Dep’t of Sanitation v. Uryevick OATH Index No. 0777/06 (Aug. 11, 2006)

Sanitation worker could not be found to have been incompetent or to have abused medical leave where the Department did not provide notice that use of some as yet undefined “excessive” amount of properly documented medical leave taken by a non- probationary employee for legitimate, chronic illness constitutes “abuse” or “incompetence” per se, and where there was no showing of fakery or malingering. Dismissal of charges recommended.

NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of DEPARTMENT OF SANITATION Petitioner -against- CHRIS URYEVICK Respondent

REPORT AND RECOMMENDATION JOAN R. SALZMAN, Administrative Law Judge This is an employee disciplinary proceeding referred by the petitioner, the Department of Sanitation (“Department”), pursuant to section 16-106 of the Administrative Code. Respondent, Sanitation Worker Chris Uryevick, is charged with: (1) abusing medical leave, in violation of the Department’s Policy and Procedure 2004-03 (“PAP 2004-03”), section IV; (2) incompetence, in violation of General Order No. 2002-06 Rule 7.3; and (3) conduct prejudicial to good order, in violation of General Order No. 2002-06 Rule 3.2 (ALJ Ex. 1). A hearing was held before me on January 5, January 10, February 9, March 2, and March 22, 2006. The parties submitted post-trial briefs, petitioner on April 4, 2006, and respondent on May 18, 2006. The Department declined to file a reply brief on the due date, May 26, 2006, when the record was closed. Petitioner presented two witnesses, Joseph Miller, Director of the Department’s Medical Division, and Patrick Collins, Borough Chief in the Queens East district. -2- Respondent testified on his own behalf and presented seven additional witnesses: Supervisor Frank Coniglio, Supervisor Gregory Koufos, Supervisor Thomas Prevete, Supervisor Anthony Ferrino, Dr. Borisse Paulin, Dr. Patrick Gubitose, and Dr. Barbara Nichols. After full consideration of the evidence, I find that petitioner has not met its burden of proof and the charges should be dismissed. ANALYSIS Abuse of Medical Leave This charge has two specifications. The first specification alleges that between August 1, 2004 and September 30, 2005, respondent “used approximately 143 days of medical leave with the majority of these incidents occurring before or after a scheduled day off,” that he received counseling regarding his “excessive medical leave and [was] warned that [his] continued chronic use of medical leave could result in disciplinary action whereby [the agency] may seek to terminate [his] employment,” and that respondent’s “chronic sick leave usage renders [him] incompetent and incapable of performing [his] duties as a sanitation worker.” The second specification alleges that during the same period, respondent was “absent and/or unavailable for full duties approximately 151 days out of a total of 267 possible workdays, or more than 50% of [his] total work days, making [him] excessively absent per se, and thereby rendering [him] incompetent and/or incapable of performing [his] duties as a sanitation worker.” Specification two also alleges that a majority of respondent’s absences were attached to a scheduled day off. Section IV of PAP 2004-03, the section which respondent is charged with violating, provides that “[e]mployees who abuse the use of medical leave may be terminated or be subjected to other disciplinary action” (Resp. Ex. B). PAP 2004-03, which was in effect during the period charged, was issued May 1, 2004, and divides employees into three categories depending on the number of incidents of medical leave and the amount of days taken as medical leave. Employees who use the most medical leave are placed in Category “C,” for which employees are eligible if they had seven or more incidents of illness in twelve months and spent any number of days on medical leave, or if they had four or more incidents of illness in twelve months and spent forty or more days on medical leave. Employees in Category “C” are subject to “aggressive monitoring because of excessive absences” and special restrictions govern their use of medical leave. They must, for example, -3- report to the Department’s Clinic for examination or evaluation by the medical staff on their first day of medical leave, while employees in Category B need only report to the clinic within forty- eight (48) hours of requesting medical leave. “Consideration is given to [Category C employees] with terminal or chronic illnesses or injury on a case by case basis.” As will be shown, respondent had a chronic sinusitis condition that was greatly exacerbated by surgery. Category C employees are warned that they are not eligible for promotion while in that category. Only probationary, first-year employees are warned that they may be terminated once they enter Category C. Respondent has served the Department for nearly 20 years, and was not a new, probationary employee. Although PAP 2004-03, section III (Rules, Regulations and Policies; General/All Categories) states that “[e]mployees who use a substantial amount of medical leave and fail to provide medical documentation substantiating their illness or injury and/or fail to follow the rules governing the use of medical leave may be subjected to very severe disciplinary action which may include termination. Each employee is cautioned to follow the rules in this policy and to use medical leave only when ill or injured.” Nowhere are the terms “substantial,” “excessive,” and “abuse” defined, and the import of this warning is that sick leave must be taken only for illness or injury and must be properly documented, not, given the conjunctive “and,” that termination will result if an employee takes more than a specific number of sick days for a real, documented illness. “Excessive” absence is a term that appears only in the specific context of “aggressive monitoring” of Category C employees. Section III of PAP 2004-03 thus informs employees that they could be disciplined only for violating the rules governing the procedures to be followed while on sick leave. See Dep’t of Sanitation v. DeSantis, OATH Index No. 1494/05, at 6 (Oct. 31, 2005) (discussing identical provision in predecessor policy, PAP 93-01). The facts in this case are not in dispute in any material way. Respondent was designated a category “C” employee on January 1, 2003 (Pet. Exs. 3, 4). During the period of August 1, 2004 to September 30, 2005, he used 103 days of medical leave for ailments unrelated to his job (37.6% of the total 274 days he was scheduled to work), and 19 days of medical leave for line- of-duty injuries (LODI) (6.9%) (Pet. Exs. 8, 9). In addition, he was on medical duty assignment for 23 days (8.4%), excused with pay on 4 days (1.5%), and excused without pay on 4 other days (1.5%) (Pet. Exs. 8, 9). No complaints were filed against him for violating PAP 2004-03 by -4- failing to follow the procedures governing medical documentation or clinic visits (Tr. 688). Significantly, the Department is not disputing any of respondent’s medical conditions and does not contend that respondent faked any of his illnesses. The Department’s counsel represented on the record the factual limitations of this case: “I want to say, in that regard, again, I don’t know if this kind of [medical] testimony is cumulative or necessarily relevant, since we’re not disputing any of Mr. Uryevick’s medical conditions, nor are we disputing any of the relevant medical notes, nor are we even alleging that his illnesses were fake, false, or he was malingering” (Tr. 750). As the parties acknowledge, this case turns on the issue of notice (Tr. 5, 12-13). Before the Department can discipline an employee for a violation of a Department rule, here a rule against using medical leave “excessively,” it must first show that the employee had notice of the rule he or she is charged with violating. As noted in Dep’t of Sanitation v. DeSantis, OATH Index No. 1494/05, at 5 (Oct. 31, 2005): It is fundamental that employees may only be disciplined for violations of rules of which they have notice. See, e.g., Admin. for Children’s Services v. Bonds, OATH Index No. 1211/04, at 8-9 (May 28, 2004) (“[c]ertainly, without reasonable notice that certain conduct may be a disciplinary offense, an employee may not be disciplined for that conduct”). An employee is chargeable with notice of agency rules if they are “made known to him or made generally accessible in a manner reasonably calculated to provide notice.” The only exception “involves conduct that is clearly wrong,” i.e., contrary to “well known, commonly accepted standards of reasonable discipline and proper conduct.” Dep’t of Correction v. Baysmore, OATH Index No. 393/[8]1 (Feb. 9, 1982).

