Health & Hospitals Corp. (Coler-Goldwater Memorial Hospital) v. Mayo

OATH Index No. 1157/06 (Aug. 24, 2006), rev’d, Hospital Dec. (Sept. 25, 2006), appended, aff’d on other grounds, HHC Pers. Rev. Bd. (Apr. 17, 2007), appended, rev’d and remanded,

Mayo v. Personnel Review Bd., 65 A.D.3d 470, 2009 NY Slip Op 06224 (1st Dep’t 2009) In case where a fight ensued between two employees at work,

petitioner failed to establish respondent’s guilt by a preponderance of the evidence on the basis of the alleged victim’s uncorroborated and discredited testimony that respondent was the aggressor. Petitioner therefore failed to show that respondent initiated, willingly participated in or perpetuated the altercation. ALJ recommended charge be dismissed. Hospital finds respondent committed the charged offense and imposes the penalty of termination.

Personnel Review upholds penalty of termination but on ground

that respondent failed to promptly report the fight. On appeal, the trial court found respondent was deprived of due process because he was sanctioned for uncharged misconduct (failure to report charge) and the court directed reinstatement of respondent. The First Department affirmed the holding that respondent was deprived of due process because he was found guilty of misconduct that he was not charged. However, the intermediate court remanded to the Personnel Review Board to determine whether further action is warranted. ______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of HEALTH AND HOSPITALS CORPORATION

(COLER-GOLDWATER MEMORIAL HOSPITAL) Petitioner - against -

KEITH MAYO Respondent

____________________________________________________

REPORT AND RECOMMENDATION TYNIA D. RICHARD, Administrative Law Judge

This employee disciplinary proceeding was referred by petitioner, Coler-Goldwater

Memorial Hospital of the Health and Hospitals Corporation, pursuant to Rule 7.5 of the

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Personnel Rules and Regulations. Keith Mayo, a level II supervisor of stock workers, is charged

with assaulting one of his subordinates. Respondent denies the charge.

The hearing was conducted before me on March 17 and April 10, 2006. The record was

closed on April 18, 2006, to allow for the submission of written closings. Petitioner presented

the testimony of Leonard Pinckney, Jean Journel, Harry Baiden, Lt. James Alago, Sgt. Israel

Soto, Officer Lawrence Fishburne, and Glen Wilson. Respondent testified on his own behalf and

presented the testimony of Deadre Rogers. For the reasons set forth below, I find that petitioner

failed to prove the charge.

ANALYSIS

The charge alleges that respondent, supervisor of the hospital storeroom, assaulted his

subordinate, dietary aide Leonard Pinckney, at the hospital on March 8, 2005. There is no

dispute that a physical altercation occurred that day between the two men. Respondent contests,

however, that he initiated the fight, instead asserting that he struck Mr. Pinckney after the man

first assaulted him. Having the right to defend himself, contends respondent, he is not guilty of

misconduct. Thus, two distinct versions of events were given at trial.

Leonard Pinckney testified that Mr. Mayo hit him after accusing Mr. Pinckney of

informing Deadre Rogers’ boyfriend about their affair. According to Mr. Pinckney, sometime

after 8:00 a.m. on March 8, Mr. Mayo called him into the storeroom (Tr. 26). Ms. Rogers and

Mr. Journel, also Mr. Mayo’s subordinates, were present when he arrived. After Mr. Mayo told

Mr. Journel to leave the room, Ms. Rogers said to Mr. Pinckney, “thanks a lot for getting me in

trouble with my boyfriend concerning me and Keith” (Tr. 26).1 Mr. Pinckney said he did not

know what she was talking about. After more angry discussion, Mr. Mayo got up from his desk

saying, “anything happens to me, your father and your nephew are gonna get it first” (Tr. 27).

Mr. Pinckney told him to “keep them out of this.” Suddenly, Mr. Mayo hit Mr. Pinckney in his

right temple and kept hitting him with a closed fist as Mr. Pinckney tried to block the punches.

Mr. Pinckney asked, “what are you doing, you’re wrong,” but Mr. Mayo kept punching him in

the head. Mr. Pinckney heard Ms. Rogers say, “Keith, Keith.” At some point, his shirt came

over his head, and he was thrown to the floor on his back, where he lay with his head under Mr.

Mayo’s desk and his legs sticking out (Tr. 28). He tried to block Mr. Mayo’s attempts to kick 1Mr. Pinckney claimed to know Ms. Rogers’ boyfriend, whom he did not name; he said that he is not a hospital employee (Tr. 49).

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him in the ribs. As Mr. Mayo stood over him punching, Mr. Pinckney said, “I had nothing to do

with this; you’re wrong.” Eventually, Mr. Journel came in and pulled Mr. Mayo off of Mr.

Pinckney, who left the storeroom “dazed.” He walked down the hall to Mr. Baiden’s office and

said “look what Keith Mayo did to me” (Tr. 29). Mr. Baiden called the hospital police and the

hospital’s disciplinary advocate, Brian Ellis (Tr. 29-30). Then he took Mr. Pinckney to the

hospital police where he gave a statement, and to the nurse’s office where x-rays were taken.

The x-rays did not show further injury.

Under cross examination, Mr. Pinckney claimed that Mr. Mayo beat him “severely,”

hitting him over and over again despite his attempts to block him, threw him to the floor and

kicked him over and over on the right side of his body; he said that this beating was stopped only

by Mr. Journel who pulled respondent off of him (Tr. 49-51). Afterward, he admitted, he got up

and walked out of the room without assistance and sat in interviews with Mr. Baiden and the

hospital police for several minutes before going to the nurse’s station. After describing the

severe pain he experienced during the beating, he said he could not recall what medication he

was given for his pain, but indicated that it “could have been Tylenol” (Tr. 53-55).

Mr. Pinckney receives worker’s compensation for injuries he said he sustained during the

fight, and he has not returned to work since the incident. He continues to have severe headaches

and back and neck spasms, for which he receives physical therapy twice a week (Tr. 32-33). He

takes prescription strength Tylenol for pain. His physician has not approved his return to work

(Tr. 38).

Mr. Pinckney, who was hired by the hospital in 2000, had worked as a dietary aide under

Mr. Mayo’s supervision since 2003. He testified that he was given his first evaluation by Mr.

Mayo on the day before this incident (Tr. 21; Pet. Ex. 2). The evaluation was a poor one, highly

critical of Mr. Pinckney.2 He said that Mr. Mayo had told him he would receive a good

evaluation, and that he had never been told that his work was subpar (Tr. 22-23). He admitted

that the evaluation, which rated him “below standard” (the lowest of four categories), upset him

and that he did not have civil service protection from dismissal (Tr. 38, 42). He disagreed with

the evaluation, but he signed it. He admitted that he had been seeking a job transfer and his poor 2The evaluation stated that Mr. Pinckney “requires help even on routine matters,” makes “errors/omissions serious and frequent,” produced an “inadequate” amount of work, “has some difficulty in making necessary and sound judgment,” is “very slow in grasping new instructions/ideas even with constant supervision,” and “occasionally fails to complete assignments. Needs direction.” (Pet. Ex. 2).

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evaluation hurt his chances of receiving one. He denied that it provoked him to fight Mr. Mayo,

however. Instead, he said, he wrote a rebuttal to the evaluation.

Mr. Pinckney’s account of his rebuttal was confusing and contradictory, with no

convincing indication of when he wrote and submitted it. The rebuttal is dated March 8, and Mr.

Pinckney first testified that he submitted it to the hospital on March 8, but then said that

“something” happened that prevented him from submitting it that day (Tr. 24; Pet. Ex. 2). He

said that he eventually submitted it to respondent’s supervisor, Ms. Swabey, who was surprised

by his poor evaluation (Tr. 39). He later said that he handwrote it days after the incident, his

wife typed it for him but he did not recall when (Tr. 46-48). When it was pointed out that the

rebuttal was dated March 8, he reverted to certainty that he wrote it the night of the evaluation

and had his wife type it so he could bring it to work the next day, March 8.

Mr. Pinckney said that he reported this severe beating to the police and others, but none

of them reported such a beating nor any injuries that would be commensurate with such a

beating. Digital photographs taken of Mr. Pinckney by Lt. Alago shortly after the fight show

that he had a bump and swelling on his right eye and a small abrasion next to his left eye (Pet.

Ex. 16; Tr. 128). Lt. Alago said that the “bump” and “cut” that he saw over his eye was not

consistent with having received a massive beating (Tr. 132), such as Mr. Pinckney described at

trial. Sergeant Soto described a “bruise” on Mr. Pinckney’s eye (Tr. 134). Officer Fishburne

said he had “some swelling around his eyes” (Tr. 175). Mr. Baiden, the first person whom Mr.

Pinckney reportedly told about the incident, said that he saw “abrasions” on his right temple (Tr.

106-07). He said that Mr. Pinckney was very agitated and angry and said that Mr. Mayo had

“punched” him.

The evidence that Mr. Pinckney exaggerated the extent of his physical encounter with

Mr. Mayo was clear and it undermined his credibility.

Similar to Mr. Pinckney, Jean Journel testified that Mr. Mayo entered the storeroom with

Ms. Rogers and then left and returned with Mr. Pinckney (Tr. 64-65). When Mr. Mayo returned,

he asked Mr. Journel to leave for a minute so he could discuss something with Mr. Pinckney.

Mr. Mayo was calm and did not seem agitated (Tr. 78). Mr. Journel left and went to the dock

and drank his coffee (Tr. 66). He later saw Ms. Rogers calling for help because there was a

fight. When he returned to the storeroom, he saw Mr. Pinckney on the floor with his head under

Mr. Mayo’s desk and Mr. Mayo standing over him. He pushed Mr. Mayo aside to get Mr.

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Pinckney to stand up, and he walked with Mr. Pinckney out of the storeroom (Tr. 68). Mr.

Pinckney then left on his own. Mr. Journel acknowledged that he never saw Mr. Mayo beating

Mr. Pinckney, and he denied pulling Mr. Mayo off of Mr. Pinckney, as Mr. Pinckney testified

(Tr. 79-80). He said that Mr. Mayo moved aside when he pushed him, without a struggle.

Mr. Journel submitted three statements to the hospital about the incident (Pet. Exs. 9, 10

& 11). His first two statements, submitted on the date of the incident, are the same except that

the second one adds that he found Mr. Mayo standing over Mr. Pinckney who was on the floor.3

Mr. Journel said he wrote the second statement after Officer Smith told him to “be more

specific” and submitted it hours later (Pet. Ex. 10; Tr. 68-69, 74). He denied that anyone told

him what to put in his statements.

