Human Resources Admin. v. Lopez OATH Index No. 496/15 (Jan. 12, 2015), adopted, NYC Civ. Serv. Comm’n Case No. 2015-

1440 (May 18, 2016), appended

Respondent charged with submitting a fraudulent medical note and being absent without authorization for two weeks. Judge sustains the charges and recommends termination of employment. ______________________________________________________

NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

HUMAN RESOURCES ADMINISTRATION Petitioner -against-

JOSÉ LOPEZ Respondent

____________________________________________________

REPORT AND RECOMMENDATION KARA J. MILLER, Administrative Law Judge

This employee disciplinary proceeding was referred by the Human Resources

Administration pursuant to section 75 of the Civil Service Law. Respondent, José Lopez, a job

opportunity specialist, is charged with submitting a fraudulent medical note, knowingly

submitting a false document, being absent without authorization between August 27 to

September 10, 2012, violating the agency’s time and leave regulations, being absent from his

assigned work location, conducting himself in a manner prejudicial to good order and discipline,

and engaging in conduct detrimental to the agency (ALJ Ex. 1).

Following a hearing on the charges, I find that the charges have been sustained and

recommend that respondent be terminated from his employment.

ANALYSIS

Respondent was charged with submitting a fraudulent medical note and being absent

without authorization from August 27, 2012 through September 10, 2012. Ms. Langford,

respondent’s supervisor in 2012, testified that all agency employees are provided with a vacation

grid three times a year to select the days that they would like to take off for vacation. The

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supervisors, as a group, review the vacation picks and evaluate the units’ needs. The supervisors

then make recommendations based on seniority to Assistant Manager Obosi, who makes the final

decision. Some days are approved, others are not (Tr. 11-12, 37-38).

On May 4, 2012, respondent submitted his vacation request form for the summer 2012 to

Ms. Langford (Pet. Ex. 1). She, in turn, forwarded respondent’s vacation requests, along with

the requests from all of her subordinates, to her supervisor, Ms. Stahling. On May 18, 2012, Ms.

Stahling notified respondent in writing which of his requested vacation days were tentatively

approved and which were disapproved. Respondent had requested summer vacation days for

Monday, August 27 through Tuesday, September 4, 2012. Three days in the middle of the

requested period were approved – Tuesday, August 28; Wednesday, August 29; and Thursday,

August 30. The remaining days, however, were disapproved (Pet. Exs. 1, 2; Tr. 13-16, 51-53).

Respondent testified that he came into contact with a poison ivy plant while he was

fishing with his family in Pennsylvania on Tuesday, August 21, 2012. According to respondent,

he suffered from poison ivy on both of his arms from his elbow to his hands, which he described

as “oozing,” “red,” and “itching” (Tr. 77). Respondent maintained that he covered the affected

area with Band-Aids to avoid spreading it to anyone else (Tr. 77-78).

Respondent testified that the next day, August 22, 2012, he went to work. According to

respondent, when he approached Ms. Langford she asked what was on his arms and then told

him to “stay away” from her when he explained that it was poison ivy (Tr. 78). Respondent

contended that when he encountered Ms. Obosi later that day, she told him that he should go to

the doctor after he informed her that he had poison ivy.

The following day August 23, 2012, respondent did not report to work and instead went

to a medical office in Whitehall, Pennsylvania close to where he lives in Allentown,

Pennsylvania (Tr. 79-80). He was examined by Jessica, a physician’s assistant, who diagnosed

him with poison ivy. She gave him a cortisone injection and instructed him to treat the rash with

calamine lotion and return for a follow-up exam in one week. Respondent testified that when he

asked Jessica if he could go to work, she told him that if he had to go to work that he should be

very careful because it was still contagious (Tr. 80-82).

After the examination, respondent went to the front desk to schedule another

appointment. Respondent maintained that Meghan, a medical assistant at the front desk,

disagreed with Jessica’s assessment of how long it would take to treat the poison ivy and told

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him that it would take one to two weeks for it to clear up. Respondent told her that he needed a

note for work, which Meghan provided. Respondent testified that Meghan wrote the note and

time stamped it before giving it to him (Pet. Ex. 3; Tr. 84-85).