DeSantis went on to note that “[u]sing sick leave, even using sick leave frequently, does not fall within” the noted exception for conduct that is “clearly wrong,” primarily because sanitation workers are generally entitled by law, and by contract, to “unlimited,” medical leave, meaning that they receive full pay for all days that they are out sick. Id. Chapter 551 of the Laws of New York 1962, codified in section 16-108 of the Administrative Code, provides that sanitation workers “shall be paid full pay or compensation during absence from duty caused by injury or sickness, except as otherwise provided by law, and subject to such rules and regulations as may -5- be adopted by the commissioner.” The sanitation workers’ collective bargaining agreement1 provides that sick leave “shall be granted to employees in accordance with Chapter 551 of the Laws of 1962” of the State of New York. While the word “unlimited,” does not appear in either the law or the contract, no limits are stated and the parties freely refer to the sick leave afforded sanitation men as unlimited. Joseph Miller, Director of the Department’s Medical Division, and a witness for the petitioner, testified that everybody involved in addressing the use of sick leave by agency employees in connection with developing PAP 2004-03 was aware that sanitation workers have unlimited sick leave, and he did not recall being directed to find ways in which to terminate sanitation workers for using too much sick leave (Tr. 140). The legislative history of the state law indicates that the New York City Mayor’s Office recognized that the law would grant “unlimited sick leave,” like that given to uniformed police officers and firefighters, to each member of the sanitation force, except as otherwise provided by law, and subject to such rules and regulations as may be adopted by the Sanitation Commissioner. In his letter dated April 9, 1962, in support of the bill (Senate Intro. 2290), which was introduced by Senator John J. Marchi, Bernard J. Ruggieri, Assistant to the Mayor, wrote to Governor Nelson A. Rockefeller that: The high incidence of ailments and injuries among members of the uniformed sanitation force is clearly attributable to the arduous and hazardous nature of their duties. A survey made under the direction of Dr. Peter J. Karpovich, Professor of Physiology, Springfield College, Springfield Massachusetts, concluded that New York City sanitationmen have a higher rate of injuries than all other occupations in the United States, except the logging industry.

(Resp. Ex. I). The New York State AFL-CIO supported the bill, saying that there was already unlimited sick leave in practice for sanitation workers, even before the bill was introduced because under then existing Sanitation Department procedures “paid sick leave is carefully administered by a large and well-organized Medical Department. Abuses are carefully controlled. Duration of paid sick leave is currently unlimited and subject to medical and other