Mr. Journel also testified that, when he entered the storeroom and saw Mr. Pinckney

under the desk; he was screaming, “I don’t [sic] do it” (Tr. 67). This bit of testimony is

significant to petitioner’s case because it corroborates the motive for the fight offered by Mr.

Pinckney: that Mr. Mayo was angry that he had informed Ms. Rogers’ boyfriend that she was

having an affair with respondent. This testimony was not reflected in either of Mr. Journel’s first

two statements. It was not reported until his third statement, which was written five months after

the incident. Three or four days after the incident, Brian Ellis called him to his office to discuss

what happened and he took notes of their conversation (Tr. 69-70). On August 5, 2005, Mr. Ellis

called him to his office again and showed him a statement that he drafted based on their

conversation five months earlier and asked if he agreed with it. Mr. Journel agreed and signed

the statement. He admitted, however, that some of the words were not his (Tr. 97, 99).

Mr. Journel testified that, by the time of the August 5th meeting with Mr. Ellis, he knew

that Ms. Rogers had been fired but he did not know why (Tr. 90, 93). Ms. Rogers testified

unrebutted that she was fired for impeding the official investigation of this incident, because the

statement she gave was contrary to the hospital’s theory of what happened (Tr. 232). In light of

3The first statement reports that Ms. Rogers found him on the dock and told him there was a fight in the storeroom (Pet. Ex. 9). When he arrived and saw Mr. Pinckney on the floor, he took him outside. The second statement adds that when he saw Mr. Pinckney on the floor, he also saw Mr. Mayo standing over him (Pet. Ex. 10). He “pushed” Mr. Mayo aside and then took Mr. Pinckney outside.

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Ms. Rogers’ termination, respondent argues that Mr. Journel’s testimony cannot be relied upon

because of the pressure put on him to conform to the hospital’s version of events.4

Indeed, Mr. Journel’s testimony was difficult to credit, not because its substance was

implausible, but because he of the amount of stress he exhibited during questioning, with

included visible agitation and stuttering. His demeanor led me to believe that his testimony

could have been influenced by fear; thus, I found it unreliable.

Keith Mayo and Deadre Rogers denied that they were having an affair; they testified that

they had only a professional relationship. Ms. Rogers said that she was not well liked at the

hospital and she went to Mr. Mayo for advice and assistance in dealing with management issues

(Tr. 237). Mr. Pinckney testified that Ms. Rogers occasionally went into the storeroom to get her

duties before going to her station (Tr. 25), but he never said that she spent an inordinate amount

of time in the storeroom. He never even explicitly stated that the two were having an affair. If

there was no affair, there would certainly be no motive for Mr. Mayo to attack Mr. Pinckney.

Ms. Rogers testified that she is married, has been separated from her husband since 1998,

and has not seen him in two years. She also stated that she is a lesbian and has no boyfriend (Tr.

208, 236). She stated that she had a previous social relationship with Mr. Pinckney, having

known him and his family since childhood when she was friends with his sister – a fact that Mr.

Pinckney did not disclose and that petitioner did not rebut. She said she helped Mr. Pinckney

obtain employment at the hospital after his release from prison (Tr. 210).

Ms. Rogers testified that, on March 8, her supervisor told her to report to Mr. Mayo who

was looking for her (Tr. 213-15). When she arrived in the storeroom, Mr. Mayo told her that he

had completed her evaluation and he wanted to review it with her. When Mr. Journel walked in,

Mr. Mayo asked him to leave so he could complete her evaluation. As Mr. Journel left, Mr.

Pinckney walked in and said he had to speak to Mr. Mayo about his evaluation. Mr. Mayo said

that he had to speak with Ms. Rogers first. Mr. Pinckney insisted that he had to see Mr. Mayo

immediately. He said, “I need to talk to you now because I don’t appreciate the evaluation that

you gave me. I do good work.” Mr. Pinckney got louder and said, “I said I want to talk now.

Why I got to wait?” When Mr. Pinckney started walking towards Mr. Mayo, Ms. Rogers walked 4During a break in the trial, Mr. Journel was seen speaking with Mr. Ellis in the waiting area outside of the courtroom, a fact that he tried to hide by denying it when first questioned about it by respondent’s counsel. Although he eventually admitted that he did speak to Mr. Ellis, he denied that they discussed the trial, which he had been explicitly instructed not to do before the break (Tr. 98).

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out of the storeroom. As the argument became heated, she thought it might become physical and

she did not want “to be a witness to none of that” (Tr. 216). “[I]t looked like it was going to be a

fight.” She left to find someone to intervene. When she found Mr. Journel, they returned to the

storeroom and found Mr. Pinckney on the floor under the desk; she said Mr. Mayo “was standing

back like away from him a little bit” (Tr. 217); no one was exchanging blows or speaking. She

denied that Mr. Journel had to pull Mr. Mayo off of Mr. Pinckney, but said he stepped between

them to “separate” them (Tr. 258; Jt. Ex. 3). Mr. Journel told Mr. Pinckney to leave. Ms.

Rogers also left the storeroom.

Shortly after that, Lt. Alago approached Ms. Rogers and asked if she saw Mr. Mayo hit

Mr. Pinckney (Tr. 219-21). She said that she did not. She said that she found his question

unusual because it was not open-ended, like “what happened?” She answered his question and

did not offer more. He told her that he needed her statement in writing, which she provided (Jt.

Ex. 1). The next day she was told that she was suspended, so she went to her union office where

she was asked to write another statement (Tr. 221, 230-32, 261-62; Jt. Exs. 2 & 3). The report

she wrote that day corroborates her and Mr. Mayo’s testimony that she was in the storeroom for

purposes of discussing her evaluation with Mr. Mayo and that Mr. Pinckney angrily approached

Mr. Mayo to dispute his evaluation (Jt. Ex. 2).

Ms. Rogers said she was terminated from the hospital for impeding an official

investigation because of the statement she wrote concerning this incident, and she is challenging

her termination in a lawsuit (Tr. 208-09). She is currently studying to be a paralegal.

Mr. Mayo testified that he has been employed by the hospital for 13 years (Tr. 263-66).

He also has been married for 23 years and has four children, the oldest of whom is in college.

As the level II supervisor of stock workers, he supervises the storage area and the formula

nutrition area of the Food and Nutrition Department. He supervises five employees, including

Mr. Journel, Mr. Pinckney and Ms. Rogers. He said that he supervised Mr. Pinckney for about

two years. He started having trouble with him in September of 2004, when Mr. Pinckney

became lackadaisical about his work and took longer to complete assignments than his co-

workers. Specifically, he noted that because Mr. Pinckney was so much longer in labeling the

nutrition formula than others (10 ½ hours vs. 7 ½ hours), the patients were delayed receiving it.

He said that on March 7th he received explicit instruction from a superior to complete his

evaluations right away (Tr. 270). He evaluated Mr. Pinckney and one other employee on March

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7. Early on the morning of March 8, as he handed out work assignments, Mr. Pinckney told him

that he wanted to talk to him about his evaluation; Mr. Mayo told him he had to get the work out

first and would talk to him later (Tr. 271-74). Mr. Pinckney made food orders and checked the

formula room and storage room for supplies. He said that he was unable to complete the food

order because Mr. Pinckney had not finished collecting the necessary staple items. While

waiting, he decided to complete the evaluations. He had completed Ms. Rogers’ evaluation and

was awaiting her signature. When he found her, they went to the storeroom and he left the room

to get breakfast while she read the evaluation. Shortly after he returned, Mr. Pinckney came in

and demanded to talk about his evaluation (Tr. 274-76). When he told him he could not talk to

him just then, Mr. Pinckney moved toward him hurriedly. Initially sitting in his chair, Mr. Mayo

pushed it back and stood up. Mr. Pinckney said his evaluation was unfair and, with his hands

clinched, said “I can’t take this fucking shit.” Mr. Mayo said that he would call Mr. Baiden to

have him removed from the area. As he walked past him, Mr. Pinckney pushed him, punched

him, and then swung again. Mr. Mayo said he was hit on his right shoulder and punched in his

stomach. The next time that Mr. Pinckney hit him, Mr. Mayo swung and hit Mr. Pinckney in the

face, and Mr. Pinckney tripped over Mr. Mayo’s chair and fell to the floor beneath the desk. At

that point, Mr. Journel and Ms. Rogers entered the room. Mr. Mayo denied ever kicking Mr.

Pinckney or hitting him repeatedly (Tr. 277). He said he stood at least three to four feet away

from Mr. Pinckney after he fell. When Mr. Journel arrived, he said “Pinckney, get up”; he did

and started yelling “it’s not over.” Mr. Journel told him to “get out the room” (Tr. 278). He said

the entire altercation lasted two or three minutes (Tr. 300).

Afterward, Mr. Mayo said, he experienced difficulty breathing and went to his car to

retrieve his asthma medication (Tr. 278-79). When he returned from his car, he said, he was

going to report the incident to the hospital police when Lt. Alago approached him and told him

that Brian Ellis wanted him arrested. The lieutenant told him that “Pinckney said that you

stomped him down” and that he needed a statement from him. Respondent said, “no problem.”

He later returned to his office and called the union but did not reach anyone, so he left a voice

message (Tr. 280).

Minutes after respondent spoke with Lt. Alago, Sergeant Soto came down and asked him

to accompany him to get Ms. Rogers’ statement. He said that he eventually went to the Hospital

Police office and offered to give a statement to Brian Ellis, Stan Smith and Officer Fishburne,

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but Mr. Smith said that it would not be necessary. He was arrested, handcuffed, and brought to a

van where he was read his rights and transported to the 19th Precinct. He was arraigned and

released without bail and, eventually, the criminal case was dismissed (Tr. 281-82).

Mr. Mayo described his procedure for completing an employee evaluation. He said that

after he prepares the evaluation, he signs it. Then he reviews the evaluation with the employee

and the employee signs it (or refuses to sign). Afterward, he makes a copy and gives it to the

employee and then forwards the evaluation to his supervisor for review (Tr. 266-67). Petitioner

attempted to show that Mr. Mayo’s evaluation of Mr. Pinckney was improperly motivated by

showing that it was improperly conducted, because he failed to obtain his supervisor’s approval

of the evaluation before presenting it to Mr. Pinckney. For petitioner, Mr. Baiden testified that

Mr. Mayo’s supervisor should have reviewed the evaluation and signed it to signal his approval

before Mr. Pinckney ever saw it (Tr. 109-10). Petitioner’s proof on this point was not

persuasive, however. Mr. Mayo testified that the reviewer would not see the evaluation until

after the supervisor and subordinate had both met and signed it; the reviewer’s job is not to

approve the supervisor’s evaluation since the supervisor ultimately is responsible for making the

appraisal (Tr. 283). The reviewer may write his or her own comments but may not change the

supervisor’s appraisal, he said. He supported his claim with his own evaluation which was

signed only by his immediate supervisor and not by any other reviewer (Resp. Ex. A; Tr. 269).

