Punched Out Supervisor
Recommend 60-Day Ban for SanWorker

By REUVEN BLAU

A veteran Sanitation Worker and union trustee should be suspended for 60 days for punching the Sanitation Department's Brooklyn Borough Commissioner after a heated work-related dispute in 2006, an Administrative Law Judge has recommended.

KEVIN CASEY: 'A duty to avoid fights.'

The Office of Administrative Trials and Hearings judge also found that Sanitation Worker Thomas Bacigalupo refused to submit to a drug-and-alcohol test after the fight, which left his supervisor, Nicholas Saggese, with a fractured eye socket and a mild concussion.

Rejects Self-Defense

"Respondent's claim of self-defense fails because, regardless of who threw the first punch, he willfully engaged in an on-duty fight and did not take reasonable steps to avoid the altercation," ruled ALJ Kevin F. Casey.

The April 6, 2006 incident occurred outside the department's Brooklyn North office at Hamilton Ave. In the morning, Mr. Bacigalupo called Mr. Saggese, asking if city Sanitation Workers were picking up commercial refuse without the mandated Health Department emergency order. The order is needed during a private carter strike, which was under way at that time.

Mr. Saggese responded that he had the health documents, but refused to fax them over immediately and hung up on Mr. Bacigalupo after a brief vitriolic verbal argument ensued.

Later that day, Mr. Bacigalupo traveled to his supervisor's office, seeking the health orders. Once inside, the verbal argument escalated, ending with the two men agreeing to go outside to settle their differences, the OATH judge concluded.

Quiet, Yes; Peace, No

The men, however, claimed that they left the building to discuss the issue further because it was noisy inside.

But the Administrative Law Judge discredited their explanation. "Respondent and Saggese each tried to minimize their own culpability," Mr. Casey said. "However, the evidence established that they were both willing participants in a verbal altercation that escalated to violence."

The 14-page recommendation noted that the two men had a history of animosity towards each other based on previous work disputes over contract rules. "They agreed to 'take it outside,''' Mr. Casey concluded.

During the OATH proceeding, Mr. Bacigalupo contended that once outside he acted in self-defense, because his back was literally up against a garage door. He testified that in one rapid motion Mr. Saggese reared back, coiled, and swung his left arm. According to Mr. Bacigalupo, the punch grazed his shoulder and head and led him to respond in kind.

Mr. Saggese, however, testified that he was punched after he began to walk away from the argument. (He has since filed a multi-million-dollar civil lawsuit against Mr. Bacigalupo and the Uniformed Sanitationmen's Association.)

Mr. Casey ruled that it does not matter who started the fight if both willingly participated. "Employees have a duty to avoid fights and may use reasonable force in self-defense only if there is no realistic means of avoiding a physical confrontation," he said. "They voluntarily agreed to put themselves in a position that was likely to lead to violence."

Deputy Chief Thomas Keilleen and Operations Superintendent Joseph Bugliaro testified at the OATH proceeding that they also left the building, but did not actually witness the fight. Following the altercation, they said they ordered Mr. Bacigalupo to stay for a drug-and-alcohol test, but he brushed them off and left.

Mr. Bacigalupo said he felt threatened by the two supervisors and claimed that he never heard an order to wait to be tested. After about 10 to 15 minutes at the scene, he testified that he drove towards his Staten Island home and called USA President Harry Nespoli.

Turned Himself In

Following his conversation with Mr. Nespoli, who wasn't immediately available, he returned to Brooklyn and voluntarily surrendered to the police, who arrested him for assault.

He was released on his own recognizance and, following a criminal trial, acquitted of all charges, the OATH decision noted. After serving a 30-day pre-trial hearing suspension, he was reassigned to work at the union hall, Mr. Casey said.

Shortly after his arrest, he took a polygraph test to support his argument that his version of what occurred was truthful. He also submitted hair follicles for substance-abuse testing, which were negative for long-term drug use.

The DSNY was seeking to fire Mr. Bacigalupo. Mr. Casey, however, noted that he was a veteran employee who began his career with the department in 1985. Since that time, he had one prior misconduct penalty more than 20 years ago, the OATH judge pointed out.

"A penalty short of termination does not excuse respondent's misconduct, but it gives appropriate mitigating weight to the provocation that led to this deplorable incident," Mr. Casey ruled.

The recommendation was forwarded to DSNY Commissioner John Doherty, who has final authority in disciplinary matters.