Human Resources Admin. v. Krisilas - CityAdmin Online ...archive.citylaw.org/oath/11_Cases/11-931.pdf · work on 21 occasions ... submitted a two-paragraph letter which contained

Human Resources Admin. v. Krisilas OATH Index No. 931/11 (Dec. 30, 2010), aff’d NYC Civ. Serv. Comm’n Item No. CD 11-69-A

(Sept. 22, 2011), appended

Petitioner’s evidence established that respondent frequently slept on duty, was excessively absent without leave, excessively late, and discourteous to a supervisor. Termination of employment recommended. ______________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of HUMAN RESOURCES ADMINISTRATION

Petitioner -against-

TIMOTHY KRISILAS Respondent

______________________________________________________

REPORT AND RECOMMENDATION

INGRID M. ADDISON, Administrative Law Judge The Human Resources Administration (“HRA”) brought this disciplinary proceeding

under section 75 of the Civil Service Law against respondent Timothy Krisilas, a clerical

associate in its Income Clearance Processing (“ICP”) unit. In its charging documents, Employee

Discipline Tracking (“EDT”) Nos. 04216-03, 04216-04, and 04216-05, petitioner alleged that

respondent violated sections II-B, III(28), III(36), and V-A of Executive Order No. 651

(December 17, 1998), and sections III-29 and V-A of superseding Executive Order No. 726

(January 15, 2010), when he: (1) slept on duty on 52 days between February 6, 2009 and

December 9, 2009, (2) took unauthorized leave for seven hours on 70 occasions between January

7, 2009 and June 24, 2010; (3) took unauthorized leave for more than two hours on 13 occasions

between March 6, 2009 and June 23, 2010; (4) failed to provide doctors’ notes to document sick

leave as required on 86 occasions between January 5, 2009 and June 15, 2010; (5) was late for

work on 21 occasions between February 24, 2009 and May 25, 2010; and (6) caused alarm when

he shouted at a supervisor and refused to sign disciplinary paperwork. Petitioner further alleged

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that respondent’s unauthorized absences also violated sections II-K and III-A of HRA

Procedures No. 03-03.

At a hearing on November 15 and November 16, 2010, petitioner relied on documentary

evidence and the testimony of five HRA employees: Michael Valencia, Vonetta McLeod, Janice

Evans, Mitchell Singletary, and Ramon Guerrero, each of whom supervised respondent at some

point in time. Respondent, who arrived two or more hours late, denied the charges of

misconduct, submitted documentary evidence and testified on his own behalf. For the first time

at trial, his counsel asserted that respondent suffers from a disability, moved for dismissal of the

disciplinary charges, and contended that petitioner should have proceeded against respondent

pursuant to section 72 of the Civil Service Law. At respondent’s counsel’s request, I held the

record open until November 23, 2010, for him to further develop his argument why a section 72

proceeding would be more appropriate, and for petitioner’s response. On that date, counsel

submitted a two-paragraph letter which contained sweeping statements about respondent’s

testimony and behavior, and an assertion that the evidence led to a section 72 conclusion.

Petitioner argued to the contrary.1

For the following reasons, I find counsel’s claim that respondent suffers from a disability

to be unsupported. His motion for dismissal of the section 75 charges and conversion to a

section 72 proceeding is therefore denied. On the other hand, petitioner established the charges

by a preponderance of the credible evidence.

Accordingly, I find termination to be appropriate and I so recommend.

ANALYSIS

Sleeping On Duty

Sections III(28) and III(29) of HRA’s Executive Orders Nos. 651 and 726,2 respectively,

prohibit employees from sleeping while on duty. Respondent is charged with numerous

instances of sleeping on the job (EDT No. 04216-03, Charge I, Specifications I through VIII;

EDT No. 04216-04, Charge I, Specifications I through XXII; and EDT No. 04216-05, Charge

IV, Specifications I through VI). 1 I marked respondent’s and petitioner’s post-trial submissions as Respondent’s Exhibit C, and Petitioner’s Exhibit 9, respectively. 2 The Executive Orders are petitioner’s Codes of Conduct. Executive Order No. 651 was superseded by Executive order No. 726, effective January 15, 2010. The earlier Order was referenced because some of the charges are for conduct that pre-date the effective date of the agency’s current Code of Conduct.

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Janice Evans, a Principal Administrative Associate Level I (“PAA I”), and respondent’s

supervisor since April 2010, occasionally supervised respondent after his previous supervisor,

Michael Valencia, became the assistant deputy director of ICP in 2008. At the time of trial, Ms.

Evans was on annual leave and testified via telephone. Vonetta McLeod and Mitchell

Singletary, both level I PAAs, also supervised respondent during the relevant period. Ms.

McLeod was his direct supervisor from April 2009 through early April 2010, while Mr.

Singletary acted as her backup when she was not available. All three testified that they worked

in close proximity to respondent’s work station, had ample opportunities to observe him,

frequently saw him sleeping at his desk, and often had to wake him up (McLeod: Tr. 76, 78-80;

Singletary: Tr. 125-27; Evans: Tr. 159-60). Ms. McLeod and Ms Evans testified that respondent

slept on the job whenever he showed up for work (McLeod: Tr. 84; Evans: Tr. 156). When

awakened, respondent usually claimed to be resting his eyes rather than sleeping, but on a couple

of occasions, when Ms. McLeod startled respondent from his reverie, he would wipe saliva from

the sides of his mouth (McLeod: Tr. 79; Singletary: Tr. 127). Because he spent more time

sleeping on the job, respondent was unable to complete his assigned tasks which had to be

reassigned to other workers in addition to their own workload. As a result, it affected the general

morale of the office (Tr. 84). They all spoke to respondent about his pattern of sleeping on the

job and issued him written warnings (Pet. Exs. 4, 7, 8; McLeod: Tr. 78; Singletary: Tr. 127;

Evans: Tr. 156-57, 160).

Ms. Evans issued three memoranda to respondent, covering the period February through

March 2009, in which she noted that she had observed him sleeping on the job, identified the

dates and times of her observations, indicated that she had awakened respondent and reminded

him that he could not sleep while on duty, and referenced Executive Order 651 and the Code of

Conduct rule that respondent’s behavior violated (Pet. Ex. 8). Altogether, Ms. Evans’

memoranda indentified seven days on which she had observed respondent sleeping at multiple

times during the day while on duty. Mr. Singletary issued a memorandum to respondent on

March 12, 2009, when he observed respondent sleeping while on duty that day (Pet. Ex. 7).

