dep’t of transportation v. a.h
TRANSCRIPT
Dep’t of Transportation v. A.H. OATH Index No. 1478/20 (May 11, 2021), modified on penalty, Comm’r Dec. (Aug. 5, 2021),
appended
Supervisor highway repairer submitted fraudulent medical notes to
Department. Because of compelling mitigation, 60-day suspension
recommended.
DOT Commissioner increased penalty to termination of
respondent’s employment.
______________________________________________________
NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
DEPARTMENT OF TRANSPORTATION
Petitioner
-against-
A.H. 1
Respondent
______________________________________________________
REPORT AND RECOMMENDATION
FAYE LEWIS, Administrative Law Judge
This disciplinary proceeding was referred by the Department of Transportation (“DOT”
or “Department”) against respondent, A.H., a supervisor highway repairer. See Civ. Serv. Law
§ 75 (Lexis 2021). Petitioner alleges that respondent submitted fraudulent medical
documentation to cover a seven-day absence from work on September 26, through October 4,
2019, in violation of various sections of DOT’s Code of Conduct (ALJ Ex. 1).
Due to the COVID-19 pandemic, trial was held remotely over two days via
videoconferencing. Petitioner presented documentary evidence and called three witnesses: fraud
1Because of privacy considerations stemming from the sensitive mental health issues that are discussed,
respondent’s name has been redacted. See Dep't of Housing Preservation & Development v. T.S., OATH Index No.
63/19 at 1 n. 1 (Mar. 29, 2019); see also Human Resources Admin. v. Anonymous, OATH Index No. 1242/10 at 1-2
(May 4, 2010), modified on penalty, Admin/Comm’r Determination (June 16, 2010), aff’d, NYC Civ. Serv. Comm’n
Item No. CD 11-17-A (Apr. 29, 2011) (redacting respondent's name from decision sua sponte because of the
personal medical information discussed); but see Taxi & Limousine Comm’n v. Camara, OATH Index No. 1015/21
at 4-5 n. 1 (Jan. 12, 2021) (denying request to redact based upon information pertaining to mental health of
respondent’s wife where she was not specifically identified, because there was no legally cognizable reason for
redacting respondent’s name).
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investigator Neville Agbonwaneten, respondent’s former supervisor Carl Delgeorge, and DOT
disciplinary counsel Erica Caraway. Respondent testified in his own behalf and called two
witnesses, his colleagues Reed Lancelot and Frank Centrone.
As discussed below, I find that the charges are sustained and recommend a 60-day
suspension.
ANALYSIS
It is undisputed that from Thursday September 26, 2019 through Friday October 4, 2019,
respondent was absent from work. Respondent acknowledges that he altered medical notes so it
would appear that he had doctors’ appointments on some of those dates and that he sent the
altered documentation by text message to Supervisor Delgeorge (Pet. Exs. 1, 2). The parties’
accounts of the events leading up to that submission vary dramatically.
Respondent contends that on September 25, 2019, he asked Supervisor Delgeorge for
emergency personal leave, stating that his wife was extremely depressed and that he needed to be
home to care for his daughter. Supervisor Delgeorge denied the request and told him to bring in
a doctor’s note to cover his absence. On Friday, September 27, 2019, after respondent had been
absent for two days, he reiterated his request to Supervisor Delgeorge, explaining that he would
probably be out the following week as well. Supervisor Delgeorge insisted that respondent
produce medical notes of some type and said that he did not care where the notes came from.
Respondent asserts that in a panic, he fabricated the false notes and sent them by text to
Supervisor Delgeorge. According to respondent, he did not intend the notes as a formal
submission of documentation to the Department to justify sick leave, because DOT requires the
submission of original medical notes.
By contrast, petitioner asserts that on the mornings of September 26 and 27, 2019,
respondent reported to his supervisor’s office trailer, was told he would be working in the field
on potholes, and said that he was going home “sick” and would be out sick the following week.
According to Supervisor Delgeorge, respondent never asked for personal leave and said that he
wanted “documented” sick leave. Supervisor Delgeorge testified that he asked another
supervisor highway repairer in the Glendale Yard, Supervisor Friess, to follow up with
respondent about the doctor’s notes. Supervisor Friess’ responsibilities included collecting
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doctor’s notes from certain employees, including respondent. Supervisor Delgeorge asserted that
he did not talk to respondent about the notes after receiving them.
Supervisor Delgeorge and respondent are neighbors who have known each other for
twenty years. Respondent testified that Supervisor Delgeorge helped him apply for his job at
DOT (Tr. 158). Supervisor Delgeorge was respondent’s supervisor at the Glendale Yard in
Queens since respondent began working at DOT more than 15 years ago. As the Area Level II
Supervisor, Supervisor Delgeorge was in charge of all street maintenance work in Queens,
including milling, paving, and potholes, and supervised approximately 150 employees. He
promoted respondent from field supervisor to milling coordinator. In 2018, when the paving
coordinator left, respondent assumed both coordinator positions (Tr. 44-46, 155).
However, by September 2019, respondent had requested a transfer from the Glendale
Yard. Supervisor Delgeorge testified that he learned of respondent’s transfer request from
someone else at DOT in late September 2019, and that on September 25, 2019, he learned that
the transfer request had been granted (Tr. 67). He instructed a coordinator to have respondent
report to the office the following day (Tr. 53).
