The following efile papers numbered 4-20 submitted and considered on this petition by Petitioner Eddy Ogando seeking a judgment annulling respondents Cynthia Brann, Correction Commissioner of the New York City Department of Correction, The New York City Department of Correction, and The City of New York’s decision not to reinstate or restore his employment; an Order that he be reinstated or restored as a correction officer with full back-pay and benefits; or in the alternative, an order for hearing pursuant to NY CPLR §7804(h). The petition herein is granted. The amended decision herein makes certain editing revisions in the decision dated September 29, 2020, leaving the Court’s ruling unchanged. Papers Numbered Notice of Petition-Affidavits-Exhibits EF 4-5 Answer EF 6-17 Reply EF 18-20 For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules AMENDED DECISION This is an Article 78 proceeding in the nature of mandamus for a review of a determination of the respondents Cynthia Brann, Correction Commissioner of the New York City Department of Correction, The New York City Department of Correction, and The City of New York. This petition was originally filed under Index number 6871/2019, and upon consent of the parties to efiling, transferred and filed under this new Index number 706707/2020. Petitioner brings this proceeding within the four- month period required under CPLR §217. In his verified petition, Petitioner alleged that he was a probationary correction officer employed by the New York City Department of Correction (“DOC”). Respondent Cynthia Brann (“Brann”) was the Commissioner of the DOC, and the DOC was and still is a department with Respondent the City of New York (“City”). The City is a municipal corporation organized and doing business under the laws of the State of New York. Brann, City and DOC are collectively referred to hereinafter as the “Respondents.” Petitioner asserted that on or about December 19, 2016 he began his employment with the DOC as a correction officer after successfully competing in an open competitive civil service examination, passed numerous mental and physical tests and underwent a thorough background investigation. In November 2016, he took and passed the oral and written psychological examinations, and, after providing all the information requested by Respondents, he began and passed the DOC Academy. Thereafter, he was appointed as a correction officer to the DOC Academy and his probationary status as a correction officer began. On or about June 15, 2018 Petitioner was arrested and accused of domestic violence. The complaining witness alleged at that time that Petitioner had assaulted her in September 2017 — nine months prior to the complaint. Petitioner alleged that at the time of the alleged assault he was working at Riker’s Island, and therefore had an alibi. On or about June 16, 2018, the day after the arrest, Respondents suspended Petitioner without pay. According to Petitioner, the criminal charge was dismissed against him on December 17, 2018; on or about December 18, 2018, Petitioner provided the criminal charge dismissal to the DOC. However, despite providing the dismissal information, on or about January 8, 2019 he was terminated from the DOC. Petitioner requested reinstatement, but on July 30, 2019, correspondence from Respondents was sent to him denying his request without any explanation. In October 2019, he received his full pay for the time he was suspended. After he was terminated, counsel for Petitioner’s labor union, the Correction Officer’s Benevolent Association, attempted to negotiate with DOC in regards to Petitioner being reinstated. According to Petitioner, in the Spring of 2019, he met with DOC Deputy Commissioner Serena Townsend (hereinafter “Townsend”) regarding his termination. Townsend stated that she asked about his relationship with the complainant who filed the criminal charge and to made inquiries to learn whether he would have engaged in the alleged conduct. Petitioner told Townsend that in May 2018, he ended his relationship with the complainant, and that a few weeks later, she filed the criminal complaint. Petitioner also said he was at work during the time of the alleged assault. As a result of the meeting, Petitioner contended that Townsend met with DOC investigators in the spring of 2019. The investigators also questioned Petitioner about the alleged criminal allegations. According to Petitioner’s papers, a few weeks passed, and Townsend agreed to reinstate him. On July 22, 2019, he was to be examined by the DOC Health Management Division for a physical and psychological examination. He says Respondents made a request for him to provide a doctor’s clearance that he was able to return to full duty. However, on that date he only went through the physical examination. On July 24, 2019, he exchanged additional paperwork concerning certain injuries which previously occurred in the line of duty, clearing him for full duty. During the reinstatement process, Petitioner says he reasonably relied upon the DOC to honor its commitment, and declined several positions. Then, on July 30, 2019 he received correspondence from Respondents denying his request for reinstatement or restoration to his position, contradicting what Townsend and the labor union had agreed to. Petitioner believed that his initial psychological exam taken in November 2016, three years earlier cleared him for the DOC