<p> Admin. for Children’s Services v. Papa OATH Index No. 1392/07 (Mar. 30, 2007)</p><p>Respondent was found mentally unfit to perform the duties of her job under section 72, based on testimony of psychiatrist who conducted mental status examination and evidence of her ongoing disruptive behavior. ALJ also found that placing respondent on emergency leave pursuant to section 72(5) was proper. ______</p><p>NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of ADMINISTRATION FOR CHILDREN’S SERVICES Petitioner - against - LUCREZIA PAPA Respondent ______</p><p>REPORT AND RECOMMENDATION</p><p>TYNIA D. RICHARD, Administrative Law Judge This disability proceeding was referred by petitioner, the Administration for Children’s Services (“Administration” or “ACS”), pursuant to section 72 of the Civil Service Law, and alleges that respondent Lucrezia Papa, a paralegal aide II, is mentally unfit to perform the duties of her position. Respondent denies the allegation. On February 2, 2007, respondent was given notice that petitioner proposed to place her on a leave of absence under section 72 of the Civil Service Law (Pet. Ex. 8). On February 6, 2007, respondent requested a hearing to challenge the determination. The hearing was conducted before me on March 2, 2007. On respondent’s request, the record remained open until March 16, 2007, to allow respondent time to find an expert witness to testify on her behalf. When one was not offered, the record was closed. Based upon the record of the proceeding, I find that respondent is presently unfit to return to her position. I also find that respondent’s placement on an involuntary pre-hearing leave of absence, pursuant to section 72(5) of the Civil Service Law, was proper. 2</p><p>ANALYSIS In this case, ACS seeks to place respondent, Ms. Papa, on an involuntary leave due to alleged mental unfitness to perform the duties of her position, pursuant to section 72 of the Civil Service Law. In support of its application, petitioner presented psychiatric evidence that respondent suffers from a severe mood disorder and paranoia. Petitioner also offered evidence that respondent disrupted the workplace by acting in a hostile, angry and aggressive manner toward her co-workers, screaming obscenities at them, and writing an offensive email to her entire Unit that resulted in widespread disruption. Respondent denies having a mental illness and contends that many of the allegations, which are outlined in Attachment A to the petition, are untrue. I find that the weight of the evidence establishes that respondent is unfit to perform her duties, both at the time she was placed on leave and also at the time of the hearing. Respondent has been employed by ACS for seven years. She works in the Paralegal Unit of Brooklyn Family Court Legal Services, which represents ACS in child abuse cases (Tr. 39). She has a history of acting inappropriately at work, which has resulted in disciplinary action in the past (Tr. 65, 87). Petitioner presented evidence detailing several recent disruptive work incidents, which prompted the Administration to order a psychological evaluation of respondent. In her affidavit, clerical associate Monique McLean stated that on January 9, 2007, respondent approached her desk and began yelling that she could not concentrate because Ms. McLean was talking and laughing too loudly (Pet. Ex. 3-B, ¶2). Respondent said she had moved to her current workstation to be further away from her and asked why Ms. McLean did not work further down the hallway. Ms. McLean denied speaking or laughing loudly and asked respondent to leave. Beth Davis, a paralegal, was walking by and told respondent to calm down and not to address anyone in this manner. Ms. Davis stated in an affidavit that respondent told her she could “confront anyone she likes” (Pet. Ex. 3-C, ¶4). The day after this incident, Ms. Davis told Ms. Sallee that she heard respondent cursing under her breath and “slamming stuff around on her desk” (Tr. 42). Several disruptive incidents occurred on January 11, 2007. Karely Gutierrez, a community assistant, stated in an affidavit that she was in the copy room when she saw respondent hit a photocopier with her hand and say loudly, “Those motherfuckers, these fucking people in here,” “I’m sick of these fucking people here” (Pet. Ex. 3-E, ¶3). She informed Paul Savarese, the supervising attorney for the office, about respondent’s