Fired Over Grievance
Rule DDC Engineer A Retaliation Victim

By GINGER ADAMS OTIS

A Mechanical Engineer who was wrongfully terminated from his position in the Department of Design and Construction for complaining about being assigned out-of-title work has won a lawsuit to get his job back, along with lost promotional pay expected to total approximately $60,000.

The Chief-Leader/Pat Arnow 'JUSTICE PREVAILED': Attorneys Philip Taubman and Antonette Milcetic helped Mechanical Engineer Kenneth Johnson prevail in a four-year legal battle against the Department of Design and Construction. Ms. Milcetic, commenting on the unanimous ruling from four Appellate Division judges, said the DDC's argument that it could evaluate workers under in-house titles 'was an attempt to circumvent the entire civil-service system.'

A four-judge State Supreme Court Appellate Division panel confirmed a ruling issued by a lower court two years earlier that said the DDC's firing of Kenneth Johnson "epitomizes bad faith." Queens Supreme Court Justice Peter J. O'Donoghue found that the DDC had dismissed Mr. Johnson in retaliation for filing a union grievance against the agency.

City Appeal Backfires

Justice O'Donoghue in 2004 ordered Mr. Johnson reinstated to his position with back pay and lost wages, but initially denied him attorney costs.

The Law Department, representing the DDC, appealed the 2004 ruling. Last month the Appellate Division unanimously agreed to uphold the original decision, and added attorney fees to Mr. Johnson's award.

"I think [my client's] termination was a personal vendetta situation. When he complained about his position and duties, his supervisors went out of their way to terminate him," said attorney Philip E. Taubman, lead counsel for Mr. Johnson. "It wasn't fair, and it wasn't legal."

Francis Caputo, the Law Department's Deputy Chief of Appeals Division, issued a brief statement confirming there would be no second appeal. "While we are disappointed by the Appellate Division's decision, we have decided not to seek further review," he said.

Mr. Johnson initiated Article 78 proceedings after he was unexpectedly terminated by the DDC Jan. 29, 2002.

Chance to Move Up

He had been employed with the Department of Transportation in the civil service title of Assistant Mechanical Engineer since June 1979. After obtaining his engineering license in 1996, he applied for and successfully completed an open-competitive examination for the title of Mechanical Engineer Level 1.

The city notified Mr. Johnson on Jan. 5, 2001 that he had been certified for that title by the Department of Citywide Administrative Services. He was appointed to the position on Feb. 26 and placed on a year's probation. His hiring notice stated that he would be evaluated quarterly, on or around May 26, August 26, November 26 and February 25, 2002.

Mr. Johnson provided the court with DDC reviews for the first six months on the job, stating that he performed tasks commensurate with the duties of Mechanical Engineer Level 1.

His initial quarterly evaluation stated that from Feb. 26 to May 25 he performed satisfactorily in attendance, punctuality, cooperation, initiative, dependability, and quality of work. Satisfactory was the highest rating available, the documents show. The evaluation listed his title as Mechanical Engineer Level 1.

The section titled "Key Responsibilities and Performance Expectations" was left blank, as was the section for additional comments.

His second probationary report, dated Oct. 15, covered his work from May 26 though Aug. 25 and gave him the same satisfactory rating throughout. The sections pertaining to job description and additional comments were left blank, except for one line that said: "Kenneth is performing satisfactorily in all his key responsibilities as a project manager and learning DDC's project management procedures."

On Oct. 22, 2001 Mr. Johnson was informed that he would in the future be working in a non-engineering position as a project manager for DDC. He contacted his union representative from District Council 37's Local 375, Civil Service Technical Guild, and filed a Step 1 grievance with the DDC's Director of Human Resources. He said that attempts to make him do out-of-title work violated the collective bargaining agreement between the union and the DDC.

He also sent a memo directly to the Human Resources Director, Marisa Allard, seeking clarification of his position and reiterating that he'd been hired Feb. 26 off a civil service list for Mechanical Engineer Level 1.

