-1-
Health and Hospitals Corp. (Jacobi Medical Center)
v. Sanchez
OATH Index No. 1508/05 (May 19, 2005)
Undisputed evidence established that respondent was continuously absent without leave since May 9, 2003. Termination recommended.
NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
HEALTH AND HOSPITALS CORPORATION
(JACOBI MEDICAL CENTER)
Petitioner
-against-
GUILLERMO E. SANCHEZ
Respondent
REPORT AND RECOMMENDATION
JOAN R. SALZMAN,Administrative Law Judge
This is a disciplinary proceeding referred by the petitioner, the New York City Health and Hospitals Corporation (the “Corporation”), Jacobi Medical Center, pursuant to section 7:5 of the Personnel Rules and Regulations of the Corporation. Respondent Guillermo E. Sanchez, a staff nurse, is charged with being absent without authorization (AWOL) from May 9, 2003 to the present.
A hearing was scheduled to be conducted before me on May 19, 2005. Upon respondent’s failure to appear, petitioner presented proper proof of service of the charges and of the notice of the hearing (Pet. Exs. 1-7). This evidence established the jurisdictional prerequisites for finding respondent in default. Leanora M. Gilmore, RN, Nursing Representative from the New York State Nurses Association, filed a notice of appearance on behalf of respondent, and submitted documentation of her efforts by letters dated March 31, 2005, and April 11, 2005, to reach respondent (Resp. Exs. A, B). Ms. Gilmore wrote to respondent at an address in Spring Valley, New York, that differs from the Bronx address of record for respondent on file with the Corporation. The Spring Valley address did not appear to be a better address for respondent, who did not respond to Ms. Gilmore’s letters. Nor had respondent provided to the Corporation any change of address notification before the hearing, despite his duty to maintain a current mailing address with his employer, e.g.,Health and Hospitals Corp. (Renaissance Health Care Network Diagnostic and Treatment Center) v. Lasane, OATH Index No. 1061/04, at 3-4 (May 24, 2004). In any event, respondent has communicated in the last two years with neither his employer, the Corporation, nor with the union. Ms. Gilmore did not oppose the Corporation’s request for termination of respondent, but she did indicate that he had not answered her letters. Thus, although she filed a notice of appearance, apparently on his behalf, her authorization to represent him was not established because she indicated that he has not communicated with her. See 48 RCNY § 1-11(d) (Lexis.com 2005).
In support of the charges, petitioner submitted an affidavit, sworn to May 19, 2005, by Catherine Lind, the Associate Director, Nursing for the Critical Care, ICU and Emergency Department in Nursing for the North Bronx Healthcare Network (Pet. Ex. 6). Ms. Lind keeps time and leave records of Corporation employees in the Nursing Department. Her affidavit establishes that respondent has been absent without authorized leave from May 9, 2003 to the present. The Corporation duly notified respondent that his Family Medical Leave Act leave of absence expired on May 8, 2003, that he was to return to work on May 9, 2003, and that he was considered absent without official leave (Pet. Exs. 1, 6 at ¶ 4).
By letter dated October 27, 2003, to his address of record, by certified mail, return receipt requested (Pet. Exs. 2, 3), the Corporation’s Office of Labor Relations notified him of his AWOL status and of the referral of the matter to the Office of Labor Relations of the Corporation for possible disciplinary action (Pet. Exs. 2, 6 at ¶ 4). On December 22, 2003, the Director of the Office of Labor Relations notified respondent by letter sent to his address of record, via first class mail, and certified mail, return receipt requested, that he was AWOL and warned him that disciplinary action could be taken against him. The letter stated that he must contact his department head within three days to explain the reasons for his absence and to submit supporting documentation. A resignation form was attached, and respondent was invited to complete and return it if he intended to resign (Pet. Ex. 4). On or about May 27, 2004, the Corporation notified respondent of the charges via first class and certified mail, return receipt requested. The Department sent all of the cited correspondence to respondent’s address of record, but he did not respond. First class mail was not returned. Receipts for the December 22, 2003 letter and the May 2004 notice of charges were returned signed illegibly. The certified letter of October 27, 2003 was returned stamped unclaimed (Pet. Exs. 3, 5). Respondent did not attend a Step IA disciplinary conference held on July 13, 2004 (Pet. Exs. 5, 6). Ms. Gilmore and other representatives appeared at the Step IA conference and requested and were granted ten days to contact respondent before any decision was written. Respondent did not contact his representative.
It appears from this record that respondent has abandoned his job. Accordingly, I find that respondent engaged in the charged misconduct.
FINDINGS AND CONCLUSIONS
-1-
- Respondent was properly served with the charges and notice of hearing.
-1-
2.Respondent has been absent without authorized leave from May 9, 2003 to the present.
RECOMMENDATION
Respondent has been absent from work without authorization for an extended period of time. Respondent’s unauthorized absence is a fundamental form of misconduct that substantially impedes the agency’s ability to fulfill its mission. The only appropriate penalty for such misconduct is termination, and I so recommend.
Joan R. Salzman
Administrative Law Judge
May 19, 2005
SUBMITTED TO:
HANNAH NELSON
Chief of Staff, Jacobi Medical Center
APPEARANCES:
DAVID NADAL
Representative for Petitioner
No Appearance for Respondent