conduct and told him that 3 she wanted to be on record reporting this incident because she was afraid that respondent might do something “bad” (Tr. 80). Earlier that day, Ms. Gutierrez had heard respondent “slamming things” in her cubicle (Pet. Ex. 3-E, ¶2). Later in the day, Ms. Gutierrez noticed that respondent was “acting normal,” but she later saw her repeatedly saying “shithole” as she left the office. According to her affidavit, on the same afternoon, attorney Jaimee Lynn Nelsen heard someone in the restroom screaming loudly, cursing and banging (Pet. Ex. 3-F, ¶2). She waited several minutes before knocking lightly on the door, and the person inside “banged the door loudly and the volume of the yelling increased”; then there was a loud bang that “shook the hallway” which seemed to be a kick against the door (Pet. Ex. 3-F, ¶3). The yelling and banging continued for a few minutes and then respondent exited the restroom and glared at Ms. Nelsen and the others who had gathered. As a result of these incidents, Mr. Savarese called a meeting in his office that day to discuss respondent’s behavior. Respondent’s immediate supervisor, Geraldine Sallee, and the assistant managing attorney also were present. According to Ms. Sallee’s affidavit: Even before Mr. Savarese could finish his sentence to begin the meeting, Ms. Papa commenced a tirade at the top of her lungs, containing numerous expletives and stringing together accusations against other employees.</p><p>(Pet. Ex. 3-G, ¶4). Mr. Savarese confirmed this description of the meeting. Both supervisors indicated that respondent shouted, “How much shit am I supposed to swallow around here?” (Tr. 79; Pet. Ex. 3-H, ¶4). Respondent then accused attorneys Kelly Alvord and Kate Trambitskaya of “conspiring to poison everyone’s minds against her” and for having others harass her with telephone calls (Pet. Ex. 3-G, ¶5). She also accused Beth Davis of attempting to turn the African-American employees against her. She exclaimed that everyone in the office was against her and asked “How much more poison do I have to swallow?” Id. Mr. Savarese asked her to lower her voice and calm down so that they could discuss it, but when respondent continued yelling, he instructed her to clock out and go home (Tr. 79). Shortly after that, Ms. Sallee and Ms. Gutierrez heard respondent scream in the hallway, “Shithole! Shithole! This place is a fucking shithole!” (Tr. 47; Pet. Ex. 3-E, ¶7). Because respondent did not come to work the next day or call to report her absence, Ms. Sallee telephoned her at home. Respondent continued to insist that people in the office were conspiring against her and that she was being discriminated against (Tr. 47). Respondent 4 claimed she had received suggestive emails, solicitations for “black charities,” and “mafia- oriented mail” at her home and believed they had been sent by her co-workers (Tr. 49). Ms. Sallee asked to see these communications, but respondent said she had discarded them (Pet. Ex. 3-G, ¶9). Respondent offered a theory that the office manager had given her co-workers her address. Her co-workers denied sending anything to Ms. Papa. On January 26, 2007, respondent called in sick and again told Ms. Sallee that she felt that everyone in the office was conspiring against her (Tr. 60). She also reiterated that she thought Ms. Davis was trying to turn all the African-American employees against her and that everyone in the office was lying about her. Attorney Kelly Alvord testified that, a few days later on February 8, 2007, she was in Jaimee Lynn Nelsen’s office when she saw respondent enter, throw a file onto a chair, and say to Ms. Nelsen something like “my country right or wrong” and then something about Italians, and then “screw you” (Tr. 96). Respondent then walked out of the office. Respondent was noticed to take a mental examination and, on January 31, 2007, she was examined by petitioner’s psychiatrist, Azariah Eshkenazi, M.D., who found her to be mentally unfit to perform her duties. On February 2, 2007, respondent was given notice that petitioner proposed to place her on a section 72 leave of absence (Pet. Ex. 8). Petitioner relied upon its expert psychiatric testimony in support of its petition. Dr. Eshkenazi first examined respondent two years ago, on January 11, 2005, and found her to be fit, though he noted her bitterness and anger about not receiving a promotion, which