Academy and DOC employment. He claims DOC did not conduct a psychological interview scheduled for July 2019. Petitioner alleged that he had exhausted all of his administrative remedies, and filed this Article 78 petition seeking reinstatement and restoration to his former position, or in the alternative, a hearing pursuant to CPLR §7804. Petitioner maintained that under CPLR §7803 the Respondents’ decision to terminate him allows the Court to determine “whether a determination… was affected by an error of law or was arbitrary and capricious or an abuse of discretion…” Petitioner seeks a judgment annulling the Respondents’ decision not to reinstate him to his employment; an Order that he be reinstated or restored as a correction officer with full back-pay and benefits; or, in the alternative, an order for hearing pursuant to NY CPLR §7804(h). Petitioner contends that Respondents’ decision was an abuse of discretion, arbitrary and capricious. A copy of Respondents’ July 30, 2019 letter related to Respondents’ denial of Petitioner’s request to be reinstated was annexed to the Petition and it stated the following: “Dear [Petitioner]: The New York City Department of Correction has reviewed your request for restoration to your former position of Correction Officer. At this time we are unable to grant your request. We wish you the best of luck in your future endeavors.” Respondents’ Verified Answer Respondents submitted a Verified Answer to the Verified Petition, denying essential allegations contained in the Verified Petition, which contained a statement of pertinent and material facts as alleged as follows: On December 18, 2016 the DOC appointed Petitioner to the position of Correction Officer, which was subject, in part, to him successfully completing a twenty-four (24) month probationary period. A copy of the Notice of Conditions of Probation dated December 12, 2016 was annexed to the Verified Answer. Prior to his appointment, the Petitioner signed a “Notice of Conditions of Probation” form stating that he understood the terms of his probationary period may be extended by the number of days he “does not perform the full duties of his position” included but not limited to sick leave, annual leave, compensatory time off, medically monitored duty, absence without leave, or suspension from duty without pay. Respondents asserted that Petitioner’s probationary period was extended and scheduled based upon a day-for-day count, to end on May 2, 2019. The final end date, following a six-month extension was to be on November 2, 2019. Thus, Petitioner was a probationary correction officer when the DOC terminated him on January 8, 2019. Petitioner does not dispute that he was a probationary correction officer when he was terminated. Townsend sent correspondence dated June 25, 2018 to Nadene Pinnock (“Pinnock”), the Deputy Commissioner, Human Resources recommended termination of Petitioner. Respondents stated that the Investigation Division (“ID”) recommended Petitioner’s termination because of Petitioner’s alleged off-duty conduct which lead to his arrest on June 15, 2018. The ID found that Petitioner violated the following Department policies: Rule and Regulation #3.20.010 – Members of the Department shall present a professional demeanor and as an employee of the City of New York shall act in a dignified manner; Rule and Regulation #3.20.030 – Conduct unbecoming of an officer or employee; and Rule and Regulation #30.20.300 – Behavior which threatens the good order and discipline and all conduct of a nature to bring discredit upon the Department. Thus, on or about January 8, 2019, Petitioner was notified by correspondence that his service as a Probationary Correction Officer would no longer be required. Respondents argue that Petitioner does not allege that the DOC improperly terminated him. After Petitioner’s criminal case was dismissed, Petitioner sought to be reinstated as a Correction Officer by e-mail correspondence sent from Petitioner’s counsel to Townsend on February 1, 2019. According to Respondents, after an investigation, Townsend approved Petitioner’s reinstatement. Respondents contend that Townsend’s approval was not a final DOC approval of Petitioner’s reinstatement, as there was a process which had to be undertaken before Petitioner could be reinstated. Respondents stated that first Petitioner would have to seek to be restore to the civil service eligible list. Then, DOC’s Department of Human Resources would have to review Petitioner’s application, and if approved, Petitioner would then be placed in a new Correction Officer class in August 2019; this information was shared with the Petitioner. Petitioner was restored to list 6332 on June 21, 2019. Although new hiring classes typically are scheduled in August, at the direction of the City of New York, there was to be no new hiring class in August 2019. Accordingly, Human Resources attempted to find another way in which to reinstate Petitioner outside of a hiring class. However, DOC was not able to reinstate him outside of a class because there were other individuals above him on the civil service list and not enough Correction Officer positions to accommodate Petitioner’s reinstatement at that juncture. DOC still continued to attempt to find a way to reinstate Petitioner. Petitioner’s Psychological Examination Also, while DOC was examining the possibility of reinstating Petitioner, Human Resources discovered