Health and Hospitals Corp. (Harlem Hospital Center) v. Norwood OATH Index No. 143/05, mem. dec. (June 20, 2005)

Transcription

1 Health and Hospitals Corp. (Harlem Hospital Center) v. Norwood OATH Index No. 143/05, mem. dec. (June 20, 2005) Petitioner's post-report and recommendation motion to reopen the record to submit new evidence bearing on respondent's fitness for duty denied where new evidence would not change the recommended disposition. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of HEALTH AND HOSPITALS CORPORATION (HARLEM HOSPITAL CENTER) Petitioner - against - JUANITA NORWOOD Respondent MEMORANDUM DECISION CHARLES D. MCFAUL, Administrative Law Judge This employee disciplinary proceeding was originally referred to OATH in accordance with section 7.5 of the Personnel Rules and Regulations of the Health and Hospitals Corporation by the petitioner, the Corporation s Harlem Hospital Center. The respondent, Juanita Norwood, a clerical employee in the Hospital s finance department, was charged with excessive absence, excessive lateness and four instances of absence without leave all within the period from July 1, 2003, to February 4, Ms. Norwood contended that she was not guilty of misconduct because her attendance problems resulted from the disability of depression. A hearing was conducted on November 23, 2004, before Administrative Law Judge Charles R. Fraser, who issued his report and recommendation on January 25, See Health & Hospitals Corp. (Harlem Hosp. Center) v. Norwood, OATH Index No. 142/05 (Jan. 25, 2005). Judge Fraser concluded that although petitioner proved that respondent was excessively absent and late as charged, a disciplinary sanction was nonetheless inappropriate because the absenteeism was caused

2 - 2 - by her depression, a medical disability. Judge Fraser recommended that the disciplinary charges be dismissed and that respondent be evaluated for a disability leave in accordance with section 6.2 of the Corporation's Personnel Rules and Regulations. In April, petitioner referred Ms. Norwood to Steven A. Fayer, M.D., the medical officer designated to conduct an evaluation of her fitness to perform the duties of her position. The medical officer found respondent, at the time of his evaluation, fit to perform her job duties. Petitioner moved to reopen the record to submit the medical officer's report as evidence in the disciplinary proceeding. This matter has been referred to me in the absence of Judge Fraser, who resigned from his position with this tribunal several months ago. PROCEDURAL ISSUES Petitioner's motion to reopen the record, filed in the form of a letter on June 8, 2005, included a copy of Dr. Fayer's medical report and evaluation (Pet. Ltr. dated June 2, 2005). On the same date, respondent's counsel filed a letter opposing the motion to reopen on procedural and substantive grounds (Resp. Ltr. dated June 8, 2005). Service of the motion on opposing counsel was indicated only by a "cc" at the end of petitioner's letter. Counsel for respondent objects to this and cites to OATH's prior decisions, in which he was directly involved, requiring proof of service by affidavit. Our rules of practice require that proof of service be filed with the "motion papers and papers in opposition." 48 RCNY 1-34(c) (Lexis 2005). Although such proof was not submitted here, the irregularity is overcome by counsel's acknowledgment of receipt. Proof of actual notice will cure defects in service. Dep't of Correction v. Gray, OATH Index No. 930/03 (May 29, 2003), citing, Drolet v. N.Y. State Racing & Wagering Bd., 115 Misc.2d 7, 453 N.Y.S.2d 361 (Sup. Ct. Nassau Co. 1982). Counsel's opposing papers, which were also unaccompanied by proof of service, establish actual notice. Counsel's other procedural objections do not warrant treatment here. Another procedural issue, however, although not raised by respondent's counsel, warrants discussion. After issuance of a report and recommendation, motions to reopen the record are to be submitted to the deciding authority and not to the presiding judge. 48 RCNY Under this rule, the motion should have been made to the deciding authority, who, in turn, could refer it to the

