It was her 19th year as a nurse at Erie County Medical Center, and Karen Hendel was calling in sick and missing some of her daytime work shifts, even on days she worked at her part-time evening job at Millard Fillmore Suburban Hospital.
So her ECMC bosses called her to a meeting as they investigated her sick-leave use. They wanted her to sign a form allowing the other hospital to give them its payroll records on her. When she refused, they fired her, finding her insubordinate for refusing to cooperate with their investigation.
So began a nearly decade-long fight between the hospital and the operating room nurse.
It did not end well for ECMC.
An arbitrator found her bosses at the Buffalo hospital unjustly fired her, and he awarded her back pay and other benefits worth more than $1.2 million, according to court records.
But her fight with ECMC has not gone smoothly for her, either. Hendel waited eight years – during which time she borrowed money from family and took early retirement pay – before ECMC sent her a $458,099 check last January covering part of the award.
And then came her fight over legal fees.
A lawyer she retained – after she became frustrated with how her union’s lawyer was handling her case – eventually sought a one-third share of the million-dollar-plus arbitration award as a contingency fee. State Supreme Court Justice John A. Michalek ruled the lawyer was not entitled to the contingency fee, noting it was the union counsel who won her the arbitration award. Her former lawyer has appealed the ruling.
Problems at work
Hendel, 65, of Gasport, known as Karen Reilly at the time of her firing, had problems at ECMC before the sick-leave issue in August 2004, according to the arbitration report.
In January 2002, she received a letter of counseling after a supervisor found her showing personal photos to others on staff at 7:15 one morning after being told at 7:03 to get ready for work.
In January 2003, she received an oral warning about her use of sick leave and arriving late to work.
In April 2004, she received another letter of counseling, this one for “time and attendance issues.”
The next month, she received a written warning for failing to call in when she was “on call.”
In June 2004, she took a part-time job at Millard Fillmore Suburban Hospital in Amherst, working the 5 p.m. to 11 p.m. shift. She worked 7 a.m. to 3 p.m. at ECMC.
Her immediate supervisor at ECMC knew she had worked at the Amherst hospital on days she called in sick at ECMC, according to the arbitration report.
On Aug. 16, 2004, she was called to a meeting in the office of ECMC’s associate administrator of health care services. Her immediate supervisor was also present. Two representatives from the New York State Nurses Association attended the meeting on her behalf.
At the meeting, Hendel handed her bosses two doctor notes covering the shifts she had missed during the previous two weeks.
Her immediate supervisor gave her the form to sign. If signed, the form would permit Kaleida Health to give ECMC her payroll records for the work she did at the Amherst hospital.
She refused to sign.
“That’s insubordination … you can walk out that door now,” the ECMC associate administrator told her, according to the arbitration report.
One of the union representatives slapped the table and said, “You can’t fire her for that!”
The next day she filed a grievance against the hospital.
She also applied for retirement benefits and began receiving about $1,200 a month beginning in February 2005.
Fighting her firing
At an arbitration hearing, Hendel told the arbitrator about the stress she felt at ECMC when she began working under a new supervisor in 2001.
She said her stress “felt like having a heart attack.”
She testified “she felt as if she were being punished, harassed and couldn’t do anything without being scrutinized and having to explain her actions,” according to the arbitration report.
She said her doctor prescribed medication and eventually increased her dosage.
She said she found it humiliating when her ECMC boss called the Amherst hospital asking about her.
At the arbitration hearing, her union called the hospital’s demand she sign the payroll record release form “unreasonable” and a “clear invasion of privacy.” Her refusal to sign was not proper grounds for her firing.
What’s more, she did not abuse sick leave, the union said.
The ECMC bosses, however, testified they “had never experienced another nurse being insubordinate in a manner remotely similar to (Hendel),” according to the arbitration report.
ECMC said it was reasonable to investigate the possible fraudulent use of sick leave.
The doctor notes, according to ECMC, gave no indication she could work at one hospital and not at the other.
During her arbitration process, Hendel stipulated that she worked at Millard Fillmore Suburban Hospital on four days she had called in sick at ECMC.
Her ECMC supervisors told the arbitrator that anything short of her firing would send a message to other employees that they could abuse sick leave by calling in sick and still work elsewhere on the same day, and then hide it by refusing to sign a release, according to the report.
