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Admin. for Children’s Services v. Keyes

OATH Index Nos. 230/06 and 559/06 (Mar. 13, 2006)

Petitioner established that respondent violated time and leave regulations, including the prohibitions against excessive lateness and absences without leave. Respondent’s evidence was insufficient to show that her latenesses or absences were justified. Two-month suspension recommended.

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NEW YORK CITY OFFICE OF

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ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

ADMINISTRATION FOR CHILDREN’S SERVICES

Petitioner

- against -

GWENDOLYN KEYES

Respondent

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REPORT AND RECOMMENDATION

KEVIN F. CASEY, Administrative Law Judge

The Administration for Children’s Services (ACS) brought this employee disciplinary proceeding pursuant to section 75 of the Civil Service Law. Petitioner charged respondent, Gwendolyn Keyes, a clerical associate, with misconduct for violating time and leave regulations.

At the hearing on December 12 and 13, 2005, petitioner relied upon documentary evidence and testimony from two witnesses. Respondent testified on her own behalf and also presented documentary evidence. The record remained open for three weeks, at respondent’s request, to enable counsel to obtain, review, and submit medical evidence. Following submission of written summations, the record was closed on February 17, 2006. [1]

For the reasons set forth below, I find that petitioner proved all of the charges and recommend that respondent be suspended without pay for two months.


ANALYSIS

In two sets of charges and specifications, petitioner accused respondent of failure to comply with agency and citywide time and leave regulations, including the prohibition against excessive lateness and “the requirement that employees must notify their immediate supervisors or division heads of any unplanned absence not more than 60 minutes after their scheduled reporting time.” ACS Code of Conduct, § III(b)(6). The first set of charges alleged that respondent was AWOL on April 18, 2005, and late for work 24 times, with an average lateness of one hour, from February 14 to April 22, 2005 (OATH Index No. 230/06, charge I, specifications 1-4). The second set of charges alleged that, from April 26 to August 19, 2005, respondent was AWOL on 12 occasions and late for work 23 times, with an average lateness of 1 hour and 28 minutes (OATH Index No. 559/06, charge I, specifications 1-8).

Petitioner presented respondent’s weekly time cards for the relevant dates (Pet. Exs. 1 and 5). This evidence showed that respondent was late or absent on each of the dates identified in the charges. The central issue at the hearing was whether respondent documented legitimate reasons for failing to appear for work as scheduled (Tr. 18).

According to Linda White, former director of Direct Foster Care Services, respondent ordered supplies and maintained case files at the agency’s office on West 127th Street (Tr. 21-22, 35). In Ms. White’s view, respondent was a “good worker” when she was in the office (Tr. 22). However, respondent had an attendance problem. Ms. White repeatedly discussed this issue with respondent, informally and in the presence of a union representative. To allow for transportation delays, respondent had a flexible starting time, from 9:15 to 10:15 a.m. (Tr. 31-32; Pet. Ex. 3). Ms. White suggested other remedies, such as encouraging respondent to transfer to an office with a later start time or evening hours (Tr. 43).

Ms. White recalled that respondent offered a wide variety of undocumented explanations for her attendance difficulties, including train delays, menstrual cramps, and problems with her mentally ill mother (Tr. 42, 48). When respondent also mentioned troubles in housing court, Ms. White advised her to give advance notice and proof for any court appointments (Tr. 43). Ms. White also suggested to respondent’s immediate supervisor, Catherine Green, that respondent should be referred to the City’s Employee Assistance Program (EAP) (Tr. 44). In April 2005, Ms. White warned respondent that her time and leave violations could result in disciplinary action (Tr. 35). Charges in this matter were first filed on May 4, 2005 (Tr. 35).

In June 2005, the agency closed the West 127th Street office and reassigned respondent to the Office of Case Management at 150 William Street in lower Manhattan (Tr. 36). Gale Durrant became respondent’s new supervisor (Tr. 51). Ms. Durrant described respondent as a poor worker who was frequently absent. She repeatedly spoke to respondent about her absences and failure to get to work on time (Tr. 52-53).