Even Mr. Baiden admitted that he had never changed an evaluation in which he was the

reviewer, and he was unsure whether he had the authority to do so (Tr. 109). In addition, Mr.

Mayo pointed to his own evaluation, which was 10 months delayed, to show that the 11-month

delay between the time period of review and the date of Mr. Pinckney’s evaluation was not

unusual; he explained that his department was behind schedule completing them. Other than the

suggestion that Mr. Mayo conducted the evaluation improperly, there was no credible evidence

that the evaluation itself was factually incorrect or that Mr. Pinckney was known to be

hardworking and promptly met deadlines.

Three members of the hospital police staff testified about the investigation of the

incident. Lt. James Alago and Sergeant Israel Soto wrote no reports of the incident. Sgt. Soto

made entries of the day’s events in the log book. Officer Lawrence Fishburne, who arrested

respondent at the hospital and transported him to the police precinct, produced his memo book

(Pet. Ex. 17) and two sets of notes that outline his interview of Mr. Pinckney (Pet. Exs. 18 & 19).

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The notes are not identified as a record of an interview, and they fail to indicate the date and time

that they were written. Nevertheless, they reportedly convey the story given to the officer by

Mr. Pinckney. Officer Fishburne said that he wrote the two sets of notes, which are virtually

identical, on the day of the incident and wrote his memo book entry the following day from his

notes (Tr. 175-76). The memo book does not indicate that the officer had any conversation with

Mr. Pinckney on March 8, but he said that he did (Tr. 189-90; Pet. Ex. 17). He had difficulty

recalling what time he spoke with Mr. Pinckney that morning.

Sergeant Soto testified that Mr. Pinckney came into his office with Mr. Baiden (Tr. 134).

In the log book, he noted that, at 8:50 a.m., Mr. Baiden reported an “altercation” between the

two men; he recorded at 9:00 a.m. Mr. Pinckney’s complaint that Mr. Mayo hit him in the head

after a verbal dispute (Pet. Ex. 20).5 He recalled in his testimony that Mr. Pinckney was upset

and crying and repeatedly stated that he had been “sucker punched” by Mr. Mayo. He stated that

Mr. Baiden and Lt. Alago were present (Tr. 144), but neither man reported hearing that

description. Officer Fishburne denied hearing Mr. Pinckney or Sgt. Soto use the term “sucker

punch” (Tr. 193-94).

Respondent complained that the officers failed to obtain a statement from Mr. Mayo and

never recorded Mr. Mayo’s denial of responsibility.

Lt. Alago testified that he questioned Mr. Mayo in the storeroom shortly after hearing

Mr. Pinckney’s complaint, and he denied doing anything to Mr. Pinckney (Tr. 112-13). He then

spoke to Ms. Rogers and Mr. Journel, who both denied seeing anything. Upon hearing these

denials, Lt. Alago told them that Mr. Ellis knew about the incident and that he would want

statements from everyone. After that, he met with Mr. Ellis (Tr. 114). Lt. Alago did not obtain a

statement from respondent or document his denial of responsibility.

Sergeant Soto said that he went to the storeroom to get a statement from Mr. Mayo, and

he found him there but did not get his statement (Tr. 146-48). He had no reason for not doing so,

and he appeared satisfied to receive it later. He said that he asked Mr. Mayo for a statement but

then asked him to go with him to get a statement from Ms. Rogers, even though it would seem

inappropriate to bring the alleged perpetrator to obtain a statement from a witness. After he was 5According to the log book, Brian Ellis arrived at 9:13 a.m. and was advised of the incident. At 11:10 a.m., the officers went to the receiving area to find Mr. Mayo; they found him in the employee locker room and escorted him to the police office. At 11:20 a.m., respondent was advised by Mr. Ellis that he was suspended and advised by police that he was under arrest (Pet. Ex. 20).

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arrested, Mr. Mayo asked Sgt. Soto why Mr. Pinckney was not being arrested. The sergeant said

that he told Mr. Mayo to give him his complaint, but Mr. Mayo refused (Tr. 141). Sgt. Soto did

not document this interaction.

Officer Fishburne testified that when Mr. Mayo was brought to his office for questioning,

he denied having any physical altercation with another employee in the hospital (Tr. 171-72).

Since they knew that something had happened, they held respondent until they obtained

information about Mr. Pinckney’s condition. After determining that Mr. Pinckney wanted to

press charges, Officer Fishburne read Mr. Mayo his rights and put him under arrest (Tr. 173).

After testifying initially that Mr. Mayo made no statement to him about what happened (Tr. 174-

75), Officer Fishburne later admitted under cross examination that, in the car on the way to the

police precinct, Mr. Mayo denied assaulting Mr. Pinckney and accused him of initiating the fight

(Tr. 182).

According to their testimony, all three officers received statements from Mr. Mayo that

communicated a lack of responsibility for what happened, yet none of this was written down.

Officer Fishburne offered a number of unconvincing explanations for his failure to document

Mr. Mayo’s denial (e.g., he had to keep his eyes on him at all times, even when he was in the

precinct jail cell) (Tr. 182-86), but he eventually admitted that he just did not believe Mr.

Mayo’s explanation:

Q: Why didn’t you put down information in your memo book that supported Mr. Mayo’s version of what occurred? Why? Tell the Judge.

A: Because he did not – he did not give me no

information pertaining to – he only gave me a

couple of lines that didn’t even, you know, didn’t

give me enough information to believe that

something actually happened to him –

(Tr. 186). Obviously, as a law enforcement officer, it was not his responsibility to document

what he believed, but to document what he was told. He claimed that he was influenced by the

fact that Mr. Mayo refused to give a statement when he was questioned at the hospital (Tr. 186-

88). This failed attempt to interview Mr. Mayo is also nowhere documented.

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Not only did Mr. Mayo make a statement to Officer Fishburne in which he denied

culpability and accused Mr. Pinckney of attacking him, but Officer Fishburne reported this fact

to the District Attorney, although he had difficulty recalling it at trial:

Q: Didn’t you tell the district attorney while you were en route to the 19th Precinct Mr. Mayo said to you, “I didn’t assault him. He assaulted me. He started with me, so I fought back”? Didn’t you tell the district attorney that?

A: To my knowledge, I did not – I don’t know if I did

or didn’t. It’s been over a year and a half ago. I

might have forgot.

(Tr. 180). The officer’s failure to recall his conversation with the District Attorney under these

circumstances appears to be either deceit or a poor demonstration of his ability to perform his

duties. After being shown a document to refresh his recollection, the officer finally admitted that

respondent made the aforementioned statements to him, and that he had reported them to the

District Attorney (Tr. 182).

Officer Fishburne further jeopardized his credibility by giving false testimony about why

he failed to photograph Mr. Mayo’s hands, which he said he checked prior to his arrest “to make

sure everything was all right with his hands” and noticed that they were “slightly swollen” (Tr.

173, 176). He first testified that he took no photographs of respondent’s hands because “we

didn’t have a camera system at that time.” Shown the photographs of Mr. Pinckney from that

day, he was forced to admit that there was a camera and that he did not bother to look for it (Tr.

178-79). He later admitted taking Mr. Mayo to Bellevue Hospital for medical treatment for his

asthma, where a nurse asked him to loosen respondent’s handcuffs because he was complaining

they were too tight (Tr. 195). Thus, his unsubstantiated claim that respondent’s hands were

swollen even before he was handcuffed appeared intended either to undermine a claim that

respondent was cuffed too tightly, or to suggest that they became swollen while beating Mr.

Pinckney. Officer Fishburne’s lack of candor significantly undermined his credibility.

Respondent contends that petitioner intentionally omitted documentation of exculpatory

evidence because of a conspiracy devised by the hospital’s disciplinary advocate, Brian Ellis.

Respondent testified that Mr. Ellis disliked him because of his union activism (Tr. 279).

Respondent’s counsel focused questioning on the decision to arrest Mr. Mayo. Suggesting that

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the police were awaiting Mr. Ellis’ decision as to whether Mr. Mayo should be arrested, counsel

conducted the following questioning of Sgt. Soto:

Sgt. Soto: At the time I was getting the statement from him and from Deirdra [sic] Rogers, I went downstairs and I was still waiting for their statement. At that time, Mr. Mayo was not arrested and we were still doing the investigation. That’s why Brian Ellis was called because it was a Labor Relations issue.

Mr. Isaacs: Judge, now I need to follow up with some more

questions. I’m sorry.

Q: How quickly – you said it was a Labor Relations issue. The police are there, you have an assault, yet you’re saying you need to wait for Labor Relations? Why is that?

A: Because that’s what we were waiting for. Q: Why? A: From my boss. Q: Why? A: That’s what they wanted. I was going under my command. Q: You were informed to take no further actions until

Brian Ellis arrived? A: Not until Brian Ellis arrived. But at least to know

what was going on and, you know, the whole – we were waiting for everything to happen.

Q: What does that mean, Sergeant Soto? I don’t mean

to be disrespectful. A: Okay. Q: You’re controlling an investigation. You’re waiting

for what to happen? A: On the call from my Lieutenant, what we’re going to do. Q: What does that mean? I don’t –

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A: What actions we were going to take. Q: You mean the police don’t decide what action is to

be taken? Brian Ellis does? A: No. Q: Well, that’s what you just said. A: But being that it was going to be a labor relations

issue because we have two employees – Q: Well, if that was the case, why was Mr. Pinckney –

excuse me – Mr. Mayo arrested? You just said it’s a Labor Relations issue. Why is he arrested?

A: Because we saw the video and we saw that there

was an assault that took place.

(Tr. 148-49). The sergeant’s evasiveness suggested an uncertainty about how decisions were

being made. Moreover, the conclusion that the videotape provided the impetus for arresting Mr.

Mayo was completely implausible. The hospital placed in evidence a video recording taken

from the security camera located in a corridor outside of the storeroom, which recorded the

comings and goings of the parties involved in this incident and any others who happened to be in

the area (Pet. Ex. 14). On it, we see each of the witnesses in a sequence that is consistent with

the events as Mr. Pinckney described in his testimony, but also consistent with the sequence of

events described by Mr. Mayo.6 The video is more remarkable for what it does not show than

for what it does, as it provides no direct evidence establishing that Mr. Mayo attacked Mr.