Viewed It As Demotion

"On Oct. 22, I was informed that the position that I would be working in would be a non-engineering position that (a) would require signing annual non-engineering performance evaluations, (b) does not require a valid [Professional Engineer] license and (c) would be a position at a level below that of a Mechanical Engineer Level 1. This position is unacceptable, and would have immediately been declined if offered to me on Feb. 26," Mr. Johnson wrote.

Before getting a response to his e-mailed memo, which he copied to other agency and union officials, Mr. Johnson received a third probationary performance report. It was signed by his supervisor Nov. 8, and covered his work from Aug. 26 to Oct. 25. It listed him as a Mechanical Engineer Level 1, rated him as satisfactory in the usual categories, and left the sections for comments and job description blank.

A few days later he got a response from Marta Bechtold, DDC's Director of Labor Relations. She asked to meet with him to discuss his job title. Mr. Johnson responded that his Oct. 25 e-mail was perfectly clear. He was only interested in discussing his immediate placement in a position compatible with this civil service title, he said.

Bothered by Snub

Ms. Bechtold e-mailed Ms. Allard in Human Resources, according to court documents, and stated that Mr. Johnson refused to meet with her, and asked for Ms. Allard's opinion on how to handle the issue.

Later that day, Mr. Johnson received a "non-managerial performance evaluation form" to look over and sign.

It listed his title as non-civil service project manager and set the review period as Feb. 28, 2001 to June 30.

Justice O'Donoghue noted in his decision that the form was "substantially different" than the other evaluation forms given to Mr. Johnson, and that it rated his performance doing project manager duties, "which are substantially different than that of Mechanical Engineer."

The form contained 14 categories deemed "highly important," and Mr. Johnson was rated a three out of five for each. A rating of three indicated a worker "fully meets requirements," the document noted.

'Must Be More Aggressive'

In another section, under comments, a supervisor wrote, "Although Ken is still new to the agency and not familiar with all of the internal procedures, he needs to be more aggressive in tracking his projects and updating his project directors of project status."

The supervisor noted that Mr. Johnson's "professional expertise was also acknowledged," but that he would "benefit from attending agency training sessions to familiarize himself with agency procedures."

It was signed by a reviewing manager and rating supervisor, and contained lines for Mr. Johnson's signature. But he refused to sign the evaluation on the grounds that it incorrectly listed his title and rated him on performance of duties not commensurate with the responsibilities of a Mechanical Engineer Level 1.

Ominous Reminder

A DDC manager sent an e-mail to one of Mr. Johnson's supervisors noting that he wouldn't sign his performance review. She closed the e-mail by reiterating that "he is still on probation."

Mr. Johnson met with DDC Assistant Commissioner Louis Rueda Dec. 11 to discuss his problem. Mr. Johnson maintained he was hired as a Mechanical Engineer Level 1; Mr. Rueda said he had been hired as a project manager, not an engineer.

On Dec. 13 Mr. Johnson received another quarterly evaluation report, this one claiming to cover the period of Aug. 26 through Nov. 25. It was signed by a DDC supervisor.

It gave Mr. Johnson a satisfactory rating for attendance and punctuality, but said he needed improvement in cooperation, initiative, dependability and quality of work. His overall rating was "needs improvement," and a comment was added that Mr. Johnson had been "less cooperative" and was not responding to requests.

Escalating Drumbeat

Mr. Johnson said he never received a copy of that evaluation, but it had been placed in his personnel file. Eight days later, he got another evaluation report. It claimed to assess his work from Nov. 8 to Dec. 8 - a period of time already partially covered by the earlier evaluation.

It stated that "within the past month, Ken has become increasingly more uncooperative with some of his project directors (not performing the tasks they have directed him to do). He is not adequately performing the duties assigned to him as a project manager."

