In the Matter of Raymond Castro, Respondent,v.Dora Schriro,, et al. Appellants.BriefN.Y.May 30, 2017 March 15, 2017 Hon. John P. Asiello Chief Clerk and Legal Counsel to the Court New York State Court of Appeals 20 Eagle Street Albany, New York 12207-1095 Re: Matter of Castro v. Schriro, et al. APL-2016-00224 Dear Mr. Asiello: We submit this letter brief on behalf of the City of New York, the New York City Department of Correction, and Dr. Dora Schriro, as the Department’s former Commissioner (collectively “the City”). In this Article 78 proceeding, petitioner Raymond Castro seeks an order annulling the discontinuance of his service as a probationary correction officer. He nevertheless admits that, in the hours leading up to the death of Jason Echevarria, a Rikers Island inmate, he was the officer directly responsible for Echevarria’s care. Castro has never contended that he was dismissed for any reason other than his conduct before Echevarria’s death. Instead, he alleges only that the Department, which dismissed him following an extensive investigation, was mistaken in determining that he acted improperly. ZACHARY W. CARTER Corporation Counsel THE CITY OF NEW YORK LAW DEPARTMENT 100 CHURCH STREET NEW YORK, NY 10007 INGRID R. GUSTAFSON Phone: (212) 356-0853 Fax: (212) 356-2508 Email: igustafs@law.nyc.gov 2 Over a dissent by Justice Andrias, the Appellate Division, First Department, reversed an order of Supreme Court, New York County (Huff, J.), granting the City’s motion to dismiss the petition. The Appellate Division majority concluded that Castro’s allegations had raised a substantial issue whether his dismissal was “in bad faith” because: (a) Castro’s actions, as alleged by Castro himself, “appear[ed] appropriate” to the court, and (b) the Department had not provided Castro a statement of reasons for his dismissal. The court remanded to Supreme Court, requiring the City to answer the petition and provide the court with a statement of reasons for Castro’s dismissal. This Court should reverse. The Court has repeatedly held that probationary employees are not entitled to a statement of reasons for their dismissals; that they may be dismissed for almost any reason or no reason at all; and that to challenge a discontinuance, the probationer must produce affirmative evidence that the dismissal was illegal or in bad faith. The Appellate Division majority’s decision—which infers bad faith from the lack of a statement of reasons for Castro’s dismissal and from the court’s own judgment that Castro could not have properly been dismissed for cause—directly contradicts these principles. The majority’s reasoning also undermines key attributes of probationary employment. As courts of this State have recognized for over a century, the probationary period is a crucial part of the civil service system because a public employer cannot determine an employee’s fitness for his or her position based on a written test alone, and because an employee may prove unsuitable for numerous reasons that do not rise to the level of misconduct or incompetence constituting good cause for termination. Thus, courts have afforded public employers very broad discretion to dismiss an employee before the employee receives the protections of tenure, which restrict the grounds for dismissal and make dismissals even on those grounds difficult. In denying the City’s motion to dismiss and returning this case to Supreme Court for a statement of reasons and a judicial evaluation of those reasons, the Appellate Division afforded Castro the protections of tenured, not probationary, employment. Collapsing the distinction between these two forms of employment undermines the Department’s ability to ensure that only correction officers who have shown 3 themselves able to ensure the care and safety of the inmates in their charge are afforded the substantial protections of tenure. Because correction officers are the Department’s primary point of contact with inmates, personnel decisions about which officers to retain as tenured employees are crucial to the Department’s ongoing efforts to enhance inmate safety and jail conditions in the City, including at Rikers.1 The Appellate Division’s decision will also have implications beyond the corrections context. Probationary employees—of which there are thousands around this State—allege in case after case that their employers wrongly concluded that they committed misconduct during their probationary period. These employees will unquestionably use the Appellate Division’s decision to invite courts to hold that probationers are entitled both to a statement of reasons for their dismissals and to judicial review of those reasons. That result would nullify probationary employment’s distinctive features, which this Court has repeatedly affirmed as supported by sound public policy. A. Background 1. The New York City Department of Correction The New York City Charter vests the Commissioner of the New York City Department of Correction with the responsibility to provide for the care, custody, and control of the substantial number of inmates in the City’s correctional facilities. See N.Y.C. Charter § 623. The Department operates 14 facilities, handles almost 64,000 admissions annually, and manages an average daily inmate population of almost 10,000.2 About 42 percent of these inmates have been diagnosed with a mental illness, and about 11 percent with a serious mental illness.3 1 See, e.g., City of New York, Preliminary Mayor’s Management Report (Feb. 2017), at 71-76, available at www1.nyc.gov/assets/operations/downloads/pdf/pmmr2017 /2017_pmmr.pdf; Press Release, “Mayor de Blasio, Commissioner Ponte Announce 14-Point Rikers Anti-Violence Agenda,” www1.nyc.gov/office-of-the-mayor/news/166 -15/mayor-de-blasio-commissioner-ponte-14-point-rikers-anti-violence-agenda#/0. 