An employee may be disciplined for excessive absenteeism ...



Dep’t of Correction v. Givens

OATH Index No. 393/09 (Dec. 29, 2008)

Petitioner proved that respondent, who has used more than 135 sick days since May 2007, has been excessively absent. The evidence also established that respondent made a criminal complaint against a co-worker without following Department of Correction procedures. Petitioner failed to prove that respondent was excessively out of residence or that she failed to log out and in of her residence properly. Termination of employment recommended.

______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF CORRECTION

Petitioner

- against -

VERA GIVENS

Respondent

____________________________________________________

REPORT AND RECOMMENDATION

KEVIN F. CASEY, Administrative Law Judge

Petitioner, the Department of Correction, brought this employee disciplinary proceeding under section 75 of the Civil Service Law against correction officer Vera Givens alleging that she has been excessively absent, made a criminal complaint against a co-worker without following proper procedures, failed to log out or into residence while under home confinement, and was excessively out of residence while under home confinement.

At a hearing on September 22 and 25, 2008, petitioner presented documentary evidence and testimony from four witnesses. Respondent testified on her own behalf and also offered documentary evidence.

For the reasons below, petitioner failed to prove that respondent failed to log in and out of her residence or that she was out of residence without permission. However, I find that petitioner proved the remaining charges and recommend termination of respondent’s employment.

ANALYSIS

Excessive absenteeism

Excessive absenteeism, even if due to verified or work-related illnesses, may result in termination of employment under section 75 of the Civil Service Law. See Cicero v. Triborough Bridge & Tunnel Auth., 264 A.D.2d 334, 694 N.Y.S.2d 51 (1st Dep’t 1999); Dep’t of Correction v. Rodriguez, OATH Index No. 1999/08 (Aug. 22, 2008); Dep’t of Correction v. Smith, OATH Index No. 1894/00 (June 19, 2000), aff’d, NYC Civ. Serv. Comm’n Item No. CD 03-76-SA (Sept. 23, 2003). Stressing the unpredictable, disruptive, and burdensome impact of excessive absenteeism, courts have repeatedly upheld the termination of employment due to poor attendance. See Romano v. Town Bd. of the Town of Colonie, 200 A.D.2d 934, 607 N.Y.S.2d 169 (3d Dep’t 1994) (upholding termination of employee who was absent from work 41 days in five months and finding it irrelevant that each absence was authorized); see also Considine v. Pirro, 38 A.D.3d 773, 832 N.Y.S.2d 620 (2nd Dep’t 2007) (section 75 of Civil Service Law is the proper means of determining incompetence charge based upon excessive absenteeism).

Under petitioner’s sick leave policy, an employee who is out sick more than 40 days within a twelve-month period is subject to termination of employment for excessive absenteeism (Pet. Ex. 15: Department Directive 2258R-A § (III)(E)(1)). Some absences, such as those due to line of duty injuries directly resulting from a use of force, are excluded from the calculation of the use of sick leave. Id. at § II(B)(2). While respondent asserts that most of her absences are the result of work-related injuries, none are the result of use of force or other excluded causes.

There is no dispute that, in the 12 months from May 26, 2007, to May 25, 2008, respondent reported sick on more than 95 days (Pet. Exs. 3, 4, 5; Tr. 213-19). In the two months from May 26 to July 27, 2008, respondent took an additional 41 sick days (Pet. Exs. 3, 5). Respondent’s attendance improved in August 2008, after petitioner filed disciplinary charges against her (Pet. Ex. 5).

Respondent did not question the number of absences listed on her medical summary report or time cards (Tr. 213-19). Instead, she argued that 135 sick days should be excluded because they were due to work-related injuries covered by workers’ compensation. Thus, by respondent’s count, she was only absent 20 days for injury or illnesses that were unrelated to her work as a correction officer.

