1
Health & Hospitals Corp. (Coney Island Hospital)
v. Thomas
OATH Index No. 1999/06 (Aug. 31, 2006)
Hospital cook guilty of smoking in employee locker room. ALJ recommends two-day suspension.
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NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
HEALTH AND HOSPITALS CORPORATION
(CONEY ISLAND HOSPITAL)
Petitioner
- against -
GARY THOMAS
Respondent
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REPORT AND RECOMMENDATION
TYNIA D. RICHARD, Administrative Law Judge
EXCERPTED FROM TRANSCRIPT OF PROCEEDINGS HELD ON AUGUST 1, 2006
ALJ RICHARD: All right. I think I’m just going to go ahead and rule from the bench, as follows.
I have listened to the testimony of the three witnesses, and I am convinced that the hospital has met its burden of proving that the Respondent was found smoking in the hospital locker room. Officer Dixon, who testified briefly and directly, testified that he entered the locker room and found both the Respondent and his co-worker smoking, and he wrote them each a summons. There was nothing that I could find in his demeanor, or in the other evidence, to suggest that he had any motive for falsifying his testimony. Respondent contends that there was pressure on this officer to write ticketsbecause a complaint of smoking had been lodged earlier that day. Respondent contends that the officer was under pressure to write summonses, which he suggests is a motive for the officer to issue the ticket without grounds, but the fact that there had been a complaint earlier in the day does not create a motive to write a summons on someone who was not smoking. There was no basis to believe that there was a quota. Moreover, there was nothing in Officer Dixon’s testimony that indicated he felt any such pressure.
I also found the testimony of Respondent’s witness to be equivocal. Mr. Heft noted it, and I noted it also. Mr. Mapp was equivocal in his testimony about what happened that day. He stated both that he did not “recall” smelling smoke and that respondent was not smoking “at that moment.” I wrotehis words in quotation marks in my own notes. It seemed to me that there was something preventing Mr. Mapp from denying fully and completely that respondent was smoking,so I did not credit his testimony.
In addition, both Respondent and Mr. Mapp testified that they had a conversation with Officer Dixon in which he indicated that he could not give them a “chance.” If in fact he said that, what that would indicate is not that he was falsely accusing them, but that they had in fact done something wrong and he couldnot let it go unnoted. He could not let them get away with it without writing them a ticket. So that testimony did not correspond with Respondent’s contention at all. Therefore, Ifind Officer Dixon’s testimony to be credible,and that it is sufficient to sustain the hospital’s burden of proof. Accordingly, I find that Respondent was smoking and that his smoking constitutes misconduct. I will make a penalty recommendation upon receipt of Respondent’s disciplinary record,and will send it out with the record of the trial. So if you could send that to me, Mr. Heft?
MR. HEFT: Okay.
ALJ RICHARD: I don’t know if you have, do you have it with you the disciplinary?
MR. HEFT: No, I’ll just send it to you next week.
ALJ RICHARD: Okay.
MR. HEFT: And I’ll send a copy to the attorney obviously. Or do I send a copy of the record to the attorney?
ALJ RICHARD: I don’t know how you normally do that. I know I need to receive it in order to make a penalty recommendation. So whatever synopsis of the record, the disciplinary record that you normally provide.
MR. HEFT: Yeah, I’ll send it out next week.
ALJ RICHARD: Okay. All right, anything further?
MR. HEFT: No.
ALJ RICHARD: Okay, thank you.
RECOMMENDATION
Upon making the above findings and conclusions, I obtained and reviewed a copy of respondent's personnel record provided to me by the hospital.
Respondent is a 13-year employee of the hospital, who works as a cook. He has no prior formal discipline; however, in 1999, he was accused of smoking in the employee locker room. Although the charge was dismissed after the Step 1A hearing, he was issued a warning that stated that the hospital is a smoke free environment and employees who smoke will be subject to discipline.
In this case, Mr. Thomas has been found guilty of smoking in the men’s locker room in violation of hospital rules and regulations. In light of his lack of prior formal discipline and the fact that his smoking did not take place in a location accessible to patients, the penalty should be minor. However, since he has received a prior warning for this very conduct, I recommend a two-day suspension, which should be sufficient to deter respondent from any such future misconduct.
Tynia D. Richard
Administrative Law Judge
August 31, 2006
SUBMITTED TO:
WILLIAM P. WALSH
Executive Director
APPEARANCES:
JAMES B. HEFT, ESQ.
Attorney for Petitioner
AYANA M. BROOKS, ESQ.
Attorneys for Respondent