Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:Papers NumberedNotice of Petition and Verified Petition with Accompanying Affidavits and Exhibits 1Memorandum of Law in Support of Petitioner’s Petition 2Verified Answer with Accompanying Affidavits and Exhibits 3Memorandum of Law in Support of Respondent’s Verified Answer 4For a Judgment Pursuant to article 78 of the Civil Practice Law and RulesDECISION/ORDERThis case addresses the issue of whether the Department of Corrections (“DOC”), an agency of New York City (“City” or “respondent”), acted in bad faith when it terminated a probationary correction officer’s employment without giving him any reason for the termination. Petitioner Jermaine Young (“petitioner” or “Young”) claims that he had a relationship with his supervisor, Captain Denise Phillips (“Phillips”), who frequently invited him to her residence to have intimate relations. They exchanged texts of a sexual nature with each other.1 The alleged texts include invitations from Phillips to meet at her residence on multiple occasions, and continuous banter between the two as to their sexual relationship. Respondent denied knowledge or information sufficient to form a belief as to the truth of these texts in its answer, but does not directly deny them.Petitioner claims that he arranged to meet with Phillips at her residence on March 17, 2016, and that upon his arrival he called the police because he was confronted by another officer who was at the location, and who brandished a gun and threatened to kill him. Petitioner submitted a statement to the Nassau County Police Department (“Nassau Police”) regarding the incident. Phillips also made a statement to the Nassau Police, wherein she denied any relationship with Young other than being his supervisor and co-worker, and claimed that she called the police because Young came to her residence uninvited and banged on her door. Petitioner was arrested by the Nassau County Police on March 26, 2017 for submitting a false written statement regarding the incident.By letter dated December 6, 2016, DOC terminated petitioner’s position as a probationary correction officer but gave no reason for its termination. Petitioner’s employment records reveal that he had no negative employment history; i.e., lateness, absenteeism, disobeying authority, or any other form of misconduct. Petitioner seeks an order reversing the DOC decision on the ground that it was “arbitrary and capricious” because it set forth no reason for his termination. Attached to the petition are notarized sworn statements from Captains Yolanda Richardson (“Richardson”) and Tyrone Thomas (“Thomas”), attesting to his “excellent work performance,” ability to communicate well with other staff members and inmates, going “above and beyond his duties,” and being a “great,” “knowledgeable,” and “smart” officer. Both Richardson and Thomas found it “unusual” and even “shocking” that petitioner was terminated.Respondent claims that its decision to terminate Young’s position was not made in bad faith, for a constitutionally impermissible reason, or in violation of a statute. Respondent, in its answer, contends that Young’s position was properly terminated because he was arrested for submitting a false written statement to the police regarding the March 17 incident, and that the conduct for which he was arrested violated multiple sections of DOC’s Employee Rules and Regulations, such as “General Demeanor,” “Conduct Unbecoming an Officer or Employee,” and “Conduct to Bring Discredit to the Department.” On May 20, 2016, petitioner received a sixmonth Adjournment in Contemplation of Dismissal (“ACD”) resulting from the criminal charge, and on November 19, 2016, petitioner’s criminal case was dismissed and sealed.Judicial review of an administrative decision pursuant to CPLR §7803(3) consists of determining whether the decision was made “in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion.” However, a narrower standard applies in reviewing administrative decisions relating to termination of probationary employees. Judicial review of such a determinations is limited to deciding whether the termination was made in bad faith, for a constitutionally impermissible or an illegal purpose, or violated statutory or decisional law. Johnson v. Katz, 68 N.Y.2d 649, 650 (1986); Mtr. of Hirji v. Tahira Dupree Chase, 151 A.D.3d 857, 857 (2d Dept. 2017); Mtr. of Johnson v. County of Orange, 138 A.D.3d 850, 851 (2d Dept. 2016). Plaintiff has the burden of proving bad faith by producing competent evidence, rather than speculation. Swinton v. Safir, 93 N.Y.2d 758, 763 (1999); Walsh v. New York State Thruway Auth., 24 A.D.3d 755, 757 (2d Dept. 2005).It is clear that a probationary employee does not possess a property right to his position under the 14th Amendment to the United Stated Constitution, and thus could be lawfully discharged without a hearing and without any stated specific reason. Meyers v. City of New York, 208 A.D.2d 258, 262 (2d Dept. 1995). See also, Bensoy v. Kelly, 17 A.D.3d 247, 248 (1st Dept. 2005) (Probationary police officers had no property interest in their employment and therefore no entitlement to back pay upon their termination). Thus, this Court finds that petitioner’s constitutional rights were not implicated as a result of his termination.However, this Court finds that the DOC’s decision to terminate petitioner may have indicia of bad faith. A “substantial” issue of bad faith is raised when a probationary employee is terminated for reasons other than failure to perform his duties satisfactorily, and which appear to have an improper basis. See, Mtr. of Castro v. Schriro, 140 A.D.3d 644, 648 (1st Dept. 2016) (Triable issue of fact where it appeared that the probationary correction officer was improperly terminated because of his disability); Mtr. of Bombard v. State of New York, 113 A.D.3d 954, 955-956 (3d Dep’t 2014) (Probationary police officer entitled to a hearing as to whether his position was properly terminated, and whether police chief harbored ill will against him, due to a “no confidence” petition that he had circulated to other officers); Mtr. of Beissel v. NYC Police Dept., 2016 N.Y. Misc. LEXIS 4306, *13 (Sup. Ct. NY. Co. 2016) (Good faith established where evidence demonstrated that termination of probationary correction officer due to unsatisfactory performance, absenteeism, or lateness).Here, the DOC does not claim that petitioner failed to satisfactorily perform his duties, and sets forth no reason in its termination letter. Therefore, respondent’s decision to terminate warrants heightened scrutiny as to whether it was made in bad faith, especially in light of the purported texts which belie Phillips’ statement to the police. However, in order to conclusively determine the issue of bad faith, the record must be further developed before the DOC as to the real reason for terminating petitioner. Mtr. of Wharton v. NYC Dept. Of Correction, 2008 NY Slip Op 32289(U), 2008 N.Y. Misc. LEXIS 9320, *8 (Sup. Ct. NY Co. 2008) (Supreme Court remanded matter to DOC since factual issues existed as to whether the petitioner’s termination was based on her arrest or other reasons; i.e., violations of rules regarding professional demeanor, unbecoming conduct, or bringing discredit to the DOC).This constitutes the Decision and Order of the Court.DATED: May 10, 2018
