Opinion
# 2012-030-001 Claim No. 109475
01-04-2012
CASTRO v. THE STATE OF NEW YORK
Synopsis
State found 100% liable for wrongful termination of claimant, an undercover compliance assistant with the New York State Department of Health. Claimant was under duress when she signed a letter of resignation, under threat of loss of pension and health benefits made in a coercive atmosphere, after a relatively minor incident warranting discipline other than termination. Case information
UID: 2012-030-001 Claimant(s): ANTONIA CASTRO Claimant short name: CASTRO Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) The caption has been amended to reflect the only : proper defendant. Third-party claimant(s): Third-party defendant(s): Claim number(s): 109475 Motion number(s): Cross-motion number(s): Judge: THOMAS H. SCUCCIMARRA WOLFF & SAMSON, P.C. Claimant's attorney: BY: BRUCE ETTMAN, ESQ. HON. ERIC T. SCHNEIDERMAN ATTORNEY GENERAL OF THE STATE OF NEW YORK Defendant's attorney: BY: ELLEN MENDELSON ASSISTANT ATTORNEY GENERAL Third-party defendant's attorney: Signature date: January 4, 2012 City: White Plains Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Antonia Castro alleges in her claim that she was wrongfully terminated from her employment with the New York State Department of Health [DOH] on or about March 23, 2004. [See Claim No. 109475, filed June 14, 2004]. More specifically, she alleges that the individual in charge of her unit, George Hartoularos, Deputy Director, Investigative Services Unit of the Department's Division of Nutrition, called claimant into his office on that day and threatened her with the loss of all her pension and health benefits unless she signed a letter of resignation then presented to her. She alleges that the Deputy Director advised her that she had not complied with procedures in an investigation she had conducted the previous week, and this was the reason for seeking her resignation. She signed the pre-prepared resignation letter he presented to her.
At trial, Ms. Castro testified essentially to the foregoing, with some elaboration. By way of background, Ms. Castro indicated that she had worked for the Department of Motor Vehicles [DMV] from 1984 until approximately 1997. It was at the DMV that she became friendly with Mr. Hartoularos' wife, and became acquainted with Mr. Hartoularos socially as a result. She babysat for the Hartoularos' children, hosted a baby shower for Mrs. Hartoularos, and had them as guests for dinner. She considered him a friend.
In 1997 she transferred to the DOH to work as a compliance assistant in the Special Supplemental Program for Women, Infants and Children [WIC], a position opening Mr. Hartoularos had alerted her to. The WIC is a federal public assistance program administered through the DOH, which allows the parents and guardians of children who are nutritionally at-risk to purchase healthy food from authorized vendors. Ms. Castro's job involved posing as a WIC participant shopping at authorized vendors to determine if the merchants were operating in compliance with the program, including such things as allowing the purchase of only allowed foods and fair pricing. She was given identification as a WIC participant with an assumed name, and also had a badge containing her real identity, used for obtaining police reports or other documents expeditiously.
With regard to this badge identification as a compliance officer, she claimed that it was never explicitly directed that she was not to reveal her identity as an investigator, rather than a WIC participant, though she understood that disclosure would be frowned upon. She said that when she testified at administrative hearings against vendors she would give her real name and home address, however, and her face was not shielded. If the identity of a compliance officer was compromised in some other fashion, for example, by a suspicious vendor or a chance meeting with an acquaintance, the officer would thereafter shop in a different part of town.
Ms. Castro's performance evaluations, starting with her probationary period in 1998 through September, 2003, note a satisfactory performance rating, and that she either met or exceeded the requirements of the job. [See Exhibits 4-10].
On Wednesday, March 17, 2004 Ms. Castro was shopping undercover at an Associated Supermarket in Brooklyn as part of her job assignment. She said that she gathered the items she wanted to purchase, and presented the WIC check to the cashier, who began to question whether Ms. Castro's selections were allowable items under the program. Ms. Castro said that the cashier started yelling at her, so she asked to speak to a manager. Another woman "got nasty" as well, and told her the products were not allowed, and to go make a purchase elsewhere if she did not like it. [T-27].Ms. Castro became emotional, and told the employees that it was not the right way to treat a WIC participant. She left the store, grabbed her identification badge from her car and returned, telling the second woman to "look" [at the badge]. [T-28]. Ms. Castro said "I touch[ed] her with my hands on her shoulder" but did not hit her. [Id.]. The male manager or boss said he would take the check and give her the items, however Ms. Castro said "no, you're not getting my check and I'm leaving." [Id.]. She left without taking any of the groceries or surrendering the WIC check.
Quotations are to the trial transcript, noted as "T-xx", unless otherwise indicated.
Immediately thereafter, Ms. Castro called her office from her car, still very upset, and asked to speak to either Leonard Kellner or Daniel Winokur, her supervisors. She recalled speaking to "Lenny" and "[telling] him everything." [T-28-29]. She then went to write a report as instructed, and called back again to advise that she had finished it. [See Exhibit 12].
The following day, she handed in the report and spoke to both Mr. Kellner and Mr. Winokur in person. She was told that they were "discussing this with George [Hartoularos]" and not to worry. [T-31]. Mr. Winokur prepared a contemporaneous memorandum of their interview on Thursday, March 18, 2004. [See Exhibit 13].
