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Health and Hospitals Corp. (Woodhull Medical and Mental Health Center) v. Powell

OATH Index No. 1688/06 (July 7, 2006)

Housekeeping aide admitted altering doctor's note and leaving work area to sleep. ALJ also sustained four other charges that the aide was absent and failed to call in as required. Penalty of termination recommended.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

HEALTH AND HOSPITALS CORPORATION

(WOODHULL MEDICAL and MENTAL HEALTH CENTER)

Petitioner

- against -

MICHAEL POWELL

Respondent

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REPORT AND RECOMMENDATION

JOHN B. SPOONER, Administrative Law Judge

This disciplinary proceeding was referred to me pursuant to section 7.5 of the Personnel Rules and Regulations of the Health and Hospitals Corporation. Petitioner, the Health and Hospitals Corporation, Woodhull Medical and Mental Health Center, charged respondent Michael Powell, a housekeeping aide, with leaving his assigned area, falsely reporting an absence, and altering and submitting a fraudulent doctor's note.

A hearing on the charges was conducted before me on May 5, 2006. Petitioner called one supervisor who described respondent's absences and submission of an altered doctor's note. Respondent admitted being absent and having altered the note, although he insisted that he always called the workplace on the days he was absent. He also indicated that his absences were due to his alcoholism, for which he is currently in treatment.

For the reasons provided below, I recommend that the charges be sustained and respondent be terminated.

ANALYSIS

The charges here concern respondent's absence from his assigned work area for two hours, three absences when he allegedly failed to call in, and the submission of an altered doctor's note. Very few facts concerning these charges were disputed, since respondent admitted all of the charges except the failure to call in.

Charges I and II allege that, on January 13, 2006, at 10:00 p.m., respondent left his assigned area for two hours without notifying his supervisor. As to these charges, respondent testified that, on January 13, 2006, he was working a double shift, from 8:00 a.m. to midnight. At some point around 10:00 p.m., he was feeling tired and sat down on the sofa in the community room. He fell asleep and did not awaken until around 12:20 a.m., when he called a hospital security officer to report that he would be leaving the building. Respondent' supervisor, Assistant Director Gil Vega, testified that he searched for respondent starting at around 9:50 p.m. and continuing until midnight and could not locate him (Tr. 35-36, 43-44).

This evidence establishes that respondent was absent from his assigned work area from approximately 10:00 p.m. until 12:00 a.m. and charges I and II should be sustained.

The alteration of the doctor's note was also not disputed. Respondent was absent from January 18 through 26, 2006. Upon respondent's return to work, his supervisor requested a doctor's note for these absences. Respondent submitted a note (Pet. Ex. 1) from a Dr. Huang indicating that respondent had "bronchial asthma" from January 18 to 26, 2006, and could return to work on January 27, 2006. When Mr. Vega received this note, he observed that the dates appeared to have been erased and overwritten. He contacted the doctor, who faxed a message (Pet. Ex. 2) indicating that he had not authorized the sick leave note (Tr. 14-15).

Respondent stated that, when Mr. Vega requested a doctor's note for his absence, he felt he was being "pressured" and, in a panic, changed the dates on a doctor's note for a previous absence. He stated that this was the "dumbest thing" he has ever done and that he was very sorry (Tr. 38).

I therefore find that respondent altered the doctor's note with different dates and submitted it to his supervisor, falsely indicating that it had been entirely written by the doctor. Charges VII and VIII should be sustained.

Charges IV, V, X, and XI allege that respondent failed to report his absences on January 19 and 20 and February 8 and 9. As to the absences, Mr. Vega stated that respondent was absent and failed to call on all four days. Mr. Vega testified that the hospital uses a dedicated sick call-in line where staff can leave voice messages when they call in sick. This line is monitored throughout the day. On all of the charged days, Mr. Vega indicated that neither the call-in line nor respondent's supervisor, Alexis Geraldo, received any calls from respondent (Tr. 24-25, 27-28).

Respondent insisted that, on all four dates, he called Mr. Geraldo on his cell phone and reported that he would not be in. He insisted that he preferred not to use the voice line because there was "no proof" of his call. He was never told that calling a supervisor's cell phone was not permitted (Tr. 37-38).

I found respondent generally credible. His admission as to the facts alleged in most of the charges, particularly the falsification of the doctor's note, displayed a remarkable degree of sincerity. Of course, the candor displayed by his admissions of guilt were undermined by the act of altering and submitting a doctor's note in an effort to deceive his employer. In addition, respondent possessed a compelling interest in the outcome of the proceedings, which would determine his ability to retain his job.

Mr. Vega was also credible and, unlike respondent, had no reason to tailor his testimony with regard to the issue of whether respondent called in as required. I therefore credited the testimony of Mr. Vega over the uncorroborated testimony of respondent and find that respondent did not call in as required. Charges IV, V, X and XI should be sustained.

