-15-

Human Resources Admin. v. Oommen

OATH Index No. 1267/05 (July 29, 2005)

Agency failed to prove that eligibility specialist improperly denied purported applicant for food stamp benefits a late-day appointment and illegally revealed confidential applicant information. ALJ conformed charges to the proof and found that agency failed to prove charges either as pleaded or as amended. Dismissal of charges recommended.

______

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

HUMAN RESOURCES ADMINISTRATION

Petitioner

- against -

OOMMEN OOMMEN

Respondent

______

REPORT AND RECOMMENDATION

JOAN R. SALZMAN, Administrative Law Judge

Petitioner, the Human Resources Administration, brought this disciplinary proceeding pursuant to section 75 of the Civil Service Law. The petition alleges that respondent, an eligibility specialist at the Jamaica Food Stamp Center, refused a “spotter’s” request for a same-day food stamp interview for benefits at 5:30 p.m., during extended operating hours when 5:30 p.m. interview appointments were allegedly required by agency rules (Pet. Ex. 2). He allegedly failed to perform required duties, violated agency procedures and rules, violated confidentiality rules, was insubordinate, and engaged in conduct detrimental to the agency. A spot-checker, or spotter, is an agency employee, here a manager, who poses unannounced as a food stamp applicant to test whether agency employees are following agency procedures and court mandates to provide required appointments, interviews and services to applicants (Tr. 24).

A hearing was held before me on April 27 and June 7, 2005. Petitioner presented three witnesses and respondent and his union representative testified on his behalf.

For the reasons stated below, I find that petitioner has failed to prove the charges by a preponderance of the credible evidence and recommend dismissal of the charges.

PRELIMINARY ISSUE

Cross-Motions to Amend and to Dismiss Charges

Concerning the Denial of a 5:30 p.m. Appointment

The charges arise from an incident that occurred at the agency’s Jamaica Food Stamp Center on March 26, 2004. Petitioner claimed that respondent, while working in a reception area, improperly denied an applicant for food stamps an appointment for an interview at 5:30 p.m. the same day and showed the applicant confidential information. It became clear soon after the trial commenced that the spotter arrived at the center after 5:30 p.m. on March 26, 2004, either at 5:40 p.m., according to the spotter (Pet. Ex. 1; Tr. 11), or 5:45 p.m., according to respondent (Tr. 49). Respondent moved to dismiss the charges concerning scheduling late-day appointments on the basis that there was no proof that respondent denied a 5:30 p.m., same-day appointment. The relevant charge reads: “On or about March 26, 2004, you refused a spotter’s request for a same day Food Stamp interview by telling him that staff was limited and showing him that the last interview on your 123 (appt. schedule form) was 5:00 p.m., so he could not have his requested interview at 5:30 p.m. even though the Center is open until 6:00 p.m. This is a violation of Agency rules and procedures” (Pet. Ex. 2).

The proof was not about denial of a same-day interview at 5:30 p.m., as pleaded, but rather concerned respondent’s alleged misstatement of the agency policy, in that respondent granted a 5:00 p.m. appointment within five days, but refused the spotter an appointment at 5:30 p.m. for a future weekday (Tr. 30-31). Petitioner cross-moved to cure the defect in the charges, requesting that the pleadings be conformed to the proof. Counsel for petitioner asserted that the error in the charges was typographical (Tr. 147). I reserved decision. Upon consideration of the proofs and the arguments of counsel, I do not agree that the error was merely typographical; it was substantive. This is so because “same-day appointment” has a different meaning from “future appointment,” and such an error could, in some circumstances, be fatal due to unfair surprise to a respondent.

“Amendment of charges in administrative proceedings, where pleadings serve only a notice function, is freely granted absent irremediable prejudice.” Human Resources Admin. v. St. Louis, OATH Index No. 895/05, at 2-3 (May 26, 2005) (amendment denied where pleadings alleged refusal of eligibility specialist to cover reception desk while another employee went to lunch, but proof concerned refusal to conduct a pre-screening interview during another employee’s lunch hour). See generally Murray v. Murphy, 24 N.Y.2d 150, 157, 299 N.Y.S.2d 175, 181 (1969) (“no person may lose substantial rights because of wrongdoing shown by the evidence, but not charged”). Respondent’s counsel’s objection that he had prepared only for the charges as written, and that the pleadings failed to afford fair notice that petitioner was really claiming that respondent had denied a future, late-day, 5:30 p.m. appointment to a spotter, had some appeal. However, it is also true that the same investigation of the events of March 26, 2004, would have been required to prepare the defense concerning the very same change of agency hours and procedures that is the gravamen of the charges, had the charges been pleaded correctly, so that respondent was not really prejudiced in his trial preparation. The same documents and witnesses were required to present the defense that respondent had followed agency procedure as to late-day appointments.

