Fire Dep't v. Silvestri

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1Fire Dep't v. Silvestri

OATH Index No. 613/05 (May 5, 2005)


Firefighter found to have been in possession of alcohol while on duty and to have struck another firefighter with a metal chair, causing severe injuries. ALJ rejected firefighter's defense of lacking any intent to injure victim due to post-traumatic stress disorder. Despite numerous mitigating factors, including possible post-traumatic stress, service during the weeks following 9/11, and an unblemished record, appropriate penalty found to be termination.

_________________________________________________


NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of

FIRE DEPARTMENT


Petitioner

- against -


MICHAEL SILVESTRI

Respondent

_________________________________________________



REPORT AND RECOMMENDATION

JOHN B. SPOONER, Administrative Law Judge

In this case, petitioner, the Fire Department, brought disciplinary charges against respondent Michael Silvestri, a firefighter, alleging that he assaulted and injured another firefighter and was in possession of alcoholic beverages on the night of December 31, 2003.

At the hearing held on January 20 and 31, February 1, and March 1 and 4, 2005, petitioner presented written summaries of the interviews of three eyewitnesses. Without controverting these eyewitness accounts, respondent contended that he suffered from post-traumatic stress disorder ("PTSD") and, in support of this contention, called as witnesses his fiancée, his treating psychiatrist, another firefighter, a psychologist, a Department counselor, and a Department captain.

For the reasons provided below, I find that the two most serious charges should be sustained and that respondent should be terminated.


ANALYSIS


The charges in this case1 concern a widely publicized incident that occurred on the night of December 31, 2003, at a firehouse in Staten Island, where Firefighter Robert Walsh was struck in the head with a metal chair and severely injured. Following the incident, respondent was charged with a number of misconduct specifications, including possession of alcoholic beverages, engaging in a physical altercation, and failing to notify the department of rule violations. It is undisputed that respondent wielded the metal chair that struck Mr. Walsh in the head and that the incident was witnessed by three other uniformed staff members: Captain Terrence Sweeney, Firefighter Joseph Spitalieri, and Firefighter David Johnsen. At the hearing in this case, none of the eyewitnesses testified. Respondent, on advice of his attorneys, also chose not to testify due to the pending criminal case involving the same incident.2 Petitioner, apparently at the request of the criminal prosecution, did not order appearances by or subpoena any of the eyewitnesses. The four eyewitnesses, other than respondent, did not respond to subpoenas issued to them on behalf of respondent's attorney.

Witness Statements About Injuries to Firefighter Walsh

Petitioner's evidence in support of the charges thus consisted of hearsay statements of Captain Sweeney and Firefighters Spitalieri and Johnsen, made to a police officer investigating the incident. Detective John Scotto testified that, in the early morning hours of January 1, 2004, he and another police officer responded to Engine 151, Ladder 76, where Firefighter Walsh was injured. After considerable discussion between the union and the upper level supervisors, the detectives were permitted to interview Captain Sweeney and Firefighters Spitalieri and Johnsen (Tr. 21-25). All three

witnesses were interviewed again approximately three weeks later and provided a somewhat more detailed account of the incident (Tr. 32, 44, 49). The statements (Pet. Exs. 4-7) made in these interviews were summarized in reports written by Detective Scotto.

Captain Sweeney stated that, sometime after 5:00 p.m. on December 31, 2003, he gave Firefighter Walsh $20 to buy some beer. Firefighter Walsh returned with a 30-pack of beer and placed it outside in a court yard beside the firehouse in a bag. Captain Sweeney, Firefighter Walsh, and other firefighters began drinking the beer. At around 6:00 p.m., Captain Sweeney went into the kitchen where Firefighters Walsh, Spitalieri, and Johnsen were sitting. Firefighter Walsh was drinking beer. Respondent entered and started mixing some sangria that he had brought into the firehouse. Respondent and Firefighter Walsh began arguing about various things.3 At one point, respondent called Mr. Walsh a "big fag." Mr. Walsh retorted, "I might be a fag, but you are the one that fucked three guys out of overtime."4 Respondent angrily walked around the table and struck Mr. Walsh in the face with a heavy metal chair5 and then jumped on top of Mr. Walsh. Captain Sweeney, Lieutenant Raymond Kane, and other firefighters separated the two. According to Detective Scotto, Captain Sweeney expressly stated that Mr. Walsh was seated at the time he was struck with the chair (Tr. 42, 57).

The captain and other staff members then tried to stop Mr. Walsh's bleeding with towels and coffee filters. Around 6:30 p.m., as Captain Sweeney and Firefighter Spitalieri took Mr. Walsh by car to the hospital, Mr. Walsh stated, "Tell them I fell down the stairs."

At the hospital, Captain Sweeney initially told the medical staff that Mr. Walsh had fallen down the stairs. As the reports of his condition became more serious and he slipped into a coma due to the severe loss of blood, the captain told a nurse that Mr. Walsh had been struck with a chair. Captain Sweeney's interview statements were commemorated in a report (Pet. Ex. 4) written by Detective Scotto soon after the interview.