Unbeknownst to Ms. Castro, on March 17, 2004 Fredrick Fogel, (since deceased), and Kenneth Evans, went to the supermarket to speak with the participants in the incident to obtain their version of what occurred. [Exhibits E, F, G].
After the March 18, 2004 in-person interview with Mr. Kellner and Mr. Winokur, claimant's next day in the office was Tuesday, March 23, 2004, since she did not work on Fridays, and had taken the day off on Monday, March 22, 2004. She arrived at approximately 7:30 a.m. and was met by Daniel Winokur, who advised her to surrender all her job-related property, and directed her away from her own desk to the reception area to wait to speak to George Hartoularos. No time for the meeting with Mr. Hartoularos was discussed. Mr. Winokur and Ms. Castro signed a pre-prepared typewritten receipt for the State property at the time of the surrender which he said had been directed by Mr. Hartoularos. [Exhibit 11]. The receipt lists, among other things, keys to the vehicle she utilized, keys to the office and ladies room, her parking permit, her identification cards, and cell phone. [Id.].
She recalled waiting in the reception area for a long time - "I didn't go to lunch" [T-25] - and that after having passed her without speaking to her throughout the morning, Mr. Hartoularos finally brought her into his office at about 1:00 p.m. or 1:30 p.m., and closed the door. The first thing that happened, according to Ms. Castro, was that "he took out this paper and . . . said that I have to fire you." [T-37]. He said it was in her "best interest" to sign the pre-prepared resignation letter and that it was "better than firing you." [T-41]. She pleaded and begged for her job - even getting on her knees - saying that she would lose her apartment, her car, and would be unable to pay her bills. She said that he knew what her situation was because of their earlier friendship.
As she rose to leave, she said "do whatever you have to do", and was walking toward the door when he said:
"if you walk out through that door you're going to be sorry. I'm going to press charges against [you] I'm going to build a case against you and you [are] going to lose your health insurance and your retirement." [T-42-43].It was then, she said, that she got on her knees and was crying, saying:
"why don't you call Frank Coleman [Mr. Hartoularos' superior] and tell him . . . to give me a break . . . I could get a transfer, I could go someplace else . . . And he said, this has nothing to do with Frank Coleman, this is my decision. This is my office." [T-43].
She said it was then, when she "was threatened that [she] was gonna lose [her] health insurance and [her] retirement", that she signed the letter of resignation. [T-47-48]. She said that she would never have signed the letter had she not believed that she would lose her benefits as threatened.
Ms. Castro met Daniel Winokur on her way out of the office, who asked her what had happened, and to whom she replied "I just got fired." [T-48]. Mr. Winokur went inside the office with Mr. Hartoularos for "a minute", and then came out and asked claimant if she wanted a ride home. [T-49]. Mr. Winokur drove her home, and escorted her to her apartment.
After she got home, she called a friend who came over to console her, and urged her to contact a union representative. When Ms. Castro spoke with the union, she said the only remedy offered was to try to have her returned to her job, which Ms. Castro rejected, saying she would "die" if she went inside "that office again" and indicating she would take a job "someplace else." [T-51]. Ms. Castro said that the woman from the union never called back, despite having told claimant that she would do so. Ms. Castro also called about her pension on March 23, 2004, and obtained an appointment to review her status and completed the paperwork the next day.
Her application for unemployment insurance benefits - which she applied for on March 24, 2004 - was denied both initially, and on appeal. [See Exhibits 2, C, D]. The Unemployment Insurance Appeal Board found that Ms. Castro was disqualified from receiving benefits because she voluntarily left her employment without good cause, based upon Mr. Hartoularos' testimony. [See Exhibit D].
During the years claimant worked as a compliance investigator for the DOH, Ms. Castro said her yearly evaluations had been "good" [T-64], and she had never been subject to discipline, although there had been one occasion where she was given a counseling memorandum concerning consistency and accuracy in her written reports in November 2000. [See Exhibit A].
During her time at the DOH, she had complained about having to use a Jeep that was too big for her, saying she could not reach the gas pedal, and had complained about the locations where she was sent undercover, saying that they were farther to drive than was necessary and were more dangerous. She opined that Mr. Hartoularos did not want to show favoritism hence he assigned her to less popular areas. With regard to the vehicle, after she had knee surgery in April 2000 she said that she was given a different car, but claimed to have waited almost another year before the change. [Exhibit 3]. Additionally, she said that the new car was "bigger than the Jeep, and my legs would not reach at all." [T-61]. She said she "kept complaining and asking for another vehicle . . . because it was . . . very difficult to do my job." [T-61-62].
On cross-examination, Ms. Castro acknowledged that it was through her efforts - after having sought the guidance of a coworker from the Department of Motor Vehicles - that her compliance unit at DOH obtained a refrigerator, a microwave and a coffee maker paid for by the union. She was also put in charge by her coworkers of seeking a pay upgrade for all compliance assistants through the Civil Service and was familiar with the grievance process, from earlier, successful experience filing a grievance at the Department of Motor Vehicles.
