Dep’t of Parks & Recreation v.

Mullusky
OATH Index No. 2041/09 (May 26, 2009)

Parks worker charged with participating in a Nazi skit in front of a

Jewish co-worker, remarking that he would throw the co-worker
and his mother into an oven, displaying swastikas on his locker,
and making false statements. ALJ found that the charges should
be sustained. Penalty of termination recommended.
______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of
DEPARTMENT OF PARKS AND RECREATION
Petitioner
- against –
CHRIS MULLUSKY
Respondent
______________________________________________________

REPORT AND RECOMMENDATION

JOHN B. SPOONER, Administrative Law Judge
This disciplinary proceeding was referred to me in accordance with section 75 of the
Civil Service Law. Petitioner, the Department of Parks and Recreation, filed charges against
respondent Chris Mullusky, a climber and pruner. The charges alleged that respondent
participated in a Nazi skit in front of a Jewish co-worker, remarked that he would throw the co-
worker and his mother into an oven, displayed swastikas on his locker, created a “hostile work
environment,” and made false statements. A hearing on the charges was held on April 20,
2008. Petitioner called two of respondent’s co-workers and an investigator as witnesses.
Respondent denied all of the charges.
For the reasons provided below, I find that the evidence was sufficient to sustain the
charges and recommend that respondent be terminated.

ANALYSIS
Respondent has worked as a climber and pruner with the Department since 1983. The
charges concern allegations that he and other employees participated in a campaign of
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harassment and abuse against a Jewish co-worker. The harassment allegedly included the
display of swastikas, a Hitler disguise, and references to Jews being burned in ovens.1
Petitioner’s primary witness was Alan Spitalnik, who is Jewish and has been employed as
an associate park service worker since 1988. In the summer of 2008, Mr. Spitalnik was assigned,
along with respondent, to Staten Island. Mr. Spitalnik was assigned to drive the chipper truck on
a five-person crew. Respondent, Nick Johnson, Charlie Eckonomokos, and Alvin Kessel were
climbers and pruners, assigned to cut down tree limbs and dispose of them in the chipper.
Mr. Spitalnik testified that, in the summer of 2008, respondent placed swastikas on the
outside of his locker, located in a common area shared by all of the staff. Respondent told other
employees that the swastika was a “good” symbol, which he loved. Mr. Spitalnik stated that he
complained about the swastikas on respondent’s locker to supervisors Ray Mercado, Gary
Cutter, Juan Silva, and Arn Israel (Tr. 16). Mr. Mercado and Mr. Cutter promised to speak to
respondent about removing the swastikas but, according to Mr. Spitalnik, the swastikas remained
on respondent’s locker (Tr. 17).
Mr. Spitalnik testified that one day, while Mr. Spitalnik was standing near the microwave
oven, respondent told Mr. Spitalnik that he would like to put Mr. Spitalnik and his family “in an
oven.” Mr. Spitalnik interpreted this remark to refer to the Nazi’s mass executions of Jews
during World War II (Tr. 9). Later in his testimony, Mr. Spitalnik acknowledged that respondent
was not the first co-worker to make a reference to Jews and ovens. A co-worker named Ron
Galiza made such a remark about ovens and then apologized. Mr. Spitalnik stated that, after Mr.
Galiza’s apology, respondent “went on a rampage” and repeated the oven remark first made by
Mr. Galiza over and over again (Tr. 19).
Mr. Spitalnik described a particularly cruel prank arranged by respondent and the other
members of Mr. Spitalnik’s work crew. On the afternoon of August 20, 2008, Mr. Eckonomokos
told Mr. Spitalnik on the way back to the yard that a “German” would be visiting the facility at
3:30 p.m. Mr. Eckonomokos said that the German “don’t like Jews” and “he’s going to start a
war” (Tr. 9). Mr. Spitalnik asked Mr. Eckonomokos to repeat this and, when he did, angrily said
that anyone could come to the yard and “I will finish it” (Tr. 10).

