Health and Hospitals Corporation
1
Health & Hospitals Corporation
(Lincoln Medical & Mental Health Center) v. Davis
OATH Index No. 1573/08 (May 8, 2008)
Employee guilty of excessive absence for 11 absences in five months and excessive lateness for 30 occasions totaling 1,254 minutes during a six-month period. Charges alleging AWOL, dereliction of duty and insubordination should be dismissed. ALJ recommends 60-day suspension.
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NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
HEALTH AND HOSPITALS CORPORATION
(LINCOLN MEDICAL AND MENTAL HEALTH CENTER)
Petitioner
- against -
CAROLYN DAVIS
Respondent
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REPORT AND RECOMMENDATION
TYNIA D. RICHARD, Administrative Law Judge
This employee disciplinary proceeding was referred by petitioner, Lincoln Medical and Mental Health Center of the Health and Hospitals Corporation, pursuant to Rule 7.5 of the Personnel Rules and Regulations. Carolyn Davis, a secretary level IIA, is charged with excessive absence and lateness, dereliction of duties, insubordination, and an extended absence without leave. She denies the charges.
The hearing was conducted before me on April 15, 2008. Petitioner presented the testimony of supervisors Richard Santana and Margo Valverde. Respondent testified on her own behalf. I find that petitioner proved that respondent was excessively absent and excessively late, as set forth below, and recommend a penalty of 60 days’ suspension.
ANALYSIS
Charge I – Excessive absence
Respondent is charged with being excessively absent during the period July 26 to December 28, 2007, because she was absent on eight occasions for a total of 11 days and many of the absences preceded or followed a scheduled day off or holiday.
Respondent did not dispute being absent on the dates alleged: July 26, August 3, 7, 23, and 27, September 25, October 25, and December 24 through 28, 2007 (ALJ Ex. 1).[1]
Respondent provided explanations for a number of her absences. She testified that she was in civil court on July 26 and August 23, in a case in which she represents herself pro se against the Department of Homeless Services (Tr. 99). Respondent provided a copy of the docket sheet for the case (Resp. Ex. H). It is not clear from the sheet what the notations mean or whether Ms. Davis actually appeared on those dates or was in court all day. For example, the notation for July 26 states “bench trial 08/23/2007,” possibly indicating that trial was adjourned to August 23. The notation for August 23 states “bench trial 10/10/2007,” again suggesting that trial was adjourned to October 10. The docket sheet shows several more days of appearances on the case, including October 10. Respondent testified that she went to court on those days but she did not indicate what occurred or how long she was there (Tr. 101-03).
Respondent submitted Request for Leave forms for the two days and the forms indicate that both requests were denied (one of them states “took the day off without approval”) (Pet. Exs. 6 & 9). Respondent said she did not receive notice that she was denied leave (Tr. 110). Respondent testified that she gave her request forms to Yvonne Lewis, the clerk supervisor, and told her that she had to go to court (Tr. 103-04). She denied that her supervisor, Margo Valverde, had to approve her leave requests and strenuously tried to deny that Ms. Valverde was her supervisor (Tr. 113-15). Ms. Valverde in fact signed off on several of the denials (Pet. Exs. 9, 10, 12-14). None of petitioner’s witnesses explained why respondent was denied the leave.
On August 2, respondent submitted a leave request for August 3 which was denied (Tr. 105; Pet. Ex. 7). The request form states “took the day off without approval.” On August 6, respondent submitted a leave request for August 7, which was denied (Pet. Ex. 8). She provided no explanation for her absences on August 3 and 7.
Respondent submitted a leave request for August 27, on September 6, after she had already taken the day off, and it was denied (Tr. 120; Pet. Ex. 10). She said she had a doctor’s appointment that day but provided no proof of it (Tr. 105). Again and again, she denied knowing that her requests had been denied (Tr. 112, 116).