Supervisor Delgeorge related the following sequence of events, starting on September 26,
2019. That morning, respondent appeared in his office trailer and Supervisor Delgeorge told him
that his transfer had been approved and that he would be leaving the yard in seven days.
Supervisor Delgeorge explained that he was removing respondent from his coordinator duties in
the field so that his replacements could get familiar with the crew (Tr. 54, 69). When respondent
asked what work he would be doing, Supervisor Delgeorge told him that he would be working
on potholes. Respondent said that he did not want to do potholes and instead was going to “go
home sick.” Supervisor Delgeorge asked respondent if he was bringing a note and if the leave
would be documented or undocumented. Respondent replied documented, and went home (Tr.
54, 71). He did not say what his sickness was, and he never asked for annual leave, personal
business leave, or unscheduled annual leave (Tr. 71).
The next day, September 27, 2019, respondent again reported to work, came into the
office, and asked for his assignment (Tr. 55, 72). Supervisor Delgeorge replied that nothing had
changed, and he would still be doing potholes. Respondent said that he was going to go home
sick and that he would be out sick all of the following week. As before, Supervisor Delgeorge
asked respondent if the leave would be documented or undocumented, and respondent replied
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documented (Tr. 55-56, 73-74). Supervisor Delgeorge testified that because respondent was
going to be out sick for a total of seven days, he would have been required to produce a doctor’s
note on the fourth day in order to avoid being marked as absent without leave (Tr. 56).
The following week, Supervisor Friess brought Supervisor Delgeorge a copy of
respondent’s note for September 26 and 27, which respondent had sent in a text message to
Supervisor Friess, who printed it out (Tr. 52, 56-57, 59, 74). The note, on letterhead from
Bedford Medical P.C., is dated “9/26/19,” and states that respondent was seen for a doctor’s
appointment on “9/26/19 & 9/27/19.” (Pet. Ex. 1). It has visible Wite-Out behind all the dates,
including the dates that respondent was purportedly seen by the doctor (Pet. Ex. 1). Supervisor
Delgeorge testified that when he saw the Wite-Out, he laughed and asked Supervisor Friess if
respondent was “kidding” him, given all the Wite-Out on the note (Tr. 58). He told Supervisor
Friess to ask respondent for the original note (Tr. 58). He did not explain what conversations, if
any, he had with Supervisor Friess about his communications with respondent and he never
received the original note for these dates (Tr. 58). Supervisor Delgeorge explained that
employees must submit original medical notes and that an employee who submits a copy of a
note must submit the original before the timekeeping unit will approve the leave (Tr. 52-53, 76).
Supervisor Delgeorge recalled that respondent submitted a second note to Supervisor
Friess, although he could not recall when and did not recall seeing the note (Tr. 60-61). He
believes that he told Supervisor Friess to forward the note to the personnel unit (Tr. 60-61). The
second note, on letterhead of the Rehabilitation Medicine Center of New York, is dated
“9/30/19.” It states that respondent was seen for a check-up on “9/30/19” and could return to
work on “10/7/19.” The note has visible Wite-Out behind the numbers “9,” “30,” and “7” and
elsewhere on the page. The copy of the note introduced by petitioner is in the body of an e-mail
from what appears to be Supervisor Friess’ personal Gmail account to his DOT email account
(Pet. Ex. 2). Supervisor Delgeorge testified that he never spoke to respondent about either note
(Tr. 76).
When interviewed by the Department Advocate’s Office on January 9, 2020, Supervisor
Delgeorge gave a statement that was consistent with his trial testimony that respondent left work
on September 26 and 27 because he did not want to work on potholes, that each time he said he
was going home sick and that when asked if he would bring a doctor’s note to cover the
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absences, said that he would do so (Pet. Exs. 6, 6a at 9 -14). Supervisor Delgeorge also said that
respondent could have simply gone home and used unscheduled annual leave (Id. at 12).
Petitioner did not call Supervisor Friess as a witness as he was unavailable on both trial
dates due to a medical emergency on the first day of trial and the need to care for a sick family
member on the continued date (Tr. 94, 105). Instead, petitioner introduced the audio and
transcript of the interview of Supervisor Friess conducted by the Department’s Advocate’s office
on June 18, 2020 (Pet. Exs. 7, 7a). Both exhibits were admitted over objection (Tr. 108, 114-15,
122). Respondent’s counsel requested a continuance to call Supervisor Friess but withdrew his
request after respondent testified (Tr. 142-44, 185-87).
Supervisor Friess’ interview statement partly corroborated Supervisor Delgeorge’s
claims. When shown the notes, Supervisor Friess recalled that respondent sent him both
documents, but did not recall how or when he received them. He said that he provided both
notes to Supervisor Delgeorge (Pet. Exs. 7, 7a at 6, 10-15). When he gave Supervisor Delgeorge
the first note, Supervisor Delgeorge said that it was “no good” and directed him to tell
respondent to “get another note” (Id. at 7, 7a at 11). When he spoke to respondent, respondent
laughed and said, “that’s the note” (Id.). When he got the second note, he forwarded it to his
DOT email account (Id. at 12-13). He did not remember whether Supervisor Delgeorge had a
reaction to the note (Id. at 14). He highlighted that he was not respondent’s supervisor, just
handled his CityTime, and he usually did not “look at” any of the doctor’s notes that employees
submitted but only turned them over to Supervisor Delgeorge (Id. at 6, 14-15).
