Opinion
44681/07.
Decided March 4, 2008.
Petitioner was represented by Michael N. Block, Esq. of Sullivan Papain Block McGrath Cannavo, P.C.
Respondents were represented by Blanche Greenfield, Esq. and Maxwell Leighton (awaiting admission) of the Corporation Counsel of the City of New York.
On March 25, 2007, petitioner Adam R. Duchinsky became a probationary firefighter with the Fire Department of the City of New York. By letter dated September 4, 2007, his employment was terminated, effective that date. With this Petition, pursuant to CPLR Article 78, Mr. Duchinsky challenges his termination, and seeks reinstatement either for all purposes or limited to "a reasonable opportunity to pursue a disability pension." ( See Notice of Petition dated December 5, 2007.)
The Petition is verified by Mr. Duchinsky, and is further supported by his separate affidavit and the affidavit of Andrew S. Levy, M.D. Respondents' Answer is verified by Kerry J. Kelly, M.D., Chief Medical Officer of the Department's Bureau of Health Services, ("BHS") and is further supported by Dr. Kelly's separate affidavit. For the most part, the material facts are not in dispute.
Petitioner was initially employed by the Department as a "provisional" Emergency Medical Specialist-Emergency Medical Technician ("EMT") on July 16, 2006. His status as "provisional" is not further described, and neither Petitioner nor Respondents indicate any significance of the designation to the issues to be determined on this Petition. Prior to his employment as an EMT, Petitioner disclosed that in 2000 he had sustained an injury to his left knee that required arthroscopic surgery. A copy of the operative report was provided to BHS, and Petitioner was referred to an orthopedist for examination. Petitioner was "medically cleared for provisional appointment as an EMT" (Verified Answer, ¶ 33.)
Petitioner resigned from his position as an EMT on March 24, 2007, and was employed by the Department the next day as a "probationary" firefighter. Petitioner had again disclosed the 2000 injury and surgery to his left knee, and was again referred to an orthopedist for examination. The operative report was again reviewed, and Petitioner was "initially medically cleared for appointment as a probationary firefighter" ( id., ¶ 35.)
Pause is warranted to note that "a period of probation" prior to permanent appointment as a firefighter is required by law ( see Administrative Code of the City of New York § 15-104), but the record on this Petition does not reveal the duration of the probationary period, nor the existence of any written standards, guidelines, policies, or practices for the review of probationary firefighters. According to Respondents, "During this probationary period, the [Department] evaluates probationary firefighters to determine whether they fully meet all the qualifications required to perform the various challenging duties associated with the job of a FDNY firefighter, including the strenuous physical activity required to perform firefighter duty." (Verified Answer, ¶ 36.)
Also absent from the record is a copy of the operative report of the 2000 injury and surgery to Petitioner's left knee, as well as any report or record entry as to the findings and opinions of the orthopedic examinations of Petitioner prior to his appointment as a provisional EMT and probationary firefighter. According to Dr. Kelly, the surgery consisted of "left knee arthroscopy, partial medical menisectomy and chondroplasty of the patella on the medial facet." (Affidavit of Kerry Kelly in Support of Respondents' Verified Answer, ¶ 7.) Also according to Dr. Kelly, "[a]t the time of the surgery, the orthopedic surgeon noted grade III changes of the patella, which is significant damage to the cartilage of the knee that impinges on its smooth functioning." ( Id.) The orthopedic surgeon, Dr. Andrew S. Levy, confirms the description of the surgery, but does not comment on the purported findings as to the patella. (Affidavit of Treating Orthopedic Surgeon, ¶ 3.)
Approximately two weeks into his training as a probationary firefighter, on April 9, 2007, Petitioner sustained an injury to his right knee while performing a "duck walk" exercise. After a short period of medical leave, he was returned to full duty, but then because of pain and instability he was placed on light duty, which was continued until July 16. Except to the extent that the right-knee injury interfered with Petitioner's training as a probationary firefighter, there is nothing in the record to suggest, and neither Petitioner nor Respondents contend, that there was any relationship of the right-knee injury to Petitioner's prior left-knee injury or surgery, or any relationship to the subsequent left-knee injury that is at the center of the current controversy.
