testified concerning the events of March 8, 1995. She said she was driving on
Route 300 with her two-year-old daughter in the backseat of her station wagon,
when she first observed a bright yellow DOT truck. She pulled out to pass it on
the truck's left, pulling back into the driving lane to proceed with traffic.
She could not say whether she passed the truck in a zone allowing passing, but
pass it she did. Thereafter, the driver of the truck drove up along the left
side of her vehicle in a no passing zone, turning his truck to the right toward
her car, running Claimant off the road. She pulled off the road to avoid being
hit, and then decided to follow him because she wanted to get some identifying
information. She was also angry. As she followed, she observed him driving
"recklessly," which she defined as "too fast."
She estimated he was driving between 40 to 50 miles per hour in a 35
As the DOT truck left Route 300 and turned into a residential neighborhood by
"some railroad tracks," Claimant continued to follow. She saw the truck
"speeding" through the residential area and then turning into a Shop Rite
shopping plaza in New Windsor. Since there was no plate on the truck, she
explained, she was following it in order to "confront [the driver] about his
driving." Once she entered the shopping plaza parking lot, she saw the DOT truck
parked, and stopped her car about 20 feet away from the truck. Both she and the
driver got out of their respective vehicles, berating one another. Mrs. West
admitted to shouting and screaming at the driver that he had almost caused her
to have an accident, as well as voicing her concern that her daughter might have
been hurt. The driver, too, was shouting back, saying "what's the matter with
you" and "words to that effect." When she told him that she was going to
report him, he remarked "go ahead, whatever."
After this exchange, the driver got back in the truck and pulled out very fast,
and Claimant went back to her car and continued to follow him, still trying to
get identifying information. At this point, she had determined that it was a
DOT truck, but she was unable to see a plate.
The truck came to a stop again in front of "the T-bank", and she stopped her
car close by. She had obtained a piece of paper and a pen, and walked out of
her car to within approximately ten (10) feet of the truck. She wrote down the
numbers, and proceeded back to her car. It was then that she saw the driver get
back in the truck - she recalled that he had not been in view when she was
writing - and accelerate the truck toward Claimant. She knew it was
accelerating because she saw the truck "lift up in the front", coming toward her
as if to run her over, she thought, and then it "stopped suddenly" within 10 to
15 feet of her car. The driver then "jumped out, and grabbed [her] by both
wrists, and tried to take away the paper she had written on and the pen." She
said that as he held on to her left arm, she tried to get away from him by
wriggling out of her coat. Her pen snapped during the struggle, and he then let
her go and ran back to his truck. She estimated that the physical contact with
the driver lasted approximately one minute. After he went back to the truck, a
"gentleman" in another truck asked her if she "wanted to call the police". She
remembered a woman she later learned was named Patricia Ruger inquiring after
her well-being, and trying to quiet Claimant's daughter who was "hysterical at
After the incident, she learned that the driver of the DOT truck was named
On cross-examination, Claimant confirmed that Mr. Payne's attack on her was
unprovoked and violent. She estimated that approximately 10 minutes elapsed
between the time she first passed the DOT vehicle and the time of the attack in
the parking lot. Although she would not say that he was "out of control" as
suggested by Defendant, Claimant said that Mr. Payne was clearly angry, but
"knew exactly what he was doing." He had "the mission of getting that piece of
paper out of my hand so that I couldn't report him."
She confirmed that another employee was in the truck when they had the verbal
altercation, but was not sure where the other employee was when the physical
Patricia Ruger was returning to the Shop Rite plaza in New Windsor, New York,
after a floral delivery on March 8, 1995, when she saw a man driving a "bright
yellow" DOT vehicle move next to a parked car. Her testimony essentially
confirmed that of Mrs. West. She agreed that Richard Payne, the driver of the
truck, could be described as "violently" attacking Claimant.
Richard Payne began his employment with DOT in 1984, in the job title of
laborer. [Exhibits E and H, p 594]. At some point thereafter he was appointed
to highway equipment operator, because that was his job title in August 1987,
when he apparently was "AWOL" for a period of eight hours, and was warned about
the consequences for unauthorized leave, including disciplinary proceedings.
In September 1987 he had two accidents in one day while driving a DOT dump
Exhibits 46 - 56]. On the morning of September 24, 1987 he backed up
a dump truck with the dump body in an upright position, either failed to hear or
heed the warnings of coworkers, and backed the raised dump body into electrical
service wires lining a village street, pulling out the wires in the process.
[Exhibits 46, 47, 50-56]. In the afternoon of September 24, 1987, Mr. Payne
again left the dump box in a raised position as he backed the truck into the
overhead doors of a DOT garage. [Exhibits 48-49, 51, 55, 56]. In a Notice of
Discipline (hereafter NOD) served concerning these events, the penalty proposed
was dismissal. [Exhibit 55]. The disciplinary proceeding was settled pursuant
to a document dated December 3, 1987, and appears to have resulted in the
payment of a fine by payroll deduction. [Exhibit 56].
On March 29, 1988 Mr. Payne was sent a memorandum demoting him from highway
equipment operator - which had been an appointment still subject to probation at
the time - to laborer, effective April 14, 1988, because in addition to the
September 1987 accidents, he had been reported as speeding in an unsafe manner
through a maintenance work zone set up on Interstate 84 on March 23, 1988.
