Dep T of Correction V s1

Dep’t of Correction v. Rodriguez OATH Index No. 277/06 (Mar. 29, 2006)

Correction officer not guilty of disrespect, failure to secure her post and disobedience of an order to do so, and making false or misleading statements. ALJ recommended dismissal of charges. ______

NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of DEPARTMENT OF CORRECTION Petitioner - against - MARTA RODRIGUEZ Respondent ______

REPORT & RECOMMENDATION TYNIA D. RICHARD, Administrative Law Judge This disciplinary proceeding was referred by petitioner, the Department of Correction ("Department"), pursuant to section 75 of the Civil Service Law. Respondent Marta Rodriguez is a correction officer charged with disrespect, insubordination, and making false and misleading statements. Respondent denies the charges. The hearing was conducted before me on October 20 and November 16, 2005. Petitioner presented the testimony of Deputy Warden Peter Panagi, Captain Walter Perez, and Officers Louis Giraldi and Carmen Brito. Respondent testified on her own behalf and called as witnesses Captain Gregory Borges and Correction Officers Audrey Bailey, Luis Centeno and Christopher Clavell. For the reasons set forth below, I find that petitioner failed to prove the charges, and they should be dismissed. ANALYSIS Correction Officer Marta Rodriguez is charged with three specifications concerning events occurring on March 28, 2005, the date she reported for duty at Bellevue Hospital Prison Ward. Specifically, she is charged with disrespecting her commanding officer, failing and refusing to secure her post, and making false and misleading statements regarding her medical -2-