Pinckney. It shows no physical altercation and no interaction of any kind between Mr. Pinckney

and Mr. Mayo (Tr. 143). It simply shows people traversing the corridor. I therefore found no

credence in the claim that, of all things, it formed the basis for the decision to arrest respondent.

6Petitioner contended that the videotape contradicted the timing of events as Mr. Mayo testified, however, there was no significant difference in the timing offered by respondent. Moreover, the video had no time stamp. According to Lt. Alago, the equipment malfunctioned as they were watching the video on the day of the incident (Tr. 116-20). The video disappeared. It was recovered days later, but the time and date stamp was gone. Lt. Alago insisted the video was the same one that he originally viewed before the malfunction except for two minutes of video that were missing. He produced a chronology (Pet. Ex. 21) and testified that he created it during his initial review of the videotape.

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While there is no direct evidence of inappropriate conduct by Mr. Ellis, his imprint was

indelibly made on this investigation as is indicated by the fact that he was potentially a witness at

the trial.7 There are several indications that he had influence over the investigation, from his

drafting of Mr. Journel’s third statement months after the incident, to the obvious deference

accorded him by the hospital police. Lt. Alago explained the need for statements from the

parties as Mr. Ellis’ requirement; he did not demand them on his own authority. Sgt. Soto

admitted that they had orders to do nothing further until Mr. Ellis arrived. If the police had

determined that a criminal act occurred, why would Brian Ellis be needed to validate their

finding? Moreover, there was nothing in the officers’ rather passive performance that day that

signaled a belief that anything serious had occurred or that they would be arresting Mr. Mayo.

To be sure, fighting in the workplace is unacceptable conduct. Admin. for Children’s

Services v. Loney, OATH Index No. 172/99 at 2 (Nov. 6, 1998). An employee has a “duty to

avoid all forms of physical confrontation” (id.), and, regardless of who initiates the aggression,

employees may be found guilty of misconduct if they willingly participate or prolong the fight.

See Dep’t of Correction v. Mapp, OATH Index No. 1305/05 at 5 (June 30, 2005), aff’d, NYC

Civ. Serv. Comm’n Item No. CD 06-58-SA (May 2, 2006) (correction officer guilty of

misconduct where there was ample opportunity for her to avoid a fight); Dep’t of Correction v.

Siddall, OATH Index No. 617/91 at 9 (Apr. 10, 1991) (correction officer guilty of misconduct

for willingly engaging in verbal altercation with another officer that foreseeably became

physical); Human Resources Admin. v. Peele, OATH Index No. 468/89 at 5 (Dec. 14, 1989) (an

on-duty “physical fight between co-workers is misconduct by both co-workers, regardless who

starts the fight, if . . . both parties evidenced a willingness to participate in the fight”). Self-

defense can justify participation in a fight only if the employee had no “reasonable means” to

avoid the altercation. Admin. for Children’s Services v. Loney, OATH 172/99 at 2. In Admin.

for Children’s Services v. Loney, where respondent was accosted by a co-worker while seated at

her desk, there also was evidence that she tried to stop the altercation and called for help, thus 7At the commencement of trial, the tribunal disqualified Mr. Ellis as counsel in this case because respondent proposed calling him as a witness, depending upon other evidence offered, because of his involvement in the investigation. Disciplinary Rule 5-102 (a) provides that a lawyer shall not act as an advocate on behalf of his client when “the lawyer knows or it is obvious that the lawyer ought to be called as a witness on a significant issue” in the case. See People v. Paperno, 54 N.Y.2d 294, 299-300, 445 N.Y.S.2d 119, 122 (1981) (“advocate-witness rule” requires a lawyer to withdraw from employment when it appears that he will be called to testify regarding a disputed issue of fact).

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leading to the conclusion that she used only the force necessary to defend herself from her co-

worker’s attack. The tribunal recommended dismissal of the misconduct charges, finding that

“petitioner failed to present credible evidence that respondent initiated the fight, willingly

participated in it or perpetuated it.” Id. at 6.

Here, Mr. Mayo testified that he hit Mr. Pinckney only in response to Mr. Pinckney’s

physical provocation, and he hit him only once, thus demonstrating unwilling participation and a

minimal response to the provocation. While his testimony is self-serving, if credited, it would

establish appropriate defensive behavior. The only contradiction of Mr. Mayo’s self-serving

testimony is Mr. Pinckney’s self-serving testimony, and I largely discredited Mr. Pinckney’s

version of events. His account of a severe beating could not be substantiated by medical

evidence or by witness accounts of his condition. Even Mr. Journel failed to corroborate Mr.

Pinckney’s claim that Mr. Mayo was beating him and had to be pulled off of him. If Mr. Mayo

had been kicking him wildly, as Mr. Pinckney testified, one would expect some of those kicks to

land and produce bruises to confirm his account. Even the injuries that he claims to still suffer

were not independently verifiable.

In addition, Mr. Pinckney’s poor performance evaluation, which the tribunal had no

independent basis to discredit, provided a reason for Mr. Pinckney to angrily attack Mr. Mayo.

His accusation against Mr. Mayo effectively forestalled a charge that he committed misconduct

by striking his supervisor (sometimes the best defense is a good offense) and undermined the

validity of his poor evaluation. The fact that Mr. Pinckney continues to collect workers’

compensation and has not returned to work a year after the incident provides further reason to

question his motives.

I also noted that there was no evidence corroborating the claim that respondent was

having an affair with Ms. Rogers, the motive that is alleged to have driven the attack. Even if I

discredited Ms. Rogers’ testimony that her relationship with Mr. Mayo was purely professional

and that she does not have romantic relationships with men, which I believed, petitioner

provided not even inferential confirmation of an affair, such as evidence that Mr. Mayo and Ms.

Rogers were frequently together when their duties did not require them to be. If Mr. Mayo had

planned to get Mr. Pinckney alone so that he could threaten or assault him, why would Ms.

Rogers expose her paramour to jeopardy by calling for help? Even the video corroborates her

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account that she ran from the storeroom to summon assistance. If she did not want to be a

witness, she could have just left the room.

Petitioner contends that respondent’s claim of self-defense was too delayed to enjoy any

credibility. That is, when questioned immediately after the incident, rather than report that Mr.

Pinckney attacked him, Mr. Mayo denied that anything happened. This failure certainly reflects

negatively on respondent’s version of events. Nonetheless, the burden is petitioner’s.

It is well-established that petitioner bears the burden of proving its charges by a

preponderance of the evidence, which means the Department must satisfy the trier of fact that the

respondent’s guilt is “more likely than not.” Bazemore v. Friday, 478 U.S. 385, 400-01, 106

S.Ct. 3000, 3009 (1986). The hospital police investigation was marginal in content and added

very little to petitioner’s proof, and the officers themselves lacked candor. Ultimately, Mr.

Pinckney’s testimony was not credible enough to establish that respondent “initiated the fight,

willingly participated in it or perpetuated it.”

As a result of the foregoing, I recommend the charge be dismissed.

Tynia D. Richard Administrative Law Judge August 24, 2006 SUBMITTED TO: CLAUDE RITMAN Executive Director APPEARANCES: ELLEN GROSSMAN, ESQ. Attorney for Petitioner KOEHLER & ISAACS, LLP Attorneys for Respondent BY: STEVEN ISAACS, ESQ.

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Health & Hospitals Corp. (Coler-Goldwater Memorial Hospital) Assoc. Exec. Director’s Decision (Sept. 25, 2006) HOWARD KRITZ, Associate Executive Director, Human Resources

DECISION

The report and recommendation of Administrative Law Judge Tynia Richard was

referred to me by Claude Ritman, Executive Director and I have carefully reviewed the record,

exhibits, closing briefs, and Fogel letter, as well as the record of the disciplinary proceedings.

Based upon my review, I hereby overturn the recommendation of Judge Richard and sustain the

disciplinary charges for reasons set forth below.

The disciplinary charges are based upon an incident that occurred on March 8, 2005

between Mr. Pinckney and the Respondent. The Administrative Law Judge (“ALJ”) made

several credibility determinations that were reviewed against the record of the hearing.

Determining credibility of witnesses is normally within the province of the ALJ, unless such

determinations are not supported by substantial evidence on the record as a whole. When the

record is considered as a whole, it is my judgment that the ALJ’s determination that the charges

were not sustained must be rejected.

In her Report and Recommendation, the ALJ made several significant misstatements,

incorrect assumptions, and conclusions without any proof on the record, upon which she made

her determinations of credibility. Because the bases for Judge Richard's conclusions were faulty,

based upon a dubious inference, and inconsistent with the record and exhibits, her findings with

regard to credibility are similarly without merit. In looking at the factual issues and the record as

a whole, there was no rational basis for the ALJ to reach the credibility conclusions in her Report

and Recommendation. Thus her recommendation must also be overruled.

In addition, in my review of the proceedings before the ALJ, I perceived some hostility

by the ALJ toward Mr. Ellis and the hospital throughout her Report and Recommendation that

may have affected the objectivity of her credibility determination.

At the beginning of the first day of hearing on March 17, 2006, counsel for the parties

made their appearances for the record. Ellen B. Grossman, Labor Relations Counsel, appeared

for the Corporation and for Coler Goldwater. (Tr. 5, lines 5-8). However, despite this clear

appearance, which was consistent with the Section 7.5 Notice and Statement of Charges brought

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against the Respondent, Judge Richard removed Brian Ellis "as counsel" from the hearing. It is

evident from the Report and Recommendation that without any basis, the ALJ mistakenly

believed that Mr. Ellis was an attorney and that he was acting as counsel for the Petitioner in the

case. In Footnote 7, page 15 of the Report and Recommendation, Judge Richard incorrectly

cited the Disciplinary Rules of the New York Lawyers Code of Professional Responsibility as

the basis for removal of Mr. Ellis from the courtroom during the hearing.

At the commencement of trial, the tribunal disqualified Mr. Ellis as counsel in this case because respondent proposed calling him as a witness, depending upon other evidence offered, because of his involvement in the investigation. DR 5-102(a) provides that a lawyer shall not act as an advocate on behalf of his client when “the lawyer knows or it is obvious that the lawyer ought to be called as a witness on a significant issue” in the case. Footnote 7 at Tr. (Emphasis added) Moreover, even if Rule 5-102(a) had been applicable in this case, it was improperly

applied. Mr. Ellis was never counsel in this case and, other than Respondent's self-serving

statement through his counsel, that Mr. Ellis might be called by Respondent as a witness, it was

not obvious that Mr. Ellis ought to be called as a witness on any significant issue in this case. In

addition, counsel for Respondent never called Mr. Ellis as a witness.

