Opinion
2011-10-25
Joseph RICKETTS, Petitioner,v.NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, et al., Respondents.
Franklin N. Meyer, New York, for petitioner.Michael A. Cardozo, Corporation Counsel, New York (Andrew S. Wellin of counsel), for respondents.
Franklin N. Meyer, New York, for petitioner.Michael A. Cardozo, Corporation Counsel, New York (Andrew S. Wellin of counsel), for respondents.
Determination of respondent New York City Health and Hospitals Corporation (HHC), dated July 27, 2009, terminating petitioner's employment, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Saliann Scarpulla, J.], entered July 29, 2010), dismissed, without costs.
Substantial evidence, including the parties' stipulation and the testimony of petitioner's supervisor, supports HHC's determination that petitioner engaged in misconduct consisting of excessive absences, absence without official leave (AWOL), and failure to follow HHC's call-in policy ( see Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443, 522 N.Y.S.2d 478, 517 N.E.2d 193 [1987] ).
We decline to review petitioner's argument that the determination violated the New York City Human Rights Law (Administrative Code of City of N.Y. § 8–107[1] [a] ), since he never raised it before the Administrative Law Judge (ALJ) ( see Matter of Colton v. Riccobono, 67 N.Y.2d 571, 575, 505 N.Y.S.2d 581, 496 N.E.2d 670 [1986] ). Were we to review it, we would reject it. The determination did not violate the New York City Human Rights Law, the New York State Human Rights Law (Executive Law § 296[1][a], [3][a] ), the Americans with Disabilities Act (42 USC § 12112[a] ), or HHC's own policies. The ALJ did not credit petitioner's uncorroborated testimony that his alleged misconduct was due to his disability—namely, diabetes. The ALJ found that the medical note petitioner submitted did not support his claim. The ALJ also found that, before his absences, petitioner never requested or proposed a reasonable accommodation for his disability ( see Pimentel v. Citibank, N.A., 29 A.D.3d 141, 148, 811 N.Y.S.2d 381 [2006], lv. denied 7 N.Y.3d 707, 821 N.Y.S.2d 813, 854 N.E.2d 1277 [2006] ). There is no basis for disturbing the ALJ's findings and credibility determinations ( see Berenhaus, 70 N.Y.2d at 443, 522 N.Y.S.2d 478, 517 N.E.2d 193; cf. Matter of McEniry v. Landi, 84 N.Y.2d 554, 620 N.Y.S.2d 328, 644 N.E.2d 1019 [1994] ).
Because petitioner was terminated based on “misconduct shown after a hearing upon stated charges” (Civil Service Law § 75[1] ), the determination did not violate Civil Service Law § 75. Disciplinary sanctions may be imposed pursuant to the statute even if petitioner's acts of misconduct were not shown to be willful or intentional ( see Matter of Brockman v. Skidmore, 39 N.Y.2d 1045, 1046, 387 N.Y.S.2d 426, 355 N.E.2d 386 [1976]; Matter of Moorehead v. New York City Tr. Auth., 190 A.D.2d 674, 675, 593 N.Y.S.2d 263 [1993] ).
The determination did not violate the notice requirement of the Family Medical Leave Act (FMLA) (29 USC § 2619[a] ). The ALJ did not credit petitioner's uncorroborated testimony that HHC failed to post a notice mandated by the FMLA (FMLA), and there is no basis for disturbing that credibility determination ( Berenhaus, 70 N.Y.2d at 443, 522 N.Y.S.2d 478, 517 N.E.2d 193).
The ALJ properly considered petitioner's prior disciplinary record only in the penalty phase of the proceeding ( see
Matter of Marcondes v. Ward, 172 A.D.2d 318, 319, 568 N.Y.S.2d 607 [1991] ). The parties' November 2007 stipulation, which resolved prior disciplinary proceedings against petitioner, was properly admitted to impeach petitioner's testimony. The stipulation provided that it would be admissible in subsequent disciplinary proceedings involving AWOL charges, and petitioner is charged with notice of its attachments. The stipulation also provided that where, as here, petitioner is charged with misconduct involving being AWOL and the charges are sustained, the only penalty that can be imposed is termination.
We have considered petitioner's remaining arguments and find them unavailing.