she attributed to discrimination (Pet. Ex. 1). When he examined her on January 31, 2007, he found her to be mentally unfit to perform her duties (Pet. Ex. 2; Tr. 21). Dr. Eshkenazi diagnosed respondent as having a severe mood disorder with paranoid ideation. He described the disorder in terms of the fluctuation in her mood, where she “can become very angry, hostile, uncooperative, and then she becomes more cooperative” (Tr. 22). He explained that paranoid ideations were “fixed false beliefs that do not respond to any logic.” The paranoia manifests in her perception that she is being harassed and discriminated against in the office because she is white and Italian, while others – in particular, black co-workers – reap benefits that she is denied. During her examination, respondent admitted that she gets very angry because she feels harassed, but she did not understand that her expressions of excessive anger at work were inappropriate. She told 5</p><p>Dr. Eshkenazi that it was better to get it all out (Tr. 23). In Dr. Eshkenazi’s opinion, respondent’s condition has deteriorated since he first saw her in 2005. The doctor explained that respondent’s mood disorder affects her ability to perform her work because she cannot focus or concentrate when she becomes angry and hostile (Tr. 23). He stated, “Her anger projects towards everybody else around her . . . . She’s a very strong believer that she’s being discriminated [against] and there is nothing that she does that is wrong. It’s everybody else that’s wrong” (Tr. 23). Dr. Eshkenazi opined that respondent cannot control her behavior and that her recent email about the Black History Month lunch, which is discussed below, is consistent with this aspect of her condition (Tr. 27). During her examination, respondent told Dr. Eshkenazi that she had been in psychiatric treatment for 13 years until 2001 where she was diagnosed as paranoid and prescribed anti- psychotic medications (Tr. 22; Pet. Ex. 2). Dr. Eshkenazi recommended that respondent seek psychiatric treatment and take anti-psychotic medication, which would hopefully allow her condition to improve to the point that she could return to work (Tr. 25). Without treatment, he believes that she would continue to have outbursts of anger and hostility at work (Tr. 26). Dr. Eshkenazi’s diagnosis was supported by the testimony of respondent’s co-workers and supervisors. Although her last performance evaluation was very good, Ms. Sallee testified that respondent’s performance has deteriorated; it is less efficient and her interactions with her co-workers have worsened (Tr. 57). For example, respondent was moved to a workstation directly across from Mr. Savarese’s office because of her problems working near other paralegals who she complains are harassing her and are too loud (Tr. 76-77). Lately, Ms. Sallee has been performing work that respondent has not completed. Ms. Sallee described respondent’s relationships with the other paralegals as “very strained” (Tr. 49). Respondent’s accusations and inappropriate comments have antagonized and alienated her from her co-workers. Ms. Sallee testified that other employees try to avoid her because of her unpredictable volatility (Tr. 49). Mr. Savarese said that the paralegals told him that respondent made it difficult to work because she was “constantly acting out, making noises at her desk, banging things” (Tr. 81). Respondent accused one paralegal of slandering Italians (which respondent stated is her ethnic heritage) and accused another of stealing money from the office’s birthday fund (Tr. 51-52). Another paralegal has been avoiding respondent since she told her that “it must be really nice to be an attorney or a black person in this office” (Tr. 52). 6</p><p>Respondent’s hostility towards Beth Davis began after a clerk from Criminal Court called Ms. Davis to complain that respondent had been “very nasty and demanding” while insisting that she be helped without having to wait in line (Tr. 50). Respondent maintained she had done nothing wrong and was upset that Ms. Davis believed the clerk instead of her. In addition to having difficulty working with her fellow paralegals, Ms. Sallee noted respondent’s problems working with the team of attorneys she is assigned to assist. Although respondent works with three of the attorneys “fairly well,” her relationships with the other attorneys on her team are marked