Commencing in November 1988, he was again appointed to the position of highway
equipment operator. His year-long probation for that appointment is documented
in a series of probationary reports completed by various supervisors, including
two who testified, Joseph Van De Mark and Alan Woodruff.
Joseph K. Van De Mark, an employee of the DOT from May 1970 to April 20, 1994,
whose job included supervisory duties from approximately 1974 to his retirement
in 1994, testified. Overall, he supervised 36 equipment operators, truck
drivers, laborers and maintenance workers. Evaluation responsibilities were
shared by other supervisors as well.
Mr. Van De Mark was Mr. Payne's immediate supervisor for "about three (3)
years," and recalled him well, dealing with him on a day-to-day basis. He stated
that overall throughout the period he supervised Mr. Payne he was an
"unsatisfactory" employee. Mr. Van De Mark explained that Mr. Payne's work
habits were poor, he was "reckless, disrespectful to fellow workers; [his]
driving habits were too rapid, too fast; inconsiderate of the motoring public
doing certain jobs; didn't care. He was the only person on the road and
everyone else could move out of the way." Having "a conversation with him was .
. . there was no way to have a conversation with him; he was incoherent."
During work hours, he detected the odor of alcohol on Mr. Payne's breath, and
noted that Mr. Payne did "not stick to the subject in conversation", and "would
not listen to instruction," preferring to "do things his way."
Mr. Van De Mark did not have hiring or firing power over Mr. Payne, and could
only make recommendations as memorialized in the probationary reports and
performance evaluations. He recalled recommending that Mr. Payne "not be
retained" in "progress reports," although this suggestion does not appear in any
writing that this Court reviewed. [
Exhibit H]. Mr. Van De Mark indicated that he "did not have
the qualifications to check into Mr. Payne's driving record" and assumed that it
would have been checked by someone "higher up, since . . . [he] couldn't do it."
In a February 1989 probationary report relative to the highway equipment
operator position, Mr. Van De Mark wrote of Mr. Payne that he "does not pay
attention to fello[w] workers around him, can be dangerous." [Exhibit 32].
When asked to expand upon the comment, Mr. Van De Mark remembered "a couple of"
incidents. In one case, when Mr. Payne was assigned a painting job with other
employees, he took a position physically above the others, and deliberately
sprayed paint in his fellow employees' faces and eyes. On another occasion, Mr.
Payne moved a vehicle into position to be serviced by a paint crew, but wouldn't
wait until others put on their safety equipment, but would start chipping paint,
and the "chips would fly." Mr. Van De Mark had to remove chips "out of two
employees" due to Mr. Payne's disregard.
In an August 1989 probationary report Mr. Van De Mark wrote in a section
concerning "Relationships With Other People" that "[a]t times there appears to
be friction between them." [Exhibit 33]. Mr. Van De Mark explained that he
meant that in Mr. Payne's view, nothing any other workers did was right, and
only Mr. Payne's approach was correct.
Although Mr. Van De Mark was Mr. Payne's supervisor in January 1990, he was on
vacation when Mr. Payne broke into an abandoned car at Route 218, removed an
alternator from it, and then worked on the part at the DOT yard. [
Exhibit 61]. Hearing about the incident after the fact, Mr. Van De
Mark reported it [Exhibit 60]. The incident became the subject of a
disciplinary proceeding resulting in Mr. Payne's second demotion to laborer. The
NOD concerning the event, dated March 5, 1990, proposes termination of
employment as a penalty, and includes two allegations of misconduct.
Exhibits 62, and H, pp 39-40]. A previous misconduct resulting in a
fine is noted as having occurred on October 23, 1987. [id.
disciplinary proceeding resulted in a settlement document dated August 1990, in
which Mr. Payne became ineligible for promotion from his position of laborer
for a two (2) year period; and Mr. Payne agreed to submit to testing for alcohol
or substance abuse and treatment for same if he should test positive. [Exhibit
65]. Later testimony revealed there had been no follow-up concerning the
submission for substance or alcohol abuse testing.
On cross-examination, Mr. Van De Mark indicated that he was not "copied" on any
of the disciplinary proceedings concerning the January 1990 removal of the
alternator. He confirmed that in a November 1989 probationary report marked
"final" Mr. Van De Mark had written that the employee "needs improvement," and
made the suggestions for how Mr. Payne's performance could be improved. [Exhibit
34]. He explained, however, that it was one of his superiors - perhaps Mr.
Woodruff, he couldn't say - who checked the box indicating the recommendation
that the employee be "retained." [
Allen Woodruff, a Highway Maintenance Supervisor for the DOT, testified
concerning his role in supervising Richard Payne - through intermediaries such
as Mr. Van De Mark for the most part - although there was some direct
supervision as well. He explained the differences between evaluation and
probationary reports, saying that a probationary report is one generated for an
employee who has been newly hired or newly promoted and who is thus required to
be evaluated periodically for a set period of time, whereas evaluations are done
yearly for every employee, and give the employee an "idea of what's expected of
them" and how they are meeting expectations. He responded that a comment in a
probationary report to the effect that the employee has difficulty working with
others might be considered a negative comment, "to some degree." He said he did
not have the authority to hire or fire Mr. Payne.