The medical note is a pre-printed fill-in the blank return to work or school form on the

medical office’s letterhead. The note is dated August 23, 2012, and reads, “This is to certify that

Jose Lopez, Has been under my care for the following: please excuse Jose from work 8-23-12 to

9-10-12” (italics indicate handwriting) (Pet. Ex. 3). It further states, “and is able to return to

work/school (please circle one) on: Sept. 11, 2012” (Pet. Ex. 3). The remarks section is stamped

by a pre-printed inked stamp, indicating the name of the medical practice and the physician, as

well as the address, and telephone and fax numbers (Pet. Ex. 3). There is no signature.

Respondent went to work and submitted the note to Ms. Obosi’s administrative assistant

the next day, Friday, August 24 (Tr. 83). Respondent stayed at work the entire day but did not

move from his cubicle. He testified that he was wearing a short-sleeve shirt, but covered both of

his arms from his elbows to his hands with Band-Aids (Tr. 86). Ms. Obosi recalled seeing

respondent the afternoon of August 24, and noticing that he had a red rash on his arms, which he

informed her was poison ivy. She could not recall if he was wearing a long- or short-sleeve shirt.

Ms. Obosi confirmed that respondent worked the entire day and did not appear incapacitated by

the rash (Tr. 39, 45, 47).

Reviewing a certified copy of respondent’s timesheet summary for the period of August

19 through August 25, 2012, demonstrated that respondent reported to work on Monday,

Tuesday, and Wednesday. He then took Thursday off splitting the time between sick leave and

comp time. On Friday, August 24, respondent reported to work and remained there for eight

hours and fifteen minutes (Pet. Ex. 6; Tr. 24-25). Respondent did not report to work the

following Monday, August 27, and stayed out of the office until Tuesday, September 11, 2012

(Tr. 86).

Ms. Obosi learned that respondent had submitted a medical note to cover the entire

period from August 27 through September 11 (Tr. 37-38). She testified that the note was

suspicious because respondent had requested vacation during the same period of time and it had

been denied (Tr. 41). Moreover, Ms. Obosi noted that respondent’s submission appeared to have

writing in two different inks (Tr. 40-41).

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Ms. Langford had taken a vacation towards the end of August 2012. When she returned

to work on Monday, August 27, 2012, she noticed that respondent had not reported to work. She

later learned that respondent had brought in a doctor’s note on Friday, August 24, 2012, which

indicated that he should be excused from work between August 23, 2012 and September 10,

2012 (Pet. Ex. 3).

Ms. Langford was directed to call the doctor’s office to verify the authenticity of the note

(Tr. 16). She spoke with Erica, a medical assistant in the doctor’s office, who stated that the note

was only an excuse for August 23, 2012, the day of respondent’s doctor’s visit. On August 30,

2012, Ms. Langford faxed respondent’s submitted note to Erica for her review. Erica faxed it

back with “to 9-10-12” and “Sept 11, 2012” circled. In addition she wrote by hand on the

bottom, “8/3/12 – Please note that this work note is only valid for 8/23/12 (one day) for excusal”

(Pet. Ex. 4). Next to Erica’s initials is another stamp indicating the name of the practice, its

address, and its telephone and fax numbers. The note further indicates that the information was

verified with Jessica, the physician’s assistant (Pet. Ex. 4; Tr. 17-19, 29-30, 32).

On September 11, 2012, Ms. Langford issued a memorandum to respondent notifying

him that disciplinary action would be pursued because she had sought verification of his medical

note from his doctor’s office and was informed that the note had been altered (Pet. Ex. 5; Tr. 22,

43, 87). Respondent was upset and told Ms. Langford that he was going to return to the doctor’s

office the next day to obtain another letter.

On September 12, respondent did not report to work and instead went back to the

doctor’s office to try to resolve the problem. Respondent testified that he spoke with Jessica, the

physician’s assistant who had treated him for the poison ivy in August. He explained that he was

being brought up on disciplinary charges because his employer accused him of forging the

medical note that Meghan had given him. Jessica gave respondent a note on a prescription pad,

stating that the prior note was written by a receptionist and had not been written by a medical

doctor or a physician’s assistant. Jessica also requested to see the original documentation (Resp.

Ex. A; Tr. 88-89).

Respondent returned to work on September 13, with a doctor’s note documenting his

absence the previous day, September 12 (Pet. Exs. 7, 12; Tr. 43). When Ms. Langford asked for

the other note to substantiate his absence from August 27 through September 10, 2012,

respondent stated that the union had told him not to discuss the matter with Ms. Langford

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anymore and any documents he obtained from the doctor’s office should be given directly to the

union (Tr. 23, 43).

