Index No. 159651/2018
NYSCEF DOC. NO. 29 Carol Edmead, J.S.C.:
In this Article 78 proceeding, petitioner, a provisional peace officer, seeks to annul respondent's decision to terminate his employment.
Factual and Procedural Background
Petitioner commenced this special proceeding, pursuant to CPLR 7803(3), by notice of petition and petition, to reverse the decision of respondent City of New York, through the Department of Homeless Services, on the ground that its determination to terminate his employment as a probationary peace officer was arbitrary and capricious, and done in bad faith (see petition at 1).
Petitioner was hired by respondent as a peace officer on August 7, 2017 (id.). In his petition, petitioner states that as a peace officer, his responsibilities were to maintain peace and order at homeless shelters operated by the respondent through its Department of Homeless Services (id.). Petitioner states that he received an excellent six-months work performance review, and in April or May 2018, was assigned to Citywide Response Group, in which peace officers are not assigned to a specific shelter, but rather to shelters on an as-needed basis (see petition at 2).
According to the petition, on April 22, 2018, petitioner was assigned to work the 5:30 p.m. to 2:00 a.m. shift at the Renaissance Men's Shelter in Brooklyn (id.). On that date, a client of the shelter was acting boisterous and aggressively, in an area close to the main entrance to the shelter. According to petitioner, the client was saying that he had stopped taking his medications and that he wanted to kill himself. Petitioner states that, pursuant to "departmental guidelines," the client would be considered an emotionally disturbed person (EDP) (id.). Further, pursuant to "departmental guidelines" EDPs were to be removed and transported to the hospital for observation. Although petitioner believed the client to be an EDP, he was told by the peace officer at the desk of the shelter not to process that client as an EDP. Meanwhile, according to the petition, the client was getting more hostile and confrontational (see petition at 2).
In his petition, petitioner does not recall the exact date of his assignment. This date is taken from the investigative report (see answer, exhibit 2).
Petitioner states that the client then exited the entrance area and walked to the courtyard. Fellow peace officers, Anderson and Deane, followed the client outside. Petitioner states that Deane informed him that the shelter's "House Manager" had instructed her to process the client as an EDP. Thereafter, in the courtyard, Anderson attempted to restrain the client. When the client resisted, he was deemed a violent EDP, and restrained. Petitioner states that during the incident, it appeared that the client was overpowering Anderson, and Anderson appeared to be in danger, so he and Deane came to Anderson's assistance. Peace officer Greenidge also arrived to assist in restraining the client (see petition at 3). Once the client was handcuffed, he was transported to the hospital. According to petitioner, none of the peace officers engaged in any techniques that were not in accordance with "departmental guidelines." Petitioner states that he did not strike the client or use any improper chokeholds (see petition at 4).
The petition refers to peace officer "Dean;" however, that peace officer's proper name is "Deane." (see answer exhibit 10).
The petition refers to peace officer "Greenwich;" however, that peace officer's proper name is Greenidge (see answer, exhibit 8).
Petitioner states that six months after this incident, he was terminated for using excessive force and making false entries in department logs, in connection with this incident (id.). Petitioner states that Greenidge, a female who was also a probationary peace office, was not terminated, even though she was also involved in this incident (id.). Petitioner states that Greenidge was not terminated because she was a female (id.). Petitioner states that he has no administrative remedies available to challenge his termination (id.).
Petitioner is seeking a judgment annulling respondent's decision to terminate him and an order reinstating him as a peace officer with the Department of Homeless Services, with full back pay and benefits (see petition at 5).
In its answer to the petition, respondent states that on April 20, 2017, petitioner received and signed an "Acceptance of Provisional Employment" statement in which he acknowledged that an appointment as a provisional Special Officer carries no tenure, and that he may be removed from the provisional position "by business necessity, applicable contracts, or operation of law" (see answer at 6, exhibit 3). Respondent notes that Anderson and Greenidge were also provisional employees; however, Deane was a tenured officer (see answer at 6).
