Matter of Yan Ping Xu v New York City Dept. of Health

[*1] Matter of Yan Ping Xu v New York City Dept. of Health 2009 NY Slip Op 50147(U) [22 Misc 3d 1116(A)] Decided on January 23, 2009 Supreme Court, New York County Feinman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 23, 2009
Supreme Court, New York County

In the Matter of the Application of Yan Ping Xu, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, .

against

New York City Department of Health, Respondent.



109534/2008



For the Petitioner:

Yan Pin g Xu, pro se

22 Meagan Loop

Staten Island NY 10307

For the Respondent:

Michael A. Cardozo, Esq.

Corporation Counsel of City of New York

By: Danielle J. Barrett, Esq.

100 Church Street

New York NY 10007

(212) 442-3229

Paul G. Feinman, J.

In this proceeding brought pursuant to CPLR Article 78, petitioner who is self-represented, seeks removal of an unsatisfactory rating issued to her by respondent, her former employer, and reinstatement to her position, as well as back pay and money damages and costs. She argues that respondent acted in an arbitrary and capricious manner, in violation of lawful procedure, and in abuse of its discretion. Respondents cross-move to dismiss the petition for failure to state a cause of action and other procedural grounds. Additionally, petitioner "cross-moves" for permission to file a late Notice of Claim pursuant to General Municipal Law § 50-e (5). For the reasons which follow, the petition and petitioner's "cross-motion" are denied in their entirety, and respondent's cross-motion to dismiss is granted.

Petitioner was appointed to the position of City Research Scientist Level I, non-competitive, effective June 4, 2007, and assigned to the Bureau of Immunization within the Division of Disease Control, a part of the New York City Department of Health and Mental [*2]Hygiene.[FN1] She was terminated on March 13, 2008. She alleges that during her employment she uncovered discrepancies in data findings, and in March 2008, she reported her findings to her immediate supervisor, Dennis King, the Deputy Assistant Commissioner, who nonetheless submitted incorrect data to the federal Centers for Disease Control. She had no warning that her work was unsatisfactory, and argues that her termination was made in bad faith and also procedurally improper. She claims that as a permanent employee, she was entitled to certain civil service protections which she was not afforded. Other irregularities included that she received a copy of her "unsatisfactory" evaluation only the day after she was terminated.

Petitioner commenced the instant proceeding by a petition filed in the County Clerk's office on July 14, 2008, after serving it on respondent's counsel, the Corporation Counsel, on July 11, 2008.[FN2] Thereafter, amended petitions were served on the office of the Corporation Counsel on August 19, 2008, and on September 8, 2008, using the same Notice. The amended papers were only filed in court apparently on September 25, 2008, pursuant to directive of the Motion Support Office (see Resp. Memo in Supp. of Cross-Mot. App. 5, Xu letter of 9/22/08 to Barett), and other documents have since been provided to the court by respondent on behalf of petitioner (see Cross-Mot., Barrett Aff.). To say that the petition was improperly commenced is an understatement, given that the initial petition was served before it was filed, in violation of CPLR 304 (a), and that the second and third versions were not filed with the court prior to their being served on respondent, and that petitioner failed to seek permission to amend her petition pursuant to CPLR 3025 (b). Nonetheless, the petition of this self-represented litigant is assessed on its merits rather than dismissed on procedural grounds.

Respondent cross-moves to dismiss the petition on several grounds, some of which are more valid than others. It argues that petitioner has not filed a Notice of Claim (General Municipal Law § 50-e), and that because that prerequisite is unmet, her petition is a nullity. It contends that petitioner was a probationary employee and could be terminated at any time for any reason other than one impermissible under the law. It points to the performance evaluation form which sets forth explanations for each of the "unsatisfactory" ratings, and argues that they fully justify the decision to terminate her. They also note that certain of her other claims, such as that she performed out-of-title work, are not ripe for disposition because she is required first to go through the grievance procedure. It also argues that the petition fails to sufficiently allege a cause of action under the whistle blower statute, Civil Service Law § 75-b because she has not shown that the wrongdoing she uncovered rises to the level of seriousness required under the statute.

An Article 78 proceeding against a public body may be commenced only when a matter has been finally determined (CPLR 7801[1]). An agency determination is deemed final "when the petitioner is aggrieved by the determination" (Biondo v New York State Bd. of Parole, 60 [*3]NY2d 832, 834 [1983]). There are only four questions which may be raised in an Article 78 proceeding (CPLR 7803). The court interprets the petition as seeking review of respondent's decision to terminate her, and whether it was made in violation of lawful procedure, affected by an error or law, or was arbitrary and capricious or an abuse of discretion (CPLR 7803 [3]).