In addition, when Supervisor Friess was asked during his interview if he recalled talking
to respondent around this time about any personal issues which he was dealing with, he said that
he knew respondent “was going through a lot with his wife” (Id. at 8).
Respondent admitted submitting fraudulent doctor’s notes but offered a markedly
different explanation of why he did so. According to respondent, on Wednesday September 25,
2019, he pulled Supervisor Delgeorge aside and asked for time off, explaining that he “barely
made it into work that day” due to issues at home and needed “some time off” (Tr. 164). He
asked for undocumented annual leave, which is normally granted if there is “an issue,” and told
Supervisor Delgeorge that he had 300 hours of annual leave (Tr. 164, 178). Supervisor
Delgeorge said “no” and told him to bring a doctor’s note (Tr. 164). Respondent explained to
Supervisor Delgeorge that he was not going to a doctor, that his wife was home sick, and that he
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needed to be home for his daughter (Tr. 165). In response, Supervisor Delgeorge told him to
bring a note from his wife’s doctor (Tr. 165). Respondent replied that his wife suffers from
anxiety and depression, was at home in bed, and was “extremely depressed” (Tr. 165). He was
not going to take her “out of bed” to go see a doctor and he needed some time off to be home to
care for his family (Tr. 165). Again, Supervisor Delgeorge told respondent to bring a doctor’s
note, before driving off in his car (Tr. 165).
Respondent testified that his wife has “good weeks” and “bad weeks,” and that this was a
a “horrific week,” as his wife was immobile and mentioning suicide. Becoming emotional,
respondent explained that this “shatters his core” and that he needed to be home for his seven-
year-old daughter, who he needed to pick up from school, cook, and clean for (Tr. 167-68).
Respondent testified that he did not work on either Thursday September 26 or Friday
September 27, 2019 (Tr. 166). On Friday September 27, he received a call from Supervisor
Friess, who said that Supervisor Delgeorge was “looking for a doctor’s note” (Tr. 166). In the
call, he told Supervisor Friess that he did not have a doctor’s note because he had not gone to a
doctor and that he had told Supervisor Delgeorge that he was going to use unscheduled annual
leave. He also told Supervisor Friess that his wife was “dealing with an issue,” but did not say
more because he wanted to “protect” her privacy. Respondent ended the call by stating that he
would call Supervisor Delgeorge (Tr. 166).
According to respondent, after getting off the phone with Supervisor Friess, he
immediately called Supervisor Delgeorge, and pleaded with him to have “some sympathy” for
what he was “dealing with” at home. He reiterated that he was not going to be submitting a
doctor’s note because he was not going to a doctor, and that he needed to use unscheduled annual
leave to be home. His wife was not getting out of bed and he needed to pick up his daughter
from school, and would probably need to be out all of the following week as well (Tr. 166).
Respondent testified that he felt that Supervisor Delgeorge did not understand the severity of his
wife’s mental illness even though he was trying to explain it to him. According to respondent,
Supervisor Delgeorge hung up on him after stating, “I don’t give a fuck where it comes from or
how you give it to me, I want notes on my desk today” (Tr. 167).
Respondent described being “angry,” “sad,” “frantic,” “backed into a corner.” He
“didn’t know what to do” after getting off the phone with Supervisor Delgeorge (Tr. 168-69).
He “just . . . had a breakdown” (Tr. 169). It was “all just coming to a head” and he “needed to
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get away” (Tr. 184). He went into his garage at home and located a box of papers that needed to
be shredded, found documents with doctor’s headings, crossed and whited things out, and
photographed the altered documents. He sent the notes (Pet. Exs. 1, 2) in one text message to
Supervisor Delgeorge and Supervisor Friess (Tr. 181). In the text message, respondent wrote
something like, “hang this on your wall” (Tr. 168).
Respondent testified that he received a call from Supervisor Delgeorge five minutes after
sending the text message. Supervisor Delgeorge stated that the notes “look like shit” and told
respondent that he wanted different notes and he wanted originals (Tr. 169). Respondent replied
that he was “not doing this again” and that he “want[ed] to be left alone” (Tr. 169). In response,
Supervisor Delgeorge said that respondent would be marked absent, leave without pay (Tr. 169).
Respondent replied that money was “the furthest thing” from his mind, asked Supervisor
Delgeorge to stop calling him, and said that if Supervisor Delgeorge called him again, he would
“call downtown and say you’re harassing me” (Tr. 169-70). This was the last time respondent
spoke with Supervisor Delgeorge (Tr. 170). Ultimately, annual leave was deducted from
respondent’s leave bank (Tr. 183). CityTime records for respondent for September 23, 2019,
through October 12, 2019, show that he took sick leave for September 26, 27, and 30, and
Ocrober 1, 2, 3, and 4, which was “approved final” but “charged to annual” (Pet. Ex. 3).
Respondent admitted that sending the text message with the altered notes was a “stupid,
desperate thing” to do (Tr. 169). However, he said that he did not intend for the notes to be used
to cover his leave request and thought that sending the note would “just piss [Supervisor
Delgeorge] off” (Tr. 169), because doctor’s notes have to be submitted in person and not by text
message (Tr. 169, 181). Respondent stressed that he would not go to the yard and hand in an
altered note (Tr. 181). In his 16 years at DOT, he has never been disciplined and has never even
been tardy; he takes his job very seriously (Tr. 171). Asked why he would bother changing
original notes to cover his absences if he did not intend the notes to be used, respondent stressed
that he was “not thinking clearly” and “just at [a] breaking point (Tr. 182).
Respondent also highlighted that Supervisor Delgeorge had told him that he did not care
“where you get it [the note] or where it comes from” (Tr. 182). When Supervisor Delgeorge
“demanded” a note, he “foolishly” sent it (Tr. 182). Respondent noted that his relationship with
Supervisor Delgeorge had degenerated since the middle of 2018, once respondent took on the
roles of both Milling Coordinator and Paving Coordinator. He recalled Supervisor Delgeorge
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yelling at him and constantly “berating” him about the paving and milling work, including
productivity metrics relating to tonnage and square footage (Tr. 159). In addition, respondent
testified that Supervisor Delgeorge was “very unhappy” about his transfer request, which
respondent had submitted to him following a meeting with Deputy Commissioner Michael
DiVerniero in October 2018 (Tr. 162). This was particularly hard because at the same time
respondent had to cope with his wife’s mental illness (Tr. 160).
Respondent acknowledged that he did not ask his wife’s treating psychiatrist and a
psychologist for a note explaining her illness (Tr. 173). He testified that he did not think that
they would give him a note for the particular days in issue (Tr. 174). In retrospect, he may have
been wrong about that (Tr. 174, 178), but he was not focused on calling his wife’s doctors, he
“was “thinking about my wife in bed, talking about suicide and my daughter in school” (Tr.
178). It was and remains “extremely hard” (Tr. 178).
Nor did respondent request a leave under the Family Medical Leave Act (“FMLA”) to
care for his wife (Tr. 174). Respondent testified that he does not know what that is and said that
no one at DOT ever told him he could apply for FMLA (Tr. 174, 184). Respondent highlighted
that he had told very few people at work about his wife’s mental illness; he wanted to “protect”
her and did not want people at work to know what he was “dealing with at home” (Tr. 184).
However, he told Supervisor Delgeorge about his wife’s depression on September 25, he thinks
Supervisor Friess knew about his wife’s illness, and he also “opened up” to Deputy
Commissioner Michael DiVerniero in their October 2018 meeting, telling him that a night shift
would help him because his wife sleeps during the night on medication (Tr. 160-61). He stressed
that he is talking about his wife’s mental health now because he recognizes that his job is “at
stake” (Tr. 174).
Respondent was interviewed by the Department Advocate’s Office on November 25,
2019, with a union representative present, but not an attorney. After being presented with the
doctor’s notes in question, and told that they were considered fraudulent, respondent provided an
explanation which was largely consistent with his trial testimony. Respondent said that although
he and Supervisor Delgeorge had been extremely close “off the job” and Supervisor Delgeorge
had “fought for” him to become a supervisor and worked closely with him as a milling and
paving coordinator, in 2018 that relationship changed. There were a lot of arguments, with
Supervisor Delgeorge yelling at him every day and becoming “angry and bullying” (Pet. Exs. 5a,
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5 at 5). This affected his family life and his “mental stability,” and eventually, at the
recommendation of his wife’s psychiatrist, he met with Deputy Commissioner DiVerniero in
2018 and subsequently submitted a transfer request to Supervisor Delgeorge (Id. at 6).
Supervisor Delgeorge was “not happy” that respondent had gone to Deputy Commissioner
DiVerniero and within two weeks re-assigned him from his coordinator position to field duties
(Id. at 7). Respondent explained that he learned that his transfer date was October 17, 2019 (Id.
at 13).
Upon learning of the transfer date, respondent said, he telephoned Supervisor Delgeorge,
told him of the date, and said that he would be taking annual leave “for the next few days” until
he would be working nights. Supervisor Delgeorge instead told him to bring in a doctor’s note.
When respondent explained that he did not have any sick leave but had close to 300 hours of
annual leave, Supervisor Delgeorge again told him bring in a doctor’s note and hung up the
telephone (Id. at 13). Respondent explained that he did not report to work on the next two days,
Thursday and Friday. On that Friday or the following Monday, he testified, he got a call “from
the office” saying that “they’re looking for notes” (Id. at 13). He telephoned Supervisor
Delgeorge and said that he did not go to the doctor, did not have notes, and wanted to use his
annual leave. Supervisor Delgeorge again told him to bring a note. Respondent replied that he
did not go to the doctor, and that even if he called his doctor, he would not be able to get a same-
day appointment because his doctor was an endocrinologist. Before hanging up the phone,
Supervisor Delgeorge replied, “get me a note,” and that he did not care where respondent got the
note from (Id. at 13-14).
Admitting that he was not proud of what he did, respondent conceded that within ten to
fifteen minutes of the call, he found the notes, took photos of them, and texted the photos to
Supervisor Delgeorge, with the text saying, “Here’s your notes, enjoy your life, leave me alone.”
Respondent apologized, saying, “This is not me,” but stressed that he felt that he had no choice
and just wanted Supervisor Delgeorge to leave him alone (Id. at 14, 19). Either that same day or
the next day, Supervisor Delgeorge called him and said that the notes were “bullshit” and that
respondent had to give him original notes or would be marked as AWOL. Respondent replied
that Supervisor Delgeorge could mark him as AWOL or undocumented, that all he wanted was
to be left alone, and that if Supervisor Delgeorge called him again, respondent would “file
harassment charges” against him (Id. at 15). Respondent stressed that although he knew that he
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was wrong in submitting doctor’s notes, he did not submit original notes, only text messages, and
thought that he would be marked AWOL as a result (Id. at 15).
Respondent’s two witnesses, Supervisor Lancelot and Supervisor Centrone, both
supervisors at the Glendale Yard, corroborated respondent’s testimony that Supervisor
Delgeorge was often antagonistic towards him. Supervisor Lancelot, a 15-year DOT employee,
was respondent’s partner on the paving crew during his last year at Glendale (Tr. 147-48).
According to Supervisor Lancelot, any time there was an issue with paving, Supervisor
Delgeorge “kind of had it out” with respondent. Once respondent transferred, Supervisor
Delgeorge stopped coming to the field and did not “bother” the crew (Tr. 149). Similarly,
Supervisor Centrone, a 30-year DOT employee who had worked at the Glendale Yard since
2009, testified that although he was initially unaware of any problems between respondent and
Supervisor Delgeorge, in 2018 or 2019, “something changed,” Supervisor Delgeorge was
“constantly on [respondent],” and “no matter” what respondent did, it “was wrong” (Tr. 129).
Supervisor Centrone also testified about Supervisor Delgeorge’s approach to leave
requests, with which he was familiar because he had been delegated to handle certain employees’
time and leave requests. According to Supervisor Centrone, Supervisor Delgeorge had a policy
of only allowing two employees per crew to be out at a time, so if a third worker on the crew
wanted to use unscheduled annual leave, he would have to deny the leave request (Tr. 129, 130,
136, 139).
There is no dispute that the copies of doctor’s notes which respondent submitted to DOT
to cover the dates from September 26, 2019, through October 4, 2019, are fraudulent.
Respondent admitted doctoring old medical notes which covered these dates. In addition,
Investigator Agbonwaneten testified that on October 22, 2019, when he visited the medical
facilities referred to in the notes, the officer managers told him that the notes were fraudulent and
annotated the notes to so indicate (Tr. 25, 27-28, 32-33; Pet. Exs. 1, 2, 9).
However, virtually everything else about this incident is disputed, including when
respondent first asked for time off, whether he reported to the office on September 26 and 27,
whether he asked for sick leave or unscheduled annual leave, whether he told his supervisor
about his wife’s illness, and whether he spoke with his supervisor about the doctors’ notes.
Often, resolution of disputed factual issues hinges on credibility, with factors to be
considered including witness demeanor, the consistency of a witness’ testimony, supporting or
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corroborating evidence, witness motivation, bias or prejudice, and the degree to which a witness’
testimony comports with common sense and human experience. See 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).
Here, much of both Supervisor Delgeorge’s and respondent’s testimony was unsupported
by corroborating documentary evidence. For example, respondent did not introduce any
documentation relating to his wife’s mental health, such as a note or letter from her treating
doctors. In addition, while respondent asserted that he sent the doctors’ notes in a text message
to both Supervisor Friess and Supervisor Delgeorge, neither party produced the purported text
message, nor any other document or documents showing how respondent transmitted the notes.
As a result, there is no documentary evidence which shows when the notes were transmitted:
whether they were transmitted at the same time, as respondent testified, or whether the
September 26 and 27 notes were transmitted earlier, as Supervisor Delgeorge testified.
In addition, both Supervisor Delgeorge and Supervisor Friess had major gaps in their
recollection. Supervisor Delgeorge did not recall seeing the second note and did not recall how
it was transmitted to him. This is odd in light of his reaction to the first note, which was clearly
altered. Supervisor Friess did not recall the circumstances of how or when he received either
note. He also did not remember whether Supervisor Delgeorge had any reaction to the second
note. As Supervisor Friess was not called as a witness, these gaps in his statement could not be
explored.
There were other issues with respondent’s and Supervisor Delgeorge’s credibility.
Respondent did not say in his investigatory interview that his absence from work was due to his
wife’s illness and the need to care for his daughter. This differed from his trial testimony.
Similarly, Supervisor Delgeorge insisted that he had “no feeling at all” about
respondent’s transfer (Tr. 68), and that his relationship with respondent was “[j]ust normal and
routine” (Pet. Exs. 6, 6a at 18). This is curious in light of the evidence that respondent had gone
above his head to a deputy commissioner to complain about Supervisor Delgeorge’s treatment of
him and then applied for a transfer. Moreover, Supervisor Centrone and Mr. Lanceolot
corroborated respondent’s testimony that Supervisor Delgeorge repeatedly yelled at him,
Supervisor Friess noted in his investigatory interview that Supervisor Delgeorge and respondent
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had “butted heads, here and there” (Pet. Ex. 7 at 21),2 and even Supervisor Delgeorge, while
insisting that his relationship with respondent was “normal and routine,” acknowledged that
respondent was falling short of productivity metrics and that his “numbers didn’t change” even
though respondent said he would try to do better (Pet. Exs. 6, 6a at 18-20).