The ALJ's mistaken identification of Mr. Ellis as an attorney clearly had impact on

further determinations by Judge Richard in interpreting Mr. Ellis' role on the day of the incident.

There was no dispute that Mr. Ellis was the Labor Relations Officer for the facility. However,

based upon testimony by Hospital Police Officers, the Judge clearly decided that the hospital

police acted improperly by notifying Mr. Ellis of the incident.

The ALJ evidently connected this mistake of fact (that Mr. Ellis was an attorney) with the

Respondent's claim that Mr. Ellis wanted his arrest because he was a shop steward for his union

and that he had many disagreements representing the members of his union before labor

relations. Although, other than this self-serving statement by the Respondent of Mr. Ellis'

hostility toward him, there was no proof offered by the Respondent to show that there was

hostility against him or that Mr. Ellis had anything to do with his arrest. Nevertheless, the ALJ

evidently fully credited the Respondent's claims.

As the labor relations officer for the facility, Mr. Ellis must deal with numerous union

officials and grievance representatives. Clearly, in this setting it is not possible for Mr. Ellis,

representing management, and Union representatives, representing grievants, to always agree.

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However, it is unreasonable to claim that Mr. Ellis would ask for the arrest of a union

representative simply because of their respective positions. Neither the Respondent nor his

attorney claimed that Mr. Ellis has attempted to arrest other union representatives. Moreover, on

direct testimony, even Ms. Rogers did not support the Respondent's claim that Mr. Ellis had it in

for the Respondent.

Q: Do you have any idea why Brian Ellis would want to do that? A: No. I thought they were friends. Q: Do you know if at the time Keith Mayo was a shop steward? A: Yes.... Q: As to your knowledge, were there, were there confrontations with Mr. Mayo as the delegate and the administration of the hospital? A: I mean, not really, that they would go at it, you know because whenever he was representing somebody. Tr.226 . The statements of observations made by Ms. Rogers shows disagreements between the

Respondent as the union representative and Mr. Ellis, as the labor relations officer, discussing a

case. It is well known that in labor relations, there may be disagreements between the union

representative and the labor relations officer. However, this is not a reasonable basis to claim

that because of his role representing employees, as one of many union representatives at the

facility, the Respondent would be singled out by Mr. Ellis to suffer both disciplinary and

criminal action against him. However that unreasonable and incredible reasoning appears to be

one of the bases for the ALJ’s determination.

Without proof, other than the Respondent's self-serving statement, Judge Richard

apparently came to the incorrect conclusion that the Hospital Police arrested Mr. Mayo on the

instructions of Mr. Ellis. There is nothing in the transcript that justifies such an assumption.

Sergeant Soto testified that he called Mr. Ellis once the hospital police received the report

of the altercation between two employees. On direct testimony, Sergeant Soto was asked why he

contacted Mr. Ellis and he responded, "Dealing with the employee, figure it would be a Labor

Relations issue. Tr.136. In her Report and Recommendation, the Judge quotes from Sergeant

Soto's testimony on cross-examination and comes to a conclusion which is not supported by the

record:

“Sergeant Soto: ... That’s why Brian was called because it was a Labor Relations issue.

Counsel for Respondent continued questioning Sergeant Soto:

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Q: How quickly - you said it was a Labor Relations issue. The police are there, you have an assault, yet you're saying you need to wait for Labor Relations? Why is that? A: Because that's what we were waiting for. Q: Why?

A: From my boss. Q: Why? A: That's what they wanted. I was going under my command. Q: You were informed to take no further actions until Brian Ellis arrived? A: Not until Brian Ellis arrived. But at least to know what was going on and, you know, the whole - we were waiting for everything to happen. Q: What does that mean, Sergeant Soto? I don't mean to be disrespectful. A: Okay. Q: You're controlling an investigation. You're waiting for what to happen? A: On the call from my Lieutenant, what we're going to do. Q: What does that mean? I don't- A: What actions we were going to take. Q: You mean the police don't decide what action is to be taken? Brian Ellis does? A: No. Q: Well, that's what you just said. A: But being that it was going to be a labor relations issue because we have two employees - Q: Well, if that was the case, why was Mr. Pinckney - excuse me - Mr. Mayo arrested? You just said it's a Labor Relations issue. Why is he arrested? Tr.148-149. This series of questions is also set forth in the Report and Recommendation at page 13-14. Based upon the above testimony, the ALJ incorrectly implies that calling Brian Ellis by

hospital police was improper procedure. However, as the labor relations officer for the facility,

Brian Ellis is the individual who must be notified by hospital police, or any other department,

when there is an altercation between two employees, as Sergeant Soto stated throughout his

testimony. There was also an inference by the ALJ that if a matter is a labor relations matter,

then an arrest is not appropriate. In an employment setting, it is certainly possible that an act of

misconduct that results in disciplinary charges may also be a criminal matter that would result in

an arrest. The two are not mutually exclusive.

Mr. Ellis makes decisions with regard to disciplinary action. The hospital police are not

authorized to do so. Mr. Ellis' role as the labor relations officer includes suspending employees

pending disciplinary hearings. This is consistent with the entry in the police log book: “1120 Mr.

Mayo was advised by B. Ellis at S104 that he is suspended until his Hearing and Hospital Police

advised Mr. Mayo that he is arrested.” Petitioner’s Exhibit 20 at page 221. This entry clearly

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demonstrates the separate roles of Mr. Ellis as Labor Relations Officer and Hospital Police.

Nevertheless, the ALJ mischaracterizes Sergeant Soto’s testimony as evasive and upon this, the

ALJ incorrectly failed to credit Sergeant Soto’s testimony.

The ALJ also mischaracterizes the basis for the Respondent's arrest when she stated:

“Moreover, the conclusion that the videotape provided the impetus for arresting Mr. Mayo was

completely implausible.” Report and Recommendation at page 14. “I therefore found no

credence in the claim that, of all things, it [the videotape] formed the basis for the decision to

arrest respondent.” Report and Recommendation at page 15.

The transcript contains no claim or argument that the videotape was the basis for Mr.

Mayo's arrest. The basis for the arrest, as set forth in the transcript, was Mr. Pinckney's

determination to press criminal charges against Mr. Mayo. Mr. Pinckney testified that he was

asked by hospital police, “What did I want to be done. I said I want to press charges.” Tr.31.

Similarly, Officer Lawrence Fishburne testified: “We questioned Mr. Lenny Pinckney about the

situation at hand, did he want to press charges, and he said, yes, he would like to press

charges....So we read Mr. Mayo his Miranda rights and placed him under arrest. Tr.173. Mr.

Mayo was arrested only after Mr. Pinckney declared that he wanted to press charges. Mr. Mayo

was not arrested until 11:20 a.m., which is consistent with the testimony of Mr. Pinckney,

Lieutenant Alago, Sergeant Soto, and Officer Fishburne, and with the notations set forth in the

Hospital Police Log:. “Mr. Smith & Lt. Alago, Sgt. Soto & P/O Fishburne responded to

Receiving area to escort Employee Keith Mayo to S-104.” Petitioner’s Exhibit 20.

Only the Respondent, in a self-serving statement without corroboration, claimed that the

hospital police made the determination to arrest him on Mr. Ellis' direction, early in the morning

of March 8, 2005. According to Mr. Mayo, just after the incident, he went to his car to get his

asthma medicine. He then stated, “I came back into the hospital, and I was going to hospital

police to report what had just happened when Mr. Alago met me in the hallway and said that

Brian Ellis want me arrested.” Tr. 278. He also claimed that although Lieutenant Alago stated

he wanted a statement from him, he was not allowed to give a statement.

On cross-examination, the Respondent stated that after Mr. Pinckney left the storeroom it

took three to four minutes for him to try to control his breathing (Tr. 302-3) and another five to

eight minutes to go to his car, take his asthma medication and return to the storeroom area (Tr.

303). He stated that upon his return, he met Lieutenant Alago in the hallway near the storeroom.

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Tr. 303-4. It was at this time that Mr. Mayo claimed he was informed that Mr. Ellis wanted him

to be arrested.

According to Petitioner's Exhibit 21, Mr. Pinckney left the storeroom at 8:36 a.m. Both

Mr. Pinckney and Mr. Baiden testified that Mr. Pinckney went to Mr. Baiden directly from the

storeroom following the incident. According to the Hospital Police Log, Mr. Pinckney,

accompanied by Mr. Baiden, first reported the incident to Hospital Police at 9:00 a.m. and Mr.

Ellis was notified of the incident at 9:13 a.m. as written in the Police Log (Petitioner’s Exhibit

20).

If, however, one follows the Respondent's timeline, he met Lieutenant Alago in the hall

no later than twelve minutes after the incident ended, which would have been approximately

8:48 a.m. This is twelve minutes before the hospital police were notified of the incident and

twenty-five minutes before Mr. Ellis was notified of the incident. The Respondent's testimony is

not credible based upon facts in evidence as well as his own inconsistent statements. The ALJ

however, made no note of the fact that the Respondent's version of events was not consistent

with the official records as well as the testimony of Lieutenant Alago, Sergeant Soto, Officer

Fishburne, Mr. Baiden, and Leonard Pinckney. Rather, the ALJ discounted all of the Petitioner's

witnesses' testimony and attributed truthfulness solely, and without basis, to the Respondent and

his sole witness, Ms. Rogers.

In addition, the Respondent's claim that he tried to report the incident is not supported by

the facts on record. According to the Hospital Police Log (Petitioner’s Exhibit 20), the

Respondent was arrested at 11:10 a.m. From 8:36 a.m. until 11:10 a.m., when members of

Hospital Police came to the receiving area, the Respondent did not call his supervisor, or labor

relations, or hospital police, or anyone else to report that he had been physically attacked by a

subordinate. When Mr. Journel, another supervisor, entered the storeroom with Ms. Rogers a

little after 8:30 a.m., neither the Respondent, nor Ms. Rogers claimed that they told Mr. Journel

that Mr. Pinckney had engaged in improper conduct. Neither told Mr. Journel that Mr. Pinckney

had hit the Respondent or attacked him in any way. The Respondent did not say that he said

anything to Mr. Journel, which is consistent with Mr. Journel’s testimony.

Despite the fact that the Respondent failed to notify anyone of the incident for over two

and one-half hours following the incident, he nevertheless claimed that he tried to make a

statement at the hospital but was not allowed to do so. There is nothing in the record which

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supports this claim. However the ALJ makes no note of the Respondent's failure to report the

incident.