Prior to appearing before this tribunal for a conference, respondent returned to the

doctor’s office again to get another letter and spoke to Valerie, a physician’s assistant (Tr. 91-

92). Respondent testified that he explained what was happening and Valerie said that she

needed to speak to Dr. Grover about the situation (Tr. 93). A few days later, Erica from the

doctor’s office contacted him to let him know that he could pick up a new letter from Dr. Grover

dated August 27, 2014 (Pet. Ex. 11; Tr. 94-95). Since he was at work, respondent sent his

mother to pick up the letter (Tr. 96-97). The note repeated what Jessica had written on the

prescription pad note two years earlier. Dr. Grover stated that “the excuse in question was not

written by an MD or PA. It was written by a receptionist. We need original documentation

mailed to us.” (Pet. Ex. 11).

After the conference at this tribunal, respondent returned to the doctor’s office to speak

with Dr. Grover in person. According to respondent, Dr. Grover said that he understood the

situation but since Megan was fired and Jessica had resigned, there was nothing that he could do.

Dr. Grover then agreed to provide another letter to respondent (Tr. 102-03). Respondent testified

that it was at this point Dr. Grover gave him a letter dated September 10, 2014 (Resp. Exs. B, C;

Tr. 103).

The September 10 letter states that after checking their records, they determined that

respondent was to be given an excuse from work solely on the date of his office visit on August

23, 2012. Dr. Grover further stated that his office acknowledges that the penmanship for the

excused dates is from two different sources. The note concludes by stating that the secretary

who provided the note to respondent is no longer employed by their office so they cannot

provide further information regarding the note (Resp. Exs. B, C; 97).

Hilit Tolani, an attorney in the employment law division, testified that while preparing

for the conference at this tribunal, she contacted Ms. Langford, who had retired, to see if she

would be willing to testify at a disciplinary hearing. Ms. Tolani also followed up with the

doctor’s office. She discovered that Erica, who had spoken to Ms. Langford in 2012, still

worked at the doctor’s office. Ms. Tolani sent a letter to Erica, along with a copy of the

submitted medical note and the return fax that Erica had sent to Ms. Langford in 2012 (Pet. Ex.

8; Tr. 54-58). After waiting a week and a half without a response, Ms. Tolani called the doctor’s

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office and spoke with Erica again. Erica did not recall receiving the fax, so she asked Ms. Tolani

to resend it. Erica sent back the same annotated note that she had faxed to Ms. Langford in 2012,

with an additional handwritten note dated August 20, 2014. This handwritten notation indicated

that Erica had verified the note with the doctor and he maintained that the note was for only

August 23, 2012 (Pet. Ex. 9; Tr. 59-61).

Ms. Tolani called Erica to thank her for responding to her fax and asked if she could

prepare an affidavit for her to review and sign for the disciplinary hearing. Erica agreed and told

Ms. Tolani to fax it to the doctor’s office (Pet. Ex. 10; 62). Ms. Tolani never heard back from

Erica or anyone else in the doctor’s office. She followed up a month later to see if they had

received the affidavit. Erica indicated that they had received it and that she had given it to the

doctor to review. The doctor, in turn, contacted an attorney. When Ms. Tolani spoke with the

doctor he informed her that she should send it directly to his e-mail so that he could review the

document with his attorney. After a week of not receiving a response, Ms. Tolani contacted the

doctor again and he explained that he had consulted with his “legal department” and they advised

him that he had “maximized [his] communications on this case” (Tr. 65). He informed her that

the note was indeed for one day, but he would not provide an affidavit (Tr. 64-65).

During her investigation, Ms. Tolani was never apprised of an employee in the doctor’s

office named Meghan (Tr. 61-62). Ms. Tolani acknowledged, however, that she never asked

Erica or the doctor who had written the submitted note (Tr. 70-74).

Without having the benefit of handwriting expertise, a layperson’s observation of the

note demonstrates that the note had been altered by someone other than the original writer. See

Thomas v. Coughlin, 145 A.D.2d 695, 696 (3d Dep’t 1988) (a hearing officer may evaluate

handwriting in the absence of expert testimony); Orix Credit Alliance, Inc. v. Pasta Tree Café,

Inc., 2008 N.Y. Misc. LEXIS 8266 at *6 (Sup. Ct. N.Y. Co. Feb. 29, 2008) (a trier of fact may

make her own comparison of a handwriting sample in the absence of any expert testimony).