She agreed that she did not file a grievance with regard to the resignation letter of March 23, 2004, nor with regard to her asserted problems with obtaining an adequate vehicle, and undercover assignments to areas she did not consider safe or those that were at a great distance.
Additionally, with regard to her asserted complaint that she injured her ligaments on the job because of using the Jeep, she did not apply for Workers' Compensation benefits. When asked whether she sought any kind of accommodation for using the Jeep, she said that "we did ask for a backrest", but a coworker was given one first, and she was told she had to wait for it. [T-82]. Ms. Castro admitted that at her request she was accommodated with a longer workday and a shorter workweek after the surgery.
Shown a copy of the job announcement for her compliance assistant job, Ms. Castro agreed that the conditions of employment include an advisory that the person appointed "must demonstrate capacity to meet the transportation needs involved in carrying out work responsibilities which will include travel to areas not served by public transportation." [Exhibit B]. It is also noted that such position is denominated a "non-competitive position." [Id.].
Asked for more specifics concerning her actions in the grocery store and thereafter, in terms of what she reported to her supervisors and when, she insisted that in the initial telephone call to her supervisors about the incident she told them that she had revealed her identity. She explained that at the unemployment benefits hearing, where she admitted that she "lied" to her supervisors, she was referring to the fact that she went back to her car to get her identification badge rather than immediately showing it (investigators were supposed to keep the badge on their person), and denied confessing to revealing her identity to her supervisors only when they confronted her with the vendor's complaint. [T-86-87]. She denied knowing that anyone had been sent to the store to investigate the incident.
She reiterated that she thought Mr. Hartoularos had the authority to fire her, and denied that the conversation between them was "calm" (as described by counsel) or that he told her that his supervisors wanted him to notify her that a formal notice of discipline was on its way from Albany. [T-88]. She reiterated that Mr. Hartoularos said that it "was his decision. The only person that had to make that decision" was him. [T-89]. She denied saying that she did not want a bad record, and affirmatively seeking the option of resigning offered, or announcing if I had a letter in front of me I would sign it right now as claimed by Mr. Hartoularos. Ms. Castro testified:
"Does that sound real to you? Because to me it doesn't. He had that paper typed already. He was forcing me to sign it. And I had not even thought about thinking about signing. I thought I was going to be suspended or kept in the office for a while." [T-89].
George Hartoularos, who worked in the nutrition division of the DOH from 1989 to 2006 when he moved to the division of residence services, and who is currently employed as a Complaint Program Manager for the Office of Long-Term Care, testified. Mr. Hartoularos has a Bachelor of Science degree from the Polytechnic Institute of New York, a Masters of Science in labor relations from Pace University and a law degree from New York Law School. He said that in March 2004 he supervised, either directly or indirectly, approximately 15 people. In response to the question as to whether he was "the head of the office", Mr. Hartoularos responded "yes, I was the manager for the New York Metropolitan Area office." [T-106]. Mr. Hartoularos reported to Francis X. Coleman, the statewide director of the Investigative Services Unit, who worked out of Albany. Mr. Hartoularos said that as Deputy Director of Nutrition, he did not have the authority to terminate employees, and that "as far as I know, the only people who have the authority to terminate employees are the people in the Bureau of Employee Relations." [T-106].
Mr. Hartoularos acknowledged that he first became familiar with claimant in 1992 when his wife was pregnant with their son, and that they socialized in a group of his wife's fellow employees at the Department of Motor Vehicles. Ms. Castro visited their home alone and with the group. He claimed that at some point Ms. Castro lobbied his wife about the possibility of a job opening in Mr. Hartoularos' unit, and that he told his wife to tell Ms. Castro that if an announcement of a job vacancy came up in his unit he would give a copy to his wife to hand on to Ms. Castro so that she could apply. Thus, when the compliance assistant position opened up, his wife gave Ms. Castro the announcement. Mr. Hartoularos did not participate in the application process with regard to the position, though otherwise, "without exception," he interviewed everyone who was hired in the office during his tenure. [T-110].
Once hired, Ms. Castro received training, he said, including "perhaps a day or two of orientation" with the assigned supervisor, after which the trainee would be paired with another more experienced compliance assistant who she would shadow "for a week or two." [T-118-119]. All compliance assistants worked undercover, and used aliases of their own choosing in order that the investigator felt comfortable with the name chosen. The alias was changed "every couple of years" so that the vendors would not recognize the names.
When testifying, compliance assistants would use their own names and, if asked, might give their home address, but were supposed to provide their business address. A collapsible screen was positioned to prevent the vendor from seeing the face of the compliance assistant while she was testifying to try to preserve the investigator's identity. On later examination he conceded that the use of a screen had not always been the practice, and that investigators had testified without such coverage in front of vendors in the past, just as Ms. Castro had testified. He could not say when the procedure changed, but claimed that it had been at his insistence.
Mr. Hartoularos said Ms. Castro "led me to believe" she was active in the union when she first started working in his department, because during the first week she mentioned the lack of a microwave, and announced that the union could provide one, and other appliances. [T-126]. Mr. Hartoularos encouraged her to pursue the matter, and she did.