The notice of charges must sufficiently apprise the party of the charges against him so as to enable him adequately to prepare and present a defense. Fitzgerald v. Libous, 44 N.Y.2d 660, 405 N.Y.S.2d 32 (1978); Rounds v. Town of Vestal, 15 A.D.3d 819, 790 N.Y.S.2d 561 (3d Dep't 2005); Dep’t of Housing Preservation and Development v. Mendoza, OATH Index No. 556/05, at 6-7 (Feb. 17, 2005) (conforming pleadings to proof where respondent had fair notice that charge concerned eviction proceeding, whether denominated as holdover or non-payment proceeding). In the absence of prejudice to respondent, I hereby grant the motion to amend the charges to conform to the proof. I note, however, that such errors in pleading are disfavored and are to be avoided. I also grant the motion to dismiss and recommend dismissal of all charges based on the agency’s failure to prove the charges either as pleaded (in that it is obvious that respondent could not have denied a same-day interview at 5:30 p.m. on March 26, 2004, given that the spotter did not arrive until 5:40 p.m. or later that day), or as amended, because there was insufficient proof that respondent violated agency rules and procedures by denying the spotter a future, 5:30 p.m. appointment.

ANALYSIS

Federal Litigation

The agency’s procedure for screening applicants for emergency food stamps has been the subject of protracted federal litigation requiring the agency to improve its delivery of services to applicants for food stamps and other assistance. See Reynolds v. Giuliani, 35 F. Supp. 2d 331 (S.D.N.Y. 1999), modified in part, 43 F. Supp. 2d 492 (S.D.N.Y. 1999), later decision, 118 F. Supp. 2d 352 (S.D.N.Y. 2000); later decision, No. 98-8877, 2005 U.S. Dist. LEXIS 2743 (S.D.N.Y. Feb. 14, 2005) (permanent injunction granted requiring expedited food stamp service within five days). The plaintiffs in Reynolds presented compelling evidence that agency receptionists routinely turned away applicants who arrived at food stamp centers after mid-day, regardless of their emergency needs. 35 F. Supp. 2d at 345. In response to the class action lawsuit, the agency took corrective action and revamped its procedures. To monitor compliance with those corrective measures, the agency sends out spotters, who pose as applicants for emergency food stamps and other benefits. Additional litigation concerning alleged failure by the agency to provide food stamps to eligible households continues. See, e.g., Williston v. Eggleston, 2005 U.S. Dist. LEXIS 14307 (July 19, 2005).

The Spotter’s Visit

The essential facts concerning the spotter’s interaction with respondent, Mr. Oommen, were not in dispute. Kevin Baldwin, Deputy Regional Manager of the Family Independence Administration, Brooklyn Region, a fifteen-year agency manager overseeing public assistance, not food stamps, was the spotter in this matter (Tr. 9-10, 20). He went to the Jamaica center to see if he could get a late hour appointment, at 5:30 p.m. or a Saturday appointment (Tr. 10, 15). He described that center as a late hour center, meaning that it was open until 6:00 p.m., as compared with other centers open until 5:00 p.m. weekdays (Tr. 10). The center is also open between 9:00 a.m. and 5:00 p.m. on Saturdays (Tr. 11). Mr. Baldwin summarized from contemporaneous notes his visit to the Jamaica Food Stamp Center in Queens on Friday, March 26, 2004, in an email the following Monday, March 29, 2004 (Tr. 21-22). The parties agreed that Mr. Baldwin arrived at the center at 5:40 or 5:45 p.m. (Pet. Ex. 1; Tr. 11, 49), and that his late arrival precluded a same-day 5:30 p.m. interview appointment.

