Opinion
No. 114839/06.
Decided September 9, 2008.
Petitioner was represented by Liam Castro, Esq., Koehler Isaacs, LLP; Respondents were represented by Jason Friedman, Esq. and Mario Frangiose, Esq., Office of Corporation Counsel.
In this Article 78 proceeding, petitioner April Quick ("Quick") moves for an order and judgment annulling the determination of respondents Martin Horn, Commissioner of the New York City Department of Correction, the New York City Department of Correction ("DOC"), and the City of New York terminating her employment as a probationary correction officer, and directing that she be reinstated with back-pay and benefits. After a hearing on the issue of whether respondents acted in bad faith or an arbitrary or capricious manner when they terminated Quick's employment as a probationary correction officer, the court finds that the petition should be granted.
The hearing was directed by this court's decision and order dated January 8, 2008.
Background
The testimony and evidence introduced at the hearing held on February 25 and 27, 2008 reveal the following. Quick was employed by the DOC as a probationary correction officer from August 12, 2004 through June 15, 2006, when she was terminated as the result of a complaint made to the New York City Department of Investigation ("DOI") by a person identifying himself as a parole officer named Johnson Robenson ("Robenson"). Robenson indicated that he was the parole officer assigned to a former inmate and parolee named Rashid Stanley ("Stanley"). Stanley is Quick's former boyfriend, who, one day before the DOI complaint was made, allegedly assaulted Quick and threatened to kill her.
The record contains documents with alternative spellings of Robenson's name, including Robinson and Robensen. However, consistent with the court's decision and order dated January 8, 2008, the court will identify this purported individual as Robenson.
In certain records in evidence Stanley's first name is spelled Raeshid.
The individual purporting to be Robenson made a previous complaint about Quick to DOI on December 30, 2005 (Respondents' Exhibit 15). This complaint alleged that while visiting Stanley, Robenson noticed Quick's uniform hanging in Stanley's apartment. In response, DOC initiated an investigation concerning Quick's undue familiarity with Stanley, and her failure to report that she was living with Stanley when she applied for a position as a correction officer.
Nathaniel Bialek ("Bialek"), the DOC investigator assigned to the matter, testified that he contacted Robenson at (347) 381-0170, which is the cell phone number provided on the DOI intake complaint form, and that the person who answered the call identified himself as a parole officer, although on cross-examination Bialek acknowledged that he could not remember if Robenson identified himself as a parole officer or if he identified him and Robenson said "yes."
Quick testified that the telephone number used by Bialek to contact Robenson was Stanley's telephone number. Heidi Lynn Wagner, the employee relations officer from the New York State Division of Parole, testified that Division records show that for the last 15 years, there has never been a parole officer employed by the Division named Johnson Robenson or Johnson Robinson. Ms. Wagner identified two women, Caren Kramer and Jovito Martin, who were assigned as Stanley's parole officers. She also testified that no one from the Department of Correction ever contacted her or one of her subordinates to determine the existence of a parole officer named Johnson Robenson.
As indicated in this court's decision and order dated January 8, 2008, a Sprint invoice dated July 10, 2007 indicates that the number is Stanley's telephone number.
Notably, respondents submitted no evidence to support their position that there is a parole officer named Johnson Robenson, or that the telephone number used to contact Robenson belonged to anyone other than Stanley.
The investigation of the first complaint was closed without charges being filed against Quick based on Quick's statements at an interview held pursuant to Mayor's Executive Order 16 (hereinafter "MEO interview"), that Stanley had moved out of her residence, and that she did not know she was required to report that she was living with a parolee who was not incarcerated. When asked why he recommended that the investigation be closed, Bialek testified that "[i]t was my opinion that she may have made a mistake in not putting [Stanley] down. She was truthful, I felt she was truthful at the MEO and so I recommended no charges, and she should continue on in employment." (Hearing Transcript, at 131).
Mayor's Executive Order No. 16, as amended in 1986, gives each agency responsibility for prosecution of all formal administrative proceedings, including removal and other disciplinary proceedings for misconduct or incompetency.
On February 22, 2006, Robenson made a second complaint with DOI against Quick, which resulted in Quick's termination as a correction officer. This complaint provided the same contact telephone number for the parole officer as the first complaint and alleged that Stanley was stopped by police officers from the 79th precinct on February 20, 2006, while driving Quick's car and was in possession of her shield and identification ( See, Respondents' Exhibit 20). According to Bialek, upon receiving the complaint from DOI, he telephone the number provided on the complaint and a person who identified himself as Parole Officer Robenson told Bialek that the parolee had come to his office to report the incident. However, when Bialek telephoned the 79th precinct to find out if there was any file or documentation of the incident, he was told that "there was nothing on record." (Hearing Transcript, at 136).
Bialek testified that it was not "terribly unusual" that there was no documentation at the precinct to support the parole officer's statement, explaining that "if they (i.e. the police officers at the precinct) would have called Quick to respond at the precinct to retrieve her shield and ID and to verify it is her shield and ID and her vehicle, they would give her shield and ID back and her vehicle back and that would be it (Hearing Transcript at 136-137). Even if this testimony is credited, it does not explain the absence of an arrest report since the purported parole officer stated that Stanley had been arrested.
