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 URYEVICKRespondent

REPORT AND RECOMMENDATIONJOAN 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.

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

-2-

absences” and special restrictions govern their use of medical leave. They must, for example,

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

-3-

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

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

-4-

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

-7-

aware that they are entitled to “unlimited” sick leave, it is difficult to consider a fair reading of

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

-8-

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

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

-9-

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:

-10-

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

-11-

record, she would be terminated if her attendance did not improve. She also falsely reported to

her employer the reasons for her absence.

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

-12-

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

“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,

-13-

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

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

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.

-14-

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

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

-15-

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-

-16-

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

-17-

many different types, I’ve lost count” (Tr. 834). He “wasn’t getting any better. In fact, it was

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.

-18-

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

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

-19-

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

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

-20-

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-

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

-21-

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

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

-22-

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.

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

-23-

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.

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.

-24-

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,

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

-25-

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

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.

-26-

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.

-27-

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. SalzmanAdministrative Law Judge

August 11, 2006

SUBMITTED TO:

JOHN J. DOHERTYCommissioner

APPEARANCES:

CARLTON LAING, ESQ. Attorney for Petitioner

KIRSCHNER & COHEN, PC Attorneys for PetitionerBY: ALLEN COHEN, ESQ.

-28-