1 The relevant portion of the collective bargaining agreement was submitted by respondent’s counsel, on notice, shortly after the trial, with copies of Chapter 551 of the Laws of New York of 1962, and I have annexed that submission to the record as Respondent’s Exhibit I. In DeSantis, the respondent’s counsel withdrew and respondent appeared for only half of the trial and then resigned. Neither party in that case submitted the collective bargaining agreement for consideration. DeSantis, OATH 1494/05, at 4 n. 3. -6- administrative controls. This will be continued by this bill” (Letter of April 4, 1962 from Raymond R. Corbett, Legislative Chairman, New York State AFL-CIO, to Robert MacCrate, Counsel to the Governor, Resp. Ex. I). The Uniformed Sanitationmen’s Association – Local 831 noted that the Marchi bill was the product of ten years of negotiations between the City of New York and the union (Letter dated March 28, 1962, from John J. DeLury, President and Business Manager of Local 831 to Governor Nelson A. Rockefeller, Resp. Ex. I). The Citizens Union of the City of New York opposed the bill as “gross largesse” and “bad precedent” that would make the City liable to pay full salaries while sanitation workers were sick for reasons wholly unrelated to duty (Letter dated April 13, 1962 from Eugene R. Canudo, Legislative Representative, Citizens Union, to Robert MacCrate, Resp. Ex. I). The bill passed over that objection and others voiced in a State Division of Budget Report dated April 16, 1962, that the sick leave would be paid for an unlimited length of time, and would be overly generous and costly even though sanitation work is not as dangerous, according to this report, as that of police officers and firefighters (Resp. Ex. I). I find that PAP 2004-03, by its terms, makes a permitted exception to the “unlimited” sick leave provided by law in cases of abuse of such leave, meaning that fakery, malingering, and failure to substantiate illness and comply with reporting requirements, will not be tolerated. The Department has thus placed a limitation on sick leave in cases of “abuse,” but has yet to limit sick leave expressly in cases where the Department would deem the sheer number of sick days taken by non-probationary employees, by itself, excessive per se, such that disciplinary action, including termination, could be imposed even though the illnesses were properly documented and real. The Department attempted to show that section IV of PAP 2003-04 put the respondent on notice that there are limits on medical leave use, specifically, that using medical leave excessively constitutes a violation, which subjects an employee to “terminat[ion] or . . . other disciplinary action.” It has failed to do so on this record. There is no explicit language in 2003- 04, section IV, prohibiting “excessive” use of medical leave. The policy states only that “[e]mployees who abuse medical leave” may be subject to termination of employment or to other disciplinary action, and the word “abuse” is not defined. Because sanitation workers are acutely aware that they are entitled to “unlimited” sick leave, it is difficult to consider a fair reading of -7- the word “abuse” as covering a situation where someone is legitimately sick for a long time and takes a correspondingly large amount of medical leave. The policy lists seven factors that the Department will consider before a determination is made regarding disciplinary proceedings, and therefore, implicitly, a determination of what constitutes abuse: (a) the employee’s use of medical leave since joining the Department; (b) the nature of the illness; (c) whether the use of medical leave is the result of a verified line-of-duty injury; (d) whether the use of medical leave precedes or follows chart days, holidays or vacation days; (e) whether the use of medical leave precedes or follows ordered overtime; (f) whether medical notes on form DS 398 have been submitted in a timely fashion; and (g) whether the use of medical leave is associated with the Department’s drug/alcohol testing program. The purpose underlying these factors appears to be to assess whether an employee is faking an illness and using medical leave to avoid working and otherwise to regulate failures to comply with reporting and documentation requirements that enable the Department to verify that claimed illnesses are bona fide. It is reasonable, for example, to attempt to determine whether an employee is faking an illness by looking at whether that person typically uses medical leave on days before and after holidays or scheduled days off, because such a pattern may raise an inference that the use of medical leave was an attempt to extend time off, and was not occasioned by a legitimate illness (Tr. 709). Similarly, if an employee is ordered to work overtime, the employee may choose to fake an illness in order to extend time off for personal engagements or to avoid working in difficult circumstances which can result in the Department ordering overtime (such as a snow storm) (Ferrino: Tr. 720). An employee might likewise fake an illness to avoid drug testing. The nature of the illness is also an important factor because increased suspicion about the legitimacy of an illness is appropriate where the manifestation of the illness depends on a subjective complaint that cannot necessarily be quantified by medical tests or documentation (e.g., a headache versus a broken leg), and the submission of medical notes goes directly to the presence of objective evidence of illness. The first listed factor in PAP 2004-03 for determining whether sick leave was abused, the employee’s use of medical leave since joining the Department, sheds no light on what number of absences or percentage of work days missed could result in termination or other disciplinary action for non-probationary employees. This factor is simply too broad as written to provide -8- guidance to respondent that he was doing something wrong and must correct his behavior if that were possible. Except for perhaps the first factor, the employee’s use of medical leave since joining the Department, the purpose of which necessarily includes an evaluation of any prior abuse of the rules applicable at the relevant time, therefore, there is no indication in the policy that the word “abuse” applies in a situation where an employee uses many days of medical leave because of a legitimate and documented illness. Rather, these factors indicate that the word “abuse” refers to the use of medical leave when there is no legitimate illness or to the failure to comply with the reporting requirements of the policy. Petitioner asserts that respondent received numerous verbal warnings during the counseling sessions he attended as a Category “C” employee that he was using “too much” medical leave and that this could lead to disciplinary action, including termination (Prevete: Tr. 692; Ferrino: 709, Petitioner’s Closing Brief at 2). Respondent denies receiving these warnings, and denies ever being warned that there was any limit on the number of days of sick leave he could use. Rather, he claims that he was told only that he should leave category “C” because “[t]hey’re going after C category guys” (Tr. 830-31). I credit respondent’s denial that anyone ever told him that he was allowed to use only a certain number of sick days and no more (Tr. 830-31), because it is wholly consistent with Clinic Supervisor Anthony Ferrino’s understanding, which he articulated at the trial, that there was no such limit (Tr. 707). Supervisor Ferrino testified unequivocally that a sanitation worker who is truly sick and who conscientiously reports and documents his illnesses is not in jeopardy of losing his job because he is following all the rules of the Department (Tr. 723). He indicated there was no memorandum, email or verbal notice telling him that any particular number of days of absence would be considered excessive by the Department (Tr. 707-08). Supervisor Ferrino also testified that he understood that sanitation workers have unlimited sick leave, meaning they “get paid for all the times” they are out sick, and there was no limit on the number of days they can “go sick” (Tr. 694-96). He did not counsel respondent about what “abuse” means: “I don’t remember ever saying anything, this is abusive,” although he was required under the policy to hand a notice to respondent telling him what PAP 2004-03 said (Tr. 707). Mr. Ferrino testified that even he did not understand that there was a numerical limit on absences under the policy: -9- Q. Did you ever say to him that the Department’s position is that if you go sick a certain number of days, that would in and of[] itself be an abuse of medical leave? A. No, because I am not aware of any certain number of days. Q. Nobody in the Department has ever said to you, Supervisor Ferrino, that there is a magic number as to how many days a sanitation worker can go out sick before the agency will deem it to be excessive, abusive? A. No, they have not. Q. No . . . A. No magic number, no.

