Health and Hospitals Corp

- 1 -

Health and Hospitals Corp. (Lincoln Medical and Mental HealthCenter) v. Serrano

OATH Index No. 184/08 (Oct.1, 2007), modified on penalty, Assoc. Exec. Director’s Decision (Nov. 5, 2007), appended

Hospital laborer found to have punched patient, breaking his nose. Penalty of 60 days’ suspensionrecommended. Hospital imposes penalty of termination, rejecting mitigation factors cited in ALJ’s recommendation.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

HEALTH AND HOSPITALS CORPORATION

(LINCOLN MEDICAL AND MENTAL HEALTHCENTER)

Petitioner

- against -

JOSEPH SERRANO

Respondent

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REPORT AND RECOMMENDATION

JOHN B. SPOONER, Administrative Law Judge

This is an employee disciplinary proceeding referred by petitioner, the Health and Hospitals Corporation (Lincoln Medical and MentalHealthCenter), pursuant to Rule 7:5 of its Personnel Rules and Regulations. Respondent Joseph Serrano, a laborer, is alleged to have argued with, pushed, and struck a patient.

A hearing on the charges was conducted before me on August 13, 2007. At the hearing, respondent admitted hitting a man in a hospital corridor while off duty, but insisted that he did so only to protect himself, his pregnant wife, and his eight-year-old brother. The record was left open for four days to provide respondent’s counsel an opportunity to submit a legal memorandum of law, and closed on August 17, 2007, when no submission was received.

For the reasons analyzed below, I recommend thatfive of the eight charges be sustained and that respondent besuspended for 60 days.

ANALYSIS

The seven charges here allege that respondent verbally abused, pushed, and punched a patient.[1] Respondent admitted that, on March 19, 2007, after he had just ended his shift, he struck a man in a hospital hallway. It was undisputed that the man had just been treated for a rash and asthma (see Pet. Ex. 6) and was leaving the hospital with a young boy.

Petitioner presented the testimony of two eyewitnesses. Special Officer Isaac Tirado testified that, on March 19, 2007, at around 3:30 p.m., he was stationed in a hospital corridor on the first floor near the elevators. Someone told him there was an incident around the corner. He walked down the hall to investigate and, when he turned the corner, saw a crowd of around 10 people surrounding respondent and patient RR. Respondent was using both arms to push RR away from him. Officer Tirado noticed a woman and a boy with respondent (Tr. 36), although he did not perceive that they were “in harm’s way”. Officer Tirado called for additional security assistance (Tr. 44).

In his memo book (Pet. Ex. 2), Officer Tirado noted that RR fell to the floor. RR then “came back toward” respondent and respondent punched him in the face (Tr. 12-13), causing RR to fall again to the floor (Tr. 44).

Senior Associate Director Leonard Graczyk testified that he was walking back to his office and noticed a commotion just outside his office door. He saw several hospital police officers there. As Mr. Graczyk approached, two men pushed each other and then one man punched the other. The police separated the two men (Tr. 62). Mr. Graczyk did not recall seeing RR fall (Tr. 68).

While other officers escorted respondent upstairs, Officer Tirado took RR to the emergency room. In his memo book (Pet. Ex. 2), Officer Tirado wrote that RR’s nose was “bleeding heavily.” RR refused medical attention because he said he needed to take his child back home and also he had to return to his homeless shelter or risk losing his bed (Tr. 14).

Patient Representative Lisa Scipio Lee testified that she met with RR on March 20. RR told her about the incident with respondent the day before. RR stated that, as he was walking with his son down the corridor, they were behind respondent. RR said, “This is a funeral walk.” Respondent turned and the two exchanged words. RR admitted pushing respondent and stated that respondent punched him (Tr. 74). On a complaint form (Pet. Ex.7), Ms. Lee wrote that, when respondent punched him, RR stumbled and fell to the floor. She also wrote that RR told her he “did not retaliate” during the incident.

When RR returned to the hospital, several photos (Pet. Ex. 4) were taken. The photos show a swollen nose and swelling and bruises under the patient’s eyes. According to the emergency room records (Pet. Ex. 5), RR complained about redness and swelling to his eyes and nose. The records indicate “nasal bone fx,” denoting the bone was broken.

