In the Matter of Raymond Castro, Respondent,v.Dora Schriro,, et al. Appellants.BriefN.Y.May 30, 2017 Reproduced on Recycled Paper To be argued by: INGRID R. GUSTAFSON New York County Clerk’s Index No. 101472/13 New York Supreme Court Appellate Division: First Department In the Matter of the Application of RAYMOND CASTRO, Petitioner-Appellant, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules against DR. DORA SCHRIRO, Correction Commissioner of the New York City Department of Correction, THE NEW YORK CITY DEPARTMENT OF CORRECTION, and THE CITY OF NEW YORK, Respondents-Respondents. BRIEF FOR RESPONDENTS RICHARD DEARING INGRID R. GUSTAFSON of Counsel September 29, 2015 ZACHARY W. CARTER Corporation Counsel of the City of New York Attorney for Respondents 100 Church Street New York, New York 10007 212-356-0853 or -2500 igustafs@law.nyc.gov TABLE OF CONTENTS Page i TABLE OF AUTHORITIES ....................................................................... ii PRELIMINARY STATEMENT .................................................................. 1 QUESTION PRESENTED ......................................................................... 2 STATEMENT OF THE CASE ................................................................... 3 A. The Death of Rikers Inmate Jason Echevarria and Castro’s Dismissal ....................................................................... 3 B. This Article 78 Proceeding .......................................................... 6 C. The Supreme Court’s Order Dismissing the Petition ................ 7 ARGUMENT ............................................................................................... 7 CASTRO FAILED TO MEET HIS BURDEN OF SHOWING THAT THE DISCONTINUANCE OF HIS PROBATIONARY EMPLOYMENT WAS ILLEGAL OR IN BAD FAITH .................... 7 CONCLUSION ......................................................................................... 17 PRINTING SPECIFICATIONS STATEMENT ...................................... 18 TABLE OF AUTHORITIES Page(s) ii Cases Bienz v. Kelly, 73 A.D.3d 489 (1st Dep’t 2010) ...................................................... 11, 16 Bradford v. N.Y.C. Dep’t of Correction, 56 A.D.3d 290 (1st Dep’t 2008) ...................................................... 11, 16 Bruscino v. Kelly, 95 A.D.3d 447 (1st Dep’t 2012) ............................................................ 11 Duncan v. Kelly, 9 N.Y.3d 1024 (2008) ........................................................................ 7, 12 Green v. N.Y.C. Hous. Auth., 25 A.D.3d 352 (1st Dep’t 1996) ............................................................ 12 Johnson v. Katz, 68 N.Y.2d 649 (1986) .............................................................................. 7 Lambert v. Kelly, 78 A.D.3d 554 (1st Dep’t 2010) .............................................................. 9 Lane v. City of New York, 92 A.D.3d 786 (2d Dep’t 2012), lv. denied, 19 N.Y.3d 810 ........... 12, 13 Pell v. Bd. of Educ., 34 N.Y.2d 222 (1974) ............................................................................ 10 Phucien v. City of N.Y. Dep’t of Correction, 129 A.D.3d 505 (1st Dep’t 2015) ............................................................ 8 Scherbyn v. Wayne Finger Lakes Bd. of Coop. Educ. Servs., 77 N.Y.2d 753 (1974) ...................................................................... 10, 11 Swinton v. Safir, 93 N.Y.2d 758 (1999) ........................................................................ 7, 10 TABLE OF AUTHORITIES (cont’d) Page(s) iii Thomas v. Abate, 213 A.D.2d 251 (1st Dep’t 1995) ............................................................ 8 Tsao v. Kelly, 28 A.D.3d 320 (1st Dep’t 2006) ...................................................... 7, 8, 9 Turner v. Horn, 69 A.D.3d 522 (1st Dep’t 2010) ........................................................ 9, 11 Walsh v. N.Y. State Thruway Auth., 24 A.D.3d 755 (2d Dep’t 2005) ......................................................... 9, 13 Weir v. Bratton, 4 A.D.3d 160 (1st Dep’t 2004) .............................................................. 12 Other Authorities CPLR 7804(f) ............................................................................................ 16 CPLR 7804(h).............................................................................................. 