Health and Hospital Corp. v. Maxwell

Health and Hospital Corp. v. Maxwell OATH Index No. 1236/97 (Aug. 18, 1997), modified on penalty, HHC Pers. Rev. Bd. Dec. No 932 (Jan. 12, 1999), appended. Summary: A 12-year technical support aide was absent 18 days during four months in 1996 and was late on 19 occasions during the same time frame for an average of 7-to-10 minutes. The administrative law judge found that, despite respondent s doctor s notes for the absences and her assertions of bus problems for the latenesses, both the absences and the latenesses were excessive in violation of Health & Hospitals Corporation Operating Procedure 20-10 (Mar. 17, 1987). ALJ rejected respondent s claim that she was unable to work due to physical ailments. ALJ rejected respondent s claim, without corroboration, that her allergies were aggravated by smoking in her office by her supervisor almost every day, despite no smoking policy in effect. Absent medical proof, ALJ rejected respondent s claim that special chair, provided upon recommendation by respondent s doctor, caused respondent s back problems. The judge recommended a 30-day suspension for an aide with no prior disciplinary history but a long history of taking a high quantity of leave time, despite repeated warnings from supervisors. See, report and recommendation at 10, citing cases standing for the proposition that frequent use of sick leave may be an aggravating factor when assessing penalty for attendance violations. After issuance of the report and recommendation, the parties negotiated a settlement where respondent accepted the penalty of a twenty day suspension plus one year probation. Matter of Maxwell, HHC Personnel Review Board, Decision No. 932 (Jan. 12, 1999) Report and Recommendation, August 18, 1997 JOHN B. SPOONER, Administrative Law Judge This is a disciplinary proceeding referred by the petitioner, Neponsit Health Care Center, pursuant to section 7.5 of the Personnel Rules and Regulations of the Health and Hospitals Corporation. The charges allege that respondent, a technical support aide, was excessively absent and excessively late. At the hearing before me on May 7, 1997, petitioner placed in evidence respondent s time-and-leave records. Petitioner called respondent s supervisor and respondent testified in her behalf. At the request of the parties, the record was left open for both sides to serve and file additional exhibits. Petitioner submitted additional documents on May 8, 1997, and respondent submitted additional documents on May 13, 1997. I find respondent guilty of the charges and recommend that she be suspended for 30 days. ANALYSIS Respondent is a 12-year technical support aide with the hospital, working at the Naponset Health Care Center. Her absences and latenesses, between September 6, 1996 and December 4, 1996,

which formed the basis of the charges, were not disputed. It was agreed that she was absent 18 days between September 17, 1996, and December 26, 1996, and supplied doctor s notes for all of the absences (Gormley: Tr. 22). Respondent was late on 19 occasions during the same time frame for an average of 7-to-10 minutes: 5 times in September (total time of 39 minutes); 8 times in October (total time of 54 minutes); 5 times in November (total time of 47 minutes); and once in December (total time of 20 minutes). Florence Gormley, respondent s supervisor, described respondent s attendance and lateness problems, which have apparently existed for several years. Respondent was counseled concerning her absences in May and September 1996 by Ms. Gormley. Ms. Gormley told respondent to make a conscientious effort to come in to work and be on time (Gormley: Tr. 9). In explaining her absences, respondent complained of Ms. Gormley s smoking, of her office being too hot or too cold, and of her chair being uncomfortable (Gormley: Tr. 10). In response to these complaints, a sample of the air from the office was tested and the test results indicated the air was clean (Gormley: Tr. 11). To check the temperature, the maintenance department checked the temperature every 30 minutes and found that the temperature was normal (Gormley: Tr. 11). When respondent s attendance did not improve, Ms. Gormley issued warning notices to respondent on May 9 and September 5, 1996, concerning possible disciplinary action (Gormley: Tr. 14). Ms. Gormley denied that any employees smoked inside the building (Gormley: Tr. 16) and indicated that, when she herself smoked, she did so outside the building (Gormely: Tr. 17). Respondent indicated that the reasons for her absences were various infirmities, including pain in her left hip and leg and allergies (Maxwell: Tr. 34). In June 1991, her doctor recommended that respondent have a special chair with lumbar support to alleviate her hip and leg pain, and such a chair was supplied in October 1991 (Maxwell: Tr. 35). This remedied the hip and leg problems until 1996, when respondent insisted she no longer felt support in the bottom and the pain returned (Maxwell: Tr. 35). Respondent also suffers from allergies and asserted that, when Ms. Gormley became her supervisor in March 1995, Ms. Gormley insisted on smoking inside the office. The cigarette smoke, combined with the heat and the dirt on the walls, aggravated respondent s allergies and caused her to miss several days work (Maxwell: Tr. 35-37). At other times, respondent contended that she was cold every day because of the draft from an open window in Ms. Gormley s office (Maxwell: Tr. 39). She insisted that she worked and worked until [her] body couldn t take it and she had to stay home (Maxwell: Tr. 40). In offering excuses for her latenesses, respondent testified that, in traveling from her home in Brooklyn to the hospital at Rockaway Beach, she takes a bus which leaves at either 7:30 a.m. or 7:40 a.m. from Kings Plaza (Maxwell: Tr. 30). Although she initially insisted that there was no earlier bus (Maxwell: Tr. 31), she conceded on cross-examination that she had made no effort to discover whether there was an earlier bus (Maxwell: Tr. 49). The 7:30 bus is chronically late in the winter due to snow and rain problems (Maxwell: Tr. 31). Respondent requested that she be allowed to make up the time lost due to the late buses by forgoing a portion of her lunch hour and her 15-

