Human Resources Admin



Human Resources Admin. v. Johnson

OATH Index No. 267/07 (Oct. 10, 2006), aff’d, NYC Civ. Serv. Comm’n Item No. CD07-50-SA (Apr. 30, 2007)

Eligibility specialist II guilty of submitting 11 forged medical notes in an effort to document 66 ½ hours of sick leave. Respondent sought mitigation of her penalty by asserting that her conduct resulted from stress caused by conflict with her supervisor. ALJ recommended termination.

______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

HUMAN RESOURCES ADMINISTRATION

Petitioner

- against -

CHERYL JOHNSON

Respondent

______________________________________________________

REPORT AND RECOMMENDATION

TYNIA D. RICHARD, Administrative Law Judge

This employee disciplinary proceeding was referred by petitioner Human Resources Administration ("HRA") pursuant to section 75 of the Civil Service Law. Respondent Cheryl Johnson is employed by petitioner as an eligibility specialist II. She is charged with submitting 11 forged medical notes that falsely documented 66 ½ hours of sick leave. Respondent stipulated to the accuracy of the charge and sought to mitigate her penalty by presenting evidence of anxiety and stress stemming from her relationship with her supervisor.

The hearing on the charges was conducted before me on September 6, 2006. At the request of counsel for respondent, I held the record open until September 8, 2006, for the submission of post-trial briefs; I closed the record on September 11, 2006, when the submissions were received. At trial, petitioner presented the testimony of Supervisor Pamela Mondazie, Manager Vera Harris, and Special Investigator Michael Fitzpatrick. Respondent testified on her own behalf and called Supervisor Betty Massiah and co-worker Rita Williams as her witnesses.

Based upon the record of the proceeding, I find that petitioner established the charges. I recommend a penalty of termination.

ANALYSIS

Respondent is charged with violating Departmental rules that prohibit employees from making false entries upon City or Agency records and with submitting false or forged medical documents. Specifically, petitioner alleges that respondent knowingly submitted 11 fraudulent medical notes in order to falsely document 73 ½ hours of sick leave, in violation of Executive Order 651. At trial, respondent stipulated that she had in fact submitted 11 forged medical notes that falsely documented 66 ½ hours of sick leave (Tr. 5).

During its case in chief, petitioner called Pamela Mondazie, respondent’s supervisor who first detected the fraud. Ms. Mondazie testified that when respondent gave her a doctor’s note dated May 2005, she looked at it and recognized the name of the physician, Dr. C. P. Schwartz, who she believed had retired from medical practice earlier that year (Tr. 10; Pet. Ex. 2). She knew this doctor well, because he had been her mother’s doctor for more than 30 years preceding his retirement. She called the doctor’s office and was told that Dr. Schwartz was indeed retired, and he could not have written a doctor’s note for respondent as he was living in Paris, France. She then reviewed the other doctor’s notes in respondent’s file, all of which were purportedly signed by Dr. Schwartz, and reported her findings to superiors who ordered an investigation. An investigator spoke with Dr. Schwartz’s wife who confirmed that he had not signed the notes and that respondent had never been his patient (Pet. Ex. 4). When interviewed, respondent admitted submitting the falsified notes and told investigators that she was suffering from stress and had ongoing conflict with her supervisor, Ms. Mondazie.

In all, the record established that Ms. Johnson submitted the following medical notes all of which falsely documented a medical reason for her having missed work: they are dated May 26, 2005, February 11, 2005, December 27, 2004, November 3, 2004, July 26, 2004, May 19, 2004, March 29, 2004, December 24, 2003, May 23, 2003, April 8, 2003, and January 29, 2003 (Pet. Ex. 1).

Respondent expressed remorse for submitting the forged medical notes (Tr. 33), and she offered testimony in mitigation of her penalty in which she claimed to be under emotional stress from a conflictual relationship with her supervisor.

FINDING AND CONCLUSION

Petitioner established by a preponderance of the credible evidence that respondent knowingly submitted 11 forged medical notes in order to obtain 66 ½ hours of sick leave.

