Health and Hospitals Corp



Health and Hospitals Corp. (Kings County Hospital Center)

v. Dedier

OATH Index No. 1203/07 (Mar. 22, 2007)

Charge of excessive absenteeism is sustained where respondent was absent on six occasions, totaling 27 days, over a nine-month period. All of the absences were unscheduled and occurred before or after a scheduled day off. Although respondent's absences were documented, they were excessive and in violation of the hospital's operating procedure. Termination is recommended based on respondent's extensive disciplinary history.

________________________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

HEALTH AND HOSPITALS CORPORATION

(KINGS COUNTY HOSPITAL CENTER)

Petitioner

-against-

CYNTHIA DEDIER

Respondent

________________________________________________________________

REPORT AND RECOMMENDATION

KARA J. MILLER, Administrative Law Judge

This is a disciplinary proceeding referred by petitioner, the Health and Hospitals Corporation, pursuant to Rule 7:5 of its Personnel Rules and Regulations. Respondent, Cynthia Dedier, a special officer, is charged with being excessively absent between May 2005 and February 2006 (ALJ Ex. 2).

Prior to the hearing, petitioner withdrew with prejudice charges 2 (failure to report to assigned post on December 15, 2005) and 3 (failure to render efficient service on December 15, 2005). A hearing on the remaining charge was conducted before me on February 28, and March 2, 2007. I find respondent guilty of the charges and recommend that she be terminated.

ANALYSIS

Respondent was charged with excessive absenteeism in that she failed to report to work on six occasions, totaling 27 days before or after a scheduled day off. Jacqueline Purser, Captain of Operations, reviews the weekly time sheets before forwarding them to payroll and is responsible for correcting or updating entries (Tr. 6, 12, 24-26). Captain Purser testified that she is familiar with respondent's time and leave history and that respondent failed to appear at work on the following days, before or after a scheduled day off between May 28, 2005 and February 2, 2006:

|DATE |DAYS |BEFORE OR AFTER A SCHEDULED DAY OFF |

|5/28/05 - 5/30/05 |3 |AFTER |

|6/15/05 - 6/26/05 |9 |AFTER and BEFORE |

|8/15/05 |1 |AFTER |

|11/10/05 |1 |BEFORE |

|11/18/05 - 12/2/05 |11 |BEFORE |

|2/1/06 - 2/2/06 |2 |BEFORE |

|TOTAL: |27 DAYS | |

(ALJ Ex. 2; Tr. 8).

The 27 absences are documented in the time sheets produced by petitioner (Pet. Ex. 2). Respondent, as a special officer, is required to call in at least two-hours before the start of her tour if is she is unable to appear at work. The information is then noted in the log book by an officer on duty and the schedule has to be rearranged to cover the officer's shift (Pet. Exs. 4,5; Tr. 43-45, 63). Captain Purser testified that respondent had been counseled on several occasions prior to the charged absences and warned that excessive absences would ultimately lead to disciplinary action (Tr. 36-37).

Respondent did not dispute the absences and acknowledged that she had been counseled for prior absenteeism (Tr. 70, 75-76). She maintained that she complied with the Hospital's time and leave policies by submitting documentation for the current absences. Although the absences were unscheduled, they were all approved and the time was deducted from her sick leave balance (Tr. 78). Respondent argued that the approval of her sick leave undermines the Hospital's contention that she committed misconduct by being absent. This argument, however, is unavailing in light of the aggravating circumstances regarding her absences. See Health and Hospital Corp. (Neponsit Health Care Center) v. Maxwell, OATH Index No. 1236/97 (Aug. 19, 1997), modified on penalty, HHC Pers. Rev. Bd. Dec. No. 932 (Jan. 12, 1999).