That subsequent left-knee injury occurred on August 14, 2007. As described in the Petition, Mr. Duchinsky "injured his left knee when his heel caught on a step of a stairway he was descending at the [Department's] training facility." (Petition, ¶ 16.) He expands upon this description in an affidavit, "my heel caught on a step and the momentum of my body caused the knee to twist." (Affidavit of Petitioner, ¶ 11.)
The August 14 left-knee injury led to Petitioner's termination as a probationary firefighter less than a month later, on September 4. That history will be elaborated below, after a review of the rules governing the Court's consideration of the Petition. In short, however, Petitioner was "found medically unqualified as a probationary firefighter." (Verified Answer, ¶ 44.)
As to private, rather than public, employment, "absent a constitutionally impermissible purpose, a statutory proscription, or an express limitation in the individual contract of employment, an employer's right at any time to terminate an employment at will remains unimpaired." ( See Murphy v American Home Prods. Corp., 58 NY2d 293, 305; see also Smalley v Dreyfus Corp., 2008 NY Slip Op 1252, * 3 [Ct App].) "[E]ither the employer or the employee generally may terminate the at-will employment for any reason, or for no reason." ( Id.)
As to public employment, although the status of the employee might carry more protection from termination ( see Matter of Soto v Koehler, 171 AD2d 567, 567 [1st Dept 1991]), even the probationary employee is given protection that a private employee does not have ( see id., at 567-68.) One of the statements by the Court of Appeals was that "[t]he employment of a probationary appointee may be terminated . . . without reasons being stated and, in the absence of any . . . demonstration that the termination was because of constitutionally impermissible reasons or prohibited by statute or policies established by decisional law, courts will not interfere with the discretion of the appointing officer unless the action complained of was arbitrary and capricious." ( Matter of Talamo v Murphy, 38 NY2d 637, 639; see also Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 759; Matter of Farrell v New York City Police Dept., 37 NY2d 843, 844; Matter of Schwab v McElligott, 282 NY 182, 185-87; Matter of Albury v New York City Civ. Serv. Comm., 32 AD2d 895, 895 [1st Dept 1969], aff'd 27 NY2d 694; Matter of Vespucci v Prendergast, 303 AD2d 685, 685 [2nd Dept 2003]; Matter of Sherman v Leonard, 197 AD2d 581, 582 [2nd Dept 1993].)
The parties here have submitted the question of Petitioner's termination for review under the "arbitrary and capricious" standard. ( See Memorandum of Law in Support of Petition, at 6; Respondents' Memorandum of Law in Support of Their Verified Answer, at 8.)
Other authorities, however, including the more recent, limit the discharge of probationary public employees by a duty of good faith. The most recent statement by the Court of Appeals is that "[a] probationary police officer may be discharged for almost any reason, or for no reason at all' so long as it is not in bad faith or for an improper or impermissible reason'." ( Matter of Duncan v Kelly, 2008 NY Slip Op 181, * 2 [Ct App] [ quoting Matter of Swinton v Safir, 93 NY2d 758, 762-63 (1999)]; see also Matter of Montero v Lum, 68 NY2d 253, 261; Matter of Johnson v City of New York ,34 AD3d 484, 485 [2nd Dept 2006]; Matter of Robinson v Health Hosps. Corp. , 29 AD3d 807, 808-09 [2nd Dept 2006]; Walsh v New York State Thru. Auth ., 24 AD3d 755, 757 [2nd Dept 2005]; Matter of Rossetti-Boerner v Hampton Bays Union Free Sch. Dist ., 1 AD3d 367, 368 [2nd Dept 2003].)