Respondent and his fiancée Margarita Gonzalez testified that their daughter, Leilani, was delivered by Cesarean section on March 15, 2007. Ms. Gonzalez and her daughter were released from the hospital on March 19 and respondent came to take them home after he finished work. Ms. Gonzalez was in much pain and was walking very slowly. Respondent picked up his eight-year-old brother from the third floor and the three of them were walking out of the hospital. From behind, they heard RR complain, “This is not a fucking funeral” and walked past them. Respondent answered, “There’s four other entrances here. You couldchoose one” (Serrano: Tr. 100-01; Gonzalez: Tr. 86-87).

Respondent said that, after respondent’s remark, RR “turned and walked aggressively towards my fiancée,” with a “brown bag” in his hand. Respondent stepped in front of RR and asked, “What is the problem?” RR and respondent argued, with RR pointing with his fingers, “like trying to push me,” and touched respondent’s forehead. Respondent pushed RR to the floor with both hands (Tr. 102-03). RR “got up aggressively like he wanted to hit me and he swung his right hand towards me.” At this, respondent “just hit him” in the face, causing him to fall to the floor (Tr. 103).

Ms. Gonzalez insisted that, after respondent’s remark, RR turned back and “started walking towards” her. RR put his hands in respondent’s face and argued with him. RR “touched Joseph’s forehead” and respondent pushed him. RR “got back up,” “stretched” his arm, and “looked like he was going to hit him in the face.” Ms. Gonzalez insisted she could see “an object” in RR’s hand. At this point, respondent hit RR (Tr. 88-89).

Since respondent admitted punching RR, the only disputed fact is whether RR physically threatened respondent, Ms. Gonzalez, or respondent’s brother such that a punch might have been justified. See Health & Hospitals Corp. (JacobiHospitalCenter) v. Vairo, OATH Index No. 720/04, at 6-7 (Mar. 29, 2004). As to this fact, Officer Tirado confirmed only that, after being shoved to the floor, RR “came back toward” respondent, without indicating any sort of threatening gesture which might justify a punch. On the other hand, both respondent and Ms. Gonzalez contended that RR was holding some object in his hand which he would have used to injure respondent or his companions.

Respondent’s and Ms. Gonzalez’s statements as to the object in RR’s hand were not credible for a number of reasons. Notably, there was no evidence that any weapons or other objects were observed by the hospital police or found in RR’s hand at the time of the incident, when RR was escorted out of the corridor.

At the timethey were interviewed minutes after the incident, neither respondent nor Ms. Gonzalez reported seeing RR attempt to hit respondent or any weapon in RR’s hand. In his first written statement, submitted at the time of his interview, respondent wrote only that RR “moved towards me and I felt threatened so I hit him.” In a second statement (Resp. Ex. B) submitted several days later, respondent wrote that RR walked “aggressively” toward respondent with “something in his hand.” RR “smelled like he consumed a lot of beer.” Respondent wrote that he “defended my family the only way that I could considering the situation” and apologized “for any and all inconveniences that this matter has caused.”

Ms. Gonzalez’s testimony and written statement (Resp. Ex. A), submitted the following day, seemed equally implausible. In the statement, Ms. Gonzalez wrote that RR had a razor. At the hearing, she indicated that the object “looked like a razor” even though it was in a paper bag. She stated that she did not tell the police about seeing the object because she did not want respondent’s brother “in the middle of that” and none of the officers asked her any questions (Tr. 98). Neither explanation for her silence on this fact was satisfactory and confirmed my belief that respondent and Ms. Gonzalez concocted the observation of a weapon and, in respondent’s case, the odor of beer to save respondent’s job.

I therefore find as follows. As respondent was escorting Ms. Gonzalez down the hospital corridor very slowly due to Ms. Gonzalez’s condition, RR came up behind them and said, “This is not a fucking funeral” and hurried past. Respondent retorted, “There are four other entrances here. You choose one.” RR turned back and came up to respondent, touching him. Respondent pushed him to the floor. When he got up and stepped again toward respondent, respondent punched him in the face, injuring RR’s nose and causing it to bleed.