that although Petitioner was appointed on December 19, 2016, Petitioner did not pass his psychological examination on December 1, 2016. Respondents annexed a psychological evaluation cover sheet to their papers. According to Respondents, DOC notified Petitioner by correspondence dated January 9, 2018 and March 8, 2018, that he was found psychologically not qualified and provided information about how to rebut the determination and how to appeal the determination. Decision to Not Reinstate Petitioner Upon discovery of Petitioner not being found psychologically qualified, and there being no hiring class in August 2019, DOC determined that it was unable to reinstate Petitioner. Thus, Petitioner was informed by letter dated July 30, 2019 that his request for restoration could not be granted. According to Petitioner, restoration and reinstatement of former employees are governed by the Personnel Rules and Regulations, Rules v. and VI, of which the applicable rules are 5.2.9 and 6.2.6. And that based upon the foregoing, Respondents state that the Petition must be denied. Respondents also annexed emails between Petitioner and Respondents. According to certain emails, Townsend stated that Petitioner should not have been terminated, and was attempting to have him reinstated. Petitioner’s Reply In reply, Petitioner attested that Respondents alleged that Petitioner sought to be restored to the civil service list and be rehired, creating an important misunderstanding. Petitioner contended that he did not seek to be restored to the civil service list, but rather, that he was improperly terminated and sought reinstatement. He argues that Townsend negotiated his reinstatement, and that Brann approved it; accordingly, the Respondents were fully aware of what he sought. In exchange for not challenging his termination in Court, he understood that he would be reinstated with additional probationary time to be served beyond his initial two year probationary period. Petitioner contends that sending him back to the DOC Academy would not make sense, since he had already graduated and taken the oath of office. Further, Petitioner alleged that he never received any notice that he was disqualified in 2018. Additionally, he contends that had there not been an agreement that he was to be reinstated, he would have challenged the underlying January 2019 termination. There is no argument that in an email Townsend admitted that Petitioner should not have been terminated. Petitioner argues that Respondents’ decision was arbitrary, capricious and an abuse of discretion. Petitioner argues that the case law Respondents cite by does not conform to the facts of this case. In McShane v. City Civil Serv. Commission, et al., 51 AD2d 521 (1st Dept 1976), Petitioner in was challenging the validity of the psychological examination after he had been employed for sixteen months. The First Department held that a municipality, for a period of three years post appointment could revoke the appointment upon the finding of facts which if known prior to appointment would have warranted petitioner’s disqualification”. Id. citing NY CIV. SERV. L. §50. In the matter herein, Respondents to rely on a 2016 psychological assessment, which they knew about, to justify their 2019 termination. The parties attempted to resolve this Petition and requested that the Court grant them time to do so until September 9, 2020. On September 9, 2020, the parties requested additional time to attempt to resolve the Petition until September 16, 2020. However, the parties were unsuccessful in resolving the Petition. DISCUSSION Pursuant to the Fourteenth Amendment of the United States Constitution: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of laws”. (US. CONST. amend. XIV §1.) According to the New York State Constitution Article I: No member of this state shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his or her peers…”. (N.Y.S. CONST. Art. I, §1.) CPLR §7803, titled “Questions raised,” states the following: The only questions that may be raised in a proceeding under this article are: 1. whether the body or officer failed to perform a duty enjoined upon it by law; or 2. whether the body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction; or 3. whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed; or 4. whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence. 5. A proceeding to review the final determination or order of the state review officer pursuant to subdivision three of section forty-four hundred four of the education law shall be brought pursuant to article four of this chapter and such subdivision; provided, however, that the provisions of this article shall not apply to any proceeding commenced on or after the effective date of this subdivision. New York State Constitution Article 5 §6 relates to civil service appointments and promotions. According to the statute: [a]ppointments and promotions in the civil service of the state and all of the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive…” New York Civil Service Law §50 titled “Examinations generally” states the following in relevant part: (h) No person shall be disqualified pursuant to this subdivision unless he has been given a written statement of the reasons therefor and afforded an opportunity to make an explanation and to submit facts in opposition to such disqualification. Notwithstanding the provisions of this subdivision