The following papers having been read on this motion: Notice of Motion 1 Opposition 2 Reply 3 Defendants move for an order, pursuant to CPLR §3212, for summary judgment dismissing Plaintiff’s complaint against them in its entirety. Plaintiff has opposed the motion, and Defendants have submitted reply. Based upon the following, Defendants’ motion is granted in full and the within action is hereby dismissed. The facts and circumstances surrounding the instant matter are the result of an employee-employer relationship between the parties. Plaintiff, a former police officer with the City of New York, was hired by Defendants as an Assistant Supervisor for Security in 2004. He was then promoted to Supervisor of Security in 2007, a position he held until his termination in 2017. Plaintiff was responsible for eleven (11) separate facilities, including ten schools and one adult center, and supervised approximately one hundred (100) employees who worked full or part-time and were employed either directly with Defendants or were contracted for with a third-party service company. The record before the Court indicates that there was no issue with Plaintiff’s attendance prior to 2014. Beginning with the 2014-2015 academic year, Plaintiff began demonstrating what Defendants deemed a pattern of excessive absenteeism; that is, as was documented in his end of the year evaluation, Plaintiff missed sixty-nine and a half (69.5) days of work during this academic year. Moreover, according to Defendants and undisputed by Plaintiff, Plaintiff failed to timely notify any superior about his inability to come to work on several of these days. The situation progressed to such a point that in May 2015, Plaintiff was formally warned about his poor attendance and ordered to undergo an independent medical exam to assess his ability to perform his work duties. The results of that exam, performed at the start of the beginning of the 2015-2016 academic year, indicated that Plaintiff was able to return to his normal work duties; however, this psychiatrist cautioned that it was possible that Plaintiff would relapse into the same mental state that caused his absenteeism during the prior academic year. The next academic year began very positively, with Defendants’ acknowledging that Plaintiff did not have any attendance issues through the first half of the academic year. However, beginning on May 6, 2016, through May 19, 2016, Plaintiff did not report for work and his absence was wholly unexplained. Defendant Prendergast, the Superintendent for Defendants School District, memorialized this situation in a memo dated May 19, 2016, which was sent to the members of Defendant Board of Education. Thereafter, in another memo to the members of Defendant Board of Education, dated June 9, 2016, Defendant Prendergast stated that they will proceed with preferring charges pursuant to Civil Service Law §75 against Plaintiff and will seek a resolution at the next board meeting on June 14, 2016, for this situation. Defendant Board of Education then approved the preferring of charges against Plaintiff, authorized Defendant Superintendent to suspend Plaintiff for up to thirty (30) days, and appointed a hearing officer on the matter. A formal statement of charges was not served upon Plaintiff until June 22, 2016, citing thirty-nine (39) unexcused absences between December 2014 and April 2016. Plaintiff alleges that, despite his history of poor attendance at work, Defendants sought to terminate him from his employment as a result of an incident which took place on June 17, 2016. On that date, a bus driver made a statement which Plaintiff alleges was a “terroristic threat”, in which she showed a bus matron a picture of a friend of hers holding an assault weapon and indicating that her superiors should give her what she wants. Plaintiff was informed of this situation and took part in a meeting with Defendant Prendergast, the director of transportation, and two other administrators. While Plaintiff believed the situation should be escalated by being reported to the Nassau County Police Department, Defendant Prendergast and the other attendees disagreed. Plaintiff then choose to inform a Nassau County Police Detective at a social event the next day of the situation, resulting in an investigation that did not end in any criminal charges for the bus driver or an incident at the schools. It is this incident to which Plaintiff asserts that he is a whistleblower and is entitled to protection pursuant to Civil Service Law §75-b and Labor Law §740, the two claims asserted in Plaintiff’s complaint. Subsequent to these events, the parties discussed a resolution of the formal charges preferred against Plaintiff on July 14, 2016. Defendant Prendergast memorialized that agreement in a memo to Defendant Board of Education, whereby Plaintiff would forfeit five vacation days immediately, could not use more than five sick days in each of the next two academic years or would forfeit more vacation days, and would pay a small fine in three installment payments. The terms of the settlement would be presented at the next board meeting to be held on August 25, 2016, for approval. However, on July 21, 2016, without permission and without notification to any superior, Plaintiff had yet another unexcused, unplanned absence from work. Most notably, this particular absence came after Plaintiff confirmed to various people for Defendants that he would attend certain work meetings on that date. As a result, on August 2, 2016, a second formal statement of charges was served upon Plaintiff, he was immediately suspended without pay pending the result of a hearing, and the first hearing on the situation was scheduled for August 19, 2016. Ultimately, following the hearing having taken place on several dates, Plaintiff was terminated from his employment in July 2017. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923 (1968). To make a prima facie showing, the motion must be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. Id. Once a prima facie showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Id.; see also Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 (1980). Pursuant to Civil Service Law §75-b, a public employer shall not dismiss or take other disciplinary or other adverse personnel action against a public employee regarding the employee’s employment because the employee discloses to a governmental body information regarding a violation of a law, rule, or regulation, which violation creates and presents a substantial and specific danger to public health or safety or which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action. However, where there are specific incidents of inappropriate, unprofessional, or insubordinate conduct which are found to demonstrate a separate and independent basis for the action taken, an employee may not assert a claim or defense under this section. Razzano v. Remsenburg-Speonk Union Free School District, 144 AD3d 810, 41 NYS3d 72 (2nd Dept., 2016). Under Labor Law §740, an employer shall not take any retaliatory personnel action against an employee because such employee either discloses or threatens to disclose to a supervisor or to a public body an activity, policy, or practice of the employer that is in violation of law, rule, or regulation which violation creates and presents a substantial and specific danger to the public health or safety or provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any such violation of a law, rule, or regulation by such employer. On the other hand, this statute also provides that it shall be a defense to any action brought pursuant to this statute that the personnel action was predicated upon grounds other than the employee’s exercise of any rights protected under it. This section requires proof of an actual violation of law to sustain a cause of action and a plaintiff’s reasonable belief of a possible violation is not sufficient. Berde v. North Shore — Long Island Jewish Health System, Inc., 50 AD3d 834, 855 NYS2d 656 (2nd Dept., 2008). After review of the voluminous exhibits submitted by Defendants, detailing their discussions and issues surrounding Plaintiff’s absenteeism that predated the incident involving the bus driver, this Court finds they have sufficiently established their entitlement to judgment as a matter of law. Not only were the issues with Plaintiff’s attendance at work well-documented, they began more than a year and half before the alleged incident for which he categorizes himself as a whistleblower. Defendants were more than fair in their treatment of Plaintiff’s behavior and provided Plaintiff with multiple opportunities to correct it, with each opportunity being squandered by the Plaintiff. Thus, Defendants have established that there were specific instances of insubordination by Plaintiff such that the grounds for his dismissal existed independent of any possible whistleblower claim he may have, satisfying their burden on this summary judgment motion. In opposition, Plaintiff failed to raise a triable issue of fact sufficient to deny Defendants relief on either of his claims asserted in the complaint; furthermore, Plaintiff failed to even articulate what law, rule, or regulation, Defendants were in violation of by not immediately contacting police for this incident. Accordingly, Defendants motion is granted in its entirety and Plaintiff’s complaint is hereby dismissed forthwith. See Lukose v. Long Island Medical Diagnostic Imaging, P.C., 120 AD3d 1312, 993 NYS2d 84 (2nd Dept., 2014). Defendants shall file and serve a copy of the within order with notice of entry upon Plaintiff on or before October 21, 2019. This hereby constitutes the decision and order of this Court. Dated: September 19, 2019