Bialek then scheduled an MEO interview with Quick for March 23, 2006. During the interview at which Quick was represented by a union attorney, and provided sworn testimony, the investigators asked Quick whether she had lost her DOC shield and identification, whether she had permitted Stanley to use her automobile or allowed him to come into possession of her DOC shield and identification, and whether she had ever retrieved these items from the 79th precinct. Quick denied the allegations and indicated that she had no idea what the investigators were talking about.
Quick further testified that the last time she saw Stanley was on February 21, 2006, when she was leaving her building on the way to her job at Riker's Island, and Stanley was standing outside her car, and tried to take her keys. According to Quick, when she would not speak to Stanley, he grabbed her and threatened to kill her, and that she called Riker's Island on the way to work and spoke to her supervisor about the incident, and that upon her arrival at work, he sent her with two escorts to the 75th precinct to file a complaint. The record contains the report filed at the 75th precinct on February 22, 2006, and an incident report filed by Quick on the same date with the warden of Riker's Island. (Petitioner's Exhibits B and C).
These reports indicate that on February 21, 2006, Quick left her apartment at approximately 9:30 p.m. on her way to work an 11-p.m.-to-7-a.m. tour at Riker's Island. As she arrived at her car, Stanley approached her, verbally harassed her, grabbed her by her jacket, pushed her against her car, picked up a glass bottle in a threatening manner, cursed at her, and threatened to kill her.
Bialek testified that following Quick's MEO interview he contacted the 75th precinct where Quick filed the police report against Stanley but was told that there was no progress on the case due to more pressing matters. In addition, in his report recommending Quick's termination Bialek refers to a report filed on February 27, 2006, by a New York City Police Officer, Celia Perry, confirming that Quick had filed a domestic violence report indicating that Stanley assaulted her. Bialek apparently never contacted the precinct again about the matter and did not obtain copies of the police report or the internal DOC report filed by Quick .
Subsequent to MEO, Bialek telephoned the person purporting to be Parole Officer Robenson and asked him to put his verbal complaint against Quick in writing. In response, on April 6, 2006, the person purporting to be Robenson faxed an unsworn and undated statement to Bialek with a facsimile marker from "Village Copier," on Division of Parole letter head, without any office telephone number. The statement, which contains obvious spelling errors, such as "pricent" instead of "precinct" and "A pon" instead of "upon," indicates that on February 21, 2006, Stanley reported to him that the day before while driving Quick's car with Quick's shield on the dashboard, he had been pulled over by police officers from the 79th precinct. The statement also indicates that Stanley advised Robenson that he told the officers that the shield belonged to Quick, that the officers placed Stanley under arrest for impersonating an officer, and that Stanley telephoned Quick, who went to the 79th precinct and retrieved her shield and identification, advising that she had left them in her automobile by mistake.
According to the statement, Stanley was not charged and was released from custody, and that during his visit with Stanley, Robenson spoke to Quick who asked him not to find Stanley in violation of his parole because the mistake was hers, not Stanley's. The statement also indicates that when Robenson attempted to obtain a copy of the police report from the 79th precinct, he discovered no record of the traffic stop or arrest was on file.
In an investigative report written dated May 10, 2006, Bialek recommended that Quick be terminated for giving false and/or misleading statements during the interview and for failure to secure her shield and identification. (Respondents' Exhibit 5). Bialek testified that he based on the recommendation on "the interview [with Quick], the DOI complaint, the conversation with the Parole Officer, the letter from the Parole Officer" (Hearing Transcript, at 141).Bialek's recommendation was forwarded to his supervisors and then to Deputy Commissioner of DOC Richard White. Commissioner White recommended that Quick be terminated based on the two charges contained in Bialek's recommendation, that is testifying falsely during the MEO interview and failing to secure her shield and identification. (Respondents' Exhibit 8). Quick was subsequently terminated based on these charges.
When ask why he believed the Parole Officer and not Quick, Bialek testified that "I had a previous investigation with the same person making the same well, making an accusation that turned out to be truthful and accurate coming from a law enforcement officer . . . I had no reason to question why the second wouldn't be as truthful and accurate" ( Id, at 142).
Although Commissioner White testified that Quick was also terminated for an improper relationship with a parolee, and lying about the relationship, his written recommendation was not based on these grounds ( See Respondents' Exhibit 8).
Quick, who is a single mother with two children, testified that following her termination, she applied for various positions with the New York City Police Department, the Baltimore Police Department and the United States Post Office but was unable to get those positions based on her termination as a Correction Officer with DOC. At the time of the hearing Quick was employed by a private company paying substantially less than she earned as a correction officer.