Likewise, petitioner’s charges were supported by nine memoranda issued by Ms. McLeod to

respondent, in which she, too, identified twenty-nine days and the times that she observed

respondent sleeping on the job (Pet. Ex. 4). One memorandum, dated May 7, 2009, predated five

of the days for which Ms. McLeod had issued the warning. In it, she cautioned respondent that

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she had awakened him on May 8, 12, 13, 14 and 15, 2009. Respondent did not raise it as an

issue and petitioner did not address it. While the date on the memorandum was clearly

erroneous, I found it to be unreliable proof. Accordingly, the specifications related to the dates

contained in Ms. McLeod’s memorandum of May 7, 2009 (EDT No. 04216-04, Charge I,

Specifications XVII through XXII) are dismissed.

Respondent disputed that he slept on the job. Instead, he claimed to be “resting his

eyes,” thereby corroborating his supervisors’ testimony. Respondent demonstrated the position

he often assumed at work, one with his head slumped downward. He stated that ninety percent

of the time his eyes were closed “to avoid the total arrangement of sleep or the characteristics of

sleep; the body resting, dreaming and so forth,” and to avoid the glare from the computer. He

further claimed that this was in accordance with the break that he is permitted every three hours

under his union’s bargaining agreement. But he maintained that even with his eyes closed, he

would often arrive at the solution to a particular problem, proving “that the human brain is ahead

of the computer when it’s down.” Respondent also noted that when he was in high school, he

was permitted to sleep with his head down, at the rear of the classroom, and suggested that when

he was at another city agency, he was permitted to rest his eyes while on the job (Tr. 199-200).

The testimony of Ms. McLeod, Ms. Evans, and Mr. Singletary and their detailed

documentation overwhelmingly support the charges that respondent frequently slept on the job.

Respondent’s attempt to distinguish his behavior by advancing some kind of analysis of sleep

behavior was odd, and at the same time self-serving, given his well-informed explanation that

pursuant to his union agreement, he was permitted a rest period after three hours of working at

the computer. The detailed documentation provided by his supervisors, however, established

that this was not the case of a worker resting his eyes after a prolonged period of work at his

computer. The evidence demonstrated that there were no lengthy intervals between the times at

which respondent was observed sleeping. Instead, as one of his supervisors articulated, when he

showed up for work at all, he slept throughout the day. The observation of saliva escaping from

his mouth also debunks respondent’s explanation that he was resting his eyes, not sleeping,

because he only became aware of it when he was jolted awake.

Accordingly, the following charges, that allege 31 days on which respondent slept while

on duty in violation of section III(28) of HRA’s Executive Order No. 651, and section III(29) of

Executive Order No. 726 are sustained: EDT No. 04216-03, Charge I, Specifications I through

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VIII; EDT No. 04216-04, Charge I, Specifications I through XVI; and EDT No. 04216-05,

Charge IV, Specifications I through VI. EDT No. 04216-04, Charge I, Specifications XVII

through XXII are dismissed.

Absence Without Prior or Subsequent Authorization

HRA’s timekeeping records are maintained by a paperless system referred to as

“Autotime” (Tr. 32). Requests for annual or sick leave must generally be entered in Autotime in

advance of the time off desired. The employee’s supervisor may then approve or disapprove the

request (Tr. 31-32, 46-47; HRA Procedure No. 03-03 at 5-7). Likewise, employees who desire

annual leave for personal business must notify their supervisor at least 24 hours in advance,

except in emergency situations, which still require the employee to call in and notify his/her

supervisor of the emergency (Tr. 163). The minimum amount of time that can be requested is 15

minutes (HRA Procedure No. 03-03 at 6). Generally, documentation is not required for annual

leave (Tr. 90). When annual leave is requested retroactively, it should be done the day following

the employee’s absence (McLeod: Tr. 90; Evans: Tr. 163; HRA Procedure No. 03-03 at 7).

Unplanned leave, particularly after a holiday, must be documented (Tr. 49). Further, it may only

be used for personal emergencies, must be fully explained, and must be appropriately

documented. Unsatisfactory explanations will result in disapproval of the leave and loss of pay

(HRA Procedure No. 03-03 at 6). If a request for annual leave is disapproved by the supervisor

and the employee absents himself/herself anyway, the absence is deemed “unauthorized annual

leave.” For numerous instances of unauthorized annual leave or “unacceptably explained

lateness,” the supervisor is required to hold a conference with the employee and address the

employee’s attendance problems (HRA Procedure No. 03-03 at 11; Tr. 33-34).

Here, respondent is charged with 104 instances of absences and latenesses without prior

or subsequent approval or authorization,3 and 86 instances of failing to provide documentation to

substantiate absences allegedly due to illness,4 in violation of sections III-A and II-K of HRA

Procedures No. 03-03 (ALJ Ex. 1).

3 EDT No. 04216-05, Charge 1 (Specs. I through III). 4 EDT No. 04216-05, Charge II (Spec. I).

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Unauthorized Absences

Ms. McLeod testified that during the time that she supervised him (April 2009 through

April 2010), respondent initially reported for work on three days each week, but later reduced

that to two days (Tr. 98). Ms. Evans, respondent’s current supervisor (Tr. 152), concurred. Both

supervisors identified Thursdays and Fridays as the days that “he’s usually at work” (McLeod:

Tr. 98, 109, 117; Evans: Tr. 166). In fact, Ms. Evans articulated that “…the only time we ever

really saw him was pay day” (Tr. 176). She expressed exasperation at respondent’s absenteeism

and explained that because of his unreliability with reporting for work, there was a lack of

productivity on his part. His duties had to be reassigned to his co-workers who were unhappy at

that. According to Ms. Evans, it was “very upsetting for the entire unit and other units that sat

around him.” They perceived that respondent was being paid for doing nothing and inquired “. .

.why … he's getting a paycheck and he doesn't have to work” (Tr. 99, 166).

Petitioner provided a voluminous binder of its Autotime records on respondent covering

the period January 2009 through June 2010 (Pet. Ex. 1). They included weekly records, which

showed days of the week, date, time in and time out, elapsed time, and status, followed by

respondent’s requests for leave, submitted retroactively. The leave requests reflected the date of

the request, the type of leave requested, the reason advanced for the leave, the start and end dates

of the leave requested, and respondent’s explanation for the request. Also included were records

of the supervisors’ dispositions of respondent’s requests, reflecting the date of the disposition,

the supervisor’s name, and the reason for the disposition.

