Dep’t of Correction v



Dep’t of Education v. Cammarata

OATH Index No. 307/07 (Jan. 5, 2007), adopted, Chancellor’s Decision (Mar. 1, 2007), appended, modified on penalty, NYC Civ. Serv. Comm’n Item No.CD08-09-M (Jan. 24, 2008), appended

Office aide found to have altered medical note from a hospital by adding a date on which he was never at the hospital. Judge recommended penalty of termination.

On appeal, Civil Service Commission finds penalty of termination to be too harsh given appellant’s long unblemished service record. It orders reinstatement without backpay (time served suspension).

______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF EDUCATION

Petitioner

- against -

JOHN CAMMARATA

Respondent

______________________________________________________

REPORT AND RECOMMENDATION

JOHN B. SPOONER, Administrative Law Judge

This disciplinary proceeding was referred to me in accordance with section 75 of the Civil Service Law. Petitioner, the Department of Education, charged that respondent John Cammarata, a clerical associate, altered a medical note.

A hearing on the charges was conducted before me on November 13, 2006. Respondent admitted altering the note and the parties submitted the case upon stipulated facts. In his defense, respondent testified that he should not be terminated because he altered the note due to a mistake.

For the reasons provided below, I recommend that respondent be terminated.

ANALYSIS

The sole issue raised at the hearing was that of penalty. Respondent admitted altering a medical note (Pet. Ex. 1), dated December 2, 2004, from Valley Hospital. The original note stated that respondent was at the hospital imaging department on December 2, 2004, for a “diagnostic study.” Respondent testified that, after receiving the note, he added “December 3, 2004” below the date of December 2, 2004. The parties further stipulated that respondent was given approved sick leave for both December 2 and 3, 2004, and submitted the note in support of his request for sick leave. It was further stipulated that, pursuant to a May 20, 2005 agreement with the Department, respondent repaid salary he had received for a number of 2004 sick leave dates, including these two dates.

Respondent testified that he has worked with the Department since 1979, first as an office aide and more recently as a clerical associate. In October 2004, he began to have various health problems, including gout, kidney stones, and inflammation in his knees. He was admitted to the Valley Hospital emergency room, in Ridgewood, New Jersey, on November 18 due to abdominal pains and nausea (Tr. 10-12). He was treated for kidney stones and a twisted kidney first at the hospital and, on November 29, by a local urologist (see Resp. Ex. A).

Respondent went to Valley Hospital for diagnostic tests on December 2, 2004. He obtained a note, documenting this visit (Tr. 16). He then added the date of December 3, 2004 on the note because he thought he had another appointment for that day (Tr. 18). He stated that he was sick on December 3 and “had to take care of something else” (Tr. 27). He did not go back to the hospital for further tests until December 14, and obtained another note (Resp. Ex. C) for that visit. Pursuant to the office practice, he submitted this note, along with other notes, in January 2005. Respondent insisted that he “tried to explain” the extra date on the December 2 note to the timekeeper (Tr. 28).

He thought no more about the matter until the summer of 2005, when he was interviewed by an investigator from the Office of Special Investigation. At the second interview with this investigator, respondent was asked about the December 2 note and admitted that he had written the second date himself by mistake (Tr. 22).[1]

It was undisputed that, during the month of December 2004, respondent was sick 13 times and provided documentation for three of these absences, including December 2 and 3.

I found respondent’s explanation that he altered the note by mistake unbelievable. Respondent’s assertion that he thought that he had another appointment on December 3 was inconsistent with other statements he himself made. Even assuming that he may have been confused about a scheduling issue on December 2, it does not explain the need to alter the note rather than procure a new note on the date of his visit. Indeed, his testimony that he did not go to the hospital on December 3, but instead used this sick day to “take care of something else,” contradicts his assertion that he believed he had an appointment. His testimony also fails to explain why, assuming he altered the note by mistake, he didn’t remove the alteration once it became clear that there was no hospital procedure on that date. All of these facts support a finding that, by submitting the altered December 2 note, respondent was falsely indicating that he had hospital appointment on December 3 as well as December 2.

I therefore conclude that respondent’s alteration and submission of the December 2 note was a deliberate effort to procure authorized sick leave for a hospital appointment which never occurred. The charge should therefore be sustained.

FINDING AND CONCLUSION

The charge should be sustained in that, on December 2, 2004, respondent submitted a medical note which he had deliberately altered, in violation of Department rules and regulations.

RECOMMENDATION

Upon making the above findings, I requested and received a summary of respondent's personnel history in order to make an appropriate penalty recommendation. He has worked for the agency since 1979 and has no disciplinary record.

