Human Resources Admin. v. Johnson OATH Index No. 1080/10 (Apr. 6, 2010), aff d, NYC Civ. Serv. Comm n Item No. CD SA (Mar. 4, 2011), appended

Transcription

1 Human Resources Admin. v. Johnson OATH Index No. 1080/10 (Apr. 6, 2010), aff d, NYC Civ. Serv. Comm n Item No. CD SA (Mar. 4, 2011), appended Agency proved that respondent submitted four fraudulent medical notes and was AWOL for more than two weeks. Judge recommends termination of employment. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of HUMAN RESOURCES ADMINISTRATION Petitioner - against - CYNTHIA JOHNSON Respondent REPORT AND RECOMMENDATION JOAN R. SALZMAN, Administrative Law Judge Petitioner, the Human Resources Administration, brought this disciplinary proceeding pursuant to section 75 of the Civil Service Law. Respondent, Cynthia Johnson, is a clerical associate for the agency. Petitioner alleges that respondent violated the agency Code of Conduct, Executive Order No. 651, when, during the period September to December 2007, she submitted four fraudulent medical notes from a doctor who had not seen her as a patient for years. The agency also charges that respondent was absent without authorization ( AWOL ) for the period March 7 through 25, 2008, in violation of the Code of Conduct and of agency Procedure No A hearing was held before me on March 5, Petitioner submitted documentary evidence and the testimony of Luz Baez, Executive Director of the Office of Specialized Training in the Family Independence Administration and one of respondent s supervisors, and Evdokia Diana Rembutzia, the office manager for Dr. Carol A. Minnerop, whose name appeared on the medical notes at issue. Respondent submitted no documentary evidence and testified, denying the charges. The record was left open at respondent s request so that her counsel could submit legal authorities by March 12, 2010, in response to the cases cited on the record in

2 -2- closing by petitioner s counsel, with any reply due March 17 th (Tr ). The briefing deadline passed, and respondent s counsel submitted no legal authorities. Thus, there was no need for any reply. Upon consideration of the full record of this matter, I find that petitioner has proved all the charges by a preponderance of the credible evidence, and recommend that respondent s employment be terminated. ANALYSIS The Medical Notes Each of the four medical notes at issue here is written on a pre-printed, numbered sheet from an Official New York State Prescription pad imprinted at the top with the name Carol A. Minnerop, MD, and the doctor s address, phone number and license number, and is otherwise filled out by hand. The notes are dated September 11, 27, October 3, and December 4, 2007 (Pet. Exs. 2-5). The notes all state that respondent was seen in Dr. Minnerop s office on the date of each note. The September 11 note says: Please excuse her absence from September 11-14, The October 3 note says: Please excuse her absence from 10/3-5/07, with a return to work on October 16, The December 4 note says: She is to return back to work on 12/12/07. Each note appears to be signed by Carol Minnerop, M.D. However, the convincing proof was: (1) that these notes were not signed by Dr. Minnerop; (2) that Dr. Minnerop never even saw respondent on the dates of each of the notes (and was not even in her office on one of the dates); (3) that the sequential numbers imprinted on the prescription sheets for purposes of controlling the use of prescription medications showed not only that the sheets were used out-of-sequence, with the earlier sheets being used months after the later-numbered sheets, such that the December note bore an eight-digit number ending in 97 while the earlier, September 11 note was number 99; the September 27 note was number 93; and the October 3 note was number 95; but also (4) that the doctor never used prescription pads for medical excuse notes to be submitted to employers; and (5) that there was no way, given the size of Dr. Minnerop s practice that she would still be on the same pad of 100 prescription sheets over the three-month period at issue here, September to December I find that Dr. Minnerop did not see respondent on the dates indicated, had not been her doctor for years, and never signed the prescription sheets. The notes were a complete fraud. Ms. Rembutzia was an entirely credible witness. As Dr. Minnerop s office manager, she was extremely meticulous in describing the doctor s strict office procedures. Ms. Rembutzia

