Report and Recommendation, April 16, 1997

Transcription

1 Health and Hospitals Corp. v. Doxen, OATH Index No. 630/97 (Apr. 16, 1997), modified on penalty, HHC Personnel Rev. Bd. Dec. No. 903 (May 19, 1998), appended. Summary: Respondent, an associate respiratory therapist, was found guilty of leaving her work area and the hospital for a period of time notifying anyone, obtaining permission or arranging for proper patient coverage. Testimony of supervisor, who saw her outside the hospital at a time when she should have been in her work area and to whom respondent made a partial admission to later, was credible and respondent declined to testify to establish otherwise. Hospital sought fifteen-day suspension, but ALJ upped the penalty to a forty-five day suspension, in light of prior discipline for same act six months before which resulted in fifteen workday suspension, poor recent performance evaluations at work, and the critical nature of respondent s duties as a respiratory therapist. While this one infraction might be considered minor for any other employee, it was very serious given respondent s responsibilities. Respondent had five patients to monitor and provide periodic treatment to on the day in issue, including one on life support. By leaving, even momentarily, without telling anyone or arranging for proper coverage for her patients, respondent put their health and safety at serious risk. Personnel Review Board modified penalty to 13 days. Report and Recommendation, April 16, 1997 RAYMOND E. KRAMER, Administrative Law Judge This is an employee disciplinary proceeding referred by the petitioner, the Jacobi Medical Center/North Central Bronx Hospital, pursuant to Rule 7:5 of the Personnel Rules and Regulations of the New York City Health and Hospitals Corporation. Respondent, a senior associate respiratory therapist, is charged with being away from her assigned work location without permission, on one occasion (see ALJ Ex. 1). At a hearing conducted before me on March 19, 1997, the hospital presented two supervisors as witnesses. Respondent rested without testifying or presenting any witnesses or evidence. For the reasons stated below, I find respondent guilty as charged, and I recommend that she be suspended from work without pay for a period of forty-five (45) days. ANALYSIS Respondent is a senior associate respiratory therapist at Jacobi Medical Center/North Bronx Central Hospital. As such, she is responsible for directly providing, monitoring and documenting respiratory treatment given to hospital patients, as assigned.

2 Herbert Hodge, the Associate Director of Respiratory Therapy at the hospital, testified that in early 1994, he became aware of a widespread practice amongst the respiratory therapists and staff of leaving their assigned work locations and/or the hospital building for various reasons, without notifying anyone and without ensuring proper coverage for their assigned patients. As a result, he directed that a memorandum be issued to all employees, which was issued on March 8, 1994, under the signature of John Howard, a coordinating manager, prohibiting any member of the respiratory staff from leaving the hospital building during specified work hours, which were all assigned work hours other than a scheduled lunch break, without first notifying a manager and obtaining permission. The memo further warned that leaving the building without permission during work hours constituted abandonment of the work site and abandonment of patients, and would result in disciplinary action. Although the incidents of unauthorized departures thereafter decreased, Mr. Hodge was aware that there continued to be a problem. Since the first memo only specifically banned departures from the building, a problem continued with therapists and staff leaving their assigned work areas without permission, although not actually leaving the building. To remedy that problem, Mr. Hodge himself issued a second memorandum, dated September 26, 1994, clarifying the first, by specifying that all respiratory care practitioners were required to remain in their assigned work areas throughout their entire shift and were not to leave their assigned work areas without first notifying a manager, or a senior therapist in the manager s absence, and obtaining permission to leave and after making sure that their patients were properly covered. In explaining the reason for implementing this policy, Mr. Hodge stressed the critical nature of the duties performed by respiratory therapists and the serious risks presented to their patients when proper coverage is not maintained. Respiratory therapists provide direct patient care to patients with a variety of respiratory ailments. They monitor patients on ventilators, administer bronchial dilated therapy for patients with asthma and other respiratory problems, and monitor patients on oxygen therapy. They are also part of the critical care team, and are responsible to respond promptly to medical emergencies such as cardiac arrest or respiratory failure anywhere in the hospital. In such circumstances, Mr. Hodge explained, it is critically important for the hospital to know that the therapists are in their assigned work areas at all times, and that if they have to leave, that proper coverage has been arranged for their patients while they are away. Mr. Hodge testified that both memos were published as per routine procedures, by being discussed at various staff meetings, placed in a memo book which staff was required to read, and having each individual employee sign an attached sheet to acknowledge that they read the memos. Respondent s initials appear on the sheets attached to both memos, acknowledging her receipt and reading of the memos (Pet. Exs. 2 and 3; Tr ). On July 28, 1995, respondent was working a 7:00 a.m. to 7:40 p.m. tour of duty. Her assigned work area was the 9th Floor, A and B wings, the 10th Floor A wing, and the 11th and 12th floors. More specifically, she was assigned to cover five patients within her work area, one who was on a ventilator or life support system, and four who required periodic bronchial dilated treatment and their vital signs regularly monitored (Pet. Exs. 4 and 5). Respondent, as do all therapists, wears a beeper so that she can respond to emergency situations as required. Jacqueline Hurtado, a Coordinating Manager for the Respiratory Department, was the supervisor on duty that day. Ms. Hurtado testified that at 3:55 p.m. that afternoon, she was outside, on Dekalb and Gun Hill Roads, walking toward the hospital, when she spotted respondent. Respondent was in her