Respondent said she called in sick on September 25 (Tr. 105). She said she had a doctor’s appointment on October 25 and she called in and submitted a leave request (Tr. 106). No leave requests or proof of illness were entered in evidence for either date.
Respondent submitted four leave requests for the Christmas holidays (from December 24, 2007 through January 2, 2008), and all were denied (Pet. Exs. 11-14). Her requests were submitted on November 1, November 15, December 20 and December 31. She said that she resubmitted her request after the first was denied because she thought perhaps the hospital was unaware that this was her religious observance (Tr. 106). She was indignant about being scheduled to work because she had “never worked on Christmas, never, ever” (Tr. 106). The first leave request is marked “denied” and notes “two clerks out” “1 manager out” (Pet. Ex. 11). Her second leave request is also marked “denied” and notes “3 clerical assoc and 1 manager out thruout [sic] this period” (Pet. Ex. 12). Respondent disputed that her third and fourth requests were also denied despite the clear markings on them and the fact that she was docked pay when she failed to report for work for the four days (Tr. 122-23). She claimed that the hospital was stealing money from her paycheck by falsely claiming that she was absent without leave (Tr. 117). Referring to the 11 days alleged in the charges, she stated “This is nothing. They have taken repeatedly half of my salary away for the year, less a few days here. I can show you my paycheck stubs or we can get an audit of my pay and you would see that they are using this to cover up the constant theft of money from my pay. I never did anything wrong here” (Tr. 117-18). Respondent admitted that it was improper to take days off after a leave request had been denied and said she would never do that (Tr. 121).
Respondent erroneously maintained that she was entitled to take the time off because her third and fourth leave requests were not denied until after she had taken the time off (Tr. 124). Even if it were true that her request was denied late, and there is clear evidence that it was denied more than a month before Christmas, her contention would place the burden on the hospital to notify her of its denial when it has no such burden. It was respondent’s responsibility to await authorization before taking the time off. Fire Dep't v. Rozenblyum, OATH Index No. 1738/03, at 6-7 (Jan. 21, 2004), modified on penalty, Comm'r Dec. (Dec. 21, 2004), aff'd, NYC Civ. Serv. Comm'n Item No. CD05-53-SA (Aug. 26, 2005).
The hospital’s rules do not specifically define "excessive absenteeism." However, petitioner’s advocate asserted that the hospital is guided by the Corporation's Operating Procedure No. 20-10 (Mar. 18, 1987) (Pet. Ex. 1; Tr. 126), which states that the supervisor may counsel an employee who has three unscheduled absences (or two unscheduled absences immediately before or after a holiday or pass day) in a six-month period. Operating Procedure No. 20-10, at IV (A)(2)(b). This criteria has been used as a threshold for determining whether absences are excessive for disciplinary purposes. See Health and Hospitals Corp. (Jacobi Medical Center) v. Grant, OATH Index No. 1233/98 (Apr. 16, 1998); Health and Hospitals Corp. (Bellevue Hospital Center) v. Marshall, OATH Index No. 185/96 (Oct. 2, 1995). Petitioner asserts that 11 absences in five months are excessive, and in this case I agree.