After he was arrested at 11:20 a.m., Sergeant Soto testified that he escorted Mr. Mayo to

the men's room. Once Sergeant Soto took Mr. Mayo to the men's room, the Respondent made a

statement to him.

Sergeant Soto: He [Mr. Mayo] made a statement that he wanted - what the statement that he made was that why isn't Pinckney not being arrested. Q: What did you say to him? A: I said then give me your complaint and at that point he decided to brush it off. He said no, forget about it, forget about it. Tr. 141. This statement, made after the Respondent's arrest, which made no claim against Mr.

Pinckney and which the Respondent chose to withdraw cannot be determined to be an attempt to

make a statement.

According to Officer Fishburne, while still in the hospital, when he asked the Respondent

if he had been engaged in a physical altercation with Mr. Pinckney, he said no. Tr.172. It was

not until after he was arrested, and was in the car to the Police Precinct that the Respondent, for

the first time, made a claim that he had been attacked by Mr. Pinckney. Tr. 182.

As the ALJ stated, “There is no dispute that a physical altercation occurred that day

between the two men.” Report and Recommendation at page 2. In addition, there is no dispute

that Mr. Pinckney, upon leaving the storeroom, immediately reported the physical altercation to

Mr. Baiden. There is no dispute that Mr. Pinckney reported to Mr. Baiden’s office as soon as he

left the storeroom. There is no dispute that Mr. Baiden took Mr. Pinckney to report the

altercation to Hospital Police. There is no dispute that the Respondent failed to call anyone by

phone, failed to report the altercation, or that he failed to claim that he had been attacked by his

subordinate to anyone until after his arrest when he was in the car to the Precinct. Yet the

Respondent, when asked where he was hit during direct testimony responded that he had been hit

“up on my shoulder area near my neck...And then he punched me in my stomach and rib cage

area real hard.” Tr. 276. It is difficult to believe that a supervisor who had been so physically

attacked by his subordinate, would not have reported it immediately. Instead throughout the

morning, beginning with just after the incident, the Respondent said nothing. This lack of

reporting makes the Respondent's testimony of an attack by Mr. Pinckney less than credible.

The testimony concerning the incident itself is similarly replete with suppositions and

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mistaken conclusions by the ALJ.

For example, in her Report and Recommendation, the ALJ states, in Footnote 6:

Petitioner contended that the videotape contracted the timing of the events as Mr. Mayo testified, however, there was no significant differences in the timing offered by respondent. Report and Recommendation at page 14-15. A review of the videotape, in fact, demonstrates that the Respondent's testimony, as well

as that of Ms. Rogers, differed significantly from the videotape. The Respondent testified that

the first time he saw Ms. Rogers on March 8, 2005, after 7:00 a.m. that morning, occurred when

he was going to the men's room and she was exiting the freight elevator. He stated that he met

her at the loading dock when he returned from the men's room and that they went to the

storeroom together to review her evaluation. Tr. 273.

The videotape running time is 34 minutes and 11 seconds. (Petitioner’s Exhibit 14).

Since, Pinckney left the area at 8:36 (Petitioner’s Exhibit 2) the videotape commences at

approximately 8:02 a.m. At 8:16:36 a.m. (14:36 from the beginning of the videotape) Ms.

Rogers is walking down the hall from the direction of the main lobby and turns to walk toward

the storeroom. At 8:17, Ms. Rogers heads toward the loading dock from the storeroom. At

8:20:18 a.m. Mr. Journel and Mr. Mayo are walking down the main hallway and turn to go to the

storeroom. Two minutes later, at 8:22:06 a.m. Ms. Rogers is seen returning from the loading

dock back to the storeroom. At 8:23:47 a.m. (21:06 from beginning of videotape) Mr. Mayo and

Ms. Rogers are walking together from the storeroom toward the loading dock, passing Mr.

Journel, who is walking toward the storeroom. Seven minutes later, at 8:30:16 a.m., Mr. Mayo

and Ms. Rogers are walking together toward the storeroom from the loading dock. At 8:31:02,

Mr. Journel is walking, holding a cup, from the storeroom toward the loading dock.

Significantly, this review of the video shows that Ms. Rogers was in the storeroom area

prior to the Respondent’s claim that he first saw her exiting the elevator and that they walked

together from the loading dock to the storeroom for her evaluation. In fact, it shows that Ms.

Rogers and Mr. Mayo evidently met in the storeroom and left together at 8:23 a.m., and that they

returned together seven minutes later, at 8:30 a.m. The incident occurred shortly after they

returned to the storeroom together. Ms. Rogers’ testimony, likewise, failed to mention the seven

minutes she and the Respondent were together prior to the incident. The ALJ clearly ignored

these inconsistencies between the Respondent's and Ms. Rogers’ testimony with that of the

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videotape.

Mr. Pinckney’s testimony with regard to the details of the incident was consistent on both

direct and cross-examination. His testimony is consistent with that of Jean Journel as well. To

determine what occurred during the period of the altercation, it is necessary to determine

credibility of the witnesses since Mr. Pinckney’s and Mr. Journel’s testimonies differ

significantly from those of the Respondent and Ms. Rogers.

The bases for the ALJ’s determination that Mr. Pinckney's testimony lacked credibility

were faulty. She stated that Mr. Pinckney stated that he was severely beaten, but she discounts

that. “The evidence that Mr. Pinckney exaggerated the extent of his physical encounter with Mr.

Mayo was clear and it undermined his credibility.” Report and Recommendation at page 4. She

further states that, “Even the injuries he claims to still suffer were not independently verifiable.”

Report and Recommendation at page 16.

However, a review of the medical documentation, Petitioner's Exhibits 3, 4, 5, 6, and 7,

list the following symptoms: back pain, difficulty changing positions and right sided headaches.

“There was tenderness noted over the lower cervical paraspinal muscles....There is tenderness

over the right temple area...There is tenderness over the low back and some spasms over the

paraspinal muscles. Straight leg raising is painful at 80 degrees bilaterally...Causal Relationship:

Due to the accident at work on 3/8/05. Disability: Total” Petitioner’s Exhibit 6, dated March 15,

2005.

Physician’s notes dated March 23, 2005, April 26, 2005, May 24, 2005, June 21, 2005,

July 19, 2005, August 16, 2005, September 13, 2005, October 18, 2005, November 15, 2005,

December 13, 2005 and January 10, 2006 each state that Mr. Pinckney's disability is “Total.”

Petitioner’s Exhibit 6. In addition, Mr. Pinckney has been getting physical therapy twice a week,

and he has been prescribed several medications during his course of treatment, including

Naprosyn, Relafen 750 mg, muscle relaxant Robaxin 750 mgs, and Ultracet. See, Petitioner's

Exhibit 3. Mr. Pinckney was also placed on Tylenol with codeine. See, Petitioner's Exhibit 6.

The fact that monthly medical reviews continued to find Mr. Pinckney to be totally

disabled along with the fact that Mr. Pinckney was placed on controlled substance medication

(Tylenol with codeine) supports Mr. Pinckney’s claim that he was in fact severely beaten and

continued to suffer severe painful headaches. It is not reasonable to believe that a physician

would continue to prescribe a controlled substance to a patient who was not suffering severe

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pain.

Mr. Pinckney's continuing symptoms, dizziness and severe headaches are consistent with

his version of the incident, that the Respondent hit him in his head several times. When someone

is hit several times in both temples, it is the interior damage that causes the symptoms

experienced by Pinckney. This is similar to shaken baby syndrome where the baby may show no

outward symptoms of injury - however the child may nevertheless die from internal injuries to

the brain caused by the trauma.

Therefore, the basis for finding that Mr. Pinckney exaggerated the extent of his injuries is

without merit. Thus, not crediting his testimony on this basis is similarly without merit.

The ALJ also found fault with Mr. Pinckney’s inability to state clearly as to the exact

date that he wrote and submitted his rebuttal to the evaluation. As he testified, following the

incident, he became dizzy and disoriented. A review of Mr. Pinckney on the videotape after he

exited the storeroom also supports this. Mr. Pinckney is seen walking unsteadily, holding his

head, pausing to place his hand on a trash can before turning into the hall leading to Mr.

Baiden’s office. He is seen walking unsteadily down that hall. Petitioner’s Exhibit 14. The

failure to state the exact time of writing his rebuttal alone was not sufficient to discredit Mr.

Pinckney’s entire testimony.

The ALJ also incorrectly finds against the Petitioner’s case on the basis that the facility

did not offer any proof of a relationship between the Respondent and Ms. Rogers.

I also noted that there was no evidence corroborating the claim that respondent was having an affair with Ms. Rogers, the motive that is alleged to have driven the attack. Even if I discredited Ms. Rogers’ testimony that her relationship with Mr. Mayo was purely professional and that she does not have romantic relationships with men, which I believed, petitioner provided not even inferential confirmation of an affair, such as evidence that Mr. Mayo and Ms. Rogers were frequently together when their duties did not require them to be. Report and Recommendation at page 17,

In no portion of the transcript or other documents submitted into the record does the

Petitioner claim that the Respondent and Ms. Rogers were having an affair. In fact, Mr.

Pinckney testified that he had no knowledge of any affair between them. He testified that he was

made aware of it only because Ms. Rogers raised it after the Respondent called him into the

storeroom. For the ALJ to make a finding against the Petitioner for failure to prove something

that the Petitioner never claimed clearly demonstrates the ALJ’s unreasonable inferences against

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the Petitioner.

Mr. Pinckney testified that once Mr. Journel left the storeroom, the Respondent sat down

at his desk and Ms. Rogers accused Mr. Pinckney of telling her boyfriend that she was involved

with the Respondent. See, Transcript at page 26. Pinckney denied knowing anything about it. It

was clear from Mr. Pinckney's testimony that this was the first time Mr. Pinckney had heard

anything about any involvement between the Respondent and Ms. Rogers. Yet, the Judge held

the Petitioner’s failure to prove the existence of the affair against the Petitioner, despite the fact

that no one, except Ms. Rogers made any statement about such involvement.

According to Mr. Pinckney, once he denied any knowledge of any involvement between

the Respondent and Ms. Rogers, the Respondent claimed that he knew Mr. Pinckney would deny

it, he got up from his desk and after some additional statements involving Mr. Pinckney's father

and nephew, the Respondent advanced toward Mr. Pinckney and then, without warning, punched

him hard on the right side of his head. Mr. Pinckney stated that the blow caused him to become

dazed. See, Transcript at page 28. Thereafter, the Respondent hit Mr. Pinckney several times

around the head and pulled his shirt up from the back and over Mr. Pinckney's head. During this

time, Mr. Pinckney repeatedly stated that he did not know about it and he did not say anything to

anyone.