-2- condition and the condition of her post. Petitioner contends that the events alleged in the charges were set in motion when respondent feigned illness in order to be transferred from her assignment at Bellevue. Since 1994, Officer Rodriguez has suffered from an illness called “sarcoidosis.” She testified that it is an disease that attacks a person’s vital organs, in her case her lungs and eyes (Tr. 147-53). It has caused her to contract infections in her ears and sinuses, and body lesions for which she receives injections of the medicine Prednisone. The disease recently spread to her upper extremities and chest. In 1999, the Department granted her a reasonable accommodation (“due to a respiratory condition”) and assigned her to Elmhurst Hospital Prison Ward (Resp. Ex. F). She said she applied for the accommodation because the cigarette smoke prevalent around the inmates made her sick. After a few months at Elmhurst, she was transferred to Bellevue Hospital Prison Ward, where she remained until 2003 when she went out on medical leave after being assaulted by an inmate. When she returned from leave a few months later, the 19th floor where she worked was under construction. Working around the construction dust made her ill. As her illness progressed, her Prednisone dosage was increased, and she asked her commanding officer for a post that would accommodate her illness. By October 14, 2004, respondent had developed an asthma that was attributed to the construction dust, and her doctor advised that she be put on light duty (Resp. Exs. A & D). As a result of that request, respondent was placed on Medically Monitored Status (“MMR”) and she was transferred to work at the Health Management Division (“HMD”). Officer Rodriguez produced the letters written by her doctor, Cynthia Caracta, M.D., of Mount Sinai School of Medicine, a specialist that she started seeing at the end of 2003 when she experienced a severe flare up that caused facial lesions (Tr. 153). These detailed letters, dated May 20, August 19, October 15, and November 1, 2004, and June 10, 2005, describe respondent’s illness, its triggers and its affects on her (Resp. Exs. A-E). Disrespect Specification 1 charges respondent with exhibiting disrespectful demeanor and language toward her commanding officer during a conversation in which she demanded to be returned to her prior work assignment at HMD. -3- Deputy Warden Peter Panagi is the commanding officer of Bellevue Hospital Prison Ward (Tr. 16-18). After renovations of the facility were completed, the deputy warden was given authorization to staff new posts with officers who were on MMR status and had been temporarily sent to other facilities. Officer Rodriguez was one such officer. Deputy Warden Panagi assigned her to the satellite control room on the 19th floor, a post that required no inmate contact (Tr. 84). On March 28, 2005, respondent reported to Bellevue for the 0730 to 1531 hours tour. According to Deputy Warden Panagi, Officer Rodriguez went into his office that morning and asked why she had been returned to Bellevue; he explained that he had new posts to fill and had requested the MMR officers because he could not get full-duty officers (Tr. 28-29). Respondent told him that she had no intention of staying at Bellevue and that she wanted to be returned to her former post at HMD. She angrily stated, “you do what you got to do, and I’ll do what I got to do,” which he understood to mean that she would do whatever she could to get out of this assignment. He said he considered her conduct to be disrespectful and insubordinate, but he wanted to give her an opportunity to adjust to her new post. Deputy Warden Panagi later admitted that, during their conversation, Officer Rodriguez had informed him that she had a “skin disorder” called sarcoidosis (Tr. 34, 45). He was not sure what this illness was, and when he later heard that she had an asthma attack, he thought she was faking it in an attempt to get reassigned (Tr. 38-39). No other officers placed in the satellite control room had experienced respiratory difficulty. He said he never reviewed her file to determine why she was on MMR status, and he admitted that, at the time of trial, he still did not know what her illness was (Tr. 44). He testified about the substantial preparation of the satellite control room for use and said it was clean and well-ventilated when respondent arrived. Respondent denied being disrespectful to the deputy warden in language or demeanor (Tr. 189). She testified that, after roll call, she went to Deputy Warden Panagi’s office and met with him (Tr. 159-60). She told him that for many years she has had a serious illness and she had stopped working at that facility because she developed an asthma. In the past, MMRs had not been placed in that facility. She asked why she had been returned to the facility without -4- -4- being cleared by her private doctor or her doctor at HMD, and she expressed concern about where she would be assigned. She told him she was afraid that her illness would worsen. Deputy Warden Panagi told her that he would see what he could do for her, and she left. She said they did not talk about a post; he told her to see the control room captain for her post. When she left, she was confident that he would look into it. She denied demanding that she be returned to HMD (Tr. 161-62). She denied saying, “you do what you got to do, and I’ll do what I got to do.” As they talked, the deputy warden seemed taken aback that she was trying to speak with him and he cut her off as she tried to explain her illness, reminding her that he needed the staff. She was relieved when he said he would look into it. Although both witnesses appeared credible, some of the testimony was more believable. I noted that respondent evinced a calm demeanor and provided a detailed description of her illness which demonstrated a familiarity with her symptoms and the evolution of the illness over the years. It was not plausible that she would use her first opportunity to describe her illness to her commanding officer by referring to it simply as a “skin disorder,” particularly given the undisputed fact that her purpose in doing so was to convince him of the seriousness of her condition. Rather, it was more likely that the deputy warden, who was ultimately concerned with getting his new staff assigned and functioning in this recently renovated facility, did not listen to the details. I therefore credited Officer Rodriguez’s testimony about this encounter over Deputy Warden Panagi’s version. Respondent said that she left the conversation believing that the deputy warden would look into her condition and request, but in actuality the deputy warden demonstrated no interest in her condition and made little effort to find out what the illness was even by the time of trial, even though he arguably had an obligation to do so since she had a reasonable accommodation on file. See Jackan v. New York State Dep't of Labor, 205 F.3d 562, 566 (2d Cir. 2000) (employer has a duty to engage in an interactive process with an employee to find an appropriate accommodation based on the employee’s limitations); Felix v. N.Y. City

-5- Transit Auth., 154 F. Supp. 2d 640, 658 (S.D.N.Y. 2001), aff’d, 324 F.3d 102 (2d Cir. 2003); Human Resources Admin. v. Varone, OATH Index No. 695/01, at 11 (Dec. 26, 2001).1 I also found it difficult to believe that respondent initiated her contact with her new commanding officer by issuing him an angry challenge, “you do what you got to do, and I’ll do what I got to do,” with no apparent provocation, according to Deputy Warden Panagi’s version of the conversation. There was nothing in respondent’s demeanor that suggested this was likely. Moreover, it was not clear that uttering such a statement would constitute misconduct. Although the statement could be consistent with an officer later deciding to fake an illness, the evidence did not substantiate a conclusion that respondent’s asthma attack was faked, as is discussed below. Having failed to establish by a preponderance of the credible evidence that respondent acted disrespectfully toward Deputy Warden Panagi, the Department did not prove the charge. Thus, I recommend dismissal of Specification 1. Failure to Properly Secure her Post, Disobeying an Order Respondent is charged with failing to secure her post and failing to obey an order to do so. Deputy Warden Panagi testified that, at approximately 1225 hours, he saw the door to the satellite control room “wide open,” which he said was a security breach (Tr. 29-30, 51). He contacted Captain Walter Perez, the area supervisor, and told him to address the matter. Although Deputy Warden Panagi was touring the facility at the time, he did not tour the satellite control room and did not make a log book entry regarding the open door. In fact, he did not approach the control room at all, either to confront the officer or to order her to close the door. He first said that he did not recall seeing respondent inside the room, because there was not a -6- direct view into the room from the elevator lobby where he stood (Tr. 51-52). Nevertheless, he said he was “pretty certain” that Officer Rodriguez was in there.