The entire binder consisted of requests that respondent made retroactively, that were

disapproved by his supervisors. They establish that between January 2009 and June 2010,

respondent retroactively made a total of 88 annual leave requests for absences, many of which

occurred after a holiday or weekend. The following chart reflects a sampling of respondent’s

absences, the dates on which he submitted leave requests, and the reasons he advanced:

Date of Absence

Date of Annual Leave Request

Reason Tendered for Absence Disposition

02/11/09 02/13/09 Almost no regular heat in the apartment until February caused me to perform some essential household chores that could become hazardous; I had planned on a half-day work

Disapproved: no Documentation

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Date of Absence



(emphasis added)

03/03/09 03/06/09 There was no heat or hot water at the time I was expected to prepare for work. The previous day I had taken medication and together with the cold apartment my bodily movements not fast enough for work

Disapproved: administrative reason

03/10/09 03/13/09 Very inconsistent heating & plumbing at the time to prepare for work; there were very cold temperatures recently. Then I decided to call about Federal & State taxes from home because I saw no one use the phones at work


04/15/09 9:14-14:15

04/15/09 I finished the Federal, State tax returns. The forms must be clear, copied & punctual because they are mailed to higher government offices.

Disapproved: prior approval not recd

05/05/09 05/08/09 Adjustments for summer like weather and neglected repairs during tax preparation

Disapproved: no documentation

06/08/09 06/12/09 There was no water in my building on Saturday, the Super always turns off the water when he makes repairs in the building. There is more cleaning and washing in the summer.

Disapproved

07/08/09 07/10/09 Hazardous cleaning and repairs in apt. which were neglected for months (could not go shopping on vacation).


09/14/09 09/18/09 Expecting Super for plumbing repairs, clean & prepare area. Disapproved: no documentation

12/28/09 12/30/09 My mother was sick but changed her mind and didn’t request me to assist her to the hospital. I also did minor repairs that were hazardous and neglected chores.


10/20/09 10/23/09 HRA 180 Street materials organized and reviewed. Rested from household chores on Sat & Sun.


12/14/09-12/15/09

12/18/09 My mother on SSI was sick & I had extra household chores. I also had to prepare for an Informal Conference 12/16 at 180 Water Street.


02/23/10 02/25/09 I had to prepare for jury duty at court and ICP at 34th Street because there was no water the day before on 2/22/10 in the building (the Super was repairing) coming to work became very difficult


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Date of Absence



04/28/10-04/29/10 09:15-13:45

04/29/09 The Income Tax returns forced me off schedule. I had to file another legal paper (which I had postponed) and organize all or many of the essential things I neglected at tax time


06/22/10-06/23/10 09:15-14:00

06/25/09 Received cancellation of case conference by mail. The time was used reorganizing all items from the Case Conference to work.


Respondent did not dispute petitioner’s proof. Rather, he confirmed that he “always”

comes to work on Fridays to “get my Autotime together . . . It’s to make sure that the time is in

order” (Tr. 230).

None of the reasons advanced for respondent’s absences appeared to constitute genuine

emergencies. If they were, his supervisors testified that they would have approved the

emergencies, had respondent provided some form of documentation to confirm the emergency.

Even though respondent claimed “preparation for jury duty” as a reason for one of his absences,

he never provided documentation that he had been called for jury duty, which is a permitted

absence, if true. While caring for his mother, keeping a clean apartment, or preparing and

punctually submitting tax returns (among the other reasons advanced for his absences) are

admirable, these tasks are no less daunting or time-consuming than those experienced by

thousands of other City workers as part of daily living, and do not excuse respondent’s vast

number of absences.

Section III(A) of HRA’s Procedures No. 03-03 provides for disciplinary action where an

employee takes unplanned annual leave that has been disapproved.

Accordingly, I find that the evidence overwhelmingly supports specifications I and II of

EDT No. 04216-05, Charge I, that respondent took 70 full days and 13 partial days of leave

without prior or subsequent approval or authorization, in violation of section III-A of HRA

Procedures No. 03-03.

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Excessive Lateness

HRA Procedure No. 03-03 § II(B) provides for a grace period of five minutes at the

beginning of the work day for “non-managerial staff covered under the Citywide Collective

bargaining Agreement who work a 9:00 a.m. to 5:00 p.m. straight time schedule.” Because of

the grace period, employees who are covered are not considered late if they arrive to work five

minutes after their scheduled start time. However, under the same Collective Bargaining

Agreement, “non-managerial employees who work flex-time schedules are not entitled to the

five-minute grace period.” HRA Procedure No. 03-03 § II(B). Flex time, also known as

Alternative Work Schedules, permits an employee to report for work anytime within a specified

float period of up to one hour. HRA Procedures No. 03-03 § II(A)(1).

Respondent works an 8:15 a.m. to 9:15 a.m. “flex” schedule and thus, is not entitled to a

grace period (Valencia: Tr. 54; McLeod: Tr. 89; Evans: Tr. 162). Accordingly, if respondent

arrives after 9:15, he is deemed late. Such lateness may be covered with requests for annual

leave in increments of 15 minutes (Valencia: Tr. 54; McLeod: Tr. 91; Evans: Tr. 163). The

Autotime records (Pet. Ex. 1) demonstrate that respondent was late on 19 of the 21 days that he

was charged with being late. On 13 occasions, he arrived at work within 15 minutes of his cut-

off flex-time of 9:15 a.m., thereby triggering the requirement that he request 15 minutes of

annual leave. On three occasions, he arrived within a half-hour after 9:15 a.m., and on two

occasions, he arrived one hour after his scheduled cut-off time. On November 24, 2009,

respondent clocked in at 9:11 and thus was not late; on May 25, 2010, respondent was absent

from work, not late as alleged (Pet. Ex. 1). The following are the dates that respondent was

charged with being late, as well as his actual time of arrival derived from his Autotime records:

Date Arrival Time No. of Minutes late

02/24/09 10:15 60

02/25/09 10:15 60

02/26/09 10:00 45

02/27/09 10:00 45

03/04/09 9:25 10

03/25/09 9:24 09

04/16/09 9:29 14

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Date Arrival Time No. of Minutes late

05/12/09 9:45 30

05/14/09 9:30 15

05/20/09 9:18 03

05/29/09 9:36 21

06/03/09 9:45 30

06/12/09 9:19 04

06/17/09 9:25 10

08/05/09 9:25 10

09/11/09 9:19 04

10/19/09 9:23 08

02/03/10 9:18 03

02/25/10 9:28 13

TOTAL 394

Mr. Valencia testified that respondent had been counseled about his lateness problem

verbally and in writing, and was informed that it was a violation of agency policy. Nevertheless,

his latenesses persisted (Tr. 57). Ms. McLeod also addressed respondent’s lateness problem and

instructed him to immediately submit leave requests to cover latenesses but he never did so

unless she stood by him and watched him submit the request (Tr. 107-08).