In his interview statement (Pet. Ex. 6), Firefighter Spitalieri stated that he had reported to work around 5:00 p.m., only to find that he had not been scheduled to work. Before going home, he went with Captain Sweeney into the kitchen where he found Firefighters Walsh, Johnsen, Salvatore Velez, and respondent. Mr. Walsh and respondent were arguing about various topics, including overtime. Firefighter Velez left the kitchen. As the argument between Mr. Walsh and respondent became more heated, Firefighter Johnsen got up from the table and walked over to a bulletin board. From there, Mr. Spitalieri heard respondent say to Mr. Walsh, "I should hit you with a chair." Mr. Walsh replied, "I will pay to see you do it." Mr. Spitalieri then heard the sound of a chair hitting something, and turned around to see Captain Sweeney jumping over the table as respondent and Mr. Walsh punched each other on the floor. Captain Sweeney shouted at respondent to "pack your stuff and get out of here." Mr. Spitalieri told Mr. Walsh he had to get him to a hospital. Mr. Walsh tried to use coffee filters to cover his injury, while Mr. Spitalieri got some towels. After Mr. Spitalieri ran and got his car, he drove Mr. Walsh and Captain Sweeney to the Staten Island University Hospital North. Mr. Spitalieri heard Captain Sweeney tell Lieutenant Kane over his cell phone, "Bobby said he fell. We are going with that." Captain Sweeney then said, "It's your career on the line." Around 7:00 p.m., they arrived at the hospital and told the medical staff that Mr. Walsh had fallen down the stairs. Some time later Mr. Spitalieri overheard Captain Sweeney tell a nurse that Mr. Walsh had been struck with a chair.

In his interview, Firefighter Johnsen told Detective Scotto (Pet. Ex. 7) that he went into the kitchen around 6:00 p.m. and saw Firefighters Spitalieri, Walsh, and Captain Sweeney with respondent in the kitchen. He heard respondent tell Mr. Walsh, "You are an asshole. You think you are a big shot. You think you know everything. Why don't you leave?" In reply, Mr. Walsh said, "I am on two hours of overtime, not 15." At this, respondent said, "I have to get away from the kitchen. I'd like to hit you with a chair." Mr. Walsh retorted, "I would pay to see that." Respondent then picked up a chair and struck Mr. Walsh and then either fell or jumped on Mr. Walsh. Captain Sweeney jumped over the table to separate the pair. Firefighter Johnsen looked at the clock and saw it was 6:45 p.m. According to Detective Scotto, Mr. Johnsen also stated that Mr. Walsh was seated and not looking at respondent at the moment he was struck with the chair. Mr. Johnsen also indicated that, in hitting Mr. Walsh with the chair, respondent swung the chair hard, "swinging for the bleachers" (Tr. 53).

Mr. Johnsen heard Mr. Walsh tell another firefighter that he had fallen down the stairs. Mr. Johnsen told Mr. Walsh he had to go to the hospital, but Mr. Walsh replied, "Give me five minutes" and walked over to the sink and got some coffee filters to put on his face. Firefighters Johnsen and Velez mopped and cleaned the kitchen. Respondent stayed in the locker room. At some point, Firefighter Velez reported that respondent told him he did not remember what had happened. He also said that respondent was upstairs cleaning out his locker and he apologized for what had happened.

According to the medical evidence (Pet. Ex. 20), Mr. Walsh received a "3-4 cm large deep laceration to his right maxillary region." His blood alcohol reading was .054 per cent, which would constitute evidence that he had been drinking but was probably not intoxicated. See Vehicle and Traffic Law §1195 (2)(b) (Lexis 2005).

In the face of this overwhelming evidence that respondent struck Mr. Walsh with a chair, respondent's attorney offered no evidence of his own as to what took place.6 Instead, he suggested that petitioner's evidence was either contradictory or supported a conclusion that respondent acted, not out of anger, but due to fear of being attacked by Mr. Walsh. Counsel grounded this latter argument upon a contention that, at the time Mr. Walsh was struck by the chair, Mr. Walsh was not seated and was walking toward respondent. However, there was no evidence to support such a finding. All three eyewitnesses recalled that Mr. Walsh was seated facing away from respondent at the time respondent struck him with the chair. Counsel's argument in his closing that the severe injuries to the right side of Mr. Walsh's face are inconsistent with Mr. Walsh being seated was entirely unpersuasive. It was unsupported by any of the evidence presented, which all indicated that Mr. Walsh was struck as he was seated and looking away from respondent. Although counsel insisted that it would have been "impossible" for respondent to have swung the chair in such a way as to have struck Mr. Walsh on the right side of his face, it seemed imminently possible that respondent swung the chair in a counter-clockwise circular motion toward Mr. Walsh, striking him first on the right side of his face. This certainly seemed far more plausible than respondent's proposed scenario, in which Captain Sweeney, Mr. Spitalieri, and Mr. Johnsen were making false statements in order to suppress a minor movement by Mr. Walsh just before he was struck.

