In the Matter of Raymond Castro, Respondent,v.Dora Schriro,, et al. Appellants.BriefN.Y.May 30, 2017April 19, 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: Pursuant to 500.11(e) of the Court’s rules, the City respectfully requests the Court’s permission to submit this letter in reply to the arguments set forth in Raymond Castro’s letter brief dated April 4, 2017. The City believes that this reply will be helpful to the Court in deciding the important issues presented in this appeal. The City’s opening letter established that the Appellate Division, First Department, erred in reversing Supreme Court’s decision granting the City’s motion to dismiss the petition. As the City demonstrated, Castro did not satisfy his burden to come forward, in the petition, with competent evidence that he was dismissed for an unconstitutional or illegal reason, or in bad faith. Moreover, the very premise of his petition was that he was dismissed for his work-related conduct in the hours leading up to the death of Jason Echevarria, which is a dismissal in good faith. In denying the motion to dismiss under these circumstances, and in remanding for a judicial evaluation of the reasons for Castro’s termination, the Appellate Division contravened settled precedent and subverted the public policies underlying probationary employment. 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 Castro’s letter offers little to rebut these points. Indeed, Castro does not deny that the petition lacks competent evidence that he was dismissed for an impermissible reason, or with an improper motive. Nor does he dispute that the very premise of his petition is that he was dismissed for work-related conduct. Instead, based on his own version of events, Castro insists that the Appellate Division properly determined that he raised a question whether his dismissal was “arbitrary and capricious” in the sense that it lacked a rational basis. But Castro does not explain how applying that more restrictive standard of review can be squared with this Court’s precedents, or maintains a meaningful distinction between a probationer and a tenured employee. Nor could he. Applying rational-basis review would conflict with long-established precedent applying a narrower standard. It would also impose new constraints on the Department’s ability to ensure that only probationary officers who have demonstrated the necessary skills and judgment are awarded the substantial protections of tenure. That result ultimately would compromise the Department’s ability—and the ability of public employers across the State—to provide public services effectively and efficiently, and to ensure the safety of members of the public in their care. A. Castro’s contentions rely on the wrong standard of review. In its opening letter, the City demonstrated that, under binding precedent, a probationer may be dismissed for almost any reason or no reason at all, and that to challenge his or her dismissal, a probationer must come forward, in the petition, with competent evidence that he or she was dismissed for an unconstitutional or illegal reason, or in bad faith (App. Letter Br. at 9-10, 11-12). But beyond a few brief nods to one of this Court’s decisions (Resp. Letter Br. at 5, 7 [mentioning Swinton v. Safir, 93 N.Y.2d 758 (1999)]), Castro ignores the extensive precedent cited by the City. Instead, relying almost entirely on Pell v. Board of Education, 34 N.Y.2d 222 (1974), and Scherbyn v. Wayne Finger Lakes Board of Cooperative Education Services, 77 N.Y.2d 753 (1974), Castro insists that the Appellate Division’s decision was proper because his dismissal lacks a rational basis, and was therefore arbitrary and capricious (id. at 2, 3, 5-6, 6-7). 3 But neither Pell nor Scherbyn supports Castro’s position. Pell addressed the standards to be applied to tenured, not probationary, employees. See Pell, 34 N.Y.2d at 235-41. And in Scherbyn, the petitioner pleaded, without contradiction, that the “more stringent and unique” civil service rules that apply within Ontario County, New York, limited the grounds upon which a probationer can be dismissed in that county, and that the petitioner was not dismissed on one of those grounds. Scherbyn, 77 N.Y.2d at 759. Castro does not make any similar allegation here, and the usual standard requiring a showing of an illegal reason or bad faith applies in this case. See Swinton v. Safir, 93 N.Y.2d 758, 762-63 (1999) (applying usual standard to dismissal of probationary New York City police officer); Duncan v. Kelly, 9 N.Y.3d 1024, 1025 (2008) (same). Nor has Castro explained how applying rational-basis review can be reconciled with established precedent, since this Court has long held that a probationer may be dismissed for almost any reason or “no reason at all,” Swinton, 93 N.Y.2d at 762-63; Venes v. Cmty. Sch. Bd., 43 N.Y.2d 520, 525 (1978), and that an employer need not come forward with a statement of reasons for a probationer’s dismissal, see York v. McGuire, 63 N.Y.2d 760, 761 (1984). Castro does not offer any reason why this Court should depart from established precedent and apply a more restrictive standard of review. To the contrary, for