or any other law, the state civil service department or appropriate municipal commission may investigate the qualifications and background of an eligible after he has been appointed from the list, and upon finding facts which if known prior to appointment, would have warranted his disqualification, or upon a finding of illegality, irregularity or fraud of a substantial nature in his application, examination or appointment, may revoke such eligible’s certification and appointment and direct that his employment be terminated, provided, however, that no such certification shall be revoked or appointment terminated more than three years after it is made, except in the case of fraud. New York Civil Service Law §56 titled “Establishment and duration of eligible lists” states the following: 1. The duration of an eligible list shall be fixed at not less than one nor more than four years; except that for lists promulgated for police officer positions in jurisdictions other than the city of New York, in the event that a restriction against the filling of vacancies exists in any jurisdiction, the state civil service department or municipal commission having jurisdiction shall, in the discretion of the department or commission, extend the duration of any eligible list for a period equal to the length of such restriction against the filling of vacancies. Restriction against the filling of vacancies shall mean any policy, whether by executive order or otherwise, which because of a financial emergency, prevents or limits the filling of vacancies in a title for which a list has been promulgated. An eligible list that has been in existence for one year or more shall terminate upon the establishment of an appropriate new list, unless otherwise prescribed by the state civil service department or municipal commission having jurisdiction”. (NY CIV. SERV. L. §56[1]) Here, the Verified Petition asserts one Count that the Respondents’ decision was arbitrary and capricious, or an abuse of discretion pursuant to CPLR §7803(3) ( see Anonymous v. Comm’r of Health, 21 AD3d 841 [1st Dept 2005]). Thus, the Court’s function is to determine the issue of whether the action taken by Respondents’ has a rational basis, and the Court will overturn that action only where the action was arbitrary and capricious or an abuse of discretion (see Pell v. Board of Education, 34 NY2d 222 [1974]; Matter of Halpert v. Shah, 107 AD3d 800 [2d Dept 2013]). “The arbitrary or capricious test chiefly relates to whether a particular action should have been taken or is justified… and whether the administrative action is without foundation in fact…[a]rbitrary action is without sound basis in reason and is generally taken without regard to the facts”. (Pell v. Board of Education, 34 NY2d 222 [1974]; see also Scherbyn v. Wayne Finger Lakes Board of Coop. Educ. Servs., 77 NY2d 753 [1991]). Petitioner, as a DOC probationary employee, was subject to the Personnel Rules and Regulations of the City of New York relating to the probationary terms states the following: 5.2.1. Probationary Term. (a) Every appointment and promotion to a position in the competitive or labor class shall be for a probationary period of one year unless otherwise set forth in the terms and conditions of the certification for appointment or promotion as determined by the commissioner of citywide administrative services. Appointees shall be informed of the applicable probationary period. (b) Every original appointment to a position in the non-competitive or exempt class shall be for a probationary period of six months unless otherwise set forth in the terms and conditions for appointment as determined by the commissioner of citywide administrative services. Appointees shall be informed of the applicable probationary period. However, such probationary period may be terminated by the commissioner of citywide administrative services or by the agency head before the end of the probationary period, and the appointment shall thereupon be deemed revoked. Nothing herein shall be deemed to grant permanent tenure to any non-competitive or exempt class employee. The aforementioned Personnel Rules and Regulations of the State of the City of New York relied upon by Respondents state the following: 5.2.9 Restoration After Termination. Where the services of a probationer have been terminated, the commissioner of citywide administrative services has the discretion to and may restore the name of such probationer to the eligible list, if it be in existence. Such probationer’s name shall be duly certified to other agency heads or to the same agency head if the latter so requests. 