(Tr. 707). Although Thomas Prevete, another Supervisor in the Sanitation Clinic (Tr. 625-26), told respondent that the agency was “going after his job” in some vague way, he did not tell respondent what he had done wrong, only that he was going sick too much for his sinus problems (Tr. 688-89). Mr. Prevete never wrote complaints against respondent that his medical documentation was unsatisfactory, although it was within his duties to initiate such complaints (Tr. 649). Mr. Prevete conceded that respondent’s doctors’ notes contained all the relevant information, were timely submitted, and covered the dates he was out sick (Tr. 649-50). Given the conflicting testimony as to the verbal counseling, I find that the counseling here was not enough to cure or supplement the policy and provide notice of rule violations, and, to the contrary, confirmed respondent’s understanding of the rules. Cf. In re Claim of Oliver, 20 A.D.3d 853, 853, 798 N.Y.S.2d 809, 809 (3d Dep’t 2005) (“‘[a] claimant's continued absenteeism after numerous warnings may constitute disqualifying misconduct’”) (citing Matter of Garcia-Primer, 9 A.D.3d 730, 731, 779 N.Y.S.2d 838, 839 (3d Dep’t 2004)); Romano v. Town Bd., 200 A.D.2d 934, 934, 607 N.Y.S.2d 169, 170 (3d Dep’t), appeal dismissed, 83 N.Y.2d 963, 616 N.Y.S.2d 15 (1994) (upholding incompetence findings where employee received “repeated warnings that [his] absenteeism threatened his continued employment”). The warnings here, unlike those in Garcia-Primer, assuming they were made, were made only verbally, and in light of the sanitation workers’ “unlimited” medical leave provided by law and ingrained for more than 40 years, were too vague to serve as notice that using a certain amount of medical leave constitutes a violation of Department rules. In Garcia-Primer, by contrast, there were specific, written notices to an employee warning that because of her poor attendance record, she would be terminated if her attendance did not improve. She also falsely reported to her employer the reasons for her absence. -10- Respondent was not on notice, after the counseling, that he could be subject to severe disciplinary action for using medical leave when he was legitimately sick and complied with all documentation and reporting requirements. The forms respondent was given during the counseling sessions merely reiterated the language of PAP 2004-03 (Pet. Ex. 3). Nowhere does the form explain that “abuse” means “excessive” number of absences alone. The cited appellate cases finding excessive absenteeism do not address any statutory unlimited sick leave like that applicable here. The reasoning of Department of Correction v. Murray, OATH Index Nos. 771/92, 772/92, 906/92, 907/92 (December 7, 1992) (dismissing charges of incompetence based upon excessive absence due to lack of notice), a case raising almost identical issues, is applicable here: “Any obvious or gross misuse of leave, such as feigning illness, would certainly be disciplinable, even absent notice or a rule. But here, given the scope of the Department’s programs to regulate sick leave, and the existence of the contract provision, undefined as to any limits, the lack of an excessive absence provision is telling.” Id., at 13. Murray is directly on point because the Department of Correction had a provision for unlimited sick leave in the correction officers’ collective bargaining agreement that for all intents and purposes replicates the collective bargaining agreement here and the Administrative Code, section 16-108. Id., at 4. Because sanitation workers are by law and by contract entitled, as the Department acknowledges, to “unlimited” medical leave, and because PAP 2004-03 did not expressly provide that some “excessive” level of medical leave use is a violation of Department rules that could result in discipline including termination of employment, I find that respondent was not on notice that use of medical leave when he was legitimately ill could constitute a violation of agency rules. Petitioner asserts that DeSantis settled the notice issue in favor of the Department, but that argument depends on an incomplete reading of that case. DeSantis held that PAP 2004-03 provided “requisite notice” that the unlimited medical leave provision does not bar incompetency or misconduct charges, but it did so in a context very different from that here. In DeSantis, the question of discipline was moot because the respondent had resigned before the decision was rendered and no penalty recommendation was made. The medical leave use in DeSantis fit the pattern that the factors listed in Section IV of PAP 2004-03 were designed to detect (such as using medical leave next to holidays without any proof of legitimate illness), and was -11- “miscellaneous and generalized.” The facts of that case are easily distinguishable from those of the present one, and more clearly indicated abuse of the policy in the form of faking illness, something that is plainly covered by the prohibition against “abuse” of medical leave. That case also involved various other violations of PAP 2004-03 (such as failing to report to the clinic as required, failing to submit medical documentation, and being AWOL). Mr. DeSantis did not defend himself, and never explained his absences. Moreover, Judge Lewis held in DeSantis that “the Department does not have a rule which prohibits excessive absence.” DeSantis, OATH 1494/05, at 9. Judge Lewis was careful to note that her conclusion that PAP 2004-03 provided the requisite notice was based upon the record before her and that the case was not fully litigated because of respondent’s default and the withdrawal of his attorney. Thus, Judge Lewis left open the question presented here, on a fully developed record: whether PAP 2004-03 provides the requisite notice to a non-probationary sanitation worker who is legitimately ill that he could be fired for the sheer number of sick days taken. Because Mr. DeSantis’ lawyer withdrew after referring to the collective bargaining agreement and the “legislative jacket,” neither the contract nor the legislative history was submitted. “Hence, the question of whether there is anything in the collective bargaining agreement, or any legislative history, which conflicts with the prospective application of PAP 2004-03, is not before me.” DeSantis, OATH 1494/05, at 8, n. 6. It is well settled that the Department may always “seek to prove the proposition that it explicitly and repeatedly disavowed here: that the frequency and circumstances of a respondent’s sick days prove that the claimed illnesses were, at least in part, not bona fide.” Murray, OATH 771/92, 772/92, 906/92, 907/92, at 14. It is thus by now established that incompetence or misconduct in the form of faking or exaggerating illness and not complying with medical leave procedures can be disciplined even in the context of an “unlimited” medical leave provision. In the present case, respondent complied with all the requirements of PAP 2004-03 and the Department has made a point of the fact that it is not challenging the legitimacy of any of respondent’s medical conditions and does not allege that respondent faked any of his illnesses, nor that he exaggerated their severity (Tr. 750). The stark contrast between the concept that some unspecified number of absences could result in termination of employment or other disciplinary action and the seven factors listed for consideration of “abuse” in PAP 2004-03 highlight the near-complete absence of notice in the -12- policy that sheer frequency of sick days taken could, by itself, run afoul of the policy prohibiting abuse of sick leave. It would be peculiar indeed and unfair to curtail the long-standing “unlimited” sick leave provided by contract, law, and administrative code without a clear notification to the workforce to alert employees that the universally understood “unlimited” sick leave (meaning each day of sick leave will be paid in full without disciplinary action) is now in fact “limited” in the sense that taking frequent sick days will result in severe disciplinary action. Given the generous medical leave benefits sanitation workers enjoy, and the potential for abuse they present, the Department is justifiably concerned with ensuring that employees do not take advantage of these benefits. PAP 2004-03 appears to be an entirely legitimate attempt to do so. Respondent certainly used a very large amount of medical leave and his quip during counseling, upon hearing that he was the second most absent sanitation worker, that he wanted to know how one gets to be “number one” in the Department in terms of sick days used, even if made jokingly, reveals disregard and perhaps even contempt for the Department’s attempt to control abuse (Tr. 709, 723-724, 831).2 But the principal issue in this case is whether PAP 2004- 03 puts employees on notice that using a particular amount of medical leave, even when one is legitimately sick, constitutes a violation of the policy. I find that it does not. It is important to note, however, that PAP 2004-03 properly regulates “abuse” of sick leave, and that the policy provides adequate notice that the agency will impose severe discipline on employees who improperly take agency sick time when they do not have bona fide illness. In finding that respondent was not on notice concerning the possibility of being disciplined for abuse or incompetence based on his use of an “excessive” amount of medical leave, I do not reach the question of the precise scope of the Commissioner’s power provided in Administrative Code 16-108 to discipline employees for “excessive” use of medical leave or whether “excessiveness” must be defined by a set number of days, as the Department of Correction, which has a similar history, has done (apparently without controversy over the sufficiency of the notice in its current directive), or by percentage of scheduled work days, or by