3 uniform and had her beeper and clipboard, and was across the street, walking in the opposite direction toward Jerome Avenue and away from the hospital. Ms. Hurtado estimated that she observed respondent from about twenty feet away, but had a full front view of her, since the two women were proceeding in opposite directions, although on opposite sides of the street. Ms. Hurtado had worked with respondent on a daily basis for two years up to that time, and she was unequivocal that it was indeed respondent whom she saw. Ms. Hurtado, as the Coordinating Manager, knew that respondent was not on a scheduled lunch break at that time, and also that she did not have Ms. Hurtado s permission to be outside the building. Ms. Hurtado did not call out to or confront respondent, but instead went back to the hospital and called the four other respiratory therapists on duty, including the most senior therapist, to determine if respondent had mentioned to any of them that she was leaving her work area (Tr ). Ms. Hurtado testified that while the memos require a therapist to contact the manager before departing, if the manager is not available, respondent would be expected to at least tell another therapist that she was leaving and to make sure that her patients were properly covered. The four other therapists all told Ms. Hurtado that they were unaware that respondent had left the building and that she had not contacted any of them to say that she was leaving (Tr ). Thereafter, at about 4:30 p.m., Ms. Hurtado paged respondent, who answered, and asked respondent to come to her office, which is located in the basement. When respondent arrived, Ms. Hurtado told her that she had seen respondent outside the building at 3:55 p.m., and that none of the other therapists knew that she was gone. Respondent acknowledged that she left the building, but claimed that she only went outside for a brief smoking break, which she took while standing next to the hotdog stand located between Dekalb Street and Kossuth Avenue. According to Ms. Hurtado, the hot dog stand is nowhere near where Ms. Hurtado spotted respondent. Ms. Hurtado then told respondent that she would have to write her up. Ms. Hurtado later verbally notified Mr. Hodge of the incident, and then, almost a month later, wrote a report of the incident and sent it to Labor Relations so that disciplinary charges could be drafted. Respondent chose not to testify in this proceeding and presented no other testimony or evidence. Thus, the above facts are uncontroverted. Respondent s counsel tried to attack Ms. Hurtado s and Mr. Hodge s credibility by having them concede that they were generally aware that respondent had filed a discrimination and/or harassment complaint pertaining to her work conditions, in which they were named respondents and which may still be pending. Respondent s counsel suggested that the complaint might be a motive for Ms. Hurtado to fabricate the pending charge against her client, and indeed, that the entire proceeding was likely a collaborative retaliatory effort on the part of both Ms. Hurtado and Mr. Hodge. I was not at all persuaded. It was not clear from the testimony whether the latter were even aware of the harassment complaint before the pending incident occurred, and, as to Mr. Hodge, his credibility was not really an issue, since he had no direct knowledge of respondent s unauthorized absence on the date in question and only provided background testimony. As to Ms. Hurtado, she testified in a straightforward, consistent, sincere manner, and I found her entirely credible as to her unequivocal observations of respondent on the street on July 28, 1995, and her recounting of her subsequent conversation with respondent, in which the latter admitted being outside the building without permission. Respondent did not testify and thus did not deny that she was outside the building as alleged. Nor did she claim, or produce any other witness to claim, that she had been given permission to leave the building, that she had arranged proper coverage for her patients, or even that she had notified anyone that she had left. Rather, I credited Ms. Hurtado s testimony that the four other

