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Health and Hospitals Corp. (KingsCountyHospitalCenter)
v. Bobbitt
OATH Index No. 850/07 (Feb. 2, 2007)
Petitioner proved that respondent engaged in loud, disrespectful, and disruptive behavior. Ten-day suspension recommended.
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NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
HEALTH AND HOSPITALS CORPORATION
(KINGSCOUNTYHOSPITALCENTER)
Petitioner
-against-
CYNTHIA BOBBITT
Respondent
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REPORT AND RECOMMENDATION
KEVIN F. CASEY, Administrative Law Judge
The Health and Hospitals Corporation brought this disciplinary proceeding pursuant to section 7:5 of its Personnel Rules and Regulations. Respondent Cynthia Bobbitt, a patient care technician, is charged with inappropriate and unprofessional behavior.
At a hearing on January 10, 2007, petitioner relied upon the testimony of two witnesses and documentary evidence. Respondent testified on her own behalf.
For the reasons below, I find that petitioner proved the charge and recommend that respondent be suspended without pay for ten days.
ANALYSIS
The charge stems from events that occurred at the McKinney Nursing and RehabilitationCenter in Brooklyn on December 12, 2005. Petitioner alleged that, during a discussion with supervisors, respondent became loud, disrespectful, and threatening. Respondent denied any wrongdoing.
Assistant director of nursing Julie Medina and associate director Sharon Gales testified that they met with respondent to issue her a disciplinary warning regarding an earlier incident (Medina: Tr. 8, 22; Gales: Tr. 43). Respondent refused to sign the warning, but she asked for a copy (Gales: Tr. 43). Medina left Gales’s office and went to a nearby copying machine. As Medinamade the copy, respondent walked up to her and asked permission to take a day off two days later (Medina: Tr. 9, 23; Gales: Tr. 43). Medina said that she could not accommodate the request without looking at the schedule (Medina: Tr. 10, 24). Respondent declared that she would call in sick if she did not get the day off (Medina: Tr. 10, 24, 30; Gales: Tr. 43).
Overhearing that comment, Gales said, “You know, Ms. Bobbitt, that’s not the way to go about asking for a day off” (Medina: Tr. 10; Gales: Tr. 43). Gales also stated that respondent should have “known better” because she was a union representative (Medina: Tr. 11, 25; Gales: Tr. 43). Respondent became angry, stood in the doorway to Gales’s office, and declared, “Who do you think you are?” (Medina: Tr. 11, 23; Pet. Ex. 1). According to Medina, respondent spoke in “an aggressive, loud manner” (Medina: Tr. 11-12, 26). After respondent walked away, Gales said to Medina, “This lady is very rude and I’m going to report her” (Gales: Tr. 44-45).
At that point, respondent suddenly returned to the doorway and started pointing at Gales. Respondent said, “Who do you think you are?” and “Leave me alone, I’m warning you” (Gales: Tr. 44). Respondent’s finger was in Gales’s face (Gales: Tr. 50). Gales described respondent as “uncontrollable” (Gales: Tr. 43-44, 46). Medina and Gales testified that Gales told respondent, at least three times, to calm down and leave her office (Medina: Tr. 11, 27; Gales: Tr. 44-45). Following the third request, respondent left (Medina: Tr. 11). Medina estimated that about 20 minutes elapsed from when respondent asked for a day off until she finally heeded Gales’s requests to leave (Medina: Tr. 35).
Respondent testified that, after she refused to sign the warning letter, Gales “basically threw me out of her office” (Tr. 68). At that point, respondent went with Medina to the copying machine and asked about taking a day off (Tr. 66). Respondent claimed that she had made the vacation request the previous week (Tr. 58, 67). Thus, as they stood by the copying machine, respondent merely reminded Medina about the pending vacation request (Tr. 58, 67). Medina gave respondent a copy of the warning notice and said that she would get back to her about taking a day off (Tr. 58).
According to respondent, she never told Medina that she would call in sick if her vacation request was rejected(Tr. 67). Respondent also denied returning toGales’s office, raising her voice, or pointing her finger (Tr. 67). Instead, respondent recalled, she simply walked away from the copier without incident (Tr. 67). The next day, respondent received permission to take a day off on December 14, 2005 (Tr. 73).