3 -3- showed herself to be extremely well-organized in keeping Dr. Minnerop s billing records and computerized appointments, as well as medical excuse notes. Ms. Rembutzia testified that the doctor uses Medisoft and Office Hours, software for tracking patient appointments and records (Tr. 57), and that this computer system and procedure has been in place since 2003 (Tr. 91). Thus, the testimony covered 2007, the time at issue here (Tr. 60). Past appointments are reflected in the computer records (Tr. 57). Ms. Rembutzia searched the computer system in Dr. Minnerop s office and thoroughly searched for Ms. Johnson s name, but found no data relating to her (Tr. 58). This means that Ms. Johnson was never input as a patient of Dr. Minnerop s by the only two employees who enter patient data (Ms. Rembutzia and the receptionist). In addition, the doctor keeps files on premises for 10 years, and Ms. Rembutzia also had the medical assistants in the office search for a paper chart for respondent going back 10 years. There was nothing relating to respondent (Tr. 92). Based on this additional search of paper files of Dr. Minnerop, I find that respondent was not a patient of hers for a period covering the last 10 years (Tr , 92). Ms. Rembutzia or the receptionist enters daily patient appointments in the computer tracking system and prints a copy for the doctor daily (Tr ). Even a walk-in patient is entered into the computer system (Tr ). Ms. Rembutzia rejected the notion that respondent could have seen the doctor without a computer entry because all patients must go through the receptionist before the doctor even sees them. It s our policy to verify the insurance before the patient is seen, to make sure the doctor gets paid for her services (Tr. 95). While Ms. Rembutzia is not an expert in handwriting analysis, she is fully familiar as a lay person with her boss s signature (Tr. 61). Ms. Rembutzia credibly testified that the signature on the medical notes respondent filed in 2007 was not the signature of Dr. Minnerop (Pet. Exs. 2-5; Tr ). Ms. Rembutzia is the only person who orders prescription pads for the doctor, and was able to identify the copies of Dr. Minnerop s prescription pad. She testified that Dr. Minnerop does not use prescription pads to write medical excuse letters (Tr. 63). Rather, the office has a template, on letterhead, a larger sheet of paper than a prescription sheet. The receptionist completes the blanks on the template with the date and patient s name. The form is pre-printed to say that the patient was seen by me for a medical visit today, and the doctor signs such form letters herself (Pet. Ex. 12; Tr. 63). No employees of the doctor are permitted to sign the doctor s name; Dr. Minnerop does not permit anyone to use a stamp for her signature either (Tr ). Any material that goes out under the doctor s name, she specifically tells us,

4 -4- we re not allowed to sign her signature or just stamp. It has to be signed by the doctor herself (Tr. 64). On voir dire, Ms. Rembutzia confirmed that she never signed any prescription pads, nor had she ever seen any receptionist do so (Tr. 81). The prescription pads are kept in the examining rooms, not with the receptionists, who have no proximity to those rooms. There would be no reason for a receptionist to have prescription pads (Tr. 95). The late Sharon Campbell, who was respondent s direct supervisor (Baez: Tr. 9), contacted Ms. Rembutzia in mid-december Ms. Campbell faxed the December 4, 2007 medical note to Ms. Rembutzia to verify that Dr. Minnerop had given the note to respondent (Tr ). Ms. Rembutzia testified that she recognized Dr. Minnerop s prescription pad because Ms. Rembtuzia is the only one who orders and opens them (Tr. 63). To her knowledge, the December 4 th note was not written by Dr. Minnerop. Ms. Rembutzia was able to say without hesitation that the note was not in the doctor s handwriting. She also presented the note to Dr. Minnerop and asked the doctor whether she had written the note, and the doctor said no (Tr. 65). On the photocopy of this note that was faxed by Ms. Campbell, Dr. Minnerop wrote that the prescription sheet was stolen and that she did not write or sign it: Stolen Rx! Not my signature. I didn t write this and have not seen this patient for years, and the doctor signed her notation that she did not write or sign the December 4 th note (Pet. Ex. 13). Ms. Rembutzia testified credibly that she was standing with Dr. Minnerop when the doctor wrote and signed the denial of the authenticity of this note on the photocopy of it, on Ms. Rembutzia s desk, while the two women were looking at the prescription pad note together (Tr ). Ms. Rembutzia faxed the doctor s signed statement on the photocopied note back to Ms. Campbell (Tr. 66). The doctor became concerned that other prescription sheets were missing, and had Ms. Rembutzia inquire of Ms. Campbell as to whether there were any other notes like the December 4 th one on file with the agency (Tr. 71, 86-87). Ms. Campbell faxed three more notes, for a total of four notes, the ones at issue here (Tr ; Pet. Exs. 14, 15, 16). Ms. Baez, as the supervisor of the late Ms. Campbell, was able to confirm that Ms. Campbell questioned the doctor s notes respondent submitted in 2007 (Tr. 9-11). It was Ms. Baez who directed Ms. Campbell to follow standard procedure and contact Dr. Minnerop s office to verify the notes. Ms. Campbell did so on December 15, 2007, and followed up with the doctor herself by telephone and fax on December 21, 2007 (Tr ; Pet. Ex. 1). I have considered the contemporaneous memorandum written by Ms. Campbell on December 21, 2007, only for the limited purpose of