minute break time (Maxwell: Tr. 32). Ms. Gormley rejected this suggestion because she felt respondent needed all of her break time, but offered to change respondent s work hours to 8:15 a.m. until 4:15 p.m. Respondent thought about this suggestion and then refused it, reasoning that, with such a change, she would be having morning and evening problems (Maxwell: Tr. 33). Respondent was an entirely incredible witness, devoting nearly all of her testimony to detailing the reasons why she was the innocent victim of her supervisor s malice. She insisted that she was never given any warnings about her excessive absences and excessive latenesses, even though the agency forms indicate that the warnings were generated on May 9, 1996, and again on September 5, 1996 (Pet. Ex. 2). The May warning reflects that respondent refused to sign to verify delivery, a notation that suggests that respondent, a shop steward, was well aware of the notice procedure and attempted to avoid disciplinary repercussions by refusing to acknowledge service of the warning notice. Respondent s testimony that Ms. Gormley smoked cigarettes in her office nearly every day during the relevant time period (Maxwell: Tr. 57-58) was also patently incredible. While I found it plausible that Ms. Gormley may have, from time to time, surreptitiously smoked inside her office with the window open, I could not believe that she smoked as frequently as respondent suggested without being observed by anyone else. The only corroboration for Ms. Gormley s smoking was an April 5, 1996, smoking control complaint written by respondent on a hospital form (Resp. Ex. B). Respondent offered no explanation as to why, if she was indeed suffering such severe respiratory distress since Ms. Gormley was assigned to the office in 1995, she waited a full year to file such a complaint, or why, if no action was taken on the complaint, further complaints were not pursued. Respondent s assertive bearing and her willingness to complain about even minor inconveniences made it clear that she would be unlikely to suffer major health problems in silence. Furthermore, as respondent herself pointed out, smoking in the office was illegal and, if observed, Ms. Gormley could have been disciplined herself. Had Ms. Gormley smoked as frequently as respondent indicated and had respondent complained each time, as respondent insisted she did, it is implausible that no action would have been taken. Likewise incredible were respondent s reasons for rejecting Ms. Gormley s schedule adjustment of 8:15 to 4:15 hours to alleviate respondent s chronic lateness. Without further explanation, respondent indicated that adjusting her departure time by 15 minutes was unacceptable since it would cause further injury to [her] health (Maxwell: Tr. 49). More to the point, respondent indicated that she rejected the solution because her lateness was not my problem, it s the bus (Maxwell: Tr. 33). Obviously, respondent denied responsibility for the latenesses, choosing to blame them upon external factors which she portrayed as beyond her control, and rejected any proposed schedule adjustment which might have resulted in as little as 15 extra minutes of work. The doctor s notes submitted by respondent to excuse her absences suggest that respondent s health problems were minor, at best. Four of the notes are from a Dr. Langman who indicated that respondent suffered from post-concussion syndrome and should not engage in stressful situations. Notably, respondent never mentioned any concussion in her testimony, raising serious doubts that this condition truly existed or, if it did, that it was a cause of the absences. Two other

