Dep’t of Correction v



Dep’t of Correction v. Van-Osten

OATH Index No. 1793/05 (Nov. 18, 2005)

Correction officer absent for 185 days during the last year and one-half found to be medically incompetent and termination recommended. ALJ rejected officer’s claim that she was entitled to a modified assignment in a non-jail setting as an accommodation for her medical condition (high blood pressure) under the Americans with Disabilities Act.

______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF CORRECTION

Petitioner

- against -

MICHELE VAN-OSTEN

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 Correction, charged that respondent Michele Van-Osten, a correction officer, was excessively absent from May 2003 to the time of the hearing.

A hearing on the charges was conducted before me on September 20, 2005. Petitioner presented respondent's attendance records and called two witnesses. Respondent testified on her own behalf, insisting that she was able to work and deserving of a reasonable accommodation of a non-jail assignment.

For the reasons provided below, I find that the charge has been proven and that respondent should be terminated.

ANALYSIS

The facts in this case are uncontroverted. Petitioner’s evidence in support of the excessive absence charge consisted of respondent’s time-and-leave records (Pet. Ex. 1) from January 2003 to August 2005. These records demonstrate that she has used a considerable amount of sick leave during the last three years. She was absent on sick leave for 62 days in 2003, 130 days in 2004, and 55 days in the first nine months of 2005.

Respondent's very high rate of absenteeism makes her subject to discipline under the Department rules. Department Directive 2258R provides that correction officers who are on sick leave for 45 work days or more within a 12-month period may be subject to termination. Directive 2258R (III) (E) (2). Respondent has exceeded this 45-day limit for the last three years.

Respondent's high level of absences is not mitigated by any of the factors listed in the directive, such as leave due to a line-of-duty injury, leave not taken before or after a pass day, or leave caused by a chronic illness. Respondent's absences were occasioned by a wide variety of different physical and psychological conditions. The reasons for these absences included chest pains, cold, unspecified gynecological problems, flu, hypertension, depression, stress, general symptoms, vertigo, and high blood pressure. See Pet. Exs. 2 and 3.

Respondent's primary defense to the charges is that she is legally entitled to a reasonable accommodation of a modified duty or clerical assignment due to her problems with high blood pressure. In support of this theory, respondent offered a memo (Pet. Ex. 6) which she evidently submitted to the Department EEO office in May 2005, stating that she had "chronic high blood pressure" and needed a non-jail assignment as a reasonable accommodation. Her other medical support consisted of letters from her treating psychiatrist, Dr. Alexander Heisman. Dr. Heisman wrote, on September 9, 2004, that respondent had "severe anxiety with increase in blood pressure" and needed a non-jail setting in order to be able to function (Resp. Ex. A). He wrote similar letters on November 24, 2004, and February 7, 2005. On March 8, 2005, Dr. Heisman wrote that he was treating respondent for post-traumatic stress disorder and panic attack disorder and that she was able "to return to her job at this time without restriction" (see Pet. Ex. 8). A few weeks later, on May 14, the psychiatrist wrote that respondent "would benefit greatly" from a reasonable accommodation to reduce the stress of her work environment (see Pet Ex. 7). According to respondent's testimony, Dr. Heisman's March 8 letter was based upon requests she herself put before him to enhance the possibility that she might be able receive a reasonable accommodation of some kind.

In this regard, respondent's attorney has invoked the protections of the Americans with Disabilities Act ("ADA"). 42 U.S.C.A. § 12101 et seq. As this tribunal has held in the past, even though the remedies provided by the federal statute are available only in the federal courts, it is appropriate for this tribunal to consider the legality of agency actions with regard to this federal law as part of our obligation to provide a complete evaluation of the legality of all options available to the appointing agency. Dep't of Sanitation v. Troy, OATH Index No. 842/95 at 12-13, (Feb. 1, 1995), rev'd on other grounds, Comm'r Decision (Feb. 10, 1995); Dep't of Correction v. Noriega-Harvey, OATH Index No. 575/93 (Aug. 14, 1997).

The ADA prohibits employment discrimination "against a qualified individual with a disability." 42 U.S.C.A. § 12112 (a). A "qualified individual with a disability" is defined as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C.A. § 12111 (8). Moreover, where an employee asserts as an affirmative defense the protections of the ADA in an employer- initiated disability proceeding, the employee bears the burden of demonstrating that she is "otherwise qualified" and that the employer has failed to accommodate her. Dep't of Housing Preservation and Development v. Kreiner, OATH Index No. 245/94 at 11-12 (Apr. 11, 1994).