4 therapists on duty at that time all told her that respondent never mentioned to them that she was going out, nor had any idea that she had left. In the circumstances, the hospital clearly established by the evidence submitted that respondent left the hospital for a period of time on the afternoon of July 28, 1995, without notification or permission. I find her guilty as charged. FINDINGS AND CONCLUSIONS 1. On July 28, 1995, respondent left her assigned work area and was outside the hospital building for a period of time, without authorization. THEREFORE: I find respondent, Francine Doxen, guilty as charged. RECOMMENDATION Upon making the above findings and conclusions, I obtained and reviewed excerpts from respondent s personnel file, as provided to me by the hospital. Those materials revealed that respondent was appointed to her position as a respiratory therapist on January 29, 1990, and was promoted to her current position of associate respiratory therapist on June 6, 1993, a position which is considered the most advanced level of therapist on staff (Tr. 10). She has a New York State registration as a respiratory therapist, and holds a certificate allowing her to perform emergency endotracheal intubation. Respondent s personnel file also revealed an employee whose overall work performance in recent years has been in serious decline. Respondent has been disciplined once previously for various acts of misconduct. That prior matter involved charges that respondent was outside the hospital facility during her work hours, without permission, on November 5, 1994, in violation of the same two memos discussed herein, left work early without permission on December 14, 1994, thereby abandoning her post and patients, and was twice insubordinate, first when she refused to administer treatment to a patient on December 28, 1994, and second, when she refused to report to a meeting as directed, on December 29, All of these charges were sustained at a Step 1-A hearing held on January 13, 1995, despite respondent s participation and denial of any misconduct. The Step 1-A hearing officer, noting respondent s recent less than satisfactory performance evaluations and chronic absenteeism, recommended a penalty of a thirty-workday suspension without pay. Respondent appealed, but failed to appear for her Step II hearing and the recommended penalty was affirmed. Respondent then appealed to a Step III hearing, at which the findings were sustained but the hearing officer, noting that respondent had already served a nine-workday pre-hearing suspension, modified the thirty day penalty to a six-workday suspension. In total then, respondent received a fifteen-workday suspension for the charges noted above. However, implementation of that penalty has been delayed by agreement with the hospital, while the respondent appeals the decision in arbitration.