Charges III and VI allege that respondent "falsely" reported his absences for January 18, 23, and 27, 2006, the dates covered by the altered doctor's note. Charge IX alleges that, on January 27, 2006, respondent submitted a sick leave form "under false pretenses." Petitioner apparently rested these charges upon the proof regarding the altered doctor's note since no proof was submitted going to any of the additional dates. Petitioner also did not offer a copy of the form which respondent allegedly falsified, precluding a meaningful assessment of his guilt of this charge. While the alteration of doctor's note unquestionably displays an effort to deceive the hospital as to whether he visited a doctor for his illness, it does not prove that respondent was not, in fact, ill. In the absence of proof going to these additional allegations of falsity, I find that petitioner has failed to meet its burden and that these four charges should be dismissed.

FINDINGS AND CONCLUSIONS

1. Charges I and II should be sustained in that, on January 13, 2006, at 10:00 p.m., respondent left his assigned work area without permission or authorization in violation of Employee Handbook sections B (4) and A (5).

2. Charges VII and VIII should be sustained in that, on January 27, 2006, respondent submitted an altered doctor's note in order to procure approval for use of sick leave, in violation of Employee Handbook sections E (8), D (1), and A (4).

3. Charges IV, V, X, and XI should be sustained in that, on January 19 and 20 and February 8 and 9, 2006, respondent was absent and failed to call in as required, in violation of Employee Handbook section A (5).

4. Charges III, VI, and XI should be dismissed in that petitioner failed to prove by a preponderance of the credible evidence that respondent violated Employee Handbook section D (1) and A (4).

RECOMMENDATION

Upon making the above findings, I requested and received a personnel history on respondent's employment with the hospital. He was appointed to his position in 1993 and, so far as the records submitted indicate, has no formal disciplinary record. While no documentation of prior disciplinary penalties was offered by petitioner, respondent’s employment record establishes that he has been counseled several times for excessive absence, excessive lateness, and insubordination.

During the hearing, respondent confessed that he altered the doctor’s note and expressed remorse for doing so. Such a candid admission of wrongdoing is admirable and worthy of considerable recognition. He also indicated that he suffers from alcoholism and a bipolar disorder. He offered a February 28, 2006 letter (Resp. Ex. A) from Dr. Antal Borbely, a psychiatrist. In this letter, Dr. Borbely states that he evaluated respondent on February 28, 2006, and concluded that he has "an undiagnosed Bipolar Disorder with alcohol dependence." He stated that the bipolar condition caused "reduced judgment and impulsivity" and would account for the forgery of the doctor's note. He recommended "psychiatric treatment with detoxification and rehabilitation and treatment with mood stabilizers." Respondent stated that he has been participating in an outpatient detoxification treatment program since February 27, 2006. He has not used alcohol since that time. He is also taking medication to control his bipolar problem and feels able to work (Tr. 42-43). Certainly, the evidence of respondent’s psychological problems and alcohol addiction provide some basis for mitigating the penalty.

Were it not for the alteration of the doctor’s note, respondent’s tenure, lack of a prior disciplinary penalty, and various disabilities would suggest a relatively minor penalty for the various absences and time-and-leave violations found to have occurred here. However, respondent’s act of falsifying the doctor’s note is an egregious act of dishonesty for which a much more severe penalty is called for. In fact, past cases demonstrate that civil servants who attempt to procure a financial benefit by submitting fraudulent medical documents should be terminated. See Admin. for Children's Services v. Brown, OATH Index No. 1701/02 (Dec. 13, 2002) (termination for clerical associate with no prior disciplinary record who fabricated a doctor's note in order to procure sick leave); 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 the submission of a fraudulent medical note to cover a ten-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 disciplinary record terminated for submission of three false medical notes covering a thirteen-day absence); Transit Auth. v. Walden, OATH Index No. 613/95 (Dec. 7, 1994) (termination for office aide who knowingly submitted a leave application which contained an altered doctor's certification improperly extending her period of incapacity); Human Resources Admin. v. Rivera, OATH Index No. 219/94 (Nov. 24, 1993) (termination of employee who submitted a fraudulent medical note to document a three-week leave of absence).

I can find no reason to depart from the rule embodied in these past cases. As previously observed by myself and other judges, the deceit displayed by submitting an altered medical note is incompatible with continuing to serve as a public employee of any kind. Neither respondent’s contrition nor his alcohol and psychological problems provide sufficient reason to reach a different conclusion in this case.


Accordingly, I recommend that respondent be terminated for the misconduct found to have occurred here.

John B. Spooner

Administrative Law Judge

July 7, 2006

SUBMITTED TO:

IRIS R. JIMINEZ HERNANDEZ

Executive Director/Senior Vice President

APPEARANCES:

PEDRO RIVERA, ESQ.

Attorney for Petitioner

CARY, KANE LLP

Attorneys for Respondent

BY: WALTER KANE, ESQ.