by antagonism (Tr. 53-56). Attorneys Nelsen and Trambitskaya would only communicate with her by email or notes because of her volatile behavior; one of those attorneys has since asked to be assigned another paralegal (Pet. Ex. 3-G, ¶12). One of the attorneys told Ms. Sallee that she was “afraid to go over and assign her anything.” Another attorney, Ms. Alvord, was removed from respondent’s team after respondent accused her of being a “reverse racist” because she was friendly with blacks and believed to be conspiring against her (id. at ¶11). Because respondent assists only three of the six attorneys assigned to her, the other paralegals have additional work assigned to them (id. at ¶12). Ms. Sallee has tried to address respondent’s misconduct with disciplinary charges in the past, but she does not take disciplinary action each time that respondent behaves inappropriately because “it happens quite often” and she does not have the time (Tr. 65). She believes she has been unsuccessful in addressing these issues because respondent believes that her actions are not problematic. When confronted, respondent always argues that people are lying and conspiring against her. Respondent refuses to allow that her behavior may be responsible for her co- workers’ attitudes. Ms. Sallee believes that respondent “is incapable of correcting her behavior or accepting any blame for her inability to get along with others” (Pet. Ex. 3-G, ¶13). Both Ms. Sallee and Mr. Savarese testified about the productivity that is lost when respondent has an outburst because of the resulting friction in the office and upset that it creates for her co-workers. Her productivity also declines because so much of her time is consumed with the outbursts (Tr. 49). Mr. Savarese lamented that the time he spends dealing with her conduct interferes with his ability to get work done (Tr. 80). A number of employees have reported to him their concern about respondent going “postal”; they are at a point where they fear what she might do (Tr. 80-81). 7</p><p>Respondent denies that she has a mental illness. According to her testimony, she feels she is being discriminated against because she is Italian, single and without children, and of a certain age (Tr. 100-01, 123). She believes she has faced anti-Italian discrimination her entire life, and, though she has talked to many lawyers about bringing a lawsuit against ACS, it would be too expensive (Tr. 101, 122). She declared that the allegations against her are untrue and that her supervisor, Ms. Sallee, who testified that she does not get along with others in the workplace, fabricated lies about her at the direction of upper management (Tr. 104). She attributed past disciplinary action taken against her to such lies. Respondent characterized the trial testimony as “mostly bullshit” (Tr. 100). She did not feel that she needed to apologize to her co-workers for her behavior at work; rather, “They should apologize to me, for maligning me like this” (Tr. 110). As an example of the harassment she faces, she noted that after she complained about a co-worker who made derogatory comments about Italians, she began receiving mail at her home related to the mafia (Tr. 116-17). Respondent denied telling Dr. Eshkenazi that she was in psychiatric treatment for 13 years. Initially, she said that she was in psychoanalysis for five years and no one had ever diagnosed her as paranoid (Tr. 101). But she later admitted being diagnosed as paranoid in 2001 and being prescribed the two anti-psychotic medications that Dr. Eshkenazi named (Tr. 102, 109). Respondent started seeing a psychiatrist, Dr. Caldwell, a few weeks before the hearing, and she was impressed by the fact that her doctor had not prescribed her any medication, except for anti-anxiety medication and sleeping pills, which she requested. She had been taking these medications for a week (Tr. 102). Respondent said that she asked Dr. Caldwell to testify on her behalf, but the doctor did not feel that she knew enough about what had happened at her job (Tr. 104). Despite her overall denial of wrongdoing, respondent admitted to a number of the allegations, with some explanation. She admitted slamming papers on her desk (Tr. 121). She stated that she does curse sometimes but not as often as petitioner claims. She admitted saying “shithole” but claims that she said it under her breath. As for the restroom incident