Mr. Journel’s testimony is consistent with Mr. Pinckney's in that upon entering the

storeroom with Ms. Rogers, Mr. Journel heard Mr. Pinckney repeating the statement that he

didn't do it. As to Mr. Journel, his testimony as set forth in the transcript is consistent

throughout. The ALJ discredits Mr. Journel’s testimony, again relying on incorrect suppositions

and conclusions.

The ALJ refers to “inconsistencies” among the three written statements by Mr. Journel.

However, a review of the three statements does not reveal any inconsistency among them. The

first and second statements, Petitioner’s Exhibits 9 and 10, were both written on March 8, 2005.

Mr. Journel testified that he wrote the second statement because Mr. Smith, the Director of

Hospital Police, asked him for a statement with more detail. Both statements have the

information that when he was at the loading dock, Ms. Rogers came running to him to tell him

there was a fight in the store, that he returned with her and found Mr. Pinckney on the floor. The

second statement adds that Mr. Mayo was standing over Mr. Pinckney, and that he pushed Mr.

Mayo aside.

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The third statement was dated August 5, 2005. However, Mr. Pinckney testified that Mr.

Ellis had interviewed him about the incident 3 or 4 days after the incident of March 8, 2005 and

that the information in the statement dated August 5, 2005 contained the information he had

provided to Mr. Ellis in March 2005. The third document added details of what occurred prior to

Mr. Journel leaving the storeroom to go to the loading dock. Mr. Journel testified that he had

read the statement before it was printed out and was asked whether it was correct or not and he

stated it was correct.

Q: Did you read it while it was still on the screen? A: Yeah. I read it on the screen. So after he asked me do you agree with that? I said - when I read it, I say okay, that's what exactly I believe I know I explained to him before. Tr.70 During the course of his testimony, Mr. Journel agreed that some of the words used in the

typewritten statement were not his. Mr. Journel testified that Mr. Mayo was standing over Mr.

Pinckney when he returned to the storeroom with Ms. Rogers. See, Tr. 96-97. During his

testimony concerning his typewritten statement, Mr. Journel stated that he asked Mr. Ellis about

the word “straight let” [sic], clearly referring to the word “straddled” in the typed statement.

See, Tr.97. The word “straddled” is merely another way of saying “standing over,” which was

the way Mr. Journel had described what he saw in his second statement of March 8, 2005. See,

Petitioner’s Exhibit 10. There is no factual difference between the two statements with regard to

the mere change of wording. Mr. Journel also agreed that when he gave his statement to Mr.

Ellis, the employee's titles were not added by him as they appeared in the typewritten statement.

Again, this addition of the employees’ titles does not in any way change the factual statement

that Mr. Journel stated was the information that he had given to Mr. Ellis in March 2005. As to

the facts as set forth in the statement, Mr. Journel stated that the typed statement was correct as

to what he had observed on March 8, 2005 and which he relayed to Mr. Ellis in his interview a

few days after the incident.

However, the ALJ imparted significant weight to these two changes, as is evident from

the language she used to describe Mr. Journel's testimony. The ALJ stated: “"He [Mr. Journel]

admitted, however, that some of the words were not his. (Tr. 97, 99)” Report and

Recommendation at page 5. (Emphasis added.) By using the word “admitted” to describe Mr.

Journel’s testimony about the above-mentioned changes, the ALJ again shows a hostility toward

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the Petitioner’s witnesses without any factual basis. Mr. Journel’s statements should not have

been interpreted as an admission. The testimony of Mr. Journel is not less believable because of

the use of a synonym and the addition of employees’ titles, which do not affect the details of

statement of Mr. Journel’s observances of March 8, 2005.

Judge Richard also determined that Mr. Journel’s testimony and statement dated August

5, 2005 were not credible without any plausible basis set forth for such determination.

Mr. Journel was asked by counsel for the Respondent if, as of August 5, 2005, he was

aware that Ms. Rogers had been fired.

Q: Do you know why Ms. Rogers was fired? A: I don't know. Q: Ms. Rogers was fired around May of 2005 prior to you writing this report - this last report for Mr. Ellis, right? A: Like I said, I heard that she was fired, but I don't know the reason why. Tr. 93.

The ALJ determined that, although Mr. Journel testified that he did not know the reason

for Ms. Rogers’ termination, which was not disproved by counsel for the Respondent, and

although Mr. Journel testified that the statement dated August 5, 2005 was based upon

information he had provided to Mr. Ellis about three to four days after March 8, 2005, Mr.

Journel's testimony was nevertheless unreliable.

The basis for the ALJ’s conclusion that Mr. Journel’s testimony was unreliable can be

discerned from her statement:

In light of Ms. Rogers' termination, respondent argues that Mr. Journel’s testimony cannot be relied upon because of the pressure put on him to conform to the hospital’s version of events.4 4During a break in the trial, Mr. Journel was seen speaking with Mr. Ellis in the waiting area outside of the courtroom, a fact that he tried to hide by denying it when first questioned about it by respondent’s counsel. Although eventually admitted that he did speak to Mr. Ellis, he denied that they discussed the trial, which he had been explicitly instructed not to do before the break (Tr.98). (Emphasis added). Report and Recommendation at page 5.

I have reviewed the transcript with regard to Mr. Journel’s testimony concerning what

had occurred during the break. First, I noted that the break occurred following Mr. Journel’s

complete direct testimony (Tr.61-75) and twenty pages of Mr. Journel’s cross-examination

(Tr.77-97). Cross-examination continued only until Tr. 101 and therefore the majority of his

testimony had occurred before the break. In addition, the testimony concerning the incident and

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his written statements had all been elicited prior to the break. Moreover, the transcript does not

support the Judge's contention that Mr. Journel had attempted to hide the fact that he had been

talking with Mr. Ellis.

Q: When we left here, you were discussing - were you discussing your testimony with Mr. Ellis? (Emphasis added) A: With who? Q: You and Mr. Ellis, were you discussing? A: I did not talk to anyone. Q: You don't know who Brian Ellis is? A: Brian? Q: Right. A: We’re talking some things - I other things, but not about what - this case. Tr.98

Upon being asked if he was discussing his testimony with Mr. Ellis during the break, he

responded by stating that he had not talked about his testimony to anyone. He did not

“eventually admit” speaking with Mr. Ellis, he was clarifying that they were talking about other

things other than the case during the break. The ALJ again used language which demonstrated

her hostility in incorrectly stating the Mr. Journel “eventually admitted speaking to Mr. Ellis

during the break.

Mr. Journel’s first language is not English as is evident from his pronunciation of the

word “straddled as “straight led.” See, Tr.97 with the phonetic spelling of the word “straddled”

as “straight-led.” In such cases of a witness testifying in a language which is not his native

language, it is not unheard of for such witness to stutter through some of his testimony.

However, the ALJ stated that because Mr. Journel exhibited visible agitation and stuttering,

“...his testimony could have been influenced by fear; thus, I found it unreliable.” Report and

Recommendation at page 6. (Emphasis added.) By putting together innuendos, suppositions and

conclusory statements, the Judge determined that it was merely possible that Mr. Journel was

under some pressure and based upon these unproven claims, that Mr. Journel’s testimony was

not credible.

Other than the self-serving statement by counsel for the Respondent, there was no proof

presented that disputed Mr. Journel’s testimony that he was not aware of the basis for Ms.

Rogers’ termination, nor was there any evidence presented that any pressure had been placed on

Mr. Journel whatsoever. Nevertheless, by combining her footnote about Mr. Journel being seen

talking with Mr. Ellis with the self-serving statement by respondent’s counsel, the ALJ clearly

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made a determination without proof that Mr. Journel may have been aware of the reason for Ms.

Rogers’ termination, and that he may have been pressured by the hospital. Upon these

suppositions and inferences without proof, the ALJ discounted Mr. Joumel’s entire testimony.

There was no credible basis for the ALJ’s findings.

On the other hand, Ms. Rogers’ testimony contains several questionable statements,

which the ALJ did not remark upon. In addition to her testimony which was entirely

inconsistent with the videotape, and which showed that she and the Respondent were together

for several minutes prior to returning to the storeroom at 8:00 a.m., she stated that she left the

storeroom before anything occurred physically, but that she thought there might be a fight. This

is inconsistent with the video, which shows a distraught Ms. Rogers running with one hand over

her head toward the loading dock and Ms. Rogers and Mr. Journel running back to the

storeroom. However, her actions were consistent with Mr. Journel’s statement that Ms. Rogers

told him that there was a fight in the storeroom. It is also consistent with the two statements Mr.

Journel wrote on March 8, 2005, which is before the time when the ALJ made the inferences

about his testimony based upon Ms. Rogers's termination. See, Petitioner's Exhibits 9 and 10.

The video is less consistent with a statement that Ms. Rogers told Mr. Journel that there might be

a fight. Her activity is consistent with Mr. Pinckney’s testimony that he heard Ms. Rogers shout,

“Keith” after he was hit the first time by the Respondent.

Also inconsistent were her two written statements. In Joint Exhibit 1, Ms. Rogers states

that she merely “saw Keith Mayo and Lenny Pinckney talking...” When she wrote a statement

the following day, on March 9, 2005, she claimed that she “witnessed an argument with Keith

Mayo supervisor of stores and Leonard Pinkney [sic] subordinate of the store room. The

argument began to get intense and I left the area to retrieve a male to intervene. Despite this

inconsistency between the two statements of Ms. Rogers, the ALJ did not question their veracity,

unlike her determinations with regard to the statements of Mr. Journel, which were not

inconsistent with each other.

Ms. Rogers’ testified that when she and Mr. Journel returned to the storeroom, Mr.

Pinckney was on the ground and that the Respondent was standing a few feet away from him.

However, in her written statement of March 9, 2005, Ms. Rogers wrote, “When I returned with

Mr. Journel one of the employee’s[sic] (Leonard Pinkney[sic]) was on the floor. Mr. Journel

separated the two men and asked Mr. Pinkney[sic] to leave the area.” (Emphasis added.) During

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her testimony, Ms. Rogers attempted to claim that Mr. Journel didn’t actually separate the two

men since they were already separated by a few feet, he merely stood between them. Such

explanation is not believable, yet the ALJ made no mention in her Report and Recommendation

of Ms. Rogers' inconsistencies. As it is commonly understood, the meaning of the term that Mr.

Journel “separated the two men” clearly means that since Mr. Pinckney was on the floor, the

Respondent was standing over him and had to be physically separated from Mr. Pinckney. This

is consistent with both Mr. Journel’s and Mr. Pinckney's testimony.

