Exonerate Sanit Super
Illness Can Justify Disobeying Orders

By GINGER ADAMS OTIS

An Office of Administrative Trials and Hearing Judge has dismissed charges brought against a Department of Sanitation Supervisor who refused to follow a Superintendent's order to investigate a crash because he wasn't feeling well.

Administrative Law Judge Kara J. Miller found that Sanitation Supervisor Gilbert Keyes's failure to comply was reasonable under the health and safety exception to DSNY's "obey now, grieve later" policy.

The agency didn't meet the burden of proof required to enforce Section 16-106 of the city's Administrative Code, she said.

A Day He Couldn't Miss

DSNY wanted to bring disciplinary charges against Mr. Keyes after he refused to comply with an order to investigate the scene of a crash involving a departmental vehicle on June 4, 2005.

Mr. Keyes showed up for his regular 4 p.m. to midnight shift at Manhattan's 7th District Garage that day feeling ill. He told several colleagues of his discomfort, and they told him he should go home.

But Mr. Keyes, scheduled to take a vacation the following day, knew that an absence the day before an approved leave was frowned upon. He elected to stay at the garage.

Several colleagues, including DSNY Supervisor Joseph Smyth, who worked the previous shift, offered to stay in his place and work overtime.

'Wasn't Himself'

Both Mr. Smyth and Supervisor Michael Delmar, who was assigned to the 4 p.m. to midnight tour, told Judge Miller that Mr. Keyes "didn't seem to be himself that day."

The garage where Mr. Keyes worked is located next to the Lincoln Tunnel. At 7:30 p.m., Superintendent Joseph Douse told him to travel to the New Jersey side of the tunnel to investigate an accident involving a DSNY truck.

Superintendent Douse alleged in his complaint that Mr. Keyes first said he was too busy handling other responsibilities to go to New Jersey. When told that he must go, Mr. Keyes said he was sick, Mr. Douse contended.

Mr. Keyes denied saying he was too busy. Both parties agreed that he said he was too sick to follow the order. Mr. Douse said he told Mr. Keyes that if he was that unwell, he should sign out and go home.

A Late Arrival

Another supervisor was sent to the accident, but because of the delay, arrived after some of the parties involved had left the scene.

Superintendent Douse admitted to Judge Miller that he had no reason to doubt the respondent was sick. Mr. Douse did not initiate the claim against Mr. Keyes. It was filed at the direction of Charles Burge, a Field Investigative Audit Team officer who was working in the radio room at the time of the incident.

Judge Miller found credible Mr. Keyes's testimony that he had informed Supervisor Delmar of his illness before speaking to Mr. Douse. Mr. Delmar confirmed that account, stating that the respondent said he was too sick to work before being asked to investigate the accident.

Another Supervisor at Manhattan's 4th District Garage, William Koppie, overheard the radio exchange between the two men. He testified that he heard Mr. Keyes say he was too ill to drive, but never heard him say he was too busy to comply with the directive.

Had Vertigo

Mr. Keyes signed out from work shortly after the exchange with Superintendent Douse and was driven to a nearby hospital, where he was diagnosed with vertigo. A few days later he was examined by his private physician, who confirmed the diagnosis.

DSNY argued that Mr. Keyes had violated the "obey now, grieve later" principle by refusing to drive to New Jersey, but Judge Miller said a clear exception to that rule existed when there was a threat to the health and safety of any person.

Mr. Keyes credibly established that he was feeling ill when he arrived at work, Judge Miller said, and that he believed he was unable to drive due to the dizziness he was experiencing.

"I find that suffering from vertigo is an imminent and serious health threat to someone ordered to drive through the Lincoln Tunnel," wrote Judge Miller. "[Mr. Keyes] could clearly have endangered not only himself, but other drivers as well. ... I find that [Mr. Keyes] did not commit misconduct."