Opinion
6141/09.
Decided October 2, 2009.
Leonard Zack Associates, NY NY, Petitioner.
MICHAEL A CARDOZO, Corp Counsel, Alicia H Welch, Esq., NY NY, Respondent.
After reviewing all of the papers submitted in this Article 78 proceeding and hearing oral argument, the instant petition by petitioner PETER PELTONEN for a judgment, pursuant to CPLR Article 78, annulling the determination of respondents, FIRE COMMISSIONER NICHOLAS SCOPPETTA, THE FIRE DEPARTMENT OF THE CITY OF NEW YORK (FDNY), and THE CITY OF NEW YORK, terminating petitioner's employment as a firefighter with FDNY for his use of cocaine, in violation of FDNY's All Units Circular 202 and §§ 25.1.1 and 25.1.6 of the Rules and Regulations for the FDNY's Uniformed Force, is denied. The instant proceeding is dismissed.
Petitioner's employment as an FDNY Firefighter was terminated by COMMISSIONER SCOPPETTA, on November 21, 2008, after COMMISSIONER SCOPPETTA reviewed and adopted the Report and Recommendation of an Administrative Law Judge (ALJ), after the ALJ conducted a disciplinary hearing on behalf of the New York City Office of Administrative Trials and Hearings (OATH). The ALJ found petitioner guilty of testing positive for cocaine in violation of the above-cited FDNY rules and regulations.
Background
Petitioner PELTONEN, on or about February 16, 2007, submitted to a random drug test given to all members of Ladder Company 51 and tested positive for cocaine. He does not challenge the validity of the test results. However, he argues that COMMISSIONER SCOPPETTA's determination to terminate his employment was, pursuant to CPLR § 7803 (3), "affected by an error of law or was arbitrary and capricious or an abuse of discretion as to the measure or mode of penalty or discipline imposed" and that the handling of his case was not in accordance with FDNY regulations [¶ 15 of verified petition]. Further, he argues, pursuant to CPLR § 7803 (4), that the determination to terminate his employment was not made "on the entire record, supported by substantial evidence [¶ 16 of verified petition]."
Petitioner asserts that on September 12, 2001, following the previous day's attack on the World Trade Center, he was assigned to help in rescue and recovery efforts. He described the emotional toll which the assignment at the World Trade Center site took upon him, and in reaction to the daily stresses of such work the alcohol abuse by himself and fellow firefighters. He adds that, when the "alcohol wasn't working enough," he started taking cocaine several times a month [¶ 25 of verified petition]. On several occasions he sought counseling at FDNY's Counseling Unit, but he did not believe that the counselors were helpful. He also received private counseling with a psychologist. After entering a Day Treatment program administered by FDNY for his drug problem (following the February 16, 2007-random drug test and a 30-day suspension without pay), petitioner alleges that he read a pamphlet which alerted him to the possibility that he might be suffering from Post-Traumatic Stress Disorder (PTSD), as well as alcoholism.
Subsequently, petitioner was referred to Dr. John McCann, a clinical and forensic psychologist, who diagnosed petitioner PELTONEN as suffering from PTSD with a secondary diagnosis of major depressive disorder. According to Dr. McCann (who testified at petitioner's OATH hearing), petitioner's use of cocaine was one of the effects of his PTSD and his alcohol abuse and use of cocaine was to attempt to take away the pain he suffered as a result of 9/11. Petitioner argues that FDNY did not present any medical evidence at the OATH hearing to refute Dr. McCann 's testimony. He challenges the ALJ's finding that Dr. McCann could not causally link his drug abuse to PTSD and that PTSD would have only operated to exacerbate petitioner's substance abuse. Petitioner also disagrees with the ALJ's finding that there is a lack of evidence to support his claim that he is now drug and alcohol free and that nothing was offered in mitigation of termination as an appropriate form of discipline for his positive drug test.
Further, petitioner contends that the determination to terminate his employment should be reversed because, pursuant to New York State's Human Rights Law (Executive Law § 290, et seq.), he suffered from a "disability." Further, petitioner claims that FDNY was required to and did not show that his "disability" prevented him from performing his job and that his termination was based upon a different and legitimate ground. Also, petitioner suggests that the ALJ could have considered a penalty short of termination, including one that required counseling and random drug testing at regular intervals.
Respondents, in their memorandum of law in support of their verified answer, refer to the ALJ's Report and Recommendation in which the ALJ acknowledged that petitioner suffers from PTSD and is an alcoholic. Although the ALJ found that petitioner's use of cocaine was a function of his PTSD, she believed that his use was occasional and voluntary, since petitioner exercised control over the frequency of his cocaine use, and his misconduct could not be excused by his cocaine addiction. Thus, the ALJ determined that, despite petitioner's experiences at the World Trade Center site, his circumstances were not sufficiently compelling to warrant mitigation of the penalty of dismissal.