5 As for her performance evaluations, respondent received a satisfactory rating in her first annual evaluation, for , although there was a notation that her attendance and punctuality needed to improve. Respondent subsequently received satisfactory ratings in her , and evaluations, but in , her rating on her performance evaluation slipped to needs improvement. Ms. Hurtado, who was the evaluating supervisor for that evaluation, noted as a justification for the lower rating, among other things, that respondent failed to maintain proper documentation of patient treatment in accordance with hospital procedures, was negligent in patient care on several occasions, was continuously late and excessively absent, and was defensive when her judgment was questioned. It was planned to have respondent participate in various in-service training sessions in the months that followed to help her sharpen her skills. Respondent refused to sign the evaluation, and instead submitted a written rebuttal statement, in which she denied poor performance, explained her excessive absence as the result of her diabetes and bronchitis, and suggested that the poor evaluation was the result of bias on the part of Ms. Hurtado and Mr. Hodge, who also signed off on it. Because her evaluation was less than satisfactory, respondent received two interim evaluations over the next year, for the periods February 1994 through October 1994, and October 1994 through January On both interim evaluations her performance was rated as unsatisfactory, despite her participation in in-service training sessions. Critical comments in those evaluations noted that respondent was excessively absent and constantly late without proper notification, failed to properly document patient treatment, demonstrated poor judgment in patient management, spent too much work time on personal business, was discourteous and disrespectful to patients and not considerate of their needs, and was defensive and refused to listen to management. It was during the second interim period that her prior disciplinary charges were filed. Respondent refused to sign either interim evaluation and instead submitted written rebuttal statements in which she claimed that she was being harassed and discriminated against by Ms. Hurtado and Mr. Hodge, and was the victim of a conspiracy. In the second rebuttal statement, she acknowledged that her lateness was a problem because she had been very ill, and claimed that Mr. Hodge refused to accommodate her by returning her to the night tour. At the end of the year, her annual performance evaluation for again rated her as needs improvement, noting her poor judgment in patient management, that she spent too much time on personal business, had poor response time to stat calls, was especially argumentative with management, had not grasped the concept of teamwork, and was excessively late without proper notification. No more recent evaluation was available. A 1994 clinical evaluation of respondent by Ms. Hurtado rated her as competent. In this proceeding, respondent has been found guilty of one instance of being away from her assigned work area without authorization. While that might be a minor infraction for any other employee, for a respiratory therapist like respondent, who was responsible for five patients with respiratory ailments, including one on life support, respondent s unauthorized absence could conceivably have been a matter of life or death. Mr. Hodge made clear the critical nature of the therapists duties and the potential for harm that might arise from an unauthorized absence from the workplace. To leave the area without telling anyone, and without arranging for proper coverage while she was gone, was an inexcusable neglect by respondent of her patients that posed a serious potential risk to their welfare. Fortunately, there were no adverse consequences to respondent s actions on this occasion, but little else may be said in the way of mitigating this offense. Respondent provided no explanation at trial for her absence. While it was unclear how long she was away, it was ultimately irrelevant, since a crisis or emergency

6 could have arisen even if she had slipped out of the building for a few moments for a smoke, as she told Ms. Hurtado she had done. Moreover, this was the second time that respondent had violated the rules about not leaving the hospital or her assigned work area without notifying anyone or requesting permission. Having already been the subject of disciplinary charges for this type of infraction just six months before, and having had a substantial suspension from work without pay recommended as a result, there is no way to view this second offense as anything other than a deliberate and intentional flaunting of the rules at the risk of her patients health and safety. The hospital has an interest not only in disciplining respondent for her wilful failure to follow procedures and to obtain permission to leave her work area on this one occasion, but, particularly in light of Mr. Hodge s testimony that this type of unauthorized departure has posed a problem for the hospital in the past, in deterring such misconduct by respondent and other members of the respiratory staff in the future. Thus, the penalty here should reflect both the seriousness of the offense and the need to make it unquestionably clear to others that the hospital does indeed regard such unauthorized absence as a very serious offense. Petitioner asserted that a fifteen-day suspension from work without pay would be an appropriate penalty here. I was not at all persuaded that such sanction fully represented the seriousness of the infraction here, nor would be sufficient enough to impress upon respondent the unacceptable nature of her work record in the past few years and the need to immediately and dramatically improve. For her previous disciplinary infractions, respondent served a total suspension of fifteen work days without pay. Since that penalty, which has yet to be implemented, seems to have had little impact in effecting a change in respondent s work performance and attitude, something far more substantial is merited here. Accordingly, I recommend that respondent be suspended from work without pay for a period of fortyfive (45) calendar days. Respondent should be further warned that her continued poor performance and disregard of hospital rules will surely put her job at risk in the future. P R E S E N T: RAYMOND E. KRAMER, Administrative Law Judge T O: JOSEPH ORLANDO, Executive Director, Jacobi Medical Center A P P E A R A N C E S: LINDA GRACE, Representative for Petitioner JEAN E. HERSKOWITZ, Attorney for Respondent