described by Ms. Nelsen, respondent testified that a therapist she once saw for anger management advised her to take a walk or go to the restroom when she was angry (Tr. 114). She denied that she was banging or yelling inside the restroom, as Ms. Nelsen stated, but admitted that she did kick the door when Ms. Nelsen banged loudly on it. 8</p><p>She said that Ms. McLean’s claim that she had yelled at her was “an outrageous lie” (Tr. 105). She complained that a year earlier, when they were seated much closer together, she was constantly interrupted by Ms. McLean’s “bursts of laughter” which were “continuous, sometimes the whole day” and which, she claimed, prevented her from doing her work (Tr. 105). She was frustrated that her supervisors were unresponsive to her complaint. She said that she went to the EEO office, which intervened and moved her to her current workstation. Respondent testified that recently she heard Ms. McLean’s loud laughing from her current workstation and she went and asked her “in a quiet low voice” to lower her voice. Ms. McLean told her to go back to her desk. She said that Beth Davis, the acting supervisor who is African-American, chastised her about confronting Ms. McLean and that Ms. Davis “makes up all these lies about me” and takes the side of the African-Americans employees when she has a conflict with them (Tr. 105-06). This both worries and angers her. Although respondent seemed to describe Ms. McLean as a goldbricker, Mr. Savarese testified that he has worked with Ms. McLean for several years and she is an “excellent” worker who he chose to assist him on projects (Tr. 78). Sara Hiltzik, whose office is five feet away from Ms. McLean’s, submitted an affidavit stating that she heard respondent confront Ms. McLean, but had not heard Ms. McLean talking or laughing loudly that morning and she has never had problems with Ms. McLean being loud (Pet. Ex. 3-D). Respondent denied that any incident had occurred in Criminal Court and insisted that Beth Davis had lied about that also. She stated that a woman falsely told Ms. Davis that she had to be ushered out of court by a security guard on two occasions, but it never happened (Tr. 106). She was unhappy because Ms. Davis wanted to believe the other woman, instead of her. (The allegation that respondent had to be escorted from the Criminal Court was not made by petitioner on this record). On February 26, 2007, the office was scheduled to have a luncheon in celebration of Black History Month. The coordinator of the lunch sent out an office-wide email informing everyone when the event would start. Respondent responded with an email sent to the entire office that stated as follows: I regret that I will be unable to attend the Black History Luncheon today. Unfortunately, since I did not get a promotion like everyone else (my promotion was given to a young Black male from the outside), I fear I am not able to stretch my budget to meet the cost. 9</p><p>I would like to offer a suggestion, however, to enhance this special occasion. Why not have an awards ceremony after the luncheon to thank a member of the lily white staff who has performed the most politically correct and fashionable dance all year. It could be measured by how many flipflops, somersaults, backbends, faces kissed or any other contortion not mentioned, considering also the rhythm, style and inventiveness of such a performance.</p><p>After the award is given, I would be happy to join you all for the puking party (ancient Roman style), to which, I promise you, I will be able to make a large contribution. </p><p>(Pet Ex. 4). Subsequent to this incident, respondent was placed on emergency involuntary leave on February 27, 2007, pursuant to section 72(5) (Pet. Ex. 7). Both of respondent’s supervisors testified that this email was particularly disruptive in the office because it upset so many of her co-workers. Mr. Savarese contacted the Employment Law Unit and EEO about it immediately (Tr. 84). Shortly after the email was sent, he started receiving emails about it on his Blackberry and he was approached by employees in the hallways, all of whom were upset and offended by the email. The office was “abuzz” and no one could believe that the email had been sent. He said that people are still talking about it (Tr. 87). As Mr. Savarese contemplated how to address respondent, he was approached by two attorneys who told him