Petitioner seeks a judgment, pursuant to Article 78 of the CPLR granting the following relief: (1) annulling the determination of the respondents, which terminated petitioner's employment; (2) reinstating petitioner to his position as Direct Support Assistant and restoring all back pay, benefits, service time, seniority and other fringe benefits; and (3) granting petitioner the costs and disbursements of this proceeding, together with reasonable attorney's fees.

The following papers were read: [*2]

Notice of Petition-Verified Petition-1-8

Exhibit A-E-Affidavit of Service

Verified Answer-Exhibit A-M-Affidavit9-23

of Service

Memorandum of Law-Affidavit of Service24-25

Reply Affirmation-Exhibit A-Affirmation26-28

of Service

By way of background, petitioner had been employed by the New York State Office for People With Developmental Disabilities at its Taconic Developmental Disabilities Services Office in Wassaic, New York from April 1992 until June 2013. On May 21, 2013, petitioner received a notice advising him that his employment would be terminated, effective June 4, 2013, because he had not met the "minimum qualifications" of his position, as he had not secured and/or maintained a valid New York State driver's license. Petitioner alleges that said determination was arbitrary, capricious and made in bad faith.

It is axiomatic that in an Article 78 proceeding, the Court's function is to determine whether the action of an administrative agency had a rational basis or was arbitrary and capricious (see CPLR §7803; Pell v. Board of Educ. Of Union School District No. 1 of the Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222 [1974]). Arbitrary action is action taken without sound basis in reason and is generally taken without regard to the facts (Pell v. Board of Educ. Of Union School District No. 1 of the Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222 [1974]). A rational basis exists where the determination is supported by proof sufficient to satisfy a reasonable person, of all the facts necessary to be proved in order to authorize the determination (see Matter of Ador Realty v. DHCR, 25 AD3d 128 [2nd Dept 2005]).

However, a court cannot operate merely as a rubber stamp of the administrative determination if the measure of punishment or discipline imposed is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness (see Pell v. Board of Educ. Of Union School District No. 1 of the Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222 [1974] ). Thus, where the administrative sanction shocks one's sense of fairness and, thereby, as a matter of law, constitutes an abuse of discretion, this Court is authorized to set aside such a determination by the administrative agency (see McDougall v. Scoppetta, 76 AD3d 338 [2nd Dept 2010], lv granted 16 NY3d 704, appeal withdrawn 17 NY3d 902).

Here, petitioner argues the following: (1) he should have been afforded the protections mandated by Civil Service Law Section 75, and as outlined in Article 33 of the Collective [*3]Agreements between the State of New York and the New York State Civil Service Employees Association; (2) while minimum qualifications of employment may not rise to acts of misconduct that would invoke disciplinary procedures mandated by the Civil Service Law, a driver's license was not a minimum qualification at the time of his appointment; and (3) the class specification for the position of Direct Support Assistant does not clearly identify a valid driver's license as a minimum qualification.

It is well settled that the failure to maintain a minimum qualification of employment is not an act of misconduct nor one related to job performance that would invoke the disciplinary procedures mandated by Civil Service Law §75 (see Matter of New York State Off. of Children & Family Servs. v. Lanterman, 14 NY3d 275 [2010] Matter of Felix v New York City Dept. of Citywide Admin. Servs., 3 NY3d 498 [2004]). Rather, "an employee charged with failing to possess a minimum qualification of his or her position is only entitled to notice of the charge and the opportunity to contest it" (Matter of Carr v. New York State Dept. of Transp., 70 AD3d 1111 [3rd Dept 2010]^[FN1] citing to Felix v. Citywide Admin. Servs., 3 NY3d 498 [2004]).

In order to succinctly analyze the petition before this Court, the Court must first address whether a New York State driver's license was a minimum qualification for the position of Direct Support Assistant.