6 1 PRELIMINARY STATEMENT In this Article 78 proceeding, petitioner Raymond Castro challenges the discontinuance of his probationary employment with the New York City Department of Correction. Castro alleges that he was dismissed for misconduct related to the death of Jason Echevarria, a Rikers inmate for whom he was admittedly responsible in the time leading up to Echevarria’s death. Castro acknowledges that Echevarria told him that he had swallowed a soap ball containing bleach and needed medical attention. But Castro insists that he was just following a supervisor’s orders when he failed to contact medical staff, despite directly observing the inmate’s worsening condition, and despite being told by a pharmacy technician that medical attention was needed. Additionally, he does not allege that he made any effort to contact another superior or medical staff at the conclusion of his shift or afterwards. Castro challenges a decision and order of the New York County Supreme Court (Huff, J.) granting the Department’s motion to dismiss the petition. This Court should affirm the Supreme Court’s dismissal under well-settled principles of law. A probationary employee may be 2 dismissed without a hearing and for any reason or no reason at all, so long as the dismissal was not for an unlawful reason or made in bad faith. Here, accepting all of his allegations as true, Castro has failed to show illegality or bad faith. A dismissal based on employee misconduct is a dismissal in good faith, even if the dismissed employee may contend that findings of misconduct are mistaken or ill-founded, as employees often do, and as Castro does here. The death of an inmate under a correction officer’s supervision, after a lengthy period of evident distress without provision of medical attention, is unquestionably a serious matter. Castro’s belief that his actions in the time leading up to Echevarria’s death were justified does not demonstrate that his dismissal was made for an illegal reason or in bad faith, nor does it entitle him to a hearing. Thus, the petition is properly denied, and this proceeding dismissed. QUESTION PRESENTED Did the Supreme Court properly dismiss the petition, where it is firmly established that probationary employment may be discontinued for any reason or no reason at all, except for an illegal reason or in bad faith, and where Castro failed to make any nonconclusory allegations, 3 let alone set forth any proof, that his dismissal was made for an illegal reason or in bad faith? STATEMENT OF THE CASE A. The Death of Rikers Inmate Jason Echevarria and Castro’s Dismissal For the purpose of this appeal, respondents (hereinafter, “the City”) assume that the following facts, as alleged in the petition, are true. In December 2011, Castro was appointed to the position of probationary correction officer with the Department (Record on Appeal [“R.”] 13 ¶ 5). During an assigned shift on August 17, 2012, he was working at the Mental Health Assessment Unit at the George R. Vierno Center, which is located at the Department’s Rikers Island facility in Queens, New York (R. 13 ¶ 9). Along with another correction officer and a supervising officer, Captain Terrence Pendergrass, Castro was assigned to a housing unit, where he was responsible for the care, custody, and control of the inmates (R. 14 ¶¶ 11-12, 17). Castro alleges that, while touring his assigned area on that day, one of the inmates for whom he was responsible—Jason Echevarria— told him that he had swallowed a soap ball containing bleach, and that he wanted to see medical staff (R. 14 ¶ 15). After first informing another 4 officer, Castro told Captain Pendergrass what Echevarria had said (R. 14 ¶ 16-17). According to Castro, Pendergrass told him that there was no need to contact medical, and to call him only “if [he] need[ed] an extraction, or if [he] ha[d] a dead body” (R. 15 ¶ 19). Apparently accepting this instruction, Castro does not allege that he took any further action at this point. “Sometime thereafter,” Castro continues, he noticed vomit in Echevarria’s cell and again informed Captain Pendergrass, who told him to tell the inmate to “[h]old it” (R. 15 ¶¶ 20-21). Again, Castro does not allege that he took any further actions on Echevarria’s behalf. Within the next hour, Castro claims, a pharmacy technician doing medical rounds told Castro that Echevarria needed medical attention, at which point Castro and a second officer again approached Captain Pendergrass (R. 15-16 ¶¶ 22-23). According to Castro, the second officer told Pendergrass what Echevarria had said, and Pendergrass told the second officer to write a report (R. 16 ¶ 23). Castro claims that he then attempted to contact medical, “but could not find medical’s number on an old and faded phone contact list” (R. 16 ¶ 24). According to Castro, Pendergrass approached him and asked him whether he had contacted 5 anyone of significance (R. 16 ¶ 24). When Castro told Pendergrass that he was trying to contact medical, Castro states, Pendergrass directed him to return to his post, which Castro did (R. 16 ¶¶ 24-25). Castro alleges that, during the remainder of the tour, he observed: (1) the second officer begin to write a report, (2) Captain Pendergrass tell the second officer that he had spoken with a nurse who had not heard Echevarria say that he had ingested a soap ball with bleach, and (3) Captain Pendergrass briefly pause by Echevarria’s cell (R. 16-17 ¶¶ 26-28). Castro does not allege that he took any additional steps on Echevarria’s behalf before being relieved at the end of his shift, nor does he allege that he did anything upon being relieved