Some other credibility matters warrant mention. As argued by respondent's attorney, Captain Sweeney apparently participated in the attempted cover-up of the incident by initially telling the medical staff that Mr. Walsh had fallen down the stairs. This is, of course, an important factor to consider in assessing the truthfulness and reliability of the hearsay statements. It was also true that, according to Detective Scotto as well as Mr. Spitalieri and Mr. Johnsen, after the condition of Mr. Walsh deteriorated, Captain Sweeney revealed the truth to a nurse and stated that Mr. Walsh had not fallen but had been struck with a metal chair. While this retraction of the previous lie does not totally negate its significance, it does suggest that in general Captain Sweeney ultimately provided a truthful and reliable account of what happened in the kitchen and how Mr. Walsh was injured.

It is also notable that the accounts of the three eyewitnesses, while not so similar as to suggest collaboration, were consistent and corroborate one another to a considerable extent. Other than an initial motive to conceal the managerial negligence of permitting alcohol to be imbibed at the firehouse, none of these eyewitnesses had any apparent motive to lie about the cause of Mr. Walsh's injuries. The initial statements by the three eyewitnesses were made within hours of the incident, and the follow-up statements within three weeks after the incident, at a time when the details should have been fresh in the witnesses' memories. The hearsay statements were further corroborated by the other hearsay statements of firefighters who entered the kitchen seconds after the injury and were apparently told that respondent had struck Mr. Walsh. The eyewitness accounts were consistent with the fact that, according to Mr. Velez, respondent immediately stated that he had no memory of what had happened to Mr. Walsh or of his own role in the incident.

For all of these reasons, I found the three hearsay accounts to be highly reliable and worthy of considerable weight.

Based upon these three hearsay statements, I find that the incident occurred as follows. On the night of December 31, 2003, at around 6:45 p.m., Captain Sweeney, Firefighter Johnsen, and respondent were all seated at a table in the kitchen at Engine 151, with Firefighter Spitalieri looking at a bulletin board along one wall. Respondent had been mixing sangria and Captain Sweeney and Mr. Walsh had been drinking beer. Respondent and Firefighter Walsh began arguing about various things. At one point, respondent called Mr. Walsh a "big fag." Mr. Walsh retorted, "I might be a fag, but you are the one that fucked three guys out of overtime." Respondent told Mr. Walsh, "I'd like to hit you with a chair." Mr. Walsh retorted, "I would pay to see that." Respondent angrily walked around the table, picked up a heavy metal chair, struck Mr. Walsh on the right side of his face, and then jumped on top of Mr. Walsh. Captain Sweeney jumped over the table and separated the two firefighters. The blow from the chair caused a deep gash to Mr. Walsh's face and resulted in a severe loss of blood. Captain Sweeney drove Mr. Walsh to a hospital and initially told the emergency medical personnel that Mr. Walsh had fallen down some stairs, changing this story only after Mr. Walsh's condition became increasingly perilous. At the time of the incident, respondent stated that he had no recollection of what had occurred.

In most cases, these fact-findings alone would be sufficient to establish serious misconduct. Nevertheless, respondent asserts that, due to the circumstances surrounding his mental state, he should not be found to have committed misconduct. It is this defense which must be discussed next.
Post-Traumatic Stress Disorder

Without contradicting any of petitioner's evidence concerning what occurred at the firehouse on December 31, 2003, and how Firefighter Walsh was injured, respondent offered evidence that his actions were the result of a psychological disorder. Further, respondent suggested that the genesis of this disorder was his service at Ground Zero in the weeks following the terrorist attack and destruction of the World Trade Center Towers in lower Manhattan.

Heather Rasmussen, respondent's fiancée, testified that she resides with respondent and their five children in Staten Island. She has three children from a previous marriage, respondent has one child from a previous marriage, and they have a three-month-old daughter together. She has known respondent for six years. Stating that he became a "shell" of the man he had been before 9/11 (Tr. 343), she testified that it was on 9/11 that she moved in with respondent, to support him when he was going daily to Ground Zero to search for survivors and, later, for the remains of victims. During the weeks after 9/11, respondent would leave for his work assignment at Ground Zero early and return late at night, exhausted. He cried frequently and was very depressed (Tr. 338-40). Respondent once went to the grocery store to get bread and returned 30 minutes later in tears, saying he had forgotten his money and he could not remember how to use his ATM card (Tr. 341). He made remarks that he "had no right to smile" (Tr. 342). He reminded Ms. Rasmussen that she was "lucky" that he was late getting home since so many other firefighters would not be coming home at all (Tr. 342). When the family went to Disney World, respondent was despondent and stated he had no right to be on vacation (Tr. 344). Respondent started to lose his temper with the children (Tr. 347).

Ms. Rasmussen finally persuaded respondent to seek help from the Fire Department and in April 2002, after several telephone calls, got him an appointment with Mary Cole, a Department counselor. Afterwards, when Ms. Rasmussen asked respondent how the session had gone, he said, "It was great, if you call crying the whole time great." Ms. Rasmussen made respondent yet another appointment. After this second session, respondent indicated that Ms. Cole had told him to simply "stop going to Ground Zero" and "stop going to funerals." Ms. Rasmussen called to make another appointment for respondent, but gave up after no one called her back as they promised to do (Tr. 344-46).