1 Deputy Warden Panagi said that, initially, he did not intend to write up respondent for her behavior in his office, but he decided to do so after she filed an appeal of her Chronic Absent status (Tr. 47). His Memorandum of Complaint is dated June 8, 2005, more than two months after the incident alleged (Pet. Ex. 1). Respondent’s grievance, dated April 28, 2005, claims that the Department failed to act in accordance with its own reasonable accommodation (Resp. Ex. G) and provides a motive for the deputy warden to testify falsely to defend his actions in the face of possible legal action. -6-

The log book indicates that Officer Rodriguez was relieved for her lunch break by Officer Bailey at 1200 hours and did not return to post until 1300 hours (Pet. Ex. 9). When confronted with the log book entry, the deputy warden maintained that he was “pretty certain” that respondent was in the control room at 1225 hours (Tr. 56). Later, when prompted on redirect examination, Deputy Warden Panagi amended his earlier testimony and firmly stated that he did see Officer Rodriguez in the control room when the door was open (Tr. 65). This evolution in the supervisor’s testimony diminished his credibility. The most credible evidence established that respondent was not in the satellite control room at 1225 hours. Captain Perez’s entry in the log book noted his first interaction with Officer Rodriguez at 1305 hours, and he testified that, when he visited the control room at 1225 hours, he spoke with Officer Bailey who was on duty then. I therefore concluded that Deputy Warden Panagi was not telling the truth when he said he saw respondent in the room at that time. Deputy Warden Panagi testified that Captain Perez reported to him that he too saw the door wide open, that he directed respondent to secure it, and she refused to comply (Tr. 30). Captain Perez did not fully confirm this version of his interaction with respondent. Deputy Warden Panagi said the captain discussed respondent’s medical condition with him, and he admitted that Captain Perez relayed to him Officer Rodriguez’s request to leave the door open for ventilation because of her medical condition (Tr. 60). He denied the request and told the captain that the room was properly ventilated and the door had to be secured. Although he did not meet with respondent at the time, the deputy warden stated that she was not exhibiting signs of distress at the time that she spoke to the captain, but was merely making an argument for leaving the door open (Tr. 61). Later that day, he was informed that Officer Rodriguez was taken to the emergency room. Captain Perez testified that it was “around noon” when Deputy Warden Panagi told him that the satellite control room was in operation and to make sure that the door remained secured (Tr. 84). The deputy warden did not tell him that he had earlier observed the door open. During -7- his first visit to the mini control room, around 1230 hours, Captain Perez said he spoke with Officer Bailey, the meal relief officer, and told her that the door needed to remain secured (Tr. 71, 87). His second visit was around 1305 hours, after Officer Rodriguez had returned; he observed the door open and he told respondent that the door needed to be secured and ordered her to close it (Tr. 72). She told him that she had a medical condition, asthma. He told her he would speak with the deputy warden about it (Tr. 73-74). She was not wheezing or coughing nor did she appear in any distress at the time. Because he was not familiar with officers on MMR status, he conveyed respondent’s medical concern about her asthma to the deputy warden and asked for his guidance; the deputy warden said that the post was sufficient, and the door should remain closed. He told the captain to take action if she refused to close it. When the captain returned, respondent was standing in the doorway to the post speaking with the union delegate and the door was open (Tr. 74-75, 105). The delegate walked out and Captain Perez told respondent that she would not get a change of post, and she had to secure the door. Respondent said, “no problem.” The captain then made a log book entry indicating that he had ordered respondent to secure the door at 1305 hours (Pet. Ex. 9). He told Officer Rodriguez not to hesitate to notify the control room for immediate relief if she began to feel sick. Captain Perez went to the main control room and was told that respondent had called and complained about feeling sick. He returned to her post and found her coughing and saying that she was having an asthma attack. She was standing in the doorway of the control room (Tr. 105). She did not have an inhaler in her hands, and she was not wheezing or gasping for breath (Tr. 76). Based upon his knowledge of asthma, which he said he also suffered from, she was not having an asthma attack. He was unfamiliar with the medical condition “sarcoidosis.” (Tr. 94). He said that, if he was instructed by a supervisor to do something that might trigger an asthma attack, he would not do it (Tr. 82). Captain Perez said that he was not certain whether Officer Rodriguez secured the