that respondent was making a retching noise and shoving her finger down her throat (Tr. 84). Ms. Alvord testified that she saw respondent with her finger in her mouth making a gagging noise and reported it to Mr. Savarese (Tr. 96). Mr. Savarese went out and observed it himself. When he asked what was going on, respondent told him “nonchalantly,” “why what’s the matter?” When he told her that she had caused problems with her email, she started accusing the office of harassing her (Tr. 85). He did not want to engage in that conversation again, so he told her to clock out and go home. He stated that respondent causes so much disruption that it takes away from the primary focus of the office, which is the protection of children (Tr. 87-88). Respondent explained the motivation behind her email by stating, “I was so frustrated, and so abused, and so harassed, and vilified” (Tr. 100). When asked if she did anything wrong to justify the suspension that resulted, she said “I guess I did. I knew it was going to get me in trouble, but I just felt like they keep taking away my dignity, my power, my rights. And I just had to strike back. And I just felt I had to do it, that’s all” (Tr. 103). She said she was “terrified” 10 by what she views as false charges lodged by her employer and believes that her reputation is being “destroyed” (Tr. 100). She admitted making gagging sounds after sending the email but tried to justify them as “a terrible cough” that developed because the false charges brought against her made her sick “and sometimes I start gagging, you know” (Tr. 101). In order to place an employee on an involuntary medical leave pursuant to section 72 of the Civil Service Law, petitioner must prove by a preponderance of the evidence (i) that respondent suffers from a disability, (ii) that she is unable to competently perform her job duties, and (iii) that her inability to perform is caused by her disability. See Dep't of Parks & Recreation v. Matthews, OATH Index No. 219/00 (Nov. 22, 1999); Housing Auth. v. Caballero, OATH Index No. 699/96, at 17 (Mar. 13, 1996). The focus of the section 72 proceeding is on the employee's current fitness and ability to perform her job duties, not on her past condition or work performance. Human Resources Admin. v. Bizaliele, OATH Index No. 305/96, at 12 (Dec. 18, 1995). Past performance is relevant only to the extent that it is probative of respondent’s present condition and future conduct. Housing Auth. v. Dave, OATH Index No. 138/95, at 4 (Aug. 12, 1994), aff'd, NYC Civ. Serv. Comm'n Item No. C-95-72-4 (Oct. 11, 1995). In this case, Dr. Eshkenazi’s testimony established that respondent suffers from a disability, a severe mood disorder with paranoid ideation. The symptoms cited by Dr. Eshkenazi as the basis for his diagnosis, extreme anger and paranoia, were validated by the testimony of respondent’s supervisors and co-workers, who described her angry outbursts and ongoing belief that she was the focus of widespread conspiratorial harassment. Respondent’s own testimony corroborated these observations; she consistently described herself as a victim of harassment and discrimination and expressed a belief that several people in the office were turning others against her. Although respondent was permitted additional time after the hearing to find an expert to testify on her behalf, she did not present one; thus there was no alternative psychiatric evidence to counter Dr. Eshkenazi’s opinion. See Dep’t of Environmental Protection v. Trezza, OATH Index No. 544/99, at 9 (Feb. 8, 1999), aff’d, NYC Civ. Serv. Comm’n Item No. C99-72-1 (June 3, 1999) (according considerable weight to testimony of agency’s medical expert where employee failed to offer opposing evidence). Next, petitioner must prove that respondent is unable to perform her job duties. The question of fitness is not limited to “how well an employee performs her tasks when she is present at work.” Human Resources Admin. v. Farber, OATH Index No. 944/02, at 32 (Sept. 19, 11</p><p>2002). An employee may be unfit because a disability causes her “to have frequent violent or disruptive outbursts at work, or substantially interferes with [her] ability to interact appropriately with coworkers or supervisors.” Caballero, OATH 699/96, at 18. There is compelling evidence that respondent is unable to perform her job duties. Here, petitioner has demonstrated how respondent’s