2 Preliminary Mayor’s Management Report, supra note 1, at 71. 3 Preliminary Mayor’s Management Report, supra note 1, at 74. 4 Accordingly, numerous regulations and procedures establish minimum standards for the identification and treatment of inmates with mental illnesses, and for the provision of health care to inmates more broadly. See, e.g., 40 Rules of the City of New York (RCNY) §§ 2-01–2-09, 3.01–3- 15; Dep’t of Correction Directive, Injury to Inmate Reports (at R. 23-31). To enable the Commissioner to carry out these duties, the New York City Charter also vests the Commissioner with the powers of appointment and removal of the 9,000 correction officers employed by the Department. See N.Y.C. Charter § 815(f). The Department’s correction officers have remarkable authority, including to use force against inmates in appropriate circumstances, but they also carry grave responsibilities, including to ensure the safety and care of inmates who, by virtue of their confinement, may be unable to care for or protect themselves in dangerous situations. Indeed, the Department’s rule book expressly provides that correction officers “shall be held responsible” for the proper care, custody, control, and treatment of inmates (R. 20 [Rule 2.30.010]). As relevant here, the correction officer who first has notice of an inmate injury must report the injury to a superior officer, compose a report, and “ensure that the injury report and the inmate are produced in the clinic, without delay” (R. 23-25). See also 40 RCNY §§ 2-03(b)(3), 3-02(b)(6), 3-02(d)(5). The Civil Service Law (CSL) requires correction officers to serve a period of probationary service. See CSL § 63. This period is the Department’s sole opportunity to observe and evaluate a correction officer before deciding whether he or she will be granted tenure. Once granted tenure, correction officers may be dismissed only for certain reasons, and before they can dismissed or disciplined, they receive robust due process protections, including the rights to obtain representation, to receive written notice of the charges, and to a full evidentiary hearing. See CSL §§ 75(1)–(2). The probationary period is an important means of ensuring that officers who receive these protections have the necessary judgment and skills to ensure the safety and security of inmates in their charge. 5 2. Castro’s dismissal following the death of Rikers inmate Jason Echevarria We summarize here the facts as alleged in Castro’s Article 78 petition. Castro, a probationary officer, was dismissed eleven months after Jason Echevarria, a Rikers inmate who had been in Castro’s care, died in custody (R. 13-17). Castro admits that, before Echevarria’s death, Echevarria told him that he had swallowed a soap ball containing bleach, that Castro saw vomit in Echevarria’s cell, and that Castro was told by a medical technician that Echevarria needed medical attention, but Castro did not get Echevarria medical attention (R. 14- 17). Before dismissing him, the Department investigated the circumstances surrounding Echevarria’s death (R. 17). Castro now maintains, based on his own version of events, that his failure to get Echevarria medical attention was justified, and that the Department incorrectly determined that he committed misconduct before Echevarria’s death (R. 13, 17, 56, 61). Castro’s version of events is as follows. During a scheduled shift on August 17, 2012, Castro was working at a mental health unit at the Department’s Rikers Island facility in Queens, New York (R. 13). Along with another correction officer and a supervisor, Captain Terrence Pendergrass, Castro was assigned to a housing area, where he was responsible for the care, custody, and control of the inmates (R. 14). Castro alleges that, while touring his assigned area, one of the inmates for whom he was responsible, Jason Echevarria, told him that he had swallowed a soap packet containing bleach, and that he wanted to see medical staff (R. 14). After first informing another officer, Castro told Captain Pendergrass what Echevarria had said (R. 14). According to Castro, Pendergrass told him that there was no need to contact medical staff, and to call him only “if [he] need[ed] an extraction, or if [he] ha[d] a dead body” (R. 15). 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). Again, Castro does not allege that he took any further actions on Echevarria’s behalf. 6 Within the next hour, Castro continues, 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). According to Castro, the second officer told Pendergrass what Echevarria had said, and Pendergrass told the second officer to write a report (R. 16). 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). According to Castro, Pendergrass approached him and asked him whether he had contacted anyone of significance (R. 16). 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). At this point, 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 took any steps on Echevarria’s behalf upon being relieved of his post. According to Castro, he was informed the next day that Echevarria had died after he had completed his shift (R. 17). 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). Castro alleges that, following these investigations, he was dismissed after the Department determined that he had committed “some ‘misconduct’” in the time leading up to Echevarria’s death (R. 17). 