door after he left (Tr. 94-95). Altogether, he observed the door opened for just a few minutes during his two visits to her post before and after he consulted with Deputy Warden Panagi (Tr. 101). He said that he would not have written her up for this incident (Tr. 98). -8- Respondent testified that she was escorted to her post in the satellite control room and given instructions for working the post by Captain Gregory Borges and Officer Louis Giraldi (Tr. 162-63). She immediately noticed dust on her chair. She said the room was not big enough for much more than one person, and lockers had been placed in the room. She said she remained -8- on post with the door closed from the time she entered around 0731 hours until she was relieved for lunch at 1200 hours (Tr. 164-65). During the morning, she felt symptoms of her illness, including a dry throat, a headache, and pain on the sides of her neck, and she used her asthma pump two or three times that morning. She returned from lunch at 1300 hours feeling sick; her headache had worsened and she had chest pain (Tr. 166). She said that Officer Bailey, her meal relief officer, commented that she felt claustrophobic in the room and had gotten a headache. After lunch, respondent left the door open because she needed more air in the room (Tr. 189). A few minutes later Captain Perez came by and told her that her door should be closed; she said he did not give her an order at that time (Tr. 166-68). She told him that she did not feel well, and she had asthma. He told her he would see if her post could be switched for the afternoon. He returned a few minutes later and said that a switch was not possible, and the deputy warden wanted her to close the door. He left, and she closed the door. When Officer Luis Centeno arrived minutes later, respondent was feeling bad; she had a headache and chest pain. She stepped out of the room to get air while Officer Centeno made a call on his radio. A few minutes later, Captain Perez appeared with the union delegate; respondent said the delegate wiped dust from the top of the lockers. Officer Carmen Brito later arrived and escorted respondent to the emergency room. In the emergency room, respondent explained her illness and medications to the doctor (Tr. 168-69). The doctor said that her lungs had “peaked” and he administered a breathing treatment. He told her not to return to work until she had been seen by her personal physician. Respondent said she had a headache for the next three days. Her note from Bellevue Hospital indicates a medical diagnosis of “asthma/sarcoidosis” (Pet. Ex. 6). Respondent was examined by her physician, Dr. Caracta, on March 31, 2005, the next date the doctor was available (Tr. 171). Dr. Caracta’s Treating Physician’s Summary Report -9- states that respondent had an “acute allergic event” and “asthma and sarcoidosis exacerbation” (Pet. Ex. 4). It states that the “physical exam shows increased nasal and facial lesions,” and that the doctor increased respondent’s Prednisone dosage, and continued her Advair, Albuterol and Plaquenil medicines. That day, respondent’s lung capacity was measured at 59% (by June 10, it had “normalized” at 82%) (Resp. Ex. E). Because she did not pass the breathing test, Dr. Caracta recommended respondent remain out on sick leave until she could pass the test, so she remained out for two weeks. As a result of this absence, respondent was placed in the Chronic Absent category (Tr. 169). After seeing Dr. Caracta, respondent took her report to her doctor at HMD, who decided that she could not return to Bellevue. Respondent testified that she now has allergies as a part of her asthma, which react whenever she encounters dust (Tr. 178-79). She has new medications and also sees an allergist. When a directive or order is given, correction officers are to hew to the rule of “obey now and grieve later.” Ferreri v. New York State Thruway Auth., 62 N.Y.2d 855, 477 N.Y.S.2d 616 (1984). There is an exception to that rule in the case of medical necessity, where there is an imminent threat to the health or safety of the employee or others. Reisig v. Kirby, 62 Misc. 2d 632, 309 N.Y.S.2d 55 (Sup. Ct. Suffolk Co. 1968), aff'd, 31 A.D.2d 1008, 299 N.Y.S.2d 398 (2d Dep't 1969) (nurse’s aide in a county infirmary who was sick and instructed by her doctor to stay home for six weeks was physically unable to comply with the superintendent's order to return to work in two weeks because of a staff shortage). Such an exception is narrowly construed, and the burden of proof is borne by respondent. See Health and Hospitals Corp. (Kings County Hosp. Center) v. Gordon, OATH Index No. 1843/98, at 8-10 (Nov. 2, 1998). Respondent contends that the satellite control room was improperly ventilated and that she felt the effects of the dust and poor ventilation immediately upon entering the room, and she became progressively worse as time passed. The medical evidence indicates that respondent suffered an asthma attack. Respondent convincingly testified about the progression of her illness that day, and she was administered a breathing treatment at Bellevue and still had reduced lung