Mr. Hartoularos was shown Exhibit 3, the memorandum dated April 29, 2000 which Ms. Castro addressed to her then supervisor Leonard Kellner, and copied to Mr. Hartoularos, concerning her difficulty with the Jeep after her surgery. He testified that he "apparently" got this memorandum, and recalled changing Ms. Castro's vehicle assignment from the new Jeep Cherokee that had been purchased to an older sedan. [T-128]. He did not recall receiving any other request for accommodation regarding any disability on Ms. Castro's part and added that such a request would be made formally to the Human Resources Group.
Mr. Hartoularos said that Ms. Castro had displayed a temper prior to the incident of March 17, 2004 and that he had spoken to her "a number of times" about it. [T-129]. He said:
"She was disruptive in the office. She . . . had conflicts with all of her coworkers. She had problems with her supervisor, and she really was acting in a very intemperate manner. And I spoke to her on a number of occasions." [T-129].
Mr. Hartoularos "believe[d] that towards the end of her employment with our office" he switched her supervisor from Mr. Leonard Kellner, to Mr. Daniel Winokur because of conflicts between Mr. Kellner and Ms. Castro. He claimed to have been called in to disputes between the two, or to have overheard arguments, and "saw that she was not cooperative" with Mr. Kellner. No documentation of such reproofs or testimony by the persons involved - namely Mr. Kellner and Mr. Winokur - was submitted.
There had been an occasion on April 8, 2003 where Ms. Castro signaled her intent to resign by sending a memorandum directly to Mr. Hartoularos indicating that upon her return from vacation she would resign. [Exhibit H]. The memorandum mentioned conflict in the office concerning transmittal of "papers from the union." [Exhibit H]. Later testimony from Mr. Hartoularos revealed that there had been an attempt to obtain a pay increase for the job title that she had spearheaded, and then backed off from, making for conflicts with her coworkers referred to in this memorandum. When she returned from vacation she did not resign, however.
With regard to the incident occurring on March 17, 2004, Mr. Hartoularos said he first heard of the matter from Mr. Winokur, after claimant's telephone call to the office. Mr. Hartoularos' first instruction to Mr. Winokur had been that he should call Ms. Castro back and advise her to "compose herself and drive on to the next vendor. And whenever she got back to the office she could tell us what happened." [T-137-138].
Later in the day, however, Mr. Hartoularos said he received a telephone call from Una Patten, a contractor with the health department who managed the WIC vendors, saying that she had received a complaint from one of the vendors. [See Exhibit F]. Based on what he was told, Mr. Hartoularos dispatched his "chief investigator", Fredrick Fogel, and Kenneth Evans "to go to the premises and do an investigation and find out exactly what happened." [T-140]. One of the cashiers alleged that Ms. Castro had struck her, saying "[Ms. Castro] hit me with her hand. It was not a hard hit and it left no marks or bruises." [Exhibit E].
Mr. Hartoularos did not recall if he met with Ms. Castro in person after this incident before the day of her resignation. He did, however, claim to have had numerous conversations with others. He asked Mr. Winokur to bring Ms. Castro in to tell her side of the story. He said:
"I believe Ms. Castro submitted a written statement to Mr. Winokur when she came in. We compared her written statement with the statements that we had gotten from the store owner and his employees, and we noticed that there were some glaring omissions. And so I asked Mr. Winokur to interview her again. And then I don't know if he interviewed her once or twice more, but at the very least once more. And ultimately she submitted a statement to Mr. Winokur in which she basically agreed with what was alleged by this store owner and their employees." [T-152].
Once the investigation was complete, Mr. Hartoularos spoke to Frank Coleman in Albany to brief him as to what the "findings had been up to that point." [T-153]. He said that Mr. Coleman advised him that she was "useless to us as an undercover, she's got to go. Those were his exact words." [T-153]. Allegedly told by Mr. Coleman to call up the Bureau of Employee Relations and follow their instructions, Mr. Hartoularos did so, speaking with Ms. Alaberti in that office.
Based on the information he gave her, Mr. Hartoularos claimed that Ms. Alaberti advised they would be preparing a notice of discipline against Ms. Castro, and would seek termination. He agreed with that assessment. He was instructed to meet with Ms. Castro at his "earliest convenience" to inform her that a notice of discipline seeking her dismissal was forthcoming from the Bureau of Employee Relations, and that he should prepare a letter of resignation should Ms. Castro choose to resign rather than face disciplinary charges. [T-156].
Mr. Hartoularos described the meeting between him and Ms. Castro on March 23, 2004 as "very civil." [T-157]. They sat next to each other and he reviewed the information he had received from the vendor, and advised that the Bureau of Employee Relations would be preparing and serving a notice of discipline seeking the penalty of dismissal from employment. He said during the meeting Ms. Castro admitted to compromising her identity, and getting into an argument, but conceded that she did not admit striking the vendor's employee. When she asked him if there was anything he could do for her, he responded that his "hands [were] tied" that these "are decisions that are made by Albany" and that if she was "looking for an option", she could resign from her employment. [T-157-158]. He said they discussed the "implications of disciplinary charges versus resigning." He noted then that if she were to fight the disciplinary charges she might get a suspension, or a reprimand or win outright, but she could also lose her job, and would have "a blemish on [her] record." [T-158]. If she were to resign, however, there would be "no blemish" and if any prospective employer called him for a reference he would be able to say that she resigned, and could say that it was for personal reasons rather than in lieu of facing disciplinary charges. [T-158-159].