doctor s notes are from a Dr. Ahmad, who indicated that respondent suffered from allergies. One of the notes is from a Dr. Khwaja, who found that respondent suffered from some form of laryngitis and was unable to work for four days. Without analyzing the specifics of these various maladies, and fully crediting respondent s descriptions of her symptoms which ranged from headaches to some respiratory difficulty, none of these ailments seemed to pose a serious threat to respondent s health. Notably, respondent offered no medical proof at all for her assertion that her chair was the cause of back problems. Respondent s assertions that she was physically unable to work on all of these occasions is further undercut by memos submitted by respondent to her supervisors, which make it apparent that she complained about all manner of work conditions which could not possibly have affected her health. In May 1996, she wrote a memo to Ms. Gormley describing a glass security window as stressful and disturbing to her productivity. The only reason offered for this supposed stress was that respondent was visible to supervisors and others passing by her work area. Respondent s proposed remedy for this stress was revealing -- she asked for a proper office, like all other office staff. The insubstantiality of this and other complaints undercut respondent s assertions that she was concerned only for her health and made it clear that she had other goals in mind. Respondent testified that, prior to Ms. Gormley s arrival in 1995, respondent herself occupied the office now occupied by Ms. Gormley. It therefore seemed quite plausible that one of respondent s objectives in complaining was, not to remedy health problems, but to secure for herself an office equivalent to Ms. Gormley s. For all of these reasons, I discredited respondent s testimony that her absences were due solely to her supervisors ill will or to her own inability to come to work. It was apparent that respondent extravagantly embellished the smoke, dirt, and other conditions which she attributed to her supervisors, while at the same time greatly exaggerating the minor medical problems which she may have had. I further could not believe respondent s assertions that her latenesses were unavoidable. Respondent supplied no corroboration that her bus was late on any, let alone all, of the charged dates; she gave no explanation of why, assuming her bus line was so unreliable, she could not take an earlier bus; and she could offer no reason for refusing Ms. Gormley s offer to adjust her starting and departure time by 15 minutes to alleviate the lateness problem altogether. Neponsit Health Care Center does not have a rule defining excessive absenteeism. However, it uses Health & Hospitals Corporation Operating Procedure 20-10 (Mar. 17, 1987), which governs when an employee can be counseled and warned, as a standard for when disciplinary action may be commenced. The operating procedure permits a supervisor to conduct counseling for an employee who has three or more unscheduled absences, or two unscheduled absences immediately before or after a pass day during any six month period. Respondent was warned twice under this procedure prior to the absences and latenesses which occurred here. This tribunal has sustained charges of excessive absence where absences have far exceeded the threshold for counseling under the Procedure. Metropolitan Hospital v. Coley, OATH Index No. 2044/96, report and recommendation at 8 (Sept. 11, 1996) (21 absences over 9 months, including 12 approved, deemed excessive); Bellevue Hospital Center v. Marshall, OATH Index No. 185/96,