Discussion
A probationary employee "may be discharged without a hearing and without a statement of reasons as long as the act is done in good faith and not for constitutionally impermissible purposes." Rainey v. McGuire, 111 AD2d 616, 618 (1st Dept 1985). Moreover, the employee bears the burden of demonstrating that the respondents lacked a good faith reason for their determination, and must present evidentiary facts sufficient to raise an issue of bad faith, illegality, or arbitrary and capricious conduct. Id; see also, Johnson v. Katz, 68 NY2d 649, 650 (1986); Kroboth v. Sexton, 160 AD2d 126, 129 (1st Dept 1990).
In this case, Quick has met her burden of demonstrating bad faith since the charges that resulted in her termination were based solely on a superficial investigation of unverified statements of an individual purporting to be a parole officer for Quick's former boyfriend, Stanley. Specifically, the record shows that respondents made no attempt during the investigation to verify that someone named Robenson was employed as a parole officer, was assigned to supervise Stanley, or that the events as described by Robenson actually occurred, despite numerous indications that such investigation was necessary, including Quick's sworn statements flatly denying the allegations and her testimony regarding a domestic violence incident involving Stanley on the day before the individual purporting to be Robenson filed his second complaint against her.
Moreover, the DOC investigator rejected Quick's sworn testimony even though her statements regarding the domestic violence incident were substantiated by a police report filed by Quick, and an incident report filed with the Warden at Riker's Island. Notably, although the DOC investigator contacted the police precinct where Quick filed a police report, he failed to verify Quick's version of event by interviewing Quick's supervisor or checking the internal records of DOC, which would have included the incident report filed by Quick with the Warden of Riker's Island.
In addition, unlike Quick's testimony as to domestic violence committed by Stanley, there was no police report or other record to verify that Robenson's statement even though it included an allegation that a parolee was arrested for impersonating a correction officer. Instead, the only document to support of the verbal complaint was one obtained from the DOC investigator from Robenson, and that statement should have raised questions as to its authenticity since it contains obvious spelling errors and a facsimile marking from "The Village Copier," indicating that it was sent from a private copy company, rather than from the Division of Parole.
While there was testimony at the hearing the parole officers often work in the field, there was also testimony that parole officers did not have a laptops and that letters are typed in the office, and thus presumably would be sent from there.
Nonetheless, despite significant evidence pointing to the questionable nature of Robenson's version of events, the DOC did nothing to verify Robenson's uncorroborated statements and found that Quick was lying and that she permitted Stanley to drive her car with her shield and identification one day after she filed two reports against him for domestic violence. Moreover, the undisputed record shows that Robenson was not a parole officer and that the telephone number he provided as a contact number belonged to Stanley. Thus, the charges against Quick were based solely on information from a fictitious parole officer who was either Stanley or someone acting on Stanley's behalf.
Under these circumstances, the court finds that Quick has met her burden of demonstrating that her termination was in bad faith. See Kroboth v. Sexton, 160 AD2d 126, 130 (1st Dept 1990) (holding that petitioner sufficiently established bad faith on the part of his employer since there was no rational basis for classifying an absence as an "AWOL" where the record unequivocally showed that in the day in question petitioner had contacted his employer's emergency assistance program in connection with his treatment for alcoholism). To find otherwise would be to accept the injustice of permitting a victim of domestic violence to be terminated from her position based on the uncorroborated allegations made by, or on behalf of, her attacker.
Weir v. Bratton , 4 AD3d 160 (1st Dept), lv denied, 3 NY3d 611 (2004), cert denied, 545 US 1140 (2005), on which respondents rely, is not to the contrary. In Weir, the First Department held that evidence that the respondent police commissioner may have relied on erroneous information in connection with the termination of a probationary police officer did not amount to bad faith, where there was some evidentiary basis for sustaining the charges against the officer. In contrast, in this case, other than the statements from the fictitious parole officer, there is no proof whatsoever to support the charges against Quick.
In this connection, the court notes that although Quick is a probationary employee, she may not be terminated from her employment based on her status as a victim of domestic violence. See Administrative Code § 8-107.1[2]; See Reynolds v. Fraser , 5 Misc 3d 758 (Sup Ct NY Co. 2004). Thus, to the extent it can be inferred from the record that Quick's discharge arose out of her troubled relationship with Stanley, such discharge would be unlawful. See Reynolds v. Fraser, 5 Misc 3d at 765-766 (granting petition of former probationary employee of the correction department upon a finding that her termination for violation of the sick leave policy violated law prohibiting employers from discriminating against victims of domestic violence).
Administrative Code § 8-107.1[2] provides that:
It shall be an unlawful discriminatory practice for an employer, or an agent thereof to refuse to hire or employ or to bar or to discharge from employment or to discriminate against an individual in compensation or in other terms, conditions, or privileges of employment because of the actual or perceived status of said individual as a victim of domestic violence.
Conclusion
In view of the above, it is
ORDERED and ADJUDGED that the petition is granted to the extent that respondents' determination to terminate petitioner April Quick's employment based on charges that she testified falsely during her MEO interview on March 23, 2006, and that she failed to secure her shield and identification is hereby annulled and this matter is remanded to respondents for reinstatement and back pay in accordance with this decision, order and judgment.