A review of the testimony of the parties to the incident demonstrates that the testimony of

Mr. Pinckney and Mr. Journel were more reliable than the testimony of Ms. Rogers and the

Respondent.

First, although Mr. Pinckney was at the facility working since 7:00 a.m., and although the

Respondent saw Mr. Pinckney at 7:00 a.m.[Tr.271], the Respondent did not claim that Mr.

Pinckney had approached him angrily at any time when he was alone at any time for the period

from 7:00 a.m. to 8:30 a.m. He claims that Mr. Pinckney waited until 8:30 a.m., when Ms.

Rogers was present, to approach him in a threatening manner.

Second, the videotape demonstrates that Mr. Pinckney was performing his duties calmly

as seen at 1 minute 16 seconds from the beginning of the video (8:03:16 a.m.), at 3:09 minutes

(8:05:09 a.m.), and 4:04 minutes (8:06:04 a.m.). To believe the Respondent's version, one would

have to believe that after performing his duties calmly for one and one-half hours, Mr. Pinckney

would angrily approach the Respondent when he had a witness [Ms. Rogers] with him in the

storeroom.

Third, the fact that Mr. Pinckney, immediately upon leaving the storeroom, went to

directly to Mr. Baiden’s office indicates the behavior of a victim of violence rather than the one

who initiated a fight. Mr. Baiden, whose testimony was not questioned, testified that Mr.

Pinckney told him that he had been hit by the Respondent. “I believe he said that Keith punched

me and he said that it's not right. He kept saying that is not right over and over again.” Tr. 107.

However, to believe the Respondent’s version, one would have to believe that although Mr.

Pinckney, the Respondent's subordinate, punched him twice “hard”, he did not report it

immediately, or at any time following the incident.

Fourth, Mr. Pinckney had injuries that were consistent with someone who had been hit

numerous times, not just once, as the Respondent claimed, and which were severe enough for

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physicians to determine he continued to be totally disabled and determined that it was necessary

to continue to prescribe strong pain relieving medications.

Fifth, the Respondent's version of the basis for the charges against him is a claim that Mr.

Ellis is the driving force behind his arrest and disciplinary action and that was because he was a

shop steward for his union is not believable and other than the Respondent’s self-serving

statement, no proof was offered to support such claim. The record does not support the ALJ’s

innuendo throughout the Report and Recommendation that the Respondent’s termination is due

to some perceived attitude of Mr. Ellis toward the Respondent or that Mr. Ellis influenced the

decision to arrest the Respondent. In this case, the record makes clear that the disciplinary

action against the Respondent was occasioned by the Respondent’s attack of his subordinate, Mr.

Pinckney.

Sixth, the only witnesses for the Respondent were the Respondent and Ms. Rogers, both

of whom had reason to lie in that they were both terminated for acts of misconduct based upon

the events of March 8, 2005. It is in their interest to supply a different version of the events from

everyone else who testified for the Petitioner. The ALJ failed to note this possibility. In

addition, the ALJ failed to note any of the inconsistencies in both the Respondent's and Ms.

Rogers' testimony. There was no basis to accord credibility to their testimony and to fail to take

into account the fact that both had reasons for lying under oath.

Based on the above, the disciplinary charges against the Respondent are sustained in their

entirety.

In determining the appropriate penalty, it is necessary to determine the seriousness of the

misconduct. In this case, the Respondent was a supervisor. He was responsible for the work of

subordinate employees. As a supervisor, the Respondent’s personal opinions or feelings should

have no place in the workplace. In this instance, the Respondent attacked a subordinate

employee, injuring him and causing that employee to be placed on a medical leave of absence.

Whenever an employee initiates a fight and assaults a fellow employee is universally

considered to be an act of gross misconduct resulting in severe penalty. This would be true in

cases whether the employee attacks a co-worker a supervisor or a subordinate. In this case, the

Respondent, a supervisor, attacked a subordinate employee, and thus he can no longer be trusted

to conduct his work in a professional manner.

Based on the seriousness of the charge, the Respondent is to be terminated from his

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position as Supervisor of Stockworkers effective September 25, 2006.

CLAUDE RITMAN, Executive Director, Coler Goldwater HOWARD KRITZ, Associate Executive Director, Coler Goldwater

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PERSONNEL REVIEW BOARD THE NEW YORK CITY HEALTH & HOSPITALS CORPORATION _____________________________________________X In the Matter of the Appeal of * * DECISION NO.: 1278 KEITH MAYO * * DATE: April 17, 2007 * Supervisor of Stock Workers II * * DOCKET NO.: PRB No. 2,008/06 Coler Goldwater Specialty Hospital * ____________________________________X

CIRCUMSTANCES

This is an appeal to the Personnel Review Board (“Board”) by Keith Mayo

(“Appellant”) from the determination of Coler-Goldwater Specialty Hospital and Nursing

Home (“Hospital”) to overturn the recommendation of Administrative Law Judge Tynia

D. Richard (“ALJ”) to dismiss a charge of assault. Appellant was notified by letter dated

September 25, 2006 that the Hospital did not accept the ALJ’s recommendation that the

assault charge against him be dismissed, and that he was dismissed from his employment

as Supervisor of Stock Workers II at the Hospital, pursuant to Rule 7:5 of the Personnel

Rules and Regulations of the New York City Health and Hospitals Corporation

(“Corporation”).

With notice to counsel for Appellant and to the Corporation, the Board was

duly convened on January 3, 2007 to hear this appeal. Ellen B. Grossman, Esq., appeared

on behalf of the Corporation, and Steven Isaacs, Esq., of Koehler and Isaacs, LLP,

appeared on behalf of the Appellant. Both parties were accorded full opportunity to

present argument to the Board on this appeal. A record of the Board hearing was

prepared and is on file in the Board’s offices.

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After careful consideration of the entire record, including the transcripts of the

March 17 and April 10, 2006 hearings of the ALJ, the August 24, 2006 ALJ’s Report and

Recommendation, the Hospital's September 25, 2006 Determination Letter to Appellant,

and the transcript of the January 3, 2007 hearing before this Board, the Board makes the

following findings:

1. The Appellant is a Corporation employee, employed pursuant to Section 5, Subdivision 12 of the Health and Hospitals Corporation Act in a competitive title, and therefore, the appeal is properly before the Board.

2. That Appellant was suspended from his job at the Hospital on March 8, 2005 on the grounds that he had assaulted another employee he supervised, Leonard Pinckney. There is no dispute that Appellant struck Mr. Pinckney on the morning of March 8, 2005.

3. Two 7:5 hearings were held on March 17 and April 10, 2006 before the ALJ, who having afforded Appellant all rights pursuant to that rule, dismissed the charge of assault on the basis that the Hospital had failed to establish Appellant’s guilt by a preponderance of the evidence.

4. On September 25, 2006 the Hospital wrote a Determination Letter overturning the ALJ’s recommendation and sustaining Appellant’s dismissal.

At approximately 8:30 AM on March 8, 2005 Appellant admits that he struck

Mr. Pinckney, a Dietary Aide, who reported to him. There is no dispute among the parties

on that point, and it is corroborated by a videotape which shows Mr. Pinckney leaving

the stockroom after the incident, holding his head and walking unsteadily. The dispute

before us is that Mr. Pinckney claims that Appellant attacked him severely and without

provocation. He claims that Appellant had a personal reason for this attack, which is

described in detail in the record. He also claims that he was severely injured in this

beating. Appellant claims that Mr. Pinckney attacked him in response to a bad review he

had given Mr. Pinckney the day before. He claims that he only struck Mr. Pinckney once

out of self-defense and that Mr. Pinckney is exaggerating his injuries from the incident.

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There is some disagreement among the parties about why Appellant did not

report the incident immediately, but the ALJ found that he did not report the incident and

denied that it happened when he was initially questioned about it. He did not report his

version of the altercation, namely that he had been attacked and had needed to defend

himself, until he was arrested approximately three hours after the incident.

The ALJ held that although Appellant’s failure to report and his initial denial

that anything had happened “reflected negatively on [Appellant’s] version of events”, she

nevertheless found that the Hospital had failed to meet its burden to prove its case against

Appellant. She found that Mr. Pinckney’s testimony had been “discredited” and his

explanation for Appellant’s motive to be “uncorroborated.” In light of this finding, she

held that the Hospital “failed to show that [Appellant] initiated, willingly participated in

or perpetuated the altercation.” She therefore recommended that the charge of assault be

dismissed.

BOARD’S DECISION

We do not agree with the ALJ’s reasoning that this case turns solely on the

issue of whether the Hospital proved that Appellant initiated or willingly participated in

the altercation with Mr. Pinckney. Regardless of the exact nature of this attack, which is

in dispute, Appellant, having admitted to striking an employee hard enough so that he

staggered out of the stockroom, had a positive duty to report this incident immediately

and to explain why he found it necessary to hit an employee who worked for him. As a

supervisor, physical violence is a final resort, to be used only when absolutely necessary

to defend oneself from physical harm. Appellant had a positive duty to explain why he

needed to take this extreme measure and to accept responsibility for his action and to

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explain his need to take it. There is no question that he failed to do this. The ALJ found

that he did not report the incident and initially denied that it had occurred. His ultimate

explanation that he had acted in self-defense was only made three hours later in response

to questioning by the officers who arrested him.

We do not question the ALJ’s findings of fact and credibility, but disagree

with her reasoning that Appellant’s failure to report and initial denial of the incident is

only one prejudicial piece of evidence against Appellant’s version of what happened that

morning. Our finding is that even if every aspect of the altercation were exactly as

described by Appellant, he was required, as Mr. Pinckney’s supervisor at the Hospital, to

immediately report the incident and to take responsibility for his need to breach the peace

of the Hospital. As violence in the workplace cannot be tolerated, except in the most

extreme cases when absolutely necessary to defend oneself, a hospital employee who has

had to resort to violence has a positive duty to report and explain the incident. Therefore,

we find that Appellant’s response to the March 8, 2005 incident cannot be justified and is

unacceptable in any employee of the Hospital, especially a supervisor. His failure to

respond appropriately requires that he be terminated.

BOARD’S ORDER

Therefore, it is so ordered that:

The Board upholds the penalty that Appellant be terminated as appropriate.

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NGC/mp __________________

Gayle A. Gavin Acting Chair __________________ Nancy G. Chaffetz Board Member _________________ Nelson A. Denis Board Member Cc: Ellen B. Grossman, Esq., Labor Relations Council NYCHHC Howard Kritz, Associate Executive Director Human Resources Coler/Goldwater Personnel Director, Coler-Goldwater Steven, Isaacs, Esq., Attorney for Appellant Appellant