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Dep’t of Education v. Conyers

OATH Index No. 624/06 (Oct. 25, 2006), rejected, Chancellor’s Decision (Mar. 1, 2007), appended, modified on penalty, NYC Civ. Serv. Comm’n Item No. CD07-100-M (Oct. 24, 2007), appended

Although respondent was chronically late for work, evidence established that she was entitled to the protections of the Family Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA). Thus, excessive lateness charges should be dismissed. The Department also failed to prove that respondent was insubordinate. However, respondent was guilty of neglecting her duties because she repeatedly failed to provide timely notice of her latenesses to her supervisor. 30-day suspension recommended.

Chancellor found respondent was not entitled to the protections of the FMLA or the ADA and he sustained the excessive lateness charges. He found respondent guilty of the insubordination and neglect of duty charges and imposed the penalty of termination.

On appeal, CSC finds penalty of termination to be too harsh; it orders reinstatement without back pay (time served suspension).

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NEW YORK CITY OFFICE OF

-16-

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF EDUCATION

Petitioner

- against -

PATRICIA CONYERS

Respondent

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REPORT AND RECOMMENDATION

KEVIN F. CASEY, Administrative Law Judge

Petitioner, the Department of Education, brought this disciplinary proceeding under section 75 of the Civil Service Law. It charged respondent, computer associate Patricia Conyers, with excessive lateness, insubordination, and neglect of duties from May 1, 2004 to March 24, 2006 (ALJ Ex. 1).

At a hearing on March 27, May 9, and May 22, 2006, the Department relied upon documentary evidence and testimony from four witnesses. Respondent testified on her own behalf and also presented documentary evidence. The parties requested and received permission to submit written summations. Upon receipt of the summations, the record was closed on August 22, 2006.

For the reasons below, I find that respondent is not guilty of excessive lateness and insubordination, but guilty of neglect of duties. I recommend a 30-day suspension.

ANALYSIS

Background

The facts are largely uncontested. Respondent has worked for the Department and its predecessor, the Board of Education, since 1985. In recent years, she has been frequently late for work. The Department now seeks to terminate her employment due to excessive tardiness. Respondent, who has received extensive and well-documented treatment for depression and sleep apnea, maintains that the Department erroneously rescinded intermittent leave under the Family Medical Leave Act (FMLA) and improperly denied her request for a reasonable accommodation under the Americans with Disabilities Act (ADA).

For nearly a decade, respondent has been treated for chronic depression (Tr. 102-03, 188). In 2003, she developed problems with breathing at night and was diagnosed with sleep apnea (Tr. 105). According to respondent, she woke up at night “gasping for air” and was “very fatigued” in the morning (Tr. 187). Following a sleep study at New York Methodist Hospital, respondent was treated by pulmonary and sleep specialists (Tr. 104).

In March 2003, while working as a coordinator providing training and support for various computer users, respondent submitted a request for an accommodation (Resp. Ex. A). She sought a flexible starting time, between 9:00 a.m. and 10:00 a.m., due to “chronic depression, chronic fatigue, and sleep apnea” (Resp. Ex. A). According to respondent, her symptoms included intense headaches, extreme fatigue, difficulty awakening, and trouble concentrating. Her treating physician was trying to find the right combination of medications to treat her chronic depression and fatigue. Her medication included two-antidepressants (Wellbutrin and Lexapro), a sedative (Ambien), and a stimulant (Provigal). See MedlinePlus http://www.nlm.nih.gov/medlineplus/druginfo/medmaster (last visited Oct. 24, 2006).

Respondent supported her request with a letter from Dr. Steven Newman, a board-certified psychiatrist, stating that he had been treating respondent for chronic depression and sleep disorder. Dr. Newman noted that respondent had difficulty getting up in the morning due to her medical conditions. A sleep study signed by two board-certified specialists in sleep medicine, Dr. Gerard Lombardo and Dr. Andrew P. Tucker, indicated that respondent had a history of depression and morning headaches (Resp. Ex. A). She was diagnosed with “mild obstructive sleep apnea syndrome” and “excessive daytime somnolence” (Resp. Ex. A). The specialists recommended treatment including use of a continuous positive air pressure (CPAP) device, surgery, and weight loss (Resp. Ex. A).

In April 2003, the Department granted respondent’s accommodation request and changed her starting time from 9:00 a.m. to 9:15 a.m., with 30 minutes of flexibility. The letter granting the accommodation noted that respondent was a “valued worker” who produced “quality work” (Resp. Ex. B). Respondent adhered to this revised schedule (Tr. 113).