Respondent states that Lieutenant Michael A. Brill, of the NYPD Management Team, investigated the incident by reviewing the written statements of petitioner, Anderson, Deane, Greenidge, and House Manager Murray Sanders. Lt. Brill also watched the surveillance videotapes of the incident. In conclusion, Lt. Brill sustained the following three charges against Anderson, Deane, and petitioner: unlawful detention, excessive force, and making inaccurate entries in department records (see answer, exhibit 2).
A fourth charge of failure to safeguard property was also sustained against Anderson (see answer exhibit 2). --------
In his report, Lt. Brill stated that upon viewing the videotapes, he observed that while the client did argue with the officers after he walked to the courtyard of the shelter, the client "did not appear to be an immediate threat to himself or anyone else" (see answer exhibit 2). Nevertheless, Anderson continued to argue with the client, exiting the shelter and approaching him in the courtyard. Petitioner and Deane followed Anderson out of the shelter into the courtyard (id.). Anderson then pushed the client, and Anderson, petitioner, and Deane became involved in a physical altercation with the client. Brill stated that through the use of force, Anderson, Deane and petitioner brought the client to the ground and detained him in handcuffs (id.). Greenidge was also involved in the incident, when she entered the courtyard to physically separate Anderson and the client (id.). Lt. Brill notes that House Manager Sanders is not seen in any of the video tape footage (id.).
Lt. Brill states that, in his written statement, House Manager Sanders states that he did not instruct Anderson, Deane or petitioner to use force to detain the client, or to categorize the client as an EDP. Sanders states that he was not present during the verbal and physical altercation and did not give any orders with respect to the client. Lt. Brill also conducted a follow-up telephone call with Sanders during which Sanders stated that he was performing a bed check at the time of the incident, and only learned of the incident after seeing the client handcuffed and standing in the Department of Homeless Services command area (see answer exhibit 6).
Respondent notes that on June 20, 2018, petitioner was terminated due to this incident (see answer, exhibit 13). Anderson, a male provisional peace officer, was terminated on August 21, 2018 (see answer, exhibit 11). Deane, a female tenured peace office, was served with disciplinary charges, and issued an immediate 10-day suspension, and has a pending disciplinary proceeding in connection to this incident (see answer, exhibit 12). Respondent stated that since there was no finding that Greenidge used excessive force or made false statements, she was not terminated.
Respondent argues that as a provisional employee, petitioner could be terminated at any time for any reason. Further, based upon Lt. Brill's investigation report, petitioner's termination was appropriate. Accordingly, respondent's determination to terminate petitioner was not arbitrary and capricious, nor made in bad faith, and, therefore, should not be annulled.
In reply, petitioner argues that Department of Homeless Services peace officer patrol guide (patrol guide) states that a peace office can take a client into custody if that person is unarmed, not violent and willing to leave voluntarily (O'Neill affirmation at 2; answer, exhibit 1). However, according to petitioner, that section of the patrol guide also states that a peace officer cannot take an EDP into custody without the specific direction of a supervisor (id.). Petitioner argues that these two sections of the patrol guide are contradictory. In any event, petitioner argues that he did not take the client into custody or use excessive force. Rather, he only became involved in the incident after Anderson had attempted to restrain the client, and the client became violent with Anderson (id.).
With respect to the charge of making inaccurate entries in department logs, petitioner argues that he never stated that he received a direct order from the House Manager to designate the client as an EDP. Rather, he has always stated that he was told by Deane that the House Manager wanted them to deem the client an EDP. Petitioner also argues that the command log for the shelter has an entry which states "[the client] then was told to take a walk and upon exiting the facility Client continued to curse and officers and [House Manager] Murray required client to be EDP" (see answer, exhibit 7). Petitioner contends that this is proof that everyone at the facility believed that the House Manager had requested that the client be treated as an EDP, and that the truth is that the House Manager Sanders decided it was in his best interest to deny any involvement in the incident (see O'Neill affirmation at 2).
Petitioner also notes that, contrary to respondent's claim that Greenidge did not falsify her report, Greenidge' s report of the incident states that "as per House Manager client was to be EDP" (see answer exhibit 8). Thus, Greenidge had the same involvement in the incident as petitioner, but was not terminated. Petitioner argues that Greenidge was not terminated because she is female.