1
The allegation contained in charge I, specification 1, that respondent stated “Hiel Hitler,” mimicked a Nazi goose
step, and saluted, was dismissed on consent at the close of trial, since Mr. Spitalnik, the only eyewitness, attributed
these actions to Mr. Eckonomokos and not to respondent (Tr. 58).
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Upon returning to the yard, Mr. Spitalnik’s fellow crew members locked themselves
inside the kitchen. Respondent, Mr. Eckonomokos, and Mr. Johnson called Mr. Spitalnik to
enter the room. When Mr. Spitalnik entered, he saw Mr. Eckonomokos wearing a moustache
like that of Adolf Hitler. Mr. Johnson was wearing a motorcycle helmet with a swastika on it.
Respondent was holding a flaming aerosol can. Mr. Eckonomokos then goose-stepped around
the room doing a Nazi salute (Tr. 10).
Mr. Spitalnik was enraged by the spectacle. He turned over a picnic table in the room
and flung a chair across the floor (Tr. 12). After a later incident when he perceived that his co-
workers deliberately let a limb fall so that it nearly struck him, Mr. Spitalnik asked that he be
reassigned (Tr. 12-13).
Pruner William Hillen testified that he was outside the kitchen on August 20 at around
2:30 p.m.. He saw an employee come out of the kitchen and heard him tell Mr. Spitalnik that he
wanted to show him something. Mr. Spitalnik went into the room. Mr. Hillen then heard loud
yelling and screaming, followed by a boom that shook the floor. A worker named Steven Boos
came out and showed Mr. Hillen a cell phone photo image of Mr. Eckonomokos made up to look
like Hitler (Tr. 23-24). Mr. Boos also told Mr. Hillen that Mr. Johnson had been wearing a
helmet with a swastika and that respondent lit an aerosol can on fire and “shot it across the
room.” Mr. Hillen was told that Mr. Boos sent the photos he had taken to Mr. Eckonomokos, but
later deleted them (Tr. 24-26).
Investigator Matthew Sheridan testified that he was assigned to investigate the August 20
incident some nine days later, and interviewed approximately ten individuals the following week.
All of the alleged participants, including respondent, denied taking part in any skit. Respondent
said that he had no problems with Mr. Spitalnik, would have had no reason to be part of a skit,
and “did not remember” any incident as described by Mr. Spitalnik (Tr. 37). Mr. Boos and two
other witnesses recalled that Mr. Spitalnik became very upset, yelled, and pushed over a picnic
table (Tr. 36), although they offered no reasons for Mr. Spitalnik’s actions. According to Mr.
Sheridan, Supervisor Silva recalled that Mr. Spitalnik complained about the August 20 incident,
saying it “wasn’t funny” (Tr. 53).
Although he admitted working in Staten Island in the summer of 2008, respondent denied
the entirety of the accusations made by Mr. Spitalnik. He denied ever posting swastikas on his
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locker or making a remark about an oven. He insisted that he “came to learn” that an oven
remark was made at some time by Mr. Galiza (Tr. 61-62) and that Mr. Galiza met with Mr.
Spitalnik in Mr. Israel’s office and apologized (Tr. 63). On August 20, 2008, respondent worked
overtime and was downstairs completing paperwork, which he then delivered to Supervisors
Silva and Mercado. Respondent insisted he knew nothing about the skit described by Mr.
Spitalnik and only heard about it the following day from other employees, who said that Mr.
Spitalnik was “going crazy” (Tr. 63-64, 66).
The credibility analysis in this case was a challenging one due to the thin proof offered by
both sides. At least two of the allegations, the swastika on the locker and the Nazi costume
prank, would have been witnessed directly by many, if not the majority, of the staff working at
the Staten Island facility, including the supervisors. Despite this fact, the eyewitness evidence
consisted solely of the testimony of Mr. Spitalnik and respondent. The contradictory testimony
of Mr. Spitalnik and respondent as to the Nazi skit and the other anti-Semitic actions left no
doubt that one of them was lying -- either Mr. Spitalnik concocted his account of the incidents or
respondent was falsely denying his participation.
I found Mr. Spitalnik’s version more credible for a number of reasons. First of all, Mr.
Spitalnik’s testimony about the oven remark was partially confirmed by respondent himself, who
admitted being informed about an oven remark made by another co-worker named Ron Galiza.
Respondent’s attorney argued that the fact that Mr. Galiza made a remark about ovens was
inconsistent with Mr. Spitalnik’s testimony that respondent made such a remark. In fact, Mr.
Spitalnik credibly testified that Mr. Galiza made an offensive remark which was repeated by
respondent several times.
The account of the Nazi skit was also corroborated by Mr. Hillen’s testimony of seeing
Mr. Spitalnik ushered into the kitchen, hearing loud yelling and a crash, and then seeing a photo
image of Mr. Boos disguised as Hitler. Mr. Spitalnik’s version was also corroborated to a degree
by the double hearsay of Mr. Hillen, who indicated that Mr. Boos described the incident to him
in some detail when Mr. Boos showed him the photo. According to Mr. Boos, Mr.
Eckonomokos, Mr. Johnson, and respondent all played roles in the Nazi charade prepared for
Mr. Spitalnik. Even though this double hearsay, standing alone, would be deemed too unreliable
to support any fact-finding, it did lend some support to Mr. Spitalnik’s credibility.
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Mr. Spitalnik’s account was also consistent with respondent’s and other witnesses’
agreement that Mr. Spitalnik became so enraged that he overturned a table. No witness was
called by either side to suggest an alternate reason for Mr. Spitalnik’s anger other than the
account given by Mr. Spitalnik.
Respondent’s account, on the other hand, was suspiciously spare. Respondent denied all
of the allegations, yet offered no reason or even theories as to why Mr. Spitalnik would falsely
accuse him of hate-laced remarks. Rather, when asked for such an explanation, respondent
challenged Mr. Spitalnik’s training and general competence to perform the “dangerous and hard
occupation” of tree work (Tr. 67). In short, given respondent’s compelling motive to avoid being
disciplined, his blank denials and vague and uncorroborated alibi about doing paperwork was
less believable than the detailed and corroborated testimony of Mr. Spitalnik.
Based upon the credible testimony of Mr. Spitalnik, I therefore find that, after an anti-
Semitic remark referring to placing Jews in ovens was made by Mr. Galiza, respondent taunted
Mr. Spitalnick by repeating the remark about placing Mr. Spitalnik and his family into an oven.
Whether respondent attributed the remark to Mr. Galiza or not, Mr. Spitalnik’s testimony
supported a finding that respondent’s remark was a reference to the extermination of Jews during
the Holocaust and was made to disparage and insult Mr. Spitalnik and Jews in general. I further
find that respondent displayed a swastika on his locker as a symbol of the Nazi regime during
World War II and as a recognized symbol of anti-Semitism. Finally, I find that on August 20,
2008, respondent, along with two other co-workers, Mr. Eckonomos and Mr. Johnson, staged a
Nazi skit in order to humiliate Mr. Spitalnik. In the skit, Mr. Eckonomos impersonated Adolf
Hitler, Mr. Johnson impersonated a goose-stepping Nazi, and respondent hoisted a flaming
aerosol can as a general symbol of the Nazi attacks on Jews.
Respondent’s actions unquestionably violated Department rules which prohibit workers
from “intimidating or harassing” fellow employees. Department Standards of Conduct Chapt. 3,
Rule III (6)(B). Respondent’s actions also violated the Citywide Equal Employment
Opportunity Policy, prohibiting discrimination based upon religion.
I further find that respondent’s insistence to the investigator that he did not participate in
or even recall the August 20, 2008, skit was both inaccurate and knowingly false. The statement
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was therefore in violation of Department Standards of Conduct Chapter 3 Rule II (4), forbidding
“false” or “evasive” statements.
In sum, with the exception of the Nazi goose step allegation in charge I, all of the charges
must be sustained.