Although this incident occurred while respondent was technically off duty, the encounter happened only minutes after respondent signed out and in a hospital corridor while respondent was leaving the building. There can be no question that this establishes a nexus to respondent’s employment, sufficient to make him subject to disciplinary penalties where his actions establish violation of workplace rules.

I can see little basis to find that respondent’s remark or his push of RR constituted misconduct. I found it plausible that RR complained profanely about the slow pace Ms. Gonzalez was walking. Under the circumstances, where respondent was off duty and was himself trying to assist his fiancée who was a hospital patient, I did not find that respondent’s remark, simply suggesting that RR take another exit, was abusive or even unreasonably discourteous. I also found it plausible that RR touched respondent first while protesting the remark and therefore found that respondent’s push of RR was an appropriate response to prevent an escalated altercation. For these reasons, specifications 1 and 2 must be dismissed.

I found, however, that respondent’s punch of RR in the face was not justified by the fact that RR got back up to his feet and made a step in respondent’s direction. Under these circumstances, an employee has a duty to avoid a fight,and only if there is no reasonable way to avoid a fight is self-defense a complete justification (as opposed to a mitigation of penalty) for participating in the fight. Health and Hospitals Corp.(Woodhull Medical and MentalHealthCenter) v. Elter, OATH Index No. 519/96, at 7 (Jan. 11, 1996), citing Dep’t of Correction v. Siddall, OATH Index No. 617/91, at 12-14 (Apr. 10, 1991); Human Resources Admin. v. Peele, OATH Index No. 468/90, at 5 (Dec. 14, 1989). Avoiding the fight would have been particularly simple here, where there were hospital police already on the scene. Moreover, where an employee receives nothing but a push, this contact does not justifyan immediatepunch to the face, such as occurred here. See Human Resources Admin. v. Harris, OATH Index No. 484/92, at 14 (June 17, 1992). The facts here suggest that respondent’s punch was not to protect either himself or his two companions but rather to retaliate for the rude words and the push. Hence, the punch to RR’s face, breaking his nose and causing it to bleed, constituted misconduct. Specifications 3, 4, 5, 6, and 8 must be sustained.

FINDINGS AND CONCLUSIONS

1.Specification 1 must be dismissed in that petitioner failed to prove by a preponderance of the evidence that respondent verbally abused patient RR.

2.Specification 2 must be dismissed in that petitioner failed to prove by a preponderance of the evidence that respondent used excessive force in pushing patient RR.

3. Specifications3, 4, 5, 6, and 8 should be sustained in that, on March 19, 2007, respondent punched patient RR in the face without justification, breaking his nose, in violation of hospital rules.

RECOMMENDATION

Upon making the above findings, I requested and received a summary of respondent’s personnel history. He was appointed in 2001 and has been disciplined twice. In 2003, he was suspended for 20 days for having a verbal altercation with a supervisor. In 2005, he was suspended 5 days for being absent without leave and for falsifying documents. His evaluations have all been satisfactory. These two prior disciplinary penalties warrant providing a heavier penalty here.

Petitioner has requested that respondent be terminated for striking and injuring patient RR. Given the previous disciplinary suspension penalties given to respondent for somewhat similar infractions, there is reason to terminate respondent from his position. There can be little question that deliberately causing injury to a patient is one of the worst things a hospital staff member can do.

However, I find that a number of factors warrant mitigating the penalty. It was undisputed that the incident here occurred while respondent was off-duty. Moreover, respondent was a laborer with no responsibilities regarding patient care. Respondent’s actionswere provoked by a rude remark by patient RR about how slow respondent’s wife was moving. RR also escalated the confrontation by coming into contact with respondent’s face. Respondent was escorting both his wife, who had recently given birth, and his eight-year-old brother and was acting in part out of a desire to protect both of them. Finally, although the proof was vague, there was some indication that the patient had a psychiatric history which might have increased his combativeness. These factors suggest to me that respondent should not be terminated and should be given one further chance to preserve his employment. See Human Resources Admin. v. Harris, OATH Index No. 484/92 (June 17, 1992)(60-day suspension for office aide who struck co-worker in the head and face); See Dep't of Correction v. Simmons, OATH Index No. 1352/01 (Sept. 5, 2001), aff'd, Comm'r Dec. (Oct. 31, 2001), modified, NYC Civ. Serv. Comm'n Item No. CD 03-43-M (Apr. 12, 2003) (suspension reduced from 40 to 15 days where officer, who had an unblemished 11-year career, struck an especially difficult inmate in the head);Dep’t of Correction v. Andrews, OATH Index No. 296/90, at 15-16 (Apr. 17, 1990) (officer’s use of force was mitigated by inmate’s provocation). He should be on notice, however, that any further misconduct may result in his termination.