With respect to respondents' alleged violation of the Human Rights Law, the ALJ found "nothing to support [petitioner's] self-serving testimony that he has been alcohol and drug-free since he left Marworth [Treatment Center], such as frequent urine testing or the testimony of his counselors. In essence, there was nothing offered in mitigation of termination as an appropriate form of discipline for his positive drug test [ALJ's Report and Recommendation at 19]." The ALJ further found that, even if petitioner had been rehabilitated at the time of his termination, the probability of a relapse was too high. "Given the nature of the job and the risks involved, the propensity for loss of life, were a relapse to occur, is too great for reactive testing to be considered a reasonable accommodation [ALJ's Report and Recommendation at 21]." The ALJ concluded in her Report and Recommendation, at 21, that "[t]herefore, I find that even in light of [petitioner's] status as a recovering addict, where there still exists the propensity to relapse, and where reasonable accommodation will not permit him to perform the essential functions of his job, the appropriate penalty for his positive drug test is termination. Such a penalty is not barred by the Human Rights Law, and I so recommend."
COMMISSIONER SCOPPETTA, in his November 21, 2008 determination, reviewed the ALJ's Report and Recommendation and the materials submitted on petitioner's behalf. He held that "[i]n light of Firefighter Peltonen's misconduct I believe that the appropriate penalty is termination. Therefore, effective 1700 hours on November 21, 2008, Firefighter Peltonen is hereby terminated from his position with the New York City Fire Department."
Discussion
It is axiomatic that in an Article 78 proceeding the function of the court is to determine whether the action of an administrative agency had a rational basis or was arbitrary and capricious ( see Pell v Board of Educ. of Union School District No. 1 of the Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, 230-231). "Arbitrary action is without sound basis in reason and is generally taken without regard to the fact." ( Pell at 231). A rational basis exists where the determination is "[supported] by proof sufficient to satisfy a reasonable [person], of all the facts necessary to be proved in order to authorize the determination"' ( Ador Realty, LLC v Division of Housing and Community Renewal , 25 AD3d 128 , 139-140 [2d Dept 2005], quoting Pell at 231).
A reviewing court will not substitute its judgment for that of the agency unless the agency's determination is arbitrary, capricious, or contrary to law ( see Pell at 231; Matter of Brockport Cent. School Dist. v New York State Local Employees' Retirement System, 270 AD2d 706, 707-708 [3d Dept 2000]). Pursuant to CPLR § 7803 (3), "judicial review is limited to the question whether the measure or mode of penalty or discipline imposed' constitutes an abuse of discretion," ( Featherstone v Franco, 95 NY2d 550, 554). Further, the Court of Appeals ( Featherstone at 554) instructed that in an Article 78 review of administrative sanctions, "the sanction must be upheld unless it shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a matter of law."
Citing Featherstone, the Court of Appeals, in Kelly v Safir ( 96 NY2d 32, 38), held that weighing whether a sanction shocks the judicial conscience, "involves consideration of whether the impact of the penalty on the individual is so severe that it is disproportionate to the misconduct, or to the harm to the agency or the public in general ( Pell, supra at 234)." Both McCoy v Gunn ( 153 AD2d 863 [2d Dept 1989]) and Phifer v Gunn ( 143 AD2d 992 [2d Dept 1988]) were Article 78 proceedings to review the dismissal by the New York City Transit Authority of bus drivers for substance abuse. The driver in McCoy twice tested positive for marihuana. The McCoy Court, at 865, citing Pell, held that "the penalty of dismissal, when considered in the light of the petitioner's conduct, was not so disproportionate to the offense as to be shocking to one's sense of fairness." In Phifer, at 992, the driver was found to have "used a controlled substance without authorization in violation of respondents' regulations." Also citing Pell, the Phifer Court held, at 992, that "[t]he penalty of dismissal is not so disproportionate to the nature of petitioner's misconduct." In Chaplin v New York City Board of Education ( 48 AD3d 226, 227 [1st Dept 2008]), the Court held that:
The penalty of termination was in accord with due process, supported by the record evidence, and is not shocking to our sense of fairness ( see Matter of Smith v Board of Educ. Of Wantagh Union Free School Dist., 259 AD2d 704 [2d Dept 1999]). Petitioner's misconduct compromised her ability to function in her job and constituted unacceptable behavior. Acts of moral turpitude committed in the course of public employment are an appropriate ground for termination of even long standing employees with good work histories ( see Matter of Kelly v Safir, 96 NY2d 32 [2001])."