It is a well-settled rule that judicial review of administrative determinations is limited to the grounds invoked by the agency (Matter of Aronsky v Board of Educ., 75 NY2d 997 [1990]). The court may not substitute its judgment for that of the agency's determination but shall decide if the determination can be supported on any reasonable basis (Matter of Clancy-Cullen Storage Co. v Board of Elections of the City of New York, 98 AD2d 635, 636 [1st Dept. 1983]). The scope of review does not include "any discretionary authority or interest of justice jurisdiction in reviewing the penalty imposed by the Authority" and that "the sanction must be upheld unless it shocks the judicial conscience" (Featherstone v Franco, 95 NY2d 550, 554 [2000], citing Matter of Pell v Board of Educ., 34 NY2d 222, 232-234 [1974]).

The test of whether a decision is arbitrary or capricious is " determined largely by whether a particular action should have been taken or is justified . . . and whether the administrative action is without foundation in fact.'" (Matter of Pell v Board of Educ., 34 NY2d 222, 232 [1974]), quoting 1 NY Jur., Admin. Law, § 184, p. 609). An arbitrary action is without sound basis in reason and is generally taken without regard to the facts (Matter of Pell, at 232). The court is to dispose of an Article 78 proceeding in the same manner as it would a motion for summary judgment (CPLR 409[b]).

Here, the performance evaluation dated March 14, 2008, indicates respondent's findings of unsatisfactory or conditional performance on the part of petitioner, including an inability to collaborate and work as part of a team, accept certain assignments, apply suggestions or protocols used by predecessors or colleagues, or access or understand various data sources and methodologies (Pet. Ex. A [a]). There is no affidavit submitted from petitioner's former supervisor or other individual with knowledge of her work to support the evaluation's conclusions. Petitioner produces copies of emails and notes taken over her months of work showing various positive statements made by her supervisor and others about her work, and nothing to show that she was failing to meet the standards and needs of her department.

In general, the rule is that probationary employees may be terminated at any time, without a hearing, as long as there is no showing that the dismissal was for a constitutionally impermissible purpose or in violation of statutory or decisional law (Nelson v Abate, 205 AD2d 454, 455 [1st Dept. 1994]). Petitioner contends that she was no longer a probationary employee.

She points to section 5.2.1 of the Personnel Rules and Regulations of the City of New York, which states that there is a six-month probationary period for non-competitive employees, unless otherwise set forth in the terms and conditions for employment, the applicable period of which is to be communicated to the appointee (Pet. Ex. D [a]).[FN3] In contrast, respondent states that she was still a probationary employee at the time she was terminated, and relies on an undated, uncertified "excerpt of the Departmental Log captioned Probationary Period For Non-[*4]Competitive And Labor Class Titles, DOHMH Non-Competitive Titles,'" which indicates that a City Research Scientist has a one-year probationary period. (Resp. Reply Memo of Law, p. 9; Ex. 2). Neither side provides a copy of what was provided to petitioner at the time of her hiring to establish what she was told regarding the length of her probationary service. As neither side has sufficiently established the authenticity or currency of the document relied upon to show petitioner's status, there remains a question of fact concerning petitioner's status at the time of her termination, and whether the termination was procedurally proper.

Petitioner argues that she was dismissed solely because she brought to the attention of her superior the use of 2006 figures for a report that should have used 2007 figures, and that prior to that action, all indications from her employer showed appreciation for her work. A claim that a public employer retaliated against an employee must allege that the employee disclosed to a governmental body information regarding a violation of a law, rule, or regulation, the violation of which "creates and presents a substantial and specific danger to the public health or safety" (Civ. Serv. L. § 75-b [2] [a]).Alternatively, an employee may bring a claim where he or she disclosed information "which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action" (Civ. Serv. L. § 75-b [2] [a]). The employee should have first made a good faith effort to provide the appointing authority or his or her designee with the information to be disclosed, and given the appointing authority a reasonable time to take appropriate action unless there is imminent and serious danger to public health (Civ. Serv. L. § 75-b [2] [b]).[FN4] An employer who provides the appointing authority with the information is deemed to have disclosed information to a governmental body (Civ. Serv. L. § 75-b [2] [b]). The statute includes the procedures to be followed by the employee: if the employee is part of a collective bargaining unit, a hearing before an arbitrator or hearing officer is mandated, and otherwise, the employee may commence an action (Civ. Serv. L. § 75-b [3] [1-c]).

