Dep T of Correction V

- XXX-

Dep’t of Transportation v. Small

OATH Index No. 450/06 (Dec. 27, 2005)

Evidence found insufficient to support finding that clerical associate was unfit. Petition dismissed.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF TRANSPORTATION

Petitioner

- against -

NORMAN SMALL

Respondent

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REPORT AND RECOMMENDATION

JOHN B. SPOONER, Administrative Law Judge

This is a disability proceeding referred by the petitioner, the Department of Transportation, pursuant to section 72 of the New York State Civil Service Law. The petitioner alleges that respondent Norman Small, a clerical associate, is mentally unfit to perform the duties of his position and should be placed upon an involuntary leave of absence.

At the hearing held before me on September 15 and November 17, 2005, petitioner presented the testimony of respondent's supervisor and a psychiatrist, who examined respondent and concluded he was unfit. Respondent called another psychiatrist and testified on his own behalf.

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.

ANALYSIS

In this case, petitioner seeks to place an employee on involuntary leave due to his alleged unfitness. In support of this application, petitioner presented psychiatric evidence that respondent suffered from a bipolar disorder. It also offered evidence of respondent's emotional outbursts to co-workers, inefficient work habits, and poor attendance. For a number of reasons, I find that the weight of the evidence establishes that, at the time hearing, respondent was fit to perform his duties.

The work incidents which prompted the Department to order a psychological evaluation for respondent occurred in March, May and June 2005 and involved arguments with co-workers. Traffic device maintainer Alvin Llewellyn, respondent's supervisor, testified that respondent's primary duties were filing papers and making photocopies. On one occasion a co-worker named Linda Dixon brushed respondent's chair, triggering an argument between the pair (Tr. 27). On another occasion, respondent blew up when a security guard tried to conduct a security scan (Tr. 27). Mr. Llewellyn stated that he gave respondent "verbal reprimands" to show him "the error of his ways" (Tr. 27). Deputy Chief Anthony Alfano testified that he was aware of confrontations respondent had with a security guard. A disciplinary charge concerning one of these arguments resulted in respondent accepting a $100 fine in March 2005. In May 2005, Mr. Alfano overheard respondent "screaming" at another supervisor that he was "not breaking the copier" and "just let me do my job." Respondent said he was "tired of this blank, blank." When Mr. Alfano approached respondent and told him to calm down, respondent told him to write him up (Tr. 51). On June 13, 2005, Mr. Alfano witnessed respondent having an argument with union shop steward Anthony Jones (Tr. 51, 53).

Based upon these incidents, respondent was evaluated by a psychiatrist to determine his fitness to continue to perform his work duties. Taken in the most favorable light, the testimony of petitioner's expert supported a finding that respondent's mood swings made him temporarily unfit to work. Dr. Azariah Eshkenazi, a psychiatrist retained by petitioner to assess respondent's fitness, testified that he examined respondent on July 14, 2005, and subsequently completed a written evaluation (Pet. Ex. 1) finding that respondent had a "bipolar disorder" and "generalized anxiety."[1] During the July 2005 interview, respondent told Dr. Eshkenazi that he had stopped taking lithium, because he does not believe he has a bipolar disorder. Instead of lithium, respondent recently began taking trileptal, a mood stabilizer, and effexor, an antidepressant. Dr. Eshkenazi observed that, during the interview, respondent's conversation became circumstantial and that he exhibited "anger over minor things," although Dr. Eshkenazi offered no details as to what respondent said (Tr. 12). Dr. Eshkenazi spoke with respondent's psychiatrist, Dr. Mark Gurtovy, who concurred that respondent had a bipolar disorder and later agreed that respondent should be given a tranquilizer for his anxiety.

Dr. Eshkenazi concluded that, as of the July 2005 interview, respondent's psychological problems rendered him unable to resume his duties with the Department. Dr. Eshkenazi noted, however, that respondent should be reevaluated in three months to determine whether a change in medication had had a positive effect such that he could return to work.