3. Castro’s challenge to the termination of his probationary employment and Supreme Court’s order dismissing his petition Castro filed an Article 78 petition in Supreme Court, New York County, seeking reinstatement or, in the alternative, a hearing on any disputed issues of fact (R. 12-18). Although he generally asserted that his dismissal was in bad faith, contrary to law, and arbitrary and capricious (R. 13, 17), the only factual allegation Castro made about the dismissal was that he was dismissed for misconduct following an investigation into Echevarria’s death (R. 13). Castro did not allege, let 7 alone set forth any evidence, that he had been dismissed for any illegal or constitutional reason, with any improper motive, or even for a reason unrelated to Echevarria’s death. Instead, in his accompanying memorandum of law, Castro sought to show that his dismissal lacked a rational basis because any decision that he had committed misconduct was incorrect (R. 56, 61 [“[T]he Respondents’ allegations are without a sound basis in reason, and based on erroneous facts.”]). Castro insisted that he had fulfilled all of his obligations as a correction officer by informing Pendergrass of Echevarria’s condition and by following Pendergrass’ order that he return to his post (R. 56, 63). Supreme Court, New York County (Huff, J.), dismissed the petition on the City’s motion (R. 7-9). The court concluded that Castro had failed to state a cause of action because he had not “shown, or even alleged” that the investigations that led to his dismissal were made in bad faith or for some impermissible reason (R. 8-9). On appeal, Castro again sought to show that his dismissal was irrational because, based on his own allegations, there was no “suggest[ion] that he did anything wrong” (App. Br. at. 12). 4. The Appellate Division’s divided ruling reinstating Castro’s petition The Appellate Division, in a three-to-one decision, reversed the lower court’s dismissal of the petition and remanded to Supreme Court, requiring the City to answer the petition. Castro v. Schriro, 140 A.D.3d 644, 644, 649 (1st Dep’t 2016). The majority opined that, based on his own version of events, Castro’s actions “appear[ed] appropriate,” and thus the Department’s discontinuance of his probationary services, “without an explanation, appear[ed] questionable and in bad faith.” Id. at 644. Although Castro had never alleged that he was dismissed for any reason other than misconduct associated with Echevarria’s death, the majority speculated that the dismissal “may” have been the result of some unspecified “improper basis” that was “unrelated to work performance.” Id. at 648. 8 The majority further held that reversal was warranted based on what it considered to be the “unique procedural scenario” of the proceeding. Id. at 647. Criticizing the Department for not giving Castro a statement of reasons for his dismissal, the majority held that the City “should be required to provide responsive pleadings so as to explain the basis of the termination” before the petition was dismissed. Id. at 649. Justice Andrias dissented. Citing the established standard that a probationary employee may be dismissed for any reason or for no reason at all, and that a probationary employee is not entitled to a statement of reasons, the dissent concluded that the majority had misapplied that standard and that Castro had failed to carry his heavy burden of producing competent evidence that his dismissal was for an improper reason or motivated by bad faith. See id. at 650-52. The dissent reasoned that the majority’s premise—that a potentially erroneous misconduct determination is competent evidence of bad faith—was flawed and had been rejected by numerous courts. See id. at 653-54. The dissent lastly found that the record revealed a clear good-faith basis for Castro’s dismissal: his failure to carry out his duty to provide for the care and safety of an inmate in his charge. See id. at 654-57. The Appellate Division subsequently granted the City leave to appeal, certifying its decision for review by this Court pursuant to CPLR 5713 by order dated November 22, 2016. B. Argument The decision on appeal should be reversed because it misapplies settled precedent and subverts the public policies underlying probationary employment. Under the Appellate Division’s reasoning, a dismissed probationer may force a public employer to answer an Article 78 petition, explain the employee’s discontinuance, and submit that explanation for judicial review simply by disputing whether his or her job performance fell short. But extending probationers these protections—which are the hallmarks of tenured, not probationary employment—contravenes established authority. It also denies public employers the broad discretion necessary to determine whether a 9 probationer is fit for tenured employment and the substantial legal protections that tenure entails. 