Dr. Elizabeth Lazar testified and submitted a written report (Resp. Ex. B) concerning her treatment of respondent since January 2004. In her report, she stated that, after her initial interview with respondent on January 13, 2004, she concluded that he suffered from PTSD as a result of serving in the rescue and recovery operations for eight weeks at Ground Zero. She identified four essential factors that supported her diagnosis: respondent's exposure to a traumatic event, his history of "reexperiencing" that event, his avoidance of things associated with the trauma, and his "increased arousal" as a result of the trauma. She further stated that, in her view, respondent's act of violence against Mr. Walsh on New Year's Eve 2003 "is totally out of character and is unquestionably the result of his long suffering he has endured because of his undiagnosed and untreated illness."

Respondent also presented the extensive notes (Resp. Ex. B) taken by Dr. Lazar during her year of treating respondent. To a large degree these notes indicate that respondent was candid with Dr. Lazar concerning what was going on in his personal life. He mentioned domestic problems with Ms. Rasmussen, as well as conflicts with his ex-wife. He described several occasions where he drank to excess and mentioned a number of other potentially embarrassing incidents.

Based upon a referral from Dr. Lazar, respondent was interviewed and examined on January 26, 2004, by Dr. Alan Jacobs, a neurologist. Dr. Jacobs submitted a written evaluation (Pet. Ex. 27) of respondent indicating that he had no discernable neurological disorders. Dr. Jacobs also recorded, however, that respondent related to him a number of personal crises, including the death of two of his brothers and, some ten years ago, the death of his father. He stated that he was traumatized recently when, on an emergency medical run, an 18-year-old girl died in his arms. He was divorced in 1994. He told Dr. Jacobs that he feared Mr. Walsh, who was six feet eight inches tall and weighed 360 pounds. Dr. Jacobs observed that respondent seemed to have a mild deficit in attention, "at the level of working memory and speed of processing." Dr. Jacobs concluded that in the incident with Mr. Walsh respondent "snapped" and went into a "momentary blind rage." Dr. Jacobs questioned whether respondent's professed lack of memory of the incident was the result of unconscious suppression or deliberate denial.

Dr. Michael Aronoff, testifying for petitioner, took issue with various aspects of Dr. Lazar's report and diagnosis. In his own written report (Pet. Ex. 25), he indicated that Dr. Lazar's failure to discuss other possible diagnoses, such as malingering, in her report made it less than persuasive. He also wrote that, after reviewing Dr. Lazar's report and treatment notes, he found that the diagnosis of PTSD had not been substantiated. He further concluded that there was "no causal connection between any putative diagnosis offered and [respondent's] behavior during the incident of 12/31/03."

Mary Cole, a counselor for the Fire Department's counseling services unit for 22 years, testified that she spoke with respondent twice in April 2002. She recalled seeing respondent on April 2, 2002, for around 45 to 60 minutes. Respondent complained to her of irritability and anger and of having problems sleeping. He described searching for bodies for six weeks at Ground Zero. He described discovering four bodies one day and discovering a total of 16 bodies (Tr. 224). Ms. Cole concluded that respondent's anger and irritability were "reality based" and not "free floating" (Tr. 223). Based upon her training, which consisted of a master's degree in counseling, courses in "death and dying," and some four-day workshops in trauma (Tr. 216-17), she believed that his irritability was due to watching too many videos of 9/11 coverage. She advised respondent not to watch the videos (Tr. 230-31). On the form she completed (Resp. Ex. J), Ms. Cole did not indicate any diagnosis or any type of treatment plan. She did not recommend a follow-up appointment, but told respondent he could call "if he had the need." She did not expect him to call (Tr. 232).

Respondent appeared for a second appointment with Ms. Cole on April 22, 2002. He again complained about not sleeping and about every dream being about "anger" and "fighting." He mentioned having served at the World Trade Center site for six weeks. On her form for the second interview (Resp. Ex. J), Ms. Cole wrote approximately 20 words, with no indication of a diagnosis, a follow-up appointment, or any treatment recommendation. Again she stated that it was her belief that respondent would not return (Tr. 236). At the same time, when asked why she never referred respondent for any type of treatment, she indicated that he "did not come back to complete the assessment" (Tr. 242-43). Ms. Cole insisted that respondent did not present the four out of five symptoms necessary for a diagnosis of post traumatic stress disorder, that his concentration was good, his drinking was "social," and his irritability caused by watching 9/11 videos (Tr. 243).

Ms. Cole evidently took no further action on respondent's case until August 7, 2002, when she completed a form (Resp. Ex. J) closing his case. On her form, she checked that respondent had "completed treatment plan." She explained this notation by observing that she just checked "whatever" in order to close the file (Tr. 244) and made this indication because she didn't want to write "anything negative" on respondent's file (Tr. 245). Ms. Cole further indicated that, following 9/11, the Department counseling staff was "overwhelmed" with work, seeing "hundreds" of employees (Tr. 218).