He was rated satisfactory for attendance and punctuality, unsatisfactory for cooperation, initiative and dependability, and "needs improvement" for quality of work. His overall rating was unsatisfactory, and comments suggested he needed to "follow the direction of his supervisors and respect their authority and experiences." Mr. Johnson refused to sign it.

DCAS Noncommittal

Instead, he sent a letter to DCAS dated Dec. 21, inquiring about his employment as a Mechanical Engineer Level 1. DCAS responded Dec. 27 with a generic description of that title, and a reminder that the proper procedure for concerns about out-of-title work was to file a grievance.

Mr. Johnson received another evaluation report Jan. 11, 2002, claiming to assess his work from Dec. 9 to Jan. 8. It stated that "Ken is not performing the duties assigned to him in a timely manner, and is not properly monitoring his projects."

It rated him unsatisfactory in everything but attendance and punctuality. He was given an unsatisfactory rating overall, and a line was added that "Ken continues not to follow the directions of his supervisors." His refusal to sign the evaluation was also included in the comments section.

Mr. Johnson filed a Step II grievance Jan. 17, 2002. The DDC didn't responded to his Step 1 grievance, and it failed to respond to the Step II grievance as well.

Questioned Ratings

On Jan. 28, Mr. Johnson sent a memo to two of his supervisors disputing the unsatisfactory ratings they had given him. He stressed that he was not hired for the job duties they had assigned him, and pointed out that their claims about his work were made without any supporting documentation or evidence. He copied the Office of Labor Relations, Human Resources, and the DDC's executive officers.

The next day, Mr. Johnson received a letter from DDC terminating his employment at the agency. The letter said he could resume his old position at DOT, which he did.

Local 375 filed a Step III grievance for Mr. Johnson on Feb. 1, arguing that he had been assigned and forced to perform out-of-title work in violation of the union's collectively bargained agreement and citywide contract. The union requested a hearing on the petitioner's out-of-title claim.

An arbiter held hearings April 12 and May 12 solely on whether DDC violated the collective bargaining agreement by assigning Mr. Johnson project manager duties. On June 23, 2002, he issued a ruling determining that DDC had violated the contract by forcing Mr. Johnson to work out of title, but he awarded no remedy.

The union proceeded with its Article 78 court case and, after numerous cross-motions and motions to dismiss, the issue was considered by Queens County Supreme Court in October 2003.

The judge dismissed the DDC's argument that Mr. Johnson had been hired to do work as a project manager, even though his civil service title was Mechanical Engineer Level 1.

The judge also rejected the agency's assertion that it routinely evaluated probationary hires with two sets of reports: one for the civil service title and one for the office title. The agency contended that Mr. Johnson was terminated solely for his poor performance as a project manager.

'Retaliatory Firing'

"Mr. Johnson has presented sufficient evidence in support of his claim that this termination was made in bad faith and constituted a retaliatory discharge, based upon his filing of a grievance," Justice O'Donoghue stated.

He observed that DDC documents showed Mr. Johnson was hired as a Mechanical Engineer Level 1, and for the first six months performed duties commensurate with the civil service title to the satisfaction of department supervisors.

But the same day Mr. Johnson e-mailed the head of Labor Relations, Nov. 26, he got a non-managerial performance evaluation stating that he wasn't doing well as a project manager, the judge observed.

"The court rejects the DDC's assertion that it was entitled to evaluate Mr. Johnson's performance in an 'in-house' title as well as his civil service title. Respondents cannot point to any provision in either City or State Civil Service Law or the collective bargaining agreement which permits the use of 'in-house' evaluations based on such titles," he wrote.

He accused the DDC of creating a system of "bogus titles," which disregarded and undermined the civil service system "and promotes the systematic assignment of out-of-title work."

The ruling closed with an order to reinstate Mr. Johnson to his promotional title within 15 days, with back promotional pay and lost wages. The city appealed the decision, which delayed Mr. Johnson's reinstatement another two years, until last month's Appellate Division decision.