Petitioner alleges that in or about 1990-1991, he took and passed a civil service examination for appointment to the position of Mental Health Therapy Aide. Petitioner alleges that when he first interviewed with the New York State Office for People With Developmental Disabilities, he volunteered that he did not possess a New York State driver's license. Petitioner commenced his employment on April 16, 1992. Petitioner is unsure as to whether he was appointed a Health Therapy Aide or a Developmental Aide. Petitioner alleges that sometime after his appointment, the former director of the New York State Office for People With Developmental Disabilities Wassaic DSSO Office, Hollis Shore, informed the staff, inclusive of petitioner, that in light of the change in their title to Developmental Aide, none of them would lose their jobs for failing to meet any new criteria and that they would be "grandfathered" into their newly named title based upon prior qualifications. Petitioner alleges that he served his probationary term as Developmental Aide and was permanently appointed to said position. Petitioner next alleges that the Developmental Aide position was subsequently renamed Direct Support Assistant, the position he held when he was terminated. [*4]

Respondent asserts that petitioner was hired on April 16, 1992 in the title of Developmental Aide Trainee. Upon completion of his probation, on July 16, 1993, petitioner was permanently appointed to the Developmental Aide position. At that time he possessed a driver's permit, until on or about 1994 when he obtained a full driver's license. Petitioner was charged with driving while intoxicated numerous times and in April of 2011, his license was ultimately revoked. On May 5, 2011, petitioner's job title was changed to Direct Support Assistant. The qualifications for appointment to this position, as annexed as Exhibit "D," indicate that "[y]ou must possess a valid license to operate a motor vehicle in New York State at the time of appointment and continuously thereafter." On or about July 18, 2011, petitioner was served with a Notice of Discipline which indicated that a driver's license was a requirement of his job and that the charge sought a penalty of termination. Respondent alleges that it withheld prosecution of the charge to allow petitioner an opportunity to get his license restored. On May 24, 2012, petitioner was again advised that he was required to possess a valid driver's license as a condition of his employment and he was directed to attend a meeting on June 7, 2012 to produce any documentary evidence that he did, in fact, possess a driver's license. On June 7, 2012, petitioner confirmed that he did not have a license, however, he stated that he had to pay some fines and expected to have his license back by October 2012. This was confirmed with the probation department. Respondent again decided to give petitioner a further opportunity to get his license restored and withheld termination. This pattern was repeated, and petitioner was again delivered a letter warning he would be terminated if he did not produce a license at a meeting scheduled for April 9, 2013. On April 9, 2013, petitioner was unable to produce a license. By letter dated May 9, 2013, petitioner was given yet another chance to produce documentation that he was in possession of a valid driver's license by May 16, 2013. He failed to do so. Petitioner's employment was terminated by letter dated May 21, 2013, effective June 4, 2013.

Based upon the documentation as submitted, it is clear that petitioner was appointed to the Developmental Aide Traineeship level on April 16, 1992, with a probationary status for the period of nine (9) to fifteen (15) months. Respondent also establishes that "a valid driver's license" was required to be eligible for advancement to the Developmental Aide title. It is undisputed that at the time of advancement to said title, petitioner maintained a valid driver's license. On May 5, 2011, petitioner's job title was changed to Direct Support Assistant and as a minimum qualification of that position, petitioner was required to "possess a valid license to operate a motor vehicle [*5]in New York State at the time of appointment and continuously thereafter." It is also undisputed that on April 4, 2011, petitioner's license was revoked. Based upon the record before this Court, a driver's license was a minimum qualification of the Direct Support Assistant position (see generally Matter of Carr v. New York State Dept. Of Transp., 70 AD3d 1110 [3rd Dept 2010] leave to appeal denied by 14 NY3d 709).

An employee, such as petitioner herein, charged with failing to possess a minimum qualification of his position is entitled to only notice of the charge and an opportunity to contest it (see Felix v. Citywide Admin. Servs, 3 NY3d 498 [2004]). Petitioner was given multiple notices and opportunities of which to contest the fact that he did not have a license. Additionally, the credible evidence demonstrates that respondent chose to indulge the petitioner by allowing him numerous occasions to present evidence that he was making an effort to secure his license, all of which to no avail.

Accordingly, respondent's termination of petitioner without a hearing based upon his failure to possess a license to operate a motor vehicle was not arbitrary, capricious, contrary to law or a violation of petitioners due process (see Matter of Stolzman v. New York State Dept. of Transp., 68 AD3d 1331 [3rd Dept 2009] leave to appeal denied by 14 NY3d 708).

Based upon the foregoing, the petition is dismissed. Attached to this decision, the Court is returning the in camera submissions to counsel for petitioner and respondent. This constitutes the decision of this Court. Respondent's counsel is directed to submit a judgment on notice consistent with the foregoing within five (5) days of service of a copy of this decision.

Poughkeepsie, New York

ENTER

_______________________________

HON. JAMES D. PAGONES, A.J.S.C.