A "bad faith" standard is not the same as an "arbitrary and capricious" standard, although sometimes it might appear to be. ( See Matter of Anonymous v Codd, 40 NY2d 860, 860-61; Matter of Robinson v Health Hosps. Corp., 29 AD3d at 808-09.) "Rationality is what is reviewed under . . . the arbitrary and capricious standard." ( Matter of Pell v Board of Educ., 32 NY2d 222, 231; see also Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d at 759 ["without sound basis in reason and without regard to the facts"]; Matter of Talamo v Murphy, 38 NY2d at 639 ["rational basis"].) "In New York, as elsewhere, good faith' connotes an actual state of mind — a state of mind motivated by proper motive." ( Polotti v Fleming, 277 F2d 864, 868 [2d Cir 1960]; see also Tractebel Energy Marketing, Inc. v AEP Power Marketing, Inc., 487 F3d 89, 100 n8 [2d Cir 2007] ["good faith . . . is an issue entirely tied to motive"].) Although fundamentally subjective, "[t]he existence of [a person's] good faith as a substantive fact . . . necessitates an examination and evaluation of external manifestations." ( See Adler v 720 Park Avenue Corp., 87 AD2d 514, 515 [1st Dept 1982] [ quoting Doyle v Gordon, 158 NYS2d 248, 259-60 (Sup Ct, NY County 1954).]
Where the termination of a probationary employee is based upon medical disqualification, both the "arbitrary and capricious" standard and the "bad faith" standard appear in the cases. And so, "[d]espite conflicting medical opinions as to the advisability of permanent employment, there was a rational basis for the determination of respondent Police Commissioner and, accordingly, the action taken was neither arbitrary nor capricious." ( Matter of Talamo v Murphy, 38 NY2d at 639; Matter of Farrell v New York Police Dept., 37 NY2d at 844; Matter of Albury v New York City Civ. Serv. Comm., 32 AD2d at 895); see also Matter of Schwab v McElligott, 282 NY at 187.) Nonetheless, while a probationary employee may be "terminated at any time," the employer's "power in this regard is circumscribed by the limitation that the termination of a probationary employee may not be effected with a view toward frustrating an application for disability retirement or if it is otherwise made in bad faith." ( See Matter of Bellman v McGuire, 140 AD2d 262, 265-66 [1st Dept 1988]; see also Matter of Lomando v Kelly , 33 AD3d 510, 510 [1st Dept 2006]; Averys v Kelly, 214 AD2d 309, 309 [1st Dept 1995]; Matter of Connolly v Kelly, 213 AD2d 272, 272 [1st Dept 1995].)
"In general, the petitioner has the burden of proving the allegations of his or her petition in a CPLR article 78 proceeding." ( Matter of Poster v Strough, 299 AD2d 127, 138 [2nd Dept 2002].) The petitioner is free to submit to the court any competent and relevant proof that the challenged determination was arbitrary and capricious. ( See id., at 141-43.) And "[t]he petitioner hears the burden of establishing . . . bad faith or illegal conduct by competent evidence rather than speculation." ( Matter of Rossetti-Boerner v Hampton Bays Union Free Sch. Dist., 1 AD3d at 368; see also Matter of Robinson v Health Hosps. Corp., 29 AD3d at 809.)
Returning now to the history, after Petitioner's August 14, 2007 injury, he was examined twice by BHS doctors. On August 15, Petitioner's left knee was examined by Dr. Kelly, who specializes in family medicine, and Dr. Charles Dutkowsky, who specializes in physical and sports medicine, and he was placed on light duty. On August 17, he was examined by Dr. Kelly and Dr. Michael Lin, who specializes in internal medicine. Following these examinations, Petitioner was found "medically unqualified to perform the duties of a probationary firefighter." (Affidavit of Kerry Kelly in Support of Respondents' Verified Answer, ¶ 3.)
