Dep't of Buildings v



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).

______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF EDUCATION

Petitioner

- against -

PATRICIA CONYERS

Respondent

____________________________________________________

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 (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).

Ignoring the statute and regulations, the Department took a different route and sent respondent to its medical bureau for a physical examination. Following the examination, the Department’s physicians concluded that respondent’s FMLA leave was not medically justified. That was improper. Under the FMLA framework, if an employer doubts the validity of a medical certification, it may seek a second opinion from a physician who “shall not be employed on a regular basis by the employer.” 29 U.S.C. § 2613(c)(2). As the Court held in Price v. City of Fort Wayne, 117 F.3d 1022, 1026-27 (7th Cir. 1997), the use of an employer-associated doctor for a second opinion is “expressly prohibited” and cannot be relied upon as a basis for denying FMLA leave. Id. at 1026-07; see also Harcourt v. Cincinnati Bell Telephone Co., 383 F.Supp.2d 944, 955-56 (S.D. Ohio 2005) (FMLA statute and regulations require employer to obtain an independent second opinion when it doubts the validity of an FMLA certification).

Not only did the Department fail to seek a second opinion from an independent health care provider, it ignored the statutory procedure for resolving conflicting medical reports. Where there is such a conflict, an employer may request a third and binding opinion from a jointly selected doctor. 29 U.S.C. § 2613(d)(2). Instead of following that procedure, the Department unilaterally rescinded its prior agreement and refused to let respondent use her remaining FMLA leave balance for latenesses.

The Department also improperly denied respondent’s November 2004 request for FMLA leave. Respondent again submitted a valid FMLA request. Without requesting a second opinion from an independent medical provider, a Department psychiatrist reviewed the submission and repeated the previous conclusion that respondent’s request was not medically warranted.

Petitioner now claims that respondent was not entitled to FMLA leave because she was uncooperative. See 29 C.F.R. § 825.117 (employee needing intermittent FMLA must attempt to schedule leave so as not to disrupt employer). This is an after-the-fact attempt to justify the Department’s failure to follow the FMLA. The only reason that the Department gave respondent for rescinding and denying her FMLA leave was that it was not medically justified. Indeed, despite her repeated requests, respondent was never given any further information.

Moreover, respondent’s sleep apnea and chronic depression are unpredictable illnesses. This is why she sought and received intermittent leave. To deny respondent unpaid leave because she was unable to schedule the effects of her illnesses would undercut the protections of the FMLA. See Miller v. G.B. Sales & Services, Inc., 275 F.Supp.2d 823, 832 n.8 (E.D. Mich. 2003) (“intermittent leave or a reduced schedule in order to treat or attend to a serious medical condition that renders an employee unable to perform his or her job is exactly what the leave time provision under the FMLA structure is designed for”).

In short, the Department improperly rescinded respondent’s FMLA leave and erroneously denied her subsequent FMLA request. Under those circumstances, the Department cannot penalize respondent for excessive lateness.

ADA Claim

Though respondent’s ADA claim is not as clear-cut or as strong as her FMLA claim, it has merit. The ADA prohibits discrimination against qualified individuals with a disability. To prevail, respondent must show that she has a physical or mental impairment that substantially limits one or more major life activities; she is otherwise qualified to perform the essential functions of her job; and petitioner failed to make reasonable accommodations. 42 U.S.C. § 12112(b)(5)(A). Both sides have an obligation to act in good faith to fashion a reasonable accommodation that does not impose an undue hardship. Federal regulations provide that such an accommodation is best determined through “flexible, interactive process that involves both employer and employee.” 29 C.F.R. § 1630.9, app. 1630.9.

Respondent has been diagnosed with sleep apnea, chronic fatigue, insomnia, and depression. There was credible evidence that those conditions limited respondent’s ability to take care of herself, sleep, and breathe (Tr. 174-76). Those are all major life activities. 29 C.F.R. § 1630.2(i); see Silk v. City of Chicago, 1997 WL 790598, at 26-27 (N.D. Ill. 1997) (sleep is a major life activity); see also Humphrey v. Memorial Hospitals Assoc., 239 F.3d 1128, 1135 (9th Cir. 2002) (an obsessive compulsive disorder that prevents employee from getting to work on time may qualify as a disability under the ADA).