The Fire Commissioner's power to discipline members of the Fire Department is codified in the Administrative Code of the City of New York § 15-113 and is reviewable only pursuant to CPLR article 78 ( see Von Essen v New York City Civil Service Com'n, 4 NY3d 220, 224 (2005). In the instant matter, with respect to petitioner PELTONEN's circumstances, it cannot be said as a matter of law that the COMMISSIONER SCOPPETTA abused his discretion by his determination to dismiss petitioner from the FDNY, nor was the penalty of dismissal, when considered in the light of petitioner's conduct, so disproportionate to the offense as to be shock one's sense of fairness and the Court's judicial conscience.
Contrary to petitioner's contention, there is ample evidence in the record, upon which the Commissioner relied, that petitioner's ingestion of cocaine was voluntary. The ALJ, in her Report and Recommendation, noted that Dr. McCann did not diagnose petitioner with either alcohol or drug dependency and did not respond when asked whether petitioner was aware of his actions when he obtained cocaine and ingested it. She also cited petitioner's testimony, in which he testified "that he used cocaine when things came up' [which] suggested that he consciously selected the occasions on which he sought to binge, as evidenced by the results of the random test [ALJ's Report and Recommendation at 15]." Therefore, the ALJ found that petitioner could control the frequency of his use, that he was capable of curbing his appetite for cocaine and, as such, his cocaine use was a voluntary act of misconduct. Although the ALJ acknowledged that PTSD may have exacerbated petitioner's alcohol use, she noted that petitioner's medical records showed that he used alcohol from his teenage years and that alcohol use became a problem at least two years prior to 9/11.
Accordingly, there was substantial evidence to support the finding that petitioner had not met his burden of proving that his drug use was involuntary. Moreover, although petitioner alleges that the records from the Kenneth Peters Center show that urine and breathalyzer tests were administered to him on a biweekly basis and he never tested positive, the last test included with the records was dated over a year prior to petitioner' s termination.
Despite evidence in the record that petitioner suffered from PTSD, the Commissioner acted within his discretion in terminating petitioner after he was found guilty of ingesting cocaine ( see Kelly v Scoppetta , 56 AD3d 475 [2d Dept 2008]; O'Neill v City of New York , 52 AD3d 258 [1d Dept 2008]; Kirk v City of New York , 47 AD3d 406 [1d Dept 2008]). The Commissioner acted pursuant to FDNY's All Units Circular 202 and §§ 25.1.1 and 25.1.6 of the Rules and Regulations for the FDNY's Uniformed Force, in terminating petitioner's employment by FDNY. Therefore, COMMISSIONER SCOPPETTA's determination was neither arbitrary nor capricious nor an abuse of discretion nor does it shock one's sense of fairness. Although petitioner's involvement in the events of September 11, 2001 and its aftermath evoke much sympathy, that cannot serve to excuse his misconduct ( see Mapp v Burnham , 8 NY3d 999).
Finally, petitioner's contention that pursuant to the Human Rights Law (Executive Law §§ 290 et. seq.), he suffered from a "disability" and, therefore, should not have been terminated is unpersuasive. For petitioner to establish a prima facie case of discrimination pursuant to the Human Rights Law, petitioner must show that he suffers from a disability and that the disability caused the behavior for which he was terminated ( see McEniry v Landi, 84 NY2d 554, 558). While PTSD may qualify as a "disability," petitioner did not establish a causal link between his PTSD and his cocaine use. Although Dr. McCann testified that the use of cocaine is an affect of having PTSD for some people, he admitted that it was not the case for everyone. Moreover, as the ALJ noted, petitioner first used cocaine at the age of 25, prior to 9/11, the event that allegedly caused his PTSD, and his subsequent use was voluntary. Therefore, even if petitioner had established a case of disability discrimination, there was no violation of the Human Rights Law because petitioner was terminated for a legitimate, nondiscriminatory reason — testing positive for the presence of cocaine in violation of Section 25.1.6 of the Rules and Regulations for the Uniformed Force. Additionally, the finding that petitioner was unable to perform his job duties in a reasonable manner was supported, among other things, by evidence that petitioner had an established propensity to relapse ( see McEniry, 84 NY2d at 561). While receiving treatment at the Kenneth Peters Center less than two months after the random drug test at issue, petitioner once again tested positive for cocaine use. Further, although petitioner proposed that he be permitted to retain his position as a Firefighter subject to drug testing as a reasonable accommodation for his alleged disability, the ALJ found that testing would not prevent petitioner from relapsing (since he had already done so at least once) and potentially endanger the lives of the public and his fellow firefighters.
Conclusion
Accordingly, it is
ORDERED that the instant petition of PETER PELTONEN for a judgment pursuant to CPLR Article 78 is denied and the instant CPLR Article 78 petition is dismissed.
This constitutes the Decision and Order of the Court.