In prior cases where excessive absence has been charged but not specifically defined by agency rules, this tribunal has noted three circumstances that would give rise to sanctions: (i) absences that are so extensive in number that they are excessive per se; (ii) absences that are excessive because of the disruption they cause to the workplace and the adverse impact they have on workplace efficiency and operations; and (iii) absences that are excessive based upon the circumstances surrounding the missed days of work. See Bd. of Education v. Hunter, OATH Index No. 384/90 (Mar. 5, 1990), aff'd in part, rev'd in part, Dec. of the Bd. (Apr. 4, 1990), aff'd sub nom. Hunter v. New York City Bd. of Education, 190 A.D.2d 851, 594 N.Y.S.2d 649 (2d Dep't 1993) (Board held that 30 absences over 12 ½ months, though not excessive per se, were excessive under the circumstances where there were prior attendance problems and unapproved absences with several following weekends); Health and Hospitals Corp. (Kings County Hospital Center) v. Dedier, OATH Index No. 1203/07 (Mar. 22, 2007) (respondent's 27 unscheduled absences over a nine-month period, even though approved as sick leave, were excessive); Health and Hospitals Corp. (Harlem Hospital Center) v. Pabon, OATH Index No. 270/04 (Oct. 29, 2003) (respondent’s 57 unscheduled absences over 13-month period were excessive without aggravating factors); Health and Hospitals Corp. (Metropolitan Hospital) v. Coley, OATH Index No. 2044/96 (Sept. 11, 1996) (21 absences over 9 months, including 12 approved, deemed excessive). With regard to such circumstances, factors to be considered include the availability of leave accruals, the lack of advance notice, the timing of such absences in relation to weekends and holidays, the legitimacy of the need for the absences, and whether respondent was ever warned that the absences were deemed excessive. See Health and Hospitals Corp. (Bellevue Hospital Center) v. Cruz, OATH Index No. 1162/03 (May 30, 2003) (18 absences over seven months found to be excessive, given the impact to the facility, the failure to submit documentation, and the fact that five of the absences were considered instances of AWOL and eight occasions of sick leave occurred either before or after a scheduled pass day).
In the current case, respondent is guilty of 11 absences during a five-month period, which exceed the threshold established as three absences within a six-month period. The impact of these absences on hospital operations was not detailed on the record.
The timing of the absences in relation to scheduled days off and holidays is an aggravating factor. See Health and Hospitals Corp. (Harlem Hospital Center) v. Norwood, OATH Index No. 247/07 (Jan. 16, 2007). Four of respondent’s eight occasions of absence occurred before or after a weekend or holiday (ALJ Ex. 1).
On one such occasion, respondent failed to report for work for four days during the Christmas holidays despite the denial of four separate requests for the time. Respondent claimed that her repeated requests for this time off was intended to make the hospital aware that she wanted the time for religious observance, a fact that the hospital was no doubt aware of given the popularity of the Christmas holidays. She was offended that she was denied the holiday even though she had “never ever” been denied it before, a fact that suggested that other employees might be entitled to have the holiday off. The leave request denials stated as much, indicating that other employees had already been granted the time off. Respondent took the time off despite the denials.
Absence that is unauthorized is another aggravating factor to consider, and none of respondent’s 11 absences were authorized (Pet. Exs. 5-14). She was not authorized to take July 26 and August 23 off to attend court, although it was unclear why leave was denied or that the denial was justified.
The need for five of the absences was not demonstrated. Respondent offered no reason for her absences on August 3 and 7. She claimed that she was sick or had doctor’s appointments on August 27, September 25, and October 25 but submitted no documentation to prove it.
In addition, she willfully defied the hospital by taking four days off at Christmas despite the several denials issued by the hospital.
In light of the number of absences and the aggravating circumstances, I find that respondent was excessively absent from July 26 to December 28, 2007.
Charge II – Excessive lateness
Respondent is charged with being excessively late for the period July to December 31, 2007, because she was late on 30 occasions for a total of 1,254 minutes. The Corporation’s Operating Procedure No. 20-2 (Jan. 25, 2001) (Pet. Ex. 2) defines excessive tardiness as late arrival on three or more occasions in one month or more than 30 minutes of lateness in one month. Operating Procedure No. 20-2, at IV (B).
The undisputed evidence established that respondent was late to work on 30 occasions from July 12 to December 31, 2007, for a total of 1,254 minutes (Tr. 31-41; Pet. Ex. 3). In the month of July, she was late on four occasions for a total of 164 minutes. In the month of August, she was late on four occasions for a total of 115 minutes. In September, she was late twice for a total of 90 minutes. In October, she was late on 10 occasions for total of 285 minutes. In November, she was late on five occasions for a total of 360 minutes. In December, she was late on five occasions for a total of 240 minutes. Thus, she violated the Operating Procedure in each of the six months charged.