As noted, Mr. Payne was appointed to the position of heavy equipment operator
in November 1988, a position requiring an individual who could "operate
dangerous equipment safely", Mr. Woodruff stated. The employee would need a
Mr. Woodruff said that between November 1988 to August 1989, there was no
system in place for determining whether an employee was using alcoholic
beverages or controlled substances, except "by observation." There was no
procedure in place for that period to re-examine the driving record of drivers
to Mr. Woodruff's knowledge.
Mr. Woodruff reviewed a series of probationary reports, covering a period from
November 1988 to September 1993 concerning Mr. Payne, which he had signed either
as an immediate supervisor or as a reviewing supervisor. [Exhibits 32, 33, 34,
39, 40, 41]. He also reviewed several evaluation forms that he had signed in one
capacity or another for the same period. [Exhibits 35, 38, 39, 40, 41]. For the
most part, these forms offer a series of options for the evaluator to check off
in categories entitled "Quantity [of work], Quality [of work], Dependability,
Ability to Learn, Relationships, Attendance and Punctuality," as well as
narrative portions. He "signed off" on many of the probationary reports and
evaluations written by Mr. Van De Mark.
In the November 1989 probationary report marked "final" report, Mr. Van De
Mark wrote negative comments concerning Mr. Payne's inattention, relationships
with people - including the public as Mr. Woodruff understood it - and noted Mr.
Payne's reluctance to "pay more attention to the job and the people working
around and with him." [Exhibit 34]. There are also positive comments concerning
operating equipment, attendance and punctuality, and ability to complete job
In an annual performance evaluation form dated April 1990, Mr. Payne is
described as needing improvement in similar areas. [Exhibit 35]. The form notes
that Mr. Payne "needs to improve his driving habits, and cannot work without
constant supervision. Lacks consideration for his fellow workers, also lacks
]. It is also noted that he should "[h]ave more
consideration of the motoring public and the equipment he is driving" when
sanding; should "pay more attention to the people on the ground and flow
direction during operation," and "[d]oes not follow safety policies . . . [d]oes
not have consideration for the work force that he is assigned to or while he is
operating equipment, or doing manual labor." [id.
A report for the period from July 26, 1991 to July 25, 1992 - the annual
evaluation while Mr. Payne was in the job title of laborer after his second
demotion - completed by a different supervisor, shows improvement. [Exhibit 38].
The evaluation does state, however, that Mr. Payne "[s]hould be more courteous
to the traveling public."[
The supervisor indicated that Mr. Payne ". . . is a willing
worker who is not afraid to jump in and give a fellow employee a helping hand.
He is always available for overtime. Also willing to operate equipment if
In a probationary report covering a period from September 24, 1992 to March 25,
1993, and noting a probationary period until September 23, 1993, Mr. Payne is
again listed in the job title of highway equipment operator. [Exhibit 39]. For
the first time, Mr. Payne's overall performance is deemed "satisfactory" by Mr.
Van De Mark, although in the section on work habits - which "need improvement" -
it is noted "[w]ork habits are good at times, has to slow down and pay attention
to workers around him . . . " [
In June 1993, another probationary report gives Mr. Payne a satisfactory
rating, and was completed by Mr. Woodruff. [Exhibit 40]. Mr. Woodruff noted
that Mr. Payne "[n]eeds to slow down some and think before some things he does"
in terms of safety; "[g]ets along with everyone" in terms of relationships with
people; and "[g]ets along with supervisors but could listen a little more and
talk less." [
Mr. Woodruff also explained that he would take on the role
of "rater", rather than "reviewer" when the employee worked under several
supervisors - in which case he would talk to the supervisors about the employee
and rate the employee accordingly - or if he himself had personal knowledge of
the employee's work habits.
Mr. Woodruff also completed the final probationary report for the highway
equipment operator position in September 1993, finding Mr. Payne's overall
performance "satisfactory", and recommending that he be retained as an employee.
[Exhibit 41]. The exhortation that Mr. Payne "slow down" with regard to work
habits, safety, and equipment operation is continued in this report, however, as
is the notation that Mr. Payne should listen more and talk less with regard to
In October 1994, Mr. Payne was advised that he would be required to furnish
medical documentation for sick leave based upon a review of his attendance
record evidencing possible misuse of sick leave. [Exhibit 74]. The memorandum
indicates Mr. Payne was counseled previously on the issue. [
Then, on February 9, 1995, two counseling memoranda were directed to Mr. Payne,
from the Resident Engineer, Peter Teliska. [Exhibits 75 and 76]. Mr. Payne was
advised in one memorandum that his supervisors had received reports that one of
the snowplows was driven at an excessive rate of speed, and that it was
determined that Mr. Payne was the likely driver given that it was his "beat",
and that Mr. Woodruff had warned Mr. Payne about excessive speed previously.
The second memorandum said that on February 7, 1995, Mr. Woodruff found Mr.
Payne sleeping in an idling truck in the Newburgh yard, and directed that he not
sleep while at work, that "it is against the law to idle a diesel-fueled vehicle
for more than five minutes when not performing work related tasks . . .", and
that "when told to do something by a supervisor you are to respond in a positive
manner." [Exhibit 76].
Within a month, the incident that is the subject of this claim occurred. Mr.