-10- capacity on March 31st when tested by her private physician (Resp. Ex. E). The existence of her illness, sarcoidosis, is well-documented in her doctor’s notes (Resp. Exs. A-D).2

2 Moreover, respondent’s symptoms are consistent with those listed for the disease “sarcoidosis” on the website for the National Institutes of Health (“NIH”), located at http://www.nhlbi.nih.gov/health/dci/Diseases/sarc/sar_ signsandsymptoms.html. Specifically, the website lists symptoms of dry cough, chest pain, tender lymph nodes in the neck, and “disfiguring skin sores that may affect your nose, nasal passages, cheeks, ears, eyelids, and fingers.” (ALJ Ex. 2, p. 1 of 4). On respondent’s motion, official notice was taken of this information. See Dollas v. W.R. Grace & Co., 225 A.D. 2d 319, 320, 639 N.Y.S.2d 323, -10-

Petitioner must establish three elements to prove misconduct by refusal to obey an order: (1) that an order was communicated to respondent which she heard and understood; (2) the contents of the order were clear and unambiguous; and (3) respondent willfully refused to obey it. Dep't of Correction v. Graham, OATH Index No. 1380/03, at 16 (Feb. 25, 2004). Captain Perez stated that he issued two orders to close the door, minutes apart from each other, before and after he checked with Deputy Warden Panagi about whether respondent could leave the door open because of her medical condition. I did not believe that he gave respondent an order before he left to talk to the deputy warden, because he acknowledged that he left her with the possibility that she might be permitted to leave the door open. Even though the door was open when he returned, he did not admonish her then for disobeying his order. In this ambiguous circumstance, I found his actions at variance with his testimony that he issued an order to leave the door closed. See Dep't of Correction v. Hipp, OATH Index No. 337/00 (Dec. 3, 1999) (officer did not disobey order that was ambiguous as to when it should be carried out). Noting that he saw the door open for only a few minutes in total, the captain also stated that he would not have filed disciplinary charges for this incident. Moreover, even if the order had been unambiguous, I did not find that respondent’s actions under the circumstances of her illness constituted willful disobedience of Captain Perez’s order, because the evidence showed that she had a medical necessity to leave the door open for the time that it was open. -11- Accordingly, I recommend dismissal of Specification 2. False and/or Misleading Report Respondent is charged with making false and misleading statements in a document she submitted in support of her appeal of the Department’s decision to classify her as Chronic Absent.

324 (1st Dep’t 1996) (judicial notice may be applied to matters "of common and general knowledge, well established and authoritatively settled, not doubtful or uncertain. The test is whether sufficient notoriety attaches to the fact to make it proper to assume its existence without proof"); 48 RCNY § 1-48 (ALJ may take official notice of any fact which may be judicially noticed by the courts of this state). Petitioner had no basis for attacking the authoritativeness of the NIH to provide such information. The basis of this charge appears to be twofold: the Department’s position that Officer Rodriguez faked an asthma attack on March 28th, and its contention that she intentionally misrepresented in her appeal the conditions of the satellite control room and the hazard to her created by the presence dust or other materials inside the room. As an initial matter, the Department failed to establish that respondent fabricated her illness or the asthma attack she suffered on the date in question. The Department had been on notice at least since 1999 that respondent has a respiratory illness, as indicated by the reasonable accommodation it accorded her (Resp. Ex. F). The evidence of and explanations for respondent’s workplace disabilities are thoroughly documented in her doctor’s detailed letters to the Department (see Resp. Exs. A-E). As early as May 2004, Dr. Caracta wrote: I am satisfied pending the receipt of her original slides if possible that Ms. Marta Rodriguez does suffer from significant sarcoidosis that is clinically active at this time both particularly with her skin lesions that are debilitating. She will require treatment with prednisone and/or Plaquenil therapy and this will be initiated today. I am requesting reasonable accommodations free from fumes, dust and other hazardous areas that may affect her chronic sarcoidosis and her pulmonary condition.