Respondent failed to meet this burden for a number of reasons. First, although chronic hypertension has been held to constitute a disability under the federal act, see Human Resources Admin. v. Hines, OATH Index No. 1069/96 (Apr. 4, 1996), the record here fails to demonstrate that hypertension was the cause of a significant portion of respondent's absences. Respondent gave this condition as an excuse for only 11 (out of 62) days of absence in 2003 and for 89 (out of 130) days in 2004. Neither side offered evidence as to the documented cause of respondent's 2005 absences. In addition, respondent's medical documentation was, at best, equivocal as to whether her hypertension required an accommodation. In his March 8, 2005 letter, Dr. Heisman wrote that respondent was able to return to her job "without restriction." His other letters indicate, at most, that a change of assignment would be desirable since it would be less stressful. This record will not support a finding that a modified duty assignment is necessary to permit respondent to perform her job or that such an assignment would alleviate respondent's high rate of absenteeism.

Second, respondent's request for a reasonable accommodation was made subsequent to most of the excessive absences with which she is charged. By the time respondent made her reasonable accommodation request in May 2005, she had already been served with disciplinary charges for unacceptably high sick leave usage in 2003 and 2004 and had already been sick for some 54 days in 2005. Thus, even assuming that respondent's proof established a failure by the Department to reasonably accommodate respondent after receiving her request, such a failure would prevent disciplinary action only upon the absences which came after the request and would have no effect upon the absences which preceded it. See Dep't of Correction v. Astacio, OATH Index No. 1715/99 (July 14, 1999), aff'd, NYC Civ. Serv. Comm'n Item No. CD 01-36-SA (Apr. 17, 2001).

Third, it would appear that the supervision of inmates is an essential function of a correction officer. As this tribunal held in Dep't of Correction v. Montero, OATH Index No. 858/94 (July 7, 1994), the Department of Correction should not be required by the ADA to assign to permanent light duty a correction officer who is incapable of supervising inmates. Such a permanent modified duty assignment is not a "reasonable accommodation" under the ADA since such an assignment would relieve the officer from an essential function of her position, the care, custody and control of inmates. Citing Henchey v. Town of North Greenbush, 831 F. Supp. 960 (N.D.N.Y. 1993).

In sum, I find that respondent's proof was insufficient to establish that she is legally entitled to a non-jail assignment as a means of addressing her chronic absenteeism. I therefore find that the charge should be sustained.

FINDINGS AND CONCLUSIONS

DR No. B0441/2004 should be sustained in that, from January 2003 thorough August 2005, respondent was excessively absent for 62 days in 2003, 130 days in 2004, and 55 days in 2005, in violation of Directive No. 2258R and Department rules 3.05.010, 3.05.120 and 3.20.030.

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. She was appointed in May 1990 and has no past disciplinary history. In addition, she received citations in 1996, 1999, and 2001. Both of these facts should mitigate the penalty here. At the same time, respondent's extremely high usage of sick leave for the last five years suggests that a more severe penalty is called for. Although from 1992 to 2000 respondent's annual sick leave usage was between 9 and 27 days, in 2001, she used 35 sick days, in 2002 24 sick days, and in 2003 64 sick days. She has also been late 17 times since 2002. The poor time-and-leave history should serve to increase the penalty.

The exceptionally high rate of absenteeism shown to have occurred here since 2003 indicates that termination is warranted. Officers found guilty of one year of lower levels of absenteeism have been consistently terminated under Directive 2258R. See Dep't of Correction v. Purcell, OATH Index No. 1336/96 (July 8, 1996), aff’d, NYC Civ. Serv. Comm’n Item No. CD97-106-SA (Nov. 21, 1997) (termination of officer pursuant to Directive 2258R for 8 occasions of sick leave totaling 90 days); Dep't of Correction v. Waddy, OATH Index No. 730/96 (June 12, 1996) (termination of officer pursuant to Directive 2258R for 10 occasions of sick leave totaling 100 days); Dep't of Correction v. Frascati, OATH Index No. 948/96 (May 14, 1996), aff’d, NYC Civ. Serv. Comm’n Item No. CD97-89-SA (Oct. 8, 1997) (termination of officer pursuant to Directive 2258R for 16 occasions of sick leave totaling 98 work days); Dep't of Correction v. Valentin, OATH Index No. 836/94 (Feb. 22, 1995) (termination of officer pursuant to Directive 2258R for 39 occasions of sick leave totaling 134 work days).

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

John B. Spooner

November 18, 2005 Administrative Law Judge

SUBMITTED TO:

MARTIN F. HORN

Commissioner

APPEARANCES:

ERIC YUEN, ESQ.

Attorney for Petitioner

KOEHLER & ISAACS, PC

Attorneys for Respondent

BY: RUDOLPH BEHRMANN, ESQ.

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