The issue presented is whether respondent's 27 unscheduled absences over a nine-month period were excessive and subject to discipline. Neither Kings County Hospital Center nor the Health and Hospitals Corporation's rules specifically define "excessive absenteeism." Petitioner, however, is guided by the Corporation's Operating Procedure No. 20-10 (Mar. 18, 1987) (Pet. Ex. 1). The Operating Procedure provides that disciplinary action shall be taken after reasonable supervisory/managerial efforts have been made to assist an employee in correcting a deficiency in performance or conduct. The supervisor/manager may conduct counseling for an employee who has had three unscheduled absences or two unscheduled absences immediately before or after a holiday or pass day during any six-month period. Operating Procedure No. 20-10, at 2.

In prior cases where excessive absence has been charged but not specifically defined by agency rules, this tribunal has noted three circumstances which would give rise to sanctions: (i) absences which are so extensive in number that they are excessive per se; (ii) absences which 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 which are excessive based on circumstances surrounding the missed days of work. See Health and Hospitals Corp. (Harlem Hospital Center) v. Pabon, OATH Index No. 270/04 (Oct. 29, 2003). 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. (Bellvue 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 that eight occasions of sick leave occurred either before or after a scheduled pass day).

This tribunal has sustained charges of excessive absenteeism where absences far exceed the threshold for counseling under the Operating Procedure. See Health and Hospitals Corp. (Harlem Hospital Center) v. Pabon, OATH Index No. 270/04 (Oct. 29, 2003) (57 absences within 13 months deemed excessive); Health and Hospitals Corp. (Neponsit Health Care Center) v. Maxwell, OATH Index No. 1236/97 (Aug. 18, 1997), modified on penalty, HHC Pers. Rev. Bd. Dec. No. 932 (Jan. 12, 1999) (18 absences within four months deemed excessive); 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); Health and Hospitals Corp. (Bellvue Hospital Center) v. Marshall, OATH Index No. 185/96 (Oct. 2, 1995) (20 unscheduled absences within 10 months deemed excessive).

In the current case, respondent failed to report to work on six occasions, totaling 27 unscheduled absences within nine months. This number exceeds the threshold for counseling under the Operating Procedure. Moreover, several aggravating circumstances are present. All of the absences occurred before or after a scheduled day off, making their necessity suspect. In addition, although it could have been better developed, it is reasonable to assume that respondent's absences had a negative impact on the facility. Since the absences were unscheduled, there was no advance notice. There would have been insufficient opportunity for the Hospital to make adjustments to properly compensate for respondent's absence. In addition, respondent had been counseled and warned on prior occasions about her numerous absences. See Health and Hospital Corp. (Bellvue Hospital Center) v. Cruz, OATH Index No. 1162/03 (May 30, 2003).

Under ordinary circumstances, absences on six occasions may not necessarily equate to excessive absenteeism. In this case, however, the lack of notice and the timing of the absences in relation to scheduled days off and holidays are exacerbating factors. See Health and Hospitals Corp. (Harlem Hospital Center) v. Norwood, OATH Index No. 247/07 (Jan. 16, 2007). On two of the six occasions, respondent was absent for significant periods of time, eleven days starting

November 18, 2005, and nine days beginning June 15, 20051. With respect to the contiguous eleven-day absence, the log book entries reflect that respondent was sent home sick on Thursday, November 17, 2005, and told to return to work on Monday, November 21, 2005. She was already scheduled to be off for the weekend on November 19, and 20, 2005. Instead of reporting to work on Monday, November 21, 2005, respondent called in sick. She continued this pattern of calling in before her shift to inform them that she was sick every day up to and including December 2, 2005. Respondent was not scheduled to work on December 3, 2005 (Pet. Exs. 2, 3, 4, 5). This eleven-day absence not only started before and ended after a scheduled day off, it incidentally coincided with the Thanksgiving holiday.

To document her lengthy absence, respondent submitted a doctor's note for this period of time which states that she sprained her hip in a work related accident on October 29, 2005, and could return to work on December 5, 2005 (Resp. Ex. A). Respondent testified that she injured herself on duty on October 29, 2005, by stepping over some construction materials (Tr. 77, 80-81). She did not seek treatment, however, until November 17, 2005, 20 days later. The eleven-day absence was never attributed to a line of duty injury by the Hospital and the Workman's Compensation Board denied her claim (Resp. Ex. B). Instead, the days were coded as unscheduled sick leave on her time sheets (Pet. Ex. 2). I find her assertion that she failed to report to work due to a work related injury to be suspect.

