After over two years in litigation, former Union City Department of Public Works (DPW) laborer Justo Delgado won in his appellate case for unjust dismissal and reinstatement.
Delgado appeared at a Departmental Disciplinary Hearing on June 23, 2005, facing charges alleging failure and inability to perform duties, chronic and excessive absenteeism, neglect of duty, and insubordination.
On July 11, 2005, Delgado was removed from his position following the recommendation of Union City Hearing Officer Lane Biviano, who believed the city proved its case.
Deputy Director of DPW Filipo “Phil” Iacovelli signed the final disciplinary notice.
The appeal
The case was appealed and went before the Office of Administrative Law (OAL), which recently recommended the reinstatement and that the city should award Delgado all back pay and benefits lost in the last two years.
It was also the OAL’s decision that Iacovelli, as the deputy director, had no authority to bring forth disciplinary notice and was never given that authority by former Commissioner Luis Martin, the DPW director at the time.
However, the Merit System Board, which can modify or reject the judge’s decision within 45 days, must make the final adoption of this decision.
In the interim, Union City’s lawyers will be filing their own exceptions.
“It’s not a final determination,” said Christine Vanek, attorney for the firm of Scarinci & Hollenbeck, which is serving as the city’s corporation and labor counsel. “It was a determination from the administrative law judge, and now goes to the Merit System Board for consideration. The city will be filing exceptions evidencing its disagreement with the conclusions on the initial decision.”
How it started
Delgado claimed that the alleged harassment against him started on an occasion in which fliers slandering Iacovelli were being distributed near the department. The flier had highlighted a past criminal arrest involving alleged drug possession near a school.
Delgado said Iacovelli ordered the fliers to be thrown away, but when Delgado picked one up, Iacovelli allegedly accused him of keeping the flyer and ordered him to turn it over. Delgado refused.
From that point, Delgado alleged that he was constantly being harassed and was also demoted.
Delgado was employed by the DPW since 1999, first as a part-time street sweeper and then as a laborer, where he served as painter for street lines and driveways.
After his confrontation with Iacovelli, he claimed he was made to work with the garbage trucks.
“He did that to harass and to bother me,” said Delgado, adding he simply continued to work. “He was having all the supervisors come after me.”
Then in early 2005, Delgado slipped and fell outside the DPW, while he was on duty, and injured himself.
After Delgado returned to work, he submitted a disability note from his doctor, Oscar Sandoval, which stated that Delgado should lift nothing above 10 pounds. Delgado alleged that Iacovelli ignored the doctor’s orders and sent him on strenuous jobs, and when Delgado wasn’t physically able to complete them, he was written up.
“They gave me hard work so that I would quit, but I did as much as I could anyway,” said Delgado. “I was not going to quit.”
Disciplinary notices and fast hearings
The first preliminary disciplinary notice Delgado received was on March 15, 2005 for failure and inability to perform duties, chronic and excessive absenteeism, and neglect of duties. This was the only order signed by Martin, who was commissioner at the time, and this order was ultimately dismissed the following June.
According to the notice, Delgado was accused of being unable to perform duties for two reasons. On Feb. 15 he had reached the maximum medical benefit from Workers Compensation treatment, and had not performed his duties on a consistent basis, and the second reason was because he was unable to perform duties claiming he couldn’t lift an excess of 10 pounds as a result of a non-work related injury.
The excessive absences were noted during January, when Delgado was injured. It was noted on a preliminary notice of disciplinary action that since Jan. 31, 2005, Delgado was absent 34 and a half working days with no accrued sick leave.
“They were accusing me of missing too many days of work, which was not true. They just didn’t want me there anymore,” said Delgado. “Regardless, the most they can do is not pay you for those days, not dismiss you.”
Then on June 10, Iacovelli signed a second order of disciplinary action citing the same complaints, and a hearing on the matter was scheduled for July 5. This was during a time when Delgado’s attorney Ty Hyderally was not available to appear and Martin was away on vacation.