3 - 3 - presiding judge for disposition. Adherence to this process, however, would cause further unnecessary delay in the disposition of the disciplinary proceeding, which has remained undecided for six months. The parties are entitled to a reasonably prompt and final resolution of the disciplinary proceeding. Strict application of our rule would be inconsistent with that objective. I therefore find that the exigent circumstances presented here are sufficient to warrant an exception to the rule and the motion will be herein decided. See 48 RCNY ANALYSIS Petitioner seeks to reopen the record for the submission of the medical officer's report so that "a Report and Recommendation be issued with regard to the proceeding pursuant to Section 7.5 based on the merits of the case" (Pet. Ltr. dated June 2, 2005 at 1). To succeed on the motion, petitioner must demonstrate that the evidence to be added to the record reasonably might alter the outcome of the case (as to the merits or as to penalty), and that the opposing party will not be prejudiced by grant of the motion. See, e.g., Dep't of Correction v. Minnis, OATH Index No. 184/82, mem. dec. (Apr. 21, 1983) (motion to reopen record after decision issued is subject to stringent standards); see also, Levantino v. Insurance Co. of North America, 102 Misc.2d 77, 422 N.Y.S.2d 995 (Sup. Ct. Suffolk Co. 1979); Dep't of Correction v. Temples, OATH Index No. 471/03 (July 21, 2003); Dep't of Correction v. Wilson, OATH Index No. 590/93, mem. dec. (July 30, 1993); Transit Auth. v. O'Connell, OATH Index No. 1076/91, mem. dec. at 12 (Nov. 8, 1991); Dep't of Correction v. Hurley, OATH Index No. 285/83, mem. dec. at 2-3 (Nov. 16, 1983). Disposition of the motion is committed to the discretion of the administrative law judge. Fire Dep't v. Cutler, OATH Index No. 816/80, mem. dec. at 8 (Jan. 29, 1981). It is apparent from petitioner's motion papers that it seeks to submit the medical officer's report with the expectation that it will result in a revised disposition of the disciplinary case. As discussed below, a different outcome would not result from the submission of the medical officer's report. Judge Fraser found respondent's excessive absenteeism and lateness to be caused by her depression. "I am persuaded that Ms. Norwood's depressed state broadly impairs her ability to function regarding both her attendance and her work performance." Norwood, 143/05, at 5. Judge Fraser's conclusions were based on evidence of Ms. Norwood's history of depression and its impact

4 - 4 - on her ability to function effectively at work. Indeed, the medical officer's report confirms a history of episodic and serious depression over many years. Judge Fraser recommended that the disciplinary charges against Ms. Norwood be dismissed based on prior OATH precedent holding that an employee whose violation of agency rules resulted from a disability may not be punished for misconduct under section 75 and should be placed on a disability leave under section 72 of the Civil Service Law. Norwood, 143/05, at 6. Judge Fraser found that Corporation rule 6.2 parallels the provisions of section 72 of the Civil Service Law in purpose and effect. Judge Fraser's conclusions and recommendation regarding the disposition of the disciplinary charges would not be altered by the medical officer's report finding Ms. Norwood currently fit for duty. Judge Fraser reviewed evidence of respondent's depression in 2003 and 2004, the period covered by the disciplinary charges. The medical officer evaluated respondent's condition in April 2005, and found her to be fit. The doctor's finding is based in large part on the fact that Ms. Norwood is in treatment and compliant with her medications. "At the present time I consider her depression to be in remission" (Fayer report at 7). Since her disability is currently in remission, the doctor correctly found her fit for duty. See Human Resources Admin. v. Bartolo, OATH Index No. 1211/94 (Nov. 3, 1994); Dep't of Parks & Recreation v. Matthews, OATH Index No. 219/00 (Nov. 22, 1999); Housing Authority v. Caballero, OATH Index No. 699/96 (Mar. 13, 1996). Accordingly, disciplinary action would be improper under these facts and circumstances. See McEniry v. Landi, 84 N.Y.2d 554, 620 N.Y.S.2d 328 (1994) (holding that agency could not dismiss employee for past alcohol-related time and leave violations where those violations occurred before he entered an alcohol detoxification program and where he was in recovery at the time of trial). The legal principle relied upon in McEniry should apply here as well. Where an employee who suffers from a medical disability is, at the time of trial, in recovery from that disability and found fit to work by a medical officer, imposition of a disciplinary sanction for past conduct caused by that disability is improper. Therefore, petitioner's motion to reopen the record is denied. June 20, 2005 Charles D. McFaul Administrative Law Judge

5 - 5 - APPEARANCES: BRIDGET GOODMAN Representative for Petitioner MARTIN DRUYAN & ASSOCIATES Attorneys for Respondent BY: MARTIN DRUYAN, ESQ.