Opinion
45-1-2008-0233.
Decided September 29, 2008.
THE TUTTLE LAW FIRM, Attorneys for Petitioner, Latham, New York.
BURKE, SCOLAMIERO, MORTATI HURD, LLP, Attorneys for Respondents, Albany, New York.
In March 2007, petitioner began serving a probationary period of up to 18 months as a City of Saratoga Springs firefighter. After graduating from the fire academy in August 2007, petitioner, already a New York State certified emergency medical technician (EMT), was assigned to attend a paramedic training program at Hudson Valley Community College. The training included learning to give hypodermic injections. During lab sessions, when petitioner attempted to insert a needle into a human body, he became lightheaded, nauseous, and fainted. Because of this reaction, petitioner stopped attending training sessions dealing with the insertion of needles. On October 3, 2007, the Fire Department issued to petitioner a "developmental counseling" form directing that he attend all sessions of the paramedic program and warning him that he could be terminated if he did not successfully complete the program. Then in an effort to overcome his fear of inserting a needle, and at the suggestion of Assistant Fire Chief John Betor, petitioner underwent two hypnotherapy treatments. Yet, on his first post-therapy attempt to insert a needle into a human body, petitioner fainted. On October 23, 2007, petitioner met with Assistant Chief Betor and another City firefighter, and allegedly petitioner was ordered to "prep" Betor's arm as if he were to start an IV and then insert the needle into a "fake" arm placed next to Betor's prepped arm. Petitioner attempted to complete the test, but as he approached the "fake" arm with a needle in his hand, he fainted. After petitioner recovered, Betor asked him to try the test again, but according to petitioner, he immediately began to again feel faint and declined to continue with the training exercise.
When petitioner was hired in March 2007, City firefighters were required to be certified EMT's, but they were not required to be certified paramedics. In June 2007, the minimum qualifications were revised by the City's Civil Service Commission to require that all subsequently appointed firefighters be certified paramedics or obtain the certification before completing their probationary period. According to the Civil Service Commission, this revised requirement applied prospectively to new appointees but did not apply to probationary firefighters, including petitioner, who had been already appointed.
On November 30, 2007, respondent Ronald J. Kim (hereafter Kim), Commissioner of Public Safety of the City of Saratoga Springs, by letter notified petitioner that his "probation period . . . was not successfully completed" and that his employment was being terminated effective December 31, 2007.
In this CPLR Article 78 proceeding, petitioner seeks judgment annulling the City's action terminating him as a probationary firefighter on the grounds that such action was arbitrary and capricious, unlawful, and an abuse of discretion. Petitioner asserts that his termination was based improperly and solely on petitioner's inability to qualify as a paramedic, a job requirement which did not and does not apply to him, and asks that he be restored to the position of probationary firefighter with back pay. Petitioner further alleges that Kim, on January 8, 2008, during an exit interview, stated that "the sole reason he was terminated . . . was his inability to complete the paramedic training" (Verified petition, paragraph 29).
In their answer to the petition, respondents contend that Kim acted in good faith and properly dismissed petitioner. Respondents Kim and the City of Saratoga Springs (City) submit with their answer the affidavit of Assistant Fire Chief Betor (hereafter Betor), who was the City employee responsible for observing, evaluating, and reviewing probationary firefighters, and who recommended to Kim that petitioner be discharged. According to Betor, petitioner was not terminated "due to his inability to complete the paramedic training" but for several other reasons, namely, that petitioner "did not share a sense of responsibility to support the goals and objectives of Fire Chief and the Commissioner"; that petitioner "felt that his vision of the fire service was more appropriate than that of [Betor] or the Fire Chief . . . [and that] in a team service such as firefighting, there is no room for such individual focus"; that petitioner was "evasive and at times untruthful to the Fire Chief and [Betor] and [concerning his aversion to needles], [petitioner] was not forthcoming with us, and any questions he answered on the topic were evasive"; and "truthfulness and honesty are critical in an occupation in which others often times entrust their lives to you" and [petitioner's] actions made [Betor] question the truthfulness of [petitioner]; and that "when [Betor] had various discussions with [petitioner] about his actions or consequences, it was his impression and [ sic] that any impact that this actions may have on other people was not his concern"; and that petitioner was "at times argumentative and would take the position that he did not have to [ sic] what he did not want to and we [the Chief and Betor] could not make him". In short, Betor avers that based on his observations, petitioner was not suited to be a member of a "team service" and that conclusion constituted the basis for his recommendation that petitioner be discharged before his probationary term expired. In short, Betor claims the termination was not made in bad faith.
In reply to Betor's claims, petitioner explains, in detail, his recollection of the events during his paramedic training and his interaction with Betor. He asserts that Betor described the events "to construe, characterize or spin' them to suit [respondents'] purposes in this proceeding"; that Betor never mentioned to him "any of the alleged character or personality defects" but rather was "always very complimentary towards [petitioner] and told [petitioner] that he was a real good fit'"; and that he was never counseled or confronted by Betor or any Department official about any of the problems or concerns Betor now raises in this proceeding. In petitioner's view, Betor's broad generalized criticisms constitute an attempt to "manufacture" a legally acceptable predicate for his termination and to "avoid" Kim's alleged admission that petitioner was terminated only because of his inability to qualify as a paramedic. Petitioner also submits an affidavit from his father, who relates the substance of a telephone conversation he had with Fire Chief Cogan (hereafter Cogan) after petitioner's problem with needles surfaced. In brief, petitioner's father states that Cogan told him that petitioner "had to pass the paramedic course in order to continue being a City of Saratoga Springs Firefighter". Finally, petitioner notes the absence of an affidavit from Kim specifically refuting petitioner's claim that Kim admitted during the exit interview that he was terminated only because of his inability to qualify as a paramedic, an allegation which the city in its answer denied "for want of knowledge and information sufficient to form a belief as to the truth thereof".