To begin with, it is doubtful whether 135 of respondent’s sick days were due to work-related illnesses. Respondent attributed many of her absences to an incident that occurred at Vernon C. Bain Center (“VCBC”) on January 14, 2008. According to respondent, she was standing at a window when correction officers Smalls, Glover, and Chapman walked towards her. Officer Smalls bumped into respondent, who replied, “Excuse me, you didn't see me standing here?” (Tr. 165-66). Respondent claimed that officer Smalls threw a hot cup of coffee at her. As described by respondent, it must have been a large amount of coffee, which “landed to the right side of my face, all over my hair. It got in my eyes. It got on my face. It got on my memo book. It got on my pants. It got on the back of my sweater” (Tr. 166). Respondent screamed that Smalls had assaulted her (Tr. 167, 270).

As a result of this incident, and another incident a few weeks earlier when someone supposedly vandalized her car on Department property, respondent began to suffer a variety of physical and mental symptoms that caused her to miss work for most of the next six months. At the hearing, she claimed that she suffered blurred vision in her right eye and she experienced a mental breakdown” (Tr. 179). She explained,

I wasn't eating. I wasn't sleeping. I was having nightmares. I could not take care of myself … My memory was – it was gone, practically. I couldn't remember things. I couldn't – I wasn't well at all. I stayed closed in. I barricaded myself in the house, only went out to the HMD (Health Management Division) appointments, to the doctor and the counseling. I had to get help. And I was in treatment

(Tr. 179; Resp. Ex. H).

Although respondent did not present testimony from any medical expert, she offered documents indicating that she reported to a psychiatrist and various doctors (Resp. Exs. F, J, K, L, M, R, Z, AA, EE). Respondent also submitted documents from the Workers’ Compensation Board purportedly finding that all of her various injuries were work-related, but it is unclear from respondent’s documentation whether those findings were final (Tr. 178, 234-36; Resp. Ex. G).

Indeed, it is difficult to believe that respondent suffered such extensive injuries from a minor dispute with a co-worker. The episode occurred in front of multiple witnesses, none of whom supported respondent’s version of events. Petitioner offered statements from Smalls and two other officers who reported that the incident was an accident involving cold oatmeal, not coffee (Tr. 246). Moreover, respondent’s actions immediately following the incident were inconsistent with a serious eye injury. According to respondent, she reported the alleged assault to various supervisors before going to the facility’s health clinic. At the clinic, respondent made numerous phone calls. She reportedly called her union, a law firm, an EEO officer who helped her fill out a workers’ compensation claim, someone from the internal affairs bureau, and the police. When respondent was released from duty, shortly after noon, she went to the local police precinct. Only after filing a criminal complaint against her co-worker, several hours after the incident, did respondent agree to go to a hospital. If, as respondent claimed, her eye had been burned, it is unlikely that she would have waited hours before going to an emergency room.

For those absences that respondent did not attribute to the January 2008 incident, she blamed a knee injury that occurred when she slipped and fell at a Department facility in 2004 (Tr. 152, 237). As a result of that injury respondent took sick days in December 2005, December 2007, and April 2008 (Tr. 152, 184, 217-18). Whether recent absences were due to a 2004 work-related knee injury depends, in large part, upon respondent’s credibility. However, respondent’s own testimony raised doubts about her candor. For example, on direct examination, respondent suggested that she has worked “continuously,” without any absences, since her return to duty on August 1, 2008 (Tr. 227). On cross-examination, however, respondent conceded that she was absent for a week beginning August 4, 2008, due to an anxiety attack caused by “the thought” of seeing some of the same administrators who had failed to support her in the past (Tr. 265-66).

Respondent’s credibility was further undermined by her testimony regarding a car accident that she was involved in during the past year (Tr. 290). According to respondent her car was “totaled” (Tr. 290). Pressed for details about this apparently serious accident, which may have contributed to some absences from work, respondent became evasive. She could not recall the month or time of year that the accident occurred, the weather conditions at the time of the accident, or the gender of the other driver. In fact, respondent could not recall whether she mentioned this accident to any doctors (Tr. 290-92).