When she sought his guidance as to what she should do, Mr. Hartoularos said that he could not tell her what to do, and that she had to make the decision on her own. Mr. Hartoularos testified:
"Then, at that point, she made a spontaneous statement which kind of took me aback, she just exclaimed at that point out of nowhere, if I had a letter of resignation in front of me right now, I would sign it. Those were her exact words." [T-159].
At that point, he pulled out the pre-prepared letter saying that he had this letter prepared. He testified: "She picked it up, she read it, put it down on the desk, signed it, and that was the end of it." [Ibid.]. After signing the letter, he said she burst into tears and he tried to console her, telling her she should retrieve her personal items from her desk and that he would make sure that someone drove her home.
Mr. Hartoularos said she did not ask for union representation at any point during the meeting, and did not throw herself at his feet crying and begging for her job (as described by Ms. Castro). Asked whether keeping Ms. Castro waiting in the reception area from 7:30 a.m. was "deliberate", he explained that his instruction to Mr. Winokur had been to tell Ms. Castro to wait in the reception area when she came in, and he arrived at the traditional office work hours time of 9:00 a.m., (unlike Ms. Castro who had "an adjusted work schedule", he said, with "non-traditional work hours") and did not "remember her waiting for a very long time in the office." [T-160-161]. He said:
"I don't remember exactly when I had actually sat down and spoke to her, but I didn't keep her deliberately sitting. I don't think that's a proper - - a good characterization of what happened. I think she was waiting for me to come into the office, and when I came in we had our meeting." [T-161].
He said he never threatened her with the loss of her health insurance or pension benefits, indeed, he said he left a message for her on her answering machine the following day providing the name and telephone number of the health benefits administrator for her to contact to assure continuous coverage after separation from employment.
Asked on cross-examination why he found it necessary to call her to confirm that she had benefits he claimed not to have said were at risk during the meeting the day before, he said "I wasn't acting in my capacity as a manager, I was giving her some personal advice." [T-164].
On cross-examination, Mr. Hartoularos also agreed it was not typical to require an employee to wait in the reception area before meeting with him, but urged that this was a "more serious" type of meeting, and he feared that if "she had access to her caseload and her case reports . . . she might do something to those reports to falsify them or in some way alter them." [T-167]. Invited to answer whether Ms. Castro had ever been accused of falsifying a record, Mr. Hartoularos said that another counseling memorandum during Ms. Castro's employment he wrote involved an investigation into Mr. Kellner's suspicions that she was not accurately reporting the mileage on the State vehicle and was using it for her personal use. The memorandum was not in the claimant's personnel file as part of requested discovery.
In later testimony Mr. Hartoularos surmised the memorandum was probably no longer in her personnel file because "after three years an employee can petition the Human Resources group to expunge any counseling memos. Not disciplinary items, but counseling memos from their personal history folder." [T-242]. No evidence of Ms. Castro's having sought such expungement was produced.
The timeline for the various contacts Mr. Hartoularos had with his investigators, the supervisors, Mr. Coleman and Ms. Alaberti was probed, demonstrating that it was fairly unlikely that between Wednesday, March 17, 2004 and Tuesday, March 23, 2004 he had the several conversations claimed for each of the participants and, in the case of Mr. Coleman and Ms. Alaberti, that such conversations were preceded by a "complete investigation".
The only certain time frames for any of the events were that at approximately midday on March 17, 2004 Ms. Castro had the run-in at the supermarket, she called her supervisor to report that she had "lost it" at the store, wrote a descriptive memorandum as instructed [Exhibit 12], and that Mr. Winokur and Mr. Kellner spoke with Ms. Castro in person on March 18, 2004, and Mr. Winokur reported the conversation in a memorandum. [Exhibit 13]. When the vendor's complaint was reported to Mr. Hartoularos by Ms. Patten is unclear. Mr. Fogel and Mr. Evans were dispatched to get the vendor's side of the story and take statements presumably some time after the incident occurred at midday. Mr. Hartoularos said that Mr. Winokur interviewed Ms. Castro "once or twice more" [T-152] but it is entirely unclear when such an interview could have taken place since Ms. Castro was not in the office again after March 18, 2004 until the final meeting Mr. Hartoularos himself conducted on March 23, 2004.
The investigation was "completed", according to Mr. Hartoularos' testimony, before he spoke with either Mr. Coleman or Ms. Alaberti the several times he claims to have spoken with them both sometime after Wednesday, March 17 and before Tuesday, March 23. He never testified as to when, exactly, he spoke with either individual however, nor was any evidence that a notice of discipline or any preliminary paperwork concerning same was in the works provided. He essentially confirmed that Mr. Coleman had decided Ms. Castro "was useless" before consulting with Ms. Alaberti as to the appropriate discipline.