the reasons set forth in the City’s opening brief (App. Letter Br. at 18-20), it should not. Castro’s bare citation to CPLR 7803(3), which provides that one of the questions that may be raised in an Article 78 proceeding is whether the agency determination was arbitrary and capricious, is unavailing in light of binding precedent that a probationer seeking to challenge his or her dismissal must come forward with affirmative evidence of illegality or bad faith (see App. Letter Br. at 9-10, 11-12). It is not uncommon for this Court to construe general language in CPLR 7803 to prescribe narrower standards of review in particular contexts, in light of established principles. See, e.g., Pell, 34 N.Y.2d at 232-33 (constraining judicial review of agency-imposed penalty to whether penalty “shocks the conscience,” though CPLR 7803(3) refers only to “abuse of discretion”). Here, as the City demonstrated in its opening letter, a 4 broader review would undermine the purposes and attributes of probationary employment. Finally, Castro fails to rebut the City’s showing that a dismissal based on the facts in the petition would be fully rational, even if that were the proper standard of review (and it is not) (App. Letter Br. at 15- 17). Instead, Castro again insists that he fulfilled certain of his duties as a correction officer during his shift, and that other correction officers also failed to fulfill their duties (Resp. Letter Br. at 4-5, 7-8). But none of his allegations demonstrates, beyond any potential for a rational contrary view, that Castro, as the officer directly responsible for Echevarria’s care, satisfied his obligation to ensure that Echevarria received medical attention (App. Letter Br. at 16). Nor do they show that the Department, which was responding to a very serious incident involving Castro that resulted in the death of an inmate, would have been unjustified in dismissing Castro even if that were the proper inquiry (id. at 15, 17)—let alone that the dismissal was for some impermissible reason or in bad faith. B. Castro offers no persuasive defense of the Appellate Division’s reasoning. In its opening letter, the City demonstrated that the Appellate Division’s decision improperly relied on considerations not alleged in the petition (App. Letter Br. at 17-18). Although Castro has never contended that he was dismissed for any reason other than his conduct in the time leading up to Echevarria’s death, the Appellate Division improperly speculated that Castro’s dismissal “may” have been the result of some unspecified improper basis (id. [quoting Castro v. Schriro, 140 A.D.3d 644, 649 (1st Dep’t 2016)]). The court also concluded that the lack of a statement of reasons for Castro’s dismissal raised a substantial question of bad faith, even though this Court has expressly held that such a statement is not required (id. at 18). Castro fails to advance any persuasive defense of the Appellate Division’s analysis. Indeed, he essentially concedes that the Appellate Division did not require him to come forward with competent evidence of illegality or an improper motive, as is required (App. Letter Br. at 6). By Castro’s own characterization, “all the Appellate Division held” was 5 that it would be “arbitrary, capricious, and without regard to the facts” to dismiss Castro based on Castro’s version of events in the petition (id.). But as discussed, that is not the correct standard of review. To the extent that Castro appears to defend the Appellate Division’s analysis on the issue of bad faith (id. at 2, 7, 8), he offers no reasoned support for his contentions. Instead, he conflates the general arbitrary-and-capricious standard with the bad-faith standard (e.g., id. at 7-8 [arguing that his dismissal was “arbitrary and capricious, and made in bad faith” because the City’s “allegations” of misconduct were “without a sound basis in reason”]). As the City has already demonstrated (App. Letter Br. at 10-11, 13-15), these standards of review are not interchangeable. The bad-faith standard is entirely tied to motive, and asks whether the employee was dismissed for a dishonest or nefarious purpose (id.). The general arbitrary-and-capricious standard, by contrast, asks whether the dismissal lacked a rational basis—that is, whether good cause for the dismissal was lacking (id.). But that is the standard of review for a tenured employee. It has no place in the context of probationary employment. Moreover, the courts of this State have overwhelmingly held that disputes about whether an agency’s decision is correct do not frame a viable claim (see id. at 14-15 & n.6). Indeed, it is common sense that even mistaken judgments by an employer may be taken in good faith, and there is no basis, beyond sheer speculation, to conclude that an action was taken in bad faith merely because it is later alleged to lack a rational basis. Castro’s remaining attempts to defend the Appellate Division’s reasoning fail. First, Castro baldly asserts that the Appellate Division’s decision was not improperly speculative, and did not improperly infer bad faith from the lack of a statement of reasons for his dismissal (Resp. Letter Br. at 8-9). But