Supreme Court, Kings County, May 15, 2020

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

James E. Johnson, Corporation Counsel, New York City, for respondent.

This case raises the issue of whether the New York City Department of Corrections (DOC) may terminate a probationary correction officer's employment based upon conduct leading to his arrest when, prior to his actual determination, the charge for which he was arrested was dismissed. This court initially reserved its decision on whether petitioner's pre-arrest conduct warranted termination. (See Matter of Young v City of New York, 60 Misc 3d 344 [Sup Ct, Kings County 2018].) As will be set forth below, since the DOC made an independent assessment that the conduct underlying the employee's arrest violated its rules and regulations, the court upholds the termination.

Petitioner Jermaine Young (petitioner or Young) avers that he had a sexual relationship with his supervisor, Captain Denise Phillips, and that she frequently invited him to her residence and exchanged texts of a sexual nature with him. Petitioner claimed that he arranged to meet with Phillips at her residence on March 17, 2016, and that upon his arrival a black male ran into Phillips' apartment with a gun and that this male then menaced him with a gun. He thereupon called 911 and signed a written deposition to the Nassau County Police Department (Nassau Police) requesting an arrest. Unbeknownst to Young, Phillips also called 911 claiming that Young had caused a disturbance in front of her home, and submitted a written statement to the Nassau Police wherein she denied any personal relationship with Young, and claimed that Young came to her residence uninvited and banged on her door.

Petitioner was arrested by the Nassau Police on March 26, 2016, for submitting a false written statement regarding the incident. In particular, the arrest report states that Young told the first responding officers that he was menaced with a gun by a male at the apartment and signed a written deposition requesting an arrest. After reviewing a copy and printouts of the 911 tapes, the police radio communications, the video surveillance, photos and a copy of Young's signed deposition,{**68 Misc 3d at 516} the Nassau Police Detective Squad found that no male had run into the building with a gun and that the person they were looking for had not been at the apartment. Based upon this investigation, Young was arrested on March 26, 2016, for filing a false claim and given a desk appearance ticket for November 16, 2016.

The Nassau Police subsequently notified the Investigation Division of the DOC (Division) of Young's arrest. The Division undertook a Personal Determination Review (PDR) regarding Young's off-duty conduct by reviewing the results of the Nassau Detective Squad's investigation. By memo dated October 7, 2016, the Deputy Commissioner of Human Resources recommended that DOC terminate Young based upon "conduct unbecoming an officer which led to his arrest by Nassau County Police." Young's probationary period was set to expire on March 5, 2017. The Division concluded that the conduct for which Young was arrested violated multiple sections of DOC's Employee Rules and Regulations, including "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 (ACD), and on November 19, 2016, petitioner's criminal case was dismissed and sealed.

Following the termination and sealing of the criminal action, the DOC, by letter dated December 6, 2016, terminated petitioner's position as a probationary correction officer but gave no reason. Petitioner's employment records revealed that he had no negative employment history; i.e., lateness, absenteeism, disobeying authority, or any other form of misconduct. Petitioner sought an order reversing the DOC decision on the ground that it was arbitrary and capricious because it set forth no reason for his termination. Respondent claimed in its answer that petitioner was properly terminated because the conduct for which he was arrested violated multiple sections of the DOC's Employee Rules and Regulations.

Due to the sexual texts exchanged between Young and Phillips, which belied Phillips' statement to the police, and petitioner's lack of negative employment history, this court initially ruled that the DOC's decision to terminate petitioner may have indicia of bad faith and remanded the matter to the DOC to further develop the record. The court reserved its decision on whether petitioner's pre-arrest conduct warranted termination. The City subsequently sent a letter to the court{**68 Misc 3d at 517} which stated that after an exhaustive search of its records, "DOC is unable to provide any further information or evidence as to petitioner's probationary termination in addition to what was previously submitted with respondent's Answer."

Based upon this court's review and reconsideration of the entire record, it upholds the termination. The DOC was well within its province in determining that the conduct underlying Young's arrest—filing a false claim about a male who, upon investigation, was not even at the scene—was grounds for dismissal. Furthermore, this court clarifies its former statement concerning Phillips and finds that whether or not Phillips lied to the police about her relationship with Young was irrelevant to the Nassau Police's arrest of Young for lying about the presence of a male with a gun at the scene, much less that said male threatened him with a gun. These statements are not mutually exclusive^[FN1] and there is no indicia of bias in either the Nassau Police's determination to arrest Young, based upon its investigation, or the DOC's determination that making a false claim constituted conduct unbecoming an officer.