report and recommendation at 3-4 (Oct. 2, 1995) (20 unscheduled absences within a 10 months deemed excessive per se). See also Health and Hospitals Corporation v. Grier, OATH Index No. 938/95 (Feb. 16, 1995), rev d, Exec. Dir. Decision (May 5, 1995) (employee who was absent on 11 occasions totaling 22 days, within a 7-month period was excessively absent). Based upon this precedent, I find that respondent s 18 absences within four months are excessive. Despite being warned about her poor attendance in May and again in September 1996, respondent continued to be absent for what the record indicates were largely avoidable reasons. Three of these absences were after days off and six of the absences were without pay, since respondent had exhausted all of her allotted sick leave (Gormley: Tr. 28). Under these circumstances, the excessive absence charge must be sustained. I also find that respondent s 19 latenesses during a three-month period, averaging some 53 minutes per month, are well in excess of the limit of three occurrences or 30 minutes within a single month as permitted by the agency s rules. Operating Procedure 20-10 (Mar. 18, 1987). Since respondent could offer no corroboration to demonstrate that her bus was late and no credible explanation as to why, assuming her bus was so frequently late, she could not take an earlier bus, none of the latenesses can be excused. They are thus excessive and the excessive lateness charge should also be sustained. FINDINGS AND CONCLUSIONS 1. Respondent is guilty of specification 1 in that she was absent 18 days between September 17, 1996, and December 27, 1996, in violation of HHC Personnel Rule 7.5. 2. Respondent is guilty of specification 2 in that she was late 5 times in September 1996 (total time of 39 minutes); 8 times in October 1996 (total time of 54 minutes); 5 times in November 1996 (total time of 47 minutes); and once in December 1996 (total time of 20 minutes), in violation of HHC Personnel Rule 7.5. RECOMMENDATION Upon making the above findings, I requested and received a summary of respondent s personnel history. She has been a clerical employee with the Health and Hospital Corporation since 1985. From 1985 until 1990, she was an office associate. In 1990, pursuant to a grievance, she was promoted to technical support aide. She has had absence problems since early in her career, but has nonetheless had largely satisfactory evaluations and has never been disciplined before. She was absent 30 days in 1986, including over 8 days without pay after her leave balances ran out. Her 1985-86 evaluation rated her as satisfactory, after her immediate supervisor s rating of outstanding was modified by his supervisor. Her 1987-88 evaluation rated her as satisfactory and referred to her as an efficient and dedicated employee. Her 1989 evaluation was satisfactory and found that her absences were documented by proper doctor s notes. In November 1991, she was counseled concerning her 24 absences during the previous 16 months. Her 1992-93 evaluation rated her as satisfactory and noted

that she had been counseled for excessive use of sick leave and for lateness. Respondent s frequent use of sick leave throughout her employment provides a basis for enhancing the penalty for any timeand-leave abuses. See Lugo v. City of Newburgh, 209 A.D.2d 44, 618 N.Y.S.2d 420 (2d Dept 1994); Rannacher v. McGuire, 85 A.D.2d 521, 445 N.Y.S.2d 1 (1st Dept 1981); Department of Correction v. Vasser, OATH Index No. 232/90, report and recommendation at 10 (May 21, 1990). To her credit, respondent s file also contains a 1992 memorandum to her supervisors specifying several technological innovations in the Center s recordkeeping procedures, suggesting that she can be a dedicated and innovative worker. By her unyielding demeanor and her argumentative testimony, respondent convinced me that she has a very poor attitude about her job and her primary obligations to her employer. Far from appearing dedicated to the health center s general goals of serving the public, respondent seemed more interested in protecting her right to take large amounts of sick leave for dubious medical reasons, more concerned with battling her supervisors over insubstantial requests for preferential treatment than with going to work and doing her job. The Center requested that respondent be suspended for 30 days for the excessive absences and latenesses chronicled here. This seems to me a reasonable penalty for respondent, considering her many years of time-and-leave warnings. See Metropolitan Hospital Center v. Coley, OATH Index No. 2044/96 (Sept. 11, 1996) (20-day suspension for nurse s aide absent 21 days and late 4 times during 9-month period). Respondent is further put on notice that any further misconduct, particularly further instances of time-and-leave violations, could very well result in her dismissal. Accordingly, I recommend that, as a penalty for her excessive absences and latenesses, respondent be suspended for 30 days. P R E S E N T: JOHN B. SPOONER, Administrative Law Judge T O: STEVEN KABAN, Executive Director A P P E A R A N C E S: PHIL F. ROMAIN, Representative for Petitioner STEVEN GABE, ESQ., Attorney for Respondent Health and Hospitals Corporation Review Board's Decision, January 12, 1998 ARNOLD N. KRISS, Chairman PERSONNEL REVIEW BOARD DECISION AND ORDER

Appellant filled a Notice of Appeal on March 6, 1998. Appellant was subjected to a disciplinary proceeding before the Office of Administrative Trials and Hearings and Appellant was found guilty. A penalty of thirty days suspension was recommended and approved. After discussion between the parties the penalty was reduced to twenty days suspension and a period of twelve months probation was agreed to by the parties to be added as part of the modified penalty. ARNOLD N. KRISS, Chairman, Personnel Review Board CARLOTTA B. PAIGE, Board Member, Personnel Review Board