Respondent did not dispute the latenesses (Tr. 15). Rather, she contended that they did not constitute misconduct because she called the hospital beforehand on each occasion to request the time, and she said she received approval to charge the time against annual leave (Tr. 13, 91). According to respondent, the proper procedure was to call and request the time in advance, and she said she typically called during the night shift and spoke with “Brian” or others who she worked with. She considered the phone call to constitute approval to arrive late and some assurance that it would not count against her. However, she called no witnesses who could corroborate her claim, and she admitted that Brian was not her supervisor (Tr. 107).
Respondent signified on her time sheet that she had requested the time off by coding her lateness as “02” which is the code for annual leave. Ms. Valverde testified that she regularly changed respondent’s time sheet coding to 49 or 37 – the codes for “unscheduled annual leave” and “unexcused lateness” (Tr. 31). She said that both codes indicated that respondent’s lateness was unexcused (Tr. 35). She said she was directed to use these codes for respondent’s time sheets by the timekeeper. The time sheets reflected the changes, which had been wited out and initialed by Ms. Valverde (Pet. Ex. 3; Tr. 32). Respondent said she was never told that she was coding her time sheet incorrectly, although she was aware that her paycheck was docked for the latenesses (Tr. 92-93). She referred to this by saying the department was “stealing money” from her paycheck and covering it up by saying that she was late, although she never denied being late (Tr. 94-95).
The credible evidence established that respondent’s latenesses were unexcused, and respondent failed to provide any evidence to the contrary. She admitted that her latenesses resulted in time being docked from her regular pay, which contradicted her claim that they had been excused.
Even if proven, though, respondent’s contentions that her lateness was somehow authorized would not offer a defense to a charge of excessive lateness. See Triborough Bridge and Tunnel Auth. v. Cicero, OATH Index No. 569/98 (Mar. 4, 1998), aff’d in part, rev’d in part, Authority Dec. (Apr. 14, 1998), rev’d, Sup. Ct. N.Y. Co., Index No. 109498/98 (July 10, 1998), rev’d, 264 A.D.2d 334, 694 N.Y.S.2d 51 (1st Dep’t 1999), lv to app denied, 94 N.Y.2d 931, 708 N.Y.S.2d 350 (2000) (nonwillful absenteeism is irrelevant to the ultimate issue of the employee’s “unreliability and its disruptive and burdensome effect on the employer”).
Under Operating Procedure No. 20-2, respondent’s lateness was excessive in each month from July to December 2007. Thus, petitioner proved the allegations in charge II.
Charge III – Dereliction of duties
Respondent is charged with being derelict in her duties on October 8, 2007, for failing to work her assigned tour of duty.
Each year, the hospital devises a holiday schedule indicating which holidays the clerical staff is responsible to work and the tours for which they are scheduled. Petitioner showed that respondent was scheduled to work on the third tour, 4:00 pm to 12:00 midnight, on Columbus Day, October 8, 2007 (Pet. Ex. 4). Respondent did not work that tour. Although respondent did report to work that day and worked a full tour of duty, she worked the second tour, from 8:00 am to 4:00 pm, which is her regular tour (Tr. 44). Respondent testified that she simply did not know that she was scheduled to work the later tour that day (Tr. 98-99). Because she did not work the third tour that day, the tour was understaffed with only one clerical worker on duty (Tr. 44).
According to Ms. Valverde, the other clerical workers on duty told respondent that she was working the wrong tour, but she stayed (Tr. 52, 55). Although a supervisor was on duty, he or she never spoke to respondent about reporting to the wrong tour and she was never directed to return home and come back on the assigned tour.
The evidence shows that respondent worked the wrong tour of duty. There was no evidence of willfulness or insubordination, as discussed below. Thus, I find here an instance of forgetfulness but no misconduct, and I recommend the charge be dismissed.