Petitioner does not make out a claim as a whistle blower protected under Civil Service Law § 75. The alleged wrongdoing that she uncovered was done by King, her supervisor, and although she approached him with her accusatory findings, this did not sufficiently disclose to the agency that the wrong data were being used nor provide it time to correct the error (see, Valdes v New York City Dept. of Envtl. Protect., 1997 U.S. Dist. LEXIS 16625, * 15-*16 [SDNY 1997]). Her argument that King also works for the federal agency is of no weight. In addition, she does not establish that use of figures from 2006 for a report covering 2007 would create a "substantial" or "specific danger" to public health.

Returning to petitioner's termination, it is apparent that whether she was a probationary or a permanent employee, she failed to follow the proper procedure in challenging her termination. According to Rule 7.5.5 (a) and (b) of the Personnel Rules and Regulations, a permanent sub-managerial employee is to appeal her performance evaluation to the appeals board set up by each agency, and then appeal if necessary the determination of the appeals board to the head of the [*5]agency (Pet. Ex. D [a]).[FN5] As she contends she is a permanent employee, this is what she should have done following her dismissal, and accordingly her petition is premature. Conversely, the Civil Service Law provides that where an employee is part of a collective bargaining unit, he or she may seek a hearing before an arbitrator or hearing officer, and if not, then the employee may commence an action (Civ. Serv. L. § 75-b [3] [1-c]). The statute does not provide for commencing a special proceeding pursuant to CPLR Article 78.

Finally, as noted by respondent, petitioner did not file a timely Notice of Claim, which she must do in order to pursue a claim of retaliatory firing (see, Roens v The New York City Trans. Auth., 202 AD2d 274, 274-275 [1st Dept. 1994]; Palmer v Niagara Frontier Transp. Auth., 56 AD3d 1245 [4th Dept. 2008] [concerning Public Authorities Law § 1299-p (1) which is analogous to General Municipal Law § 50-e]). It is for this reason that the court will not convert to a plenary action any claims which are not properly brought in an Article 78 proceeding. Petitioner attempts to "cross-move" for permission to file a late Notice of Claim (General Municipal Law § 50-e [5]), although she properly should commence a separate special proceeding seeking this relief.

Were the court to deem the instant proceeding as a special proceeding to file a late notice of claim, it would be denied on its merits.. She has made no excuse for her failure to file a timely notice, other than ignorance, although it has been repeatedly held that ignorance of the 90-day requirement for filing a Notice of Claim is not considered a "reasonable excuse" under the dictates of General Municipal Law § 50-e (5). (See Bayo v Burnside Mews Assoc., 45 AD3d 495, 495 [1st Dept 2007]; Matter of Nayyar v Board of Educ. of City of NY, 169 AD2d 628, 629 [1st Dept 1991]). In addition, although there are many factors the court is allowed to consider in assessing whether to allow the filing of a late Notice of Claim, the most important factor is whether the City acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose (Casias v City of New York, 39 AD3d 681, 682 [2d Dept 2007]). Petitioner was terminated on March 13, 2008 and served her initial petition more than 90 days later on July 11, 2008. There is nothing to establish that respondent knew of her claim that she had been dismissed based on her whistle blowing activities within 90 days of that date.

Accordingly, the petition for Article 78 relief is denied and it is

ADJUDGED and ORDERED that the petitioner's petition and cross-motion to file a late notice of claim are denied and the respondent's cross-motion to dismiss granted and the proceeding dismissed in its entirety. This shall constitute the decision, order and judgment of this court.

E N T E R :

Dated: January 23, 2009____________________________________

New York, New YorkJ.S.C. Footnotes

Footnote 1:According to the evaluation form and evaluation plan, she was a full-time, provisional employee (Pet. Ex. A [a]; Ex. D [c]). The job vacancy notice advertising her position did not indicate that the position was provisional (Pet. Ex. B [a]).

Footnote 2:Also improper is that the petition does not contain an actual signature by petitioner but only a photocopy thereof.

Footnote 3:The copy of the Personnel Rules and Regulations of the City of New York is not dated or certified as being the set of rules in force during petitioner's employment.

Footnote 4:"Appointing authority" is defined as the officer, commission or body having the power of appointment to subordinate positions." (Civ. Serv. L. § 2 [9]).

Footnote 5:For probationary employees, Rules 7.5.6 (a) and (b) states that the performance evaluations may not be appealed, but unsatisfactory interim reports and all final probationary reports are to be reviewed by the agency's employee service board (Pet. Ex. D [a]).