In article 78 proceedings, courts cannot interfere unless there is no rational basis for the exercise of discretion or the action complained of is arbitrary and capricious or unlawful (Matter of Pell v Board of Educ. Of Union Free School Dist. No 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 ; Matter of Colton v Berman, 21 NY2d 322, 329 ; City of New York v O'Connor, 9 AD3d 328, 329 [1st Dept 2004]["the standard of judicial review of the Civil Service Commission's action under Civil Service Law § 50 (4) is whether that body's action was arbitrary and capricious or an abuse of discretion"]). An action is arbitrary if it "is without sound basis in reason and is generally taken without regard to the facts" (Matter of Pell, 34 NY2d at 231).
An appointing authority has wide discretion in determining the fitness of candidates (see Matter of Verme v Suffolk County Dept of Civ Serv. 5 AD3d 498 [2d Dept 2004]; Matter of Needleman v County of Rockland, 270 AD2d 423, 424 [2d Dept 2000]). This discretion is particularly broad in the hiring of law enforcement officers, to whom high standards may be applied (see Matter of Conlon v Commissioner of Civ. Serv. of County of Suffolk, 225 AD2d 766, 767 [2d Dept 1996]). Where a rational basis exists for an agency's action, a court may not substitute its judgment for that of the agency, and the agency's determination, acting pursuant to legal authority and within its area of expertise, is entitled to deference (see Matter of Tockwotten Assoc. v New York State Div. of Hous. & Community Renewal, 7 AD3d 453, 454 [1st Dept 2004]; Matter of Mark v Schneider, 305 AD2d 685, 686 [2d Dept 2003]).
Here, petitioner was a provisional peace officer and, as such, he could be terminated at any time without a reason, without charges or a hearing (see Matter of Preddice v Callanan, 69 NY2d 812, 813-814  [provisional employees may be terminated at any time unless in violation of a constitutional provision or a statute]). Because provisional employees have no expectation and tenure and the rights attendant thereto, they are not entitled to reinstatement, back pay or benefits (id.). Thus, this application must be denied, and the petition dismissed.
Nevertheless, petitioner argues that his termination was arbitrary and capricious, and in bad faith because he did not use excessive force during the incident and did not make inaccurate statements in department reports. Further, since Greenidge was not terminated, his termination was improper.
Petitioner argues that the facts of his case are similar to that of Quick v Horn, (21 Misc 3d 1116[A], 2008 NY Slip Op 52078[U] [Sup Ct, NY County 2008]), in which the court annulled the termination of a probationary corrections officer upon a finding that the respondent's determination lacked good faith. In Quick, the court (Joan Madden, J.), annulled the determination of respondents the New York City Department of Correction (DOC) and the City of New York that terminated petitioner's employment as a probationary corrections officer, and directed that she be reinstated with back-pay and benefits. Quick, a corrections officer employed at Riker's Island, was terminated after the DOC received a complaint that alleged that Quick's boyfriend, Rashid Stanley (Stanley), a former inmate and current parolee, was stopped by police officers from the 79th precinct while driving Quick's car, and in possession of her shield and identification.
After a hearing, the court found that, upon receiving the complaint, the DOC investigator called the telephone number provided on the complaint, and a person who identified himself as Parole Officer Robenson told the DOC investigator that Stanley had come to his office to report the incident. However, when the DOC investigator telephoned the 79th precinct to find out if there was any file or documentation of the incident, he was told that there was no record of the incident.
The DOC investigator then interviewed Quick who denied the allegations. Quick informed the DOC investigator that the last time she saw Stanley was on February 21, 2006, when she was leaving her building on the way to her job at Riker's Island. Stanley was standing outside her car and tried to take her keys. According to Quick, when she would not speak to Stanley, he grabbed her and threatened to kill her. While driving to work, Quick called Riker's Island and spoke to her supervisor about the incident. Upon her arrival at work, the supervisor sent her with two escorts to the 75th precinct to file a complaint.
Following Quick's interview, the DOC investigator contacted the 75th precinct about Quick's report, but was told that there was no progress on the case due to more pressing matters. The DOC investigator never obtained copies of the report filed at the 75th precinct or of the incident report filed by Quick with the warden of Riker's Island.