2 Supervisor Ferrino testified that respondent said that he wanted to be “[n]umber [one] in the city of who has the most sick days . . . before he retires. He wants to go out like a record, like [a] world record” (Tr. 723-724). Respondent explained that he was kidding: “I’m old enough to remember the old Avis Hertz commercials. So I said jokingly well, how do you get to be No. 1?” (Tr. 831). There was no reason for agency staff whose job it is to control attendance to find the humor in respondent’s remark. Respondent’s flip remark and his substantial record of absence understandably subjected his attendance record to close scrutiny by the Department. -13- a statement that some specifically defined excessive use of sick leave will subject non- probationary employees to discipline including termination, or by some combination of these approaches. Administrative Code 16-108 provides paid medical leave “subject to such rules and regulations as may be adopted by the commissioner.” The present recommendation is limited in its scope. I find only that the Commissioner has not promulgated any such rules or regulations proscribing respondent’s conduct as a non-probationary employee -- taking an excessive number of absences for legitimate illnesses. The Department has a valid concern, expressed in cogent terms by Chief Collins, about disruption of agency function and cost when an employee is absent for substantial periods of time: the garbage is not picked up, workers must be reassigned and shifts altered, overtime may be necessary, and there is generally a scramble to cover the work of the missing employee. Clearly, when respondent is out sick, the burden of his work falls upon his co-workers. Nonetheless, sanitation workers like respondent have not been given sufficient notice that they are in peril of losing their jobs for being truly sick for some unannounced “excessive” period of time. Given the conclusion that the Commissioner may properly regulate and prohibit abuse of medical leave in the form of feigned illness without running afoul of state law providing otherwise unlimited sick pay, there does not appear to be any defect in PAP 2003-04 merely because it affords the Department the flexibility to review, on a case-by-case basis, the circumstances surrounding an individual employee’s attendance and sickness record, in cases that do involve issues of “abuse” -- fakery and non-compliance with documentation and reporting rules. The particular illnesses suffered and claimed by sanitation workers will vary widely, and the Commissioner must be able to exercise some discretion in evaluating claims of abuse that depend on highly individualized facts. Wholly apart from the question of whether respondent was notified of his jeopardy in taking as much sick leave as he did, there remains the task of determining whether he otherwise abused sick leave. Application of the factors set forth in PAP 2004-03 to the record presented here do not support a finding of “abuse” by respondent. With respect to the first factor, record of absences, prior to May 2004, PAP 2003-04 was not applicable. The parties stipulated that respondent was in Category C and had used significant amounts of sick leave prior to the 2004- -14- 05 period during which he is charged with abuse of sick leave. This appears to be the only factor that works against him. The record shows without contradiction that respondent was really sick on the occasions he was absent. It is worth noting in examining the nature of respondent’s illnesses and his line of duty injuries, the second and third factors in the policy, that respondent had various injuries and ailments, the worst and most persistent of which was his chronic sinus condition. Dr. Patrick Gubitose, the Department’s own Clinic Physician, a former surgeon himself, corroborated respondent’s testimony that he had suffered so long with breathing problems without relief, that he was hospitalized and underwent surgery during the period under review for a deviated nasal septum and that there was a “complication” of surgery, meaning that the private surgeon created a leak of cerebral spinal fluid. Dr. Gubitose also testified from hospital records that respondent had a “significant history of chronic nasal obstruction,” sinusitis and multiple nasal polyps. He indicated that these conditions could have caused not only a stuffy nose, but also bleeding, shortness of breath and frequent upper respiratory infections (Tr. 770, 787-89). Dr. Gubitose explained that the surgery was botched -- that the surgeon “created a hole in one of the bones connected to the meninges which makes cerebral spinal fluid and through that hole, some of that fluid from the fluids surrounding the brain leak through -- probably through his nose” (Tr. 790). Hospital records submitted by respondent place the surgery during respondent’s hospital stay in the period April 15-19, 2005, at Winthrop-University Hosptial in Mineola, New York, slightly more than half-way through the year at issue here (Resp. Ex. E2). Respondent described his condition in similar terms. He testified that he was out for flu, sinus and nasal problems: I was having a real hard time with my head. About seven or eight – maybe nine years ago I had a tube put in my right ear. It was my right. I couldn’t hear out of my right ear. I had serious infections in my right ear. And about two or three years ago I started developing nasal problems. I don’t know if they were related or not. I have no idea. But I started developing nasal problems and they started getting painful.

(Tr. 834). Respondent was under the care of an ear, nose and throat doctor who put him on various medications: different types of steroids and prednisones, sprays and antibiotics, “so many different types, I’ve lost count” (Tr. 834). He “wasn’t getting any better. In fact, it was -15- getting progressively worse . . . . I had lost my sense of smell and my sense of taste was greatly diminished” (Tr. 834). Respondent described the surgery as follows: Q. Okay. Did anything happen during the course of the surgery? A. Well, when I went to sleep, I thought it was going to be routine. It was day out. And I woke up and I was in a bed. And Dr. [Ganjian] went over me, saying we had a complication. Q. Did he ever tell you what the complication was? A. He didn’t, right then, tell me. I found out from one of his associates, came in the next day and told me exactly what the problems were. Q. What did they tell you? A. He said to me more medical terms, but basically while they were taking the polyps out of my sinuses – they scrape them, pull them, whatever they do – they ripped the membranes that separates my brain cavity from my sinus cavity and there was an infiltration. Sinuses have bacteria. Your brain can’t have bacteria. So there was – an air bubble escaped into my brain and they took some tissue of some sort and they put a patch over it. So they wanted me to stay immobilized in the hospital at which, in that short period of time I had 21 MRI’s just to make sure that the embolism was not increasing and that the patch was sealed up. The hole was filled, that’s all.