Petitioner contends that respondent only has mild sleep apnea, it has been successfully treated, and she only needs to go to bed earlier. This claim, primarily based upon respondent’s October 2003 sleep study, ignores a large amount of subsequent information. Four physicians, including specialists in sleep disorders and otolaryngology, each wrote that, despite using the CPAP machine, respondent had continuing problems with chronic depression and sleep apnea. Further treatment was necessary and respondent required a complex medication regimen. This evidence, furnished by specialists who had treated respondent over an extended period, was more persuasive than testimony from petitioner’s key witness, a psychiatrist who never examined respondent and relied upon a report prepared by another doctor who conducted a limited examination. See EEOC v. Yellow Freight Systems, Inc., 2002 U.S. Dist. LEXIS 16826, *49 (S.D.N.Y. 2002).

Furthermore, petitioner’s simplistic quick fix – go to bed earlier – ignores evidence that respondent suffered from a variety of illnesses, including sleep apnea that caused her to wake up in the middle of the night gasping for air and leaving her exhausted in the morning (Tr. 167, 176). Although respondent testified that she went to bed around midnight or later, there was no reliable evidence that an earlier bedtime would cure her insomnia, sleep apnea, or chronic depression. Respondent’s tardiness is not, as petitioner suggests, a lifestyle choice. There was ample proof that respondent suffers from multiple, ongoing, and serious medical problems. Those conditions, coupled with the side effects of her medication, impaired her ability to function and prevented her from getting to work on time (Tr. 135, 209-10). Respondent is disabled within the meaning of the ADA.

Petitioner also argues that respondent is not a “qualified” individual who can perform essential functions of a position “with or without” accommodation. 42 U.S.C. § 12111(8); see, e.g.. Tyndall v. National Education Center, 31 F.2d 209 (4th Cir. 1994) (where attendance is an essential job function, chronically absent employees are not qualified for ADA protection). Defining the essential functions of a job is a case-by-case determination. 29 C.F.R. § 1630.2(n); Conneen v. MBNA Am. Bank, N.A., 334 F.3d 318, 328 (3d Cir. 2003) (8:00 a.m. starting time was not an essential job function of a bank officer who suffered from clinical depression).

Here, petitioner insists that a fixed schedule is an essential function of respondent’s job and a later starting time is unworkable because most of the calls to respondent’s unit are made early in the morning (Tr. 47). Though most calls were received before 9:30 a.m., work is performed throughout the day. Respondent’s responsibilities also included less time-sensitive tasks as re-stocking inventory, adding extra memory to computers, and installing hardware or software for new employees (Tr. 58-59, 147, 206). Indeed, one of petitioner’s colleagues has an accommodation that allows her to start at 9:30 a.m. (Tr. 148, 203). Petitioner failed to prove that a fixed starting time of 9:00 a.m. is an essential requirement of respondent’s job.

The availability of other reasonable accommodations further undermines petitioner’s position. Humphrey v. Memorial Hospitals Assoc., 239 F.3d at 1135. Petitioner could have restored respondent’s intermittent leave. Id. at 1135-36; see also Swanson v. Senior Resource Connection, 245 F.Supp.2d 945, 961 (S.D. Ohio 2003) (honoring an FMLA leave request may be a reasonable ADA accommodation). Director Caminiti also suggested that respondent could work a five-hour day beginning at noon. Alternatively, respondent requested a transfer. All of those options would have been reasonable accommodations. 42 U.S.C. § 12111(9); 29 C.F.R. § 1630.2(O)(2) (re-assignment, part-time hours, or modified schedules are reasonable ADA accommodations).

Petitioner counters that a delayed starting time was not reasonable because respondent was frequently more than two hours late for work. But the unsuitability of one accommodation does not relieve an employer of its ADA obligations. The parties are expected to engage in an “interactive process” to determine the most suitable accommodation. 29 C.F.R. § 1630.2(o)(3). That was not done here.

Respondent requested ADA accommodations in June 2004 and June 2006. Her first request was for one-hour flexibility in her starting time. That request was denied as medically unjustified. Her second request, for a 10:00 a.m. starting time or a transfer, was also denied on unspecified medical grounds. When respondent raised questions about working a fixed part-time schedule, the Department referred her to a union representative. Her transfer request was never discussed. This limited communication was not a flexible, interactive process designed to arrive at an appropriate accommodation.

This matter is similar to Human Resources Admin. v. Varone, OATH Index No. 695/01 (Dec. 26, 2001). There, a computer specialist attributed various latenesses to a sleep disorder. After the Civil Service Commission directed the agency to offer a reasonable accommodation, the employee received a two-hour flexible starting time. Id. at 8-9. Although the employee was allowed to arrive as late as 11:00 a.m., his tardiness continued and he was charged with misconduct. That charge was dismissed because the agency failed to explore other reasonable accommodations. Id. at 12, 19.

