Dep’t of Correction v. Rodriguez

OATH Index No. 277/06 (Mar. 29, 2006)

Correction officer not guilty of disrespect, failure to secure her post and disobedience of an order to do so, and making false or misleading statements. ALJ recommended dismissal of charges.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF CORRECTION

Petitioner

- against -

MARTA RODRIGUEZ

Respondent

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REPORT & RECOMMENDATION

TYNIA D. RICHARD, Administrative Law Judge

This disciplinary proceeding was referred by petitioner, the Department of Correction ("Department"), pursuant to section 75 of the Civil Service Law. Respondent Marta Rodriguez is a correction officer charged with disrespect, insubordination, and making false and misleading statements. Respondent denies the charges.

The hearing was conducted before me on October 20 and November 16, 2005. Petitioner presented the testimony of Deputy Warden Peter Panagi, Captain Walter Perez, and Officers Louis Giraldi and Carmen Brito. Respondent testified on her own behalf and called as witnesses Captain Gregory Borges and Correction Officers Audrey Bailey, Luis Centeno and Christopher Clavell. For the reasons set forth below, I find that petitioner failed to prove the charges, and they should be dismissed.

ANALYSIS

Correction Officer Marta Rodriguez is charged with three specifications concerning events occurring on March 28, 2005, the date she reported for duty at Bellevue Hospital Prison Ward. Specifically, she is charged with disrespecting her commanding officer, failing and refusing to secure her post, and making false and misleading statements regarding her medical

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condition and the condition of her post. Petitioner contends that the events alleged in the charges were set in motion when respondent feigned illness in order to be transferred from her assignment at Bellevue.

Since 1994, Officer Rodriguez has suffered from an illness called “sarcoidosis.” She testified that it is an disease that attacks a person’s vital organs, in her case her lungs and eyes (Tr. 147-53). It has caused her to contract infections in her ears and sinuses, and body lesions for which she receives injections of the medicine Prednisone. The disease recently spread to her upper extremities and chest. In 1999, the Department granted her a reasonable accommodation (“due to a respiratory condition”) and assigned her to Elmhurst Hospital Prison Ward (Resp. Ex. F). She said she applied for the accommodation because the cigarette smoke prevalent around the inmates made her sick. After a few months at Elmhurst, she was transferred to Bellevue Hospital Prison Ward, where she remained until 2003 when she went out on medical leave after being assaulted by an inmate. When she returned from leave a few months later, the 19th floor where she worked was under construction. Working around the construction dust made her ill. As her illness progressed, her Prednisone dosage was increased, and she asked her commanding officer for a post that would accommodate her illness. By October 14, 2004, respondent had developed an asthma that was attributed to the construction dust, and her doctor advised that she be put on light duty (Resp. Exs. A & D). As a result of that request, respondent was placed on Medically Monitored Status (“MMR”) and she was transferred to work at the Health Management Division (“HMD”).

Officer Rodriguez produced the letters written by her doctor, Cynthia Caracta, M.D., of Mount Sinai School of Medicine, a specialist that she started seeing at the end of 2003 when she experienced a severe flare up that caused facial lesions (Tr. 153). These detailed letters, dated May 20, August 19, October 15, and November 1, 2004, and June 10, 2005, describe respondent’s illness, its triggers and its affects on her (Resp. Exs. A-E).

Disrespect

Specification 1 charges respondent with exhibiting disrespectful demeanor and language toward her commanding officer during a conversation in which she demanded to be returned to her prior work assignment at HMD.

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Deputy Warden Peter Panagi is the commanding officer of Bellevue Hospital Prison Ward (Tr. 16-18). After renovations of the facility were completed, the deputy warden was given authorization to staff new posts with officers who were on MMR status and had been temporarily sent to other facilities. Officer Rodriguez was one such officer. Deputy Warden Panagi assigned her to the satellite control room on the 19th floor, a post that required no inmate contact (Tr. 84).