According to Ms. Durrant, respondent routinely ignored her obligation to call within an hour of her starting time when she was late or absent (Tr. 60). Respondent would not call until 1:00 p.m. or not call at all (Tr. 60). For example, respondent was not at work from August 1 to August 5, 2005 (Tr. 57). On the first three days, respondent called in and requested “personal days,” but she did not call at all for the last two days. When respondent returned to work, she wrote on her time card that August 1, 2, 3, and 4 should be charged to annual leave and August 5 should be charged to sick leave (Pet. Ex. 5). Ms. Durrant disapproved all five unscheduled absences (Tr. 58; Pet. Ex. 5).

Respondent provided Ms. Durrant with different explanations for her poor attendance (Tr. 54). She referred to difficulties with her mentally ill mother, her grandmother, her apartment, and other personal problems, including “demons and spirits” that were out to get her (Tr. 65). On one morning, for example, respondent reported that her mother unexpectedly showed up at her door after wandering around the Bronx (Tr. 63). Believing that respondent needed professional help for her personal and family problems, Ms. Durrant referred her to EAP and the agency’s personnel department (Tr. 54, 65). But respondent refused and said that she would go seek help through her union (Tr. 54, 65).

At the hearing, respondent offered an assortment of excuses for her attendance problems. She recalled that she was 30 minutes late on Monday, February 14, 2005, because she had to go to housing court and she was late every other day that week due to unspecified problems or personal business involving her adult son (Tr. 82-83, 120). She attributed many of her late arrivals in March 2005 to menstrual cramps or train delays (Tr. 84, 86, 89-91). Respondent claimed that she was late on March 3, 2005, because she had to wait for painters to arrive at her mother’s apartment (Tr. 85).

On March 17, 2005, when respondent learned that her office was being relocated, she unsuccessfully renewed her earlier requests for a transfer to a Bronx office (Tr. 78-79; 93-94; Resp. Exs. A and C). According to respondent, the normal commute from her Bronx home to West 127th Street was 45 minutes and she needed an extra 30 minutes to get to William Street (Tr. 108).

In April and May 2005, respondent spent a great deal of time transferring files for the impending move (Tr. 108). She attributed four of her latenesses during those months to work-related fatigue (Tr. 95-96, 104-05). Respondent conceded that she could not recall all of the reasons for her July and August 2005 latenesses, but she generally attributed them to personal business (Tr. 111). She claimed, for example, that she was more than three hours late on July 11, because she was cooking the night before for her son’s birthday (Tr. 110). On another day in July she was late for work because she needed to deposit a check for her grandmother (Tr. 112).

According to respondent, she “always” called in when she was going to be late or absent, but her supervisors rejected every one of her requests for approval of absences or lateness (Tr. 84, 118, 121). The time cards do not support this claim. Ms. Green approved more than nine of respondent’s latenesses and Ms. Durrant approved some absences (Tr. 119; Pet. Exs. 1 and 5). Respondent also insisted that supervisors disapproved latenesses due to train delays, even where she had provided documentation (Tr. 121). Although respondent maintained that she copied train delay forms, she did not offer such documentation at the hearing (Tr. 121).

With the exception of six housing court forms, respondent presented no documentation at the hearing for the vast majority of her absences or late arrivals. The housing forms, including copies of orders to show cause, were offered to support respondent’s claim that she was in court on five dates: February 14, February 28, March 31, April 7, and April 15, 2005 (Tr. 98; Resp. Ex. D). For three of those dates (February 28, March 31, and April 15, 2005), respondent’s supervisors approved her absence or late arrival (Pet. Ex. 1). The lone disapprovals were on February 14, 2005, when she was marked 33 minutes late, and April 7, 2005, when she was 83 minutes late for work (Pet. Ex. 1). It is unclear from the documents whether or when respondent was actually in court on those two dates and there is no reliable evidence that she ever submitted these documents to her supervisors.

After receiving the present charges, respondent sought help from social worker Pamela Thomas and two psychiatrists (Tr. 113, 125). None of those people testified. Instead, respondent relied upon three documents: a December 14, 2005, report prepared by Ms. Thomas; an October 10, 2005, psychiatric report prepared by Dr. Michael Hargrove; and a January 5, 2006, letter from Dr. Hargrove.