(Tr. 835). After this surgical fiasco, respondent found a new treating physician, Dr. Robert L. Pincus, Associate Professor of Otolaryngolgy at New York Medical College, who has helped him. Respondent has returned to work since the charges and his attendance record has improved markedly. He has taken only three sick days in this year through July, according to his service record submitted post-trial, on notice (entered into the record as Pet. Ex. 14). He had not been to the clinic for illness from October 2005 to the March 2006 session of the trial, according to agency doctor Barbara Nichols (Tr. 822-23). However, even respondent’s new private doctor, Dr. Pincus, has indicated that respondent still has medical problems and may be absent again in the future. On January 4, 2006, Dr. Pincus wrote: “Chris Uryevick is a patient of mine. He has significant chronic sinusitis with recurrent bouts of acute sinusitis that has been worsened by his previous surgery. He is continuing to improve, however, may well have temporary exacerba- tions in the future causing him to miss time from work” (Resp. Ex. H). The agency made no attempt to contradict respondent’s medical diagnoses. To the contrary, the agency doctors who were called in respondent’s defense corroborated his illnesses. If the Department had announced that excessive absence alone would be grounds for termination, the agency’s approval of the leave would become irrelevant. But because it has not made that -16- announcement, the agency’s approval of the leave is highly relevant to whether or not respondent abused sick leave time. I find that he did not. A number of the agency’s clinic doctors testified at the trial, and it became clear that they are not treating physicians. Their essential function is to review the medical documentation submitted by employees from their private physicians and to determine whether the employees can work regular or light duty or must go home or see their own doctors for follow-up care. The agency doctors made determinations from cursory examinations and the private doctors’ notes presented by respondent about when and whether, and under what conditions, respondent could return to work. It was they who told respondent when to report for duty. Dr. Gubitose, for example, testified that on December 15, 2004, respondent had a line of duty injury to his buttocks, and “high blood pressure, thyroid and an enlarged heart” (Tr. 783). Respondent was also overweight and short of breath, so Dr. Gubitose referred him to the Department’s cardiologist (Tr. 783). Dr. Gubitose decided to keep him off the job in the days surrounding his vacation: “I kept him off work and I told him to see Dr. Paulin [another agency doctor] after his vacation” (Tr. 783). Dr. Borisse Paulin, the Deputy Medical Director, at the Department’s medical clinic and a 20-year veteran of the clinic (Tr. 726, 736), an internist and specialist in cardiovascular diseases, explained that she examines patients, reads electrocardiograms, and evaluates who is able to work or cannot work, and who can return to work on light or regular duty. She described the responsibilities and duties of the clinic physicians as follows: “It depends on what’s wrong with the patient. Sometimes the patient will just come in and say, I had a cold and I’m ready to go back to work. They will examine the patient and decide that he is indeed able to go back to work. Basically, that’s what we’re there for, to decide, is this person capable of working a regular duty without any menace to the safety of himself or the citizen?” (Tr. 728). Likewise, Dr. Barbara Nichols, a Department Medical Review Officer, confirmed that her job is to determine sanitation workers’ fitness to return to work on full or light duty or their need to continue on sick leave or remain absent due to line-of-duty injury (Tr. 801-02). Dr. Paulin evaluates drug tests and reads electrocardiograms, but does not treat the patients (Tr. 726). Like Dr. Gubitose, she expressed concerns about respondent’s health and she made decisions that he should take light duty assignments as necessary or should stay home. Dr. Paulin read through respondent’s medical chart painstakingly at the trial. Due to the limitations -17- on the information the clinic doctors have from treating physicians, they can make a “working diagnosis” or form a “hypothesis,” but not a “definitive diagnosis” (Tr. 728-29). They do not take x-rays or prescribe medicine (Tr. 730). What came through clearly from her testimony was the respondent had a number of ailments and she was worried about his health. For example, she remembered respondent, and noted from the medical record that she had seen him on December 28, 2004. He had been out due to a line-of-duty injury that was by that time resolved, but he had a new complaint. “He had had a chest CAT scan which showed coronary artery calcification and peripheral nodules in the lower lobes of his lungs. So pending the resolution of those two problems or elucidation as to what his private physician’s treatment plan was, he was put out on sick leave. So he was changed from being sick for line-of-duty injury to a regular sick leave” (Tr. 737). Because she noted a cardiac problem, it was Dr. Paulin who decided to keep him out of work pending the receipt of additional information from respondent’s treating physician (Tr. 737-38). She gave respondent a note to his doctor seeking clarification of whether he needed an angiogram and whether he could do heavy labor. The doctor responded that respondent had “‘non-anginal chest pain’” and a “‘mildly positive nuclear stress test;” the treating doctor recommended “aggressive coronary risk factor intervention” and a repeat of the stress test in a year (Tr. 737-40). Dr. Paulin saw respondent again when he reported back on January 20, 2005. At that time, she noted that he was out with sinusitis, and had dizziness and ringing in his ears; he had a positive x-ray for chronic sinusitis and needed an MRI. She listed his numerous medications and “[i]mpression, cardiomyopathy/calcified coronaries” (Tr. 740). Dr. Paulin described sinusitis as an inflammation of the sinus that can bring with it headache, runny nose, congestion, and fever; in a worst case scenario, a patient referred to an ear, nose and throat specialist may have that doctor take special tests and “possibly puncture one of the sinuses and get a specimen to culture and find out what organism is growing, or you can do an MRI of the head, which frequently will also show sinusitis” (Tr. 741). She did not even examine respondent’s nose because she was concerned about his heart: “Well, first of all, he, I believe, had a history of sinusitis and I was not involved in that particular concern. What my concern was, was whether he had a cardiac problem that would prevent him from safely operating a vehicle, lifting garbage, whatever. So you would go for the most important thing at the time, and that was what I was interested in” (Tr. 741-42). Worried about “ischemia” or a cut- -18- off blood supply to the inferior wall of the heart, Dr. Paulin put respondent on very light duty for a month, with no driving, “[b]ecause I always try to err on the side of caution” (Tr. 743-44). Asked if in her medical opinion, respondent was faking illness, she said, emphatically, “No”: “As a physician, I’m not trained to believe that patients are faking an illness. It’s my job to listen to the complaints, review the material, and just as in the justice system, you are innocent until proven guilty. In my medical system, you are sick until proven well or vice versa” (Tr. 745). This is by no means a case of feigning illness. Dr. Nichols testified, like the other doctors, that she saw respondent on multiple occasions. She kept him out of work for as long as a week when his complaints and medical documentation indicated he was ill, as she did from August 10-17, 2004 (Tr. 804). She gave him “the benefit of the doubt” when he did not feel well and had an upcoming doctor’s appointment (Tr. 805). She saw him for lung infections, ear infections, and acute sinusitis. She knew about his surgery, the failed polypectomy in April 2005, and returned him to work on light duty on May 6 and to regular duty on May 16, 2005 (Tr. 804-16). In June, he returned to the clinic for nasal pain. In July, he had a laceration to his left foot and suffered from continuing sinusitis through October 2005 (Tr. 817-18). Dr. Nichols