On the August 15 examination, Dr. Kelly "observed a well-heeled scar from [the] prior knee surgery, crepitation over the knee with patella drift, and tenderness under the patella and over the joint line"; "[t]here was some laxity of the joint." ( Id., ¶ 5.) On the August 17 examination, Dr. Kelly found "no swelling," but "continued . . . crepitation over the knee and patella." ( Id., ¶ 6.) BHS recommended to the Department's Trainee Review Board that Petitioner be found medically unqualified. After noting Petitioner's "prior orthopedic problem with the left knee that required surgical intervention," and "evidence of continued problems with the knee" revealed by the recent examinations ( id., attachment "Medical update on probationary ff Adam Duchinsky"), BHS stated the following reasons for its recommendation:
"The activities of firefighting demand a level of conditioning and physical well-being beyond the routine activities of daily living. The additional weight of equipment places additional demands on the weight bearing joints of the body. In this person, his pre-existing damage to the left knee precludes his safe return to the fire training academy. His continued presence in the program may jeopardize his safety and the safety of others." ( Id,; see also id., ¶¶ 8-9.)
Dr. Kelly elaborates somewhat in the Affidavit submitted on this Petition. Emphasis is placed upon the "pain and swelling" of Petitioner's left knee on "descending an ordinary flight of stairs" ( id.), although the recommendation to the Training Review Board notes that Petitioner's symptoms occurred "after his foot caught on the stair" ( id., attachment.) Dr. Kelly also states the conclusion that Petitioner "would, in the future, continue to have problems with his left knee," and that his left knee "would present a future risk to the safety of himself, his colleagues, and the public." ( Id., ¶¶ 8-9.)
The BHS recommendation with respect to Petitioner apparently came before the Trainee Review Board on August 20, 2007. The Board consists of six representatives of various divisions of the Department, including Dr. Kelly. Although Respondents in their Answer suggest that the Board made an independent determination as to Petitioner's fitness to continue service as a probationary firefighter (Verified Answer, ¶ 44,) the only relevant documentary evidence in the record suggests otherwise. The single-page document (Reply Affirmation, Exhibit A) is not completed in the section headed "Decision Rendered," and, specifically, does not indicate "Separation from Service," but states at the bottom, "Probationary ff Adam Duchinsky has been declared medically unqualified by Dr. Kerry Kelly, chief medical officer at the Bureau of Health Services" ( id.)
In any event, nothing in the record on the Petition tells the Court when or how either the BHS recommendation or the results of the Trainee Review Board meeting were conveyed to Petitioner, but apparently they were prior to August 23. On that date, Petitioner saw Dr. Andrew Levy, the orthopedic surgeon who performed the December 2000 surgery on Petitioner's left knee. In a Doctor's Note that was sent to the Department's Chief of Uniformed Personnel with a letter dated August 27, Dr. Levy states: "mild grade I [unintelligible] sprain resolved"; "MRI showed no problems with 7yr old partial menisectomy, patella [unintelligible]"; "cleared for all sports/all work." (Petition, Exhibit A.)
Although receipt of Dr. Levy's note is acknowledged, (Verified Answer ¶ 45), there is nothing in the record on this Petition to suggest that Dr. Kelly, or anyone else in BHS or the Department, considered Dr. Levy's findings and opinions in considering whether Petitioner should be continued in probationary service. There is, indeed, nothing to indicate that any further substantive consideration was given to Petitioner's status before respondent Fire Commissioner notified Petitioner with a letter dated September 4, 2007 that his "position as a Probationary Firefighter with the Department is terminated" (Verified Answer, Exhibit 3.) No reason for the termination is given.
To complete the description of the record on the Petition, Dr. Levy has submitted an Affidavit in which he elaborates on the findings and opinions in his August 23 Doctor's Note. Dr. Levy asserts that "there was no relationship whatsoever between [Petitioner's] mild knee sprain in 2007 and the injury for which he underwent surgical repair seven years earlier"; "there is no reason why he cannot perform rigorous physical activity since his mild knee sprain has healed"; "he is certainly fit to continue as a member of the New York City Fire Department"; and "[t]here is no medical basis to conclude that [Petitioner] cannot complete a full career of at least twenty years as a New York City firefighter." (Affidavit of Treating Orthopedic Surgeon, ¶¶ 10,11.)