Respondent claimed that 90 percent of his latenesses were attributable to transit delays

and that he had obtained letters from the MTA in support and submitted them to his boss (Tr.

194, 220-21). This excuse was incredible because in none of his requests for annual leave to

cover his latenesses did respondent ever claim transit delay as a reason. Moreover, he presented

no proof that he had obtained documentation from Transit Authority to validate any of his

latenesses. Thus, I found his claim to be too vague and insubstantial to justify the frequency of

his latenesses. Human Resources Admin. v. Wright, OATH Index No. 1825/04 at 2 (Sept. 14,

2004) (finding vague testimony of transit delays and medical appointments insufficient to excuse

frequent absence).

Section II(G) of HRA Procedures No. 03-03 authorizes the agency to discipline or

discharge an employee for excessive lateness. The Procedures do not define “excessive” but in

prior HRA cases before this tribunal, charges of excessive latenesses have been sustained where

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they are extensive in number. See Human Resources Admin. v. Vila, OATH Index No. 1578/08

at 11 (June 10, 2008) (42 latenesses totaling 724 minutes over 18-month period was excessive);

Human Resources Admin. v. Small, OATH Index No. 2019/04 at 12 (May 10, 2005) (83

latenesses over a 20-month period excessive); Office of the Comptroller v. Nieves, OATH Index

No. 962/04 (Oct. 29, 2004) (35 latenesses over a 12-month period for a total of 508 minutes

excessive); Wright, OATH 1825/04 (70 latenesses over an eight and one-half month period was

excessive); Human Resources Admin. v. Metz, OATH Index No. 1000/02 at 3 (Dec. 20, 2002)

(63 latenesses totaling 1,745 minutes over a 19-month period excessive).

While respondent’s 19 latenesses totaling 394 minutes over a one-year period may not

appear to be as extensive as those in the cases cited above, there is no question that respondent’s

latenesses were extensive. It cannot be overlooked that he was absent for a significant number of

days during the same period. That made his latenesses when he bothered to report for work even

more egregious.

Specification III of EDT No. 04216-05, Charge I is therefore sustained.

Unauthorized Sick Leave

Under HRA Procedure No. 03-03, employees are permitted time off from work as sick

time, if ill. Employees are also permitted to use two days per year from their sick leave balances

to care for certain, defined family members. When an employee calls in sick, the supervisor may

request medical documentation which becomes mandatory if the employee is sick for three or

more consecutive days. Five instances of undocumented sick leave before or after a weekend,

holiday, or scheduled day off, are deemed excessive and the employee is placed on “Doctor’s

Note Restriction.” Until the restriction is lifted, the employee is required to submit doctor’s

notes for each instance that he is out sick. See HRA Procedure No. 03-03 §§ II(J), III(B). The

use of undocumented sick leave during a restricted period is unauthorized leave which may

render the employee subject to disciplinary action. HRA Procedure No. 03-03 § II(K).

“Disciplinary action is mandated whenever the employee exceeds two instances of

undocumented sick leave within a restricted Sick Leave Period or continues to use

undocumented sick leave which is disapproved” during the restricted period. HRA Procedure

No. 03-03 §§ II(J), (K).

Petitioner claimed that on December 7, 2006, respondent was placed on doctor’s note

restriction which continued to present, and alleged that notwithstanding the restriction,

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respondent, between January and October, 2009, applied for sick leave on 86 occasions without

providing documentation. (ALJ Ex. 1, EDT No. 04216-05, Charge II (Spec. I)).

Mr. Valencia testified that for a majority of the time during which he supervised him,

respondent’s sick leave requests were undocumented (Tr. 65). On November 29, 2006, Mr.

Valencia warned respondent in writing that “unless all future sick leave absences are

documented, you will be placed on Doctor’s Note Restriction.” Approximately one week later,

respondent submitted a request for undocumented sick leave and was placed on Doctor’s Note

Restriction on December 7, 2006. Respondent signed for receipt of the warning, as well as the

notice that placed him on Doctor’s Note Restriction status. Mr. Valencia maintained that the

restriction continued until August 2008, when he was promoted to his current position, and no

longer directly supervised respondent. He was unsure if it continued beyond that time (Tr. 41-

42; Pet. Ex. 3).

On June 8, 2009, Ms. McLeod placed respondent on “Doctor’s Note Restriction” after he

had called in sick on May 4, 5, 11, 18, 19, 27 and June 1, 2009 (Tr. 95-96; Pet. Ex. 6). She

testified that she initially counseled respondent that if he was on medication that made him

drowsy, a doctor’s note that explained the side effects of the medication would have sufficed for

approval of sick leave. She also indicated that she would have accepted a note from

respondent’s mother if his absence was for purposes of assisting with her medical problems.

According to her, respondent produced no documentation whatsoever, even after she placed him

on Doctor’s Note restriction (Tr. 104, 106, 111). Petitioner submitted documentation to support

that Ms. McLeod had warned respondent about his undocumented sick leave, latenesses and

absenteeism, and that respondent acknowledged that he had received those warnings with his

signature, in May, June and July 2009 (Pet. Ex. 6). The document indicates that after August 20,

2009, respondent refused to acknowledge in writing, receipt of any warnings.