Mr. Oommen, the receptionist on duty, testified that he gave Mr. Baldwin an application as well as a one-page form to pre-screen him in an expedited fashion for food stamp eligibility (Tr. 51-56; Resp. Ex. D). According to Mr. Baldwin, he asked Mr. Oommen if he could mail or fax the application. Mr. Oommen told him that he would have to make an appointment and gave Mr. Baldwin a post-it with the complete address and fax number, and a pre-printed business card size paper with the phone numbers to call for an appointment. Mr. Baldwin returned with the completed application and requested a “late appointment (5:30 p.m.)” (Pet. Ex. 1). Mr. Baldwin asked if he would be seen that night on an emergency basis, March 26, 2004, “and the receptionist indicated [he] would get an appointment” (Pet. Ex. 1; Tr. 50). Mr. Oommen showed Mr. Baldwin that the latest appointment on his sheet was 5:00 p.m. Mr. Baldwin asked for a later appointment and Mr. Oommen “explained that almost everyone leaves at 6:00 p.m.” (Pet. Ex.1). Mr. Baldwin then asked for a Saturday appointment, and Mr. Oommen, according to Mr. Baldwin’s email account, told him that there was limited staff, but that he could schedule Mr. Baldwin for an appointment on Saturday, March 27th, at 2:00 p.m. Mr. Baldwin had indicated on the application that he “was a family of three and earned $540. a week” (Pet. Ex. 1). His email went on: “The receptionist showed me an income eligibility chart and explained that I would not be eligible by the income guidelines. He said that I could still apply but I would not be eligible . . . . I was given the Food Stamp appointment notice and documentation guide indicating the documentation I must provide, with an appointment for April 1, 2004 at 5:00 p.m. Overall, the receptionist was courteous and professional” (Pet. Ex. 1) (emphasis supplied).

Mr. Baldwin went to the center on instructions from Kathy Parker, an assistant to Jacquelyn Flaum, Assistant Deputy Commissioner, who oversees operations of public assistance and food stamp offices (Tr. 13-14). He asked for a 5:30 p.m. appointment on “any day” of the week (Tr. 16), because the agency was trying to make sure that working people were able to gain access to food stamps (Tr. 22). He told respondent that he worked and needed to come to the center after work (Tr. 16), but that respondent replied that he did not have any appointment that late. Although Mr. Baldwin recalled that there was no one in the waiting room (Tr. 12), Mr. Oommen recalled that there was a line of five or six or seven applicants waiting to be seen (Tr. 49), and that it was 6:00 p.m., closing time, when Mr. Baldwin returned to him with the application (Tr. 50, 54, 67). This discrepancy is not significant because Mr. Oommen pre-screened Mr. Baldwin, after hours,[1] to determine whether he had an urgent need for an interview that same day. Mr. Oommen testified that screening for emergency need was “the most important thing we have to do, the receptionist, in the front desk” (Tr. 50). Supplying that form is “mandatory” (Tr. 52). If the spotter had said he had no money and he and his children were hungry, Mr. Oommen would give him an appointment “right away” without checking the time and would stay late an hour or two (Tr. 54). But this spotter had means, so a same-day appointment was not warranted. Mr. Oommen testified: “We stay late and I take care of the clients. The client is most important, you know. I don’t ignore the client. I don’t turn -- you know turn down the client, if it is an emergency situation” (Tr. 55; Resp. Ex. E). Mr. Oommen showed Mr. Baldwin the income guideline chart to explain why he did not qualify for food stamps (Tr. 58). Mr. Oommen testified animatedly and with the utmost sincerity that he could not offer half-hour appointments and believed that the last appointment on the daily appointment log was 5:00 p.m., so that 5:30 p.m. was unavailable (Tr. 59). An appointment can take up to an hour or 90 minutes (Tr. 60, 67, 176).

I found Mr. Baldwin a credible witness who was simply trying to fulfill his managerial duties and his assignment as a spotter on March 26, 2004, and who had no motive to lie. He did not write or recommend charges against respondent, nor did he evaluate whether respondent violated any agency rules (Tr. 20-22). However, the testimony showed that he poorly understood his assigned task, in that he had no training in being a spotter (Tr. 33; 43-44) and presented to Mr. Oommen, as petitioner conceded, the case of an applicant who did not qualify for an emergency, same-day interview or for food stamps under any theory because he had cash and excess income. There simply was no emergency that would have required a same-day interview (Tr. 32-33; 57-59). Moreover, he arrived at the center after 5:30 p.m., thus undermining completely the Department’s case as pleaded that Mr. Oommen denied him a same-day appointment at 5:30 p.m.