(Resp. Ex. B). In November 2004, Dr. Caracta documented respondent’s reaction to exposure to construction dust at work: I had the opportunity to see Ms. Marta Rodriguez on 10/15/04. She had an exposure to construction dust at the work site. She has had intermittent lip swelling and chest tightness and a rash. She continues on prednisone ... and Plaquenil ... for her chronic sarcoidosis.

-12- . . . . The impression is that of chronic sarcoidosis likely asthma either related to her sarcoidosis versus her exposure to dust at the construction work site. We will treat her as environmentally related or triggered hyperreactive airways disease.

(Resp. Ex. D). Dr. Caracta’s June 10, 2005, letter states that “The impression is that of resolving asthma exacerbation, stable and resolving cutaneous sarcoidosis on a prednisone taper. . . . She is back to full duty with reasonable accommodations from environmental dust and fume -12- exposure.” (Resp. Ex. E). The letter also indicates that respondent’s lung capacity had improved to 82% from 59% measured a few days after the incident. I found the medical evidence to be compelling, and it convincingly established that respondent was ill and was experiencing respiratory distress, an asthma attack, on the day in question. The Department’s proof that respondent was faking consisted of the testimony of Deputy Warden Panagi and Captain Perez that they know about and have witnessed asthma attacks before, and respondent’s condition that day did not, in their opinion, constitute an asthma attack (Tr. 43). The supervisors expressed these opinions in spite of the fact that neither had reviewed respondent’s medical documentation. Deputy Warden Panagi was convinced she was faking based on Captain Perez’s description alone; he did not see respondent at the time she claimed to be in distress. This speculation did not stand up to the contrary medical evidence.3 -13- Deputy Warden Panagi theorized that, because he had ordered a thorough cleaning of the satellite control room prior to respondent’s arrival and had inspected it himself and found it to be clean, respondent could not possibly have had a respiratory reaction to particulate matter in the room (Tr. 31, 50, 66). While respondent disputes the condition of the control room, claiming that the dust in the room was noticeable and the ventilation poor, it is safe to say that, whatever particulate matter was in existence, was sufficient to trigger her asthma attack which was established by the medical evidence. The deputy warden’s conviction that respondent was faking could have, and should have, been checked by a conversation with her HMD doctor,

3 The deputy warden conveyed his suspicion also by writing a memorandum to respondent’s command at HMD reporting information he received from another officer that respondent had been seen wearing exercise gear “at an undisclosed gym” near her home (Pet. Ex. 5; Tr. 36-37, 62-63). The memo said that this information could “impact her current Medically Monitored Status and/or any Workers Compensation claims that she may have.” He never heard back from HMD regarding the matter. Respondent contended that this demonstrated his bias against her. The suspicion that respondent’s medical claim was fraudulent was conveyed even by the Department’s advocate who, without challenging the authenticity of respondent’s doctor’s notes which were submitted on Mount Sinai stationary and meticulously described her condition and its progression over time, objected to their admission on the basis that her private treating physician, as opposed to a doctor appointed by the Department, was inherently biased in her favor (Tr. 8, 156-58). At no time did the Department submit contrary evidence from any of its own doctors, or submit a basis for asserting bias; the objection was overruled. Counsel also requested that all references to respondent’s condition be excised from the doctor’s notes, even though it was clear that her defense relied upon them. I found this request unworthy of serious consideration. review of the medical records and the detailed letters written by her private doctor, and/or review of the reasonable accommodation that the Department granted because of her “respiratory condition,” but he never reviewed her file. Additionally, the Department contends that respondent made false and misleading statements about her condition and the condition of her post in her appeal of the Department’s decision to classify her as Chronic Absent. Deputy Warden Panagi testified that the statements that Officer Rodriguez made in her appeal were “filled with lies and not one iota of truth” (Tr. 36).4 The tenor of this testimony was consistent with the deputy warden’s reaction to respondent’s illness, defensive and reactionary. Unlike the mandated reports written by Department employees in the ordinary course of their work, the appeal was a document in which respondent advocated her position that she should not be designated Chronic Absent because of the circumstances under which she became ill, which she contended was the fault of the Department. Therefore, unlike mandated reports, the purpose of the appeal was not only to state facts but also to advocate a position. Inasmuch as -14- the Department denied the appeal, it obviously disagreed with the facts and/or argument presented by respondent. The mere fact of the Department’s disagreement in and of itself is not a basis for sanctioning respondent. The context of respondent’s written appeal are only sanctionable to the extent that respondent made material misstatements of the facts or circumstances with the intent to deceive. See Dep’t of Correction v. Biland, OATH Index No. 569-70/89, at 7 (Mar. 6, 1990) (inconsistency and imprecise language in ordered report were not intentionally false statements). The second paragraph of respondent’s appeal contains several statements at issue. In the appeal, respondent states that on her post she was exposed to “hazardous construction materials” (Pet. Ex. 2). Respondent said that she got the term from her doctor, and that the dust from the sheetrock was hazardous to her because of her illness, and the poor ventilation made it worse (Tr.