FINDINGS AND CONCLUSIONS

1. The first portion of charge I, specification 1, should be sustained in

that, during the time period of June through August 2008,
respondent posted swastikas on his locker, in violation of
Department Standards of Conduct Chapt. 3, Rule III (6)(B) and of
the Citywide Equal Employment Opportunity Policy para. 1.

2. The remainder of charge I, specification 1, alleging that respondent

marched in a Nazi goose step and said, “Heil Hitler,” should be
dismissed as unproven.

3. Charge I, specification 2, should be sustained in that, during the

time period of June through August 2008, respondent made
remarks to co-worker Alan Spitalnik about putting him and his
family into an oven, in violation of Department Standards of
Conduct Chapt. 3, Rule III (6)(B) and the Citywide Equal
Employment Opportunity Policy para. 1.

4. Charge I, specification 3, and charge II, specification 1, should be

sustained in that, on August 20, 2008, respondent participated in a
Nazi skit by holding up a flaming aerosol can, in violation of
Department Standards of Conduct Chapt. 3, Rule III (6)(B) and
Department Standards of Conduct Chapt. 3, Rule I (6).

5. Charge III, specification 1, should be sustained in that, during the

time period of June through August 2008, respondent taunted co-
worker Alan Spitalnik with anti-Semetic insults, in violation of the
Citywide Equal Employment Opportunity Policy prohibiting
discrimination based upon religion.