5 -5- confirming that the agency conducted an investigation of the notes in December of Ms. Baez also authenticated the copies of respondent s notes on file with the agency (Tr ). There was no genuine dispute that Petitioner s Exhibits 2-5 and were copies of the original notes respondent submitted to her supervisor (Testimony of respondent, Tr ). Ms. Rembutzia also identified the rest of the notes as having been written on Dr. Minnerop s prescription pad, and testified that none of them bore Dr. Minnerop s handwriting or her signature (Tr. 76). She explained that the pads are issued with alphanumeric identifiers and bar codes on the bottom right, and testified authoritatively that all four notes came from the same prescription pad, because there are 100 prescriptions per pad. Dr. Minnerop sees 30 to 40 patients a day and goes through 80 to 90 prescriptions in a typical day, so that [t]here s no way these would have been in sequence, the way we write prescriptions (Tr. 77). The majority of the patients are elderly and may have five different medications, so the doctor writes about 3 to 5 prescriptions per patient. On that theory, there s no way, 90 prescriptions a day, we d still have the same sequence number in the same pad of 100 prescriptions from September to December It wouldn t last three months (Tr ). Ms. Rembutzia identified redacted copies of actual prescriptions written and signed by Dr. Minnerop, and they actually show medicines prescribed, not excuses for a patient, and the handwriting and signature are completely different from those on the notes submitted by respondent (Pet. Ex. 17). Ms. Rembutzia identified her boss s signature on the true prescriptions submitted (Tr. 79). Ms. Rembutzia also identified the appointment schedule for the dates in issue and was able to say that on none of them did respondent have an appointment with Dr. Minnerop, neither a scheduled appointment nor a walk-in (Tr ; Pet. Ex. 18). Significantly, for the September 27, 2007 note, Dr. Minnerop was not even in the office that day. We did not have office hours that day. No patients were seen (Tr. 85). Dr. Minnerop asked Ms. Rembutzia to file a police report of a stolen prescription pad because the doctor was nervous. She didn t know if there were narcotics being written out or what was being written out on the prescription pad (Tr ). Ms. Rembutzia went to the 19 th Precinct in Manhattan and filed the police report on January 8, 2008 (Tr. 87; Pet. Ex. 19). She testified: we don t give out prescriptions just like that. So, obviously, it was under the intention somebody took it (Tr. 70). The record shows there was an arrest based on that complaint, but no finding of guilt or conviction of anyone for stealing the prescription pad (Tr. 89). There was

