Opinion
106389/10.
May 12, 2011.
Mercedes M. Maldonado, Koehler Isaacs LLP, New York, NY, for petitioner.
Robert Katz, ACC, Courtney Stein, ACC, Michael A. Cardozo, Corporation Counsel, New York, NY, for respondents.
DECISION JUDGMENT
Petitioner seeks to vacate an administrative determination of termination. By decision and order filed September 23, 2010, I denied respondents' motion for an order dismissing the petition, ordered respondents to file and serve their answer within 20 days of service of my order with notice of entry, and permitted petitioner to re-notice this matter.
I. BACKGROUND
On October 1, 2010, petitioner re-noticed his petition for a judgment annulling the termination and ordering that he be reinstated with back pay and benefits as a correction officer with the New York City Department of Correction (DOC). On October 28, 2010, respondents filed and served their answer alleging five defenses: (1) failure to state a cause of action upon which relief may be granted; (2) respondents' actions were legal, proper, reasonable and in conformity with law, and were neither arbitrary nor capricious; (3) petitioner's lateness and absenteeism record constituted a rational basis for termination of probationary employment; (4) as a probationer, petitioner could be terminated for any reason or no reason so long as the termination was not in bad faith, and respondents' decision to terminate was made in good faith, had a rational basis, and was not based upon a constitutionally impermissible reason; and (5) petitioner fails to satisfy his burden of demonstrating that his termination was in bad faith or based upon a constitutionally impermissible reason. (Ans.).
The pertinent facts and procedural background were recited in my September 23 decision and order and need not be repeated here, although respondents allege additional violations. (Mem. of Law in Support of Respondents' Verified Answer [Mem.], dated Oct. 20, 2010).
II. CONTENTIONS
Respondents contend that petitioner has failed to state a cause of action because he was a probationary employee who could be terminated for any reason or no reason at all, so long as the termination was not in bad faith, and petitioner has not alleged bad faith. (Mem.). They also maintain that absenteeism or lateness constitutes a rational and good faith ground upon which to terminate a probationer's employment, and that here, there are 19 instances of lateness within a two-year probationary period, 18 of which were acknowledged by petitioner and 10 of which are now acknowledged by petitioner. (Mem.).
Petitioner now claims that three of the 18 late slips bearing his signature were altered and that DOC has failed to produce the logbook sign-in sheet which would show the exact times he signed into the facility. He also argues that as DOC had agreed at his September 2009 corrective interview to forbear from terminating him if he was not late again and that as he was never again late thereafter, his termination violates that agreement. Moreover, he observes that respondents' answer reflects that all four captains who evaluated him agreed that he should continue in his employment pending improvement in his punctuality and that he has so demonstrated that improvement. He asks that an evidentiary hearing be held pursuant to CPLR 7804(h) to resolve disputed issues of fact relating to the promise made by DOC at the corrective interview. (Affidavit of George Jones, dated Oct. 27, 2010).
III. ANALYSIS
A DOC employee on probationary status may be terminated "without a hearing and without a statement of reasons in the absence of any demonstration that dismissal was for a constitutionally impermissible purpose or in violation of statutory or decisional law." (Matter of Soto v Koehler, 171 AD2d 567, 567-568 [1st Dept 1991], lv denied 78 NY2d 855). Judicial review is limited to a determination of "whether the termination was made in bad faith." (In the Matter of Johnson v Katz, 68 NY2d 649, 650; Matter of Soto, 171 AD2d at 568). Absent such a showing, a court has no discretion to challenge a termination decision. (Matter of Soto, 171 AD2d at 568).
Excessive lateness is a proper ground for termination, particularly for a corrections officer whose "duties involve the safety of the institution and the inmates" (id.; Nelson v Abate, 205 AD2d 454, 455 [1st Dept 1994]).
Absent any issue as to petitioner's probationary status, record of excessive lateness, and respondents' good faith, there is no basis for granting petitioner the relief he requests. Petitioner also offered no proof other than his own allegation that respondents had promised at the September 2009 corrective interview to forbear from terminating him, which respondents deny, and even if they had so promised, nothing prevented them from reneging and terminating him. (See Santiago v Horn, 37 AD3d 307 [1st Dept 2007] [petitioner's lateness and absenteeism, which was admitted in petition, provided proper ground upon which to dismiss proceeding]; Matter of Soto, 171 AD2d at 568 [petitioner's lateness constituted rational basis for termination of his probationary employment]; Ferone v Koehler, 160 AD2d 572 [1st Dept 1990] [petitioner failed to prove there was no rational basis for his termination as record indicated that he had numerous absences and latenesses and one incident involving departmental discipline]).
IV. CONCLUSION
Accordingly, it is hereby
ADJUDGED and ORDERED, that the petition is denied and the proceeding is dismissed.