A review of the Autotime records provided by petitioner confirmed that respondent

retroactively submitted sick leave requests for 86 absences between January 5, 2009 and June 15,

2010. In small part, the records contradict Ms. McLeod’s testimony that respondent never

provided documentation. They revealed that he submitted documentation to substantiate his sick

leave requests for his absence on July 31, which was approved by Ms. McLeod and should not

have been included in the allegations. The records also reflect that respondent submitted some

kind of documentation for his absences of September 24 and part of September 25, 2009, that

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was disapproved. The following chart provides examples of respondent’s sick leave requests

which were all made retroactively, as well as his explanations for those requests:

Date of Absence

Date of Sick Leave Request

Reason Given for Absence Approval status

06/09/09 06/12/09 I had taken medication (this was probably side effects) on Sunday with a restricted diet and a lot of work.

Disapproved: unauthorized absence

07/20/09 07/24/09 Fatigue from cleaning the apartment during the weekend, the medications that were taken increased the problem.

Disapproved: No prior approval

08/20/09 08/21/09 Went to pharmacy earlier to buy some items; later I had both an upset stomach & Hayfever symptoms


08/31/09 09/01/09 [blank] Disapproved: unauthorized absence

09/01/09 09/04/09 Sick previous Saturday & Sunday with Hayfeve[sic] because there also problems with the apartment I was not prepared for work as scheduled.


10/15/09 10/16/09 The doctor on the previous day Oct. 14th told me to sleep or rest more. I wrote down what I had learned about my medical conditions. Prepared specialized diet for ailments.

Disapproved: Administrative reason

12/21/09 12/24/09 I tried [sic] to treat my medical conditions with mostly diet; this was first expressed to me verbally by a physician’s assistant in the hospital as a treatment for ailments. The colder weather made it more difficult to perform household chores.


03/01/10 03/05/10 I was taking more than one over-the-counter medication during the weekend. Although I almost came to work, it was more important for the medicines to work & resolve different type ailments.


03/08/10 03/12/10 Sick on medicines taken during the weekend; make sure medicines are effective, the side-effects subside is better than guessing what the productivity would be at work.


04/27/10 04/29/10 I cleaned my apartment until I got myself sick; an extra day to recooperate [sic] & finish taking medications


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Date of Absence

Date of Sick Leave Request

Reason Given for Absence Approval status

05/10/10-05/11/10

05/12/10 I was sick because I was required to be extra alert for Jury Service (listen to a legal case) I could not take medications when I finished Jury Service I took all medications at once. Problems of warmer weather had to be solved.


Respondent recalled that Mr. Valencia had placed him on Doctor’s Note Restriction

status in 2006. He also acknowledged that, “Yes, my supervisors asked for documentation from

doctors and I didn’t provide it. The problem is the clinics opens too early and you have to sit the

whole day and then you’re not ready the next day for work. It keeps you all day” (Tr. 234). He

claimed that his supervisors were not concerned about his absence, and that Ms. McLeod had

told him to “do anything you want” as far as taking a half-day. In spite of his written

acknowledgments, respondent further denied that Ms. McLeod had often met with and counseled

him (Tr. 221, 222).

For the first time, at trial, he presented discharge instructions from Mount Sinai hospital

to support that in July 2006, he had been diagnosed with peripheral vascular disease (Resp. Ex.

A). The instructions explained that such a medical condition is due to a build-up of cholesterol

in the arteries and causes leg and foot cramps associated with walking, and numbness or pain in

the foot or toes. It indicated the types of activity that respondent needed to engage in to alleviate

the symptoms and improve circulation, and suggested medication such as aspirin, pain medicine

and other medication for circulation problems. It further cautioned that proper foot care was

vital. Respondent also submitted a doctor’s note dated October 28, 2010, from Foot Clinics of

New York, which reflected the same diagnosis as the Mount Sinai documentation (Resp. Ex. B).

Both documents reflected dates outside of the period under review during which respondent

requested undocumented sick leave but respondent asserted that they constituted proof of a

continuing ailment. Notwithstanding, respondent testified that his peripheral vascular disease

retarded his movements but did not distinctly attribute his sick leave absences to it. Rather, he

indicated that his mother’s illness posed a greater burden on his ability to report for work

because he had to assume responsibility for doing the household chores (Tr. 209-10).

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Respondent also claimed that he suffers from hay fever and eczema and is concerned about his

prostate (Tr. 227, 230).

It was unclear to me whether respondent was on Doctor’s Note Restriction between

August 2008, when Mr. Valencia was promoted, and June 8, 2009, when Ms. McLeod indicated

on respondent’s attendance form that he was being placed in that status. While respondent

acknowledged that he had been placed on restricted status by Mr. Valencia, he did not challenge

the period of restriction or assert that the restriction had ever been lifted. Nevertheless, even if it

had been lifted after Mr. Valencia’s promotion, respondent still retroactively applied for

undocumented sick leave on more than 40 occasions after Ms. McLeod had placed him in that

status. He articulated his awareness that he was required to present documentation but offered

no credible explanation for his failure to do so. Besides, most of the rationale for his sick leave

requests in Autotime suggested no doctor’s visits, or legitimate bases for absences due to

illnesses. While I do not doubt that respondent continues to suffer from peripheral vascular

disease, there was no proof that that was the reason for his extensive record of sick leave. Even

if it were, there is no escaping that he failed to provide medical documentation for absences

allegedly due to illnesses.

I therefore find that respondent used undocumented sick leave while under an obligation

to provide documentation because of his “Doctor’s Note Restriction” status. This constitutes

unauthorized leave pursuant to section II(K) of HRA’s Procedure No. 03-03. Thus, EDT No.

04216-05, Charge II, Specification I is sustained.

Discourteous Conduct

Respondent is charged with being discourteous to ICP Director Sandy Bryant, in

violation of section II(B) of Executive Order No. 651 which requires employees to be courteous

and considerate in their contact with fellow employees at all times.

Petitioner alleges that on or around August 27, 2009, when Ms. Bryant attempted to serve

respondent with disciplinary charges, he erupted and screamed at her. Ms. Bryant was not

present to testify and her absence was unexplained. Ms. McLeod testified that she witnessed the

entire incident. According to her, as respondent was being given papers to appear at a hearing,

he became “irate,” banged his hands on the desk, and yelled that Ms. Bryant did not understand

because she was a woman (Tr. 85-87). She and Ms. Bryant asked respondent to leave the office

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but “he just kept yelling and ranting and mumbling on, and it was scary because I never saw Mr.

Krisilas like that before” (Tr. 86). On August 31, 2009, two business days later, Ms. McLeod

commemorated her observations in a memorandum to Ms. Bryant, Mr. Valencia and one Ms.