Woodruff testified that on March 8, 1995 Mr. Payne and Charles Jackson were
assigned to work on installing a hopper on a large dump truck. He said that they
had installed the hopper in the morning, and took the truck for a ride in order
to get it "seated", and then tighten it if necessary. Later in the morning, Mr.
Woodruff learned that the New Windsor Police Department was "looking for a State
truck." When Mr. Payne and Mr. Jackson returned to the yard, Mr. Woodruff asked
them if "anything happened" while they were on the road, given that the police
were looking for a State truck. In a contemporaneous written statement by Mr.
Woodruff, dated March 9, 1995, that is part of Mr. Payne's personnel file, Mr.
Woodruff described the incident concerning Mr. Payne and the Claimant, including
the report by Mr. Jackson that Mr. Payne "was a wildman." [Exhibit 92].
On cross-examination, Mr. Woodruff explained that when "signing off" on an
immediate supervisor's rating of an employee, he would be using his best
judgment - as would the supervisor - concerning the employee overall. He
reviewed the probation reports from 1989, and agreed that they reflect negative
and positive comments, and evidence the determination based upon the best
judgment of the evaluators that Mr. Payne be continued on the original
probationary status set forth in the documents, and not terminated. [
Exhibits 32, 33, 34]. In the laborer job title, he is evaluated
as an "effective" employee. [Exhibit 38]. Decisions to retain Mr. Payne on
probationary status were explained because there was a substantial period of
probation remaining when some of the reports were written. [Exhibits 39, 40,
41]. During the entire time Mr. Woodruff had been responsible - although not
always directly responsible - for the supervision of Mr. Payne, until the March
8, 1995 incident, Mr. Woodruff was never informed of any altercations between
Mr. Payne and the public.
Peter Teliska, currently in the job title
of Regional Transportation Maintenance Engineer, and a 21-year employee of the
DOT, also testified. At the Newburgh facility, he became the Resident Engineer
in March 1994. His duties included overseeing the operation and maintaining the
safe highway system, utilizing available resources including the DOT's own
workforce, or a workforce provided by contract, resolving public concerns and
generally assuring safe roads.
Mr. Teliska had hiring capability, but did not have the authority to fire
anyone. In order to terminate an unsatisfactory employee, procedures had to be
followed. As an initial matter, supervisors would try to correct the
unsatisfactory behavior, and make the personnel office aware of the behavior.
Then the personnel department would take the appropriate steps "whether it is a
disciplinary action or termination." He did not recall whether there was a
procedure in place in or before March 1995 to determine whether an employee had
alcohol or substance abuse problems. There was, however, a voluntary employee
assistance program in place.
behavior that would come to the attention of the Resident Engineer generally as
part of his duty to evaluate employees - as characterized by the Claimant's
attorney - included irrational conduct and violation of rules. Only if an
employee's driver's license was suspended, however, would motor vehicle
violations generally come to the attention of the Resident Engineer. In the
fall, prior to "snowplow season", employees would bring in their drivers'
licences and copies would be made. The witness was not aware of any other annual
procedure in place for checking the driving record of those employees whose job
duties included driving.
Mr. Teliska could not recall "specifically" when or how Richard Payne first
came to his attention. Shown Exhibit 71, a memorandum he had written to Mr.
Payne dated April 22, 1994 concerning "time and attendance," Mr. Teliska
recognized the memorandum he'd written. He explained that the DOT monitors
sick-leave usage on a six-month schedule, and whenever an employee uses more
than nine days of sick leave in a given year, an investigation into the reasons
for the utilization of sick leave is commenced. He could not say that there was
a particular rule to the effect that using more than nine (9) days of sick leave
was not allowed; however, "informally", this was a "target date." He said that
in evaluating an employee, overuse of sick time was a "potential" negative
Mr. Teliska identified an evaluation form he had signed concerning Richard
Payne on March 13, 1995, covering a period from February 17, 1994 through
February 6, 1995. [Exhibit 42]. The form indicates that Mr. Payne was deemed
an "unsatisfactory" employee overall - meaning he "does not meet performance
expectations for one or more tasks, not even at a minimally acceptable level" -
and more specifically notes that Mr. Payne has a "good knowledge [concerning
operating dump truck with plow, wing and sander] . . . but travels way to[o]
fast while doing the job and has little regard for people's property . . .
Under the "Supervisor's Comments" written by Mr.
Woodruff, it states "Richard is a good worker, who seems to have many problems
getting along with everyone at times. He uses his accruals up as fast as he gets
them and does some things that could result in bad accidents." [id.
Mr. Teliska said a copy of such a report goes to the personnel office, but he
did not know if such a report would be accompanied by recommendations for
further action, or if indeed any further action would be taken. Mr. Teliska said
that the policies for handling an unsatisfactory employee are governed by the
contract between the CSEA union and the DOT, and it was these policies that were
in place up to and including March 1995.
After reviewing the first counseling memorandum Mr. Teliska wrote to Mr. Payne
dated February 9, 1995, referred to above, in which Mr. Payne is warned "If
there is not immediate improvement in your operation of . . . [snowplows at an
excessive rate of speed], formal cha[r]ges will be brought against you," Mr.
Teliska said that he "did not recall" whether formal charges concerning Mr.