It is well established that a probationary employee may be discharged for "almost any reason, or for no reason at all" as long as it is not "in bad faith or for an improper or impermissible reason." (Matter of Duncan v Kelly, 9 NY3d 1024, 1025 [2008]; Matter of Bruscino v Kelly, 95 AD3d 447, 448 [1st Dept 2012]; Matter of Hirji v Chase, 151 AD3d 857 [2d Dept 2017]; Matter of Johnson v County of Orange, 138 AD3d 850, 851 [2d Dept 2016].) The petitioner 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].)

Additionally, in making employment decisions an administrative agency may assess the underlying conduct which led to an arrest under its own rules and regulations, irrespective of the ultimate disposal of the criminal case. (Matter of Dockery v New York City Hous. Auth., 51 AD3d 575, 575 [1st Dept 2008]; Matter of Scott D. v New York City Dept. of Educ., 13 AD3d 621 [2d Dept 2004].) Where a probationary employee is arrested for committing a crime, her termination "is not in bad faith even {**68 Misc 3d at 518}where . . . all criminal charges against her are subsequently dropped." (Matter of Rocco v Kelly, 20 AD3d 364, 367 [1st Dept 2005], citing Matter of Holmes v Sielaff, 182 AD2d 557 [1st Dept 1992]; Matter of Wharton v New York City Dept. of Correction, 2008 NY Slip Op 32289[U] [Sup Ct, NY County 2008].)

When a hearing officer bases the determination not on the fact that a person was arrested, but on the conduct underlying that arrest, there is no violation of the New York Human Rights Law (Executive Law § 296 [16]).^[FN2] (Deprima v City of N.Y. Dept. of Educ., 2014 WL 1159856, *9, 2014 US Dist LEXIS 38624, *36-38 [ED NY, Mar. 20, 2014, No. 12 CV 3626 (MKB)(LB)]; see also Salanger v United States Air, 611 F Supp 427, 432 [ND NY 1985] [where criminal charges were dismissed against plaintiff, defendant could still lawfully terminate her based on its own internal investigation of her misconduct]; Matter of Scott D. v New York City Dept. of Educ., 13 AD3d 621 [2d Dept 2004] [hearing officer did not discriminate against petitioner based upon his arrest as the record demonstrates that he was disciplined for the conduct underlying the arrest].) "Moreover, while a prosecutor may not have proof beyond a reasonable doubt to pursue a criminal conviction, as long as the administrative determination is supported by substantial evidence, it need not be set aside due to 'the mere reception of erroneously unsealed evidence.' " (Deprima, 2014 WL 1159856, *9, 2014 US Dist LEXIS 38624, *38; see Matter of Charles Q. v Constantine, 85 NY2d 571, 575 [1995].)

Therefore, a probationary employee can be disciplined for the conduct underlying the arrest, even if the governmental agency used unsealed criminal records at a disciplinary hearing. (Matter of Dockery, 51 AD3d at 575 [employee properly terminated based on 911 recordings which showed that he violated the Housing Authority's policy against violence in the workplace, regardless of the fact that his criminal record was sealed]; Scott D., 13 AD3d 621; see also Matter of Pleickhardt v Lippman, 174 Misc 2d 552, 554 [Sup Ct, Suffolk County 1997] [New York State Office of Court Administration, in removing the petitioner from eligible list for court officer, did not act in arbitrary and capricious manner by considering events surrounding his arrest which was ultimately disposed of by ACD].){**68 Misc 3d at 519}

This principle applies with particular force in the case of a probationary correction officer who has been arrested. It has long been recognized that due to the nature of the law enforcement function in society, higher standards of fitness and character pertain to police and correction officers than to ordinary civil service employees. (Matter of Reidy v Connelie, 82 AD2d 986, 987 [3d Dept 1981]; see Matter of Lacey v Coughlin, 97 AD2d 824, 825 [2d Dept 1983] [DOC is allowed to inquire into the facts surrounding the arrest of a probationary correction officer to evaluate fitness for employment, as "(p)ublic policy demands that law enforcement officers, as well as persons in other sensitive public positions, be held to a high standard of conduct"]; Matter of Kenner v Coughlin, 105 AD2d 1130, 1130-1131 [4th Dept 1984] [inasmuch as correction officer's termination was based on acts of recklessness involving a firearm, not on the mere fact of his arrest, there was no violation of Human Rights Law].)

In its independent PDR, the Investigation Division of DOC recommended termination based on Young's "conduct unbecoming of an officer which led to his arrest." This conduct consisted of filing a false claim that an unnamed man ran into Phillips' apartment with a gun and then [*5]threatened him with a gun. It is obvious that manufacturing a story about someone brandishing a gun clearly violates the DOC Employee Rules and Regulations. To this date, it is unclear why the criminal court granted Young an ACD and subsequently dismissed his case. However, no evidence was presented that the case against Young was dropped because the District Attorney discovered evidence that proved that Young had a filed a truthful claim.

As such, DOC properly relied upon its internal rules and regulations in terminating Young and the petition is therefore denied.