Here, as in Varone, the employee’s tardiness is due, in large part, to a sleep disorder and the agency has failed to engage in a flexible, interactive process to obtain an accommodation. Because the Department and respondent have not fully explored reasonable alternatives -- including intermittent FMLA, a fixed part-time schedule, or a transfer -- the denial of an ADA accommodation was improper.

Insubordination and Neglect of Duties

There was no evidence that respondent’s supervisors ever gave her a clear and direct order to call in as soon as she knew she was going to be late for work. Thus, respondent was not guilty of insubordination. See, e.g., Human Resources Admin. v. Johnson, OATH Index No. 637/01, at 9-10 (July 12, 2001) (defining insubordination as the willful failure by a subordinate employee to obey an order actually communicated by a superior).

However, respondent did neglect her duties. The Department requires an absent employee to give immediate notification to a supervisor of the employee’s location and the cause and duration of the absence. Rules and Regulations Governing Non-Pedagogical Administrative Employees §§ 5.9 and 9.14. Even if respondent’s absences were medically justified, she had an obligation to provide timely notice to her supervisor.

Petitioner established that respondent often failed to tell her supervisor when she was going to be late or when she expected to arrive for work (Tr. 45). This lack of communication left the supervisor in the dark about the status of respondent’s assignments. Respondent claimed that nobody told her to call before arriving late for work (Tr. 206). That is not a valid justification for her repeated failure to provide timely notification. She knew that her supervisor expected her to arrive for work at 9:00 a.m. (Tr. 199).

Respondent’s repeated failure to keep her supervisor informed of her whereabouts during working hours violated Department rules and regulations. See Dep’t of Education v. Leonardi¸ OATH Index Nos. 150/04 & 151/04 (Feb. 25, 2004), modified on penalty, Chancellor's Dec. (Apr. 15, 2004), modified on penalty and remanded sub nom. Diefenthaler v. Klein, 27 A.D.3d 347, 811 N.Y.S.2d 653 (1st Dep’t 2006) 2006 NY Slip Op 02276 (1st Dep't) (carpenters found guilty of neglect of duty where they sat in a car for several hours during a work day); Dep't of Education v. Matos, OATH Index No. 214/04 (Feb. 13, 2004), modified on penalty, Chancellor's Dec. (Apr. 2, 2004), aff'd, NYC Civ. Serv. Comm'n Item No. CD05-17-SA (Apr. 15, 2005) (employee neglected his duties where he left his workplace without authorization for more than six hours). Even in the absence of a direct order, respondent’s failure to keep her supervisor informed of her whereabouts reflects a disregard for the needs of her office. See Human Resources Admin. v. Bellamy, OATH Index No. 1665/03, at 8 (Jan. 9, 2004) (“Employers are entitled to expect their employees to exercise ‘at least a modicum of judgment’ in the performance of their duties”) (citation omitted).

The charge of insubordination should be dismissed, but the charge of neglect of duties is sustained.

FINDINGS AND CONCLUSIONS

1. Petitioner proved that respondent was frequently late for work from November 22, 2004 to May 31, 2005, as alleged in the amended charges and specifications.

2. Respondent established that her chronic lateness was not misconduct because she was entitled to FMLA protection.

3. Respondent also established that she was disabled within the meaning of the ADA and the Department failed to provide a reasonable accommodation.

4. Petitioner failed to prove that respondent was insubordinate.

5. Respondent neglected her duties when she repeatedly failed to provide timely notice to her supervisor that she was going to be late for work.

RECOMMENDATION

Respondent has worked for the Department and its predecessor for more than 20 years. She has no prior disciplinary action. Until a few years ago, the Department described her as a valued employee.

Petitioner seeks termination. That request was premised on the assumption that respondent was guilty of all the charges. In light of the findings that respondent could not be penalized for excessive lateness or insubordination, termination would be inappropriate.