Payne's operation of a snowplow were ever brought, explaining that "this was
9½ years ago."
When reviewing the second counseling memorandum directed to Mr. Payne dated
February 9, 1995 [Exhibit 76]
in which he is told he should not sleep at work among other things, Mr. Teliska
said that despite the fact that this memorandum, too, warns of "formal charges,"
it concerns different behavior, and together the two memoranda do not
necessarily create the basis for a formal charge. At least this was his
understanding from the personnel office.
During the time Mr. Teliska supervised Mr. Payne, he had no personal knowledge
that Mr. Payne consumed alcohol or used illegal drugs on the job, nor did he
know if he was "a drunk". Mr. Teliska did not recall reviewing any records from
the New York State Department of Motor Vehicles (hereafter DMV) of Mr. Payne's
operating record, nor was he aware of any standards necessitating such review of
those DOT employees operating DOT vehicles, other than the requirement that the
drivers possess a valid driver's license. Mr. Teliska said that it was "within
our state policies" to retain as a driver five years after the fact an employee
with, hypothetically, a driving record like the one memorialized in Mr. Payne's
driver's abstract from the DMV covering the period from 1987 to June 14, 1990.
[Exhibit 64]. The driver's abstract shows convictions for speeding,
insufficient turn signal, going through a red light, and leaving the scene of an
accident - although the latter conviction appears to have been reversed.
One license suspension, and issuance of a
restricted license is also memorialized. [id.
Mr. Teliska said "there is a set progressive policy that we are to follow when
correcting an employee's behavior." It progresses from "verbal counseling, to
written counseling, then the possibility of a notice of discipline, and then the
discipline gets progressive to hopefully correct the employee's behavior."
On cross-examination, Mr. Teliska confirmed that subsequent to the two February
9, 1995, counseling memoranda and before March 8, 1995, he was unaware of any
further incidents of Mr. Payne either driving his truck in an unsafe manner
including speeding, or sleeping on the job. Additionally, Mr. Teliska was
unaware of any incident involving Mr. Payne assaulting fellow employees or any
member of the public except for the attack on Claimant. After the incident,
Mr. Payne was suspended without pay, [Exhibits 25 and H], and ultimately
terminated from employment on August 25, 1995. [
Jerome J. Thomas, Director of Highway Maintenance Division for the DOT in 1987,
and an employee since 1958, was the last witness to testify on Claimant's direct
case. His duties as Director involved management, engineering, and the
overview of the various maintenance programs conducted by the regions statewide.
Part of the management duties included preparing budgets and staffing
requirements, as well as monitoring some personnel behavior, although he did not
get involved in the "day-to-day personnel responsibilities."
Mr. Thomas was the recipient of a memorandum from Dan Mencucci, the Director of
Employee Safety, dated September 29, 1987, describing the "unreasonable"
behavior of an unnamed employee from the Newburgh residency. [Exhibit 51]. It
reports the employee backed his truck into electric power lines and later drove
into the garage with the dump truck box raised, causing the raised box to strike
the building over the door opening.
Mr. Thomas identified a note he wrote to Joe
Gleeson, the Regional Highway Maintenance Engineer for Region 8, indicating his
view that the employee "should be examined for his sake as well as for the sake
of the public and the other employees. What is his accident record like with
DMV, or with Employee Safety. I assume you have already grounded him until these
concerns are resolved. Please memo me on the outcome." [id.
]. There is
no indication in Mr. Payne's personnel file - for it is Mr. Payne who was the
employee involved - that there was any follow-up regarding Mr. Thomas' concerns.
Raymond Cooke, an employee of the DOT since 1979, and the only witness called
by the Defendant, also testified. He is the labor relations representative in
the employee relations bureau of the DOT, and has been performing his job
functions since 1995. His job entails handling disciplinary cases, contract and
non-contract grievance cases, presenting cases involving improper practice
charges at administrative hearings, negotiating settlements, presenting cases at
arbitration if necessary, and advising managers and employees of contractual
Mr. Cooke was familiar with Exhibit H - Mr. Payne's personnel folder- as well
as Exhibit 43, a typewritten summary of parts of Mr. Payne's employment history.