In fact, it was undisputed that, a few months after Dr. Eshkenazi's interview with respondent, respondent was prescribed an additional drug called abilify in an effort to counteract the problems observed by Dr. Eshkenazi. According to respondent's expert, as of November 2005, this new drug had removed all of the symptoms observed by Dr. Eshkenazi. Dr. Antal Borbely, who had also earlier examined respondent in 1991, examined respondent during two sessions on September 8 and 13, 2005. In a written report (Resp. Ex. A), Dr. Borbely generally concurred with Dr. Eshkenazi's diagnosis that respondent has a bipolar disorder. He noted that, during the September evaluation, respondent displayed a loud voice, "pressured" speech, tangential thinking, and increased psychomotor activity. Dr. Borbely, like Dr. Eshkenazi, spoke with Dr. Gurtovy, respondent's treating psychiatrist. According to Dr. Borbely, Dr. Gurtovy agreed to prescribe an antipsychotic drug called abilify for respondent. Dr. Gurtovy and Dr. Borbely both believed that this additional drug should stabilize respondent's mood swings, which had worsened since Dr. Gurtovy convinced respondent to cease taking lithium in May 2005. Dr. Borbely stated that, as of the date of the November 17 hearing, respondent's symptoms had disappeared. Respondent's voice was not inappropriately loud, he exhibited no psychomotor agitation or pressured speech, and displayed an euthymic, or stable, affect. Dr. Borbely stated that, based upon this improvement in respondent's condition, respondent would be able to perform his job duties for the foreseeable future.

Respondent testified that he has worked in the collections unit for some two and one-half years and at the Department for several years before that. He stated that his former psychiatrist, Dr. Rudy, had prescribed lithium, but had never clearly communicated a diagnosis of a bipolar disorder. In May 2005, after having difficulty getting Dr. Rudy to return repeated telephone calls, respondent consulted a different psychiatrist, Dr. Mark Gurtovy. Dr. Gurtovy evaluated respondent and concluded that respondent's current medication, consisting of lithium, was inappropriate. Dr. Gurtovy prescribed instead trileptal and effexor. Dr. Gurtovy also told respondent that he had a bipolar disorder, a diagnosis which respondent accepts because he is aware he has mood swings. After Dr. Gurtovy switched his medication in September 2005, respondent feels much better. This change has been commented upon by respondent's co-workers. As for his punctuality, he stated that this was due to transportation complications which had been alleviated by his transfer.

The evidence established that from May through September 2005 respondent was placed on a drug to control his bipolar condition and that during this period he was anxious and highly irritable. When the medication was modified in late September, the anxiety and irritability disappeared. The proof that respondent lost his temper on two occasions in May and June 2005 fell short of demonstrating that respondent could not perform his job duties even prior to September 2005. Neither incident was violent and respondent apparently calmed down soon afterwards. Taken in isolation, these incidents suggest a problem to be monitored, but do not establish a condition preventing respondent from working. Furthermore, the fact that the angry episodes ended in September after being controlled by medication precludes a finding of current unfitness to support a future involuntary leave. In fact, Dr. Eshkenazi's testimony and report also indicated that respondent's medication needed to be adjusted and that he should be re-evaluated three months after the July 2005 interview. I fully credited Dr. Bourbely's contemporary assessment that, as of the time of the continued hearing date in November 2005, respondent's medication was managing his bipolar disorder, reducing his mood changes and his anxiety level. Since these two symptoms were the factors relied upon by Dr. Eshkenazi in finding respondent unfit three months earlier, there was no proof to support a finding that, as of November 2005, respondent was unable to work.