Momon (Pet. Ex. 5). There was no corresponding documentation from Ms. Bryant. Ms.

McLeod’s memorandum indicated that she was present in Ms. Bryant’s office when respondent

became agitated, and that Ms. Bryant had asked respondent to leave her office. It did not

corroborate her testimony that she, too, asked respondent to leave. Thus, I found that portion of

her testimony to be embellished. It did indicate, however, that respondent’s outburst did not

immediately end. After being directed to leave Ms. Bryant’s office, he did so and later returned

and accused the entire office of not understanding him.

Respondent neither disputed the charge nor defended against it.

Outbursts towards a supervisor that disrupt the office environment and cause alarm in

colleagues are a form of misconduct that are “obviously sanctionable.” Admin. for Children’s

Services v. Camara, OATH Index No. 285/04 at 10 (Feb. 2, 2004), modified on penalty, Comm'r

Dec. (May 20, 2004), aff'd, NYC Civ. Serv. Comm'n Item No. CD 06-117-SA (Nov. 14, 2006)

(where respondent screamed and yelled at a supervisor loud enough to stop workplace activity

and draw the attention of co-workers and supervisors in the vicinity). Even absent a written

report from Ms. Bryant, or her testimony, I found Ms. McLeod’s memorandum, which was

written closer in time to respondent’s outburst to be reliable. In it, she expressed how erratic

respondent’s behavior was and that it made her feel unsafe.

Thus, EDT No. 04216-04, Charge III, Specification I is sustained.

Respondent’s Disability Defense and Motion to Convert to a Section 72 Action

Respondent argued that he has a disability which HRA has an affirmative duty to

accommodate under the New York State Human Rights Law (HRL), Americans with Disabilities

Act (ADA), and the Family Medical Leave Act (FMLA) (Tr. 61-62).

Under both Federal and New York State Disability laws, an employer’s duty to

accommodate is triggered by the employee’s request for accommodation and is limited to

disabilities made known to the employer. Pimintel v. Citibank, N.A., 29 A.D.3d 141, 149 (1st

Dep’t 2006); Executive Law § 296(3)(a) (Lexis 2010); 9 NYCRR § 466.11(e)(1) (Lexis 2010)

(the duty to accommodate under Executive Law § 296 arises “where the disability and need for

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accommodation are known to the employer”); 42 U.S.C. § 12112(b)(5)(A) (Lexis 2010). Where

a respondent did not request an accommodation prior to the dates of the misconduct charged, this

tribunal has found that the ADA does not provide a defense to misconduct. See Dep't of

Sanitation v. Walker, OATH Index No. 1567/03 at 7 (Sept. 29, 2003). Nor may an employee

take FMLA without discussing it with his employer. 29 C.F.R. §§ 825.300-304 (Lexis 2010)

(addressing an employee’s obligation to notify employer of need for leave under the FMLA).

There was no evidence that respondent ever articulated to petitioner that he suffered from

a disability for which he needed accommodation. Nor did I find any reason for petitioner to

suspect one. The only current medical condition about which respondent testified was his

peripheral vascular disease, of which petitioner was apparently made aware only at trial. Mr.

Valencia and Ms. McLeod testified that they were unaware of it because respondent had never

submitted a doctor’s note reflecting such a diagnosis or anything to indicate that he was on

medication that had adverse side effects (Valencia: Tr. 58, 64, 66; McLeod: Tr. 101). Further,

respondent made no request for FMLA leave. Even so, they offered to refer him to the

Employee Assistance Program (EAP) if it would help with his attendance and punctuality

problems, and also suggested changing his schedule, but respondent constantly refused

(Valencia: Tr. 63-64; McLeod: Tr. 119, 121; Evans: Tr. 163).

In sum, respondent never claimed to have a disability or notified petitioner of one, and

rejected his supervisors’ offers of assistance. Thus, his employer had no obligation to

accommodate a disability of which they were unaware.

Respondent also moved for this proceeding to be converted to one pursuant to section 72

of the Civil Service Law. His counsel suggested that it was evident from respondent’s behavior

and testimony that respondent has a physical or mental disability (Tr. 212). In his post-trial

letter which was intended to support his motion, respondent’s counsel claimed that respondent

demonstrated a “lack of mental clarity, coherence with his other illnesses” and referenced this

tribunal’s decisions in Human Resources Admin v. Barnes, OATH Index No. 228/08 (Nov. 15,

2007), adopted and remanded, Administrator’s Determination (Jan. 29, 2008), and Dep’t of

Housing Preservation & Development v. Natal, OATH Index No. 1185/90 (Mar. 22, 1991).

This tribunal has interpreted the statutory language and purposes of section 72 to

preclude punishment for misconduct under section 75, where an employee’s violation of rules

resulted from the employee’s disability. Health & Hospitals Corp. (Lincoln Medical & Mental

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Health Ctr.) v. Bruce, OATH Index No. 138/10 at 3 (Dec. 4, 2009); Barnes, OATH 228/08;

Natal, OATH 1185/90. On the other hand, misconduct under Section 75 may be predicated on a

finding of either willful or intentional conduct, Resig v. Kirby, 62 Misc.2d 632, 635 (Sup. Ct.,

Suffolk Co. 1968), aff’d, 31 A.D.2d 1008 (2d Dep’t 1969), or negligence or carelessness,

McGingle v. Town of Greenberg, 48 N.Y.2d 949, 951 (1979). Where the employee establishes

that the alleged misconduct was caused by a disability, he must be placed on leave pursuant to

section 72. Bruce, OATH 138/10 at 3; Barnes, OATH 228/08 at 7.

The defense that respondent’s misconduct was caused by a mental or physical disability

is an affirmative one that respondent must prove by a preponderance of the evidence. Barnes,

OATH 228/08 at 6; Triborough Bridge & Tunnel Auth. v. Davi, OATH Index No. 339/01 at 9

(June 18, 2001); Dep’t of Housing Preservation and Development v. Brody, OATH Index No.

116/86 at 21 (May 21, 1986). While a psychiatric expert is not required to prove mental

unfitness, Barnes, OATH 228/08 at 6, some distinct evidence must point to mental unfitness to

do his job.