6 -6- no direct proof that respondent personally took the prescription pad (Tr. 92). Dr. Minnerop treated respondent s husband in the hospital, not in the doctor s office (Tr ). After Ms. Rembutzia s investigation of the medical notes, respondent tried in February 2008 to become a new patient of Dr. Minnerop s. Ms. Rembutzia verified respondent s name and date of birth because this matter was so unusual, in that Ms. Rembutzia had never before had to file a police complaint, so the name stuck out (Tr. 94). Ms. Rembutzia called the police when respondent came to Dr. Minnerop s office, because, she testified, it[ s] a conflict of interest. There was a case pending, and I didn t understand why she wanted to be a patient (Tr ). The detective spoke to respondent on the phone, and respondent didn t say anything, she just got up and left (Tr. 94). Before respondent came to the office in February 2008, Ms. Rembutzia had never seen her before and did not recognize her, except for her name (Tr ). Dr. Minnerop takes her prescription pads to the hospital, where she treated respondent s husband until the end of October 2006 (Tr. 99). Ms. Rembutzia hands the prescription pads to Dr. Minnerop, who locks them in her closet, to which the doctor has the only key. Dr. Minnerop also brings them with her on hospital rounds (Tr ). In making credibility determinations, this tribunal may consider witness demeanor, consistency of a witness testimony, supporting or corroborating evidence, witness motivation, bias or prejudice, and the degree to which a witness testimony comports with common sense and human experience. Dep t of Sanitation v. Menzies, OATH Index No. 678/98, at 2-3 (Feb. 4, 1998), aff d, Comm r Dec. (Feb. 17, 1998), aff d, NYC Civ. Serv. Comm n Item No. CD A (Sept. 9, 1998). After considering all the testimony, I find that while Ms. Baez and Ms. Rembutzia were forthright and had no discernible reason to lie, respondent had a strong motivation to try to save her job by denying responsibility, and that respondent s version of events was defied credulity (Tr ). Respondent claimed that she went to Dr. Minnerop s office on each of the dates of the notes and waited a long time to see the doctor. She stated that Dr. Minnerop had treated her back in 1992, until about 1998, when she began working for the City (Tr. 104, 126). Respondent admitted that Dr. Minnerop was not her doctor in 2007 (Tr. 126), but claimed that she wanted to see Dr. Minnerop again because she was going through a difficult time with her husband s health and her son s military deployment to Iraq. According to respondent, Dr. Minnerop is a good doctor, but takes too long to see patients. Therefore, the story went, respondent waited hours,

7 -7- then finally had to go to work, and left the office on each of the four occasions without having been seen by Dr. Minnerop, even though three of the notes purported to excuse her from work for several more days. Respondent testified that before leaving, she got the receptionist to fill out the medical excuse notes, and that the receptionist simply wrote that respondent was seen in this office or my office on the dates given, and accepted whatever dates respondent told her to write on the prescription pad slip for the return to work date, even though the doctor had not even seen respondent on those dates. This account made no sense, and was in direct conflict with the medical records of Dr. Minnerop, including the proof that the doctor had no office hours at all on September 27, 2007, one of the dates for which respondent claimed she had an appointment and a note (Pet. Ex. 4). Respondent claimed that the receptionist was named Maria, but Ms. Rembutzia testified credibly and unhesitatingly that there was no such person matching the name ( Marie, as respondent s counsel put the question to Ms. Rembutzia) or description respondent gave, no one with blonde hair, in the employ of Dr. Minnerop in 2007 or 2008 (Tr ). On cross-examination, respondent admitted that Dr. Minnerop did not treat her on the dates in issue. She stated that she did not see her own, personal doctor, naming three other doctors who do treat her, noting that on one of the dates, her doctor was not in, and that she needed a note to return to work (Tr ). She denied writing the medical notes herself (Tr. 131). Respondent identified her own handwriting and signature on various official documents (Pet. Exs. 20, 21). It does not take a handwriting expert to see that the signature on the medical notes is nothing like Dr. Minnerop s true signature, and that the forged signature of Dr. Minnerop bears a striking resemblance to respondent s handwriting (Pet. Exs. 2-5; 20, 21). Respondent s adherence to her denial, after being shown her own handwriting and signature, that she completed the medical notes (Tr. 134), was not credible. Despite the record evidence that Dr. Minnerop was not in the office on September 27, 2007, respondent insisted that she had called and had an appointment with the doctor for that day (Tr. 128). This testimony that respondent not only had an appointment with Dr. Minnerop that day, but that she waited for hours to see Dr. Minnerop while she attended to other patients, was not at all credible. Moreover, the time records of the agency, Autotime, indicated that respondent requested documented medical leave for the entire day, with the explanation that she had an emergency doctor s appointment that day (Pet. Ex. 7). This was false.