The investigator than telephoned the person purporting to be Parole Officer Robenson and asked for a written complaint against Quick. In response, on April 6, 2006, the person purporting to be Robenson faxed an unsworn and undated statement to the DOC investigator with a facsimile marker from "Village Copier," on Division of Parole letter head, without any office telephone number. The statement, which contains obvious spelling errors, such as "pricent" instead of "precinct" and "A pon" instead of "upon," indicates that on February 21, 2006, Stanley reported to him that the day before, while driving Quick's car with Quick's shield on the dashboard, he had been pulled over by police officers from the 79th precinct. The statement also indicates that Stanley advised Robenson that he told the officers that the shield belonged to Quick, that the officers placed Stanley under arrest for impersonating an officer, and that Stanley telephoned Quick, who went to the 79th precinct and retrieved her shield and identification, advising that she had left them in her automobile by mistake.
Then, based solely on the statements of Robenson, the DOC investigator recommended that Quick be terminated for giving false and/or misleading statements during the interview, and for failure to secure her shield and identification. Quick was terminated based on this recommendation.
The court held that Quick met her burden of demonstrating that her termination was done in bad faith, since the charges that resulted in her termination were based solely on the DOC's superficial investigation of unverified statements of an individual purporting to be Stanley's parole officer. The court noted that the DOC investigator made no attempt to verify that Robenson was employed as a parole officer, was assigned to supervise Stanley, or that the events as described by Robenson actually occurred, despite numerous indications that such investigation was necessary, including Quick's sworn statements flatly denying the allegations and her testimony regarding a domestic violence incident involving Stanley on the day before Robenson filed his complaint against her. Moreover, the DOC investigator rejected Quick's sworn testimony even though her statements regarding the domestic violence incident were substantiated by a police report filed by Quick, and an incident report filed with the Warden at Riker's Island.
Contrary to petitioner's arguments herein, the facts of this case are not at all similar to the facts in Quick, and petitioner has not sustained his burden of demonstrating that respondent lacked a good faith reason for its determination (see Matter of Brown v City of New York, 280 AD2d 368, 370 [1st Dept 2001]). Notably, there is no dispute that petitioner was involved in a physical altercation with a client at the homeless shelter to which he was assigned. Further, unlike the DOC investigator in Quick, Lt. Brill's investigation was not superficial, nor did Lt. Brill reject sworn statements that could have been verified by official reports. In fact, after viewing the surveillance videotapes, Lt. Brill determined that prior to the incident, the client "did not appear to be an immediate threat to himself or anyone else" (see answer exhibit 2), and noted that House Manager Sanders is not present in any of the surveillance video footage (id.). The videotape also shows Anderson, Deane and petitioner physically bringing the client to the ground and arresting him. Finally, House Manager Sanders, in written and verbal statements, stated that he was not present during the incident, did not direct that the client be considered an EDP, and only learned of the incident after the client was handcuffed. Based upon these facts, respondent had a good faith reason for its determination to terminate petitioner (see Matter of Swinton v Safir, 93 NY2d 758, 762-763 ; Matter of Rainey v McGuire, 111 AD2d 616, 618 [1st Dept 1985]).
Finally, petitioner's claims that his termination lacked good faith because Greenidge was not terminated, is without merit. Pursuant Lt. Brill's report, Greenidge did not become involved in the incident until petitioner, Deane and Anderson began restraining the client. Further, on the videos, Greenidge is seen trying to separate petitioner, Deane and Anderson from the client. Thus, there is no evidence that Greenidge used any force against the client. Moreover, Deane, a female tenured peace officer, was suspended without pay and has pending disciplinary charges against her from her action in this incident. Therefore, since there is no evidence that petitioner was terminated merely because he is a male, he failed to sustain his burden of establishing a prima facie case of gender discrimination (see McDonnell Douglas Corp. v Green, 411 US 792, 802-803 ; St. Mary's Honor Center v Hicks, 509 US 502, 506 ).
Accordingly, it is
ADJUDGED that the application is denied and the petition is dismissed, and the Clerk of the Court shall enter judgment accordingly. And it is further
ORDERED that counsel for petitioner shall serve a copy of this Order with Notice of Entry within twenty (20) days of entry on counsel for respondent. DATED: May 31, 2019
Carol Robinson Edmead, J.S.C.