MEMORANDUM DECISION



Health & Hospitals Corp. (Bellevue Hospital Center) v. Carver

OATH Index No. 1341/08 (Feb. 21, 2008)

Petitioner’s undisputed evidence established that respondent has been continuously absent without leave since July 25, 2007. Termination recommended.

______________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

HEALTH AND HOSPITALS CORPORATION

(BELLEVUE HOSPITAL CENTER)

Petitioner

-against-

COLLEEN CARVER

Respondent

______________________________________________________

REPORT AND RECOMMENDATION

INGRID M. ADDISON, Administrative Law Judge

This is a disciplinary proceeding referred by petitioner, the Health and Hospitals Corporation, Bellevue Hospital Center, pursuant to section 7.5 of the Personnel Rules and Regulations of the Corporation. The Corporation charges respondent Colleen Carver, a staff nurse, with being absent without authorization (“AWOL”) from July 25, 2007, to the present.

At a hearing scheduled for February 13, 2008, respondent failed to appear. Petitioner presented proof of service of the charges and the notice of hearing (Pet. Exs. 1, 2). Petitioner’s submissions consisted of an affidavit of service by mail on December 26, 2007, and certified mail receipts dated December 26, 2007, to establish that it had mailed notices of hearing to the respondent at two different addresses that petitioner had on file for respondent. Because petitioner’s rules do not proscribe the manner of service, petitioner was required to satisfy service pursuant to section 1-23(b) of OATH’s Rules of Practice. Closer review of petitioner’s submissions revealed that the affidavit of mailing did not distinguish the method of mailing. Further, the certified mail receipts were the unstamped receipts that had been completed by petitioner’s office staff and, therefore, did not constitute proof of actual mailing. I contacted counsel for petitioner and requested additional proof that the petition and notice of charges had been served on respondent by certified mail. I further requested that counsel re-submit a revised affidavit to indicate the type of mailing that petitioner had effected. In lieu of a revised affidavit, counsel faxed me copies of envelopes that had been mailed to petitioner by certified and regular mail, at the addresses that petitioner had on file for respondent.

Counsel’s initial submissions demonstrated a lack of awareness that, in the absence of an agency rule proscribing manner of service, OATH’s Rules of Practice govern. Section 1-23(b) provides that:

Service of the petition shall be made pursuant to statute, rule, contract, or other provision of law applicable to the type of proceeding being initiated. Absent any such applicable law, service of the petition shall be made in a manner reasonably calculated to achieve actual notice to the respondent. Service by certified mail, return receipt requested, contemporaneously with service by regular first-class mail, shall be presumed to be reasonably calculated to achieve actual notice….

Accordingly, the initial submissions, which consisted of unstamped certified mail receipts and no evidence of a contemporaneous first-class mailing, were inadequate. Nonetheless, any doubt regarding proof of mailing was overcome by a revised affidavit of mailing, which counsel eventually submitted, pursuant to my request. That affidavit indicated that petitioner had served respondent at both addresses on file via certified and regular mail. Had this been submitted initially, it would have obviated the need for the faxed copies of the envelopes. Upon review, the supplemental submissions proved sufficient to satisfy the jurisdictional prerequisites for finding respondent in default.

Petitioner also submitted an affidavit from Henrietta James, Director of Nursing/Medicine, who regularly deals with time and leave control records of the Nursing/Medicine Department and affirms that respondent has been AWOL since July 25, 2007 (Pet. Ex. 3).

Accordingly, I find petitioner established that respondent has been absent without authorization since July 25, 2007, as charged.

FINDINGS AND CONCLUSIONS

1. Respondent was properly served with the charges and notice of hearing.

2. Respondent has been absent without authorized leave since July 25, 2007.

RECOMMENDATION

Respondent has been absent from work without authorization for over six months. Respondent’s unauthorized absence is a fundamental form of misconduct that substantially impedes the agency’s ability to fulfill its mission in that it has become necessary for other employees to assume her responsibilities in addition to their own. This has sometimes required the Corporation to order employees to work overtime (Pet. Ex. 3).

Therefore, the only appropriate remedy for this misconduct is termination and I so recommend.

Ingrid M. Addison

Administrative Law Judge

February 21, 2008

SUBMITTED TO:

LYNDA D. CURTIS

Executive Director

APPEARANCES:

MATHEW DRISCOLL, ESQ.

Attorney for Petitioner

No appearance by or for Respondent

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download