Probationary municipal employees can be discharged for "almost any reason, or for no reason at all' as long as it is not in bad faith or for an improper or impermissible reason'". Matter of Duncan v Kelly , 9 NY3d 1024 , 1035 (2008), quoting Matter of Swinton v Safir, 93 NY2d 758, 762-763 (1999). Moreover, a "probationary employee may be discharged 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 York v McGuire, 63 NY2d 760, 761 (1984); Matter of Barry v City of New York , 21 AD3d 551 (2nd Dept 2005). To warrant a hearing, the terminated employee "bears the burden of establishing bad faith or illegal reasons by competent evidence'[and] speculative and/or conclusory allegations of bad faith [or] improper motive are insufficient to meet this burden'". Matter of Robinson v Health and Hospitals Corp., 29 AD3d 807, 809 (2nd Dept 2006), quoting Matter of Gulemi v Bradley, 267 AD2d 386, 387 (2nd Dept 1999); Walsh v New York State Thruway Auth. , 24 AD3d 755 , 757 (2nd Dept 2005). If a petitioner meets that threshold, the burden to rebut the claim of an improper discharge shifts to the respondents "[to] provid[e] admissible evidence setting forth legitimate, nondiscriminatory reasons to support its employment decision", and this burden can be satisfied through "detailed affidavits and investigative documents" to show "substantial and significant reasons to remove petitioner from his position". Matter of Suleman v State of New York Dept. of Taxation and Finance, 27 AD3d 1040, 1042 (3rd Dept 2006). When the employer meets that burden, petitioner must show by admissible evidence that the proffered "legitimate reasons" were "merely a pretext" for the termination, or stated another way, that the proffered reasons were false and that the real reason in this case was his inability to satisfy paramedic requirements. Matter of Suleman, supra at 1042; see also Bailey v New York Westchester Square Med. Center , 38 AD3d 119 , 123 (1st Dept 2007) [To rebut employer's showing that it had a legitimate, nondiscretionary reason to terminate plaintiff's employment, "the burden shifts back to plaintiff, who must then show that the proffered reason was merely a pretext for discrimination by demonstrating that both that the reason was false and that discrimination was the real reason'" (citations omitted) (emphasis in original)]; Mete v New York State Office of Mental Retardation and Developmental Disabilities , 21 AD3d 288 , 297 (1st Dept 2005) [To defeat summary judgment, terminated plaintiffs "must raise an inference that the elimination [of their position] cannot be justified by any explanation other than age discrimination"].
On its face, plaintiff's verified petition states a prima facie case of improper termination. First, petitioner adequately establishes, through documentary evidence from the City's Civil Service Commission, that the certified paramedic requirement did not apply to him, an assertion which the City in its answer denies but does not produce on this motion any evidence which counters the Commission's letter. Coupled with petitioner's allegation, also unrefuted on this record, that during his exit interview, respondent Kim told him that his inability to complete paramedic training was the reason his probationary appointment was terminated, petitioner adequately meets the threshold requirement to demonstrate a question of fact whether the termination was not lawful or was done in bad faith.
The court's review then shifts to respondents' answer and Betor's affidavit to determine if the respondents establish legitimate reasons for dismissal. As an initial matter, the City produces no contemporarily created performance evaluation(s) or assessments which memorialized Betor's observations or conclusions. Further, Betor's affidavit does not particularize what interactions between petitioner and Betor revealed personality traits and attitudes which caused Betor to conclude that petitioner was not suited to "a team service" in the fire department. In other words, Betor did not give specific examples of the petitioner's words and conduct which formed the basis for his opinion to Kim that petitioner not retain his position as a firefighter.
Even if Betor's explanation were facially sufficient to establish a legitimate reason for dismissal and thus to shift the burden back to petitioner to demonstrate that respondents' proffered reasons for dismissal were a mere subterfuge or "pretext", petitioner's detailed explanation of the events which took place between him and Assistant Fire Chief Betor after his problem with needles arose is sufficient to meet that burden in that it provides a plausible basis for a finding that his termination was solely related to this inability to qualify as a paramedic — once again, not a requirement applicable to petitioner.
In this case, and as rare as it may be, petitioner is entitled to an evidentiary hearing under CPLR 7804 (h) on the legitimacy of his discharge, namely whether his termination was justified on the basis of respondents' finding of work related personality traits and attitudes which would constitute a legitimate basis to disqualify him from a permanent appointment or whether it was incorrectly premised on an inability to achieve paramedic certification — again a qualification which, according to the City's Civil Service Commission, petitioner was not required to have to become a permanent firefighter of the City of Saratoga Springs. Matter of Garrity v University at Albany, 301 AD2d 1015 (3rd Dept 2003) [Hearing required to determine whether petitioner was discharged from probationary position because of work related deficiencies, insubordination, and an inability to work with others reasons which were not supported by documentary evidence, or was retaliatory because petitioner complained to superiors and outside investigative agencies about operational deficiencies and improprieties in the operation of a college pharmacy]; Matter of Higgins v LaPaglia, 281 AD2d 679 (3rd Dept 2001), lv dismissed 96 NY2d 854 (2001) [Hearing required when termination of probationary employee was based on unsatisfactory job performance yet work performance evaluations prepared by employer were complimentary and there was evidence that employee had not received training in areas he was deemed deficient].
This memorandum shall constitute both the decision and the order of the court. This decision and order is being returned to petitioner's counsel for entry. The court will retain all original papers. The signing of this decision and order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that section relating to filing, entry and notice of entry.
So Ordered.