Eva Usadi, a clinical social worker, is a therapist specializing in the treatment of trauma victims. Her practice includes some 40 firefighters and police officers who suffer from PTSD as a result of the events on and following 9/11 (Tr. 322). She testified that she reviewed respondent's case history, including the notes made by Ms. Cole and the case notes made by Dr. Lazar. She stated that the counseling done by Ms. Cole in April 2002 was "inadequate" and did not meet the minimum standard of care for assisting someone who might be suffering from PTSD (Tr. 307, 311-12). She noted that there was no assessment as to PTSD symptoms, no probing by Ms. Cole into respondent's level of distress. Both respondent's inability to sleep and his irritability were "red flags" which, in Ms. Usadi's view, should have warranted consideration of PTSD as a possible diagnosis and a follow-up appointment (Tr. 308-12).

In the April 22, 2002 visit to Ms. Cole, Ms. Usadi stated that respondent's complaint of all of his dreams being about anger and fighting was a sign of "extreme psychological distress requiring treatment" (Tr. 311). In Ms. Usadi's view, respondent presented nearly every symptom pointing to PTSD, including an inability to sleep, nightmares of fighting and fleeing, irritability, angry outbursts, frequent crying, inability to watch 9/11 coverage, explosive incidents, inability to calm down, inability to recall certain things witnessed at Ground Zero, and an inability to take pleasure in anything (Tr. 334).

Ms. Usadi indicated that patients suffering from PTSD presented intrusive symptoms, where recollection of the past traumatic events generated intrusive thoughts, dreams, flashbacks, and intense psychological distress resembling the original trauma. These patients also displayed avoidance symptoms, in which they deliberately avoided reminders of the trauma. The avoidance could result in numbing and withdrawal from current stress, an inability to recall past incidents, and an inability to enjoy present activities. Patients also exhibited persistent and increased arousal or hypervigilance, often resulting in sleep disorders, memory concentration problems, and irritability. Many patients exhibited an exaggerated startle response, in which a sensory perception associated with the past trauma acted as a trigger event to cause the patient to relive the trauma, such as a car backfire convincing a former soldier that he is being shot at by an enemy.

Seeking to challenge Dr. Lazar's diagnosis of PTSD, petitioner offered an affidavit (Pet. Ex. 24) indicating that, in May 2002, respondent passed a promotion examination administered by the Department for members who wish to be lieutenants. The examination tested for knowledge of a large body of Department operational and procedural publications and rules and was passed by only 26.5% of those who took it. According to petitioner, respondent's ability to pass such an examination in May 2002 undercut Dr. Lazar's conclusion that he was suffering from PTSD in 2002.7

Finally, Firefighter Salvatore Velez testified on behalf of respondent that he has known respondent for over 10 years, working with him in two different firehouses. Following the events of 9/11, Mr. Velez noticed changes in respondent. Mr. Velez and respondent attended many funerals together and respondent became very upset when, at some of the later funerals, the number of mourners decreased. Mr. Velez recalled going with respondent on an emergency call in 2002 when respondent suddenly started crying hysterically (Tr. 278-80).

Respondent's evidence of PTSD was offered to buttress the contention that the disorder triggered an involuntary attack on Mr. Walsh such that respondent's actions were not intentional and should not be considered misconduct. See Reisig v. Kirby, 62 Misc.2d 632, 635, 309 N.Y.S.2d 55, 58 (Sup. Ct. Suffolk Co. 1968 ), aff'd, 31 A.D.2d 1008, 299 N.Y.S.2d 398 (2d Dep't 1969); Fire Dep't v. Lowery, OATH Index No. 1003/94 (Nov. 23, 1994). Clearly, there seemed to be some reason to question the thoroughness of Dr. Lazar's report confirming this diagnosis, as pointed out in the statements and report by Dr. Aronoff. But the accuracy of the diagnosis of PTSD was only tangential to respondent's primary defense, which was that respondent did not intentionally strike Mr. Walsh with the chair. Neither Dr. Lazar nor Ms. Usadi offered any opinion as to how the circumstances surrounding the encounter between respondent and Mr. Walsh would have caused an involuntary "startle response" or other reaction as discussed in the literature on PTSD. In fact, neither Dr. Lazar nor Ms. Usadi seemed aware of the eyewitness accounts of the incident.

The eyewitness evidence indicated, in fact, that respondent struck Mr. Walsh with the chair out of anger at Mr. Walsh's remark about respondent taking undeserved overtime from other firefighters. While 9/11 was no doubt a significant contributing factor to respondent's volatile emotional state on the night of the incident, there is no indication that his anger at Mr. Walsh was linked to PTSD or to the events of 9/11. The verbal exchange preceding the blow with the chair concerned Mr. Walsh's accusations that respondent took overtime assignments from other firefighters, respondent's threat to hit Mr. Walsh with a chair, and Mr. Walsh's taunt that he "would pay to see that." The crescendo of rage shown by these remarks, climaxing in violence, is very different from the "startle response" described by Ms. Usadi, where those with PTSD disorder may react reflexively to certain stimuli which remind them of the original trauma. At most, the psychological evidence offered by Dr. Lazar and Ms. Usadi supported the observation made by Dr. Jacobs that, by the end of December 2003, respondent was a "powder keg waiting to explode" (Pet. Ex. 27).

