Supreme Court, Kings County, May 10, 2018

Law Office of Fred Lichtmacher, P.C., New York City, for petitioner.

Zachary W. Carter, Corporation Counsel, New York City, for respondent.

This case addresses the issue of whether the Department of Corrections (DOC), an agency of New York City (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 claims that he had a relationship with his supervisor, Captain Denise Phillips, who frequently invited him to her [*2]residence to have intimate relations. They exchanged texts of a sexual nature with each other.^[FN*] 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 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 coworker, 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{**60 Misc 3d at 346} 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 and Tyrone 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 six-month adjournment in contemplation of dismissal 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 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. (Matter of Johnson v Katz, 68 NY2d 649, 650 [1986]; Matter of Hirji v Chase, 151 AD3d 857, 857 [2d Dept 2017]; Matter of Johnson v County of Orange, 138 AD3d 850, 851 [2d Dept 2016].) Plaintiff has the burden of proving bad faith by producing competent evidence, rather than speculation. (Matter of Swinton v Safir, 93 NY2d 758, 763 [1999]; Walsh v New York State Thruway Auth., 24 AD3d 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 States Constitution, and thus could be lawfully{**60 Misc 3d at 347} discharged without a hearing and without any stated specific reason. (Meyers v City of New York, 208 AD2d 258, 262 [2d Dept 1995]; see also Matter of Bensoy v Kelly, 17 AD3d 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 Matter of Castro v Schriro, 140 AD3d 644, 648 [1st Dept 2016] [Triable issue of fact where it appeared that the probationary correction officer was improperly terminated because of his disability]; Matter of Bombard v State of New York, 113 AD3d 954, 955-956 [3d Dept 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]; Matter of Beissel v New York City Police Dept., 2016 NY Slip Op 32289[U], *5 [Sup Ct, NY County 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. (Matter of Wharton v New York City Dept. of Correction, 2008 NY Slip Op 32289[U], *8 [Sup Ct, NY County 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].)