Mr. Hartoularos claimed that Ms. Castro had been verbally reprimanded for behavior thought to be insubordinate previously. One "very serious" instance he recalled occurred when she had been involved in a traffic accident while driving a State vehicle that struck a child, and disobeyed his instruction to have no contact with the family. [T-243]. Mr. Hartoularos said:
"Now, I'm not a lawyer, but these things get litigated in court, there's contributory negligence . . . It could have been the child's fault . . . I felt that she had compromised the case. And the State decided, when they found this out, they decided to settle with the family. I thought that was a serious incident and insubordination." [T-243-244].
He also said Ms. Castro "dropp[ed] [his] wife's name in the office" and was told repeatedly "not to do this" because it gave the impression she was receiving preferential treatment. [T-244]. He said that staff complained to him and coworkers were resentful. He ultimately asked his wife to break off contact with her.
Mr. Hartoularos also claimed to have viewed a videotape of the scene at the supermarket on March 17, 2004 and to recall seeing Ms. Castro assault the cashier and exit the vendor with groceries in hand and then return. He insisted upon this interpretation, even when shown Mr. Winokur's memorandum noting that the WIC check was returned to him on March 18, 2004 [see Exhibit 13], and in the face of the fact that the employees at the supermarket do not attest to a completed sale [see Exhibits E, F, G]. That Ms. Castro did not make a purchase was part of the whole sequence of events. As to the assault, the cashier describes a far more innocuous contact. [See Exhibit E].
Since Mr. Winokur and Mr. Kellner did not testify, there was no direct evidence of anything that transpired other than the different versions presented by Ms. Castro and Mr. Hartoularos.
Interestingly, a conference concerning the incident of March 17, 2004, over which Mr. Hartoularos presided and which was attended by Mr. Winokur, Mr. Kellner, Mr. Evans and Mr. Fogel, was not at all mentioned by Mr. Hartoularos, but was testified to by Mr. Kenneth Evans, the only other person to testify. Mr. Evans recalled that it was Daniel Winokur who sent him to investigate the vendor's complaint on March 17, 2004 with the instruction that it was "to ascertain whether or not a New York State Health Investigator had identified herself to the WIC vendor." [T-254]. The owner, who was among the three individuals interviewed, placed the time of the incident as occurring at approximately 12:15 p.m. on March 17, 2004. [Exhibit F]. After the interviews, while "walking to our automobiles," Mr. Evans was told by Mr. Fogel who the likely compliance assistant they were investigating was. He said he never spoke directly to Mr. Hartoularos about his interviews of the employees nor did he speak with him about the incident at all except at the undisclosed "supervisory meeting" where he was asked to "let them know what I did on that particular day." [T-259].
At the meeting, Mr. Evans said that "Mr. Hartoularos asked the supervisors what did they think should be done, what was appropriate discipline for Ms. Castro at the time." [T-261]. Mr. Evans said "nobody mentioned termination" and he "never heard" a statement such as "she's useless to us now" or that she could not be effective as an investigator anymore. [Ibid.]. It was his recollection that both Mr. Kellner and Mr. Winokur suggested desk duty, as did Mr. Fogel. Mr. Evans was not asked for an opinion. Mr. Hartoularos did not offer an opinion as to discipline at the meeting, nor did he opine that she should be fired or give any indication that he thought she should be fired.
Finally, Mr. Evans said he saw Ms. Castro after she came out of the meeting with Mr. Hartoularos, and "She said, 'George fired me'." [T-265]. Asked if Ms. Castro said that to anybody else, Mr. Evans said "she said that to everybody else."
Mr. Hartoularos circulated an e-mail on March 24, 2004 to Mr. Coleman, Mr. Kellner, Mr. Winokur, Mr. Fogel, Mr. Evans, and several other individuals whose roles in the department were not mentioned at trial, in which Mr. Hartoularos states that "contrary to speculation" Ms. Castro submitted her resignation and was "not 'fired'," because "that's not the way things work around here. We all hold government positions and civil service rules apply to all of us." [Exhibit 14]. Suggesting that the recipients of the missive "move on", he stated "Ada decided, for whatever reason, that it was in her best interests to resign her position." [Id.].
In response to this e-mail Mr. Coleman wrote to Mr. Fogel, Mr. Winokur and Mr. Kellner saying:
"Obviously you three guys already know the straight skinny behind the 'for whatever reason' mentioned in George's note. However, what you don't know is exactly how pleased DOH is with George's success in obtaining Ada's resignation.
For the record, I am very pleased. DON Director Pat Hess, BER Director Betsy Aliberti [Alaberti] and HRMG Director Jack Conroy are also very pleased. We are in fact so thoroughly pleased that we have already congratulated George in writing for his outstanding work in this matter.
Therefore you should know that it is my expectation that you guys, in whatever words you need to use, will ensure that each & every one of your employees is crystal clear about the fact that George is ISU's hero in this matter . . ." [Exhibit 14].
No other witnesses testified and no other relevant evidence was submitted.
DISCUSSION AND CONCLUSION
Civil Service Law §75(1) requires that a person of Ms. Castro's status"shall not be removed or otherwise subjected to any disciplinary penalty provided in this section except for incompetency or misconduct shown after a hearing upon stated charges pursuant to this section." The procedure involves mandatory notice in writing, in advance, of the right to representation and, if "removal or other disciplinary action is proposed", the employee is entitled to written notice of such proposed action, and a copy of the charges, and "shall be allowed at least eight days for answering the same in writing." Civil Service Law §75(2). These provisions were avoided by claimant's written resignation. See also 4 NYCRR §5.3(a).