of his post. He was informed the next day that Echevarria had died after he had completed his shift (R. 17 ¶ 29). In the months following the incident, Castro was interviewed by the Department, the United States Attorney’s Office, the New York City Department of Investigation, and the Manhattan District Attorney’s Office (R. 17 ¶ 30). Castro alleges that, “[u]pon information and belief,” he was terminated on July 19, 2013—eleven months after the incident—“for some ‘misconduct’” related to Echevarria’s death (R. 17 6 ¶ 31). However, he does not attach any proof of this assertion to the petition, nor does he explain the basis for this conclusion. At the time of his dismissal, Castro was still a probationary employee (R. 13 ¶ 5). B. This Article 78 Proceeding Castro commenced this proceeding in November 2013, seeking an order annulling the decision to discontinue his probationary service and restoring him to service with back-pay and benefits, or, in the alternative, an order directing a hearing under CPLR 7804(h) (R. 10- 11). The petition asserted that his dismissal “was arbitrary, capricious and made in bad faith” (R. 13 ¶ 7). The City cross-moved to dismiss the petition on the ground that, even accepting all of the allegations in the petition as true, Castro had failed to state a cause of action (R. 65-66). In an attached memorandum of law, the City contended that, as a probationary employee, Castro could be dismissed for any reason, except one premised on bad faith, and that he had failed to allege facts showing bad faith (R. 70-73). The City further argued that Castro was not entitled to an evidentiary hearing (R. 73-75). Castro filed an affirmation and memorandum in opposition (R. 76-79, 80-90), and the City replied (R. 91-97). 7 C. The Supreme Court’s Order Dismissing the Petition In an order and decision, the Supreme Court (Huff, J.) dismissed the petition on the ground that it failed to state cause of action (R. 6-9). Applying binding precedent, the Supreme Court concluded that Castro had failed to satisfy his burden of showing that he was dismissed in bad faith or for an improper reason (R. 8-9). ARGUMENT CASTRO FAILED TO MEET HIS BURDEN OF SHOWING THAT THE DISCONTINUANCE OF HIS PROBATIONARY EMPLOYMENT WAS ILLEGAL OR IN BAD FAITH The Supreme Court properly dismissed the petition. It is firmly established that a probationary employee is subject to dismissal without a hearing, for any reason or no reason at all, so long as the dismissal was not for a constitutionally impermissible reason, in violation of statutory or decisional law, or in bad faith. E.g., Duncan v. Kelly, 9 N.Y.3d 1024, 1025 (2008); Swinton v. Safir, 93 N.Y.2d 758, 762-63 (1999); Tsao v. Kelly, 28 A.D.3d 320, 321-22 (1st Dep’t 2006). Judicial review is limited to the question of whether the probationary employee was dismissed for a reason that is unlawful or in bad faith. Johnson v. Katz, 68 N.Y.2d 649, 650 (1986). 8 To obtain a hearing in an Article 78 proceeding challenging a dismissal from probationary employment, “the burden falls squarely on the [employee] to demonstrate, by competent proof, that a substantial issue of bad faith exists, or that the termination was for an improper or impermissible reason.” Tsao, 28 A.D.3d at 321. A “mere belief” of bad faith is insufficient, as are conclusory, speculative, and unsupported allegations. Thomas v. Abate, 213 A.D.2d 251, 252 (1st Dep’t 1995); Phucien v. City of N.Y. Dep’t of Correction, 129 A.D.3d 505, 506 (1st Dep’t 2015). Because Castro has failed to provide a basis to conclude that his dismissal was for an illegal reason or in bad faith, the Supreme Court properly determined that he was not entitled to a hearing or to an order annulling his dismissal. In the petition, Castro does not make any nonconclusory allegations that his dismissal was illegal or in bad faith. In fact, he sets forth no evidence regarding the basis for his dismissal at all. Although he asserts that he was dismissed for misconduct related to Echevarria’s death, he does not explain the basis for this conclusory assertion. See Thomas, 213 A.D.2d at 252 (conclusory allegations insufficient to obtain order annulling the dismissal of a probationary employee). 9 Furthermore, beyond alleging that he was interviewed by the Department after Echevarria’s death in custody, Castro makes no factual allegations about the Department’s investigation of the incident or the circumstances leading to his dismissal. Absent this information, any allegation that he was dismissed in bad faith is purely speculative and does not satisfy his burden. See Turner v. Horn, 69 A.D.3d 522, 523 (1st Dep’t 2010) (dismissing petition challenging dismissal where employee “did not submit any evidence raising a substantial issue as to respondents’ bad faith in investigating the alleged violation or in deciding to terminate her employment”); Tsao, 28 A.D.3d at 321. But even accepting Castro’s sole, conclusory assertion about his dismissal—that he was