On March 28, 2005, respondent reported to Bellevue for the 0730 to 1531 hours tour. According to Deputy Warden Panagi, Officer Rodriguez went into his office that morning and asked why she had been returned to Bellevue; he explained that he had new posts to fill and had requested the MMR officers because he could not get full-duty officers (Tr. 28-29). Respondent told him that she had no intention of staying at Bellevue and that she wanted to be returned to her former post at HMD. She angrily stated, “you do what you got to do, and I’ll do what I got to do,” which he understood to mean that she would do whatever she could to get out of this assignment. He said he considered her conduct to be disrespectful and insubordinate, but he wanted to give her an opportunity to adjust to her new post.

Deputy Warden Panagi later admitted that, during their conversation, Officer Rodriguez had informed him that she had a “skin disorder” called sarcoidosis (Tr. 34, 45). He was not sure what this illness was, and when he later heard that she had an asthma attack, he thought she was faking it in an attempt to get reassigned (Tr. 38-39). No other officers placed in the satellite control room had experienced respiratory difficulty. He said he never reviewed her file to determine why she was on MMR status, and he admitted that, at the time of trial, he still did not know what her illness was (Tr. 44). He testified about the substantial preparation of the satellite control room for use and said it was clean and well-ventilated when respondent arrived.

Respondent denied being disrespectful to the deputy warden in language or demeanor (Tr. 189). She testified that, after roll call, she went to Deputy Warden Panagi’s office and met with him (Tr. 159-60). She told him that for many years she has had a serious illness and she had stopped working at that facility because she developed an asthma. In the past, MMRs had not been placed in that facility. She asked why she had been returned to the facility without

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being cleared by her private doctor or her doctor at HMD, and she expressed concern about where she would be assigned. She told him she was afraid that her illness would worsen. Deputy Warden Panagi told her that he would see what he could do for her, and she left. She said they did not talk about a post; he told her to see the control room captain for her post. When she left, she was confident that he would look into it. She denied demanding that she be returned to HMD (Tr. 161-62). She denied saying, “you do what you got to do, and I’ll do what I got to do.” As they talked, the deputy warden seemed taken aback that she was trying to speak with him and he cut her off as she tried to explain her illness, reminding her that he needed the staff. She was relieved when he said he would look into it.

Although both witnesses appeared credible, some of the testimony was more believable. I noted that respondent evinced a calm demeanor and provided a detailed description of her illness which demonstrated a familiarity with her symptoms and the evolution of the illness over the years. It was not plausible that she would use her first opportunity to describe her illness to her commanding officer by referring to it simply as a “skin disorder,” particularly given the undisputed fact that her purpose in doing so was to convince him of the seriousness of her condition. Rather, it was more likely that the deputy warden, who was ultimately concerned with getting his new staff assigned and functioning in this recently renovated facility, did not listen to the details. I therefore credited Officer Rodriguez’s testimony about this encounter over Deputy Warden Panagi’s version. Respondent said that she left the conversation believing that the deputy warden would look into her condition and request, but in actuality the deputy warden demonstrated no interest in her condition and made little effort to find out what the illness was even by the time of trial, even though he arguably had an obligation to do so since she had a reasonable accommodation on file. See Jackan v. New York State Dep't of Labor, 205 F.3d 562, 566 (2d Cir. 2000) (employer has a duty to engage in an interactive process with an employee to find an appropriate accommodation based on the employee’s limitations); Felix v. N.Y. City

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Transit Auth., 154 F. Supp. 2d 640, 658 (S.D.N.Y. 2001), aff’d, 324 F.3d 102 (2d Cir. 2003); Human Resources Admin. v. Varone, OATH Index No. 695/01, at 11 (Dec. 26, 2001).[1]

I also found it difficult to believe that respondent initiated her contact with her new commanding officer by issuing him an angry challenge, “you do what you got to do, and I’ll do what I got to do,” with no apparent provocation, according to Deputy Warden Panagi’s version of the conversation. There was nothing in respondent’s demeanor that suggested this was likely. Moreover, it was not clear that uttering such a statement would constitute misconduct. Although the statement could be consistent with an officer later deciding to fake an illness, the evidence did not substantiate a conclusion that respondent’s asthma attack was faked, as is discussed below.