Although neither attorney specified the basis for Ms. Castro's civil service protections assumed by all, based on the job announcement's indication that the position was non-competitive [see Civil Service Law §42] and the lack of any indication that such was confidential or policy making, Civil Service Law §75(1)(c) appears to apply, again assuming her employment with the State of New York in another agency applies to the "five years of continuous service" requirement.
Resignation is a voluntary act. Levitz v Robbins Music Corp., 6 AD2d 1027 (1st Dept 1958). It is also viewed as voluntary generally to resign in lieu of facing disciplinary charges. Matter of Rychlick v Coughlin, 99 AD2d 863 (3d Dept 1984) affd 63 NY2d 643 (1984). Thus the threat of being subject to discipline or being fired, alone, does not render a resignation involuntary, as noted by defendant, "because the fact remains that plaintiff had a choice. Plaintiff could stand pat and fight." People v Grasso, 54 AD3d 180, 211 (1st Dept 2008).
Nonetheless, whether an individual has been coerced into executing a letter of resignation, under duress, is a fact-driven issue significantly dependant upon the credibility of the witnesses. See e.g., Matter of Buric v Kelly, 78 AD3d 594, 595 (1st Dept 2010).
"The court's findings of fact, based in large measure on its assessment of the credibility of the witnesses, that petitioner's [employee] election to file for a service retirement was voluntary and not the result of fraud, duress, coercion, or other misconduct on [the employer's] part, are supported by a fair interpretation of the record evidence . . . (citations omitted). There is no basis to override the court's determination that [the employer's] witnesses were credible in denying that petitioner was told that he had to make an immediate decision with respect to his pension election, that he could not indicate on his election letter that his decision was made under duress, or that it would be futile to consult an attorney prior to making such an election."
In one context - contract
" '1. The party alleging . . . duress must show that he has been the victim of a wrongful or unlawful act or threat, and 2. Such act or threat must be one which deprives the victim of his unfettered will.' (13 Williston, Contracts, 3rd ed., §1617, p. 704). The key element in every case is the state of mind of the person alleged to be threatened. Of course, the existence of a choice between two alternatives does not necessarily disprove the existence of duress. The question is always one of degree and to be determined on the basis of whether there was such severe impairment of bargaining power that it may be found that the victim was precluded from exercising free will and judgment in the transaction." Austin Instrument v Loral Corp., 35 AD2d 387, 391 (1st Dept 1970) affd as modified 29 NY2d 124 (1971).
Thus in Lelio v Rutkowski, 127 Misc 2d 383 (Erie Co Sup Ct 1984) affd 109 AD2d 1066 (4th Dept 1985), the resignation by a county employee - under far less intimidating circumstances than those presented to Ms. Castro - was found to have been involuntary. There, the employee's supervisor came to the employee's office at 4:00 p.m. and advised him that he had "bad news" saying the employee "[had] to leave." [Ibid., at 383]. The supervisor said that the employee's resignation had to be submitted by close of business or he would be fired, would not be given a letter of reference in the "competitive field of hospital administration"- a chilling prospect testified to by a witness in the field of health administration - and was denied any additional time to think over his situation. [Ibid., at 383-384].
In Matter of Willis v Von Holden, 67 AD2d 810 (4th Dept 1979) an employee at a psychiatric center was found not to have voluntarily resigned where the resignation "resulted directly from the coercive manner and circumstances in which his interrogation was conducted." C.f., Matter of Rychlick v Coughlin, supra at 864.
"[T]he deputy superintendent's threat to file formal charges against petitioner if he did not resign does not constitute duress . . . it has consistently been held that a threat to do that which one has the legal right to do does not constitute duress . . . (citations omitted). Significantly, . . . [the trial court] rejected petitioner's assertion that implied threats of physical violence were used when a fear for his physical safety was expressed in the event of his return to work that day. Absent here was the lengthy questioning, curtailment of physical freedom, or any other oppressive treatment and infringement of rights found critical in Matter of Willis v Von Holden (67 AD2d 810). It is further noteworthy that petitioner knew of the charges against him three days before the meeting in question where he was again informed of them . . ."
In Matter of Kinney v Miller, 37 AD2d 684 (4th Dept 1971) the Court found that if the plaintiff/teacher was able to show that her resignation was a result of "alleged threats of barring her from collecting unemployment insurance and [threats] 'that she would never be able to get another Civil Service job unless she resigned her position'. . . (citations omitted)" such a resignation would constitute one made under duress and thus involuntary. Accord Matter of Hassett v Barnes, 11 AD2d 1089 (4th Dept 1960).
Threat of criminal prosecution.