Following a Department re-organization, respondent was transferred to the financial operations division in mid-2003 (Tr. 113, 279). Her new responsibilities included billing and data entry (Tr. 114, 309). After a few months, respondent told her supervisor, Noli Hourahan, that she was having difficulty arriving for work on time. Hourahan referred the matter to personnel director John Caminiti. He advised respondent to file for FMLA leave (Tr. 114, 278).

In October 2003, respondent submitted a request for intermittent FMLA leave due to chronic sleep apnea that required nightly treatment. The request was certified by Dr. Lombardo, the board-certified sleep specialist (Pet. Ex. 6; Resp. Ex. C). Caminiti described this as a routine request (Tr. 278). He approved 420 hours of intermittent leave, the equivalent of 12 weeks, for one year beginning November 2003 (Tr. 119, 122; Resp. Ex. D). After a year, respondent could renew her FMLA request and seek additional leave (Tr. 282).

Caminiti told respondent to note on her timesheet how much of her intermittent leave she had used the previous week for absences or lateness (Tr. 220, 312). Respondent followed this procedure for five months and, according to Caminiti, “there was no problem” (Tr. 312).

In April 2004, Hourahan complained to Caminiti that respondent was “significantly late on a daily basis” and it was “causing a problem in the office” (Tr. 284, 308). Shortly afterwards, Yvonne Joseph, an administrator in the human resources division, directed respondent to report to the Department’s medical bureau for a “fitness” examination (Resp. Ex. E). Respondent e-mailed Joseph and asked for the purpose of the examination. Joseph replied that respondent had “an informal accommodation yet there seems to still be an issue of excessive lateness” (Resp. Ex. F). Respondent protested that she had been approved for intermittent FMLA leave in November 2003 (Resp. Ex. F).

On May 3, 2004, respondent and her union representative met with Caminiti for a disciplinary conference. They discussed excessive lateness and the possibility of respondent applying for an ADA accommodation and re-submitting her FMLA application (Pet. Ex. 8; Resp. Ex. I). They also discussed permitting respondent to work from 11:00 a.m. to 6:00 p.m. or from noon to 7:00 p.m. (Tr. 291-92). Caminiti insisted that a noon starting time “just wouldn’t work” and asked respondent to provide additional medical documentation (Tr. 292; Resp. Ex. I). Caminiti initially claimed the respondent’s FMLA leave was not rescinded, but he conceded that he was told to stop coding respondent’s lateness as FMLA even though she had a balance remaining from the 420 hours that were previously approved (Tr. 289, 317-18, 322).

On May 5, 2004, a Department physician examined respondent and issued a report (Tr. 126-27). Although the examining physician did not testify, Dr. Ann Garner, a Department psychiatrist, reviewed the report and discussed its contents (Resp. Ex. G). According to the report, respondent had no physical problems (Tr. 229, 252; Resp. Ex. G).

The next day, Caminiti and respondent exchanged e-mails in which they discussed an ADA accommodation. Caminiti suggested a 25-hour work week, with a noon to 5:00 p.m. schedule, to allow respondent to retain her health benefits. Respondent asked for more details, such as whether she could work more hours. Unsure whether a part-time schedule could be flexible, Caminiti told respondent to discuss it with her union representative (Resp. Ex. T).

Soon after Hourahan complained to Caminiti, the Department transferred respondent to a technical support unit (Tr. 40-41). The transfer followed a union grievance alleging that respondent and others were working out of title (Tr. 50, 73-74, 146). In the technical support unit, supervisor Jaime Jaramillo, respondent, and two others provided software and hardware support for approximately 350 computer users (Tr. 38-39).

In June 2004, respondent submitted an ADA accommodation request for one-hour flexibility in her start time (Resp. Ex. J). The application included two sleep studies, the prior FMLA request, and a follow-up letter from Dr. Newman dated May 8, 2004 (Tr. 139; Resp. Ex. J). According to an October 2003 sleep study, respondent’s apnea was “being resolved with nasal CPAP” (Resp. Ex. J). But Dr. Newman also noted that he was treating respondent for chronic depression, insomnia, and fatigue. The treatment included two anti-depressants and a morning stimulant (Resp. Ex. J).

A month later, the Department denied respondent’s request for an ADA accommodation as “not medically justified” (Tr. 148; Resp. Ex. K). Respondent asked Caminiti for an explanation, but he did not provide any further information (Tr. 149; Resp. Ex. L). A subsequent letter from the Department’s human resources division also failed to explain the medical basis for the denial of an accommodation (Resp. Ex. M).

On October 1, 2004, respondent submitted another request for intermittent FMLA leave. According to the supporting medical certification, respondent suffered from depression, migraines, and sleep apnea (Resp. Ex. N).