1. This Court’s precedent strictly limits the grounds for challenging the dismissal of a probationary employee. For over a century, this Court has held that probationary employees are not entitled to the same legal protections as tenured employees. See Sweet v. Lyman, 157 N.Y. 368, 378-79 (1898). The distinction flows from two sources: (a) the legal principle that a probationer has no property rights in his or her employment, and (b) the public policy consideration that a public employer cannot determine an employee’s fitness for his or her position based on a written test alone. See Swinton v. Safir, 93 N.Y.2d 758, 762-73 (1999); Venes v. Cmty. Sch. Bd., 43 N.Y.2d 520, 525 (1978); Sweet, 157 N.Y. at 379-81. Employers must be afforded a practical opportunity to ensure that an employee has the necessary skills, judgment, and disposition for the position before awarding the employee tenure. See Sweet, 157 N.Y. at 380-81; Albano v. Kirby, 36 N.Y.2d 526, 531 (1975). Accordingly, it has long been the rule that the dismissal of a probationary employee need not be for cause, and that a probationer may instead be dismissed for almost any reason or no reason at all. See Swinton, 93 N.Y.2d at 762-73; Venes, 43 N.Y.2d at 525. Probationary employees are not entitled to a statement of reasons for their dismissal, an administrative hearing, or other procedural protections. See York v. McGuire, 63 N.Y.2d 760, 761 (1984). To challenge a dismissal in an Article 78 proceeding, a probationer must come forward with competent evidence in his or her petition that the dismissal was for an impermissible reason. See Bergamini v. Manhattan & Bronx Surface Trans. Op. Auth., 62 N.Y.2d 897, 899 (1984), rev’g 94 A.D.2d 441 (1st Dep’t 1983); Anonymous v. Codd, 40 N.Y.2d 860, 860 (1976). For these same reasons, this Court has strictly limited what constitutes an impermissible reason for the dismissal of a probationary employee. Generally, a petitioner must show that the dismissal was for an unconstitutional or illegal reason. See, e.g., Holbrook v. State Ins. Fund, 54 N.Y.2d 892, 894 (1981); York, 63 N.Y.2d at 761; Stanziale v. Exec. Dep’t of Off. of Gen. Servs., 55 N.Y.2d 735, 736-37 (1981). 10 Although this Court has also stated that a probationer may not be dismissed in “bad faith,” research has revealed no decision of this Court finding bad faith absent evidence of an unconstitutional or statutorily impermissible motive. See, e.g., Cohen v. Koehler, 82 N.Y.2d 882, 884-85 (1993) (holding that probationary correction officer failed to raise an issue of fact regarding bad faith where he alleged that the department conducted a selective investigation and withheld information from the administrative record), rev’g 181 A.D.2d 285 (1st Dep’t 1992); Johnson v. Katz, 68 N.Y.2d 649, 650 (1986) (finding no bad faith where probationary employee asserted that she was told she was being dismissed to protect other employees from layoffs, but evidence suggested she had interpersonal problems with other employees). This Court’s refusal to recognize an expansive conception of bad faith accords with New York’s established policy of declining to imply a covenant of good faith in at-will employment contracts. See Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293, 304-05 (1983).4 Probationary public employment, during which an employee may be dismissed for almost any reason or no reason at all, is essentially at-will employment. See Bd. of Educ. v. Bellmore-Merrick United Secondary Teachers, Inc., 39 N.Y.2d 167, 172 (1976) (probationers may be dismissed “at will”); Segal v. City of N.Y., 459 F.3d 207, 215 (2d Cir. 2006) (describing probationary public employment as “at will”); compare Murphy, 58 N.Y.2d at 300 (at-will employee may be dismissed for “any reason or even for no reason”), with Swinton, 93 N.Y.2d at 762-63 (probationer may be dismissed “for almost any reason, or for no reason at all”). To the extent this Court recognizes “bad faith” as an independent limitation on termination, a probationer must at least establish a 4 Indeed, the majority of states have, like this one, refused to hold that there is an implied covenant of good faith in at-will employment contracts. Those that have recognized the covenant have typically limited the circumstances that establish bad faith. Such circumstances include a dismissal for the purposes of depriving an employee of earned compensation, see Fortune v. Nat’l Cash Register Co., 364 N.E.2d 1251, 1256-58 (Mass. 1977), or a dismissal in retaliation for performing an act encouraged by public policy or refusing to do an act that public policy would condemn, see MacKenzie v. Linehan, 158 N.H. 476, 480 (2009) (citing as examples reporting for jury duty or refusing to submit false records to the IRS). 11 nefarious motive for the termination and the absence of any good faith basis supporting the decision. See Kalisch-Jarcho, Inc. v. City of N.Y., 58 N.Y.2d 377, 385 & n.5 (1983) (defining “bad faith” in the breach-of- contract context as intentional wrongdoing with a “sinister intention” and “dishonest purpose”); James v. Bd. of Educ., 37 N.Y.2d 891, 892-93 (1975) (probationer could not “bootstrap himself” around motion to dismiss by claiming that public employer dismissed him to “harm him without justification,” an allegation that could be made in any case). As explained below (at pp. 18-20), an overly broad definition of “bad faith”—like the one that the Appellate Division majority employed here—undermines the foundational principles and attributes of probationary employment. 