Medina and Gales were very persuasive witnesses who offered clear and consistent testimony. I was particularly impressed when Gales demonstrated the way that respondent stood in the doorway pointing and yelling. It seemed apparent that Gales was describing an unforgettable incident. In contrast, respondent presented an implausible version of events. To accept her story, one would have to believe that two supervisors plotted against her for no apparent reason. There was no reliable evidence to support this conspiracy theory.
Under cross-examination, Gales conceded that, shortly after this incident, she wrote that respondent was “toxic” to the agency (Tr. 51-52; Pet. Ex. 1). Gales conceded, however, that she had no prior problems with respondent and her written opinion was based, in part, upon what others had told her (Tr. 46, 52). Undoubtedly, Gales was angry when she prepared her report. But her blunt language does not prove that she was untruthful. Rather, it appears that respondent’s behavior simply confirmed what Gales had heard.
Noting that she eventually obtained permission to take the requested day off, respondent argued that such a result was unlikely if she had acted in the manner described by her supervisors (Tr. 75). That argument was unconvincing. This was a routine scheduling decision. To their credit, respondent’s supervisors did not allow her behavior to interfere with their professional judgment.
Respondent’s initial threat to call in sick was inappropriate. That isolated remark, uttered in a moment of frustration, might not have constituted actionable misconduct. See Dep't of Education v. Bayer, OATH Index No. 1257/04, at 17-23 (Sept. 9, 2005) (distinguishing between insubordinateresponses to requests for information and immature or odd remarks). Indeed, Gales took prompt and proportionate action; she admonished respondent.
However, respondent’s reaction went too far. Her belligerent, persistent, and threatening outburst -- accompanied by her finger in a supervisor’s face -- exceeded the bounds of legitimate disagreement. SeeHealth & Hospitals Corp. (WoodhullMedical & MentalHealthCenter) v. McMillian, OATH Index No. 1402/06, at 7 (July 24, 2006) (loud, disruptive argument, which included finger-pointing in a supervisor’s face, deemed misconduct). Respondent’s actions interfered with the right of her fellow employees to work in a safe, professional environment, free from intimidation. The charge should be sustained.
FINDINGS AND CONCLUSIONS
Petitioner proved that respondent committed misconduct when she talked disrespectfully to a supervisor, threatened her, and ignored repeated requests to leave her supervisor’s office.
RECOMMENDATION
After making the above findings and conclusions, I requested and received a summary of respondent’s personnel record. Petitioner hired respondent in 1987. She has been issued several warning letters for unprofessional conduct and in 2004 she received a 30-day suspension for pushing a patient and using profane language. See Health Hospitals Corp. v. Bobbitt (KingsCountyHospitalCenter), OATH Index No. 949/04 (May 19, 2004).
Petitioner now seeks a ten-day suspension. That is appropriate. The penalty for insubordinate or unprofessional conduct by a hospital workercan range from a five-day suspension to termination, depending upon several factors, including the employee’s disciplinary history and the use of threats or intimidation. See, e.g., Health Hospitals Corp. (WoodhullMedical MentalHealthCenter)v. Muniz, OATH Index No. 1666/05 (Oct. 17, 2005) (five-day suspension for hospital aide, with no prior disciplinary record, found guilty of disobeying an order to report to a work area); Health & Hospitals Corp. (Seaview Hospital Rehabilitation Center and Home) v. Cantres, OATH Index No. 1142/03 (May 29, 2003),modified, Chief Operating Officer’s Determination (July 1, 2003), aff’d, 30 A.D.3d164, 816 N.Y.S.2d 57 (1st Dep’t 2006) (termination of an institutional aide, with a prior disciplinary history, found guilty of engaging in a pattern of intimidation and threatening co-workers).
Respondent’s present misconduct arose from a relatively minor dispute. Although there was no physical contact or profanity, her explosive over-reaction raises serious questions about her professionalism and ability to work with others. Her recent penalty for similar misconduct, her refusal to acknowledge any wrongdoing, and her lack of remorse are troubling. These factors suggest that more than a minimal penalty is necessary.
Accordingly, I recommenda ten-day suspension without pay. Respondent, a long-term employee with a pattern of a disruptive conduct in the past few years, should also seek assistance to address heraberrant behavior.
Kevin F. Casey
Administrative Law Judge
February 2, 2007
SUBMITTED TO:
JEAN G. LEON
Senior Vice President
KingsCountyHospitalCenter
APPEARANCES:
DENISE JOHNSON-GREEN