Accordingly, considering the multiple mitigating factors, I recommend that respondent be suspended for 60 days for striking patient RR.

John B. Spooner

Administrative Law Judge

October 1, 2007

SUBMITTED TO:

JOSE R. SANCHEZ

Executive Director

APPEARANCES:

RODNEY BROWN

ANDREW HODES, ESQ.

Representatives for Petitioner

LEONARD A. SHRIER, ESQ.

Attorneyfor Respondent

Assoc. Exec. Director’s Decision, November 5, 2007

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THE CITY OF NEW YORK

HEALTH AND HOSPITALS CORPORATION

LINCOLN MEDICAL AND MENTAL HEALTHCENTER

Petitioner

- Against -

JOSEPH SERRANO

Respondent

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HERMAN D. SMITH, Associate Executive Director

DECISION

I am in receipt of Judge John B. Spooner’s Report and Recommendationregarding Respondent’s, Joseph Serrano, Administrative Hearing. I have the reviewed the entire record and counsel’s letter pursuant to Fogel v. Board of Education. While I am in agreement with Judge Spooner’s recommendation sustaining the disciplinary charge of gross misconduct and specifications, I disagree with his recommended penalty. Therefore, after careful consideration, the sixty day suspension without pay, recommended by Judge Spooner, is modified to termination for the reasons set forthbelow.

At the hearing held on August 13, 2007, Respondent admitted to striking ahospital patient in the face, breaking his nose. All HHC employees are forbidden to engage in fights or any other form of boisterous or disorderly conduct while on Corporation property. Respondent’s actions on March 19, 2007, violate this requirement. The only justifiable reason for striking a person would be self-defense. However, the facts in this case do not support any claim that his acts constituted justifiable self-defense. Judge Spooner, in sustaining the charges, found that his acts constituted misconduct, thus dismissing any claim of self-defense. Moreover, Judge Spooner stated that the facts suggested that Respondent’s punch was not to protect his family, “but rather to retaliate for the rude words and the push.” A claim of self-defense requires that there be no other options but to engage in such action. Counsel’s letter admits that Respondent “should have done more to retreat.” While the letter attempts to modify his actions by alleging that there was a “second attack” by the patient, the record does not support that statement. Clearly, the facts of the case demonstrate that Respondent’s actions were not justified, and therefore not self-defense. Since the act of striking the patient was without a justifiable basis, such actions must result in the termination of his employment.

Respondent’s misconduct was exacerbated by his improper attempt to justify his action by falsely claiming that the patient had a knife in his hand during the incident. Judge Spooner found the testimony and letters which alleged that the patient had a knife in his hand not credible and characterized the story as concocted. The fact that Respondent concocted a story, and enlisted the help of his fiancé,[2] casts doubt as to the veracity of his and his fiancé’s remaining testimony. Concocting this story further demonstrates that termination is the appropriate penalty.

One of Judge Spooner’s reasons for mitigating the penalty to less than termination was that the action occurred when Respondent was off-duty. However, this reasoning is not correct in a hospital setting. Despite the off-duty status, the incident occurred on hospital property and involved a hospital patient. Furthermore, Judge Spooner found a nexus between Respondent’s actions in this incident and his employment with the hospital. Thus, the off-duty status does not mitigate the penalty.

In addition, the fact that Respondent is not directly responsible for patient care does not mitigatethe penalty. As a hospital employee who works on hospital premises, his responsibilities require him to perform his duties throughout the hospital, including patient care areas, both in-patient and out-patient. His presence in the hospital would inevitably result in being in close proximity or contact with both patients and visitors throughout the hospital. Moreover, it is incumbent upon all hospital employees to act in a professional and courteous manner at all times. Hospital employees are held to a higher standard of care than other employees. Respondent’s actions demonstrate his inability to maintain this standard of care in a hospital setting.