2. Castro’s petition contains no competent evidence that his dismissal was for any impermissible reason. Under these well-settled principles, the Appellate Division’s decision should be reversed and the petition dismissed. Castro’s petition is bereft of any allegation, let alone any proof, that the Department dismissed him for any unconstitutional or illegal reason, or even that it dismissed him out of an improper motive. Instead, his sole allegation about the dismissal—and the premise of his entire petition—is that he was dismissed for misconduct surrounding Echevarria’s death (R. 13, 17). But these allegations do not state a cause of action for the annulment of his dismissal. Instead, they affirmatively preclude it. a. Castro cannot rely on his belief that his actions were justified to satisfy his burden of proving bad faith. An Article 78 proceeding is not a vehicle for a probationary employee to force the employer to justify its decision not to continue the employment. That approach would contravene both the rule that a probationer may be dismissed for virtually any reason or none at all and the related rule that the employer need not provide reasons for its decision. Thus, a probationer challenging his or her dismissal bears the burden of coming forward in the petition with competent evidence demonstrating that the dismissal was for an improper reason. See, e.g., Tomlinson v. Ward, 66 N.Y.2d 771, 773 (1985), aff’g for reasons stated 12 below, 110 A.D.2d 537 (1st Dep’t 1985); Bergamini, 62 N.Y.2d at 899; Codd, 40 N.Y.2d at 860; James, 37 N.Y.2d at 892-93. Because the burden lies firmly with the probationer, motions to dismiss do not present a “unique procedural scenario” in this context, as the Appellate Division majority asserted. Castro, 140 A.D.3d at 647. To the contrary, New York appellate courts—including the First Department—routinely affirm or direct the dismissal of petitions that do not include competent evidence of bad faith. See, e.g., Tomlinson, 66 N.Y.2d at 773 (affirming grant of pre-answer motion to dismiss petition brought by probationary correction officer where petitioner did not meet burden of showing bad faith); Bergamini, 62 N.Y.2d at 899; Stanziale, 55 N.Y.2d at 736-37; Codd, 40 N.Y.2d at 860; James, 37 N.Y.2d at 892- 93; Phucien v. City of N.Y. Dep’t of Corr., 129 A.D.3d 505, 506 (1st Dep’t 2015); Welsh v. Kerik, 304 A.D.2d 417, 417 (1st Dep’t 2003); Brown v. City of N.Y., 280 A.D.2d 368, 370 (1st Dep’t 2001); see also CPLR 7804(f) (providing that Article 78 respondent may raise a legal objection to the petition in a motion to dismiss). Here, the petition fails based on what it omits to plead, and also based on what it affirmatively pleads. First, as the trial court held (R. 8- 9), the petition does not allege, let alone offer any proof, that Castro’s dismissal was for an impermissible reason or effected with some improper motive. To the contrary, the petition expressly alleges that Castro was dismissed for his work-related conduct in the time leading up to Echevarria’s death. Thus, Castro’s petition does not satisfy his threshold burden to raise a substantial issue of bad faith. See, e.g., Tomlinson, 66 N.Y.2d at 773; Bergamini, 62 N.Y.2d at 899. Second, and independently, because Castro’s own affirmative allegations establish a basis for his dismissal that sounds in good faith, he cannot satisfy his burden here. This Court has repeatedly held that allegations of bad faith are insufficient to state a cause of action for the annulment of a probationer’s dismissal where the record includes other evidence of good faith. See, e.g., Johnson, 68 N.Y.2d at 650; Cohen, 82 N.Y.2d at 884-85. Castro’s own allegation that he was dismissed for misconduct following an investigation of Echevarria’s death by the Department, the Manhattan District Attorney’s Office, the New York 13 City Department of Investigation, and the U.S. Attorney’s Office itself satisfies that standard. As the dissenting justice in the Appellate Division reasoned, see Castro, 140 A.D.3d at 654-57, Castro’s other allegations in the petition further demonstrate that his dismissal was in good faith. Castro admits that: (a) he was directly responsible for Echevarria’s care in the hours leading up to Echevarria’s death, (b) he knew Echevarria had swallowed a toxic substance and needed medical attention, (c) he directly and repeatedly observed Echevarria’s deteriorating condition, (d) he was told by medical staff that Echevarria needed medical attention, and (e) he nonetheless did not get Echevarria medical attention. Castro does not allege that he ever tried to notify another supervisor or other medical staff about Echevarria’s distress, either during or after his shift. Castro has never adequately explained why a dismissal based on these facts is in bad faith, or in any respect improper. Throughout this proceeding, Castro has relied on the contention that his dismissal was irrational because he fulfilled all of his obligations as a correction officer by reporting Echevarria’s distress to Captain Pendergrass, and by complying with Pendergrass’ order that he remain at his post (R. 56, 63). As discussed below (at pp. 15-17), the Department could reasonably have concluded otherwise. But Castro’s contention is in any event beside the point, because it is merely an assertion that his conduct regarding Echevarria should be regarded as justified or excused—in other words, that there was not good cause for his dismissal. But the good cause standard applies when a tenured employee is considered for dismissal. It has no application to probationary employment.5 5 In its earlier decisions rejecting challenges to agencies’ dismissals of probationers, this Court at times referenced the “arbitrary and capricious” standard of review alongside the “bad faith” standard. See, e.g., Codd, 40 N.Y.2d at 861; Farrell v. N.Y.C. Police Dep’t, 37 N.Y.2d 843, 843-44 (1975). However, this Court’s more recent decisions typically omit any reference to that standard, even when cited by the courts below. See, e.g., Duncan v. Kelly, 9 N.Y.3d 1024, 1025 (2008); Swinton, 93 N.Y.2d at 762-63. To the extent the “arbitrary and capricious” standard applies in this context, it should be construed in light of established principles that courts Continued… 14 Castro cannot overcome the problem by casting his disagreement with the Department’s decision as a matter of “bad