Submission of fraudulent medical documents in order to obtain sick leave has long been considered egregious misconduct and City employees found to have submitted such falsified documents have generally been terminated. See Admin for Children’s Services v. Brown, OATH Index No. 1701/02 (Dec. 13, 2002); Transit Auth. v. Williams, OATH Index No. 140/00 (Aug. 23, 1999); Transit Auth. v. Williams, OATH Index No. 456/97 (Nov. 1, 1996); Transit Auth. v. Walden, OATH Index No. 613/95 (Dec. 7, 1994); Human Resources Admin. v. Rivera, OATH Index No. 219/94 (Nov. 24, 1993); Human Resources Admin. v. Nelson, OATH Index No. 1120/91 (Sept. 5, 1991); Human Resources Admin. v. Evans, OATH Index No. 1313/90 (Dec. 10, 1990); Dep’t of Housing Preservation and Development v. Emanuele, OATH Index No. 101/85 (Apr. 23, 1985).

In his closing remarks, counsel for respondent contended that a prior case involving an altered doctor’s note warranted a penalty other than termination for his client. In Transit Auth. v. Patel, OATH Index No. 1946/01 (Jan.10, 2002), Judge Merris concluded that a transit worker who submitted a fraudulent doctor’s note should receive a 60-day suspension rather than termination due to a host of mitigating factors. The mitigation included the proof that the employee had seen the doctor as stated on the note, the employee’s good work performance, his alcoholism and the stress caused by his cancer treatment and the recent separation from his wife. She also considered the remorse expressed by the employee at the hearing.

I do not find that respondent’s circumstances are similar enough to those in Patel to support a suspension penalty for Mr. Cammarata. Here, the only mitigation presented was respondent’s admission that he altered the note and his statement that he regretted doing so. While this admission of wrongdoing and expression of regret displays a certain maturity, and does suggest that the misconduct would probably not recur, it does not excuse the dishonesty shown by the act of falsifying the note. Respondent, unlike the employee in Patel, added a date to his note which was, in fact, false in that he admitted that he did not see the doctor on that day. Nor did respondent present any evidence that he was undergoing an emotional crisis comparable to that of Mr. Patel.

Accordingly, I find that the most appropriate penalty for respondent's misconduct is termination and I so recommend.

John B. Spooner

January 5, 2007 Administrative Law Judge

SUBMITTED TO:

JOEL KLEIN

Chancellor

APPEARANCES:

TAE KIM, ESQ.

Attorney for Petitioner

BELKIN, CAMPBELL & SZUFLITA

Attorneys for Respondent

LEONARD A. SHRIER, ESQ.

Department of Education’s Decision, March 1st, 2007

________________________________________________

DEPARTMENT OF EDUCATION

Petitioner

- Against –

JOHN CAMMARATA

Respondent

________________________________________________

JOEL I. KLEIN, Chancellor

DECISION

I have received and reviewed the Report and Recommendation dated January 5, 2007, issued by John B. Spooner, Administrative Law Judge (“ALJ”) of the City of New York Office of Administrative Trials and Hearings (“OATH”), the transcripts of the hearing held before the ALJ and the exhibits introduced at the hearing held on November 13, 2006. In the Report and Recommendation, the ALJ recommends that Respondent John Cammarata receive a penalty of termination. As Chancellor of the New York City Department of Education (the “Department”), I have the authority pursuant to Section 75 of the Civil Service Law to accept or reject the recommendation. For the reasons set forth below, I have determined to accept the ALJ’s recommendation and to terminate Respondent Cammarata’s employment.

FACTS

Respondent Cammarata is a Clerical Aide employed by the Department since 1979. His duties include performing clerical tasks at the Committee for Special Education (“CSE”) in Region 9 or at schools located within Region 9.

Mr. Cammarata was initially charged with excessive absences during the 2004-2005 school year, receiving unauthorized pay during the 2004-2005 school year and with submitting an altered, invalid and/or fraudulent medical note on December 2, 2004. The Department withdrew the charges of excessive absences and unauthorized pay because Mr. Cammarata entered into an agreement with the CSE in which Mr. Cammarata agreed to pay back the unauthorized pay and to follow specific procedure as it concerned his attendance in the future. The Department therefore served an amended set of specifications with OATH. The only remaining charge against Mr. Cammarata was the submission of an invalid, altered and/or fraudulent medical document on or about December 2, 2004.

The ALJ sustained the only charge before him.

DISCUSSION

Having considered the record in this case, I have concluded that the Department should follow the ALJ’s recommendation and the Respondent should be terminated immediately.

It is apparent from the record that Respondent has no real interest in actually working for the Department, nor does he have the integrity to work for the Department. Mr. Cammarata’s alteration and submission of a December 2, 2004 note was an intentional effort to procure authorized sick leave for a hospital appointment which never occurred.