In March 2006, the arbitrator found ECMC’s order for Hendel to sign the form “unreasonable” and “unacceptably overbroad.”
ECMC fired her without just cause, the arbitrator ruled.
The ECMC bosses short-circuited their own investigation by failing to ask Hendel at the meeting even basic questions about her sick leave. Instead, the hospital administrators moved directly to demanding that she sign the payroll record release form, the arbitrator ruled.
Insisting she sign the form before asking her questions was “unreasonable at that time.”
“They might have asked her whether she had worked at Millard Fillmore Suburban on the days she used sick leave at ECMC,” the arbitrator said. “They could have asked about the specific nature of the disability that prevented her from working at ECMC.
“However, the preponderance of the credible evidence is that they did not ask (Hendel) those questions,” according to the arbitration report.
“Failure to follow an unreasonable order cannot be considered insubordination when the result of the unreasonable order would be a serious, unwarranted and irremediable breach of the employee’s protected privacy rights,” according to the report.
Getting her own lawyer
But years passed without an agreement by the county, ECMC and the New York State Nurses Association on the amount of her back pay and benefits. The sides returned to the arbitrator in 2007 for further proceedings.
Denis P. Duffey Jr., who represented the nurses association, said in a court filing earlier this year that he spent considerable time in 2011 and 2012 “preparing remedy calculations, drafting settlement agreements, corresponding and conferring with counsel for the county and as of March 2012 ECMC; and conducting related legal research concerning enforcement of the October 2007 remedy award and the court orders confirming it.”
Hendel said the union’s lawyer did not return her calls and she grew anxious about finalizing the award.
So Hendel approached attorney Steven M. Cohen in October 2008.
“Cohen informed me that I was going to lose my entire case” because the union’s lawyer was going to miss a deadline to file a petition in court to confirm the arbitration award,” Hendel said in an affidavit.
Cohen filed a petition on her behalf. Two days later, the union’s lawyer filed a petition. A judge eventually dismissed Cohen’s petition and granted the union lawyer’s petition.
In a July 2010 meeting, Cohen suggested that Hendel needed his services “to once again pull it out of the fire,” she said in her affidavit.
She said Cohen offered his services for a contingency fee of 33.3 percent of her estimated $1.2 million award. But she said she rebuffed him because the award had been confirmed and the county had exhausted its appeals.
She said she agreed to a retainer in which his firm, Hogan Willig, would receive one-third of any additional damages she would get from new claims against the county, ECMC or the nurses association – not the confirmed award.
Cohen, in a court filing, said Hendel “insisted and in fact begged that my continued representation be on a contingency basis, rather than on an hourly rate which she claimed she could not afford.”
She agreed Hogan Willig would receive one-third “of all amounts collected, whether by suit, settlement or otherwise,” Cohen said in the court filing.
From May 2011 to July 2012, Cohen’s firm assisted Duffey by providing documents and offering input into the calculation of Hendel’s back pay and benefits, Duffey said in a court filing.
Hendel discharged Cohen in July 2012.
“After receiving the benefits of critical legal services in facilitating the confirmation of her arbitration award and moving this case to a point where settlement was imminent, Hendel is seeking to avoid payment to Hogan Willig and she discharged our firm in an effort to avoid the fee,” Cohen said in a court filing earlier this year.
Attorney David H. Elibol, who represented Hendel in the fee dispute with Cohen, filed court papers calling Cohen’s bid for a contingency fee of more than $400,000 “unearned and unconscionable” and “grossly disproportionate” to the services his firm provided.
Michalek ruled Hogan Willig was not entitled to a contingency fee and denied its request for a lien under which it sought an interest in the judgment awarded to her. The firm has appealed the ruling.
“The record does indeed demonstrate that (Hogan Willig) never appeared as counsel of record for Ms. Hendel in any proceeding with a favorable outcome for her,” Michalek said at a court hearing.
Later, the firm sought more than $48,000 in legal fees for its work on her case.
Earlier this month, Michalek awarded the firm $19,234 in legal fees because it “certainly devoted time and effort on behalf of Karen Hendel.”
“All we’re going to say, all I’m comfortable saying, is we’re pleased with how the case turned out,” Cohen told The Buffalo News. “Karen was done wrong by ECMC. We were pleased with the arbitration award.”
Cohen called the fee dispute secondary to the case’s outcome.
“The matter of fees will be decided in the future,” Cohen said.