faith” (R. 13). This Court has rejected such a malleable understanding of “bad faith” and repeatedly reaffirmed in this context that disputes about whether an agency’s decision is correct do not frame a viable claim. For example, in Anonymous v. Codd, 40 N.Y.2d 860 (1976), this Court held that a probationer’s dismissal based on pre-hiring contacts with organized crime was not in bad faith, even accepting the truth of probationer’s innocent explanation for the contacts. See id. at 861. And in Swinton v. Safir, 93 N.Y.2d 758 (1999), this Court held that a probationer’s insistence that the agency improperly failed to credit his version of the events that led to his dismissal was insufficient to raise a substantial issue of bad faith. See id. at 762-63. Simply put, allegations that the employer’s judgment was mistaken do not raise an issue of bad faith because the concept of bad faith is “entirely tied to motive.” Tractebel Energy Mktg. v. AEP Power Mktg., 487 F.3d 89, 100 n.8 (2d Cir. 2007) (analyzing New York law). Indeed, with the exception of the majority’s decision here, decisions of the Appellate Division applying this Court’s precedent have repeatedly 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, the Second Department held that a former probationary correction officer’s claim that the Department had made an erroneous misconduct determination, and that his use of force against an inmate was justified, were insufficient to raise a substantial issue of bad faith. See id. (upholding grant of Department’s pre-answer motion to dismiss). Similarly, in Cortijo v. Ward, 158 A.D.2d 345 (1st Dep’t 1990), the First Department found that “conflicting opinions” about the reasons for a probationer’s dismissal were insufficient to raise a substantial issue of bad faith, even review a probationer’s dismissal only if he or she adduces affirmative evidence of illegality, unconstitutionality, or bad faith. See Swinton, 93 N.Y.2d at 762-73; Venes, 43 N.Y.2d at 525. A broader review would undermine the purposes and attributes of probationary employment. Indeed, this Court has construed the scope of Article 78 review narrowly in other contexts to avoid intruding on agency discretion. See, e.g., Pell v. Bd. of Educ., 34 N.Y.2d 222, 232-33 (1974) (constraining judicial review of agency-imposed penalty to whether penalty “shocks the conscience”). 15 though the employer had not given the employee a statement of reasons for her dismissal. See id. (same).6 The same result should obtain here. A probationer’s belief that his or her actions were justified is not competent evidence that an employer acted in bad faith. b. In any event, Castro’s insistence that his dismissal was unjustified does not withstand scrutiny. The Court need not and should not go any further to conclude that Castro’s petition is inadequate. But even if Castro were entitled to challenge his dismissal on the ground that it was unjustified (and he is not), as the Appellate Division suggests, the petition provides nothing to support such a challenge. First, Castro’s own allegations and the materials he attached to the petition show that he did not fulfill his responsibilities as a correction officer. Second, these allegations also show, at a minimum, that the Department acted in response to a very serious incident involving Castro that resulted in the death of an inmate. Whether a court would have dismissed Castro under these same circumstances, had it been the one charged to make that decision, is not the relevant standard of review in an Article 78 proceeding brought by a probationer. 6 See also Green v. N.Y.C. Hous. Auth., 25 A.D.3d 352, 353 (1st Dep’t 1996) (factual disputes about misconduct allegations “show[] no more than that [the agency]’s determination may have been mistaken,” and do not raise any issue of bad faith); Weir v. Bratton, 4 A.D.3d 160, 160 (1st Dep’t 2004) (same); Bruscino v. Kelly, 95 A.D.3d 447, 448 (1st Dep’t 2012) (contention that conduct causing dismissal was inadvertent insufficient to raise issue of bad faith); Turner v. Horn, 69 A.D.3d 522, 522 (1st Dep’t 2010) (evidence challenging basis for dismissal insufficient to raise issue of bad faith); Bienz v. Kelly, 73 A.D.3d 489, 490 (1st Dep’t 2010) (factual disputes about whether probationer committed misconduct insufficient to raise issue of bad faith); Bradford v. N.Y.C. Dep’t of Corr., 56 A.D.3d 290, 291 (1st Dep’t 2008) (same); Walsh v. N.Y. State Thruway Auth., 24 A.D.3d 755, 757 (2d Dep’t 2005) (credibility dispute insufficient to raise issue of bad faith). 16 A review of the materials Castro relies upon in the petition makes clear that Castro did not satisfy his responsibilities as a correction officer merely by reporting Echevarria’s condition to Captain Pendergrass or by following an order to “take his post” (R. 16). The relevant rules and regulations expressly provide that correction officers “shall be held responsible” for the “proper care, custody, control and treatment of inmates” (R. 20), and that every inmate requiring medical attention “shall be afforded [it]” (R. 23). They further provide that the correction officer to whom an inmate first reports an injury—in this situation, Castro—must compose a report and “[e]nsure” that the report and the inmate are produced to the clinic “without delay” (R. 24-25). Lastly, they contemplate that notice to a supervisor will not always be practicable depending on the urgency of the situation, and direct the correction officer to notify the supervisor as soon as possible, including after the inmate has already been referred to the clinic for care (R. 24). Castro