Even if it is assumed that respondent was a truthful witness and that most of her absences were work-related, it would not be a defense to the charge. As noted, the Civil Service Law permits disciplinary action against an employee for excessive absenteeism even if the absences result from verified illnesses or work-related injuries covered by workers’ compensation. See Duncan v. New York State Developmental Center, 63 N.Y.2d 128, 481 N.Y.S.2d 22 (1984); Morgan v. New York City Dept. of Correction, 39 A.D.3d 891, 892-93, 834 N.Y.S.2d 342, 343-44 (3d Dep’t 2007). As long as the termination is not in retaliation for the employee filing a workers’ compensation claim, an “employer should be permitted to take reasonable steps to secure a steady, reliable, and adequate work force.” Duncan, 63 N.Y.2d at 135, 481 N.Y.S.2d at 25; see also Johnson v. New York City Transit Auth., 242 A.D.2d 793, 661 N.Y.S.2d 686 (3d Dep’t 1997). Respondent’s absences far exceed the 40 days in 12 months that petitioner deems excessive. There is no credible evidence that petitioner filed disciplinary charges in retaliation for respondent’s workers’ compensation claims.

Petitioner proved that respondent was excessively absent, in violation of Directive 2258R-A, because she was absent for more than 95 days during a 12 month period beginning May 26, 2007, and was also absent for more than 40 days during the two months beginning May 26, 2008. Thus, this charge should be sustained.

Out of residence without permission and failure to log out/in of residence

Petitioner alleged that respondent, while under home confinement, was excessively out of residence on 11 occasions and failed to log out or in on 5 occasions.

Under Department Directive 2262R, members of the uniformed force who are out sick for nine or more days in a year are classified as chronically absent and “shall not leave their residence or place of confinement except for visitation to their personal physician, a hospital, HMD or where contractually permitted” (Pet. Ex. 11, § III E 4). Members must log out upon their departure from home and log back in upon their return. Although members are provided with four-hour blocks each day during which they may conduct personal business such as food shopping or religious activities, they may not exceed that time without permission (Pet. Ex. 11, § III E 6). See, e.g., Dep’t of Correction v. Wright, OATH Index No. 1223/97, at 18-20 (Dec. 22, 1997), aff’d, NYC Civ. Serv. Comm’n Item No. CD 99-37-SA (Apr. 9, 1999); Dep’t of Correction v. Frascati, OATH Index No. 948/96, at 7-8 (May 14, 1996), aff’d, NYC Civ. Serv. Comm’n Item No. CD 97-89-SA (Oct. 8, 1997).

Because of her frequent absences, respondent was classified as chronically absent. To prove that respondent was out-of-residence for an excessive amount of time, petitioner introduced a “log out/in history” and an HMD sign-in register (Pet. Exs. 7, 8). On each of the days that respondent was accused of being excessively out of residence -- January 4; February 1 and 7; March 6; April 3 and 22; May 15; June 12; and July 7, 11, and 14, 2008 -- respondent reported to HMD. For those dates, she was out of residence for at least 7 hours and as much as 13 hours. Respondent testified that any delays were due to her long commute. She claimed that, when she used public transportation, it could take up to four hours for her to get from her home in Middletown, New York, to HMD in Queens. Cynthia Barrett, absence control captain at HMD testified that respondent was allowed two hours travel time to and from her home. Barrett conceded that she routinely extended respondent’s permissible out of residence time because of the commute. Though Barrett granted such extensions to respondent on occasions “too numerous to mention,” she did not keep record of those extensions (Tr. 59, 61, 85, 89). Thus, Barrett could not recall “which particular day” respondent asked for more time to travel to and from her home (Tr. 85-87, 95).

Based upon the evidence that respondent had an extraordinarily long commute, she appeared at HMD on each of the contested dates, and extensions were routinely granted but not documented, petitioner failed to prove that respondent was excessively out of residence on 11 occasions.

For the five dates that respondent allegedly failed to log in or out of her residence -- March 10, 22, and 27; April 11; and May 22, 2008 – petitioner relied upon the log out/in history and “no log in” daily reports which are generated whenever an employee fails to log in after logging out (Pet. Exs. 8-13, Tr. 63). On all but one day, March 27, the log out/in history indicates that respondent logged back in to her residence minutes before she logged out. Captain Barrett explained that occasionally an employee logs back in immediately after changing plans and deciding to stay at home. However, Barrett was unable to explain how a report could show a log in earlier than a log out time (Tr. 51-55, 67-68). As for March 27, petitioner’s evidence showed that respondent reported to HMD. There is no reported total time out of residence, but it appears that respondent logged in at 5:31 p.m. (Pet. Ex. 7). Although respondent logged in, petitioner introduced a “no log in” report for that date (Pet. Exs. 7, 11). Captain Barrett was unable to adequately explain the discrepancies or explain how the no “log in” report could have been produced (Tr. 51-55, 67-68).