Although a stern penalty is warranted for the proven misconduct, respondent’s disabilities and unblemished record are mitigating factors. Compare Bd. of Education v. Benson, OATH Index No. 614/01 (Mar. 8, 2001), modified, Bd. Determination (June 20, 2001) (30-day suspension imposed for violation of rule requiring employee to provide immediate notification of absences), with Dep't of Education v. Leonardi, OATH Index Nos. 150/04 & 151/04 (Feb. 25, 2004), modified on penalty, Chancellor's Dec. (Apr. 15, 2004), modified on penalty sub nom. Diefenthaler v. Klein, 27 A.D.3d 347, 811 N.Y.S.2d 653 (1st Dep’t 2006) (termination of long-term employees with no prior disciplinary records deemed excessive for neglect of duty).

Accordingly, I recommend a penalty of 30 days suspension without pay.

Kevin F. Casey

Administrative Law Judge

October 25, 2006

SUBMITTED TO:

JOEL I. KLEIN

Chancellor

APPEARANCES:

DEBRA MALDONADO, ESQ.

Attorney for Petitioner

SEMEL, YOUNG & NORUM

Attorneys for Respondent

BY: CHRISTINA NORUM, ESQ.

Department of Education’s Decision, December 8, 2006

______________________________________________

DEPARTMENT OF EDUCATION

Petitioner

- Against-

PATRICIA CONYERS

Respondent

______________________________________________

JOEL I. KLEIN, Chancellor

DECISION

I have received and reviewed the Report and Recommendation dated October 25, 2006, issued by Kevin F. Casey, Administrative Law Judge (“ALJ Casey”) of the City of New York Office of Administrative Trials and Hearings (“OATH”), the transcript of the hearing held before the ALJ and the exhibits introduced at the hearing. In the Report and Recommendation, the ALJ recommends that Respondent Patricia Conyers receive a thirty day suspension without pay for her repeated failure to provide timely notice to her supervisor that she was going to be late.

As the Chancellor of the New York City Department of Education (“Department”), I have the authority, pursuant to Section 75 of the New York State Civil Service Law, to accept or reject the recommendation. I have determined to reject ALJ Casey’s recommendation that Ms. Conyers receive a thirty day suspension without pay for her misconduct. The appropriate penalty in this case for the sustained misconduct is termination of Ms. Conyers’ employment with the New York City Department of Education.

Respondent Conyers, a permanent computer associate employed by the Division of Financial Operations, was charged with excessive lateness, insubordination and neglect of duty from November 22, 2004 to May 31, 2005.

A hearing before OATH on the charges against Conyers was held on March 27, May 9 and 22, 2006. The Department alleged that Respondent engaged in misconduct and insubordination when she was late in excess of one hundred days, and an hour to two hours late for over thirty-six of those days. It was also alleged that Respondent was insubordinate when she failed to advise her supervisor of her anticipated arrival time.

ALJ Casey concluded that the only misconduct Respondent engaged in was that she neglected her duties when she repeatedly failed to provide timely notice to her supervisor that she was going to be late for work. ALJ Casey held that although the Department proved that Ms. Conyers was frequently late for work from November 22, 2004 to May 21, 2005, her chronic lateness did not constitute misconduct because Ms. Conyers was entitled to protection under the Family Medical Leave Act (“FMLA”) and the Americans with Disabilities Act (“ADA”).

ALJ Casey’s conclusion that Respondent was improperly denied both leave under the FMLA and an accommodation under the ADA was incorrect. Respondent had filed a disability discrimination complaint with the New York City Commission on Human Rights (“Commission”), an agency charged with investigating alleged violations of disabilities laws and enforcing anti-discrimination laws. Contrary to the determination of ALJ Casey, the Commission found that “the accommodation [Respondent] sought is unreasonable and would impose an undue hardship on the DOE” since the majority of the work for which Respondent was responsible needed to be assigned and completed in the course of regular work hours. Although Respondent had been granted flex time to arrive up to fifteen minutes late on occasion, she began a pattern of excessive lateness. Respondent then requested a schedule where she could arrive whenever she was able and then work her full complement of hours, but the request was denied. The record showed that between March 2004 and May 2006, respondent was late in excess of one hundred days, and an hour to two hours late for over thirty-six of those days.

Respondent’s requested leave does not fall within the definition of intermittent leave. Pursuant to the FLMA implementing regulations:

Leave may be taken intermittently or on a reduced leave schedule when medically necessary for planned and/or unanticipated medical treatment of a related serious health condition by or under the supervision of a health care provider, or for recovery from treatment or recovery from a serious health condition . . . Intermittent leave may be taken for a serious health condition which requires treatment by a health care provider periodically . . . Examples of intermittent leave would include leave taken on an occasional basis for medical appointments, or leave taken several days at a time spread over a period of six months, such as for chemotherapy. 29 CFR 825.203(c).

