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Housing Auth. v. Barone

OATH Index No. 1122/04 (May 23, 2005)

Petitioner established that respondent is currently unfit to perform the duties of his position, by reason of disability. Thus, ALJ recommended that respondent be placed on a post-hearing leave of absence pursuant to section 72(1) of the Civil Service Law.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

HOUSING AUTHORITY

Petitioner

- against -

STEPHEN BARONE

Respondent

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REPORT AND RECOMMENDATION

FAYE LEWIS, Administrative Law Judge

This proceeding was referred by petitioner, Housing Authority, pursuant to section 72 of the Civil Service Law. Respondent, a housing assistant, is alleged to be mentally unfit to perform the duties of his position.

A hearing was conducted before me on January 10, 2005, February 2, 2005, and April 13, 2005. Petitioner called Dr. Azariah Eshkenazi as its expert witness and also introduced the testimony of four housing managers and the Staten Island borough manager. Respondent testified in his own behalf. The matter was adjourned twice so that respondent could present the testimony of Mr. Mack, a social worker at the South Beach Psychiatric Center whom respondent testified he sees regularly for counseling. However, Mr. Mack failed to appear to testify.[1]

Dr. Eshkenazi, a psychiatrist who is in private practice and who is an assistant clinical professor of psychiatry at Mount Sinai, testified that he examined respondent on November 9, 2004, in order to evaluate his psychiatric condition. Dr. Eshkenazi estimated that the examination lasted “probably close” to one hour (Tr. 23). Based upon the examination, Dr. Eshkenazi concluded that respondent is unfit to perform the duties of his position, which, as described by respondent, included evaluating clients and trying to help them with their housing. Throughout the interview, respondent appeared “very tense” and had “rambling speech,” and at times, Dr. Eshkenazi could not follow his thought process (Tr. 14). Respondent also said that the

whole city was against him because he came from a royal family. When Dr. Eshkenazi began reading attachment A to respondent, containing memoranda and e-mails from his supervisors, respondent started to cry. He then became “very angry and agitated” and indicated that he was suing the city for fifty million dollars and expects to get the money quickly because of connections that he has with the media (Tr. 11, 13). According to Dr. Eshkenazi, “[t]he fluctuation of moods were very rapid between crying and getting very angry” (Tr. 13). Dr. Eshkenazi told respondent that he seemed “very nervous” and respondent replied that Dr. Eshkenazi made him nervous. Dr. Eshkenazi testified that he allows for a “certain amount of anxiety” during these interviews but that respondent’s level of anxiety was “well above and beyond that” (Tr. 11). Respondent denied any psychiatric treatment, either inpatient or outpatient, but advised Dr. Eshkenazi that he was taking Wellbutrin, which is an anti-depressant medication (Tr. 12).

Asked to detail the main reasons why he believed respondent was not fit to perform his job, Dr. Eshkenazi replied:

. . . The major symptoms that I have in mind is the fact that there was disturbance in his thinking process, becoming often circumstantial, talking around and around, not coming to the point. The fact that his moods fluctuated in such drastic ways continuously, the difficulties concentrating, the restlessness and agitation that he experiences, the feelings of grandiosity and paranoid ideation that he has

(Tr. 17).

In his report, Dr. Eshkenazi wrote as a “diagnostic impression” “rule out bipolar disorder with psychosis.” He termed this a “tentative diagnosis.” He explained that bipolar disorder is a “cyclical mood condition” that affects a person’s thinking, mood, and behavior (Tr. 37). The cycles are periods of hyperactivity followed or preceded by periods of depression (Tr. 37). Psychosis is a “disturbance in the thinking process” and in the “emotional response of the patient to what’s going on” (Tr. 37). Dr. Eshkenazi believed that respondent exhibited symptoms of psychosis: namely, the “delusions of grandeur,” the feeling that the City is against him because he comes from a royal family, the $50 million dollars he expects to recover from the city, and respondent’s “circumstantial and tangential thinking” (Tr. 38). Dr. Eshkenazi thought that respondent might have bipolar disorder because respondent’s mood fluctuated very quickly in his office, “from being very angry” to starting to cry “without any apparent reason” (Tr. 39). However, he was unable to conclude that respondent in fact suffered from bipolar disorder, in part because respondent said that he has a hyperactive thyroid, which can sometimes give rise to some of the symptoms that he was exhibiting, and in part because the onset of bipolar disorder usually occurs when people are in their 40s, younger than respondent, who is 52 years of age. He explained that in order to rule out bipolar disorder in respondent, a psychiatrist would have to explore respondent’s history, including his medical records, to determine whether he has suffered from periods or cycles of hyperactivity as well as depression (Tr. 36).