Respondent, like a good many other firefighters, clearly felt a strong sense of grief and guilt for having survived while so many of his colleagues perished. The psychological profile of respondent provided by Dr. Lazar's report and testimony displays a depressed and emotionally unstable man, both haunted and enraged by memories of the 9/11 dead. This guilt may have made him particularly sensitive to any accusation that he betrayed or was unfair to his fellow firefighters. Whereas another firefighter might have been able to shrug off an insult from Mr. Walsh as attributable to Mr. Walsh's nasty and vindictive nature, respondent could not. Instead, Mr. Walsh's accusation that respondent had betrayed his comrades at the Department lit a fuse and he exploded. Thus, the evidence as to respondent's psychological turmoil fell far short of establishing that the act of hitting Mr. Walsh with a chair was unconscious or involuntary and provided, at most, grounds to mitigate the penalty.

Respondent's attorneys challenged the sufficiency of the proof that respondent was "on duty," as alleged in charges 1 and 3. The evidence on this detail was, admittedly, vague. The interaction between respondent and Mr. Walsh occurred at around 6:45 p.m., some 45 minutes after the beginning of the night tour, which started at 6:00 p.m. At this hour, a number of firefighters and officers from the day tour were still at the firehouse, including Captain Sweeney and Mr. Walsh. According to an affidavit (Pet. Ex. 23) from the chief of operations, respondent was regularly assigned to the night tour. The DOI report (Resp. Ex. K, p. 5) also indicates that respondent reported to the firehouse between 5:00 p.m. and 5:15 p.m. on December 31, 2003 (Pet. Ex. 12, p. 5). Although the report does not indicate precisely which witness or witnesses provided this information, it provides evidence that respondent was, indeed, working the night tour and was "on duty" at 6:45 p.m. In addition, Mr. Velez, who stated that he arrived at the firehouse for the night tour, testified that he and respondent "were in the same groups" (Tr. 277), suggesting that respondent also worked the night tour. Notably, although documents regarding tour assignments were part of the voluminous pretrial discovery provided to respondent, respondent's attorneys offered no evidence on this issue. I therefore find that petitioner's evidence was sufficient to make a finding that respondent was, indeed, on duty at the time Mr. Walsh was injured at around 6:45 p.m.8

Respondent's attorneys also argued that the Department was somehow legally foreclosed from asserting that respondent was on duty. This rather specious argument was based upon an answer (Pet. Ex. M) filed by the City in Mr. Walsh's civil lawsuit in the U. S. District Court for the Southern District of New York. In paragraph 19 of that answer, the City's attorneys wrote that the City "denies knowledge or information sufficient to form a belief as to the truth of" the assertion that respondent was on duty. The pleading position in the answer may, at first blush, seem somewhat inconsistent with the allegations in the disciplinary charges here that respondent was "on duty" at the time Mr. Walsh was injured. However, considering that the time of the incident was very close to the start of the night tour, the uncertainty reflected in the answer is most probably the result of the attorneys' caution in declining to admit a fact as to which witness accounts might vary. For example, if the incident were somehow found to have occurred at 5:55 p.m. instead of at 6:20 p.m., respondent would not have been officially on duty. Thus, I did not find that the City's equivocation in the Walsh answer undercut the allegation in the charges that respondent was on duty; it certainly provided no basis for finding that he was off duty and hence did not rebut the proof offered here that respondent's tour had already started.

For all of these reasons, I must conclude that respondent's act of striking Mr. Walsh with a chair was misconduct, violating the prohibition against one employee assaulting another. See Department rule 25.4.1.

The evidence was also sufficient to establish that respondent was in possession of alcohol, in violation of Department rules. Captain Sweeney stated that respondent was mixing sangria in the kitchen just before his row with Mr. Walsh. The captain was a supervisor who could himself be disciplined if he permitted subordinates to use alcohol. This fact made his statement regarding respondent's actions particularly credible. Captain Sweeney's observation also seemed consistent with the fact that it was New Year's Eve and Captain Sweeney himself had authorized the purchase of 30 cans of beer to permit the staff to celebrate. I reject the contention of respondent's counsel that the word "sangria" can be interpreted to mean a non-alcoholic beverage. According to Webster's New World Dictionary, the only meaning for "sangria" is "an iced punch made with red wine, fruit juice, and usually pieces of fruit and soda water." Because sangria by definition contains alcohol, respondent's possession of it on the night of December 31, 2003, constituted misconduct, in violation of Department rules forbidding employees to have alcohol while on duty. See AUC 202 § 4.4 (Feb. 1, 1996).

Charges 4 and 5 allege that respondent failed to comply with the Department notification requirements regarding observations of rule violations. Pursuant to AUC 268A, section 3.1, all employees of the Department are obliged to notify the Bureau of Investigations and Trials by telephone if they observe "on-duty incidents involving possession or use of drugs or alcohol" or "physical altercations among members." The regulation states that the notification must be done "without delay," although no specific deadline is given in which the notice must be provided.

Respondent's closing argument that this rule applies only to officers and not to firefighters must be rejected. The directive states that "every officer and employee" has an affirmative duty to report misconduct, among other things. "Employees" are defined as "both uniformed and civilian personnel." Thus, the applicability of the rule to firefighters could hardly be clearer.