behavior disrupts the workplace and negatively impacts her co-workers, to the point of putting them in fear. See Admin. for Children’s Services v. Desir, OATH Index No. 1644/01 (May 30, 2001) (finding employee’s delusional disorder rendered her unfit to perform duties of her position because it diminished her productivity and distracted her from work); Housing Auth. v. Jones, OATH Index No. 195/94, at 29 (Jan. 7, 1994), aff’d, NYC Civ. Serv. Comm’n Item No. C-94-72-2 (Sept. 29, 1994) (finding that 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 Center) v. Samuel, OATH Index No. 243/07 (Dec. 20, 2006) (noting an employee has a duty not to interfere with co-workers’ ability to perform their tasks). A finding of unfitness is supported where an employee denies the existence of a disability, or refuses to treat it, thereby creating a greater risk of future recurrence of the disability. Caballero, OATH 699/96, at 23. At trial, respondent flatly denied being ill. Her denial that she has a mental illness makes it less likely that she is capable of following a course of treatment that will make her well, which contributes to my finding of unfitness. See Admin. for Children’s Services v. Desir, OATH Index No. 202/03 (Oct. 18, 2002), aff’d in part, Comm’r Dec. (Dec. 4, 2002) (respondent’s lack of insight into her illness, refusal to acknowledge the need for treatment, refusal to take medication, and belief that she had no psychiatric problem weighed in favor of finding respondent unfit); Admin. for Children’s Services v. Rodgers, OATH Index No. 790/00 (Feb. 25, 2000) (respondent found unfit given lack of insight into condition and her refusal to take medication). Dr. Eshkenazi noted that with treatment and anti-psychotic medication respondent might be able to return to work, but at this time, she is not even taking the suggested medications. Last, petitioner has shown a causal connection between respondent’s mental illness and her unfitness. A causal connection is generally found where acts of misconduct are “attributable to” or are the “direct results of” the disability. Dep’t of Finance v. Serra, OATH Index No. 583/01 (Nov. 14, 2000); Dep’t of Housing Preservation and Development v. Natal, OATH Index 12</p><p>No. 1185/90 (Mar. 22, 1991). The following description by Dr. Eshkenazi of the manifestations of respondent’s illness were amply demonstrated in the trial record: “Her anger projects towards everybody else around her . . . . She’s a very strong believer that she’s being discriminated [against] and there is nothing that she does that is wrong. It’s everybody else that’s wrong.” The record established that respondent’s mood disorder with paranoid ideation, which prompts intense anger and aggression that diminish respondent’s ability to concentrate and to work, cause her to act in a way that disrupts the entire work environment and makes her currently unfit for her position. In addition, her paranoia, manifested in the grudges she harbors against co-workers for slights real and imagined, prevents her from working cooperatively as she should, and it forces the Administration to navigate among the few co-workers with whom she can work. Through biting sarcasm in the email that respondent sent to her Unit, she reveals a palpable hostility toward her workplace at large, with a racial undertone. The disruption it created was immediate and widespread. Her co-workers were startled and outraged by the racial undertone, particularly during Black History Month, a time to celebrate racial diversity and harmony. Respondent’s email was a signal achievement in putting practically the entire office in an uproar. Yet, when questioned about it by her supervisor, respondent was indifferent to its impact, wondering “what’s the matter?” (Tr. 84). This incident, along with the others described in the record, starkly illustrated respondent’s volatility and inability to control her anger, as Dr. Eshkenazi described. It also demonstrated her tendency to blame others and a failure to view her own conduct as inappropriate. Her conduct following the email, imitating gagging noises, was a bizarre and distasteful display that only worsened the impact of the email and confirmed its intent. Her disingenuous description of it as a “cough” further demonstrates her inability to take responsibility for her conduct. Unfortunately, respondent feels justified no matter how destructive or obnoxious her conduct. Accordingly, petitioner has proved by a preponderance of the evidence that respondent is mentally unfit to perform the duties of her position.