8 -8- Respondent took no responsibility for her actions, stating only that she was sorry that she had not gone to her own doctor for medical notes, admitting that Dr. Minnerop was not her doctor. While respondent s difficulties with her husband, who has passed away, her own health issues, and her worries about her son are extremely sympathetic, they do not excuse the submission of falsified medical excuse notes to a City agency that must depend on the honesty of its employees. Respondent submitted no documentation or other proof of her medical or other conditions, and did not show how her stated upset over her personal and family situation might somehow have excused the submission of false medical notes, which she denied throughout. AWOL The agency proved that respondent was AWOL from March 7 through and including March 25, Ms. Baez, a 29-year veteran of the agency, testified that as the Executive Director of her unit, she approves her subordinates time (Tr. 34). If an employee cannot get to work, the employee must call her supervisor within one hour of her start time. If the employee fails to call within that hour, the supervisor can approve or disapprove the whole day (Tr ). Agency records show that respondent was AWOL from March 7 through 25, 2008 (Pet. Ex. 11; Tr ). In order to change the status to an excused leave, the employee would have to submit documentation (Tr. 39). There was no such documentation. Ms. Baez testified that Ms. Campbell was listed on the respondent s computerized time sheets as the approver, and that Ms. Campbell was very conscientious, very detail[] oriented, and very diligent. By the book basically, in her record keeping work, and very savvy, as far as the computer was concerned (Tr ). Although Ms. Campbell had approved respondent s leave for February 26 through March 6, 2008 (Pet. Ex. 10), she did not approve respondent s extended absence from March 7 to 25, Respondent denied being AWOL. She said she would not go AWOL and fail to call her supervisor (Tr. 119). For the period at issue, respondent claimed she was tending to her sick brother in North Carolina. She testified that she went to North Carolina to see him and to have someone replace her as the responsible person with power of attorney over his affairs (Tr ). She said she then stayed in North Carolina because her son was coming home from Iraq and she was determined to see [her] child come home (Tr ). She claimed to have telephoned her supervisor, Ms. Campbell, to tell her that she was going to extend her stay in North Carolina for three days to see her son. She added that Ms. Campbell told her okay, Ms.

9 -9- Johnson, and that when she returned to work, she had a note on her desk indicating that her supervisor had written up a complaint stating that respondent had made no phone call about her absence (Tr ). On cross-examination, respondent was unable to recall or consistently identify the dates she was in North Carolina, stating that she saw her brother for only a few days and extended her stay only three days to see her son (Tr ), but she was absent for more than two weeks, so this account made little sense. She was on approved leave from February 26 to March 6, 2008, and was in contact with her supervisor at the time (Pet. Ex. 10). However, respondent s supervisor disapproved the subsequent absence, from March 7 to 25, 2008, because respondent did not provide any documentation to cover those absences. I find the agency records to be reliable. Respondent s explanation of her extended absence did not account for the time, and there was no documentation of her absence. I find further that respondent has committed the misconduct charged. The Department bears the burden of proof by a preponderance of the credible evidence. Human Resources Admin. v. Caban, OATH Index No. 1449/05 (June 23, 2005). I find that the agency has amply met its burden of proof as to all charges. FINDINGS AND CONCLUSIONS 1. The Department proved that respondent submitted four fraudulent medical notes during the period September through December 2007, in violation of Executive Order No. 651 (Dec. 17, 1998), sections III (1), (4), (5), (6), (7), and (36). 2. The Department proved that respondent was AWOL from March 7 through 25, 2008, in violation of Executive Order No. 651, sections III (5) and (6), and departmental Procedure No (Feb. 12, 2003), section II-K. RECOMMENDATION Having made the above findings, I obtained a summary of respondent s personnel record. Respondent has been employed by the City since December 14, She began working for the Human Resources Administration on April 5, She has no prior disciplinary record, and no commendations. The only available performance evaluation of respondent indicates that her work was good to very good in the last quarter of 2004, but was impeded by her frequent absences.