In the section where it is handwritten “please excuse Jose from work 8-23-12 to 9-10-

12,” although there are four blank lines for the handwritten information to be entered, everything

is written on the first line, with “to 9-10-12” extending past the line into the margin.

Furthermore, the handwriting for “to 9-10-12” appears different than the other writing, as does

the handwriting indicating that respondent is able to return to work on “Sept 11, 2012” (Pet. Ex.

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3). It is clear even from a layperson’s perspective that there are two different handwritings on

this medical excuse. The remaining issue is whether the note was altered by respondent.

Respondent repeatedly denied altering the medical note, insisting that he did not make

any handwritten notes or markings of any kind on the document (Tr. 87, 104). He further

maintained that the note was never altered because Meghan wrote the entire note herself (Tr.

124, 133). Petitioner, through its investigation, concluded that respondent altered the note or at a

minimum knowingly submitted an altered note.

A determination in this case rests on the credibility of the witnesses. In analyzing

credibility, this tribunal may consider such factors as: witness demeanor; consistency of a

witness' testimony; supporting or corroborating evidence; witness motivation; bias or prejudice;

and the degree to which a witness' testimony comports with common sense and human

experience. Dep't of Sanitation v. Menzies, OATH Index No. 678/98 at 2-3 (Feb. 5, 1998), aff'd

NYC Civ. Serv. Comm'n Item No. CD 98-101-A (Sept. 9, 1998); Dep't of Correction v. Hansley,

OATH Index No. 575/88 at 19-20 (Aug. 29, 1989), aff'd, 169 A.D.2d 545 (1st Dep't 1991).

I found petitioner’s witnesses, Ms. Langford, Ms. Obosi, and Ms. Tolani, to be very

credible. Each of the witnesses were professional and relatively consistent considering that the

incident occurred more than two years ago. Moreover, their testimonies were corroborated by

the documentation supplied by the medical office. None of the witnesses appeared to be biased.

It is also of note that Ms. Langford, who is now retired, agreed to testify in this matter. Finally,

it did not appear that petitioner’s witnesses had any motivation to misrepresent what occurred.

In contrast, respondent is highly motivated to keep his job and has a vested interest in the

outcome of these proceedings. Furthermore, respondent’s testimony was riddled with

inconsistencies and did not comport with common sense. Respondent testified that he contracted

poison ivy on Tuesday, August 21, 2012, while fishing with his family in Pennsylvania. His

certified time records for that day, however, indicate that he worked from 9:15 a.m. to 6:15 p.m.

(Pet. Ex. 6). Respondent testified that he lives in Allentown, Pennsylvania, which is a driving

distance of 92 miles and takes approximately an hour and a half to get there from New York City

with no traffic (distancescalculator.com). It is highly unlikely, that he went fishing with his

family after working for nine hours and then commuting back to Pennsylvania.

Respondent’s testimony for the most part was inconsistent and patently false. For

instance, during his direct testimony, respondent stated that he had shown his poison ivy to Ms.

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Langford on Wednesday, August 22, 2012, and she told him not to come near her. Ms.

Langford, however, was on vacation on August 22 and was not in the office. Even when

confronted with the reality that Ms. Langford was not in the office, he tried to gloss over it and

made excuses. Respondent’s testimony during cross-examination went as follows:

Q: And you testified that your poison ivy -- you showed your poison ivy to Ms. Langford. What day would that have been?

A: That was Wednesday. Q: That was Wednesday and you’re sure Ms. Langford was working that day? A: No. I have another supervisor. Q: Sorry? A: I had another supervisor at that time. Q: You testified earlier that you showed your poison ivy to Ms. Langford, is that

correct? A: If that’s what I said -- I'm mistakenly. I said I gave the documentation to Dr. -- to

Mr. Patrick. Q: That’s not what I'm asking. What I'm asking you is on August 22, 2012 you

testified that you showed your poison ivy to Ms. Langford, is that correct? A: That’s what I said. I don’t recall, but yes, if that’s what I said, then that’s what I

said. Q: And Ms. Langford -- A: I know she was on vacation also. It's been so long ago I don’t remember very

well.

Another contradictory element to respondent’s story has to do with the note itself.