did not return respondent to work when he was sick: “If he has complaints, I respect his complaints” (Tr. 820). The third factor in PAP 2004-03 appears to be in respondent’s favor, although it is not clear whether the Department considers line-of-duty injury and medical duty assignments (light duty when the sanitation worker comes to work but cannot drive or pick up garbage according to the regular assignments) a mitigating factor: he had verified line-of-duty injuries that accounted for 6.9% of his absences. As for the fourth factor, attachment of absences to days off, the proof was that even though the majority of the absences surrounded days off, it was the Department’s own doctors who supervised and directed the length of respondent’s absences and the timing of his returns to work. Because the Department did not contend that respondent was faking, there is no occasion to hold the attachment of his sick days to scheduled days off to be evidence of malingering. See Murray, OATH Index Nos. 771/92, 772/92, 906/92, 907/92, at 10 n.6 (attachment of sick days to pass days irrelevant where the Department expressly disavowed claim of feigning illness). With respect to the fifth factor, there was no proof that respondent was avoiding overtime. The sixth factor was decidedly in respondent’s favor because his -19- medical notes were timely. The last factor is irrelevant here because there was absolutely no indication that respondent was evading drug or alcohol testing. In sum, because respondent complied with all documentation and reporting requirements, and because, in light of the fact that sanitation workers have “unlimited” medical leave, PAP 2003-04 did not provide notice that simply using a heretofore undefined “excessive” number of sick days, by itself, constitutes “abuse” of medical leave, I find that respondent did not violate PAP 2003-04. Incompetence Respondent is also charged with violating General Order 2002-6, Rule 7.3, requiring employees to be “physically and mentally capable of performing the duties of their title.” Both specifications state that respondent’s “chronic sick leave usage renders [him] incompetent and incapable of performing [his] duties as a sanitation worker.” We have treated “incompetence” and “incapacity” as referring to essentially the same concept. See Dep’t of Sanitation v. Mejia, OATH Index No. 317/03 (Oct. 4, 2002), appeal dismissed as moot, NYC Civ. Serv. Comm’n Item No. CD04-63-D (Nov. 17, 2004) (incarceration rendered an employee who was AWOL incapable of performing his job). The Commissioner may discipline employees for “incapacity” pursuant to Administrative Code section 16-106(5). The disposition of this charge again turns on the issue of notice. As discussed above, before the Department can succeed on any charge, it must show that the employee was on notice concerning the kind of conduct that constitutes a violation of the rule under which the employee is being charged. For reasons similar to those discussed above, I find that the Department has failed to show that respondent was on notice that the use of some “excessive” amount of medical leave alone constitutes actionable incompetence or incapacity. The Department’s policy regulating the use of medical leave, PAP 2004-03, as explained above, does not provide notice that excessive use of medical leave is grounds for disciplinary action. The question is, therefore, whether the rule requiring employees to be “competent” provides the requisite notice. It would be entirely reasonable to hold that an employee is on notice of possible disciplinary action for incompetence where he uses more medical leave than is allowed under a department’s policy. But Rule 7.3 simply cannot be read to impose a limit on the use of medical leave where medical leave is otherwise understood to be “unlimited.” Cf. -20- Cicero v. Triborough Bridge & Tunnel Auth., 264 A.D.2d 334, 335, 694 N.Y.S.2d 51, 53 (1st Dep’t 1999) (upholding charges of excessive absenteeism where policy clearly stated "excessive absence ... will be cause for dismissal” and the collective bargaining agreement provided for only twelve days of medical leave per year). More specific guidelines are necessary for employees to be deemed to know that heretofore “unlimited” medical leave is to be limited by a concept of an “excessive” amount of absence where there is no fraud or fakery or malingering. The undisputed medical testimony of Department doctors was that they had real concerns for respondent’s health and they would send him off-duty for specific medical reasons. Thus, there is not only no record of malingering; the overwhelming weight of the evidence showed that: respondent was legitimately ill; he documented his ailments properly and timely with notes from his treating physicians; the Department mounted no challenge to the particulars of his ailments on any medical grounds; it was the Department’s doctors who determined when he should stay away from work for medical reasons; and respondent appeared at the clinic as required without fail and did all necessary reporting. In addition, the Department cites only one case in which it has previously charged an employee with abuse or incompetence based on “excessive use of medical leave,” and no other has been brought to attention. That case, DeSantis, for the reasons noted above, is distinguishable. What Murray noted in the context of correction officers applies with full force here, namely that: It is an entirely new proposition that officers might be prosecuted, based solely on the number of their illnesses, without proof or even assertion that they were not legitimately sick or did not fully comply with sick leave regulations. . . . I conclude only that employees whose contract might reasonably have been read to entitle them to ‘unlimited’ sick leave cannot be held accountable for taking frequent sick leave unless the Department has enacted a rule or given some other form of notice that it intends to so hold its employees to account. In summary, although I find that the unlimited sick leave provision does not bar incompetency or misconduct charges based solely on a high frequency of sick days, and certainly does not bar charges based on direct or circumstantial evidence of improper use of sick days, I nonetheless find that, given their contract language, uniformed Department personnel must first be advised by rule or otherwise that excessive or frequent sick leave will trigger such charges. No such notice was alleged or proved here. Accordingly, I recommend that the charges against each of the respondents be dismissed. -21- Murray, OATH Index Nos. 771/92, 772/92, 906/92, 907/92, at 14-15. The only cases in which this tribunal has sustained charges of incompetence with respect to the Department have involved allegations of negligent or improper performance of job duties, absence without leave, and similar violations. See, e.g., Dep’t of Sanitation v. Singer, OATH Index No. 2033/00 (March 15, 2001). The problem here is that the Department has not notified employees that the use of sick leave alone, absent abuse of that leave (for illegitimate or unsubstantiated reasons), will subject employees to heavy discipline including termination. Again, Murray, OATH 771/92, is exactly on point. In Murray, the Department of Correction, whose employees have a contractual “unlimited” sick pay benefit, charged several correction officers with incompetence “based upon a pattern of excessive absence” resulting from use of medical leave. The charge was dismissed for lack of notice. In Murray, as in the present case, “[n]o one at the Department [] ever claimed that [the employees] were feigning illness,” and no Department rule specified that use of medical leave could result in charges of incompetence. This tribunal held in Murray that: [G]iven the scope of the Department’s programs to regulate sick leave, and the existence of the contract provision, undefined as to any limits, the lack of an excessive absence provision is telling. Further, the Department has not regularly brought incompetency proceedings, so that it cannot demonstrate any pattern or policy was known to the officers, and no evidence was prof[fered] showing that the respondents were cautioned that disciplinary consequences might flow from the sheer number of their absences. . . . In these circumstances, fundamental fairness dictates that no findings of incompetency should be made.

