Health & Hospitals Corp. (Cook Chill Plant) v. Murray OATH Index No. 1003/10 (Jan. 12, 2010) In default hearing, petitioner proved that respondent was absent without official leave on seven occasions from January 18, 2009 to February 9, 2009, and continuously from February 12, 2009 to April 22, 2009, and since May 21, 2009. Petitioner also proved that respondent made false statements regarding nine of her absences in February 2009. Termination recommended. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of HEALTH AND HOSPITALS CORPORATION (COOK CHILL PLANT) Petitioner - against - TINA MURRAY Respondent REPORT AND RECOMMENDATION JULIO RODRIGUEZ, Administrative Law Judge The petitioner commenced this disciplinary proceeding pursuant to Rule 7.5 of the Personnel Rules and Regulations of the New York City Health and Hospitals Corporation. Respondent Tina Murray, a dietary aide at the Cook Chill Plant is charged with excessive absenteeism, job abandonment, being absent without official leave, and making a false statement to her employer (ALJ Ex. 1). A hearing was scheduled for January 5, 2010. Upon respondent s failure to appear, petitioner submitted proof of service of the statement of charges and notice of hearing on October 15, 2009, to the address respondent had on file with petitioner (Pet. Exs. 1, 4). Petitioner also submitted proof of service of the amended statement of charges and notice of hearing on December 9, 2009, to the respondent s address of record (Pet. Exs. 2, 4). Both notices were mailed via regular and certified mail. The certified mailings were returned to
-2- petitioner as unclaimed (Pet. Ex. 3). This evidence sufficed to find respondent in default and the hearing proceeded in the form of an inquest. For the reasons stated below, I conclude that petitioner has sustained all of the charges. ANALYSIS Petitioner charged respondent with excessive absenteeism, absence without official leave and job abandonment. To prove these charges petitioner submitted an affidavit from Claudia Luzzi Sanchez, office manager for Food Services Partners of New York which operates the Cook Chill Plant. Ms. Sanchez s duties include interacting with employees and maintaining records pertaining to employee leave status. Ms. Sanchez reviewed and is familiar with respondent's attendance records. Her affidavit established that an employee who is going to be unable to report for work must call in prior to the start of her tour. The employee s name is then recorded in the call-in log along with the date and time of the call and the reason for the absence. Relevant sections of the call-in log were attached as exhibits to Ms. Sanchez s affidavit. Petitioner also submitted respondent s time cards from December 28, 2008 to June 27, 2009 (Pet. Ex. 6). Ms. Sanchez s affidavit, the call-in logs, and the time cards establish that respondent was absent from work without official leave during most of 2009. Respondent either called in sick or did not call in at all and failed to report to work on January 18, 19, 21, 22, 2009, and February 1, 6, and 9, 2009 (Pet. Exs. 4, 6). Respondent was continuously absent from February 12, 2009 to April 22, 2009. Respondent contacted Human Resources by telephone on April 9, 2009, and stated that she would return to work on April 20, 2009. Without notice or explanation, respondent failed to report to work on April 20, 2009. Instead, she continued to be absent until she reported for work on April 23, 2009. Respondent reported to work from April 23, 2009 to May 19, 2009. Respondent called in sick on May 21, 22, 25, and 26, 2009 (Pet. Ex. 4: Exhibit H). Respondent s last communication with petitioner was on May 25, 2009, when she called in sick until May 26, 2009. Respondent has neither called in nor reported to work since (Pet. Ex. 4). The uncontroverted evidence establishes that respondent was absent without official leave on January 18, 19, 21, 22, 2009, and February 1, 6, and 9, 2009. It further establishes that
-3- respondent was continuously absent without official leave from February 12, 2009 to April 22, 2009, and since May 21, 2009. Accordingly, charges II and III are sustained. Regarding whether respondent s absences were excessive, neither Kings County Hospital Center nor the general Corporation s rules and regulations specify the number of absences that are deemed to be excessive for disciplinary purposes. The Corporation s Operating Procedure 20-10 provides that a hospital may discipline an employee who fails to achieve satisfactory performance and/or violates Corporation Hospital rules and regulations. Operating Procedure 20-10, III (B). Pursuant to the policy, a supervisor may counsel an employee who has three unscheduled absences, or if there have been two unscheduled absences on days that immediately precede or follow a day off, within a six month period. Operating Procedure 20-10, IV (A)(2)(b). A supervisor may conduct an additional counseling session for up to two additional unscheduled absences after the initial session. Id. The same criteria have been used as a threshold for finding absences to be excessive for disciplinary purposes. Health and Hospitals Corp. (Jacobi Medical Center) v. Grant, OATH Index No. 1233/98 (Apr. 16, 1998); Health