Where resignations of public employees have been found to be voluntary, the employee has been fully aware of the consequences of resignation, had the benefit of - at a minimum -time to reflect, and/or has been offered or taken advice from a union representative, for example. See e.g.; Matter of Rychlick v Coughlin, 99 AD2d 863 (3d Dept 1984); Matter of Gilliam v New York City Dept. of Sanitation, 18 Misc 3d 1141(A) (Kings Co Sup Ct 2008); Teague v Weinstein, 648 F Supp 274 (SDNY 1986).Probationary employees - unlike Ms. Castro - can be terminated without a hearing or reasons, if such termination is in good faith and is constitutional, thus a resignation of probationary police officer in the face of a threat of termination did not constitute duress or coercion because the employer had a legal right to discharge the employee without more. Matter of Manel v Mosca, 216 AD2d 468, 469 (2d Dept 1995).
Employee advised of charges three days previously, accompanied by union representative when again advised of charges, left alone to confer with representative, and told he need not make decision immediately.
Employee executed settlement agreement containing deferred resignation in the event of failed drug test with advice of union counsel.
Nursing coordinator provided formal disciplinary proceeding, accompanied by union representative and attorney with whom she consulted and who negotiated further terms, prior to tendering a letter of resignation several days after such proceeding.
Upon review of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so and assessing their respective credibility and consistency, the Court finds that claimant has established an adequate basis for the State's liability by a preponderance of the credible evidence. Under the circumstances here, the Court finds that Ms. Castro was coerced into signing a letter of resignation, that such resignation is therefore involuntary, and that she was, therefore, wrongfully terminated from her job at the DOH on March 23, 2004. In reaching this conclusion, the Court generally credits Ms. Castro's testimony, and does not find the testimony of Mr. Hartoularos credible.
In this case, Ms. Castro was subjected to an anxiety provoking scenario whereby she was told of a meeting with Mr. Hartoularos, but not told of its nature, divested of all her job-related property before the meeting leaving her with the clear impression that her job was over, left to wait in a public waiting area for hours away from fellow employees, and then threatened with the possible loss of her retirement and health benefits were she not to resign by a man she trusted. The only other witness to testify from firsthand knowledge, Mr. Evans, stated that the sense of the supervisory meeting attended by Ms. Castro's supervisors and Mr. Hartoularos - but not mentioned by Mr. Hartoularos - was that she might be kept on desk duty for awhile. Termination was not on anyone's mind except that of Mr. Hartoularos, who, while not having the actual authority to terminate Ms. Castro, clearly "ran things" at the unit. Tellingly, when Mr. Hartoularos testified as to undocumented prior misconduct by Ms. Castro concerning a car accident injuring a child, he demonstrated his attitude as to the supremacy of his views, clearly most outraged that his directives had been defied rather than concerned about the implications of the alleged lawsuit. Also tellingly, Mr. Hartoularos testified as to having viewed Ms. Castro walking out with groceries from the supermarket on the day of the incident, and as to having seen Ms. Castro assault the cashier on the video, when the documentary proof actually submitted confirms what Ms. Castro said: that the groceries were not taken (indeed the transaction was not completed), and the cashier described a far more minimal contact in her affidavit than the criminal assault Mr. Hartoularos alleged. He viewed Ms. Castro as an annoyance, who was overly emotional, and as one who presumed upon his wife's friendship with her.
Moreover, there was no testimony by someone with firsthand knowledge of the fact of a disciplinary charge pending, or documentary proof of same, or that there was any intent to bring disciplinary charges to actually terminate Ms. Castro. There was no credible proof of the supposed determination that Ms. Castro was "useless" based upon what seems a minor incident in the face of an otherwise satisfactory job performance as shown by her supervisors' evaluations submitted in evidence.
Mr. Hartoularos deliberately created a setting meant to intimidate and convince Ms. Castro that she was going to be fired and lose all her benefits. The telephone call to her the following day, which he explained as the advice of a friend, further supports Ms. Castro's testimony that such benefits were threatened during the closed door meeting. As to the implied canniness of Ms. Castro because she had utilized union resources to obtain conveniences for the office previously, experience shows that one can be very adept at some aspects of self-preservation, while remarkably thick about others. In the coercive atmosphere created, with no opportunity to reflect, an emotional, anxious person would not be thinking about her right to notice and union representation. Again, Mr. Hartoularos' description of the meeting as "civil" is not readily reconciled with his concerns that an hysterical Ms. Castro would sabotage her files were she allowed access to her office while waiting for her fate to be sealed.
Based on the foregoing, the Court finds that claimant has sustained her burden of establishing that her resignation was coerced, and that she was therefore wrongfully terminated from her employment effective March 23, 2004 by the State of New York, making the defendant 100% responsible for damages caused thereby.
Claimant did not establish all the elements required for the remaining causes of action she briefed, namely, retaliation for protected activities based on Executive Law §296(7), and prima facie tort. With regard to the former, no nexus has been established between the protected activities nominally alleged - seeking accommodation for a different car, fair distribution of assignments, and a pay upgrade - and the termination. With regard to the latter, since there is a basis for finding the State of New York liable based on wrongful termination, finding a broader basis for liability in the form of a prima facie tort for the State's malicious conduct is unnecessary.
The Clerk of the Court is directed to enter interlocutory judgment in accordance with this decision. Trial on the issue of damages shall be held as soon as practicable.
January 4, 2012
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims