Application Of Olga Kobiashvili v. Jacobi Med. Ctr.

• Decision Date: 22 December 2009
• Docket Number: Motion Seq. No.:1,Motion Cal. No.:27,Index No.:13000/09
• Citation: 2009 NY Slip Op 33237
• Parties: Application of OLGA KOBIASHVILI,Petitioner, v. JACOBI MEDICAL CENTER,NEW YORK CITY HEALTH AND HOSPITALS CORPORATION,Respondents.
• Court: New York Supreme Court

2009 NY Slip Op 33237

Application of OLGA KOBIASHVILI, Petitioner,

v.JACOBI MEDICAL CENTER, NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Respondents.

Index No.:13000/09

Motion Cal. No.:27

Motion Seq. No.:1

New York Supreme Court

Queens County

Motion Date:9/9/09

December 22, 2009

The following papers numbered 1 to 12 read on this petition by petitioner Olga Kobiashvili for a judgment, pursuant to CPLR Article 78: a) annulling respondents' determination to terminate the employment of Ms. Kobiashvili as being in violation of lawful procedure, being arbitrary and capricious, and not being supported by substantial evidence and compelling respondents to reinstate Ms. Kobiashvili to her position as a cytotechnologist at the Jacobi Medical Center with back pay plus interest; or, in the alternative b) remitting the matter to Respondents for further review; and on this cross motion by respondents for an order dismissing the petition, pursuant to Rule 3211(a)(7) and Section 7804(f) of the Civil Practice Law and Rules ("CPLR"), on the ground that the petition fails to state a cause of action, and directing the Clerk of the Court to enter judgment for respondents.

PAPERS NUMBERED

Notice of Petition-Affidavits-Exhibits............................................ 1-3

Notice of Cross Motion-Memorandum of Law in

Support-Exhibits................................................................. 4-8

Memorandum of Law In Opposition to Cross Motion.................... 9-10

Reply Memorandum of Law in Further Support............................. 11-12

Present: HONORABLE PATRICIA P. SATTERFIELD, Justice

Upon the foregoing papers, it is ordered that the petition and cross motion are disposed of as follows:

This is an Article 78 proceeding, in the nature of certiorari, instituted by petitioner Olga Kobiashvili ("petitioner"), a former employee of respondent Jacobi Medical Center ("Jacobi"), against respondent Jacobi and respondent New York City Health and Hospitals Corporation ("HHC"), seeking the annulment of respondents' termination of her employment and her reinstatement to the position as cytotechnologist at Jacobi.

Relevant Facts

Petitioner was hired on January 22, 1996, at Jacobi as a provisional Associate Laboratory Microbiologist in the cytology department, a department in which cytotechnologist, such as petitioner, work with pathologists to detect changes in cellular material from body sites in the early diagnosis of cancer and other diseases. Pursuant to Part 58 of the New York Code of Rules and Regulations, a cytotechnologist may examine no more than 80 one-slide gynecological cases per work day and no more than 100 combined total of gynecological and non-gynecological slides per work day. In 2007, petitioner was permitted to take a second job working part-time as a cytotechnologist at Shiel Medical Laboratory. By letter dated January 30, 2008, Patricia R. Romano, M.D., Director of Shiel Medical Laboratory, was advised by the New York State Department of Health that petitioner was approved to "exceed the New York State cytotechnologist work standard of eighty slides" up to a maximum of 96 slides.

By 2-Year Provisional Employee Notice and Statement of Charges, dated April 11, 2008, HHC served petitioner with notice of charges preferred against her, alleging, inter alia, that she exceeded the number of slides per day in violation of the State Regulations and that she falsified official documents regarding the amount of slides she read on certain dates, which were violations that could compromise Jacobi's state licensing. The specifications, as set forth in the April 11, 2008 Notice, were:

Specification #1: Falsification of Timesheet.

During the period of May 4, 2007 to December 13, 2007, you utilized five (5) days and 3.5 hours of sick leave yet, you documented that you worked at another laboratory reading cytology slides.

Specification #2: Falsification of an Official Document

You documented on November 7, 2007 worksheet that you read fortyfour (44) and thirty-three (33) slides respectively on November 15th and November 16th yet, you called in sick on both dates.

Specification #3: Violation of State Regulation

You documented that you read eighty (80) slides on November 15, 2007, which is in violation of the State Regulation regarding cytology readings.

On May 12, 2008, the Charges were amended, as follows:

Specification #3: on the Original Notice and Statement of Charges should read as follows:

You documented that you read over eighty (80) slides in a 24 hours period on the following dates which is a violation of the State Regulation regarding cytology readings.

You documented that you read over ninety six (96) slides in a 24 hours period on the following dates which is a violation of the State Regulation regarding cytology readings.

Specification #4: Falsification of Documentation

Specification #5: Poor Work Performance

The April 11, 2008 Notice also notified petitioner of a Step IA Disciplinary Conference, as provided in her collective bargaining agreement, on May 7, 2008;¹ the disciplinary conference was held May 14, 2008. At the Step IA conference, the Labor Relations Specialist presiding over the conference dismissed Charge #1, and found petitioner guilty of Charges ##3-5; Charge #2 was withdrawn. In sustaining Charge #3, the hearing officer, in her June 10, 2008 decision, stated:

In spite of Management's attempt to have Respondent [Kobiashvili] comply with the State Regulations, the respondent still stated that she has the right to read over eighty (80) slides in a 24 hour period because she received an exception. Even though the Respondent was granted an exception, the exception was effective January 30, 2008, and it is not applicable to Jacobi.

The intent of those who wrote the regulation specifies how many slides can be read in a specific time period. In addition, if Respondent reads ninety-six (96) slides at Shiel Medical Laboratory, then she cannot read any slides at Jacobi. The dates in specification #3 are notcovered by her exception. The license of Jacobi laboratory and the morale of the employees are impacted when the respondent chooses to read the number of slides that benefits her the most on any given day.

In sustaining Charge #4, falsification of documentation, which addressed the discrepancy in the number of slides given to petitioner for review and the number of reported slides completed by petitioner, the hearing officer stated:

The Respondent [Kobiashvili] stated that she does 'excessive work' and that reporting a lesser number of what she is given is because she did not finish her assigned work on a specific day and completed that work another day.

Such manipulation of assignment(s) defeats the purpose of work standards and is potentially harmful to our relationship(s) with the State and Federal agencies responsible for monitoring our laboratories. Based upon the above admission by the Respondent and the documents submitted, the respondent is guilty of the charge.

Lastly, in finding petitioner guilty of Charge #5, poor work performance, the hearing examiner found:

There was testimony and documents by the department to show that the Respondent [Kobiashvili] failed to input her workload into the [computer] system as protocol and to input the Quality Control slides read as directed... The department presented documentation to show that the Respondent had input her workload into the system in the past. However, she has become determined to do her work the way she wants with complete disregard of authority. Even at the end of the conference date, this Hearing Officer was informed that the Respondent had failed to input her workload.

Respondent's arbitrary and capricious decision regarding the number of slides she reads on any given day has the potential to create issues of patient safety. A review of Respondent's work load indicated that she has read as many as 102 slides in a 24 hour period. Respondent's disregard for standards cannot be sanctioned and/or tolerated.

Based upon the findings, the Office of Labor Relations recommended petitioner's termination.

The decision following the Step IA's disciplinary conference was sustained on appeal following petitioner's filing of a Step II grievance and September 3, 2008 conference, at which petitioner's Union representative signed a waiver releasing the Union of any further involvement and the conference proceeded with petitioner being represented by private counsel. Following the Step II conference, the Review Officer determined that "the facility has substantiated the Charges and determined that the penalty of termination of employment is appropriate in light of the seriousness of the charges herein." Petitioner's counsel, by letter dated November 17, 2008, requested a Step III review, which was held January 29, 2009, and resulted in a March 16, 2009 decision, in which the Review Officer ruled:

After a careful review of the record in this matter, including the positions of the parties and the documentation and information obtained at the conference, I conclude that the Agency has substantiated the charges against the Grievant. Grievant did not abide by the Agency requirements or established state standards for her position. In light of the circumstances in this matter, I find the penalty of employment termination to be reasonable.

The letter contained the following note to the Union: "Failure by the Union to proceed to arbitration within fifteen (15) workdays shall be deemed a waiver and abandonment by the Union of its right to proceed to arbitration." As binding arbitration, Step 4 of the grievance process, was not requested by petitioner's collective bargaining representative, the matter was not submitted to arbitration.

Petitioner commenced the instant special proceeding, pursuant to Article 78 of the CPLR, for a judgment annulling respondents' determination to terminate her employment, on the ground that the termination was in violation of lawful procedure,...