and Hospitals Corp. (Bellevue Hospital Center) v. Marshall, OATH Index No. 185/96 (Oct. 2, 1995). In cases where excessive absence is charged but not specifically defined by agency regulations, this tribunal has examined three circumstances that establish misconduct: (1) absences which are so extensive in number that they are excessive per se; (2) absences which are excessive because of the disruption they cause to the workplace and the adverse impact they have on office efficiency and operations; and (3) absences which are excessive based on circumstances surrounding the missed days of work. Factors considered in evaluating these circumstances include the availability of leave accruals, the lack of advance notice, the timing of such absences in relation to weekends and holidays, the legitimacy of the need for the absences, and whether respondent was ever warned that the absences were considered excessive. Health and Hospitals Corp. (Harlem Hospital Center) v. Pabon, OATH Index No. 270/04 at 3 (Oct. 29, 2003); Bd. of Educ. v. Hunter, OATH Index No. 384/90 (Mar. 5, 1990), aff d in part, rev d in part, Dec. of the Bd. (Apr. 4, 1990), aff d sub nom. Hunter v. New York City Bd. of Educ., 190 A.D.2d 851 (2d Dep t 1993). Prior cases indicate that 10 unscheduled absences over six months may be excessive. Health and Hospitals Corp. (Lincoln Medical & Mental Health Center) v. Davis, OATH Index No. 1573/08 (May 8, 2008) (11 unscheduled absences in 5 months excessive); Health and
-4- Hospitals Corp. (Kings County Hospital Center) v. Campbell-Trumpet, OATH Index No. 1419/03 (July 16, 2003) (10 unscheduled absences in 4 months excessive); Health and Hospitals Corp. (North Central Bronx Hospital) v. Cross, OATH Index No. 315/97 (Jan. 27, 1997) (7 unscheduled absences found excessive). Here, the record is insufficient to establish the exact number of days that respondent was absent. The record, however, does establish that respondent was absent seven days between January 18, and February 9, 2009. It further establishes that with the exception of April 23, 2009 to May 19, 2009, respondent has been continuously absent without official leave since February 12, 2009. Accordingly, I find that respondent was excessively absent per se. See Triborough Bridge and Tunnel Authority v. Davi, OATH Index No. 339/01 (June 18, 2001). Charge I is sustained. Petitioner also charged respondent with making false statements by calling in sick on days that she was not sick. To prove this charge, petitioner offered an affidavit from Mondo E. Hall, deputy director of Human Resources Services (Pet. EX. 5). Mr. Hall affirmed that respondent called him on April 9, 2009, to say that she was ready to return to work. Mr. Hall told respondent that she could return on April 20, 2009 and respondent agreed. During the telephone conversation, respondent informed Mr. Hall that despite calling in sick on February 12, 13, 14, 16, 18, 19, 20, 23, 24, 26, 27, and 28, 2009, she had medical documentation only for February 16, 2009. According to the documentation she forwarded to Mr. Hall, she was treated at the Kings County Hospital Center s emergency room on February 16, 2009. The note instructed respondent to remain off from work for two days (Pet. Ex. 4: Exhibit F; Pet. Ex. 5: Exhibit C). Respondent did not submit any documentation for the remaining absences. She admitted to Mr. Hall, during the telephone conversation, that despite calling in sick on the abovereferenced dates, she was not sick and was instead dealing with a personal matter (Pet. Ex. 5). This evidence is sufficient to establish that respondent made false statements to her employer regarding the reasons for her absences. Charge IV is sustained. FINDINGS AND CONCLUSIONS 1. Respondent was properly served with the statement of charges and notice of hearing. 2. Respondent was absent without official leave on January 18, 19, 21, and 22, 2009, and February 1, 6, and 9, 2009.
-5-3. Respondent was continuously absent without official leave from February 12, 2009 to April 22, 2009. 4. Respondent has been continuously absent without official leave since May 21, 2009. 5. Respondent s absences on January 18, 19, 21, 22, 2009, February 1, 6, and 9, 2009, from February 12, 2009 to April 22, 2009, and since May 21, 2009, are excessive. 6. Respondent made false statements to her employer by calling in sick on 12 days in February 2009 when she was not sick on 9 of these days. THEREFORE: The charges are sustained. RECOMMENDATION The obligation to report to work is a fundamental requirement of employment. Respondent was absent without official leave for most of 2009. As of the date of the hearing, respondent had been continuously absent since May 21, 2009. Further, respondent made matters worse by making false statements to her employer regarding several of her absences in February 2009. Respondent s excessive and unauthorized absences substantially impede the agency s ability to fulfill its mission. I recommend termination, the only appropriate remedy for this misconduct. January 12, 2010 Julio Rodriguez Administrative Law Judge SUBMITTED TO: GLORIA VELEZ Senior Director
-6- APPEARANCES: MOIRA E. FITZGERALD, ESQ. Attorney for Petitioner No Appearance by or for Respondent.