4 On April 19, 2005, respondent was designated as “chronic absent” (Pet. Ex. 10). An officer obtains this designation if he or she was out sick for 12 or more days (Tr. 33). Respondent filed an appeal on April 28, 2005, which was denied by Deputy Warden Panagi on May 25, 2005 (Pet. Exs. 2 & 3). The reason stated for the denial was that the appeal was “filled with inaccuracies and blatant lies/falsehoods created to substantiate a workers’ compensation claim.” Under the designation, the “nature of the illness” is considered a mitigating circumstance (Pet. Ex. 10). Respondent believed that the nature of her illness was sufficient to mitigate the designation. -14-

174, 185). In her May 20 letter, Dr. Caracta requested a reasonable accommodation for respondent that was “free from fumes, dust and other hazardous areas that may affect her chronic sarcoidosis” (Resp. Ex. B). The doctor repeated this phrase in her August 19 letter (Resp. Ex. C). Under the circumstance of respondent’s medical condition and the severe reaction she had to the dust, clearly, the dust was a hazard to her.5 While the characterization “hazardous construction materials” may be an overstatement given the fact that the hazardous material was actually dust, I did not find her use of the term to be intentionally false or misleading. The appeal states that she “explained my chronic pulmonary condition” to Deputy Warden Panagi, which I find that she did. Deputy Warden Panagi’s claim that she described her illness merely as a “skin disorder” was not at all credible. The appeal states that she was assigned to an area that was “being utilized as a storage area for lockers,” which petitioner denied, although it submitted a photograph of lockers inside the control room (Pet. Ex. 15-D). The officer assigned to the satellite control room the day after respondent’s asthma attack, Officer Christopher Clavell, testified that there were lockers in the room on the day that respondent was there, but they had been removed by the time he reported -15- the next day (Tr. 221-24).6 Officer Louis Giraldi admitted they were taken out to be cleaned (Tr. 113). A week later, the lockers were returned to the room, and, since then, they had been moved in and out several times. This and other testimony suggested that the satellite control room was, indeed, used to store the lockers periodically, as they were not assigned a permanent position there and had other purpose for being there (Tr. 109-10). The appeal states that the post was “formerly used as the Hospital’s storage area for housekeeping equipment,” which petitioner denies. Respondent testified that, before the construction, that room had been used to store mops, the cart used by the housekeepers as they worked, and other housekeeping equipment (Tr. 175-76). She insisted that the four walls of that room were the same as before the construction; only the purpose of the room changed. The