This case does not parallel the respondents in Barnes or Natal. In Barnes, respondent

was a 25-year employee, and was known to be a quiet, decent, and respectful employee who

always completed her work. After experiencing personal losses in her life, her work

deteriorated, and her personality changed to the point where she disobeyed her supervisors,

intimidated and threatened them, used inappropriate, vulgar language and made improper

gestures, and was unruly, disruptive and boisterous with supervisors, clients and colleagues. Her

behavior got progressively worse, and witness after witness described it as bizarre and abnormal,

and suggested that respondent was having “a mental breakdown” Barnes, OATH 228/08 at 2-4.

In Natal, respondent was known to suffer from alcoholism, a recognized disability, to which his

absences were related. He even returned from lunch in an inebriated state on multiple occasions,

and on at least one occasion, fell asleep at his desk, then fell unto the floor and remained asleep

while intoxicated.

Respondent here does not have a lengthy tenure with HRA. Nor was he known to have

anything mentally wrong with him (McLeod: Tr. 121; Singletary: Tr. 136). In fact, Ms. McLeod

described his solitary outburst with Ms. Bryant as “out of character” (Tr. 86). Nevertheless, his

counsel expressed a myriad of reasons why I should declare that respondent suffers from a

disability. First, he suggested that HRA was aware that respondent had a problem because when

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they hired him, they knew that he had been a Work Experience Program (WEP) worker5 in the

late 1980s. Respondent named various illnesses that caused him to be on public assistance,

including a hernia, a broken left hand and right arm, infection of the prostate, and a skin

irritation. I was unable to reconcile those physical problems in the 1980s with respondent’s

current claim of a disability.

Respondent also testified that at some point in the 1980s, before being employed by

HRA’s Fordham Income Maintenance Center, a psychiatrist had diagnosed him as “emotionally

disturbed,” but he insisted that those problems had “shined up” and that he has not seen a

psychiatrist in a long while. He maintained that he worked in that job for about 18 months and

believed that the next position he held was at the Department of Motor Vehicles. It is unclear

what happened after, but he testified that in or around 2000, he saw a “psychiatrist” at Mount

Sinai hospital when he had an “ear infection” and was housed in the psychiatric clinic for two

weeks because there were insufficient beds in the ear clinic (Tr. 234-35). In 2004, he took the

civil service exam for a clerical associate position. Respondent proudly boasted that he achieved

an “A” on the exam (Tr. 188, 206, 214-18). After that, he was hired into his current position.

It is entirely possible that respondent’s admission to Mount Sinai hospital ten years ago

was related to a psychiatric diagnosis rather than an ear infection as he claimed, but there was

nothing to indicate any prolonged or recurring problems that caused present unfitness. See

Human Resource Admin. v. Bizaliele, OATH Index No. 305/96 at 12-13 (Dec. 18, 1995) (proof

of a past psychotic episode is not proof of a present disability nor is it proof that the alleged

disability, if it were proven, rendered respondent unfit for his job). In fact, four years after that,

respondent scored highly on the civil service exam and was afterwards hired by HRA.

Undeniably, respondent displayed some idiosyncratic behavior at trial, such as bringing

into the courtroom, plastic shopping bags containing documents on which he wished to rely. It

also appeared that respondent emitted an unpleasant body odor. Mr. Valencia testified that

respondent generally presented a disheveled appearance (Tr. 58), had an unusual, pharmaceutical

odor about him (Tr. 59), and sometimes carried large bags with him (Tr. 60). However, I was

not persuaded that these were symptomatic of a psychiatric disability as counsel urged. Not only

was it likely that respondent used plastic shopping bags out of frugality, but his testimony and

5 WEP workers are individuals who, in order to maintain their public assistance benefits, are required to perform work assignments. See Soc. Serv. Law § 336(1)(d) (Lexis 2010).

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notations on his timesheets indicating that his landlord failed to provide heat and hot water may

have accounted for any perceived hygiene problems.

Nor did I find there to be any physical disability that caused the misconduct charged.

Respondent claimed that his vascular condition affected his ability to be present and on time, and

complained of the side effects of his medication. However, his discharge instructions from

Mount Sinai hospital in 2006 recommended only over-the-counter pain medication for his

condition. There was nothing to support that his condition was so debilitating that it caused his

excessive absenteeism. Nor was this indicated in respondent’s explanations on his leave

requests. Respondent’s only testimony about how his vascular condition affected him at work

was that he was sometimes required to move around and stretch (Tr. 238). That was consistent

with his discharge instructions which recommended regular exercise to improve circulation.

Thus, the evidence did not convince me that respondent suffered from a mental or

physical disability that caused his sleeping on the job, excessive absenteeism, or discourteous

behavior. On the contrary, I found his excessive absences and undocumented sick leave to be

willful. Respondent’s testimony and his leave requests suggest that his domestic chores that

include caring for his mother and his apartment might be somewhat overwhelming, causing him

to deliberately absent himself from work. At the same time, his absences were methodical and

calculating in that the days that he selected to report for work were the ones that were important

to him because he had to prepare his time cards.

Accordingly, respondent did not meet his burden of proving that he suffered from a

disability that caused his proven misconduct. Respondent’s motion to convert this proceeding to

a section 72 proceeding is, therefore, denied.

FINDINGS AND CONCLUSIONS

1. Petitioner proved that respondent repeatedly slept on the job on 31 days over a 10-month period, in violation of sections III(28) and III(29) of HRA Executive Orders Nos. 651 and 726.

2. Petitioner proved that respondent was absent for 70 full

days and 13 partial days over an 18-month period, and was late on 19 occasions over a twelve-month period, totaling 394 minutes (which constituted excessive lateness), without

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prior or subsequent authorization, in violation of section III-A of HRA Procedures No. 03-03.

3. Petitioner proved that respondent took excessive

undocumented sick leave and failed to provide documentation while under Doctor’s Note Restriction, in violation of section II-K of HRA Procedures No. 03-03.

4. Petitioner proved that respondent was discourteous to his

supervisor when he shouted at her and alarmed his co-workers on August 27, 2009, in violation of section II-B of HRA Executive Order No. 651.

RECOMMENDATION

Upon making my findings, I requested and received respondent’s personnel abstract.

Respondent was appointed as a clerical associate in May 2004. In 2008, he executed a

stipulation agreement for a 20-day suspension, in settlement of two sets of charges for multiple

instances of sleeping on the job, absences without prior or subsequent approval, and latenesses,

from August 2006, through July 2007. In his performance evaluation for the period April 2008,

to May 2009, respondent received an overall rating of “marginal.”