THEREFORE:

I find that petitioner has proved the misconduct alleged.

RECOMMENDATION

Upon making the above findings, I obtained and reviewed an abstract of respondent’s personnel record as maintained by the agency. She commenced her employment with HRA on August 13, 1990. She has only one prior penalty, a one-day pay fine in 2000, for conduct prejudicial to good order and discipline.

Although respondent concedes committing the misconduct, she seeks to mitigate any penalty imposed. She contends that she is an excellent worker who is the sole support for her college attending daughter, and that she suffers anxiety, depression and insomnia as “the result of improper supervision that demeaned and insulted her.” (Respondent’s post-trial brief, at 1). The testimony that respondent’s work performance was exceptional was uncontested. Her supervisors, Ms. Mondazie and Ms. Massiah, both testified that respondent was a good worker. Ms. Mondazie said that she “never had any complaints with [respondent’s] work,” and that respondent “came to work to work” (Tr. 16). Betty Massiah testified that respondent is “very conscientious,” “helpful and . . . very good” (Tr. 24). Her co-worker Rita Williams testified that respondent “is a hard worker [who] keeps abreast of her case and . . . is good with her clients” (Tr. 25). Ms. Williams also testified that Ms. Johnson’s productivity diminished when she worked under Ms. Mondazie’s supervision and that Ms. Mondazie had caused several employees stress by continually “riding them” (Tr. 26).

Respondent testified that she forged the doctor’s notes because of constant harassment by Ms. Mondazie. She said she was given more work than others, had constant demands placed on her, and was disapproved whenever she asked for time off. She felt so depressed that, on the days that she did not go to work, she just stayed home on her couch. She also said that, because she is gay, Ms. Mondazie called her “out of her name” using “that word” to describe her. Ms. Williams said her supervisor called her a “dike.” Respondent said that this behavior caused her stress, depression, and insomnia and diminished her work performance (Tr. 26-28). She attributed her submission of the fraudulent notes to the stress of that relationship, stating that, “I didn’t have a choice”; “I couldn’t get any help from nobody” (Tr. 33). Respondent admitted, however, that she never sought help by reporting this harassing behavior. She is remorseful for her actions and realizes that she should have sought help, but said it was her way of escaping.

Ms. Mondazie testified in rebuttal but did not address the accusations of harassment, which created an inference that they were true.

Respondent’s proof of illness was sparce, consisting of a single doctor’s note, which does not indicate that she suffers from any stress-related medical condition or any other illness. According to the note, written by Anzhela Dvorkina, M.D., respondent was under her care on August 28, 2006, and is taking Ambien for insomnia (Resp. Ex. A). There was no evidence that the insomnia was caused by “illness” or constitutes an illness itself, nor was there evidence that the insomnia was connected to the stressful workplace that respondent described. The note makes no mention of depression.

Respondent said she saw a psychotherapist on one occasion in 2005, but she could not afford to continue paying the cost. She also said that she visited the Personal Service Unit in 2006, which she said she visits sporadically, even though she admitted having thoughts of hurting others (Tr. 34).

In his post-trial submission, respondent’s counsel argued that the submission of false medical notes does not always result in termination, citing two decisions where employees who submitted altered documents were not fired. See Transit Auth. v. Jones, OATH Index No. 598/95 (Feb. 15, 1995); Transit Auth. v. Velliamatton, OATH Index No. 1412/95 (Aug. 1, 1995), modified on penalty, NYC Civ. Serv. Comm’n Item No. CD 98-117-M (Oct. 23, 1998). In Velliamatton, where the employee was found guilty of altering a medical note by inserting dates that the doctor intentionally left blank because he did not intend to excuse any workdays missed, the agency adopted OATH’s recommendation of termination, but the Civil Service Commission reinstated the employee, finding that termination was too harsh a penalty given the employee’s 11-year tenure with no prior discipline and his recent history of illness. CD 98-117-M, at 4. In Transit Authority v. Jones, where the employee knowingly submitted a sick leave application that had been altered, the OATH ALJ found that she did make the alterations and that the leave request would likely have been granted by the agency since the nature of respondent’s injuries and her inability to work were truthful. Jones, OATH 598/95, at 6-7, 11. In one other case, Dep’t of Homeless Services v. Postell, OATH Index No. 390/99 (Feb. 2, 1999), the ALJ recommended a 15-day suspension for misconduct that included submission of a forged doctor’s note, but in that case, the Agency sought only that penalty.