Based upon this evidence, where petitioner’s witnesses could not explain unusual entries in the log out/in history or a discrepancy in a “no log in” report, petitioner failed to prove the charges. See Dep’t of Correction v. Mercer, OATH Index No. 1638/95 (Sept. 13, 1995) (dismissing charge where Department’s evidence was inadequate to establish respondent engaged in misconduct even though respondent did not testify nor himself present evidence as to facts surrounding incident).

These charges should be dismissed.

Failure to report filing criminal complaint

The Department alleged that respondent failed to timely notify her command prior to filing criminal charges against a co-worker. Department rule 3.05.190 mandates that when a member of the Department wishes to file any charges with the police against a co-worker, for an incident that occurs within a Department facility, the member must first notify a commanding officer or tour commander. If the commanding officer or tour commander decides that an arrest is inappropriate, the member shall be notified and the inspector general as well as the investigation division shall be notified of any decision. If an arrest is appropriate, the commissioner, chief of department, and investigation division, and inspector general shall be notified immediately. The obvious import of this rule is that criminal charges by one officer against another, for conduct that occurs within a facility, should only be filed after the Department’s chain of command has been notified and the Department has been given an opportunity to investigate. A hastily made complaint may cause undue confusion between police and the Department while interfering with the Department’s mission of care, custody, and control of inmates.

There is no dispute that respondent called the police and filed criminal charges on January 14, 2008, shortly after the incident in which correction officer Smalls allegedly threw coffee at her. According to the police report, respondent filed an assault complaint at 2:20 p.m. that day. The only issue is whether respondent properly made a complaint.

According to respondent, immediately after the incident, she told the tour commander that she wanted Smalls arrested. The tour commander summoned Smalls and other officers to his office and had another officer take pictures of respondent before escorting her to the medical clinic (Tr. 168). At the clinic, respondent filled out an incident report and again advised the tour commander that she wanted Smalls arrested. The tour commander explained to respondent that he wanted to investigate further (Tr. 169, 256). Meanwhile, respondent made numerous phone calls to attorneys and others (Tr. 173, 245). According to respondent, someone named “Caserras” or “Casarras” from the internal affairs bureau told her to call the police if she feared for her safety (Tr. 173-74, 246). Based upon that advice, respondent called the police, who arrived at VCBC at about noon (Tr. 174). Respondent claimed that a captain falsely told the police that the incident had not been reported internally (Tr. 174). It was later agreed that Smalls would turn herself in rather than be escorted out of the facility in handcuffs (Tr. 174-75). At about that same time, respondent was released from duty and she went to the local precinct to file a criminal complaint against Smalls (Tr. 305). Respondent testified that she called the police because she feared for her safety and facility administrators had conspired with officers to cover-up the incident (Tr. 271).

Even assuming that she told the tour commander that she wanted officer Smalls arrested, respondent had no authority to circumvent the Department’s chain of command and contact the police directly before the matter had been investigated internally. The Department’s rules recognize that accusing an officer of criminal conduct within a facility is a serious matter that requires proper notification and investigation. As a member of the Department, respondent was duty-bound to follow Department procedures.

There is an exception to the principle of “obey now, grieve later” where compliance with an order or rule poses an unusual threat to the health or safety of an employee or others. See Ferreri v. New York State Thruway Auth., 62 N.Y.2d 855, 856-57, 477 N.Y.S.2d 616, 617 (1984). That exception does not apply here. There was no credible evidence of an immediate threat to respondent’s health or safety. Respondent was separated from officer Smalls and sent to the medical clinic and, by noon, respondent was released from duty. There was no indication that Smalls posed a continuing threat and no need for respondent’s haste in contacting the police.