Respondent described his poison ivy as red, oozing, itchy rash that spread from his hands to his

elbows on both arms. To emphasize the severity of his condition, respondent submitted a

medical note to his employer that said he should be excused from work between August 23 and

September 10, 2012. Yet, respondent went to work on August 24, 2012, and stayed for the entire

day (Tr. 107). Respondent explained that the only reason he went to work was to drop off the

medical note even though the note said he should not be at work (Tr. 108, 121). He stressed that

he stayed in his cubicle and did not interact with anyone (Tr. 122). When asked why he had

worked the entire day if he was suffering from such a contagious and painful condition,

respondent testified that he had come all the way from Pennsylvania. He stressed that he did not

want to come that whole distance just to drop off the note, so he stayed at work and submitted

the note at the end of the day (Tr. 123). Respondent did not view his reporting to work on Friday

to be against his doctor’s orders (Tr. 123).

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Another example of respondent’s incongruous testimony concerned Meghan’s authority

to write a note that contradicted the physician’s assistant’s medical evaluation. After being

examined and treated by Jessica, respondent’s understanding was that he could return to work

the next day (Tr. 118). Nevertheless, after going to the reception desk, Meghan, the medical

assistant told him that he needed to stay home for two weeks because poison ivy is very

contagious (Tr. 110). When asked if he thought that Meghan, had the authority to excuse his

absences on her own prerogative, respondent stated that she is the medical assistant and she is

the one who gives the letters (Tr. 111). Respondent then became defensive when questioned if

he believed that Jessica had excused him from work for two weeks and retorted, “I can’t say

what’s in her mind” (Tr. 111). Respondent maintained that he never questioned Meghan on why

she had changed the note because he just took the note and stuck it in his bag. When he returned

home he looked at the note and saw that it was for two weeks. Respondent rationalized that

Meghan is a medical assistant therefore he thought the note was okay because Meghan and

Jessica both work in the medical field (Tr. 120). Respondent testified that he never saw Meghan

again after she gave him the note, contending that she was fired (Tr. 116-17). Respondent does

not know Meghan’s last name and was only able to describe her as a blond woman who works as

a medical assistant (Tr. 105).

Finally, despite making several trips to the medical office to straighten out this situation

respondent testified that he never asked for a new note to cover his two-week absence (Tr. 115-

16, 126, 133). To the contrary, the September 10, 2014, doctor’s note clearly states that

respondent was only given an excuse for work on one day, August 23, 2012, the day of his

appointment (Resp. Ex. B). The doctor also points out that the penmanship appears to be from

two different sources, further indicating that the note was altered.

It is inconceivable that the mysterious Meghan, a receptionist in a medical office, would

take it upon herself to change a medical professional’s instructions to allow respondent to take

over two weeks off from work, when the physician’s assistant said he could return to work the

next day. Respondent had testified that he had requested vacation for that period of time to

either go to the Dominican Republic or Puerto Rico (Tr. 129). When asked if he had booked a

trip prior to submitting his vacation request, respondent stated that he did not recall (Tr. 134).

Although respondent asserted that he was not upset that his request was denied, it appears

the opposite is true. Respondent’s testimony was self-serving and untruthful. I find that

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petitioner established that respondent submitted false medical documentation to substantiate an

illness.

Respondent was further charged with knowingly submitting a false document, violating

the agency’s time and leave regulations, failing to provide proper documentation to substantiate

his unauthorized absence, being absent from his assigned work location, conducting himself in a

manner prejudicial to good order and discipline, and engaging in conduct detrimental to the

agency. Since the remaining charges repeated the factual allegations addressed above they are

cumulative. Where those facts were proved, the charges should be sustained without additional

penalty. Fire Dep’t v. Feret, OATH Index No. 885/00 at 37 (Mar. 10, 2000).

FINDINGS AND CONCLUSIONS

1. Petitioner established by a preponderance of the evidence that respondent submitted a false medical note to substantiate an illness.

2. Petitioner established by a preponderance of the

evidence that respondent submitted a false document.

3. Petitioner established by a preponderance of the evidence that respondent failed to provide proper documentation to substantiate his unauthorized absence.

4. Petitioner established by a preponderance of the

evidence that respondent failed to comply with Departmental time and leave regulations.

5. Petitioner established by a preponderance of the

evidence that respondent was absent from his work location without prior approval or subsequent authorization.

6. Petitioner established by a preponderance of the

evidence that respondent conducted himself in a manner prejudicial to good order and discipline.

7. Petitioner established by a preponderance of the

evidence that respondent engaged in conduct detrimental to the agency.