In this case, it is undisputed that respondent failed to provide the notifications required by this rule. However, the presence of respondent's supervisors and the notice which they gave to their superiors concerning the events of December 31, 2003, raise numerous doubts as to whether respondent should have been expected to supply any additional notice. Respondent was aware that both the presence of alcohol as well as the injuries to Mr. Walsh had been witnessed by Captain Sweeney and that another lieutenant had been present at the firehouse at the time. As argued by counsel for respondent, it is illogical to enforce this notification rule as separate misconduct, where the employee is found guilty of violating the rule which prompted the notification obligation. See Dep't of Buildings v. Kalish, OATH Index No. 293/81, at 14 (Jan. 13, 1981).

Charges 8 through 10 allege duplicatively that respondent's actions brought discredit upon the Department and were also a violation of his oath of office. In support of the first of these contentions, petitioner produced a folder of press clippings (Pet. Ex. 19), reflecting the extensive media coverage given the incident in the early weeks of 2004. While some media attention was certainly drawn to the injuries suffered by Mr. Walsh, apparently at the hands of respondent, the harshest coverage concerned the actions of supervisors in either permitting firefighters to imbibe alcohol on duty or trying to conceal the incident in the hour after it occurred. Some of the headlines are illustrative: "An FDNY Coverup?," "They Lied and Wiped Up Blood," and "Smoking Out a Conspiracy (New York Post, Jan 3, 2004); "An FDNY Smokescreen" and "Firehouse Fracas Coverup Probed," (New York Daily News, Jan. 3, 2004). It is true that a brawl between two firefighters resulting in serious injury to one would probably have received some press attention which reflected poorly upon the Department. However, the "discredit" heaped on the Department in this case appeared largely due not to the actions of respondent but to the conduct of his supervisors. Insofar as petitioner seems to be seeking to punish respondent for subjecting the Department to accusations of mismanagement and managerial deceit, these efforts must be rejected.

In sum, charges 1 and 3 should be sustained and the other charges dismissed.

FINDINGS AND CONCLUSIONS


  1. Charges 1 and 3 (and duplicative charges 8, 9, and 10) should be sustained in that, on December 31, 2003, respondent was in possession of sangria, an alcoholic beverage, while on duty, in violation of Department rule AUC 202 § 4.4.




  1. Charge 2 (and duplicative charges 8, 9, and 10) should be sustained in that, on December 31, 2003, while on duty, respondent struck fellow firefighter Charles Walsh with a metal chair, causing severe injuries, in violation of Department rule 25.4.1.




  1. The remainder of the charges, including charges 4, 5, and 7, should be dismissed due to insufficient proof.

RECOMMENDATION

Respondent was appointed to the Department as a firefighter in 1988 and has no disciplinary record. Indeed, the evidence demonstrated that respondent's work record with the Department is an excellent one. Captain Thomas St. Pierre testified that he was respondent's commanding officer from July 27, 2003, to the date of the incident. He described respondent as a "very good worker," who volunteered to paint lockers during his shift. He had no history of being disciplined or having altercations with any of his colleagues (Tr. 201-02). Certainly this record of good service should serve to mitigate any penalty.

According to the Department, respondent must be terminated for the misconduct that occurred in this case. There can be little question that the act of angrily striking another firefighter with a metal chair and causing life-threatening injuries is serious misconduct, deserving of termination. Fights between co-workers where neither has been seriously injured have generally resulted in suspension penalties of 10 days or more. See, e.g., Dep't of Transportation v. Grant, OATH Index No. 381/85 (Feb. 25, 1986), modified, NYC Civ. Serv. Comm'n Item No. CD 87-118 (Dec. 3, 1987) (ten-day suspension reduced to five days by CSC). On the other hand, past cases involving significant injuries to co-workers have resulted in termination. See, e.g., Transit Auth. v. Perry, OATH Index No. 2087/00 (Aug.11, 2000), aff'd, NYC Civ. Ser. Comm'n Item No. CD02-46-SA (June 13, 2002).

However, the record here also provides numerous reasons for significant mitigation of the penalty. Most prominently, there is the issue of respondent's valiant service during the dark and difficult days following September 11, 2001. After arriving at the Trade Center site on the morning the towers fell, respondent was assigned to the rescue and recovery operation for some six weeks. During this time, he and his fellow firefighters discovered the remains of a number of victims and, on one horrific day in October, found the remains of 16 bodies. The service to the City and to the nation performed by respondent and other Department employees, both uniformed and civilian, was exemplary and deserving of the highest degree of consideration in a case such as this, where a firefighter's career lies in the balance.

The record here also provided persuasive evidence that respondent's service at Ground Zero in September and October 2001 contributed to his reactions to the remarks made by Mr. Walsh on December 31, 2003. The testimony of respondent's fiancée and of his psychologist indicated that, following September 11, respondent was consumed with sorrow for his fallen comrades and with guilt for his having survived when so many perished (see, e.g., Resp. Ex. B, p. 39: "[Dreams of] death – why he lives and the others don't – can't deal with failure"). When Mr. Walsh accused respondent of unfairly depriving other firefighters of overtime, respondent, who apparently believed he had done everything possible to honor the memory of his fallen comrades, became enraged. The record demonstrates that this rage was a product of the guilt which respondent felt over September 11.