Dr. Eshkenazi believed that that respondent should have a thorough physical examination to address any thyroid problem (Tr. 11). He explained that a hyperactive thyroid can cause someone to develop physical conditions, such as palpitations, sweating, restlessness, and jitters (Tr. 35). On the other hand, anxiety and tension are usually not symptoms of thyroid disorder, but they are consistent with bipolar disorder or other psychiatric condition. Similarly, fast and circumstantial thought processes are not a symptom of hyperthyroid but are instead related to “psychotic symptoms.” In turn, fast or racing thought processes would likely lead to difficulty concentrating or focusing (Tr. 34). Fast and pressured speech is “usually” attributable to psychotic symptoms, but “theoretically” can be the result of hyperthyroid. Dr. Eshkenazi concluded that “the possibility exists” that respondent has an existing thyroid condition that is exacerbating or contributing to the symptoms otherwise attributable to his psychiatric condition (Tr. 35). In any event, however, he found that respondent “has a disturbance in the thinking process and he’s unable to function” (Tr. 33).

Dr. Ashkenazi also testified that if respondent does have bipolar disorder, he is “likely to improve,” but that it would take four to six months to stabilize him on medication. He explained that Wellbutrin is for treatment of depression, and would not help with the manic phase of a bipolar disorder (Tr. 39).

Respondent’s responsibilities as a housing assistant are outlined in the job description, or “general statement of duties and responsibilities,” for a housing assistant (Pet. Ex. 3; Tr. 43, 46- Reilly). This statement indicates that a housing assistant works “in the administration of the public housing program” and lists ten “examples of typical tasks,” as follows: to interview applicants to determine their eligibility for public housing; to investigate and verify information relating to income, employment, and the like; to assist in solving problems and complaints of tenancy, and to collect rents; to make periodic inspections of apartments and housing property; to inform tenants of housing rules; to cooperate in project and community activities; to relocate and re-house tenants when appropriate; to collect and analyze housing data, to prepare reports, and to testify in court on behalf of the agency when necessary (Pet. Ex. 3). According to Ms. Shapiro, the housing manager at Todt Hill, typically fifty percent or more of a housing assistant’s time is spent in interaction with tenants: interviewing tenants, collecting rent, making referrals for social services for tenants in need of help, and the like (Tr. 84).

It was undisputed that respondent is a “floater” - - that is, he is assigned by the Staten Island borough office to assist in the management offices of different developments as needed. The record established that respondent worked in at least four such developments since the summer of 2004. The housing managers at each of these developments testified on petitioner’s behalf. They are Joseph Reilly, manager at Stapleton Houses; Lois Shapiro, manager at Todt Hill Houses; Helaine Goodhartz, manager at Berry Houses, and Scott Marcus, manager at Cassidy Houses. Respondent seems to have spent the most time at Mr. Marcus’s development. Mr. Marcus testified that respondent has been working at Cassidy Houses since late October or early November 2004 (Tr. 136); respondent agreed that he has spent most of his time since October 2004 at Cassidy (Tr. 168).