It is not necessary to resolve every factual issue, however. Despite the lack of
documentation, I found respondent to be extremely credible in describing his wife’s mental
illness. I credited his heartfelt testimony that she was severely depressed on the week in
question, remaining in bed during the day and talking about suicide, and that he needed to be
home to care for his daughter. Supervisor Friess’ recollection that respondent was “going
through a lot with his wife” partially corroborates respondent’s testimony that his wife was
suffering from severe depression and that he told Supervisor Friess that she was dealing with
some issues. I also found it extremely plausible that before September 2019, respondent had told
very few employees at DOT, including his supervisor, about his wife’s mental illness out of a
desire to protect her privacy and his own privacy.
In addition, although respondent did not tell the Department Advocate that he needed
leave because of his wife’s depression, his testimony was notable for how many times he
stressed that he wanted to protect his wife’s privacy. Respondent also noted that he felt that
many people, including his supervisor, did not understand the “severity” of mental illness (Tr.
167). He emphasized that he was only talking about his wife’s mental illness now because he
understood that his job was at stake. While the far better and more rational course of action
would have been to disclose his wife’s illness in his investigative interview, I found his trial
testimony on this point to be credible and concluded that he was not ready to talk about the
extremely personal circumstances of his wife’s mental health crisis to the lawyers and the
investigator who were present during the interview.
Further, I found it implausible that respondent would insist upon using documented sick
leave, as Supervisor Delgeorge insisted. Respondent testified that he had 300 hours of annual
leave available but said that he did not have any sick leave. Petitioner agreed that respondent did
not have sick leave (Tr. 198). Thus, respondent had nothing to gain by seeking to use sick leave,
because, as both Supervisor Delgeorge and Supervisor Centrone testified, the practice at DOT if
2 Although the transcript of the interview does not clearly indicate that Supervisor Friess used the term, “bumping
heads” (Tr. 7a at 21), the audio shows that he did so (Pet. Ex. 7).
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an employee is absent due to illness and submits a doctor’s note is to charge the time to accrued
leave balances, including annual leave balances (Tr. 51, 137). In addition, respondent gave
unrebutted testimony that he did not have a disciplinary record and had never even been tardy
(Tr. 171), and his supervisor acknowledged that he had a “very good” time and leave record. It
defies logic that a long-term employee with no disciplinary record would seek to use documented
sick leave for seven days knowing he could be charged with AWOL if he did not produce a
doctor’s note. In addition, it would not make sense for respondent to ask for documented sick
leave because of his wife’s illness. Sick leave for family illness is limited and would not cover
seven days of sick leave (Pet. Ex. 4). In addition, providing a doctor’s note about his wife’s
depression would be inconsistent with respondent’s oft-stated goal to protect her privacy.
Thus, I concluded that respondent asked for and was denied unscheduled annual leave.
While it was unclear why his supervisor would insist upon documented sick leave, respondent
did not provide documentation when he requested leave, and he was absent for seven days. The
approval of unscheduled and undocumented annual leave is discretionary (Tr. 136, 172).
Further, Supervisor Centrone testified that Supervisor Delgeorge was reluctant to grant
unscheduled annual leave to members of his crew and by this time respondent had been
transferred from administrative office duties to field work. In addition, respondent was due to be
transferred and his relationship with his supervisor had deteriorated.
Under these circumstances – worried about his wife, needing to care for his daughter,
with his request for annual leave denied and his supervisor insisting that he produce a sick note –
I find that respondent panicked and foolishly altered old doctor’s notes and submitted them.
Respondent described not knowing what to do and having a “breakdown.” He stressed that he
had tried throughout his time at DOT to protect his wife’s privacy, but now it was “all just
coming to a head.” He acknowledged that while he could have asked his wife’s treating doctors
for some documentation, he was not thinking clearly because he was focused on his wife’s
depression and statements about suicide and his need to care for his seven-year-old daughter. I
credited respondent’s testimony that he was not thinking rationally and responded emotionally.
He sent notes with visible Wite-Out to his supervisor and/or Supervisor Friess,3 and he testified
that he wrote in the text, “hang this on your wall.” This was not a logical thing to do, as anyone
3 As Supervisor Delgeorge had delegated Supervisor Friess to collect medical notes from certain employees,
including respondent, it would be plausible if respondent sent the note only to Supervisor Friess, knowing that the
latter would pass it on to his supervisor.
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receiving or reviewing the note would have suspected that it was fraudulent. In addition,
respondent acknowledged that employees are required to submit original doctors’ notes when
requesting documented sick leave and that text messages are insufficient (Tr. 169).
There are four charges against respondent. Charge one alleges that respondent
“knowingly created for the purpose of misrepresentation, falsified, altered and/or changed any
document, record or form of any City agency.” Charge two alleges that he “malingered or
feigned illness.” Charges three and four allege that respondent engaged in conduct “prejudicial
to . . . good order and discipline” and “tending to bring the City of New York . . . into disrepute.”