</p><p>Pre-hearing involuntary leave under section 72(5) After the email message that respondent sent to her Unit about her refusal to attend the Black History Month luncheon, she was placed on an involuntary pre-hearing leave of absence on February 27, 2007. Thus, the next issue before me is whether such placement was proper 13 pursuant to section 72(5) of the Civil Service Law. See Barrett v. Miller, 179 Misc. 2d 24, 682 N.Y.S.2d 552 (Sup. Ct. N.Y. Co. 1998) (OATH has jurisdiction to determine propriety of placement of employee on pre-hearing involuntary leave). Section 72(5) states: Notwithstanding any other provisions of this section, if the appointing authority determines that there is 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, it may place such employee on involuntary leave of absence immediately; provided, however, that the employee shall be entitled to draw all accumulated unused sick leave, vacation, overtime and other time allowances standing to his or her credit.</p><p>Civ. Serv. Law § 72(5) (LEXIS 2007) (emphasis added). This tribunal has recognized that placing an employee on involuntary leave under section 72(5) without a hearing is an “extraordinary measure.” Teachers Retirement System v. Barrett, OATH Index No. 1210/99, at 3 (Sept. 22, 1999). I find that petitioner has shown that it had “probable cause” to believe that the respondent’s continued presence on the job “would severely interfere with operations.” Civ. Serv. Law § 72(5) (LEXIS 2007). Sending the offensive Black History Month email to the entire Unit, along with the loud and offensive retching noises she made to accompany it, was aggressive behavior that created disruption for not only her immediate co-workers but for numerous other employees in the Unit who she otherwise would have no reason to encounter. The acts demonstrated her lack of control over her conduct and lack of insight, to which Dr. Eshkenazi testified. Her own testimony demonstrated a failure to understand the inappropriateness of her angry outbursts and an inability to take responsibility for them. Overall, the record demonstrated a frequency and intensity to respondent’s angry outbursts that, over time, have caused her co-workers to be upset and to fear what she might do. See Transit Auth. v. Smith, OATH Index No. 1299/02 (Mar. 24, 2003) (pre-hearing leave was appropriate where employee engaged in bizarre and threatening behavior which caused fear in his co-workers). While not overtly threatening, her recurring and unpredictable volatility creates significant disruption to office operations. In light of Dr. Eshkenazi’s diagnosis of severe mood disorder with paranoia, the fact that she is not on medication that could remit the symptoms of her disability supports the likelihood that her behavior will continue to interfere with the 14 operations of an office dedicated to the protection of children, which petitioner rightfully seeks to avoid. See Dep't of Citywide Admin. Services v. H.M., OATH Index No. 1670/04, at 13 (July 26, 2004) (pre-hearing leave justified where, “absent a steady regimen of anti-psychotic medication, it is ‘probable’ that respondent's continued presence would pose a ‘potential danger’ to himself or others”). I find that the evidence proved that respondent’s placement on involuntary pre-hearing leave was proper. FINDINGS AND CONCLUSIONS 1. Petitioner established by a preponderance of the evidence that respondent suffers from a severe mood disorder with paranoid ideation, which prevents her from being able to perform the duties of her position. Accordingly, she is mentally unfit to perform the duties of her position, as set forth in section 72 of the Civil Service Law.</p><p>2. Respondent’s placement on an involuntary pre-hearing leave under section 72(5) was proper.</p><p>RECOMMENDATION Based upon the foregoing findings, I recommend that respondent remain on involuntary leave pursuant to section 72 of the Civil Service Law.</p><p>Tynia D. Richard Administrative Law Judge</p><p>March 30, 2007</p><p>SUBMITTED TO:</p><p>JOHN B. MATTINGLY Commissioner</p><p>APPEARANCES:</p><p>SUSAN STARKER, ESQ. Attorney for Petitioner</p><p>DRUYAN & ASSOCIATES 15</p><p>Attorney for Respondent BY: MARTIN DRUYAN, ESQ.</p>