6.2.6 Reinstatement of Dismissed Employee. (a) An agency under the jurisdiction of the commissioner of citywide administrative services, upon written application for reinstatement by a person who was dismissed from a permanent competitive or labor class position in such agency, which sets forth the reasons for requesting an opportunity of making a further explanation, may consider such application. (b) If the agency shall determine that such application and explanation are meritorious, it may, in its discretion and with the approval of the commissioner of citywide administrative services, reinstate such person; provided however, that: (1) such person shall be eligible for reinstatement for a period of one year only from the date of dismissal; and (2) such person shall execute a prescribed waiver, in writing, with respect to claims for back pay, civil service rights and status for the period of the dismissal. Rule and Regulation 5.2.6 Restoration after Separation From Service; Conditions states: A probationer separated from the service for any reason other than fault or delinquency may be restored by and at the discretion of, the commissioner of citywide administrative services to the eligible list from which selected, if it be in existence, with the same relative standing thereon for general certification therefrom or for certification to agencies other than the one from which the probationer was separated provided that: (a) the time during which such person has actually served shall be deducted from the probationary term if such person be again selected by the same agency head; (b) if selected by another agency head, such person shall be required to serve a full probationary term unless such agency head elects to credit such person with the time theretofore served. Rule and Regulation 5.2.7. sets forth the grounds for termination: (a) At the end of the probationary term, the agency head may terminate the employment of any unsatisfactory probationer by notice to such probationer and to the commissioner of citywide administrative services. Rule and Regulation 6.2.2 General Conditions related to reinstatement states the following: (a) Such reinstatement shall be subject to the provisions of this section and shall be made without further examination, except that the employee reinstated under this section may be subject to such probationary period, investigation, medical or other qualifying tests or requirements as the commissioner of citywide administrative services shall determine. Here, it is alleged by Respondents that Petitioner failed the psychological component for probationary hiring on December 19, 2016. However, he was allegedly notified by mail on January 9, 2018 and March 8, 2018, almost two years after he allegedly failed the test, attended and graduated from the DOC Academy, and was hired on December 19, 2016. Respondents now rely on the issue of whether Petitioner was qualified to begin with as an alternative reason why he cannot be restored or reinstated. How or whether Petitioner received the 2018 notification, loss of his right to appeal the determination is also a factor into whether the determination is arbitrary or capricious. Here, Petitioner was cleared to serve as a Corrections Officer for almost two years prior to the criminal accusation. Petitioner was apparently a victim of a false allegation which caused him to be suspended and later terminated, which Townsend stated was incorrect. Then, he was not granted reinstatement based upon a claimed failed 2016 psychological examination, which Petitioner stated that he never knew anything about because he never received any correspondence from Respondents. Respondents argument is two-fold, that Petitioner cannot be restored because City Hall cancelled a class, and moreover, he failed to pass the qualifying psychological examination for probationary employment. Thus, the Respondents’ alternative basis for not rehiring Petitioner falls upon the grounds that they cannot re-hire someone who should never have been hired in the first instance. But the information which Respondents now rely was already known prior to Petitioner’s appointment, and at the time they issued the July 30, 2019 letter; therefore, this does not constitute a new fact, and Respondents do not allege that Petitioner engaged in any fraud in order to become qualified (see CIV. SERV. L. §50 ). Petitioner lost his chance to appeal any determination before entering into the DOC Academy (see Keryc v. Nassau County Civil Serv. Comm’n, 143 AD2d 669, 670 [2d Dept 1988]). There was no explanation for its decision not to reinstate Petitioner in Respondents July 30, 2019 letter which would apprise the Petitioner of any of the grounds they now set forth as their grounds in defense to this petition. Respondents’ own documents indicate that they were aware of the alleged determination related to a portion of testing that Petitioner allegedly did not pass as of December 1, 2016. Moreover, Respondents claimed that Petitioner was notified of disqualification same in correspondence dated January 9, 2018 and March 8, 2018 almost two years later, after Petitioner had already been working as a Corrections Officer, and continued to work thereafter. Had the Petitioner not been the subject of a criminal complaint that was not prosecuted he would still have been employed with the DOC. The Court finds that there was no rational basis for Respondents’ determination as alleged by Respondents in this petition (see Matter of Pine v. Westchester County Health Care Corp., 127 AD3d 868 [2d Dept 2015]). Accordingly, it is ORDERED AND ADJUDGED, that the Petition is granted to the extent that Respondents’ decision not to reinstate Petitioner is annulled; and it is further ORDERED AND ADJUDGED, that Respondents’ are directed to reinstate Petitioner to his position as a Correction Officer with the New York City Department of Correction forthwith, and he shall be reinstated with full back pay, full benefits, and seniority for the period of time he was removed from the payroll; and it is further ORDERED, within 30 days of entry, Petitioner shall serve upon Respondents a copy of this decision and Judgment with notice of entry. Dated: October 1, 2020