He explained the NOD procedure. He said that generally the Regional Personnel
Officer issues the NOD. The receiving employee has two choices: he can accept
the penalty or he can file a disciplinary grievance. If the latter course is
taken, attempts are made to resolve it between the parties, the union - assuming
the employee has secured union representation, "which is 99% of the time" - and
the employer. If the matter is not settled, it is set down for arbitration by
an impartial arbitrator. Thus with respect to the NOD issued to Mr. Payne in
October 1987 when he was working as a highway equipment operator and drove his
dump truck into high tension wires, it was settled by the parties. Mr. Payne
was fined $200.00; he participated in a driver improvement program; and he was
restricted to driving in the yard. At the time of the incident, he was in
probationary status as a highway equipment operator, and was returned back to
laborer. Mr. Cooke said that the return to position of laborer would not be a
part of the disciplinary settlement, but rather a reflection that an incident
had occurred that warranted a change in his probationary status. Mr. Cooke
explained that an option at the end of a probationary period is to find the
performance unsatisfactory, and return the employee to his prior position,
assuming it had been held. Mr. Cooke further explained that the judgment of
immediate supervisors is relied on to a great degree when the DOT decides to
Throughout Mr. Payne's personnel file, Mr. Cooke observed various
recertifications for operating various items of equipment, including
recertification for "one person plowing" for a period from October 1, 1993 to
October 28, 1994. In October 1994 the job titles of laborer, highway equipment
operator and construction equipment operator were combined and reclassified,
thus Mr. Payne's status changed to "Highway Maintenance Worker I" on October 20,
1994. Qualifications for Highway Maintenance Worker I included possession of a
valid Class B commercial driver's license, allowing operation of vehicles in
excess of 26,000 pounds. [
Exhibits 88 and D]. Minimum qualifications for the prior job title
of highway equipment operator in contrast included one year of experience in the
operation of tractors, or other self-propelled equipment, possession of a valid
New York State driver's license "appropriate to the type of vehicles operated"
which would mean a Class B commercial driver's license. [Exhibit 89]. He noted
that the contract with the union requires that positions in higher grades that
are to be filled are filled by the most senior qualified individual bidding for
the job. Going from laborer to highway equipment operator, the Resident
Engineer would likely decide on hiring the successful bidder after consulting
with the Supervisor II. Personnel would review the records to assure minimum
requirements were met - i.e. the license - but "that was about it."
The classification standard for the position of laborer indicates no
educational or experience requirements, except physical ability to perform heavy
physical labor. [Exhibit A] . Employee health service would give the potential
employee an exam and certify that he was in shape. All the job descriptions
include interaction with the public to some degree, either literally or by
Mr. Cooke described the New York State policy of "progressive discipline" when
it comes to its employees. Thus the first attempts to correct employee
behavior would be verbal, followed up by written counseling placed in the
employee's file, and finally formal discipline would be instituted for repeated
offenses of the same nature. Some behavior rises to the level of formal
discipline right away by its nature, but most issues are dealt with in this
progressive fashion. A "misconduct" must be charged to commence discipline. Mr.
Cooke explained that "official misconduct" would be violation of a rule or some
"egregious" behavior on the job. "Without a nexus to the workplace, only law
enforcement disciplines its employees for off the job conduct."
Mr. Payne was served with a NOD issued either March 8 or 9, 1995, and suspended
for the incident with Mrs. West. Suspension applies if in the opinion of the
employer there is "just cause to suspend" because the individual is a danger to
himself or others or his/her presence at work would interfere with the normal
conduct of business. These are the two criteria from the collective bargaining
agreement from which the employer can base suspension. The NOD was grieved by
Mr. Payne, and was scheduled for arbitration. Mr. Cooke recalled that the matter
never went to arbitration because the Governor's Office of Employee Relations
advised the agency that Mr. Payne had not provided the "necessary funding" for
the arbitration panel, thus the penalty could be imposed directly. Mr. Payne was
terminated on August 25, 1995, but had been suspended since March 14, 1995.
[Exhibits 5 and H, pp 1].
On cross-examination, Mr. Cooke reaffirmed that there would be discipline with
respect to off-the-job behavior if it was related to the job. Shown Exhibit 64
- Mr. Payne's DMV driving abstract - Mr. Cooke agreed it showed a number of
violations. He would only agree that these violations would be related to the
work place for one whose job it was to drive if they occurred while on-the-job,
or if they caused him to actually lose his license. Mr. Payne did not, it
appears, have an annual evaluation in 1994, but Mr. Cooke did not see anything
in the personnel record that specifically explained why none was done. He
agreed that a failure to complete an annual evaluation might constitute
"managerial failure" but that there were other reasons why an employee might get
"off cycle" for evaluations such as long term leave, change of positions, etc.
He speculated that perhaps the change in the job titles in October,1994 changed
the cycle, but could not say if that was indeed the case.
Mr. Cooke said there was no random testing for drug or alcohol abuse from 1984
to March 1995. Only "reasonable suspicion" on the part of the supervisor that an
employee was "unfit" might trigger such testing. Mr. Cooke would not agree that
a supervisor might think of testing for alcohol abuse when an employee had two
dump truck accidents on the same day - as did Mr. Payne - was appropriate "at
that time." He explained that in order to send someone for testing, one would
have to "have some observable criteria, such as slurred speech, unsteady gait
. . . any of the traditional signs that a person may be under the
influence." Mr. Cooke said that by itself, behavior "devoid of common sense"
would "not lead necessarily to testing, although it might lead to a more
thorough investigation of the facts, and who knows where that might lead." He
agreed that the misconduct of an employee who was absent without leave for 8
hours would not constitute a "serious" violation; but that hitting high wires
with a truck, breaking into a car, stealing an alternator, working on the part
on company time, and reckless driving and speeding would all be serious
concerns. These concerns were, indeed, addressed within the disciplinary
process allowed by the union contract.
As a result of the incident occurring on March 8, 1995, Mr. Payne was
criminally charged with two counts each of assault: one intentional and one
reckless, as well as harassment [
Exhibit 11], Mr. Payne was found guilty of Reckless Assault, a Class
A misdemeanor, and Harassment, a violation. [Exhibit 16].
After hearing all the testimony, the Court is still unsure as to who could
actually fire Mr. Payne, though it seems that between them perhaps Mr. Cooke and
Mr. Jones could wield the axe. Given the logjam on personnel issues described by
most of the witnesses, however, it is likely that "somebody else" might need to
sharpen the blade first.