10 -10- The agency seeks termination of respondent s employment (Tr. 149). Counsel for the Administration argued in closing that respondent s conduct was egregious because in taking time off without authorization, she stole city time and money, amounting to 84 hours of paid time to which she was not entitled (Tr. 148; Pet. Exs. 2-6). Respondent s conduct is a breach of the trust the City has placed in her. The appropriate penalty, termination, has been imposed consistently for the submission of false medical notes. See, e.g., Rodriguez v. City of New York, 2010 NY Slip Op 2020, 2010 N.Y. App. Div. LEXIS 1997 (1st Dep t Mar. 16, 2010) (notwithstanding unblemished 26-year record and outstanding evaluations, termination upheld based on employee s pattern of falsifying medical notes and other serious misconduct); Dep t of Correction v. Hall, OATH Index No. 400/08 (Oct. 18, 2007), aff d, Comm r Dec. (Nov. 2, 2007), aff d, NYC Civ. Serv. Comm n Item No. CD SA (May 30, 2008); Dep t of Correction v. Temples, OATH Index No. 471/03 (July 21, 2003), aff d, Comm r Dec. (Aug. 20, 2004) (termination for submission of forged medical notes); Human Resources Admin. v. Antonio, OATH Index No. 1515/00 (July 18, 2000), aff d, Comm r Dec. (Aug. 14, 2000), aff d, NYC Civ. Serv. Comm n Item No. CD SA (July 27, 2001) (termination for deliberate acts of dishonesty); Human Resources Admin. v. Brown, OATH Index No. 236/90 (Oct. 25, 1989), aff d, Comm r Dec. (May 29, 1990), aff d, NYC Civ. Serv. Comm n Item No. CD (Feb. 9, 1991) (respondent shown untrustworthy for submitting fraudulent medical notes and her employment was terminated). Respondent s AWOL exacerbates the problem the agency proved: respondent s unwillingness to abide by agency rules for controlling absence. Based on the convincing proof of respondent s dishonest conduct, I recommend that her City employment be terminated. Joan R. Salzman Administrative Law Judge April 6, 2010

11 -11- SUBMITTED TO: ROBERT DOAR Commissioner APPEARANCES: HILIT KROMAN, ESQ. Attorney for Petitioner DRUYAN & ASSOCIATES Attorneys for Respondent BY: MARTIN DRUYAN, ESQ. NYC Civ. Serv. Comm n Decision, Item No. CD SA (Mar. 4, 2011) THE CITY OF NEW YORK CIVIL SERVICE COMMISSION In the Matter of the Appeal of: CYNTHIA JOHNSON Appellant -against- NYC HUMAN RESOURCES ADMINISTRATION Respondent Pursuant to Section 76 of the New York State Civil Service Law NANCY G. CHAFFETZ, Acting Chair MARTIN DRUY AN, ESQ. REPRESENTIVE FOR APPELLANT HILIT KROMAN, ESQ. REPRESENTATIVE FOR RESPONDENT STATEMENT On Thursday, November 18, 2010 the City Civil Service Commission heard oral argument in the appeal of CYNTHIA JOHNSON, Clerical Associate, NYC Human Resources Administration (HRA), from a determination by the NYC HRA, finding her guilty of charges of incompetency

12 -12- or misconduct and imposing a penalty of TERMINATION following an administrative hearing conducted pursuant to Civil Service Law Section 75. COMMISSIONERS' FINDINGS: After a careful review of the testimony adduced at the departmental hearing and based on the record in this case, the Civil Service Commission finds no reversible error and affirms the decision and penalty imposed by the New York City Human Resources Administration. NANCY G. CHAFFETZ, Commissioner/Acting Chair, Civil Service Commission MATTHEW W. DAUS, Commissioner, Civil Service Commission RUDY WASHINGTON, Commissioner, Civil Service Commission SIMON P. GOURDINE, Commissioner, Civil Service Commission