In January 2005, respondent’s supervisor warned her that she had been late for work 38 times in the last quarter of 2004. Respondent noted that she was awaiting a response to her recent request for intermittent FMLA leave (Resp. Ex. O). Two weeks later, Caminiti told her that the human resources and legal departments had advised him that she was not qualified for FMLA leave or an ADA accommodation (Resp. Ex. P).

At another disciplinary conference in April 2005, Caminiti warned respondent about her excessive lateness (Tr. 163; Pet. Ex. 9). Respondent replied that she was still seeking FMLA leave or a medical accommodation (Tr. 163; Pet. Ex. 9). In July 2005, the Department charged respondent with excessive lateness from April 2004 to March 2005. On August 15, 2005, she began serving a 30-day suspension (Tr. 165).

In February 2006, respondent submitted another request for a medical accommodation (Tr. 165; Resp. Ex. Q). She sought a work schedule of 10:00 a.m. to 6:00 p.m. or a transfer. The application was supported by four doctors. Dr. Lombardo wrote that respondent continued to suffer from sleep apnea with daytime tiredness and fatigue. Although respondent was using the CPAP machine and daily medications, Dr. Lombardo believed that a delayed starting time would help her treatment. Dr. Newman continued to treat respondent for clinical depression and noted that other specialists were treating her for sleep apnea and a chronic fatigue disorder. According to Dr. Newman, the net effect of the underlying conditions and respondent’s relatively complex medication regimen made her extremely fatigued in the morning. Dr. Boris Bentslanov, a specialist in otolaryngology, confirmed that respondent had mild sleep apnea with significant nasal septal deviation. Because respondent’s condition had not improved, despite the use of the CPAP machine, Dr. Bentslanov recommended further testing. Dr. David Goddard, an internist and professor of clinical medicine, believed that the root cause of respondent’s problems was inadequately treated sleep apnea (Resp. Ex. Q).

Dr. Garner, the Department psychiatrist, reviewed respondent’s February 2006 request for an accommodation and rejected it as medically unwarranted (Tr. 167, 234, 259; Resp. Exs. M and R). Although Dr. Garner was not a specialist in sleep disorders, she stressed that respondent’s condition was diagnosed as mild. Indeed, Dr. Garner believed that respondent’s sleep apnea had been successfully treated (Tr. 234-35, 259). Moreover, in Dr. Garner’s view, there was no reason why respondent could not go to bed earlier and get up earlier in the morning to take her medications (Tr. 246, 267-68).

Excessive Lateness

The Department defines excessive lateness as more than 60 late arrivals within the 12-months beginning May 1. Rules and Regulations Governing Non-Pedagogical Administrative Employees § 9.6.3. Respondent was late 187 times from May 1, 2004 to April 30, 2005, and 124 times from May 1, 2005 to April 30, 2006 (Pet. Exs. 1 & 2; Tr. 184-85). On many of those occasions, she was at least an hour late. For example, from May 1, 2005 to March 24, 2006, respondent was more than an hour late 36 times (Tr. 186-87).

Respondent has raised two affirmative defenses. She claims that she is entitled to protection under the FMLA and ADA. This tribunal may consider such defenses “as part of our obligation to provide a complete evaluation of the legality” of the Department’s actions. Dep’t of Correction v. Noriega-Harvey, OATH Index No. 1250/97, mem. dec. at 9 (Aug. 14, 1997).

FMLA Claim

The FMLA permits qualified employees to take up to 12 weeks of unpaid leave a year due to “a serious health condition.” 29 U.S.C. § 2612(a)(1)(D). It is unlawful for an employer to “interfere with, restrain, or deny the exercise of or the attempt to exercise” rights provided by the FMLA. 29 U.S.C. § 2615(a)(1). “Interfering with” the exercise of those rights includes a refusal to authorize FMLA leave. 29 C.F.R. § 825.220(b). Moreover, employers may not “use the taking of FMLA leave as a negative factor” in disciplinary actions. 29 C.F.R. § 825.220(c).

Respondent triggered her rights under the FMLA by filing a request for intermittent leave in October 2003. Her request was supported by a treating physician who certified that respondent required continuing treatment for chronic sleep apnea (Resp. Ex. C). 29 U.S.C. § 2611(11)(B) (“serious medical condition” is broadly defined and includes chronic physical or mental conditions that require continuing treatment by a health care provider). The Department granted respondent’s request and authorized up to 420 hours of intermittent leave.

Complaints to Caminiti in April 2004 about respondent’s tardiness were, in essence, objections to her use of FMLA leave. The Department had two viable options. It could have asked respondent to obtain a second opinion from an independent health care provider. 29 U.S.C. § 2613(c)(1). Alternatively, it could have asked respondent to provide recertification from her doctor. 29 U.S.C. § 2613(e); see also 29 C.F.R. § 825.308(a), (e).