I also agreed with Ms. Usadi's assessment that the counseling offered to respondent by Ms. Cole was less than adequate to deal with the emotional problems he revealed to her. Respondent said he was angry, unable to sleep, haunted by memories of recovering dead comrades after 9/11, and, by the mere fact that he sought counseling, suggested that these problems were interfering with his ability to function in his job. Ms. Cole's conclusion that respondent's anxiety could not have been symptomatic of any serious problem because his anxiety was "reality based" as opposed to "free floating" merits little comment, except to note that Ms. Cole was apparently using this distinction as a triage measure to identify only those firefighters who were most desperately in need of help. According to Ms. Cole's testimony, if a firefighter mentioned any personal stressors in addition to being haunted by 9/11 memories, Ms. Cole concluded that there was no serious problem, offered one of her business cards, and told the employee to return if he or she wished. As Ms. Usadi properly noted, even assuming that respondent's presenting symptoms were insufficient to immediately diagnose PTSD, Ms. Cole should have scheduled him for another appointment and provided a referral to another treating mental health professional. The fact that respondent tried to obtain help from the Department for his emotional problems some six months before the incident and was turned away is also deserving of some mitigation.

Respondent also placed into the record various personnel records, reflecting well upon his job performance and character. All of his prior evaluations (Resp. Ex. L) are satisfactory or good. The president of a local youth association wrote a letter (Resp. Ex. G) in praise of respondent's volunteer work with children in the community. His pastor and PTA president offered their high opinions of his reputation and generosity. This history of faithful service, to both his employer and his friends and family, should also be taken into account in fashioning a penalty.

My general impression of respondent was that he was extremely dedicated to both his job and to his fellow firefighters. The service he performed during the difficult days following September 11, 2001, was testament to this. That being said, the record also indicated that respondent was tormented by a host of personal problems well before September 2001. As revealed in the notes of Dr. Lazar, respondent was haunted by a number of deaths, including that of his father in 1993. He was divorced in 1994 and in conflict with his ex-wife over the custody and care of their seven-year-old son. He was involved in a dispute with his sister over her desire to sell his parents' house, where he currently lives. He was concerned about his son's asthma. He and Ms. Rasmussen apparently fought about many issues, causing him to feel that his home life "broke" him and closed him in (see Resp. Ex. B, p. 75: "feels home situation broke me even way back in Dec. when incident occurred"). He and Ms. Rasmussen's daughter Anna also fought frequently, to the point that he once told Anna she could no longer live with them.

Another factor suggesting that a mitigated penalty is warranted is the provocative behavior of Mr. Walsh, who had a reputation for bullying and angering his co-workers. Captain St. Pierre also supervised Firefighter Walsh for two years from 1996 through 1998. He described Mr. Walsh as having a reputation for being opinionated, loud, and constantly getting into fights with other firefighters. He himself recommended disciplinary charges against Mr. Walsh when Mr. Walsh profanely refused to do what he was ordered to do (Tr. 204-06). Certainly Mr. Walsh's remark to respondent, accusing respondent of unfairly taking pay from other firefighters by working overtime, was insulting and likely to provoke an angry response.

However, even taking all of these mitigating factors into account, no available penalty other than termination is appropriate, given the severity of the violent act being punished and the nearly fatal injuries to Mr. Walsh. As this tribunal has observed before, Fire Dep't v. Barbera, OATH Index No. 1208/90 (Nov. 16, 1990), disciplinary penalties for firefighters are often difficult to fashion, due to the narrow penalties permitted under the Administrative Code: reprimand, forfeiture of ten days' pay, or dismissal. Admin. Code § 15-113 (Lexis 2005). Thus, in the instant case, the maximum penalty for the two charges of sustained misconduct, short of dismissal, would be a 20-day suspension. While a 60-day suspension might be supportable as an appropriate penalty for such serious misconduct, in light of the weighty mitigating evidence, a 20-day penalty is utterly inadequate. Certainly, the parties could, if they chose, agree to a lengthy suspension of several months, accompanied by a one-to-two-year probationary period, and this would in my view be a fair resolution to this case, balancing the severity of the misconduct with the compelling mitigating factors. However, such a penalty is not within my authority to recommend. Despite my belief that respondent is deserving of retaining of his job, I cannot conclude that a 20-day suspension is an adequate penalty for the misconduct that occurred here.

Accordingly, I recommend that respondent be terminated, with the understanding that the parties may agree to an alternate penalty if they so choose.

John B. Spooner

Administrative Law Judge

May 5, 2005


SUBMITTED TO:
NICHOLAS SCOPPETTA

Commissioner
APPEARANCES:

ROSHARNA HAZEL, ESQ.

Attorney for Petitioner
JAMES M. CORCORAN, ESQ.

MICHAEL LEVINE, ESQ.

Attorneys for Respondent


Fire Department Commissioner’s Decision, May 18, 2005




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