Murray, OATH 771-72/92, 906-07/92, at 4, 13. Respondent had no reason to believe, based on the written PAP 2004-03, and the generally understood rule that sick leave was paid without limitation, that he could lose his job for the sheer number of his absences where, as here, he was truly ill and had properly and timely documented every absence and had otherwise followed agency procedures for reporting. In a case subsequent to Murray, Department of Correction v. Valentin, OATH Index 836/94, at 13 (Feb. 22, 1995), this tribunal upheld charges of incompetence based on excessive use of medical leave. Explaining the difference in outcome, Chief Judge Rubin in Valentin stated, -22- In Murray . . . the charges were dismissed for the reason that the lack of a departmental rule defining “excessive absence” made it unfair to discipline respondents because they had no prior notice that they could be disciplined for such conduct. Petitioner’s promulgation of Directive [2258R], which clearly and unambiguously sets fort[h] reasonable time frames to define excessive absences serves to render this notice problem inapplicable in this case.

The policy at issue in Valentin provided, in 1995, that “[a] member who reports sick on thirteen (13) to forty-four (44) work days during a twelve (12) month period may be subject to disciplinary sanctions.” Id., at 6. The policy contained a similar section dealing with termination. No such rule is present in this case. Department of Correction Directive No. 2258R-A, effective February 14, 2000, which supersedes 2258R, now provides that employees who report sick 40 or more work days in a 12-month period or on 15 or more occasions in a 12- month period may be subject to termination. Under the revised policy, the Correction Commissioner must consider five factors, identical to five of the factors in PAP 2004-03, in “mitigation” before imposing termination or other discipline. The chronic absence notification that must be sent in writing to correction officers pursuant to the directive clearly reiterates the warning that termination may be imposed for the specific, defined, excessive absence. Directive 2258R-A has been applied by the Correction Department to effectuate termination of employees who exceed the limits on absenteeism set forth therein. See, e.g., Dep’t of Correction v. Crenshaw, OATH Index No. 172/04 (Feb. 20, 2004), aff’d, NYC Civ. Serv. Comm’n Item No. CD04-76-SA (Nov. 17, 2004). Given the existence of the 44-year-old unlimited sick pay provision in the Sanitation Department, no rule providing that “excessive” use constitutes incompetence, and no history of bringing contested incompetence charges on these grounds, in this case, as in Murray, “fundamental fairness dictates that no findings of incompetency should be made.” Murray, OATH 771-72/92, 906-07/92, at 13. While Murray and Valentin were cases brought under the Civil Service Law, and this matter comes under the Administrative Code, the issues concerning “incompetency” under the Civil Service Law and “incapacity” under the Code are analogous. See DeSantis, OATH 1494/05, at 8; Civil Service Law § 75(1); Admin. Code § 16-106(5). Murray and Valentin both noted that even a collective bargaining agreement providing for unlimited sick leave is not a perpetual job security clause for those who, while not disabled, are -23- absent so much that they become unfit or unable to perform the duties of their positions. The cases refer to other case authority that holds that such paid, prolonged absence would be against public policy, as the government would have to pay salaries in perpetuity while the public would have no services in return. But both cases stand for the proposition that the employer must promulgate clear and unambiguous notice to its employees that they could be disciplined for excessive absence alone, where they have been induced to believe by contract, and longstanding practice, that they could take unlimited amounts of sick leave without penalty. Once that notice is provided, as it was after Murray, as discussed in Valentin, “excessive” absence may be punished through disciplinary proceedings, and the myriad cases finding imcompetence for excessive absence would then become relevant. As for respondent’s alleged violation of General Order 2002-6 Rule 3.2, “conduct prejudicial to good order,” we have generally found violations of this rule in the context of intentional misconduct. See, e.g., Dep’t of Sanitation v. Marquez, OATH Index No. 1209/02 (July 12, 2002), aff'd, NYC Civ. Serv. Comm'n Item No. CD03-45-SA (June 12, 2003) (using disrespectful language to a superior). Because use of medical leave when one is legitimately sick is not intentional misconduct, I find respondent did not violate this rule. In sum, I find that respondent was not on notice that “excessive” sporadic absences due to bona fide illness are chargeable as incompetence or incapacity. Therefore, petitioner has not met its burden of showing by a preponderance of the credible evidence that respondent violated either General Order 2002-6, Rule 7.3 or Rule 3.2.

FINDINGS AND CONCLUSIONS Petitioner failed to prove by a preponderance of the credible evidence that respondent abused medical leave, in violation of PAP 2004-03, by using medical leave “excessively,” or that respondent was incompetent due to his “excessive” use of medical leave. -24- RECOMMENDATION In sum, I find that petitioner failed to prove that on this record respondent violated Department rules as written. This is not to say that the Department could not redefine incompetence to reach a case like this one, involving a substantial number of absences as “excessive,” but there is no need to reach that question in the case presented here. Because there was no proof that respondent violated existing rules and procedures, I recommend that the charges be dismissed.

Joan R. Salzman Administrative Law Judge August 11, 2006

SUBMITTED TO:

JOHN J. DOHERTY Commissioner

APPEARANCES:

CARLTON LAING, ESQ. Attorney for Petitioner

KIRSCHNER & COHEN, PC Attorneys for Petitioner BY: ALLEN COHEN, ESQ.