Housing Auth. v. Anonymous

OATH Index No. 1865/18 (May 3, 2018), rejected, Auth. Dec. (May 16, 2018), appended

Fitness proceeding brought against customer information

representative. ALJ found evidence insufficient to establish that

employee’s disability rendered him unable to perform his job and

unfit. ALJ further found that the agency failed to establish

probable cause to place the employee on unpaid emergency leave

and that the employee should be awarded back pay.

Authority rejects ALJ’s recommendation that the section 72

proceeding be dismissed and that respondent is entitled to pay for

the period of pre-trial leave. Authority finds respondent to be unfit

and that it had probable cause to place respondent on involuntary

leave under section 72(5); respondent is not entitled to backpay for

the period of pre-trial leave.

______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

HOUSING AUTHORITY

- against -

ANONYMOUS

Respondent

______________________________________________________

REPORT AND RECOMMENDATION

JOHN B. SPOONER, Administrative Law Judge

This is a fitness proceeding referred by the petitioner, the Housing Authority, pursuant to

section 72 of the New York State Civil Service Law. The petitioner alleges that respondent, a

customer information representative, is mentally unfit to perform the duties of his position and

should be placed on an involuntary leave of absence. Due to the possible detrimental effect to

respondent by publication of this report, respondent’s name has been withheld. See Taxi &

Limousine Comm’n v. Anonymous, OATH Index No. 1053/09 (Jan. 12, 2009) (employee’s name

withheld where decision discusses personal issues contained in medical records); OATH Rules

of Practice, 48 RCNY § 1-49(d) (Lexis 2018).

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At the trial held on March 28 and April 17, 2018, petitioner presented the testimony of a

psychiatrist, who examined respondent and concluded he was unfit, as well as two of

respondent’s co-workers. Respondent testified on his own behalf and called another psychiatrist.

For the reasons provided below, I find that petitioner’s proof was insufficient to establish

that respondent was unfit and recommend that the petition be dismissed. I further recommend

that respondent be given back pay for the period that he was placed on emergency leave.

ANALYSIS

Respondent has been employed by the Housing Authority as a customer information

representative since 2015. The responsibilities of a representative include answering telephone

and e-mail communications from housing tenants, recording and tracking all of these

communications, and properly identifying and referring routine and emergency requests for

inspection or follow-up. Respondent works alongside six other representatives on an early shift

on weekdays from 6:00 a.m. to 2:00 p.m. Some 50 other workers arrive at the office later for the

regular day shift, which begins at 8:00 a.m. (Tr. 270).

Factual Background

Based upon statements made by respondent to his co-workers in late January and early

February 2018, respondent’s supervisors became concerned that respondent was having mental

health issues. On February 9, respondent was sent a letter (ALJ Ex. 1) directing him to appear

for a psychiatric examination by Dr. Eshkenazi on February 14, 2018. On February 12, 2018,

respondent was told by two supervisors that he was being placed on unpaid involuntary leave

due to safety concerns about his presence at the work place.

Two co-workers described the behaviors and remarks by respondent that prompted the

Authority to order the psychiatric exam. Ms. Ellis, a housing manager and one of respondent’s

supervisors, testified that she and respondent frequently chatted during breaks. In late January

2018, she casually asked respondent how he was doing. He told her that he was not sleeping

because a neighbor was hacking into his electronics and causing him harm. In Ms. Ellis’s trial

testimony, she stated that respondent told her that he and the neighbor might have a

“confrontation” (Tr. 88), although in a subsequent memorandum written several days later (ALJ

Ex. 1) Ms. Ellis wrote that respondent “was threatening to do physical bodily harm to the

neighbor.” Hearing this, Ms. Ellis told respondent not to engage in a physical altercation

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because he could be arrested and might lose his job (Tr. 88). According to Ms. Ellis, respondent

said he was not sleeping and he appeared “agitated” and “disturbed,” and his eyes were

“bulging” (Tr. 90).

Several days later, on February 5, 2018, Ms. Ellis spoke with respondent again about how

he was. Respondent told Ms. Ellis that he felt like “killing himself” (Tr. 91) or, as she wrote in a

subsequent memorandum (ALJ Ex. 1), “taking his own life.” He stated that, even though he had

moved across town to escape the “vibrations” emanating from his neighbor, he was still feeling

the vibrations. Respondent showed Ms. Ellis web pages on his cell phone about “the FBI and

CIA” using electronic warfare and drones on him. In fact, the copies of the web pages submitted

into evidence with Attachment A (ALJ Ex. 1) mention “directed energy weapons” causing a

variety of symptoms, including inability to sleep, vibrations, and pain, but do not mention the

FBI or the CIA.

Ms. Ellis asked respondent whether these sensations might be caused by medication he

was taking, and respondent said that he was not taking any. Ms. Ellis became very concerned

and told respondent he should see a doctor and go to the employee assistance program (“EAP”)

for help. Respondent said he would think about it but did not commit to doing either (Tr. 91-92).

Ms. Ellis testified that, on February 6, another co-worker named Ms. Cameron spoke

with Ms. Ellis about a conversation with respondent. Ms. Cameron reported that respondent had

told her the day before that he was “suicidal,” that he feared his neighbor, and that he had not

been able to sleep for two months. Ms. Cameron said that she also advised him to go to EAP

(Tr. 93-95).

Ms. Tennyson, another co-worker, testified that on February 7, 2018, she noticed that

respondent looked “sick” and asked him what was wrong. Respondent told her that he was not

sick but was having personal problems. He showed her something on his cell phone about

targeting individuals to control their minds and forwarded the article to Ms. Tennyson’s e-mail

(Tr. 137).

Later in the day respondent came to Ms. Tennyson and told her that he could not sleep

because he was feeling vibrations all the time. He said that the vibrations caused him back pain

and that he feels suicidal because he cannot control the pain. He indicated that he had ridden the

subway the night before because of the vibrations. He stated that someone had followed him to

work, that they knew where he was, and that this was why he felt vibrations at his desk (Tr. 138-

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39). Ms. Tennyson asked respondent who else he had spoken to, and he said he had spoken to

Ms. Ellis and Ms. Cameron and that they had both advised him to speak to the EAP. Respondent

indicated he had not taken this advice (Tr. 139-40).

According to Ms. Tennyson, on February 7, respondent did not appear to be the person

she knew. He seemed “frazzled” (Tr. 139), “tired,” and “exhausted” instead of “fun loving” (Tr.