Nor was there any credible evidence to support respondent’s claim of a cover-up. Even accepting respondent’s version of events, it appears that the tour commander was gathering necessary information. Making sure to preserve evidence, the tour commander arranged for someone to photograph respondent, located witnesses to the incident, and referred respondent to the medical clinic. Following up, the tour commander went to the clinic and spoke to respondent again. From her vantage point in the clinic, it was not reasonable for respondent to conclude that administrators were engaged in a cover-up. Furthermore, respondent had already called the union, an EEO officer, attorneys, and the internal affairs bureau. Rather than wait for the outcome of the Department’s investigation, respondent took it upon herself to call the police. Respondent’s impatience does not demonstrate that there was an unusual threat to her health or safety justifying her refusal to follow Department procedures.

Thus, the charge should be sustained.

FINDINGS AND CONCLUSIONS

1. Charge B0304, Specification 1 should be dismissed in that the Department failed to establish that respondent failed to log out/into her residence with HMD on March 10, 22, and 27; April 11; and May 22, 2008.

2. Charge B0304, Specification 2 is proven in that the Department established that respondent did not properly notify her command prior to filing criminal charges with the Police Department against a co-worker on January 14, 2008.

3. Charge B0308, Specification 1 is proven in that the Department established that respondent was excessively absent from May 26, 2007, through May 25, 2008, reporting sick more than 95 days.

4. Charge B0308, Specification 2 should be dismissed in that the Department failed to establish that respondent was excessively out of residence on January 4; February 1 and 7; March 6; April 3 and 22; May 15; June 12; and July 7, 11, and 14, 2008.

5. Charge B0308, Specification 3 is proven in that the Department established that respondent was excessively absent from May 26, 2008, through July 27, 2008, reporting sick approximately 41 days.

RECOMMENDATION

After making the above findings, I requested and reviewed respondent’s personnel history. She has been employed by the Department since 2001 and has no prior disciplinary history.

Petitioner now seeks termination of respondent’s employment. Such a penalty is consistent with established Department policy. See Rodriguez, OATH 1999/08 (termination of employment where officer was absent over 140 days in 16 months); Dep't of Correction v. Peters, OATH Index No. 1118/03 (Sept. 24, 2003) (termination of employment where officer used 69 sick days in 12 months); Dep’t of Correction v. Duncan, OATH Index Nos. 873/02 & 1428/02 (Oct. 21, 2002), aff’d, NYC Civ. Serv. Comm’n Item No. CD 03-88-SA (Sept. 29, 2003) (termination of employment for use of 142 sick days in 16 months); Dep’t of Correction v. Purcell, OATH Index No. 1336/96, at 18 (July 8, 1996), aff’d, NYC Civ. Serv. Comm’n Item No. CD 97-106-SA (Nov. 21, 1997) (termination of employment deemed the “only appropriate penalty” where employee used 90 sick days in 12 months); Dep’t of Correction v. Waddy, OATH Index No. 730/96 (June 12, 1996) (termination of employment for excessive absenteeism, despite lack of prior disciplinary record); see also Santarella v. Dep’t of Correction, 53 N.Y.2d 948, 441 N.Y.S.2d 444 (1981), rev’g, 77 A.D.2d 844, 431 N.Y.S.2d 35 (1st Dep’t 1980) (upholding Department’s termination of correction officer’s employment for violation of sick leave policy, even though misconduct did not involve venality, corruption, or moral turpitude). Petitioner also presented evidence that excessive absenteeism imposes a substantial burden on the Department. When an officer calls in sick, another officer may need to work mandatory overtime. Though some officers may appreciate the additional earnings, others may suffer from fatigue or resent the intrusion upon their family obligations and similar commitments. Thus, besides the additional expense, excessive absenteeism may lower morale.

While respondent attributed most of her absences to work-related injuries, that claim was not credible. In any event, her absenteeism is extraordinary. She missed nearly 140 days in 14 months. Respondent also violated Department procedure when she filed a complaint against a co-worker without waiting for her command to conduct a proper investigation. All of this evidence demonstrates that respondent cannot be relied on to perform her obligations as a correction officer.

Accordingly, I recommend termination of respondent’s employment.

Kevin F. Casey

Administrative Law Judge

December 29, 2008

SUBMITTED TO:

MARTIN F. HORN

Commissioner

APPEARANCES:

ERIC YUEN, ESQ.

Attorney for the Petitioner

LLOYD SOMER, ESQ.

Attorney for the Respondent

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