failed to fulfill these requirements. Despite repeatedly and personally observing Echevarria’s steadily deteriorating condition over the course of hours, he did not obtain medical care for Echevarria, either by escorting Echevarria to the clinic himself, or by asking another officer, another supervisor, or medical staff to do so. Moreover, even at the end of his shift, when he was no longer under Pendergrass’ immediate authority, Castro did not get Echevarria medical attention. Instead, without even reporting Echevarria’s condition to fellow officers, another supervisor, or medical staff, Castro simply left the facility, only to learn the next day that Echevarria died after he had done so. That Castro advised Captain Pendergrass of Echevarria’s complaints, and that Pendergrass also failed to take action, did not relieve Castro of his independent and concurrent obligations to ensure the safety of an inmate in his charge. Similarly, Pendergrass’ eventual federal conviction for violating Echevarria’s civil rights, see Castro, 140 A.D.3d at 647, does not render Castro blameless, let alone constitute evidence that the Department acted in bad faith in dismissing him. Instead, the criminal case confirms the seriousness of this incident. A finding of criminal liability is not a prerequisite for the dismissal of a tenured correction officer who has failed to carry out his responsibilities. It certainly is not a prerequisite 17 for the dismissal of a probationary officer like Castro—who may be dismissed for almost any reason or no reason at all. At bottom, Echevarria’s death in custody, following a long period of evident distress, is unquestionably a serious matter. The stark disagreement between the Appellate Division majority and dissent demonstrates that, at the very least, reasonable minds can disagree about whether Castro’s conduct in the time leading up to Echevarria’s death, according to his own account, was appropriate. But that the employer’s decision whether to dismiss a probationer may have been a difficult one does not come close to showing that the dismissal was unjustified, let alone that it was for some impermissible reason or in bad faith. It is precisely because these decisions can be difficult that courts afford broad discretion to agencies that have the relevant expertise in these circumstances. 3. The Appellate Division’s decision is contrary to binding precedent and weakens crucial attributes of probationary employment. a. The decision improperly relied on considerations not alleged in the petition. In reversing Supreme Court’s order dismissing the petition, the Appellate Division improperly relieved Castro of his burden to show an impermissible basis for his dismissal. Although Castro has never contended at any point in this proceeding that he was dismissed for any reason other than his conduct in the time leading up to Echevarria’s death, the Appellate Division concluded that Castro’s dismissal “appear[ed] questionable” and thus “may” have been the result of some unspecified improper basis that was unrelated to work performance. Castro, 140 A.D.3d at 648-49. But a motion to dismiss focuses on the petition, and the court was not free to speculate about an improper motive that Castro did not even allege. See Bergamini, 62 N.Y.2d at 899 (probationer could not rely on contentions that dismissal violated his constitutional rights where relevant allegations were not in petition). Even if Castro had asserted that the Department terminated him for a reason unrelated to work performance, the law is clear that such 18 allegations are insufficient to state a claim. A probationer must instead come forward with evidence of an impermissible reason or an improper motive. But the Appellate Division neither pointed to any such evidence, nor attempted to identify what the purported improper motive could be under these circumstances. Indeed, in its own prior decisions, the First Department has repeatedly held that speculative and conclusory allegations of bad faith—even where, unlike here, the probationer identifies an allegedly improper motive in the petition—are insufficient to state a cause of action. See, e.g., Phucien, 129 A.D.3d at 506; Che Lin Tsao v. Kelly, 28 A.D.3d 320, 321-22 (1st Dep’t 2006). Moreover, binding precedent precluded the Appellate Division from inferring bad faith from the lack of a statement of reasons for Castro’s discontinuance. See Castro, 140 A.D.3d at 649 (“[W]hen a termination is putatively related to work-related deficiencies, one would expect [the Department] to refute contrary allegations or, if true, to provide an explanation of the work-related deficiencies.”); id. (“At the very least, [the Department] ... should be required to provide responsive pleadings so as to explain the basis of the termination.”). Although the Appellate Division found the lack of such a statement highly suspicious, this Court has made clear that a statement of reasons is not required until the probationer comes forward with evidence of bad faith. See York, 63 N.Y.2d at 761. No inference of bad faith can properly be drawn from the City’s failure to offer an explanation when the City was under no obligation to provide one. Similarly, under established principles, it is irrelevant that Castro’s conduct “appear[ed] appropriate” to the court. Castro, 140 A.D.3d at 644. Mere disagreement with the judgment underlying a dismissal is not evidence that the dismissal was in bad faith. And because a probationer may be dismissed for any reason or no reason at all, it is not relevant whether a court would have itself dismissed the employee for