142). Ms. Tennyson reported her conversation with respondent to Ms. Ellis because she was

concerned about respondent and wanted to get him help. She later learned that respondent had

expressed resentment toward her because the staff now thought he was “crazy” and Ms.

Tennyson said that this upset her (Tr. 141-42). Ms. Tennyson indicated that respondent is a

“good worker” and that she was not aware of any problems with his work performance (Tr. 144).

Both Ms. Ellis and Ms. Tennyson prepared e-mails and memos summarizing the

conversations they had had with respondent.

Dr. Eshkenazi met with respondent on February 14. The doctor completed a written

report (ALJ Ex. 2) concluding that respondent had a “delusional disorder” and should be placed

on medical leave. Two days later, on February 16, the Authority sent respondent a letter (ALJ

Ex. 2) formally placing him on involuntary medical leave. On February 22, 2018, respondent

wrote the Authority a letter (ALJ Ex. 3) objecting to the leave and requesting a hearing. On

March 12, 2018, respondent’s attorney protested the legality of the emergency leave as a

violation of due process, absent a medical finding that respondent constituted a “potential

danger.”

In his testimony, respondent testified that he has worked as a customer information

representative for three years. As of February 2018, he was working a 6:00 a.m. to 2:00 p.m.

shift. He conceded that he finds the work stressful. He lives alone in a single-room occupancy

apartment on the Upper West Side. A year ago, he pinched two nerves in his back and continues

to see a neurologist about them, including an appointment in April 2018.

Respondent indicated that at the end of December 2017 he began experiencing vibrations

or pulses while he was trying to fall asleep. The vibrations would begin in his feet and then

move through his entire body (Tr. 248-49). The effect of the vibrations was to prevent

respondent from sleeping most nights. He indicated that he also experienced pain in his right

side and blurred vision.

Initially he thought the vibrations were coming through the bed and propped up the bed

legs with cork. When the vibrations continued, he thought they might be coming from his

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upstairs neighbor, with whom he had arguments in the past about her throwing out trash and

liquids from her apartment (Tr. 249-50). He also began researching vibrations on the internet

and found references to various theories about energy weapons. Respondent indicated that,

despite his sleep issues, he continued to report to work and perform his job (Tr. 252).

Respondent confirmed having discussions with Ms. Ellis, Ms. Tennyson, and Ms.

Cameron, but denied saying some of the things they attributed to him. He stated that, in his

initial conversation with Ms. Ellis, she asked him how he was doing. Respondent said that he

was “exhausted” and “tired” (Tr. 251). Ms. Ellis later called him into her office and asked him

to “explain to her what was going on” (Tr. 251). Respondent then told her he was feeling

vibrations or pulses which he believed were emanating from a neighbor or perhaps from his

computer (Tr. 252).

In a second conversation a few days later, Ms. Ellis asked respondent for an update and

he told her that he was even more tired and exhausted and was also experiencing pain and blurry

vision. He showed Ms. Ellis the website about direct energy weapons not to suggest that this

was the source of his problems but because the symptoms were similar (Tr. 253-54).

Respondent admitted that he told Ms. Ellis that he “could not go on” due to his exhaustion, but

denied that he actually thought of killing himself (Tr. 258). In this discussion, Ms. Ellis told

respondent about her experiences with her ex-husband who had a delusional disorder about the

FBI and CIA and advised respondent to seek psychiatric help (Tr. 254). Respondent told her not

to compare him to her husband and indicated that he wanted to get “physically checked” to

determine if there were neurological issues before he considered psychiatric treatment (Tr. 255,

259-60).

As to the conversation with Ms. Tennyson, respondent recalled her asking him how he

was and telling her about the vibrations and the energy weapons website. Because he felt he

could “open up” to her, he described being very exhausted and despondent. He told her, “I just

can’t go on” (Tr. 268). He also recalled telling her about noticing one other person walking

behind him out of the subway that morning and thought it was “strange,” but denied saying that

he believed the person was following him or that the person might be associated with the

vibrations (Tr. 269). He denied riding the trains all night, but admitted that he got up at around

4:00 a.m. because he could not sleep and rode the trains for “a couple of hours” in order to get

some rest (Tr. 270).

-6-

As to Ms. Cameron, respondent insisted that he had described to her the vibrations and

his inability to sleep, but denied telling her that he was suicidal (Tr. 271).

Partially as a result of the second conversation with Ms. Ellis and in order to determine if

he had any physiological problems which might explain the vibrations, respondent went to

Mount Sinai Hospital for an evaluation on February 8. According to respondent, he was there

for some five hours while he spoke to doctors and had a CAT scan. At around 10:00 p.m. when

the physical testing was done, he consented to psychological testing which lasted until midnight

(Tr. 260-61).

Records from Mount Sinai hospital (Pet. Ex. 3) indicate that respondent came to the

hospital on February 8, 2018, and was seen by a staff psychiatrist at around 11:36 p.m.

Respondent complained that “the woman next door is using a Direct Energy Weapon against

me” and has experienced “strange vibrations and humming.” He believed that he was being

targeted by a direct energy weapon and had had difficulty sleeping for 72 hours. He was also

having chronic memory problems and complained of “fatigue,” although he indicated that he

could still get his job done. Dr. Hempel, a psychiatrist, noted that respondent was “calm, well-

related, good eye contact, pleasant, and cooperative with interview.” The doctor concluded that

respondent had “some fixed false beliefs with some impact on his functioning.” Nevertheless, he

found that respondent posed no “acutely elevated risk of danger to self or others and does not

require inpatient psychiatric hospitalization.” The doctor noted that respondent was “given

referral to Bellevue Hospital Mental Health Clinic” for February 9, 2018, at 9:00 a.m.

Respondent testified that he did not go to the Bellevue appointment because he had to

report to work and because he understood that the referral by Dr. Hempel to Bellevue Hospital

was that it was optional and not mandatory (Tr. 264).

Respondent apparently reported to work on Friday, February 9, and on Monday, February

12. On February 9, he called EAP and made an appointment to speak with a counselor on

February 13 (Tr. 273). At the end of the day on February 12, Ms. Ellis and another supervisor

called him into an office and announced that he was being placed on involuntary leave because

he had expressed suicidal thoughts and that this was a threat to the safety of himself and other

employees (Tr. 274-75).