6. Charge IV, specification 1, should be sustained in that, on

September 5, 2008, respondent falsely told Department
investigators that he had not participated in a Nazi skit on August
20, 2008, in violation of Department Standards of Conduct Chapt.
3, Rule II (4).
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RECOMMENDATION
Upon making the above findings, I was provided additional personnel records by
petitioner in order to make an appropriate penalty recommendation. Respondent has been a City
employee since 1983. Over the years, he has had positive evaluations of “very good” from his
supervisors. He has also been disciplined twice. In 1989 he agreed to one years’ probation,
mandatory participation in an employee assistance program, and to obtaining a valid driver’s
license to settle unspecified disciplinary charges. In 2005 he accepted a 10-day suspension, loss
of 15 days’ annual leave, mandatory participation in an employee assistance program, and
random drug testing in order to settle charges involving being intoxicated on duty. On the one
hand, respondent’s 26 years of City service provides some grounds for mitigation. On the other
hand, his prior penalties, particularly the 25-day penalty in 2005, suggest that an enhanced
penalty is called for in the instant case.
Respondent’s mistreatment and harassment of Mr. Spitalnik for being Jewish is shocking
and unquestionably warrants severe punishment. See Dep’t of Sanitation v. Sanders, OATH
Index No. 558/09 (Jan. 5, 2009) (respondent who engaged in a verbal altercation with his
supervisor, during which he called the supervisor a “fucking nigger” and “shiesty nigger,”
suspended 15 days); Transit Auth. v. Pasieka, OATH Index No. 2112/01 (Feb. 19, 2002), aff’d,
NYC Civ. Serv. Comm’n Item No. CD04-12-SA (May 17, 2004) (supervisor who referred to
subordinates with demeaning ethnic nicknames demoted); Transit Auth. v. Kerr, OATH Index
No. 1234/00 (May 10, 2000), modified on penalty, Authority Decision (July 18, 2000), modified
on penalty, NYC Civ. Serv. Comm’n Item No. CD03-22-M (Feb. 5, 2003) (supervisor who
referred to subordinate as a “nigger” suspended 15 days). From all indications, the sole
motivation for respondent’s actions was not any past problems with Mr. Spitalnik in particular
but a general hatred of Jews. Respondent and his co-workers expressed this hatred by means of
cruel, bullying pranks calculated to humiliate and demean Mr. Spitalnik. Respondent’s
repetition of the remarks about Mr. Spitalnik and his family being placed in ovens was
particularly hateful. Respondent’s vindictive and dishonest character is further illustrated by his
efforts to thwart the investigation. He first lied about participating in the harassment. Then,
according to Mr. Hillen’s credible testimony, respondent menaced Mr. Hillen the day before Mr.
Hillen gave a statement by making a show of unfolding a knife and glaring at him (Tr. 26).
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Equally shocking here was the evidence that respondent’s anti-Semitism was shared by
many of the workers at the Staten Island facility. Even though I found that a swastika was
openly displayed on respondent’s locker in an area frequented by the entire staff of the Staten
Island facility, not a single witness was called to corroborate this shocking harassment. Nor was
there any indication that an investigation was done concerning this allegation. As to the Nazi
skit, Mr. Spitalnik indicated that there were nine or ten employees inside the kitchen during the
incident (Tr. 18). Nevertheless, petitioner was unable to produce a single eyewitness other than
Mr. Spitalnik himself to testify to these shameful proceedings. Even though two supervisors
were at the facility when the incident occurred and at least one of them was evidently told of the
incident by Mr. Spitalnik himself, no action was taken and no investigation was commenced.
According to Mr. Spitalnik, no meaningful steps were taken to punish the skit participants until
approximately a week later when Mr. Spitalnik complained to a manager named Arn Israel.
The investigation of the August 20 incident, when begun, was, at best, superficial.
Despite the egregiousness of the allegations concerning a pattern of anti-Semitic harassment by
several employees, the interviews were informal and not commemorated in any reliable way.
The interviews were not tape-recorded. Although he conducted over ten interviews, the assigned
investigator took only five pages of hand-written notes in a small 4-inch by 8-inch spiral note-
book. He apparently made no notes at all of several interviews, including respondent’s. This
desultory response by the supervisors to respondent’s actions suggests that their neglect may
have contributed to a climate of bigotry at the Staten Island facility. It also indicates, however,
that a severe penalty is required to impress upon the agency work force, workers and supervisors
alike, that discriminatory and abusive mistreatment of co-workers will not be tolerated.
Considering all of the circumstances here, particularly the appalling nature of the
misconduct and respondent’s past disciplinary record, I find that the most appropriate penalty for
these actions by respondent is termination, as recommended by the agency advocate.

John B. Spooner
Administrative Law Judge

May 26, 2009

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SUBMITTED TO:

ADRIAN BENEPE
Commissioner

APPEARANCES:

CHERYL DEVONISH, ESQ.

Attorney for Petitioner

JAMES A. BROWN, ESQ.

Attorney for Respondent