5 Note that respondent’s reaction to dust was the reason for her transfer out of Bellevue in 2004 (Resp. Exs. A & D).

6 He also testified that the room smelled like Windex when he opened the door, the floor was white as if freshly buffed, and there was the smell of fresh paint (Tr. 227-28). Department contended that the room was completely reconstructed with new sheetrock walls (Pet. Ex. 11). There was no proof that respondent’s statement on this point was anything more than a mistaken belief, if that. Accordingly, I did not find any of the statements in this paragraph to be false or misleading in a material way. The third paragraph in the appeal contains several statements at issue. Respondent states that she was in “this closet full of construction dust and dirt with the doors locked and no ventilation from approximately 0730 hours until I suffered a server [sic] asthma attack at approximately 1330" hours. There was no dispute that respondent kept the door closed until she went to lunch at 1200 hours (Tr. 164). However, this statement falsely implies that respondent was in the room continuously until 1330, when in fact she left for her lunch hour from 1200 to 1300 hours. The purpose of the appeal was not to prove the number of hours she worked that day; it was to describe the situation that caused her to be ill and to take extended sick leave. In this context, I did not find the one-hour deviation to be material or intended to misrepresent what -16- happened. See, e.g., Dep’t of Correction v. Galarza, OATH Index Nos. 348/90 & 433/90, at 22 (June 11, 1990) (statement not sanctionable unless it is due to "some fault, not mere inadvertence or poor drafting"); Transit Auth. v. Godas, OATH Index Nos. 1357-59/90, at 26 (Dec. 3, 1990) (error was not proven to be "inaccurate to a sufficient extent or in a sufficient fashion as to make an inference of intentional or careless falsification more likely than an inference of inadvertent error"). The Department points out respondent’s reference to the satellite control room as a “closet,” which of course it was not. The word “closet” was descriptive and likely was intended to emphasize the small size of the room, which was estimated by witnesses to be 12 ft. by 7 ft. or 9 ft. by 6 ft. in area (Tr. 31, 118). The room contained a single workstation with a chair and a window for observing visitors (Tr. 163). Although the reference was an exaggeration, I did not find it to be sanctionable misconduct. Respondent said there was construction dust and dirt and improper ventilation, and there was much disputed testimony on this point. Respondent testified there was visible dust in the room, while petitioner’s witnesses testified about the absence of dust and the pains taken to -16- ensure the cleanliness of the room prior to respondent’s arrival. Indeed, the amount of attention allegedly given to the room according to petitioner’s witnesses seemed excessive; Officer Giraldi testified that the small room was cleaned on the Thursday and Friday before respondent reported, and was damp mopped prior to her arrival on the morning of March 28 (Pet. Ex. 7; Tr. 111-12). Nevertheless, the medical evidence showed that respondent, who has a sensitivity to construction dust, became ill that day. It is likely that normal cleaning methods were insufficient to eradicate the construction dust, which is very fine and difficult to remove; clearly, whatever was done did not prevent a flare up of respondent’s condition. Indeed, some difficulty was suggested by the number of times that this small space was cleaned, which offered the possibility that dust continued to infiltrate the room perhaps because there was new venting that was not yet working properly. Given the recent renovation, there could be any number of reasons why there might be ambient dust. Petitioner’s witnesses vehemently denied respondent’s contention that dust covered the lockers and denied that the room had any dust in it, with Deputy Warden Panagi -17- stating that the room had been “sanitized,” yet before the day ended they had removed the lockers from the room for further cleaning. The next day, the room smelled freshly painted. On this record, I did not find respondent’s statements concerning the dust to be false or misleading. Regarding ventilation, Officer Clavell credibly testified that, when he arrived on the post the next day, the ventilation was not working properly. He could hardly feel air coming out of the two vents, and the room was hot (Tr. 226). He said that he keeps the door closed while on post, but he opens it periodically to let the air flow because the room becomes stuffy. Over a period of time on the post, conditions improved, but as of the time of trial, the vent in the back of the room still did not work. This witness was believable and, with no known motive to testify falsely, credibly corroborated respondent’s contention that the room had poor ventilation. Petitioner also disputes that respondent suffered an asthma attack, but the evidence established that she did. The evidence also established that this event, which caused respondent’s poor lung function, led to her two-week sick leave (Resp. Ex. E). Accordingly, I did not find any of the statements in this paragraph to be intentionally false or misleading. Thus, Specification 3 should be dismissed. -18- FINDINGS & CONCLUSIONS

1. Petitioner failed to establish that respondent was disrespectful to a supervisor.

2. Petitioner failed to establish that respondent failed and refused to secure her post.

3. Petitioner failed to establish that respondent made false and/or misleading statements.

THEREFORE: I find that petitioner failed to sustain the charges.

Tynia D. Richard Administrative Law Judge

March 29, 2006

SUBMITTED TO:

MARTIN F. HORN Commissioner

APPEARANCES:

PAUL MILLER, ESQ. Attorney for Petitioner

KOEHLER & ISAACS LLP Attorneys for Respondent BY: LUIS SERRANO, ESQ.