Having failed to establish by a preponderance of the credible evidence that respondent acted disrespectfully toward Deputy Warden Panagi, the Department did not prove the charge. Thus, I recommend dismissal of Specification 1.

Failure to Properly Secure her Post, Disobeying an Order

Respondent is charged with failing to secure her post and failing to obey an order to do so.

Deputy Warden Panagi testified that, at approximately 1225 hours, he saw the door to the satellite control room “wide open,” which he said was a security breach (Tr. 29-30, 51). He contacted Captain Walter Perez, the area supervisor, and told him to address the matter. Although Deputy Warden Panagi was touring the facility at the time, he did not tour the satellite control room and did not make a log book entry regarding the open door. In fact, he did not approach the control room at all, either to confront the officer or to order her to close the door. He first said that he did not recall seeing respondent inside the room, because there was not a

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direct view into the room from the elevator lobby where he stood (Tr. 51-52). Nevertheless, he said he was “pretty certain” that Officer Rodriguez was in there.

The log book indicates that Officer Rodriguez was relieved for her lunch break by Officer Bailey at 1200 hours and did not return to post until 1300 hours (Pet. Ex. 9). When confronted with the log book entry, the deputy warden maintained that he was “pretty certain” that respondent was in the control room at 1225 hours (Tr. 56). Later, when prompted on redirect examination, Deputy Warden Panagi amended his earlier testimony and firmly stated that he did see Officer Rodriguez in the control room when the door was open (Tr. 65). This evolution in the supervisor’s testimony diminished his credibility.

The most credible evidence established that respondent was not in the satellite control room at 1225 hours. Captain Perez’s entry in the log book noted his first interaction with Officer Rodriguez at 1305 hours, and he testified that, when he visited the control room at 1225 hours, he spoke with Officer Bailey who was on duty then. I therefore concluded that Deputy Warden Panagi was not telling the truth when he said he saw respondent in the room at that time.

Deputy Warden Panagi testified that Captain Perez reported to him that he too saw the door wide open, that he directed respondent to secure it, and she refused to comply (Tr. 30). Captain Perez did not fully confirm this version of his interaction with respondent. Deputy Warden Panagi said the captain discussed respondent’s medical condition with him, and he admitted that Captain Perez relayed to him Officer Rodriguez’s request to leave the door open for ventilation because of her medical condition (Tr. 60). He denied the request and told the captain that the room was properly ventilated and the door had to be secured. Although he did not meet with respondent at the time, the deputy warden stated that she was not exhibiting signs of distress at the time that she spoke to the captain, but was merely making an argument for leaving the door open (Tr. 61). Later that day, he was informed that Officer Rodriguez was taken to the emergency room.

Captain Perez testified that it was “around noon” when Deputy Warden Panagi told him that the satellite control room was in operation and to make sure that the door remained secured (Tr. 84). The deputy warden did not tell him that he had earlier observed the door open. During

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his first visit to the mini control room, around 1230 hours, Captain Perez said he spoke with Officer Bailey, the meal relief officer, and told her that the door needed to remain secured (Tr. 71, 87). His second visit was around 1305 hours, after Officer Rodriguez had returned; he observed the door open and he told respondent that the door needed to be secured and ordered her to close it (Tr. 72). She told him that she had a medical condition, asthma. He told her he would speak with the deputy warden about it (Tr. 73-74). She was not wheezing or coughing nor did she appear in any distress at the time. Because he was not familiar with officers on MMR status, he conveyed respondent’s medical concern about her asthma to the deputy warden and asked for his guidance; the deputy warden said that the post was sufficient, and the door should remain closed. He told the captain to take action if she refused to close it.