Respondent kept his appointment with EAP on February 13. However, respondent stated

that, since he was placed on leave, he has been unable to see doctors because he has no medical

-7-

insurance. He discovered this in mid-March when he received a bill from his primary care

doctor, who indicated that his insurance claim had been denied (Tr. 266, 284).

In respondent’s testimony, he stated that he currently experiences “fatigue,” has problems

with his vision, and sometimes is not able to sleep (Tr. 317). He continues to feel the vibrations

at night when he tries to fall asleep (Tr. 318). Once respondent confirmed his health benefits

were restored on April 20, 2018, he immediately scheduled a doctor’s appointment due to

concerns about glaucoma. According to respondent’s attorney, immediately after the last trial

date, respondent scheduled an appointment with a clinic for psychiatric treatment (ALJ Ex. 7).

Petitioner’s expert proof as to respondent’s alleged unfitness was provided by the

February 14 report (ALJ. Ex. 2) and testimony of Dr. Eshkenazi, the psychiatrist retained to

evaluate respondent. In his report, Dr. Eshkenazi indicated that during his interview respondent

denied any prior psychiatric history. When asked whether he had any physical ailments,

respondent said that he had lower back pain, double vision, and some other problems. He

indicated that he feels very tired and cannot sleep and feels “vibrations” coming at him from the

outside. He stated that his back pain, double vision, headaches, hip pain, and a weak ankle were

all due to the vibrations. He later mentioned a “hum” coming from his neighbor in the floor

above him. When asked why he was sent for a psychiatric examination, respondent said that it

was because he was exhausted and unable to sleep. He also said that he had made a statement

that he wanted to “end it all,” although he denied any current intention of harming himself.

Based upon his interview with respondent, Dr. Eshkenazi concluded in his report that

respondent had a “delusional disorder” and also “some paranoid ideation.” He indicated that,

while respondent was fully oriented as to time, place, and person, had “appropriate affect,”

“coherent speech” and “productive thought processes,” he also had “delusions of persecution”

which “affect him.” He also noted anxiety and some depression. Based upon respondent’s

mental health, Dr. Eshkenazi recommended both to respondent verbally and in his report that

respondent should see a psychiatrist. He also recommended that respondent be placed on

medical leave until his condition improved, which the doctor found “likely.”

In his testimony, Dr. Eshkenazi elaborated that respondent had a delusional disorder,

which he defined as a “fixed false belief that does not respond to any logic” (Tr. 20). He stated

that psychiatric treatment and medication might help, although delusions were “difficult to treat”

and medication often did little except alleviate the patient’s anxiety (Tr. 20-21). Dr. Eshkenazi

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agreed that respondent’s fears of being followed might frighten his co-workers (Tr. 22). He also

indicated that respondent could “potentially” become dangerous and should not be working (Tr.

20). While Dr. Eshkenazi was not aware of any specific problems with respondent’s job

performance, he questioned whether respondent could “concentrate” on his job duties if he was

delusional and was thinking of taking his own life (Tr. 74).

Respondent called Dr. Ellis, a psychiatrist retained by respondent’s union, as an expert.

Dr. Ellis interviewed respondent twice, for an hour on March 6, 2018, and again for 35 minutes

on the morning of April 17, 2018 (Tr. 168). Respondent described the same symptoms and

actions to Dr. Ellis as he had to Dr. Eshkenazi. He indicated that he was experiencing vibrations

and was unable to sleep, making him very tired (Tr. 171). He said that he believed the vibrations

came from an upstairs neighbor (Tr. 171-72). Respondent denied having homicidal or suicidal

thoughts (Tr. 175) and also denied that he believed he was ever being followed (Tr. 176).

Respondent told Dr. Ellis he would take medication if prescribed by a psychiatrist (Tr. 187).

Based upon the two interviews, Dr. Ellis found no significant differences in respondent’s

condition between March and April and agreed with Dr. Eshkenazi that respondent has a

delusional disorder for which he should seek psychiatric treatment (Tr. 180-81). Dr. Ellis,

however, concluded that there was no indication that respondent’s condition was impeding

respondent’s work performance and further that respondent was not a danger to himself or

anyone else (Tr. 170).

In a March 6, 2018 letter (Pet. Ex. 2), Dr. Ellis stated that he found respondent

“competent to return to work” and “able to perform his duties as per the requirements of his job.”

He also stated that respondent was “not a danger to himself or others at this time.” No other

details as to respondent’s condition or diagnosis were provided. In a March 20, 2018 letter (Pet.

Ex. 4), Dr. Ellis and Ms. Leese, a social worker who works with Dr. Ellis, indicated that she saw

respondent on February 26, March 6, and March 19, that respondent was “compliant” during his

sessions, and that respondent would continue to work with Ms. Leese for future sessions. They

indicated that respondent appeared to have increased anxiety due to the loss of income and

benefits as a result of being placed on medical leave since February.

After a conference before ALJ Kara Miller on March 20, 2018, respondent was placed

back on payroll beginning on March 26, 2018, so that his health benefits could be reinstated.

When it was discovered that there were delays in having his health insurer recognize that he was

an active member, the pay period was extended to May 11, 2018.

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On April 27, 2018, this tribunal was notified via an e-mail from respondent’s attorney

(ALJ Ex. 7) that respondent made an appointment for May 2 at a counseling center for

psychiatric treatment.

Fitness

To place an employee on an involuntary medical leave pursuant to section 72 of the Civil

Service Law, the employer must prove by a preponderance of the evidence (i) that the employee

suffers from a disability, (ii) that he is unable to competently perform his job duties, and (iii) that

his inability to perform is caused by his disability. See Dep’t of Parks & Recreation v. Matthews,

OATH Index No. 219/00 at 2-3 (Nov. 22, 1999); Housing Auth. v. Caballero, OATH Index No.

699/96 at 17 (Mar. 13, 1996). The determinative issue in a section 72 proceeding is the

employee’s current fitness and ability to perform his job duties, not past condition or work

performance. Human Resources Admin. v. Bizaliele, OATH Index No. 305/96 at 12 (Dec. 18,

1995).

