Opinion
No. 16657/06.
2010-07-16
In the Matter of the Application of Robert KAEFER, Petitioner, v. The NEW YORK STATE OFFICE OF PARKS, Recreation and Historical Preservation, Respondent.
Lefkowitz, Hogan & Cassell, LLP by Shaun K. Hogan, Esq., Jericho, for Petitioner. Andrew M. Cuomo, Esq., Office of Attorney General by Ralph Pernick, Esq., Mineola, for Respondent.
Lefkowitz, Hogan & Cassell, LLP by Shaun K. Hogan, Esq., Jericho, for Petitioner. Andrew M. Cuomo, Esq., Office of Attorney General by Ralph Pernick, Esq., Mineola, for Respondent.
UTE WOLFF LALLY, J.
This Article 78 proceeding commenced in October 2006, sought to set aside a determination by respondent which banned petitioner from serving as a lifeguard as arbitrary and capricious because 1) respondent failed to adhere to its own policies and procedures and 2) respondent reached a different result from prior determinations on essentially the same facts.
A jury trial was conducted from April 19, 2010 to April 23, 2010 and both parties submitted post trial briefs.
The witnesses' testimony was essentially undisputed except for one issue which was submitted to the jury, namely, in what sequence did petitioner hand the doctors notes to respondent.
Findings of Fact
Petitioner had been a lifeguard for 18 years at Jones Beach State Park when on July 15, 2005 he underwent a laparoscopic appendectomy which was performed by Dr. Halpern. On July 18, 2005 he returned to work. On July 19, 2005 he was told by Ron Harris, the Safety Officer, that he needed a doctor's note before returning to work. As Dr. Halpern was unavailable, petitioner procured and handed in a false doctor's note dated July 19, 2005 from a Dr. Persaud (Note 1) who never examined him and which he obtained with the help of another lifeguard, James Green. Thereafter he obtained a correct doctor's note from Dr. Halpern dated August 8, 2005 (Note 2) and handed same to respondent. However, Dr. Persaud's note had raised some suspicion and petitioner was informed by Bob Lenti and Ron Harris to provide a note verifying its accuracy. In response petitioner provided another bogus note from Dr. Persaud dated August 10, 2005 (Note 3).
By letter dated August 8, 2005, from Susan Guliani, Director of Jones Beach State Park, petitioner was notified to appear for a Step 1 hearing relative to the first bogus note (Note 1) on August 14, 2005 (Exhibit 17). A step 1 hearing is the first formal hearing in the process of disciplining a lifeguard. Said hearing was adjourned to August 18, 2005 (Exhibit 18). Prior thereto, petitioner received a third letter dated August 19, 2005 (Exhibit 19) stating that the step 1 hearing “has been postponed and will be rescheduled at a future date to be determined”. No notification of a rescheduled or cancelled Step 1 hearing was ever sent to petitioner.
Petitioner completed the 2005 swim season on or about September 30, 2005. He was charged by the Nassau County District Attorney with a felony and plead guilty to a Class A misdemeanor, (PL175.30) submitting a false instrument for filing.
It was the custom of respondent to send rehire packages to its lifeguards at the beginning of each season. Petitioner did not receive such a rehire package for the 2006 seasons as he had for the past 17 years. When he attempted to take the new hire test on June 11, 2006 at Jones Beach he was told he had no permission to do so. Petitioner then commenced this action in October of 2006 seeking reinstatement and damages.
Argument
Petitioner claims that respondent's decision to bar him from serving as a lifeguard for life was arbitrary and capricious as a result of (1) subjecting petitioner to disparate treatment compared to others with similar criminal records or guilty of similar wrongful acts and (2) respondent's failure to adhere to its own policies and procedures such as affording petitioner an exit interview and Step 1 through 3 hearings. Respondent advances three arguments in opposition: (1) since petitioner was a seasonal, at-will employee he cannot challenge a ban to rehire; (2) petitioner failed to exhaust his administrative remedies; and (3) petitioner failed to prove his disparate treatment argument.
The testimony established that a number of lifeguards were convicted of such crimes as attempted assault, driving while impaired, robbery and attempted robbery, breaking and entering and disorderly conduct, and some were discovered to have engaged in such misdeeds as drinking while on duty, assaulting another lifeguard, inaccurate timekeeping and smoking marijuana while on duty. However, none of them was suspended for life and instead received a lesser punishment such as a suspension for a number of years. In April 2006, some 19 lifeguards, in addition to petitioner, did not receive a rehire package because of an investigation into the truthful reporting of prior crimes on lifeguard applications. After the investigation several were not rehired.
It should also be noted that James Green, petitioner's co-conspirator in obtaining the bogus doctor's notes has agreed as part of a plea bargain to a lifetime ban.
Although there is some confusion and overlapping, it appears that three collective bargaining agreements control certain aspects of the lifeguards' employment with respondent:
Local Labor/Management Agreement For The Handling of Lifeguard Performance or Attendance Deficiencies (hereinafter referred to as Exhibit “C”);
May 1986 letter to Roy Lester outlining discipline procedure (hereinafter referred to as Exhibit “28”);
Appendix D of Agreement between The State of New York and New York State Correctional Officers & Police Benevolent Association, Inc. (hereinafter referred to as Exhibit “29”).
Further, the Seasonal Appointment Letter (hereinafter referred to as Exhibit “A”) which petitioner acknowledged receipt of for the seasons 2001 through 2005 states in pertinent parts. “You should understand, however, that your employment relationship with the Office of Parks, Recreation & Historic Preservation is only temporary. It may be terminated at any time, either by you or by the agency, for any reason and without prior notice....”