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RECOMMENDATION

Upon making the above findings and conclusions, I reviewed an abstract of respondent’s

personnel record provided to me by petitioner. Respondent started with the agency on June 26,

2006. During his eight and half-year tenure with petitioner, he has never been formally

disciplined.

Respondent has been found guilty of submitting an altered medical note and an

unauthorized absence from August 27 through September 10, 2012. This tribunal has

consistently held that termination is the appropriate penalty for submitting a fraudulent doctor’s

note. See, Admin. for Children’s Services v. Murray, OATH Index No. 2515/08 (Sept. 26, 2008),

aff’d, N.Y.C. Civ. Serv. Comm’n Item No. CD09-38-SA (Aug. 13, 2009) (clerical associate

terminated for submitting a forged doctor’s note to excuse a three-day absence, despite

admission of guilt and plea for mitigation); Health and Hospitals Corp. (Harlem Hospital Ctr.)

v. Norwood, OATH Index No. 247/07 (Jan. 16, 2007) (termination of employment recommended

upon proof that clerical employee forged doctor’s note and made a fraudulent misrepresentation

to support her request for medical leave); Human Resources Admin. v. Rivera, OATH Index No.

219/94 (Nov. 24, 1993) (employee terminated for submitting a fraudulent medical note to

document a three-week leave of absence); Human Resources Admin. v. Evans, OATH Index

Nos. 1313/90 & 102/91 (Dec. 10, 1990), aff’d, NYC Civ. Serv. Comm’n Item No. CD92-46

(Apr. 30, 1992) (five-year employee with no prior disciplinary record terminated for submitting a

fraudulent medical note to cover a 10-day absence); Human Resources Admin. v. Brown, OATH

Index No. 236/90 (Oct. 25, 1989), aff’d, NYC Civ. Serv. Comm’n Item No. CD91-12 (Feb. 8,

1991) (nine-year employee with no prior discipline was terminated for submitting three false

medical notes to cover a 13-day absence).

Respondent has breached the trust his employer has placed in him. Moreover, he

demonstrated a lack of integrity and dishonesty that extended past submitting a fraudulent

medical note to include his blatantly false testimony. See,Dep’t of Correction v. Hall, OATH

Index No. 400/08 at 13 (Oct. 18, 2007), aff’d, NYC Civ. Serv. Comm’n Item No. CD08-33-SA

(May 30, 2008).

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Accordingly, I recommend that respondent be terminated from his position as a job

opportunity specialist.

Kara J. Miller Administrative Law Judge January 12, 2015 SUBMITTED TO: STEVEN BANKS Commissioner APPEARANCES: CHARLES AGOOS, ESQ. Attorney for Petitioner KREISBERG & MAITLAND, LLP Attorneys for Respondent BY: JEFFREY L. KREISBERG, ESQ.

THE CITY OF NEWYORKCITY CIVIL SERVICE COMMISSION

In the Matter of the Appeal of

JOSE LOPEZAppellant

-against-

HUMAN RESOURCES ADMINISTRATIONRespondent

Pursuant to Section 76 of the New YorkState Civil Service Law

CSC Index No: 2015-1440

DECIS ION

JOSE LOPEZ ("Appellant") appealed from a determination of the Human Resources

Administration ('HRA") finding Appellant guilty of incompetency and/or misconduct and

imposing a penalty of termination following disciplinary proceedings conducted pursuant to

Civil Service Law Section 75. Following a hearing at the Office of Administrative Trials and

Hearings (.'OATH"), the Administrative Law Judge ("ALJ") sustained the charges and

recommended termination of Appellant's employment. On December 15, 201 5, HRA accepted

the recommendation and terminated Appellant's employment. Appellant appealed to the Civil

Service Commission ("Commission") on December 21,2015. The Commission heard arguments

from the parties on March 3, 2016, afi, by majority, affirms the penalty of termination.

HRA charged Appetlant with being absent without authorization for two weeks and for

submitting a fraudulent medical note. At the OATH hearing, it was undisputed that on May 4,

2012, Appellant submifted his vacation request for the period August 27 to September 4,2012,

but only August 28, 29, and 30 were approved. On August 22,2012, Appellant reported to work

and claimed to be suffering from poison ivy rash on both arms that he sustained during a family

fishing trip the evening before. On August 23,2012, Appellant testified that he went to a medical

office in Whitehall, Pennsylvania, close to his home in Allentown, Pennsylvania, where he was

examined by a physician's assistant. Appellant claimed "a medical assistant" gave him a note

that stated, in handwriting, "please excuse [Appellant] from work 8-23-12 to 9'10-12." Appellant

then reported to his worksite in New York City the following day, and submitted the medical

note to his supervisor at the end of his workday. Appellant testified that he only submitted the

note at the end of the workday because he did not want to simply tum around and drive back to

Allentown but, rather, wanted work credit for the day. He did not retum to work until September

13,2012.