In The Matter of Edwin A. Pell, Jr. v. Board of Education, 34 N.Y.2d 222 (1974), the Court of Appeals held that termination was warranted where a teacher falsely certified in writing that he was ill. The Court of Appeals reasoned that such irresponsibility makes it impossible to conclude that the penalty of termination is shockingly disproportionate to the offense.

As the ALJ noted in his decision, submission of a fraudulent medical document in order to obtain sick leave is considered egregious misconduct, and City employees found to have submitted such falsified documents have generally been terminated. See Admin. For Children’s Services v. Brown, OATH Index No. 1701/02 (Dec. 13, 2002); Transit Auth. v. Williams, OATH Index No. 140/00 (Aug. 23, 1999); Transit Auth. v. Williams, OATH Index No. 456/97 (Nov. 1, 1996); Transit Auth. v. Walden, OATH Index No. 613/95 (Dec. 7, 1994); Human Resources Admin. v. Rivera, OATH Index No. 219/94 (Nov. 24, 1993); Human Resources Admin. v. Nelson, OATH Index No. 1120/91 (Sept. 5, 1991); Human Resources Admin. v. Evans, OATH Index 1313/90 (Dec. 10, 1990); Dep’t of Housing Preservation and Development v. Emmanuele, OATH Index No. 101/85 (Apr. 23, 1985).

It is my determination that there is substantial evidence to support the findings and recommendation of the ALJ and that the penalty of termination is appropriate and not shocking to one’s sense of fairness.

Accordingly, Respondent’s employment with the Department shall be terminated, effective immediately.

JOEL I. KLEIN, Chancellor, Department of Education

The City Civil Service Commission’s Decision, Item No. CD08-09-M, January 24, 2008

_______________________________________________

THE CITY OF NEW YORK

CIVIL SERVICE COMMISSION

In the Matter of the Appeal of

JOHN CAMMARATA

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, November 15, 2007, the City Civil Service Commission heard oral argument in the appeal of JOHN CAMMARATA, Clerical Aide, NYC Department of Education, from a determination by the NYC Department of Education, finding him guilty of charges of misconduct and imposing a penalty of TERMINATION following an administrative hearing conducted pursuant to Civil Service Law Section 75.

DECISION

JOHN CAMMARATA appeals from a determination of the Department of Education (“DOE”) finding him guilty of misconduct and imposing a penalty of termination following disciplinary proceedings conducted pursuant to Civil Service Law Section 75. The Commission conducted a hearing on November 15, 2007.

Appellant, a Clerical Aide, was charged with submitting an altered medical note dated December 2, 2004. Appellant admitted to altering the medical note and the Administrative Law Judge (“ALJ”) sustained the charge and recommended a penalty of termination.

The Commission has carefully reviewed the record adduced below and considered the arguments on appeal. We note that Appellant had been with DOE since 1979 and had no prior disciplinary record. It should be noted that pursuant to an agreement with DOE, Appellant repaid salary he had received for a number of sick days including the two days relating to the charges set forth above. Furthermore, Appellant admitted he altered the medical note and regretted doing so.

The Commission notes that in determining the appropriate penalty the ALJ relied on the case of Transit Auth. v. Patel, OATH Index No. 1946/01 (Jan. 10, 2002 involving a four year transit worker who submitted a fraudulent doctor’s note for a three day absence and received a sixty-day suspension. Although the ALJ noted mitigating factors in Patel, in this case the ALJ failed to explain why a harsher penalty of termination was more appropriate for this Appellant with a significantly longer tenure of 28 years as a DOE employee, an admission to altering the note and regret for his misconduct. This Commission does not excuse or condone egregious conduct such as falsification of documents; however we find that a modification of the penalty is warranted, considering the totality of the circumstances, Appellant’s long tenure and the notion of progressive discipline.

Therefore, the Commission hereby modifies the determination of DOE to a suspension of time served from the date of his dismissal to the date of this determination. Appellant is to be restored to the position within 15 days from this determination.

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

NICHOLAS A. LAPORTE, Commissioner/Vice Chairman, Civil Service Commission

RUDY WASHINGTON, Commissioner, Civil Service Commission

DAVID S. LANDE, Commissioner, Civil Service Commission

NORMA LOPEZ, Director /General Counsel, Civil Service Commission

LEONARD SHRIER, ESQ. TEA KIM, ESQ.

Representative for Appellant Representative for Respondent

-----------------------

[1] During the hearing, counsel for respondent contended that this admission concerning the alteration of the note is inadmissible because respondent was not provided written notice of his right to union representation. See Civ. Serv. Law § 75. Because petitioner did not rely upon these prior admissions but instead upon respondent’s admissions at the hearing to prove the charges, respondent’s challenge to the admissibility of these prior statements is moot.

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