(ALJ Ex. 1). The charges are duplicative because they are all based on the same four
specifications. Specifications one and three allege that respondent submitted fraudulent medical
documentation. Specification one refers to the doctor’s note dated September 26 and 27, 2019,
from Bedford Medical P.C., which it alleges respondent submitted on September 30, 2019.
Specification three refers to the doctor’s note dated September 30, 2019, from Rehabilitation
Medicine Center, which it alleges that respondent submitted on October 1, 2019. Specifications
two and four should be dismissed as they do not allege misconduct, but rather allege that the
respondent was not seen by Bedford Medical P.C. on the dates referenced in the first note and
that he was not a patient of Rehabilitation Medical Center.
While acknowledging that respondent submitted fraudulent medical notes, his counsel
asserts that petitioner did not establish the first charge because respondent submitted notes from
private medical offices and thus did not alter or change any document of the City. Counsel also
contends that respondent did not believe that his notes would be accepted because they were text
messages and that when his supervisor asked him on the telephone to send original notes,
warning that if would be marked AWOL otherwise, respondent did not do so. Similarly,
respondent’s counsel argues that petitioner did not prove that respondent was feigning illness, as
alleged in the second charge, because respondent repeatedly told his supervisor that he was not
sick. Counsel argues that the third and fourth charges should be dismissed as duplicative.
There is no dispute that the medical notes that respondent submitted were from private
offices. In addition, the notes were not original, had visible Wite-Out on them, and respondent
had no reasonable basis to believe that timekeeping would approve his sick leave based upon
their submission. That does not change the fact that respondent submitted the notes to his
supervisor and that once he did so they became records of DOT. Thus, charge one,
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specifications one and three, is sustained, except that petitioner did not prove that respondent
submitted the notes on September 30, 2019 and October 1, 2019, as alleged.
Charge two is also sustained. I credited respondent’s testimony that he repeatedly told
his supervisor that he was not sick. However, respondent submitted doctor’s notes showing that
he was seen at doctor’s offices on particular dates and providing a return-to-work date on
October 7, 2019. By submitting these notes, he “feigned illness,” even though he had previously
told his supervisor that he was not sick.
Charges three and four are sustained to the extent that charge one, specifications one and
three are sustained. However, as all charges are duplicative, they will not be considered
separately for purposes of penalty. Savello v. Frank, 48 A.D.2d 699 (2d Dep’t), mot. for leave to
app. den., 37 N.Y.2d 707 (1975); see also Dep’t of Finance v. Rodriguez, OATH Index No.
430/10 at 9 (Mar. 5, 2010), aff’d, 102 A.D.3d 594 (lst Dep’t 2013) (sustaining duplicative
charges, but treating them as one charge in considering penalty).
FINDINGS AND CONCLUSIONS
1. Respondent submitted fraudulent medical notes dated
September 26, 2019, and September 30, 2019. Charge one,
specifications one and three are sustained except that petitioner
did not prove that respondent submitted the notes on the dates
alleged in the charges.
2. Charge one, specifications two and four, should be dismissed
as they do not allege misconduct.
3. By submitting the fraudulent medical notes respondent feigned
illness, as alleged in charge two.
4. By submitting the fraudulent medical notes, respondent
engaged in conduct prejudicial to good order and discipline and
tending to bring the City into disrepute, as alleged in charges
three and four.
RECOMMENDATION
Upon making these findings, I obtained and reviewed a summary of respondent’s work
history for purposes of recommending an appropriate penalty. The information provided
confirmed that respondent has been employed by DOT since March 2005 and has never before
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been disciplined. Respondent began working as an Assistant City Highway Repairer. In 2013,
he was promoted to Highway Repairer and in 2015, he was promoted to Supervisor Highway
Repairer. In addition, respondent’s annual evaluations for 2017 and 2018 gave him an overall
rating of “very good.” He had no AWOL days and no latenesses.
Petitioner seeks respondent’s termination from employment for his submission of the two
fraudulent medical notes. Without minimizing the seriousness of respondent’s conduct, the
extraordinary mitigating circumstances which respondent faced, coupled with his unblemished
16-year record, merit a penalty of less than termination.
As petitioner notes, with rare exceptions this tribunal has held that termination is the
appropriate penalty for filing fraudulent medical notes. See e.g., Human Resources Admin. v.
Morris, OATH Index No. 1326/17 (Apr. 4, 2017) (termination of employment recommended for
eligibility specialist who submitted an altered medical note to cover five days of absence without
leave); Dep’t of Correction v. Murray, OATH Index No. 737/17 (Mar. 1, 2017) (termination of
employment recommended for correction officer, with 15 years on the job and a minor
disciplinary history, who submitted a false medical note); Human Resources Admin. v. Lopez,
OATH Index No. 496/15 at 11 (Jan. 12, 2015), aff’d, NYC Civ. Serv. Comm’n Case No. 2015-
1440 (May 18, 2016) (termination of employment for job opportunity specialist with eight years
on the job and no prior disciplinary record, who was AWOL and submitted a false note in
support of those absences); Human Resources Admin. v. Johnson, OATH Index No. 1080/10
(Apr. 6, 2010), aff’d NYC Civ. Serv. Comm’n Item No. CD 11-09-SA (Mar. 4, 2011)
(termination of employment recommended for clerical associate who submitted four fraudulent
medical notes; employee denied writing the medical notes despite credible evidence to the
contrary).