On August 27,2012, Appellant's supervisor observed that the medical note appeared to

have been written in two different inks and faxed the note to the doctor's office to have it

verified. The office responded that the note was only valid for one day, Artgttsl 23, 2012'

according to the physician's assistant who attended to Appellant. Further, when Appellant

retumed to the medical office on September 20,2013, the physician's assistant gave him a letter

which stated that the person whom Appellant claimed was the "medical assistant" who had

written the note excusing him for two weeks was, in fact, a receptionist and not a doctor or a

physician's assistant. Neither Appellant nor HRA was able to locate the receptionist to verifu

Appellant's story that she had the authority to give him a note for two weeks' sick leave.

Appellant claimed she had been terminated from her employment before September 2013 and

the HRA attomey who was investigating the incident was not provided with her name during the

investigation and admitted at the hearing below that she did not ask any of the medical office

personnel who had written the note.

2

In her report and recommendation, the ALJ found that both Appellant's claim to have

contracted poison ivy, and that the purported medical assistant excused him from work for two

weeks, to be incredible. The ALJ did not credit Appellant's testimony about how he contracted

poison iry, finding it "highly unlikely" that the sequence of events Appellant described,

including his reason for retuming to work on the day after his doctor's visit, was credible.

Further, the ALJ held that an additional note Appellant obtained from the medical

practice on September 10,2014, supported the conclusion that Appellant presented "incongruous

testimony." The ALJ noted that Appellant, despite multiple trips to the medical office over a

period of two years, did not request a new note to cover his two-week absence. Instead, on

September 10, 2014, the doctor gave him a note which confirmed that "after checking their

records, [the doctor] determined that [Appellant] was to be given an excuse from work solely on

the date of his visit on August 23, 2012... [and] that his office acknowledges that the

penmanship for the excused dates is from two different sources." Report and Recommendation

C'R&R') at p. 5. Although this note and the September 20,2013 note were submitted as part of

Appellant's defense in the hearing below, the ALJ found that they, in conjunction with the

verification on August 27,2012, aided HRA in establishing that Appellant "submitted false

medical information to substantiate an illness" R&R at p. 9.

In addition to finding that HRA had met its burden in establishing that Appellant was

absent without leave and knowingly submitted a false document, the ALJ stated that Appellant

had "breached the trust his employer has placed in him. Moreover, he demonstrated a lack of

integrity and dishonesty that extended past submitting a fraudulent medical note to include his

blatantly false testimony." R&R at p. I l. By contrast, the ALJ found HRA's witnesses, including

,

Appellant's then-supervisor who retumed from retirement to testiry, to be consistent with one

another's testimony and further corroborated by HRA's documentary evidence.

The Commission has considered the arguments presented on appeal, and reviewed the

record of the disciplinary proceeding. The record fully supports the ALJ's credibility findings

and the conclusion that Appellant committed serious misconduct by being absent without

authorization for two weeks and for submitting a fraudulent medical no1e.

Appellant's misconduct was deceptive and dishonest. He submitted a fraudulent medical

note in order to excuse his absence from work with pay he was not entitled to. Such dishonesty

represents a breach of trust and warrants a stem sanction. In a disciplinary case not dissimilar to

Appellant's the Cou( of Appeals noted, "ln disregard of his professional obligations and of his

superior's decision [denying a 2l-day leave request], he absented himself from his teaching

duties, thereby requiring replacements, falsely certified to being ill on those occasions, and was

paid therefor. Such irresponsibility makes it impossible to conclude that the discipline imposed

[termination] is shockingly disproportionate to the offense." See Pell v. Bd. of Education,34

N.Y.2d222,236 (1974).

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This portion of Paee 4 has bcen dcliberately left blank.

Accordingly, the Commission concludes that there is sufficient evidence in the record to

support the findings of fact and the conclusions of [aw, and that termination of Appellant's

employment is an appropriate penalty. Therefore, HRA's decision and penalty imposed are

hereby affirmed.

G. Chaffetz, Commissioner Commissioner

Charles r

Dated 5

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