Ms. Thomas wrote that a consulting psychiatrist for the union, identified as Dr. Borbely, confirmed that respondent is suffering from a long-term depression. No report from Dr. Borbely was offered in evidence. Ms. Thomas noted that respondent attributed her recent attendance problems to the hardship of traveling from the Bronx to lower Manhattan. According to Ms. Thomas, respondent also expressed concerns about working in lower Manhattan after the September 11, 2001, attack. Respondent never mentioned that concern during her testimony.

According to Dr. Michael Hargrove, he initially evaluated respondent on October 1, 2005, and she reported that she was under stress and financial pressure because her supervisor had denied her time and leave requests. She also mentioned difficulties dealing with her disrespectful adult son. Respondent told Dr. Hargrove that she felt “helpless not hopeless” and disclosed that she went to another psychiatrist on September 20, 2005. Dr. Hargrove prescribed Risperdal, Lamictal, and Ambien. Risperdal is used to treat schizophrenia; Lamictal is an anti-seizure medication also used to treat depression and bi-polar disorder; and Ambien is a short-term treatment for insomnia. See Physician's Desk Reference for Prescription Drugs (Micromedex 2005); U.S. Nat’l Library of Medicine, Medline Plus Drug Information, available at www.nlm.nih.gov/medlineplus/druginformation.html (accessed Mar. 1, 2006). As of January 5, 2006, respondent was still under Dr. Hargrove’s care and he indicated that she was able to work with the aid of her prescribed medications.

I fully credited petitioner’s witnesses who testified in a forthright, unbiased manner. Their testimony and supporting documentation proved that, from February 14 to August 22, 2005, respondent was inexcusably late for work 47 times and AWOL 13 days in violation of agency rules. Because respondent’s supervisors repeatedly counseled her about the con-sequences of her lateness and she was late more than six times within a year, her behavior also violated the citywide policy against excessive lateness. See Citywide Employee Lateness Policy, Personnel Services Bulletin No. 410-1R (eff. April 17, 2000); see Fire Dep’t v. Bayza, OATH Index No. 2053/01, at 17 (Feb. 22, 2002); Dep’t of Housing Preservation & Development v. Jones, OATH Index No. 1068/00, at 10 (July 7, 2000).

Respondent’s excuses for her poor attendance ranged from trivial to serious, but they shared a common theme. Nearly all of her explanations were vague and unverified. There were only two instances of disapproved lateness, February 7 and April 14, 2005, where respondent even attempted to offer some documentary evidence and there is no reliable indication that those documents were ever submitted to her supervisors. Thus, respondent committed misconduct because she failed to document the reasons for unscheduled latenesses or absences. See Admin. for Children's Services v. Snead, OATH Index No. 333/04 (Oct. 19, 2004); Admin. for Children’s Services v. Hoffman, OATH Index No. 1616/02 (Dec. 20, 2002).

Counsel for respondent also claimed that any tardiness following her reassignment to William Street in mid-June 2005 should be excused because respondent was contractually entitled to a hardship transfer if her commuting time was more than 55 minutes. Acknowledging that respondent may have had a right to a transfer following the reassignment, petitioner argued that respondent made no such request until February 2006 (Petitioner’s Summation, at 4).

Upon learning about the pending reassignment, respondent immediately renewed her request for a transfer to any other location in the Bronx. This was timely. However, even if it is assumed that the failure to reassign respondent to a Bronx location violated a contract provision, she was still required to show up for work on time. Under such circumstances, an employee must “obey now, grieve later.” See Ferreri v. New York State Thruway Auth., 62 N.Y.2d 855, 477 N .Y.S.2d 616 (1984) (absent threats to health or safety, employee must "obey now, grieve later"); Transit Auth. v. Merrit, OATH Index No. 963/97 (Oct. 30, 1997) (failure to report to reassigned work location is misconduct). Moreover, before the transfer, respondent had developed a pattern of chronic lateness. Having failed to show up for work on time at West 127th Street, despite the accommodation of her request for a one-hour flexible starting time, it is unlikely that the extended commute, an additional 30 minutes by respondent’s estimate, caused her late arrivals in lower Manhattan. Indeed, on seven occasions during July and August 2005, respondent was more than an hour late.