cause. b. The Appellate Division’s reasoning undermines key attributes of probationary employment. The Appellate Division’s analysis erases core distinctions between probationary and tenured employment. In ordering the City to answer 19 the petition, the court required the City to create a statement of reasons and submit them for Supreme Court’s review. See Castro, 140 A.D.3d at 649. But notice of the reasons underlying a dismissal, procedures to test those reasons, and judicial review of the reasons are the protections of tenured employment, not of probationary employment. See generally Pell v. Bd. of Educ., 34 N.Y.2d 222 (1974). The two phases of civil service employment are sharply different by deliberate statutory design: the Civil Service Law mandates that every civil service employee must serve a probationary period before the protections of tenure attach. See CSL § 63; Segal, 459 F.3d at 215 (government has “traditionally” required “a probationary, at-will period” before affording the rights and privileges associated with tenured employment). The strict limits on judicial review of the dismissal of probationary employees serve an important function, ensuring that public employers like the Department retain broad discretion—in practice, not just in theory—to determine whether probationers are fit for their positions. See Bergstein, 34 N.Y.2d at 322. Although employees may be unsuitable for service for many reasons, once afforded tenure an employee may be dismissed for only limited reasons, and must be afforded substantial procedural protections before any dismissal. As this Court recognized long ago, public employers therefore must have an opportunity to dismiss unsuitable employees quickly and efficiently before they are permanently granted the substantial protections of tenure. See Sweet, 57 N.Y. at 381-82; Albano, 36 N.Y.2d at 531; Segal, 459 F.3d at 215. As the facts of this case demonstrate, Department officials, who are ultimately responsible for the management of the Department and the care of the inmates in its custody, are best placed to make these difficult decisions. The Department manages an extensive jail system and understands the grave responsibilities of, and challenges faced by, the Department’s 9,000 correction officers. Department officials observe probationers directly and can investigate incidents, make credibility determinations, and evaluate whether a probationer exhibits the qualities of a successful officer first-hand. Through this process, they ensure that only probationers who have demonstrated the necessary skills and judgment continue to be entrusted with the control and safety of inmates. As this Court has observed even in the context of tenured employment, judicial deference to such judgments is essential because 20 “it is the agency and not the courts which, before the public, must justify the integrity and efficiency of their operations.” Pell, 34 N.Y.2d at 235 (explaining adoption of “shocks the conscience” standard of review of agency penalties). The Appellate Division’s departure from settled principles in this proceeding is especially concerning because municipal and state agencies across New York employ probationary workers in great numbers. The court’s analysis opens the door for dismissed probationers to routinely invite courts to second-guess employment decisions made by agencies based only on the probationer’s self-serving allegations that he or she did nothing wrong or did not receive a statement of reasons. Indeed, Castro’s attorney has openly described the Appellate Division’s ruling as “acknowledg[ing] that the Department of Correction has a responsibility to justify why it is they’re letting people go”7—a proposition that is contrary to binding precedent and undermines the standards for probationary employees. Probationary employees frequently contend that their employing agencies wrongly determined that they fell short in their conduct or performance. But courts have consistently rejected such allegations as insufficient to show an impermissible purpose or an improper motive that would require the employer to answer the petition and demonstrate that no such reason or motive existed. The same result should obtain here. Castro has never suggested, let alone adduced evidence to show, that the Department had any impermissible reason or an improper motive in discontinuing his probationary employment. C. Conclusion This Court should reverse the Appellate Division’s decision and order, reinstate Supreme Court’s order granting the City’s motion to dismiss the petition for failure to state a cause of action, and dismiss the petition. In accordance with this Court’s Rule 500.11, the City also 7 Mark Toor, “Appeals Court Rules CO Firing Seems ‘Bad Faith,’” The Chief-Leader (July 11, 2016), available at http://thechiefleader.com/news/news_of_the_week /appeals-court-rules-co-firing-seems-bad-faith/article_b173f3d2-2764-11e6-a669- 53463aea54ff.html. 21 notes its position that, given the importance of the certified question, this appeal warrants full briefing and argument. Respectfully submitted, /s/ Ingrid R. Gustafson Ingrid R. Gustafson Assistant Corporation Counsel Richard Dearing Claude S. Platton of Counsel cc: Koehler & Isaacs, LLP Attn: Liam L. Castro, Esq. 61 Broadway, 25th Floor New York, New York 10006 Counsel for Petitioner-Respondent Raymond Castro CERTIFICATION OF COMPLIANCE I hereby certify that this letter brief was prepared using Microsoft Word 2010, and according to that software, it contains 6,968 words in the body of the submission. ___________________________ INGRID R. GUSTAFSON