In disability proceedings the opinions of medical specialists are very informative and can

materially aid the fact-finder in reaching a proper conclusion. The fact-finder is not bound to

accept the conclusions or opinions of any given medical expert, but must weigh the medical

evidence and draw on reasonable inferences. Peabody Coal Co. v. Benefits Review Bd., 560 F.2d

797, 802 (7th Cir. 1977); Human Resources Admin. v. Romney, OATH Index No. 319/82 at 38

(Dec. 20, 1982) (opinion evidence offered by medical experts is to be evaluated in conjunction

with other evidence in the record).

Here there was no dispute that respondent had a disability, since three experts, Dr.

Eshkenzi, Dr. Ellis, and Dr. Hempel, all agreed on a diagnosis of a delusional disorder. The

dispute at trial was whether respondent was unfit to perform his job duties and, assuming he was,

whether this inability was related to his disability. In this regard, petitioner relied upon both the

testimony of respondent’s two co-workers and the opinion of Dr. Eshkenazi.

For a number of reasons, petitioner failed to meet its burden of establishing that

respondent was currently unable to perform the duties of a customer information representative.

First, the fact that an employee may have a psychiatric disorder does not establish that he is

unable to perform his job. See, e.g., Dep’t of Transportation v. Anonymous, OATH Index No.

1750/18 at 10 (Apr. 16, 2018); Comm’n on Human Rights v. Henderson, OATH Index No.

-10-

704/01 (June 12, 2001). In this regard, it was notable that the Attachment A mentioned nothing

about respondent’s performance of his work duties. Instead, the incidents, which all occurred

within approximately a one-week time span, consisted of remarks made by respondent about his

reasons for not sleeping, being fatigued, feeling vibrations, and not wanting to go on or perhaps

ending it all. While respondent admitted generally to making the statements, the exact words

used by respondent were disputed and demand a credibility determination between Ms. Ellis and

Ms. Tennyson and respondent. To evaluate credibility, this tribunal has looked to “witness

demeanor, consistency of a witness’ testimony, supporting or corroborating evidence, witness

motivation, bias or prejudice, and the degree to which a witness’s testimony comports with

common sense and human experience.” Dep’t of Sanitation v. Menzies, OATH Index No. 678/98

at 2-3 (Feb. 4, 1998), aff’d, NYC Civ. Serv. Comm’n Item No. CD 98-101-A (Sept. 9, 1998).

I found that Ms. Ellis to be a credible but less reliable witness than respondent or Ms.

Tennyson. First and foremost, Ms. Ellis inaccurately asserted at the trial that the web pages

offered to her by respondent attributed energy weapons to the CIA and the FBI, even though the

pages had no mention of either organization. As noted by respondent, Ms. Ellis seemed to be

projecting experiences she had with her ex-husband’s delusional disorder on to respondent. Ms.

Ellis was also inconsistent in describing the words used by respondent about what he might do to

his upstairs neighbor. In her testimony, she stated that he told her he feared a “confrontation,”

while in her written memo she wrote that respondent told her that the neighbor was doing him

“physical harm” that he “was threatening to do physical bodily harm to the neighbor.” Likewise,

in Ms. Ellis’s testimony she stated that respondent spoke of “killing himself” (Tr. 91), while in

her written memo she wrote that he considered “taking his own life.” While the general meaning

of the two phrases is similar, it pointed up Ms. Ellis’s tendency to paraphrase rather than provide

precise quotations of what was said. It is therefore not possible to make a reliable fact-finding as

to what words respondent actually used.

Respondent’s testimony as to the remarks he made to Ms. Ellis was more reliable than the

version given by Ms. Ellis. While it is true that respondent had a compelling motive to frame his

testimony to avoid being found unfit, it was notable that respondent admitted nearly the entirety

of the conversations as described by Ms. Ellis and Ms. Tennyson. According to Dr. Eshkenazi’s

report, respondent told the doctor during his interview that he had said, “I just want to end it all,”

a phrase closer to his testimony about saying he “could not go on.” Respondent also admitted

that he described the vibrations to Ms. Cameron, although he denied mentioning that he was

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“suicidal.” Due to Ms. Ellis’s diminished reliability and also the double hearsay nature of the

remarks supposedly heard by Ms. Cameron, I did not credit Ms. Ellis’s account that respondent

told Ms. Cameron that he was “suicidal.” I found it more probable that respondent told Ms. Ellis

that he “could not go on” or that he wanted to “end it all” rather than that he said he would “kill

himself.”

Respondent admitted making all the remarks to Ms. Tennyson except with regard to

stating that he was being followed. According to respondent, he stated only that he noticed a

man come up from the subway platform with him and make eye contact. Ms. Tennyson, on the

other hand, testified that respondent specifically told her that the man followed him, knew where

he was, and was the cause of vibrations at his desk. Ms. Tennyson was a highly credible and

reliable witness. It was apparent that she empathized with respondent and felt guilty for being

part of the basis for placing him on involuntary leave. She choked up as she described her

decision to report respondent’s remarks to Ms. Ellis. As to this conversation, I credited Ms.

Tennyson’s testimony that respondent told her that he believed a man followed him out of the

subway and that this might be responsible for the vibrations respondent was feeling.

Respondent’s remarks to Ms. Ellis and Ms. Tennyson, while unsettling, provided no

indication that respondent could not perform his job duties. At most, respondent’s statement that

he didn’t think he could continue or wanted to end it seemed to be an expression of extreme

despondency, as he himself explained, and not a threat of workplace violence. In fact, the

statement “I can’t go on like this” is a common expression of despair and would not typically be

construed as a threat of suicide.

It is notable that, unlike past section 72 cases involving employees with similar disorders,

respondent’s remarks which formed the basis for the involuntary leave were not volunteered but

were solicited by co-workers. Most employees displaying signs of a psychiatric problem have

been warned about the behavior and monitored over the course of several months to determine

whether the behavior would recur. See Dep’t of Transportation v. Anonymous, OATH Index No.

480/17 (Dec. 27, 2016) (unprovoked angry remarks occurred over five months); Police Dep’t v.

A.A., OATH Index No. 2183/14 (June 30, 2015) (delusional complaints of being followed and of

sexual assault occurred over three years); Dep’t of Environmental Protection v. Anonymous,

OATH Index No. 2443/14 (Aug. 20, 2014) (unprovoked profane remarks occurred over 10

months).

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In this case, respondent made all of the remarks on three days during the same week and

only after being asked by co-workers how he was feeling. He was placed on emergency leave

two work days after the third remark was reported to Ms. Ellis. Other than suggestions that he

go to EAP, he was given no other guidance or warnings before the emergency leave was ordered.