dismissed for misconduct related to the death of Echevarria—Castro has failed to carry his burden of raising a substantial issue of bad faith. Misconduct is not an illegal or bad faith basis for a dismissal. To the contrary, employee misconduct is a good faith basis for dismissal. See, e.g., Lambert v. Kelly, 78 A.D.3d 554, 555 (1st Dep’t 2010); Walsh v. N.Y. State Thruway Auth., 24 A.D.3d 755, 757 (2d Dep’t 2005). Although Castro may disagree that he committed misconduct (Appellant’s Brief [“App. Br.”] at 11-12), that disagreement 10 does not provide any basis to challenge the discontinuance of his probationary employment. Even if an employer is mistaken in finding that misconduct occurred, the dismissal of a probationary employee will not be overturned. Indeed, Castro’s argument that reinstatement is warranted because the Department was allegedly mistaken in any finding of misconduct relies on a legal standard that does not govern in this case (App. Br. at 8-13). Pointing to Pell v. Board of Education, 34 N.Y.2d 222 (1974), Castro claims that he is entitled to reinstatement because a mistake by the Department indicates that his dismissal was unreasonable and arbitrary and capricious. But that is not the standard of review for the dismissal of probationary employees. That is the standard of review for tenured employees. See id. at 235-41. The standard for probationary employment is far narrower, and asks only whether the employer acted for an illegal reason or in bad faith. See, e.g., Swinton, 93 N.Y.2d at 763. Castro also relies on Scherbyn v. Wayne Finger Lakes Board of Cooperative Education Services, 77 N.Y.2d 753 (1974), but that decision, too, does not address the legal standard that applies here. In Scherbyn, 11 the Court of Appeals applied the “more stringent and unique” civil- service rules that apply within Ontario County, New York, which limit the grounds upon which a probationary employee can be dismissed in that county. Scherbyn, 77 N.Y.2d at 759. New York City has not adopted similar rules, so the usual standard requiring a showing of an illegal reason or bad faith applies in this case. Under the correct legal standard, Castro’s argument that the agency was mistaken in any finding of wrongdoing is unavailing. As this Court has repeatedly held, that an agency is allegedly mistaken in no way satisfies the probationary employee’s burden of raising a substantial issue of bad faith or illegality. See, e.g., Turner, 69 A.D.3d at 523 (employee’s citation of evidence challenging investigators’ conclusions that led to dismissal insufficient to raise issue of bad faith); Bruscino v. Kelly, 95 A.D.3d 447, 448 (1st Dep’t 2012) (employee’s contention that conduct causing dismissal was inadvertent insufficient to raise issue of illegality or bad faith); Bienz v. Kelly, 73 A.D.3d 489, 490 (1st Dep’t 2010); Bradford v. N.Y.C. Dep’t of Correction, 56 A.D.3d 290, 291 (1st Dep’t 2008). Requiring an agency to prove that it was not mistaken—that is, to prove the correctness or reasonableness of its 12 basis for dismissing a probationary employee, as Castro seems to propose—would contradict the well-established principle that an agency may dismiss a probationary employee for “no reason at all.” E.g., Duncan, 9 N.Y.3d at 1025. Indeed, it is common sense that a party can be mistaken without acting in bad faith. For example, in Green v. New York City Housing Authority, 25 A.D.3d 352 (1st Dep’t 1996), the employee contested the agency’s finding that she had verbally and physically assaulted another employee. Id. at 353. However, this Court held that the employee had “shown no more than that [the agency]’s determination may have been mistaken,” which did not raise “any factual issue as to whether it was made in bad faith.” Id.; see also Weir v. Bratton, 4 A.D.3d 160, 160 (1st Dep’t 2004) (employee’s contentions that the grounds for his dismissal were mistaken were insufficient to raise a question of bad faith). The Second Department reached the same conclusion in Lane v. City of New York, 92 A.D.3d 786 (2d Dep’t 2012), lv. denied, 19 N.Y.3d 810. In that case, a probationary correction officer challenged his dismissal on the grounds that he had not violated departmental rules and regulations, and that “his use of force in dealing with inmates was 13 justified.” Id. at 786-87. But the court concluded that, even accepting these allegations as true, they were insufficient to raise an issue of bad faith. See id.; see also Walsh, 24 A.D.3d at 757 (employee’s “claims that the [agency] failed to credit his explanations or applied too broad a view of what constituted similar misconduct were inadequate to establish that he was terminated in bad faith”). Nor does Castro come forward with anything that would establish that any finding that he failed to take an appropriate course of action must have been mistaken, even if that were the relevant legal standard in this case. Castro insists that he could not reasonably be found to have engaged