both of these assertions are belied by the decision itself. Even though Castro’s petition included no such allegation, the court expressly speculated that Castro’s dismissal “may” have been the result of some unspecified improper basis. Castro, 140 A.D.3d at 648-49. And the court repeatedly expressed suspicion about the lack of a 6 statement of reasons, concluding that Castro’s dismissal, “without an explanation, appear[ed] questionable and in bad faith.” Id. at 644; see also App. Letter Br. at 18.1 Castro also attempts to downplay the implications of the Appellate Division’s analysis for the distinctions between probationary and tenured employment (Resp. Letter Br. at 3). But these contentions misunderstand the City’s position. The City has not contended that the Appellate Division’s decision literally imposed the requirements of tenured employment on probationary employment. Instead, the City demonstrated that the Appellate Division’s analysis imposes additional burdens on a public employer’s discretion to dismiss a probationer before he or she is awarded the substantial protections of tenure, and thus undermines the distinctions between the two types of employment as a practical matter (App. Letter Br. at 19-20). As the City explained, 1 Castro’s reliance on two outlier decisions also cited by the Appellate Division is also misplaced (Resp. Letter Br. at 8). For a host of reasons, the decisions are both inapposite and in conflict with binding decisions of this Court. In Higgins v. La Paglia, 281 A.D.2d 679 (3d Dep’t 2001), the Third Department held that the petitioner had raised a substantial issue whether his dismissal was in bad faith or “unrelated to work performance” because he received conflicting performance evaluations and insufficient training. Id. at 681. But research has revealed no decision of this Court adopting the “unrelated to work performance” standard. Indeed, that standard cannot be reconciled with the established principle that a probationer may be dismissed for “no reason at all.” In any event, Castro has made no such allegation here: the very premise of his petition is that he was dismissed based on his work performance. Similarly, in Ramos v. Dep’t of Mental Hygiene, 34 A.D.2d 925 (1st Dep’t 1970), the First Department held that the petitioner had raised a substantial issue whether the termination of her probationary employment was “arbitrary and capricious because it was unrelated to her work performance,” in that it may have been based on a personality conflict with her supervisor. But again, that is not the standard of review established by this Court’s precedent, and Castro has in any event not alleged that he was dismissed for any reason other than his work-related conduct. As a final matter, Castro fails to recognize that this Court has rejected the specific reasoning of Higgins and Ramos. See Johnson v. Katz, 68 N.Y.2d 649, 650 (1986) (dismissal of probationer based on personality conflicts with other employees was good-faith dismissal); York v. McGuire, 63 N.Y.2d 760 (1984), aff’g 99 A.D.2d 1023 (conflicting evaluations did not raise substantial issue of illegality). 7 probationary employees frequently contend in that their employing agencies have incorrectly determined that their job performance fell short. They will inevitably use the Appellate Division’s reasoning to invite courts to require a statement of reasons for their dismissals, and to perform a judicial evaluation of those reasons. But these are the protections of tenured, not probationary, employment. Nor is it relevant that the City has voluntarily disclosed the basis for the dismissal of probationers in other cases (Resp. Letter Br. at 9). The City has never denied that a public employer may voluntarily give a probationer a statement of reasons for his or her dismissal. But absent an affirmative showing of illegality or bad faith, this Court has long afforded public employers discretion whether to give such a statement. This principle recognizes that there is no legal basis to require such a statement for a probationer, who lacks property rights in his or her employment, and that there is nothing inherently nefarious in an employer’s decision not to give such a statement. To the contrary, that decision may be prudent where an investigation or litigation is ongoing, or where such a statement would cause unnecessary stigma or embarrassment to the employee. At bottom, Castro does not deny that this Court has repeatedly reaffirmed the public policies underlying probationary employment as supported by sound public policy. Because the Appellate Division’s analysis undermines those principles, 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 case of action, and dismiss the petition. Respectfully submitted, Ingrid R. Gustafson Assistant Corporation Counsel Richard Dearing Claude S. Platton of Counsel cc: Koehler & Isaacs, LLP, Counsel for Petitioner-Respondent 8 CERTIFICATION OF COMPLIANCE I hereby certify that this letter brief was prepared using Microsoft Word 2010, and according to that software, it contains 2,382 words in the body of the submission. ___________/s/________________ INGRID R. GUSTAFSON