As noted, two theories of liability have been advanced by Mrs. West. First,
she asserts that the State of New York should be held vicariously liable for
Richard Payne's assault upon her based upon the doctrine of respondeat superior.
Second, she asks that direct liability be imposed upon the State of New York
premised upon DOT's negligent retention of its employee, Richard Payne.
Under the doctrine of respondeat superior, an employer may be liable for the
tortious acts of its employee if the tortious acts occurred within the scope of
Riviello v Waldron
, 47 NY2d 297, 302 (1979). What constitutes the scope
of employment has been somewhat elastically defined by the Court of Appeals, and
depends largely upon the facts of each case. The factors to be examined
include: ". . . the connection between the time, place and occasion for the act;
the history of the relationship between employer and employee as spelled out in
actual practice; whether the act is one commonly done by such employee; the
extent of departure from normal methods of performance; and whether the specific
act was one that the employer could reasonably have anticipated . . .
)." Riviello v Waldron
at 303. ". .
. [T]he employer need not have foreseen the precise act or the exact manner of
the injury as long as the general type of conduct may have been reasonably
expected . . . (citation omitted
)," the employer may be vicariously
liable. Riviello v Waldron
Riviello v Waldron
, examining the facts in the light most
favorable to the plaintiff
, the Court of
Appeals found that the employee of a local tavern - who acted as a cook, waiter
and bartender for his employer - acted in the scope of his employment when he
negligently caused the plaintiff to lose an eye. Earlier, as part of the
practice of "mingling with the patrons," the employee had been exhibiting a
pocket knife to plaintiff and other customers as they discussed crime in the
neighborhood. The employee went to the kitchen to fill a food order. When he
walked back from the kitchen area, still holding the knife in his hand, the
plaintiff turned suddenly, and his eye came in contact with the blade. The Court
found that while the specifics of the injury-causing act might not necessarily
have been foreseeable, given the nature and variety of the tavern employee's job
functions, carelessness and resulting injury - in handling cooking implements,
for example, or in delivering food and drinks, or in behaving, generally, as
imperfect employees will in pursuing their employer's work, including displaying
a pocketknife - is reasonably anticipated. The negligent act was "a natural
incident of the employment." [id.
at 304]. The Court said: ". . . the
test has come to be ‘whether the act was done while the servant was doing
his master's work, no matter how irregularly, or with what disregard of
. . . (citations omitted
Given this broad foreseeability precept, intentional torts committed in
furtherance of the employer's business have been found - albeit rarely - to have
been committed in the scope of employment.
See e.g. Jones v State of New York
, 33 NY2d 275, 279
(1973); Sims v Bergamo
, 3 NY2d 531
, but cf. Doe v Rohan
17 AD3d 509, 793 NYS2d 170 (2d Dept 2005).
While most cases finding that the assaultive conduct is related to the
employer's business have a more direct nexus to the actual job, where, as here,
given the foreseeable conduct of Mr. Payne in running Mrs. West off the road,
the balance of the conduct - the reckless assault - is also foreseeable as the
natural consequence of the chain of events that transpired on March 8, 1995.
See e.g. Smith v The Limited
, 237 AD2d 345 (2d Dept 1997).
What happened here is road rage run rampant, starting with Mrs. West's
imperfect pass on Route 300, followed by a State employee forcing a member of
the public off the highway while he was engaged in the State's business. The
events triggered thereafter - including Mr. Payne's attempts to grab the pen and
paper from Mrs. West, and the physical contact that followed - flow directly
from the initial, more directly predictable, conduct. Mrs. West alleges in her
claim that the State is liable for its employee's assault, and the injuries she
suffered as a result of that assault. This Court agrees.
Applying the factors enunciated in
Riviello v Waldron
, Mr. Payne was acting in furtherance of
his employer's business as he drove the truck on the highway with a coworker, to
test how the hopper they'd installed sat on the truck, on his way to do some
banking business as was generally allowed during the work day, and when -
predictably, given his track record - he chose to force Mrs. West's car to the
side of the road after she passed his truck. That act, based upon the prior
history of this employee, is clearly one that the employer could have reasonably
anticipated. The subsequent chain of events is where the State's liability for
its servant's acts, and the responsibility Mrs. West shares for any injuries she
It is arguably within the realm of reason for Mrs. West to follow an unmarked
truck to ascertain the plate number in order to report the incident to someone
in authority. That is not why she followed the truck, however. She testified
that she followed the truck off the highway with her daughter in the backseat,
as it sped through a residential area, and into a shopping plaza parking lot,
in order to "confront the driver about his driving." And the desired
confrontation occurred. Each actor vented - admittedly shouting and screaming -
and then returned to his and her respective vehicles. Then, finding that she
did not have the information she needed to actually report the driver, Mrs. West
followed him through the parking lot again. When Mr. Payne then proceeded to
first drive his truck toward Claimant as if to run her over, and then grabbed
her arm to retrieve the piece of paper, he continued to act as a man with this
kind of a track record would behave.
Accordingly, the Court finds that the reckless assault by Mr. Payne upon Mrs.
West was committed within the scope of employment, and the State should be held
vicariously liable for its employee's acts.