Hence it was unclear whether, having been warned, he would make any further remarks. In

respondent’s testimony, he expressed regrets about sharing these confidences with co-workers,

suggesting he was unlikely to do so again. Respondent’s current reluctance to mention the

vibrations to anyone except a doctor was underscored by his testimony on the final day of the

trial. When asked how his health was, he stated that he was fatigued. When asked the cause for

the fatigue, he indicated that he often had problems sleeping. Only when asked explicitly about

whether he was still experiencing vibrations did he admit that the vibrations continued to come

to him at night when he was trying to sleep (Tr. 317-18). It seemed highly improbable that, if

returned to work, respondent would again share information about his health to his co-workers.

Petitioner presented no evidence whatsoever that, either before or after the remarks to the

three co-workers were made, respondent failed to perform any of his job assignments adequately.

Instead of offering evidence as to respondent’s job performance, petitioner focused at length

upon the reactions of respondent’s co-workers to his remarks, suggesting that these three

workers’ concerns interfered with the functioning of the office as a whole. See Housing Auth. v.

Jones, OATH Index No. 195/94 at 28 (Jan. 7, 1994), aff’d, NYC Civ. Serv. Comm’n Item No.

CD 94-72-2 (Sept. 29, 1994) (“An essential part of fitness to work in any job assignment is an

ability to work with and be supervised by others, without being disruptive or abusive.”); see also

Health and Hospitals Corp. (Bellevue Hospital Ctr.) v. Samuel, OATH Index No. 243/07 at 5

(Dec. 20, 2006); Human Resources Admin. v. Anon., OATH Index No. 1781/12 at 30 (Aug. 9,

2012) (employee unfit based on evidence of his ongoing disruptive and frightening behavior);

Housing Auth. v. Caballero, OATH Index No. 699/96 at 18 (Mar. 13, 1996) (employee may be

deemed unfit because her disability caused her “to have frequent violent or disruptive outbursts

at work, or substantially interferes with [her] ability to interact appropriately with co-workers or

supervisors.”).

Both Ms. Ellis and Ms. Tennyson expressed uneasiness with respondent’s statements and

speculated that, given respondent’s expression of frustration and despondency, including his

remark about a confrontation with his neighbor, his lament that he could “not go on,” and his

belief he might be being followed, respondent might be violent. However, there was no

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indication that the workers’ concern about respondent interfered with their ability to perform

their own jobs. Their leaps of logic to suggest that, based upon three remarks, they believed

respondent would be violent were based more on fear than reason. Far from showing a violent

nature, the evidence suggested that respondent habitually kept his anxieties about the vibrations

out of the workplace unless asked directly about how he was feeling and at all times continued to

perform his job duties.

Nor did Dr. Eshkenazi’s opinion that respondent could not perform his work due to his

delusions, standing alone, support the conclusion that respondent was unfit. Dr. Eshkenazi

observed nothing in respondent’s speech or affect that was irregular and noted that respondent

demonstrated “productive thought processes.” He concluded that respondent could not perform

his job based upon assumptions about employees with disorders, stating, “It’s apparent he cannot

function because if he believes, if he’s delusional, if he feels people are following him, he

certainly feels a great deal of anxiety, cannot concentrate, he cannot function” (Tr. 52). Dr.

Eshkenazi’s opinion would appear to have been founded upon a general hypothesis that

respondent’s delusional disorder of vibrations caused a level of anxiety which made it impossible

to perform his job. This conclusion seemed doubtful since, as noted by Dr. Ellis, since the

condition began in early January, respondent has, in fact, performed his job duties adequately.

Perhaps more importantly, the record shows that respondent was hastily placed on leave

immediately after his supervisors became aware he had a disability, without seeking to determine

whether his condition was affecting his ability to function at work. Soon after going on leave,

respondent’s health benefits were terminated and he was unable to seek treatment. As noted by

respondent’s counsel in his closing, respondent was placed in a Catch 22 situation where he was

placed on unpaid leave, without benefits, based upon his failure to seek treatment for his

condition and was unable to obtain treatment because his benefits had lapsed.

Other factors demonstrate that involuntary leave would be inappropriate here. Dr.

Eshkenazi, Dr. Ellis, and Dr. Hempel agreed that respondent did not need to enter a residential

program to treat his condition and could receive out-patient treatment. Such treatment would not

require that respondent be placed on leave and would permit respondent to continue to work. It

was also significant that respondent made concerted efforts to obtain medical help for his

condition, up until his health benefits expired. He experienced the vibrations and pain as

something physical and initially sought a neurological rather than a psychological explanation

-14-

for them. He acknowledged that physical examinations had thus far found nothing and later told

Dr. Ellis (and stated during his testimony) that he would cooperate with treatment and take

prescribed medication, once his health benefits were restored. Immediately following the last

trial date, respondent, with the assistance of the union counselor, made an appointment at a clinic

for psychiatric treatment to commence the following week. Respondent’s determined attempts

to treat his condition demonstrate that he acknowledges the need for psychiatric help and provide

substantial reason to believe that his condition will improve, as Dr. Eshkenazi himself noted. Cf.

Police Dep’t v. Cornick, OATH Index No. 536/08 (Dec. 7, 2007), rev’d, Comm’r Decision (Apr.

9, 2008) (employee with diagnosis of schizophrenia or bipolar disorder considered fit where

evidence showed her to have insight into condition and voluntarily taking medication to control

condition).

For all of these reasons, I find that petitioner failed to meet it burden of demonstrating

that respondent is currently unable or unfit to perform his job. I therefore recommend that the

section 72 petition be dismissed.

Pre-hearing emergency leave and back pay

Having placed respondent out on unpaid emergency leave prior to the trial, petitioner

must further establish that the standard for such leave under section 72 was met. See Barrett v.

Miller, 179 Misc.2d 24 (Sup. Ct. N.Y. Co. 1998) (OATH has jurisdiction to determine the

propriety of an employee’s placement on pre-hearing involuntary leave). The facts here

demonstrate that the emergency leave standard was not met.