The instant case is distinguishable from both cases cited by respondent for a number of reasons, not the least of which is because in each, the employees had actually seen a doctor and had authentic documentation of illness. Here, Ms. Johnson never visited a doctor; instead, she used forms taken from a doctor’s office to fabricate doctor’s visits. Significantly, Ms. Johnson conducted this ruse on 11 different occasions over a two and a half year period. Thus, her conduct was calculated and conducted over an extended period of time, in addition to being deceptive. Had she experienced pangs of guilt, she could have stopped it at any time, potentially without detection, but she did not stop until she was caught. This is conduct that must be penalized in the strongest terms to show that this level of dishonesty is unacceptable and will not be tolerated by the Agency.

Respondent claimed to have been suffering from depression, which could have provided her a legitimate reason for missing work. Such a claim might be accorded more credence had respondent documented the depression she claimed to have suffered and began to get help for it. Instead, she asserted in the vaguest of terms that “something” stopped her from getting the assistance she needed, and even at trial, continued to give excuses for why she cannot get help (i.e., the medical cost is too high).

Petitioner asserts that termination is the only appropriate penalty for respondent’s misconduct. Indeed, this tribunal has agreed that where an employee has submitted forged or fraudulent medical documentation in order to falsely document sick leave, the appropriate disciplinary action is termination. See, e.g., Dep’t of Buildings v. Goldberg, OATH Index No. 652/03 (Apr. 17, 2003), aff’d, NYC Civ. Serv. Comm’n Item No. CD04-09-SA (May 11, 2004) (clerical associate terminated for submitting three false documents relating to his use of sick leave); Transit Auth. v. Walden, OATH Index No. 613/95 (Dec. 7, 1994) (office aide terminated for knowingly submitting a leave application that contained an altered doctor's certification that improperly extended her period of incapacity); Human Resources Admin. v. Rivera, OATH Index No. 219/94 (Nov. 24, 1993) (employee terminated for submitting a fraudulent medical note to document a three-week leave of absence); Human Resources Admin. v. Evans, OATH Index Nos. 1313/90 & 102/91 (Dec. 10, 1990), aff'd, N.Y.C. Civ. Serv. Comm'n Item No. CD 92-46 (Apr. 30, 1992) (five-year employee with no prior disciplinary record terminated for submitting fraudulent medical note to cover a 10-day absence); Human Resources Admin. v. Brown, OATH Index No. 236/90 (Oct. 25, 1989), aff'd, N.Y.C. Serv. Comm'n Item No. CD 91-12 (Feb. 8, 1991) (nine-year employee with no prior discipline was terminated for submitting three false medical notes to cover a 13-day absence).

Although respondent testified that she needs her job because she has financial obligations, including living expenses for her family and college expenses for her daughter, she presented an insufficient basis for mitigation. Respondent produced no evidence of having suffered any illness that caused her absences. Her only evidence of any infirmity was her doctor’s representation that she has insomnia, which is insufficient by itself to explain her conduct or to support her claim of stress, anxiety and depression. While her claim of harassment may be true, it is hardly sufficient to justify her behavior. And, because she failed to document those allegations, they seem calculated to suit her need for leniency.

Accordingly, for engaging in this scheme of deception in which she forged and submitted 11 forged medical notes for which she received 66 ½ hours of unearned sick leave, I recommend that respondent receive the penalty of termination.

Tynia D. Richard

Administrative Law Judge

October 10, 2006

SUBMITTED TO:

VERNA EGGLESTON

Commissioner

APPEARANCES:

PATRICK SOOHOO, ESQ.

Attorney for Petitioner

DRUYAN & ASSOCIATES

Attorneys for Respondent

BY: MARTIN DRUYAN, ESQ.

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