Nothing in the statute or regulations supports the ALJ’s finding that, effectively, respondent should be entitled to arrive late in excess of 300 times in a two year period. On the contrary, the purpose of the FMLA is “to entitle employees to take reasonable leave for medical reasons.” 29 USCS § 2601 (Emphasis added).

Moreover, the record indicates, and the Commission noted in its “no probable cause” determination, that beginning in June 2004, respondent routinely notified her office via email up to an hour prior to her scheduled arrival time that she would be late or absent, establishing that she was in fact awake. Further, on several occasions her excuses related to the transportation and childcare needs of her children, and not to her purported illnesses. Plainly, “FMLA [ ] does not give employees the unfettered right to take time off subject only to their own convenience without any consideration of its effect upon the employer.” Kaylor v. Fannin Regional Hosp., 946 F. Supp. 988 (N.D.Ga. 1996).

I find that there is a sufficient basis for me to reject the recommendation of the OATH ALJ. Ms. Conyers’ behavior was extremely disruptive to the work place. Her numerous latenesses were excessive and unacceptable. Moreover, although Ms. Conyers was afforded a flexible work schedule to accommodate her medical condition, her failure to advise her supervisor of her work arrival time and her failure to keep her supervisor informed of her whereabouts during the workday over a six month period were insubordinate.

Therefore, it is my determination that there is substantial evidence to support a finding that Respondent Conyers is guilty of excessive lateness, insubordination, and neglect of duty. I also find that under these circumstances, a thirty day suspension is insufficient as a penalty. Ms. Conyers’ unacceptable and insubordinate behavior demonstrated an unwillingness to comply with her work responsibilities and should not be tolerated. The penalty of termination is appropriate and not shocking to one’s sense of fairness.

Respondent’s employment is terminated, effective immediately.

JOEL I. KLEIN, Chancellor, Department of Education

The City Civil Service Commission’s Decision, Item No. CD07-100-M, October 24, 2007

______________________________________________________

THE CITY OF NEW YORK

CIVIL SERVICE COMMISSION

In the Matter of the Appeal of

PATRICIA CONYERS

Appellant

- Against -

NYC DEPARTMENT OF EDUCATION

Respondent

Pursuant to Section 76 of the New York State Civil Service Law

_______________________________________________________

SIMON P. GOURDINE, Commissioner/Chairman

STATEMENT

On Thursday, June 14, 2007, the City Civil Service Commission heard oral argument in the appeal of PATRICIA CONYERS, Computer Associate, NYC Department of Education, from a determination by the NYC Department of Education, finding her guilty of charges of misconduct and imposing a penalty of DISMISSAL following an administrative hearing conducted pursuant to Civil Service Law Section 75.

DECISION

PATRICIA CONYERS appeals from a determination of the New York City Department of Education (“DOE”) finding her guilty of misconduct and insubordination and imposing a penalty of dismissal following disciplinary proceedings conducted pursuant to Civil Service Law Section 75. The Commission conducted a hearing on June 14, 2007.

Appellant, a Permanent Computer Associate employed by the Division of Financial Operations was charged with excessive lateness, insubordination and neglect of duty from November 22, 2004 to May 31, 2005. The Administrative Law Judge sustained the charge that Appellant neglected her duties and dismissed the others and recommended a thirty (30) day suspension without pay.

The Commission has carefully reviewed the record adduced below and considered the arguments on appeal. We note that the appellant had been an employee of DOE since 1985, over twenty years and had no prior disciplinary record.

Considering the totality of the circumstances together with the appellant’s work history, the Commission finds the penalty to be excessive. Although we find as did the ALJ that Appellant neglected her duties, this Commission finds a more appropriate remedy would be time served.

Therefore, the Commission hereby modifies the determination of DOE to a suspension of time served from the date of her dismissal to the date of this determination. Appellant is to be restored to the position within 30 days from this determination.

SIMON P. GOURDINE, Commissioner/Chairman, Civil Service Commission

NICHOLAS A. LAPORTE, Commissioner, Civil Service Commission

STEPHANIE E. KUPFERMAN, Commissioner, Civil Service Commission

RUDY WASHINGTON, Commissioner, Civil Service Commission

NORMA LOPEZ, Director/General Counsel, Civil Service Commission

CHRISTINA NORUM, ESQ. SUSAN JALOWSKI, ESQ.

Representative for Appellant Representative for Respondent

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