It is unclear why respondent would call in sick every day rather than informing her employer that her doctor told her not to return to work until December 5, 2005, as documented in her doctor's note. Instead of calling in once to take a block of time off, respondent called in on a daily basis, thereby preventing the Hospital from planning ahead and prearranging coverage.

In light of the aggravating circumstances and case precedent, I find that respondent was excessively absent between May 2, 2005 and February 2, 2006.

FINDINGS AND CONCLUSIONS

Respondent was excessively absent between May 2, 2005 and February 2, 2006.

RECOMMENDATION

Upon making the above findings and conclusions, I requested and reviewed a copy of respondent's personnel abstract in order to make an appropriate penalty recommendation. Respondent was appointed as a special officer on November 26, 1984. During her 23-year tenure with the Hospital, she has been disciplined on six occasions. On April 1, 1998, she was reprimanded for refusing to do overtime. She received another written reprimand on June 22, 1999, for excessive absenteeism and lateness. On February 25, 2000, respondent was suspended without pay for five business days for failing to comply with a direct order. She received a one-day suspension on March 15, 2002, for abandoning her post. On February 14, 2003, she was suspended for 23 business days for excessive absenteeism and lateness and on May 19, 2004, she received a 60-day suspension for excessive lateness.

A review of respondent's last three performance evaluations, revealed that she received an overall rating of "Needs Improvement (Below Standard)" for the evaluation period of November 2004 through November 2005, "Satisfactory (Standard)" for the period of November 2003 through November 2004, and "Unsatisfactory" for the period of November 2002 through November 2003. Respondent's 2002/2003 and 2004/2005 evaluations criticize her attendance, pointing out that excessive absenteeism has a negative impact on the facility. She was informed that being understaffed could lead to slow response times and safety issues.

Petitioner requested that respondent be terminated nothwithstanding her lengthy tenure with the Hospital. "Typically with time and leave violations, the principle of progressive discipline is employed to give ample warning to an employee through the formal disciplinary process and increasing penalties, that [her] attendance must improve or [she] will face the ultimate penalty in this forum, loss of employment." Human Resources Admin. v. Beauford, OATH Index No. 1517/03, at 18 (Dec. 5, 2003), aff'd, NYC Civ. Serv. Comm'n Item No. CD06-

15-5A (Jan. 9, 2006). See also, Health and Hospitals Corp. (Harlem Hospital Center) v. Harris, OATH Index No. 1761/05 (July 21, 2005). Respondent was provided with ample warning. She was repeatedly counseled about lateness and excessive absence. Despite the imposition of several significant penalties, she has not modified her conduct. Her most recent penalty, a 60-day suspension, should have served as a final warning that subsequent disciplinary action would result in termination. Respondent, however, did not heed this warning.

After a certain point, a public employer is entitled to end the employment relationship. See Dep't of Correction v. Belgrave, OATH Index No. 1662/05, at 14 (Jan. 18, 2006), aff'd NYC Civ. Serv. Comm'n Item No. CD06-115-SA (Nov. 8, 2006). Respondent's history of misconduct has rendered her an unreliable employee. Accordingly, in keeping with the principle of progressive discipline, I recommend termination.

Kara J. Miller

Administrative Law Judge

March 22, 2007

SUBMITTED TO:

JEAN G. LEON

Executive Director

APPEARANCES:

PHIL ROMAIN

Representative for Petitioner

MEYER, SUOZZI, ENGLISH & KLEIN

Attorneys for Respondent

BY: AYANA M. BROOKS, ESQ.

1 With respect to the other lengthy absence of nine days in June 2005, no information was provided other than it began after and ended before a scheduled day off. There is nothing in the record to indicate the reason for respondent's absence or whether she called in daily to notify the Hospital that she would not be reporting for work, as she did with the eleven-day absence.

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