Section 72 permits involuntary leave prior to a hearing in only emergency situations

where the agency has “probable cause to believe that the continued presence of the employee on

the job represents a potential danger to persons or property or would severely interfere with

operations.” Civ. Serv. Law § 72(5). This tribunal has noted that emergency leave is an

“extraordinary measure,” due in part to the financial hardship to the employee and the unlimited

duration of the leave. Teachers’ Retirement System v. Barrett, OATH Index No. 1210/99 at 3

(Sept. 22, 1999), cited in Dep’t of Environmental Protection v. Anonymous, OATH 2443/14;

Admin. for Children’s Services v. J.M., OATH Index No. 3350/09 at 20 (Apr. 5, 2010).

The evidence presented here did not demonstrate that the agency had probable cause to

believe that respondent was dangerous or that his presence in the workplace would “severely

interfere with operations.” See Housing Auth. v. V.M., OATH Index No. 1014/07 at 7 (Mar. 23,

-15-

2007) (“Odd behavior and attendance problems . . . do not prove that an employee poses a

‘danger’ or would ‘substantially interfere’ with an agency’s operations.”); Admin. for Children’s

Services v. Ogunka, OATH Index No. 147/07 at 11-12 (Oct. 30, 2006) (bizarre, strange, and loud

remarks did not establish that “extraordinary” pre-hearing suspension was necessary). As

discussed above, petitioner’s notion that respondent was likely to be violent and endanger co-

workers was not reasonable and was inconsistent with respondent’s history. During his three

years of employment, respondent never engaged in or threatened violence to anyone.

Respondent’s general demeanor and comportment, as described by Ms. Tennyson and also

exhibited during the OATH trial, was reserved, polite, and subdued, never registering strong

emotion of any kind, and offering no hint that he was or would ever become violent. Cf. Dep’t of

Transportation v. Anonymous, OATH Index No. 480/17 (Dec. 27, 2016) (emergency leave found

warranted for paranoid worker who angrily yelled at co-workers and repeatedly refused to appear

for medical examinations); Dep’t of Environmental Protection v. Anonymous, OATH Index No.

2443/14 (Aug. 20, 2014) (emergency leave found warranted for worker who threatened and

exhibited frequent hostility and unprovoked anger to co-workers). From all appearances, despite

the anxiety and sleep deprivation caused by his condition, respondent appeared for work,

performed his job duties, and largely kept his feelings to himself, sharing them only when

encouraged to do so.

The evidence also did not demonstrate that respondent’s behavior would “severely

interfere” with the office’s operations. Respondent’s remarks were made quietly in private

conversations to three workers. None of the conversations themselves caused any office-wide

disruptions. Insofar as respondent’s statements may have caused some distress to Ms. Ellis and

Ms. Tennyson out of worry for respondent, such concerns were far from a “severe” interference

with the office’s operations. This is particularly true where the co-workers’ distress could be

alleviated by not prompting respondent to talk about his feelings.

Since the agency lacked probable cause to believe that an emergency leave was

warranted, respondent is entitled to back pay for the period from February 12 to March 26, 2018,

when he was restored to payroll. Barrett v. Miller, 179 Misc.2d 24 (Sup. Ct. N.Y. Co. 1998).

I therefore further find that respondent is entitled to back pay.

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FINDINGS AND CONCLUSIONS

1. The petition should be dismissed in that the evidence at the

hearing failed to establish that respondent is unfit to perform

the duties of his position as a customer information

representative.

2. Petitioner failed to establish probable cause that respondent

was a “potential danger” or that his presence would “severely interfere” with agency operations.

3. Respondent is entitled to back pay from the time he was placed

on emergency leave until he was restored to payroll.

In sum, I recommend that the petition to place respondent on disability leave pursuant to

Civil Service Law section 72 be dismissed and that respondent be provided back pay as

indicated.

John B. Spooner

Administrative Law Judge

May 3, 2018

SUBMITTED TO:

STANLEY BREZENOFF

Interim Chair and Chief Executive Officer

APPEARANCES:

TERENCE SCHWARTZ, ESQ. Attorney for Petitioner

LEN SHRIER, ESQ.

Attorney for Respondent

Panel of the New York City Housing Authority

Item No. 18-5/16-I7 Calendar 5/16/2018

New York City Office of

Administrative Trials and Hearings (“OATH”)

In the Matter of Housing Authority

-against- Anonymous Respondent

PROCEDURAL HISTORY: OATH Administrative Law Judge: John B. Spooner OATH Index No.: 1865/18 ALJ Report & Recommendation Date: 3/3/18 Prior Panel Cal. Date: None Prior Panel Decision: None

PRESENT: Kerri Jew, Executive Vice-President & Chief Administrative Officer Vilma Huertas, Corporate Secretary

On February 12, 2018, a New York City Housing Authority (“NYCHA” or the “Authority”) Customer Information Representative, hereinafter referred to as “Anonymous1” or “Respondent,”, assigned to the Customer Contact Center in Long Island City since March 23, 2015, was placed on a leave of absence in accordance with Civil Service Law §72(5) due to the circumstances described in “Attachment A.” The Respondent was also directed to report for a medical examination on February 14, 2018 at 9:30 a.m. to determine his fitness to perform the duties of his position. ALJ Exhibit 1, dated February 9, 2018. On February 14, 2018, the Respondent was evaluated by Psychiatrist, Azariah Eshkenazi, who determined that the Respondent should be placed on a medical leave and advised him to seek psychiatric help. ALJ Exhibit 2, dated February 16, 2018. On February 22, 2018, the Respondent objected to being placed on an involuntary medical leave and requested a hearing. ALJ Exhibit 3.

1 Due to the possible detrimental effect to the Respondent by publication of this document, the Respondent's name has been withheld as noted in the OATH Report and Recommendation.

Panel of the New York City Housing Authority Page –2 In re: Civil Serv. Law §72 Proceeding, “Anonymous,” Customer Information Representative

Background

A hearing before Office of Administrative Trials and Hearings (“OATH”) Administrative Law Judge John B. Spooner (the “ALJ” or “ALJ Spooner”) was held on March 28, April 17 and April 25, 2018. The ALJ issued a Report and Recommendation (“R&R”) on May 3, 2018, wherein he found that 1) the Authority’s notice to place the Respondent on a leave of absence should be dismissed in that the evidence at the hearing failed to establish that he is unfit to perform the duties of his position as a Customer Information Representative; 2) the Authority failed to establish probable cause to believe that the Respondent was a "potential danger" or that his presence would "severely interfere" with Authority operations; and 3) the Respondent is entitled to back pay from the time he was placed on emergency leave (February 13, 2018) until he was restored to payroll (March 26, 2018).