In order to hold Defendant directly liable under a negligent retention theory,
the Claimant was required to establish that the employer knew or should have
known of the employee's propensity for the sort of conduct which caused the
Detone v Bullit Courier Serv.
, 140 AD2d 278 (1st Dept 1988), lv
73 NY2d 702 (1988). In a negligent retention cause of action, the
negligence of the employer arises from its ". . . having placed the employee in
a position to cause foreseeable harm, harm which would most probably have been
spared the injured party had the employer taken reasonable care in making
decisions respecting the . . . retention of his employee." Detone v Bullit
Detone v Bullit Courier Serv.
, a courier employed by
defendant rode his bicycle into the plaintiff. Plaintiff reacted by swinging a
bag at him. The cyclist then struck plaintiff in the head, knocking him
unconscious, and causing him to fall and hit his head on the pavement, suffering
severe neurological impairment. The jury dismissed the cause of action against
the employer premised on vicarious liability, but found that the employer was
directly liable for the negligent hiring and retention of the employee.
The Appellate Division then reversed the jury verdict for plaintiff saying:
"The evidence before the jury arguably relevant to the issue of . . . [the
employer's] negligence in hiring . . . [the courier] indicated that . . . [the
courier] had, on two occasions prior to the incident with plaintiff, been either
fired or laid off by . . . [the employer]. There was no evidence as to what
caused . . . [the employer] to fire . . . [the employee/courier], the only
testimony being that had it been something more serious than excessive lateness
or absence it would have been noted in . . . [the employer's] records and . . .
[the courier] would not have been rehired. Nothing adduced at trial indicated
that . . . [the employee] had a history of or propensity for violence, much less
was there evidence that . . . [the employer] had any knowledge that its employee
might be dangerous."
Detone v Bullit Courier Serv., supra,
at 279. The Court
reiterated the rule that an employer may be liable in damages for its employee's
tort ". . . against a third party when the employer has either hired or
retained the employee with knowledge of the employee's propensity for the sort
of behavior which caused the injured party's harm . . . (citations
Unlike the employer in Detone
v Bullit Courier Serv.
however, DOT had more than an inkling
that Mr. Payne might pose a problem.
Mr. Payne's employment history is appalling. Although nothing in that history
directly shows that he would be likely to assault somebody, by implication,
given his evident disregard for others and for the applicability of any rules of
conduct to his own behavior, it is foreseeable that Mr. Payne would run someone
off the road, have a verbal disagreement, use his truck as an instrument of
menace, and recklessly seize the piece of paper and the pen held by Mrs. West,
thus yanking at her arm as described. Mr. Payne - on documented occasions over a
10-year history - abused employee benefits, drove recklessly, disregarded the
safety of his fellow workers while on the job, stole property, was belligerent
to his supervisors and may (or may not - it was never established) have abused
controlled substances or alcohol on the job, and although there is no indication
that he ever engaged in intentionally violent or assaultive behavior against
fellow workers, or the public, there is every indication that his contact with
others was just shy of such conduct. Given the confrontations described by Mr.
Van De Mark and in the personnel history, this confrontation with Mrs. West was
only a matter of time. Along the way, supervisors attempted to correct his
behavior, and disciplinary proceedings were instituted and resolved. Such
resolutions, however, appear to have been the product of the perception by
supervisors that actually firing this gentleman would never work.
The salient point is that from this record, there has been a sufficient showing
that Mr. Payne was an employee who had exhibited a propensity to disregard
rules, and the safety of others, and that the State was aware, or should have
been aware, that the kind of reckless violence that occurred here would likely
occur given provocation. As noted, driving recklessly and forcing another driver
off the road is a foreseeable act based upon the information adduced at trial.
What followed, too, is a natural consequence of allowing this type of employee
to continue in employment without any follow-up or methodology in place to
assure that he not place the public in danger. The harm that resulted is ". . .
harm which would most probably have been spared the injured party had the
employer taken reasonable care in making decisions respecting the . . .
retention of his employee."
Detone v Bullit Courier Serv.
While certainly the State is partially liable under these facts, Mrs. West's
own contribution to whatever injuries she suffered has not been forgotten.
Claimant's own unreasonable behavior in pursuing a confrontation that was easily
avoided, juxtaposed against Mr. Payne's behavior, renders both the State and
Claimant equally liable. When Mr. Payne first ran Claimant off the road, Mrs.
West could have simply driven away with her daughter in tow, and immediately
reported the incident to the local police department to let them determine who
that crazy DOT driver was who had driven so recklessly. Instead, she resorted
to self-help and got drawn into a confrontation that placed both her and her
infant daughter in a dangerous situation. With her two-year-old child in the
she chased an unknown man as he sped through a residential neighborhood -
keeping up with him - and, after an initial high volume verbal confrontation,
persisted in her pursuit. This was not reasonable under the
Accordingly, although Claimant has established that the State should be held
liable under both the doctrine of respondeat superior, and for its negligent
retention of its employee, she, too, is responsible for the behavior leading to
her injuries. The Court finds that the Defendant is 50% liable for Claimant's
injuries, and the Claimant is 50% liable as well.
A trial on the issue of damages shall be held as soon as is practicable.
Let interlocutory judgment be entered accordingly.