even if the witness is unable to appear for the hearing in person, there is no evidence that alternative arrangements, such as having the witness testify by telephone or video conferencing, are unfeasible. The request to take the witness s deposition is denied.

- 6 - The parties are directed to confer regarding whether the witness is available for the hearing or whether special arrangements need to be made to accommodate him. Any issues regarding this matter should be brought to my attention either by e-mail or conference call. Request to preclude investigatory transcript Respondent alleges that any statements made by him during the MEO-16 investigative interview should be precluded because the transcript of the interview was not provided to him until nine months after the interview. Respondent claims that as a result of the delay he has not had the opportunity to review and correct any statements that were improperly transcribed. Petitioner asserts that the statements are admissible. The investigative interview occurred on January 29, 2013. Respondent alleges that he did not receive a copy of the transcript until nine months later. According to a fax transmittal cover sheet from petitioner s counsel, the transcript was sent on September 30, 2013 (Pet. Ex. 7). The matter was referred to this tribunal on May 5, 2014, and a settlement conference was held on May 10, 2014. The hearing is scheduled for August 6 and 7, 2014. Respondent has failed to identify any time requirement for providing a transcript. Moreover, respondent has been in possession of the transcript for at least nine months, which is ample time for him to review and correct any statements that may have been improperly transcribed. Accordingly, the motion to preclude respondent s interview statements for failure to timely provide the transcript is denied. Should petitioner move to introduce the MEO-16 interview into evidence at trial, respondent retains the right to object to its admission on other grounds. Other Request To the extent respondent is alleging that FDNY questioned him in the MEO-16 interview about off-duty conduct in violation of the CBA, respondent s recourse is to file a grievance under the CBA. Fire Dep t v. Harper, OATH Index No. 503/14, mem. dec. at 8 (Jan. 21, 2014); see also Human Resources Admin. v. Alexander, OATH Index No. 294/85 at 3 (Nov. 27, 1985) (claimed violation of respondent s contract rights should be pursued in accordance with established grievance procedures).

- 7 - In any event, a public employee may be disciplined for off-duty misconduct when there is a sufficient nexus between the conduct and the employee s job duties. See Villanueva v. Simpson, 69 N.Y.2d 1034, 1035 (1987); Cromwell v. Bates, 105 A.D.2d 699, 699 (2d Dep t 1984); Dep t of Correction v. Colon, OATH Index No. 229/14 at 14 (Feb. 24, 2014). Whether there is a sufficient nexus between respondent s off-duty conduct and his job duties which warrants a finding of misconduct is an issue for the evidentiary hearing. July 17, 2014 APPEARANCES: TYRONE J. HUGHES, ESQ. Attorney for Petitioner JESS M. BERKOWITZ, ESQ. Attorney for Respondent Alessandra F. Zorgniotti Administrative Law Judge