Petitioner's witness, Roy Lester, is an attorney who served as a lifeguard for respondent from 1968–2006, as well as head of all New York State Lifeguards and as chief negotiator for the union representing lifeguards in New York. As such, he represented petitioner. Although Lester believes that Exhibit “28” is controlling he agrees that Exhibit “C” has also been applied and both are similar in affording the Step 1 hearings as a first step in disciplinary procedures.
Respondent's witness, Elaine Bartley, Senior Counsel for respondent, testified that Exhibit “C” controls the disciplinary procedure and, indeed, respondent's first letter (Exhibit “17”) scheduling the Step 1 hearing cited Exhibit “C” as the authority. Lester did not challenge this reference and the Court will, therefore, recognize same as the applicable procedure.
Initially, the Court finds no merit to petitioner's claim that respondent failed to provide him with an exit interview. Entitlement to an exit interview is contained in Exhibit “29” which provides as follows in pertinent parts:
“(4) Employees who have completed a lease six years of continuous service of six pay periods on a scheduled half-time or greater basis in each of those six years, shall be entitled to an exit interview with the appointing authority or designee following notice of involuntary separation ...”.
Since petitioner's employment with respondent was not concluded with an involuntary termination and he received no notice of involuntary separation, he was not entitled to an exit interview. The record is also devoid of any testimony illustrating what such an exit interview would have accomplished.
Further, the Court rejects respondent's claims that petitioner failed to exhaust his administrative remedies because he did not inquire into and/or request to have the Step 1 hearing rescheduled, as the duty of rescheduling and notifying petitioner was respondent's.
Petitioner had the burden of proving that his punishment was so disparate from the treatment accorded to similarly situated lifeguards, that it was arbitrary and capricious. (Matter of Frederick v. Civil Service Comm., 175 A.D.2d 428;Matter of Stanton v. Town of Islip Dept. of Planning & Development, 37 AD3d 473). Petitioner has failed to meet his burden. Except for James Green, petitioner was unable to point to any lifeguard who was guilty or accused of submitting a bogus doctor's note. While the above listed crimes and/or accusations are of a serious nature, none relates as intimately to the issue of trust and reliance on the lifeguard's self certification of their physical fitness which every applicant for a seasonal lifeguard position must provide in their application. Respondent rightfully claims that physical ability to perform the life saving functions is the very core of the lifeguard's duties and its conclusion that petitioner could no longer be trusted to truthfully provide it with the critical information as to his physical ability is entirely reasonable. Further, considering the fact that petition's co-conspirator was also banned there is a sufficient basis for treating petitioner differently from other lifeguards guilty of various other crimes. ( In the Matter of Campo Granchildren Trust v. Colson, 39 AD3d 746;In the Matter of Pell v. Board of Education of Union Free School District No. 1 of the Towns of Scarsdale and Mamaroneck, et al., 34 N.Y.2d 222;In the Matter of Cohen v. State of New York, 2 AD3d 522). This Court will not substitute its judgment for that of respondent and finds no abuse of discretion as a matter of law in respondent's treatment of petitioner compared to its treatment of other lifeguards convicted of crimes. ( In the Matter of Cohen v. State of New York, supra; In the Matter of Pell, supra ).
While the Seasonal Appointment Letter (Exhibit “A”) gives respondent the discretion to terminate a lifeguard for any reason without prior notice, it cannot now rely on this provision to excuse its failure to follow through with the disciplinary procedure pursuant to Exhibit “C”. Having invoked its authority respondent was obliged to comply with it. Respondent scheduled, rescheduled and then cancelling the rescheduled hearing with a promise to provide a new date. Once initiated, respondent was required to complete the disciplinary process in accordance with the provisions of Exhibit “C” and by failing to do so it violated its own policies and procedures, which deprived petitioner of any opportunity to explain his action and/or to plead his case. The probability of respondent's imposition of a lifetime ban after the hearings is irrelevant. (Frick v. Bahou, 56 N.Y.2d 777;Mullen v. County of Suffolk Police Department, 307 A.D.2d 1036;Gomez v. Stout, 13 NY3d 182;Adler v. County of Nassau, 246 A.D.2d 542;DePetris v. Union Settlement Association, Inc., 86 N.Y.2d 406;Pell v. Board of Education of Union Free School District No. 1 of the Towns of Scarsdale and Mamaroneck, et al., supra ).
In order to fashion a proper remedy for respondent's abuse of discretion in violating its policies and procedures the Court must consider the particular circumstances of petitioner's employment. Although hired for 17 seasons, petitioner was an employee for a fixed term for each season. He had no right to be rehired. ( DePetris, supra ). Further, he was allowed to serve out his term for the 2005 season.
In prohibiting petitioner from taking the new hire test without having afforded him a Step 1 hearing, respondent, in fact made a decision without giving petitioner the benefit of such a hearing. ( Adler, supra ).
Therefore, respondent is directed to provide to petitioner the hearings he is entitled to pursuant to Exhibit “C”. Further, petitioner shall be permitted to take the new hire test unless and until a determination after the appropriate hearings ban him from such service for life. While respondent wrongfully prohibited petitioner from taking the new hire test in 2006, there is no certitude that he would have passed same or that an opening existed. The same is true for all subsequent years.
Based upon the foregoing, the Court declines to make an award of lost wages. However, as the prevailing party petitioner is entitled to attorney fees pursuant to the New York State Equal Access to Justice Act (CPLR § 8601). Further, the position of respondent was not substantially justified, nor are there special circumstances which would make an award of attorneys fees to petitioner unjust. (Tormos v. Hammons, 259 A.D.2d 434;Serio v. New York State Department of Correctional Services, 215 A.D.2d 835). Accordingly, petitioner shall submit to this Court the appropriate statement for an award of attorneys fees and other expenses pursuant to CPRL § 8601(b).
Settle Judgment on notice.