Again, conflicting medical opinion in itself does not render the termination decision arbitrary or capricious, nor is it sufficient to create an inference of bad faith. Putting aside for the moment Dr. Levy's August 23 Doctor's Note, which will be revisited below, his opinions do not, therefore, require such a finding. There is nothing in his Affidavit or elsewhere in the record that demonstrates the familiarity with the performance requirements of firefighting that Dr. Kerry Kelly and the other BHS doctors bring to their assessments of the medical qualifications of probationary firefighters. That Dr. Kelly is not a board-certified orthopedist does not change that; the Department clearly has confidence in Dr. Kelly's expertise and opinions. In any event, Dr. Charles Dutkowsky, who specializes in physical and sports medicine, also examined Petitioner after his August 14 injury.
Nor is a different conclusion warranted by Petitioner's medical clearance for hiring, first as a provisional EMT, and later as a probationary firefighter, notwithstanding the pre-existing condition of his left knee. The Department may fairly proceed "with the intention of assessing [the probationary firefighter's] condition as it relates to his performance in training." ( See Matter of Stock v City of New York Dept. of Corr., 267 AD2d 104, 104-05 [1st Dept 1999]; see also Matter of Strauss v Harring, 256 AD 662, 665 [1st Dept], aff'd 281 NY 612.) Were it otherwise, the Department might avoid providing opportunities to demonstrate and assess performance in training, to the detriment of those who would serve and those they would serve.
No adverse inference may be drawn by reason of the absence from the record of any written reports or notations of the orthopedists who examined Petitioner prior to service. There is no evidence that any such report or notation exists, nor any other reason to suspect that Respondents have withheld material documents. ( See Matter of Bellman v McGuire, 140 AD2d 262, 264-65 [1st Dept 1988]; compare Matter of Cohen v Koehler, 181 AD2d 285, 290 [1st Dept 1992], rev'd 82 NY2d 882.) Petitioner has made no request for disclosure as to this or any other matter. ( See CPLR 7804 [a]; CPLR 408.)
Respondents' termination decision does not become suspect because it is based upon the possibility of future disability. ( See Matter of Palozzolo v Nadel, 83 AD2d 539, 539 [1st Dept 1981], aff'd 55 NY2d 984; City of New York, Environmental Protection Agency v Feinberg, 67 AD2d 653, 654 [1st Dept 1979], aff'd 48 NY2d 1017; Matter of Silbert v Jackson, 228 AD2d 198, 198-99 [1st Dept 1996].) Indeed, the "public's interest" in such a determination is implicated by, among other things, "pension rights after permanent appointment and service." ( See Matter of Strauss v Hannig, 256 AD at 665.)
Petitioner is undoubtedly precluded by his termination from applying for either ordinary disability retirement or accidental disability retirement. ( See Administrative Code of the City of New York §§ 13-352, 13-353; Matter of Brennan v Ward, 134 AD2d 194, 196 [1st Dept 1987]; Matter of Sheridan v Ward, 125 AD2d 274, 275 [1st Dept 1986].) But Petitioner did not apply for disability retirement before his termination ( see Averys v Kelly, 214 AD2d at 310-11), and, more importantly, neither Petitioner nor Respondents contend that Petitioner is disabled. In any event, those cases in which bad faith has been found in frustrating the probationary employee's application for disability benefits have involved misleading conduct ( see id., at 310; Matter of Connolly v Kelly, 213 AD2d at 272; Matter of Bellman v McGuire, 140 AD2d at 266.)
There is still, however, Dr. Levy's August 23 Doctor's Note, which is significant for two related reasons. First, the Note states that an "MRI showed no problems with 7yr old partial menisectomy, patella [unintelligible]". There is nothing in Dr. Kelly's Affidavit or the attached "Medical update" given to the Trainee Review Board that suggests that any radiological or other diagnostic test, or indeed any objective test, was performed in connection with the August 15 or August 17 examination of Petitioner. Second, Dr. Kelly's determination and the BHS recommendation to the Trainee Review Board was heavily based upon Petitioner's prior injury to his left knee and the findings noted in the operative report of his December 2000 surgery. That surgery was performed by Dr. Levy.