in any wrongdoing related to Echevarria’s death because he followed departmental rules requiring him to notify a superior officer of an injury to an inmate, and because he was just following orders (App. Br. at 12-13). But Castro’s defense of his conduct, on the face of his own petition, is far from airtight. Although a correction officer usually must follow a superior’s orders, there are situations where a reasonable decision-maker could conclude that a correction officer should not have done so, such as if a superior ordered the officer to participate in a cover-up or to make a 14 false report—or if, as alleged here, the superior said that the officer should contact the superior only “if [he] has a dead body” (R. 15 ¶ 19). The death of an inmate while in government custody, after a period of prolonged distress, and without any provision of medical attention, is a very serious matter. A reasonable decision-maker could conclude that an order directing a subordinate officer not to take action until there’s such a death is one that the subordinate should not follow. A reasonable decision-maker could also conclude that an officer observing an inmate in severe and increasing distress should have contacted another superior or medical staff, either during his shift or after its conclusion, or should at least have informed correction officers on the next shift about the inmate’s condition. Castro does not allege that he did any of those things. Contrary to Castro’s suggestion, the fact that his superior was found criminally liable for his role in the incident does not mean that Castro was faultless. The criminal charges against the superior only underscore the gravity of the incident. While Castro’s conduct may not have risen to the level of criminal wrongdoing, he fails to establish that his conduct, as he described it, could not support the 15 dismissal of a probationary employee—who may be dismissed for any reason or no reason at all, except for an illegal reason or in bad faith. Castro also paints only a partial picture of departmental regulations. The regulations cited by Castro certainly required him to inform his superior officer of Echevarria’s condition, but that is not all the regulations required. Those same regulations also indicate that correction officers “shall be held responsible . . . for the proper care, custody, control and treatment of inmates” (R. 20). The regulations also require the correction officer to whom an inmate reports “ingesting . . . any object not normally considered edible” to prepare a report and “[e]nsure that the injury report and the inmate are produced in the clinic, without delay” (R. 24-25). In any event, an Article 78 proceeding involving a probationary employee is not a forum to litigate over the reasons for the employee’s dismissal—that would defeat the purpose of probationary employment. The key is that none of Castro’s allegations supports a conclusion that he was dismissed for an illegal reason or in bad faith. Nor is Castro entitled to a hearing to resolve disputed questions of fact, as he claims (App. Br. at 14-16). Because the Department has 16 accepted all of the factual allegations in the petition as true for the purposes of its motion to dismiss, there are no disputed issues of fact to be resolved at a hearing. But even if there were disputed issues of fact, they would not be material, and Castro would still not be entitled to a hearing, because he has failed to raise a substantial issue on the relevant question of whether the Department acted in bad faith. See, e.g., Bienz, 73 A.D.3d at 490; Bradford, 56 A.D.3d at 291. Any contrary rule would undermine the distinction between probationary and tenured public employment, as it would require a hearing in an Article 78 proceeding whenever a probationary employee disagreed with the alleged basis for his or her dismissal. Accordingly, Castro is not entitled to reinstatement or to a hearing, and the petition was properly denied.1 1 If the petition were not dismissed, the Department would of course be entitled to an opportunity to answer the petition in the Supreme Court. See CPLR 7804(f). 17 CONCLUSION For all of the above reasons, the decision and order appealed from should be affirmed, and this proceeding dismissed. Dated: New York, NY September 29, 2015 RICHARD DEARING INGRID R. GUSTAFSON of Counsel Respectfully submitted, ZACHARY W. CARTER Corporation Counsel of the City of New York Attorney for Respondents By: ______/s/__________________ INGRID R. GUSTAFSON Assistant Corporation Counsel 100 Church Street New York, NY 10007 212-356-0853 igustafs@law.nyc.gov 18 PRINTING SPECIFICATIONS STATEMENT This brief was prepared with Microsoft Word 2010, using Century Schoolbook 14 pt. for the body and Century Schoolbook 12 pt. for footnotes. According to the aforementioned processing system, the brief, including portions that may be excluded from a word count pursuant to 22 N.Y.C.R.R. § 600.10(d)(1)(i), contains 3,768 words.