Here, petitioner proved that respondent: repeatedly slept on the job, was absent on 70 full

days and 13 partial days without prior or subsequent approval, and repeatedly took

undocumented sick leave even though he was on Doctor’s Note Restriction that required him to

submit documentation for each instance of absenteeism allegedly due to an illness; was late on

19 separate occasions over a twelve-month period, totaling 394 minutes, which was excessive;

and was discourteous to his supervisor when she attempted to serve him with charges. For the

proven misconduct, petitioner seeks respondent’s termination.

This tribunal has often applied the fundamental principle of 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 12 (Feb. 6, 1990). The concept underlying progressive discipline is

employee behavior modification through increasing penalties for repeated or similar misconduct.

See Health & Hospitals Corp. (Woodhull Medical & Mental Health Ctr.) v. Ford, OATH Index

No. 2383/09 at 11 (July 10, 2009); Health & Hospitals Corp. (Kings Co. Hospital Ctr.) v.

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Meyers, OATH Index No. 1487/09 at 8 (Jan. 26, 2009); Human Resources Admin. v. Beauford,

OATH Index No. 1517/03 at 18 (Dec. 5, 2003), aff'd, NYC Civ. Serv. Comm'n Item No. CD06-

15-SA (Jan. 9, 2006).

Respondent’s misconduct relating to time and leave and sleeping on the job is

particularly egregious because it occurred with such regularity that respondent’s supervisors

were unable to rely on him and had to reassign his tasks to other workers who had become

disgruntled at having to assume respondent’s job responsibilities. Thus, petitioner’s request for

termination is not unreasonable. See Bd. of Education v. Bell, OATH Index No. 1770/98 at 4

(Aug. 3, 1998) (termination is appropriate for an employee who was excessively late, excessively

absent, and neglected her duties).

In cases that primarily involved time and leave infractions, this tribunal has

recommended penalties short of termination in spite of prior disciplinary history, because

compelling mitigating reasons were found for the proven misconduct and/or because the

respondent pled for another chance to redeem him or herself. See Human Resources Admin. v.

McCaskill-Bourdeau, OATH Index No. 164/11 at 20 (Oct. 22, 2010) (60-day suspension

recommended where respondent, a 16-year employee, was insubordinate to her supervisor, was

late on 84 occasions totaling close to 3,000 minutes over a 12-month period, was excessively

absent over a nine-month period, including 17 days of absence without leave); Health &

Hospitals Corp. (Woodhull Medical & Mental Health Ctr.) v. Carter, OATH Index No. 2101/06

at 14-15 (Nov. 2, 2006) (60-day suspension recommended where respondent, a nine-year

employee with an extensive disciplinary history, was late eleven times totaling 547 minutes in a

two-and-a half month period, and excessively late in each of four months); Dep’t of Correction

v. House, OATH Index No. 385/00 at 12 (July 7, 2000), aff’d, Comm’r Dec. (July 29, 2002) (60-

day suspension recommended where respondent, with a significant disciplinary history and

record of lateness, stipulated to 36 occasions of lateness totaling 49 hours of missed time over an

eight-month period).

The multiple reasons that respondent offered for his absences and latenesses (domestic

chores, preparing tax returns, preparing for jury duty, etc.) were non-mitigating. Respondent

suggested that when his mother is ill, he is consumed with more responsibilities. While

plausible, it was defeated by his repeated pattern of absences even when his mother was not in

the home in the summer of 2010. Moreover, when asked to articulate reasons why his job should

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be spared, respondent expressed no plea for leniency, but, instead, singularly focused on the

plumbing and woodworking problems in his apartment, and the money that he had to spend on

repairs (Tr. 217-18). Thus, contrary to McCaskill-Bourdeau, Carter, and House, there is nothing

to suggest that respondent appreciates the gravity of his misconduct, or that he is prepared to

remedy it. This is underscored by respondent’s failure to modify his behavior after his prior

penalty for similar misconduct.

Accordingly, I find termination to be appropriate, and I so recommend.

Ingrid M. Addison Administrative Law Judge

December 30, 2010 SUBMITTED TO: ROBERT DOAR Commissioner APPEARANCES: MATTHEW WOLF, ESQ. JESSICA LEVIE, ESQ. Attorneys for Petitioner MARTIN DRUYAN, ESQ. Attorney for Respondent

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NYC Civ. Serv. Comm’n Decision, Item No. CD 11-69-A (Sept. 22, 2011) THE CITY OF NEW YORK CIVIL SERVICE COMMISSION__________________________________________________________ In the Matter of the Appeal of: TIMOTHY KRISILAS Appellant -against- NYC HUMAN RESOURCES ADMINISTRATION Respondent Pursuant to Section 76 of the New York State Civil Service Law_____________________________________________________ PRESENT: NANCY G. CHAFFETZ, COMMISSIONER CHAIR RUDY WASHINGTON, COMMISSIONER VICE CHAIR CHARLES D. MCFAUL, COMMISSIONER ALINA A. GARCIA DIRECTOR/GENERAL COUNSEL AMANDA M. WISMANS ATTORNEY FOR THE COMMISSION MARTIN DRUYAN, ESQ. REPRESENTIVE FOR APPELLANT STEPHANIE MACKIND, ESQ. REPRESENTATIVE FOR RESPONDENT APPELLANT NOT PRESENT

STATEMENT

On Thursday, September 8, 2011 the City Civil Service Commission heard oral argument in the appeal of TIMOTHY KRISILAS, Clerical Associate, NYC Human Resources Administration (“HRA”), from a determination by the NYC HRA, finding him guilty of charges of incompetency or misconduct and imposing a penalty of TERMINATION following an administrative hearing conducted pursuant to Civil Service Law Section 75.

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COMMISSIONERS' FINDINGS

After a careful review of the testimony adduced at the departmental hearing and based on the record in this case, the Civil Service Commission finds no reversible error and affirms the decision and penalty imposed by the New York City Human Resources Administration. NANCY G. CHAFFETZ, Commissioner/Chair, Civil Service Commission RUDY WASHINGTON, Commissioner/Vice Chair, Civil Service Commission CHARLES D. McFAUL, Commissioner, Civil Service Commission September 22, 2011

Documents

Human Resources Admin. v. Krisilas - CityAdmin Online ...archive.citylaw.org/oath/11_Cases/11-931.pdf · work on 21 occasions ... submitted a two-paragraph letter which contained