It is difficult to imagine that, under those circumstances, a rational physician making a good faith assessment of the condition of Petitioner's left knee, and its possible effects on his future performance as a firefighter, would not want to see a contemporaneous radiological study and hear directly from the author of the December 2000 operative report. But there is nothing in the record that suggests that the Doctor's Note was considered before the September 4 termination letter was sent. We are told that the Note was delivered to the Department with a letter dated August 27, but not when it was received, or what happened to it after that.
It may well be that, notwithstanding the MRI results and Dr. Levy's opinions, termination of Petitioner as a probationary firefighter would be rational and in good faith. But the failure to consider that which is available and possibly material may itself be arbitrary and capricious, and indicate bad faith. In similar contexts, such failures have warranted rejection of affected determinations. ( See Matter of Day v Board of Trustees of NY City Fire Dept., Art. 1- B Pension Fund, 74 AD2d 507, 508 [1st Dept 1980]; see also Matter of Brady v City of New York, 22 NY2d 601, 606-07; Carey v McGuire, 88 AD2d 532, 533-34; Roth v Board of Trustees of Teachers' Retirement System of the City of NY, 66 AD2d 664, 665 [1st Dept 1978]; Matter of Kelly v Board of Trustees of the Police Pension Fund, Article II, 47 AD2d 892, 893 [1st Dept 1975].)
"It is precisely because of the severe limitations on the availability of judicial review of determinations made by bodies such as the pension board that such bodies must make a careful and painstaking assessment of all the available evidence and should defer final determinations until they are satisfied that all evidence has been fully and fairly considered." ( Matter of Brady v City of New York, 22 NY2d at 606.) On the other hand, it is not "arbitrary and capricious for the Board to fail to consider evidence not before it." ( See Matter of Luisi v Safir, 262 AD2d 47, 50 [1st Dept 1999].)
Matter of Day v Board of Trustees of NY City Fire Dept., Art. 1-B Pension Fund ( 74 AD2d at 507) is most directly on point. A firefighter applied for accidental disability retirement, alleging injury to his knee in the line of duty. A consultant orthopedic surgeon to the pension fund's medical board concluded that the firefighter's knee problems were not caused by a line-of-duty injury, but an orthopedic surgeon who examined the firefighter at his request, a Dr. Eisenstein, reached a contrary conclusion. Because it was "unclear whether the medical board even considered the Eisenstein report," the matter was remanded to the board "for consideration of all available medical evidence, including the report of Dr. Eisenstein, in the interest of making sure that no injustice ha[d] been done and no relevant evidence overlooked'." ( See id., at 508 [ quoting Roth v Board of Trustees of Teachers' Retirement System of City of NY, 66 AD2d at 665].)
Here, rejection of the Department's determination would be inappropriate, in the absence of evidence that the Doctor's Note was not considered before Petitioner was terminated. An alternative is found in CPLR 7804 (e), which expressly authorizes the court to "order the body or officer to supply any defect or omission in the answer, transcript or an answering affidavit." The omission, of course, is any information on when the August 23 Doctor's Note was received, and what was done with it.
No later than April 4, 2008, Respondents shall deliver to the Court and serve upon Petitioner such affidavits and other evidence as would establish when the August 23 Doctor's Note was received by the Department, whether and by whom it was considered prior to Petitioner's termination, and, if considered, the consequence for the Department's determination. No later than May 2, 2008, Petitioner may deliver to the Court and serve upon Respondents such affidavits and other evidence as would dispute the factual assertions found in Respondents' submission. Respondents and Petitioner may accompany their respective submissions with an affirmation of counsel commenting on the new evidence. Submissions are to be made directly to Chambers.