Opinion
INDEX NO. 160457/2018
06-04-2020
DIANA ESPINAL, Petitioner, v. THE NEW YORK CITY DEPARTMENT OF CORRECTIONS, THE CITY OF NEW YORK, Respondent.
NYSCEF DOC. NO. 26 PRESENT: HON. DEBRA A. JAMES Justice MOTION DATE 11/13/2018 MOTION SEQ. NO. 001
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 were read on this motion to/for ARTICLE 78 (BODY OR OFFICER).
ORDER
Upon the foregoing documents, it is
ORDERED that the petition is DENIED and the proceeding is DISMISSED; and it is further
ORDERED and ADJUDGED that the Clerk shall enter judgment accordingly.
DECISION
Petitioner brings this proceeding challenging respondent Department of Correction (DOCS)'s termination of her employment as a corrections officer during a probationary period. Petitioner claims that the termination was gender discriminatory, as it was based on her use of sick leave arising from her pregnancy.
The standard to be applied to petitioner's claim is set forth as follows:
Absent a statute or rule to the contrary, a probationary employee may be discharged without a hearing and without a statement of reasons so long as the act is done in good faith and not for constitutionally impermissible purposes. Moreover, it is the petitioner who bears the burden of demonstrating respondent's bad faith or illegal or arbitrary action.Rainey v McGuire, 111 AD2d 616, 618 (1 Dept. 1985).
On June 27, 2016, petitioner was appointed by DOCS as a probationary corrections officer. Petitioner states that DOCS learned about her pregnancy when she told DOCS on January 4, 2018, the date she took sick leave for that reason. On July 25, 2018, respondent terminated petitioner.
Petitioner fails to meet her burden in this proceeding. Even assuming the truth of the facts asserted in her petition and reply affidavit, she does not dispute her sick leave record wherein she was late on at least three occasions, December 29, 2017, February 26, 2018, and March 9, 2018, which dates were during the probationary period. One instance of lateness during probation justifies termination. See Garrett v Safir, 253 AD2d 700 (1st Dept.) app. den. 92 NY2d 817 (1998). Petitioner's record of lateness, in addition to her conceded four non-pregnancy related sick leave absences- January 12, 2017; March 10, 2017; March 14, 2017; May 13, 2017- and at least 25 days of compensatory and annual leave, all during the probationary period and before she notified DOCS of her pregnancy, provide sufficient support for the proposition that respondent's action was not taken in bad faith. It has been held that excessive absences and lateness are sufficient grounds for termination, where such attendance record was well established before the motive for the alleged illegal discrimination arose. See Nelson v Abate, 205 AD2d 454, (1 Dept. 1994) ("petitioner's record of excessive absence and lateness was established well before her participation in that program and provided a sufficient basis for her termination"). Thus, petitioner's claim of discrimination fails to establish that respondent's reasons for termination are pre-textual, as petitioner's pre-pregnancy attendance record vitiates any temporal nexus between petitioner's pregnancy and respondent's termination.
As petitioner has raised issues of fact with respect to whether she violated DOCS's "undue familiarity" rule, such alleged violation, standing alone, would not establish any basis for her termination. However, petitioner's unrefuted excessive absences and lateness, which she does not claim were pregnancy related, fail to establish prima facie any bad faith on the part of respondent. 6/4/2020
DATE
/s/ _________
DEBRA A. JAMES, J.S.C.