The remainder of petitioner's evidence, consisting of descriptions of other problems noted by respondent's supervisors, was being dealt with by disciplinary penalties and seemed an inappropriate basis on which to ground a finding of current unfitness. Mr. Llewellyn stated that respondent's overall work performance was poor in that there were days when he "didn't work at all" (Tr. 25). On other days, respondent worked well. When Mr. Llewellyn reprimanded respondent about not working, respondent complained that his arm hurt or his head hurt or he was tired (Tr. 25). Respondent insisted on reading the newspaper each morning before starting to perform any of his duties (Tr. 26). The "biggest problem" with his work was that he took eight hours to perform tasks which should have taken 20 minutes. In a written evaluation (Pet. Ex. 4) completed on March 2005, Mr. Llewellyn rated respondent as "conditional" due to two factors: failure to perform clerical assignments "in a timely fashion" and attendance problems, including 27 instances of lateness and 8 undocumented sick days. As to respondent's performance of his primary job tasks of doing clerical work and answering the telephone, Mr. Llewellyn rated him as "good." Respondent's evaluation from 2003 also rated him as "good" in all categories.

Mr. Alfano, upon receiving supervisory complaints concerning respondent, counseled him about his excessive use of undocumented sick leave. Respondent's attendance records (Pet. Ex. 2) for the year and a half preceding the hearing indicate that he was late 31 times and took undocumented sick leave for 10 days. In February 2005, respondent accepted a penalty of attending time management courses in settlement of disciplinary charges concerning his latenesses in 2004. According to Mr. Llewellyn and Mr. Alfano, respondent's poor attendance had an adverse effect upon the moral of his co-workers (Llewellyn: Tr. 35; Alfano: Tr. 58).

Respondent's absenteeism and lateness in 2004 did not constitute proof of unfitness. Notably, respondent's attendance problems had formed the basis of separate disciplinary action brought by the agency only a few months before the hearing and an insufficient amount of time had elapsed to determine whether discipline had improved respondent's attendance. Moreover, while it may be true that employees with psychological problems often use higher than average amounts of sick leave, I reject petitioner's argument that this higher sick leave usage makes them unfit. Rather, these workers would be subject to discipline for excessive absence and lateness, just as would other workers.

The assessment of respondent's supervisor as to respondent's poor work productivity also failed to establish unfitness. The supervisor's testimony indicated only that respondent com-pleted his tasks much more slowly than other workers, without providing proof that respondent's slowness prevented him from performing the minimum work required for his position or that this slowness was caused by respondent's psychological condition.

Finally, petitioner argued that respondent's tendency to cease taking his medication rendered him unfit because the medication was essential to preventing outbursts such as those that occurred last May and June. Respondent himself readily admitted that, in 2003, he did cease taking lithium until advised to do so by his psychiatrist. Dr. Borbeley also stated that many bipolar patients stop taking medication when in an elated mood, since the disorder often causes an inflated sense of well-being and invincibility. This argument seems to have little applicability to the circumstances of respondent's condition in 2005, since the uncontroverted proof indicates that respondent never stopped taking his medication at any time in 2005. Insofar as petitioner may be arguing that a tendency to reject medication renders all employees with a bipolar disorder unfit, I must reject such an argument as inconsistent with both the facts of respondent's individual history and the legal mandates of the Americans with Disabilities Act, which prohibits discrimination against employees with mental, as well as physical, disabilities.

In sum, I find that petitioner's proof was insufficient to establish that respondent was unfit and recommend that the petition be dismissed.

FINDING AND CONCLUSION

The petitioner should be dismissed in that petitioner's proof was insufficient to prove by a preponderance of the credible evidence that respondent Norman Small is unfit to perform his duties as a clerical associate.

John B. Spooner

Administrative Law Judge

December 27, 2005

SUBMITTED TO:

IRIS WEINSHALL

Commissioner

APPEARANCES:

TONYA MORGAN, ESQ.

ERICA CARRAWAY, ESQ.

Attorneys for Petitioner

DIANA YORK, ESQ.

Attorney for Respondent

[1] In the report, Dr. Eshkenazi stated that he had previously examined respondent in August 2003 and found that he was able to work.