7 Health and Hospitals Corporation Personnel Review Board s Decision, May 19, 1998 ARNOLD N. KRISS, Chairman, Personnel Review Board This is an appeal to the Personnel Review Board ("Board") by Francine Doxen ( Appellant") who was found guilty of misconduct and recommended for suspension for forty-five (45) calendar days without pay from the New York City Health & Hospitals Corporation ("Corporation") by letter dated May 8, 1997, from Linda C. Grace, Labor Relations Specialist, Jacobi/N. Central Bronx Hospital Centers. With due notice to counsel for Appellant and to the Corporation, the Board was duly convened on October 29, 1997, to hear this appeal. Ellen B. Grossman, Esq., by Eric J. Semel, Esq., appeared on behalf of the Corporation, and District Council 37, by Sima Asad, Esq., appeared on behalf of the Appellant. Both parties were accorded full opportunity to present argument to the Board on this appeal. A record of the Board hearing was prepared and is on file in the Board's offices. After careful and detailed review of the written charges against Appellant, the transcript of the hearing conducted by Administrative Law Judge Raymond C. Kramer, the Administrative Law Judge's report and recommendation, and after consideration of the argument before the Board, the Board makes the following findings: 1. That Appellant is a Corporation employee, employed pursuant to Section 5, subdivision 12 of the Health & Hospitals Corporation Act in a competitive title and, therefore, the appeal is properly before the Board. 2. That Appellant was accorded all rights pursuant to Corporation Personnel Rule 7:5, and a Rule 7:5 hearing was held on the charges on March 19, 1997, before Administrative Law Judge Raymond E. Kramer, who found Appellant guilty of the subject charge of misconduct. 3. The written charge preferred against Appellant was as follows: "1. On July 28, 1995, respondent left her assigned work area and was outside the hospital building for a period of time, without authorization." 4. On May 8, 1997, Linda C. Grace, Labor Relations Specialist, Jacobi/N. Central Bronx Hospitals, accepted the Administrative Law Judge's recommendation of a forty-five (45) calendar day suspension and recommended the implementation of this penalty be imposed. CIRCUMSTANCES A review of the hearing record demonstrates that Appellant is guilty of the subject charge. It is found that the hearing record contains substantial evidence to support a finding of guilt of the subject charge. The Administrative Law Judge found that the Corporation's witnesses were credible. The Board will not ordinarily disturb the credibility of the findings of the Administrative Law Judge in light of the fact

8 that the Administrative Law Judge is able to not only hear the evidence but judge the demeanor of the witnesses. Appellant also claims that she was not effectively represented at the 7:5 hearing by her private attorney. It appears from Appellant's position that she wanted to testify at the hearing but did not do so on advice of her attorney. The Board cannot determine whether this was trial strategy or due to some conflict between Appellant and her attorney. It is suggested that if Appellant believes her representation was ineffective that Appellant should move before the 7:5 Administrative Law Judge concerning this issue. If Appellant believes that the law firm retained by her did not provide the representation that he paid for a fee dispute may exist. Appellant should seek professional advice from another lawyer to determine what options exist at this time. The only issue remaining for the Board to consider is the appropriateness of the penalty. The Board finds that Appellant served a suspension of thirteen (13) days for the proven misconduct. This calculation was submitted to the Board after this appeal was heard. The Corporation has not moved to increase the penalty and as a result it is imposed as is. Therefore, the penalty is not arbitrary or capricious nor disproportionate to the subject charge. Therefore, it is so ordered that: 1. The finding of guilt is affirmed. BOARD'S DECISION AND ORDER 2. The penalty of a thirteen (13) day suspension is affirmed. DECISION NO. 903 DOCKET NO. PBR 1,427/97 ARNOLD N. KRISS, Chairman, Personnel Review Board CARLOTTA B. PAIGE, Board Member, Personnel Review Board