The Panel of the New York City Housing Authority has reviewed the record below and ALJ Spooner’s R&R. We hereby approve and adopt the ALJ’s “Factual Background” (R&R, pp. 2-8), unless otherwise noted, reject the ALJ’s recommendation that the “the section 72 petition be dismissed,” reject the ALJ’s finding that the Authority failed to meet its burden of demonstrating that the respondent is currently unable or unfit to perform his job, and instead determine to uphold the notice of leave of absence pursuant to Civil Service Law §72.

In addition, we reject the ALJ’s finding that the Authority lacked “’probable cause’ to believe that an emergency leave was warranted,” and that the Respondent was “entitled to backpay for the period from February 12 to March 26, 2018;” instead we uphold the notice of involuntary leave of absence pursuant to Civil Service Law §72(5), and determine that he is not entitled to backpay.

“The Respondent was threatening to do physical bodily harm to the neighbor”

The Respondent’s supervisor, Housing Manager Donesia Ellis, wrote in a February 7, 2018 memorandum that she spoke with the Respondent in late January 2018, and he told her that he was having trouble with his upstairs neighbor in his apartment building. He stated the neighbor was “hacking into his electronics and using this information to do him physical harm and [the Respondent] was threatening to do physical bodily harm to the neighbor.” Ms. Ellis “advised him not to engage in any physical altercation with his neighbor as this could have a serious impact on his job and that he could even be arrested.” (ALJ Exhibit 1, p. A-1).

ALJ Spooner tries to contrast Ms. Ellis’s trial testimony wherein “she stated that [Respondent] told her that he and the neighbor might have a ‘confrontation (Tr. 88)’” with her memorandum from Attachment A wherein she wrote that respondent “’was threatening to do physical bodily harm to the neighbor.’” However, ALJ Spooner failed to note that in her next sentence, Ms. Ellis referred to it as an “altercation” and she explained that by an altercation she was talking about “[p]hysical bodily harm.” (Tr. 88). Moreover, ALJ Spooner fails to note that Dr. Ellis testified in connection with the Respondent’s neighbor, that he had interviewed the Respondent earlier that morning (April 17, 2018) and the Respondent admitted that he had told somebody that “he would like to hurt her, but he was just angry.” Tr. 212-213.

Dr. Eshkenazi was concerned that the Respondent might do something to his neighbor, adding it is “something to be taken very seriously, and to be very concerned about.” Tr. 46.

Panel of the New York City Housing Authority Page –3 In re: Civil Serv. Law §72 Proceeding, “Anonymous,” Customer Information Representative

Suicide

We are extremely concerned by the Respondent’s threats to take his own life which he made to three co-workers. This is contrary to the ALJ’s conclusion that the

Respondent's remarks to Ms. Ellis and Ms. Tennyson, while unsettling, provided no indication that respondent could not perform his job duties. At most, respondent's statement that he didn't think he could continue or wanted to end it seemed to be an expression of extreme despondency, as he himself explained, and not a threat of workplace violence. In fact, the statement "I can't go on like this" is a common expression of despair and would not typically be construed as a threat of suicide.

R&R 11.

Ms. Ellis testified that the Respondent told her “that he had reached a stage where he felt like killing himself” because he could not escape from the vibrations. Tr. 91. She was concerned for the safety of the Respondent and for staff because of his expressed desire to commit suicide. She described other staff members as being concerned and scared. Tr. 98-99.

The Respondent admitted that he had told Ms. Ellis that he felt like taking his own life. He also testified that he felt despondent. Tr. 257, 258.

Melonie Tennyson, a co-worker (Customer Information Representive, Level 2), who the ALJ described as “a highly credible and reliable witness,” testified that one of her biggest fears was the Respondent committing suicide. Ms. Tennyson testified that the Respondent told her that “sometimes, you know, he feels like there's no end to what he's feeling. He's feeling the vibrations are like in his back and it's causing him physical pain so sometimes he feels like he could end his life over it.” Tr. 141. Ms. Tennyson was concerned for the Respondent

3 himself because he did tell me that, you know, sometimes it, it's 4 uncontrollable and he feels like he could commit suicide. I would 5 never want him to do that, especially with me knowing that he said 6 he was going to do it. As I said before, that was the reason I 7 reported it. I reported it because I felt that when he said it to 8 me, he said it to me for a reason. No one just says that just 9 like that, especially with the conversation that we were having. 10 Had he never mentioned that, maybe I would have thought twice. 11 But because he said it to me, I felt like, okay, maybe he's saying 12 it to me for a reason.

Tr. 150

Panel of the New York City Housing Authority Page –4 In re: Civil Serv. Law §72 Proceeding, “Anonymous,” Customer Information Representative

The Respondent, who had expressed suicidal thoughts to his co-workers on several occasions, is clearly not fit to perform the duties of his position in such a state. As Dr. Eshkenazi stated “well, when he says that he is, he feels like taking his own life. He feels that electronic warfare and drones around him, how much you think he can function and concentrate on his work? Zero.” Tr. 74. Dr. Eshkenazi testified that “[i]t's apparent he cannot function because if he believes, if he's delusional, if he feels people are following him, he certainly feels a great deal of anxiety, cannot concentrate, he cannot function and that “[i]t’s my opinion with a reasonable degree of medical certainty that at this point he cannot function at the workplace.” Tr. 52.

We are disturbed by a thread running through the ALJ’s R&R where he appears to fault the Respondent’s supervisor and co-workers for his remarks which “were not volunteered but were solicited by co-workers.” R&R 11. He continues, that “[i]t seemed highly improbable that, if returned to work, respondent would again share information about his health to his co-workers.” R&R 12. And, “that the respondent habitually kept his anxieties about the vibrations out of the workplace unless asked directly how he was feeling. . .” R&R 13. Finally, the Respondent “largely kept his feelings to himself, sharing them only when encouraged to do so. R&R 15.

Respondent was properly placed on an involuntary leave of absence pursuant to Civil Service Law §72(5)

In addition, we find that pursuant to Civil Service Law §72(5), there was probable cause for NYCHA to believe that the continued presence of the Respondent on the job represented a potential danger to person or property or would severely interfere with operations. Ms. Ellis observed that there were a number of recent incidents where the Respondent failed to recall information that he should have known and understood. Tr. 97. Ms. Ellis explained that as a call taker the Respondent is required to identify certain emergency situations so that he could notify the housing development who would have to immediately address those emergencies. Tr. 98. In addition, Dr. Richard Hempel from Mt. Sinai noted that the Respondent reported reports “chronic difficulty with memory.” Pet. Exhibit 3.

Ms. Ellis testified as to her concerns regarding the Respondent’s interest in committing suicide. Ms. Ellis testified:

22 A: My concern is for [the Respondent], for the safety of the 23 staff that I supervise and for myself. As a supervisor, we 24 supervise about, on any given day we have 90 persons in office 25 answering calls. The fact that he has expressed the desire to

1 commit suicide has gotten around the office. People are scared. 2 People are concerned. We do not want to have a situation where 3 [the Respondent] may be at work and decided that's the time for him 4 to commit suicide and additional people on the job being caught up 5 in the same thing is also for yourself. So you have a 6 responsibility, not only to [the Respondent], but to the staff that 7 you supervise, to NYCHA. This, this is the job that I have.

Tr. 98-99.

Panel of the New York City Housing Authority Page –5 In re: Civil Serv. Law §72 Proceeding, “Anonymous,” Customer Information Representative

Delusions of Persecution/Paranoid Ideation

Dr. Eshkenazi noted in his February 14, 2018 report that the Respondent described problems with his upstairs neighbor and the continuous hum, which causes vibrations in his bed. He wrote that it was clear the Respondent had some paranoid ideation and delusions of persecution. ALJ Exhibit 2, p. 3 of 4. Dr. Eshkenazi testified that the Respondent’s delusional disorder was a “potentially dangerous condition.” He noted that if a person suffering from a delusional disorder suspects that somebody at their work may try to hurt him, he “may want to attack him or just, or try to harm him.” Tr. 83. Dr. Eshkenazi recommended that the Respondent go for psychiatric treatment. Tr. 20.

Respondent’s Report of Being Followed

Ms. Tennyson recounted how on February 7, 2018, the Respondent described to her why he felt someone followed him to work that morning:

17 A: And I replied no again. And then he started to say that 18 he, he was followed to work. And I was, like, well, how do you 19 know that you were followed to work? I said because when we, when 20 you get off the train there's so much people, there's so many 2l different places to work over there, there's a lot of people that 22 get off the train and then everybody just branches off. And he 23 said that, you know, this person was following him, this guy, and 24 they made eye contact and, you know, as he was walking to work, 25 the person, you know, was behind him. So I asked him if when he 1 got to the ramp did the person come up the ramp with him. And he 2 said no, the person just continued to walk. So I said to him, 3 well, maybe the person wasn't following you. He was like, well, 4 no, I know the person was following me and that's probably why I'm 5 feeling the vibrations in here now because now they know where I 6 work so that was what he acquired [(sic)] to, you know, feeling 7 vibrations at that time.

Tr. 138-139. The Respondent incredibly testified that he never told Ms. Tennyson that he was being followed and that her claim as such was false. Tr. 280.

Ms. Tennyson testified that the Respondent “doesn’t feel that, you know, this is something that’s imaginative. He feels like this is something that’s actually happening to him.” Tr. 139-40. Ms. Tennyson reported her conversation with the Respondent to her supervisor out of concern that if the Respondent was not being followed, as she had concluded, then she would not want him to “harm someone else because he thinks that the person is following him.” Tr. 140-41.

Panel of the New York City Housing Authority Page –6 In re: Civil Serv. Law §72 Proceeding, “Anonymous,” Customer Information Representative

“FBI and CIA”

Ms. Ellis also wrote that “[the Respondent] then brought out his cell phone with information on the FBI and CIA and informed me that was part of the problem as they were also using electronic warfare and drones on him.” ALJ Exhibit 1, p. A-1.

ALJ Spooner found that Ms. Ellis was a less reliable witness than the Respondent or Ms. Tennyson.

First and foremost, Ms. Ellis inaccurately asserted at the trial that the web pages offered to her by respondent attributed energy weapons to the CIA and the FBI, even though the pages had no mention of either organization. As noted by respondent, Ms. Ellis seemed to be projecting experiences she had with her ex-husband's delusional disorder on to respondent.

R&R 10. However, ALJ Spooner’s finding that the testimony of Ms. Ellis was less reliable than the Respondent’s is flawed. Ms. Ellis recorded in her memorandum and testified as to what the Respondent had told her, rather than what was on the cell phone site. ALJ Exhibit 1, p. A-1 and A-4, Tr 92, 114. The ALJ failed to note that Respondent himself testified that he had shown Ms. Ellis on his cell phone the site that had information on the CIA and FBI which the Respondent described as “just one of the many things on that site.” Tr. 258-259. When Dr. Ellis examined the Respondent on April 17, 2018, the morning of the second date of the hearing, the Respondent indicated to him that the CIA and the FBI may be part of the explanation for what was happening to him. Dr. Ellis testified that the Respondent had told him that he had told this to a co-worker or supervisor. Tr. 177-79. Dr. Felix Ellis’s Psychiatric Evaluation

We note that the psychiatric evaluation conducted by Dr. Felix Ellis on March 6, 2018, was superficial and inadequate. Dr. Ellis admitted that he never asked for any documentation from the Respondent and therefore did not have the benefit of reviewing Attachment “A” or Dr. Eshkenazi’s Report when he examined the Respondent. He stated that when he meets with an employee there is never an evaluation from the City doctor. Tr. 189, 190, 200, 202. We are disturbed to learn that Dr. Ellis limited his evaluation to the employee’s own account and did not utilize the available evaluation by Dr. Eshkenazi or the available Attachment “A” which was hand-delivered to the Respondent on February 12, 2018. We do not accept Dr. Ellis’s explanation that all he was determining was whether the Respondent was fit to return to work or not. As Dr. Eshkenazi testified, in order to perform a competent psychiatric evaluation it would be necessary to obtain background information and try to get information of the condition at present. Tr. 23. Dr. Ellis’s March 6, 2018 psychiatric evaluation of the Respondent made no mention that he had diagnosed the Respondent as “suffering from a persecutory type of delusional disorder.” Tr. 168, 194.

It was only after Dr. Ellis met with the Respondent on the morning of April 17, 2018 (the

second hearing date), that he recommended to the Respondent that he seek psychiatric treatment.