Mr. Marcus testified that he had requested a housing assistant from the borough office because an outside contractor was performing work at a particular building and he needed an assistant to safeguard the apartments: that is, to sit inside the apartments where the contractor was performing work to ensure that the tenants’ possessions were not tampered with. From November 2004 through January 2005, respondent spent about 75% of his time safeguarding apartments. This is not a regular housing assistant duty, but was necessitated by the large amount of work being done by the contractor (Tr. 140-41). Respondent also performed other tasks listed on the job description for housing assistant: he has investigated and verified information relating to income, employment, and the like, assisted in solving problems of tenancy, adjusted complaints, collected rents, and made periodic inspections of apartments and housing property. Respondent does not interview applicants to determine their eligibility for public housing because applicants are dealt with through a separate office, the application office. Respondent was also working on some annual review material. According to Mr. Marcus, respondent did not perform the annual reviews correctly. Several reviews were incomplete because they were done without reference to the tenant folder, which contains information that must be considered, such as the tenant’s income and family composition from the previous year. Respondent also completed some annual reviews without having first obtained a third party verification of other sources of income (such as verification from the Social Security Administration of social security income). Respondent told Mr. Marcus that he did not realize that he needed this verification. Around Christmas-time, respondent was instructed to re-do these annual reviews, but was not given a time frame by which to do so. To Mr. Marcus’s knowledge, as of early February 2005, respondent had not revised the annual reports (Tr. 138, 139, 143).

Aside from Cassidy Houses, it appears undisputed that respondent spent a minimal amount of time working at Todt Hill, perhaps two to four days in the fall of 2004, and at Berry Houses, perhaps six or seven days in the summer of 2004 (Shapiro: Tr. 91-92; Goodhartz: Tr. 102; Barone: Tr. 167). The amount of time respondent spent at Stapleton Houses, the remaining development, is in dispute: Mr. Reilly testified that over the summer of 2004, respondent was assigned to Stapleton for approximately 20 to 30 workdays (Tr. 76, 77). By contrast, respondent testified that he has worked on “very rare” occasions for Mr. Reilly (Tr. 177). On this point, Mr. Reilly’s testimony was more credible than respondent’s, whose testimony was very conclusory and was tainted by his tendency to lump Mr. Reilly, Ms. Goodhartz, and Ms. Shapiro together as the three managers with whom he dislikes working.[2] Thus, it appears that respondent spent a substantial amount of time working under Mr. Reilly’s supervision in the summer of 2004.

Mr. Reilly testified that he has known respondent for between four and five years. Respondent was a “floater,” working out of the Staten Island Borough office, who was assigned to assist the local management offices. Over the past summer, continuing through September 2004, respondent was assigned to Stapleton Houses for approximately 20 to 30 workdays (Tr. 76). Mr. Reilly assigned respondent tasks relating to apartment inspections (Tr. 42, 48, 49). Mr. Reilly he did not feel that he could give respondent tasks that were “as difficult or as involved” that he might give to a housing assistant regularly assigned to his location (Tr. 49). He would not give respondent work related to annual reviews, because he believed that respondent had made a lot of errors in that area, and was “maybe not capable of doing that type of work.” He also would not give respondent “an exceptionally difficult termination interview,” or “anything that’s really involved and . . . could become confrontational between the tenant and the management office” (Tr. 50). There were two reasons why: first, respondent was not very familiar with the tenants, because Stapleton was not his regular location, and second, respondent is “a very nervous man” and “fidgety” and “[s] sometimes he doesn’t get directly to the point” (Tr. 51). Mr. Reilly believed that it is “difficult” for respondent to “interact a lot” with tenants (Tr. 51).

Mr. Reilly identified two areas in which respondent’s work had been problematic. The first involved letters that were sent to tenants regarding the throwing of articles or garbage from apartment windows. The letters were form letters on which respondent had to fill in the name of the tenant, the “line” of the building in which the tenant resided, and the tenant’s address. On some of the letters (introduced collectively as Exhibit 7), respondent had written an address that was inconsistent with the “line” that he identified “elsewhere” in the letter[3] (Tr. 70-71). On another occasion, respondent also made errors in addressing envelopes to tenants. These letters were returned because they went to the wrong apartments (Tr. 53, 72; Pet. Exs. 9, 10).