Hyderally, who represents the Union City Employees Association, and the union advised the city of this and requested another hearing date. The hearing was still held on July 5.
“I told them this was unfair that I had to appear without my lawyer and without the union director,” said Delgado. “This was a violation of my constitutional rights.”
After the hearing, Delgado’s dismissal became effective on July 11, with the final notice signed by Iacovelli. “They said I couldn’t come back to work, and I immediately appealed,” said Delgado.
False claim
Also, Delgado, who does not understand English very well, was given a document to sign by a fellow worker and member of their local union. Delgado’s colleague claimed that signing the document would grant the city’s attorneys to have access to Delgado’s medical papers. But the document actually was a letter of resignation from Delgado’s position.
“These people are corrupt because after the hearing they gave me this paper to sign, and my union representative said it was OK and to sign,” said Delgado. “They said it was for my medical papers.”
But Delgado tape-recorded that incident, so he was able to show the judge in the appellate case that he was unaware of what he was signing.
“I recorded it all,” said Delgado.
Appealing the case
After the hearing, Delgado sought the services of his current attorney Thomas Espinosa, who represented him in the appeals case before the OAL.
Delgado, who is 74 years old, will be eligible for retirement within two years. He claimed the city offered him a payment deal covering the time he missed from the dismissal, as well as the remaining two years, just to take an early retirement and drop the case.
“There had been negotiations [prior to this ruling] for possibility of payment for time lost, and what he would make in two years to retirement, and give him early retirement,” said Espinosa. “We didn’t accept.”
“I just want these two years,” said Delgado. “My dream is to reach 76 and I will retire.”
Delgado may get his wish. Last Friday, it was announced that Delgado won the ruling of the OAL judge.
The judge ordered that the city’s removal of Delgado was unjustified, citing that Iacovelli had no authority to sign off on disciplinary charges. Furthermore, the judge ordered the charges to be dismissed and Delgado reinstated to his position as a laborer.
“We litigated, we tried the case, and we won the decision,” said Espinosa. “Mr. Iacovelli, as deputy director, has no authority to give notice of disciplinary actions, neither preliminary or final.”
The judge also noted that there was no documentation from the director of the DPW that gave the deputy director such authority.
“Martin, as a witness, testified that he never gave [Iacovelli] the authority,” said Espinosa.
The judge ordered the city to pay benefits and back pay owed to Delgado for the last two years and also to pay attorney fees to Espinosa.
Delgado earned about $17,800 a year, and was also entitled to 20 days vacation time, four personal days, and six sick days.
“This has taken many years, but I feel good,” said Delgado. “I just want to go back so my co-workers can see me and know not to be afraid of these people.”
However, despite their victory, the Merit System Board must adopt the decision within 45 days.
According to Vanek, who is not the city’s counsel on this case but represents them in others, the city’s position is that Iacovelli is authorized because he runs the daily department operations, making him the appropriate person to sign disciplinary notices. The city also maintains that Martin had delegated the authority to Iacovelli, who has served as deputy director since 2002.
Other cases
Delgado is also one of nine city employees in a civil suit against the city, in which they are claiming harassment from other city employees that work politically on behalf of Mayor Brian Stack.
The claims, which are also being brought against Stack and were filed in 2005, include harassment at work due to political affiliations and retaliation for refusing to make political contributions or purchase tickets to Stack’s political fundraisers.
In March of 2005 Stack told the Reporter that this was a frivolous lawsuit and the only thing he had ever asked of these workers was “a day’s work for a day’s pay.”
“I will not be extorted, and I will not allow the taxpayers of Union City to be extorted,” Stack said in 2005. “Now the people will see what has been going on in Union City for years and what happens when the employees are forced to work.”
The case is still pending, and among the nine plaintiffs is also union president Leonard Lucente. Jessica Rosero can be reached at jrosero@hudsonreporter.com