However, in exceptional circumstances, we have found termination to be too harsh and
instead recommended a period of lengthy suspension, even where employees submitted multiple
fraudulent documents. In Department of Sanitation v. Nicchita, OATH Index No. OATH Index
No. 799/10 (Jan. 7, 2010), adopted, Comm’r Dec. (Jan. 20, 2010), this tribunal recommended a
70-day suspension where a sanitation worker with five years on the job and a prior reprimand
submitted seven fraudulent auto repair invoices to cover requests for emergency leave. The
employee struggled with the need to care for his alcoholic father, who sometimes drank himself
into a state of unconsciousness and ultimately died from alcoholism. He struggled with
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depression and did not call the employee assistance unit because he was “too embarrassed” to do
so. Nicchita, 799/10 at 6.
Several other cases reached similar results. In Transit Authority v. Paniagua-Castillo,
OATH Index No. 700/02 (Mar. 8, 2002), adopted, Comm’r Dec. (July 19, 2002), Judge
Maldonado recommended a 60-day suspension where an employee submitted three applications
for sick leave which fraudulently stated that she, rather than her son, had received dental
treatment. The employee admitted that she submitted the applications to support sick leave
requests on three occasions when she felt emotionally drained and unable to work, as a result of a
number of traumatic events over three years, including her son’s illness from a painful bone
disease, her bankruptcy, and her divorce. In noting the employee’s nine years on the job without
any prior disciplinary record, Judge Maldonado found that her actions, “however serious, were
an aberration resulting from the cumulative effects of an extended period of serious adversity
brought on by the illness of her son.” Paniagua- Castillo, 700/02 at 4.
Similarly, in Transit Authority v. Patel, OATH Index No. 1946/01 (Jan. 10, 2002), aff’d,
Comm’r Dec. (Feb. 3, 2002), Judge Merris recommended a 60-day suspension where an
employee with five years on the job and no record of adjudicated discipline submitted an
application for one day of sick leave which falsely indicated that he had seen a doctor during a
three-day absence. The employee had been sick for three days but did not go to the doctor
because he thought he would have been able to work the third day and thus would not have
needed medical documentation. He explained that he had submitted the note, rather than going
to a doctor, because he was in such bad mental and physical condition that he “could not think
right.” Patel, 1946/01 at 5. Crediting his testimony, Judge Merris noted the “severe” stress that
the employee had been in for the past two years, including his own cancer treatment, his struggle
with alcoholism, and his separation from his wife. Id. at 9.
Department of Education v. Anonymous, OATH Index No. 2738/08 (Jan. 13, 2009),
adopted, Chancellor’s Dec. (Mar. 23, 2009), modified on penalty, NYC Civ. Serv. Comm’n Item
No. CD 09-51-M (Sept. 30, 2009), is also instructive. Judge Spooner found the agency’s
recommended penalty of termination too harsh for an employee who had made false statements
in seeking sick leave and in several related investigative interviews. He noted the extremely
mitigating circumstances – respondent was likely entitled to the leave, through FLMA, to care
for her newborn daughter who was born through surrogacy, but wanted to conceal the
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circumstances of the birth for fear that her husband’s family overseas would learn of it and
would not recognize the child as legitimate. Noting the trying circumstances faced by
respondent, her probable entitlement to leave, her 18-year tenure with no previous disciplinary
record, and the fact that the employee had been demoted as a result of the charges, the Civil
Service Commission modified the penalty to a 20-day suspension.
In sum, the submission of fraudulent doctors’ notes is egregious misconduct which
normally merits termination of employment. However, in limited instances, termination is too
harsh. This is such a case. Respondent is a long-term employee with no previous disciplinary
record. His job history shows a steady history of promotions to supervisory titles. His
supervisor acknowledged that he is a good employee with an excellent time and leave history.
Like the employees in the cases discussed above, respondent made a panicked decision under
extremely stressful circumstances to submit fraudulent doctors’ notes to his employer. The fact
that respondent sent such notes with visible Wite-Out, knowing that timekeeping requires
original notes, underscores that he acted impulsively and was not thinking rationally at the time.
Respondent is most akin to the employee in Nicchita in that he submitted altered notes in
the face of an imminent crisis, driven by his wife’s depression and talk of suicide, his need to
care for his young daughter, and his desire to keep his family’s privacy intact. In addition, it
appears that respondent would have been entitled to the leave, either as undocumented
emergency leave or FMLA leave. Although respondent made a serious error in judgment by
sending the altered doctors’ notes, I believe that his conduct was a one-time aberration in an
otherwise flawless career for which termination is too harsh of a penalty. Under the
extraordinary mitigating circumstances presented, a 60-day suspension is more appropriate, and I
so recommend.
Faye Lewis
Administrative Law Judge
May 11, 2021 SUBMITTED TO: HENRY GUTMAN Commissioner
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APPEARANCES: CHARISSE BOURNE, ESQ. JEREMY WEINSTEIN, ESQ. Attorneys for Petitioner LICHTEN & BRIGHT, P.C. Attorneys for Respondent BY: STUART LICHTEN, ESQ.
