Matter of Coppotelli v New York City Hous. Auth.

[*1] Matter of Coppotelli v New York City Hous. Auth. 2009 NY Slip Op 50183(U) [22 Misc 3d 1119(A)] Decided on January 28, 2009 Supreme Court, New York County Lobis, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 28, 2009
Supreme Court, New York County

In the Matter of the Application of John Coppotelli, Petitioner, For a Judgment pursuant to Article 78 of the Civil Practice Law and Rules

against

The New York City Housing Authority, and THE BOARD OF THE NEW YORK CITY HOUSING AUTHORITY, Respondents.



112563/08



Counsel for Petitioner:

MEYER SUOZZI ENGLISH & KLEIN

1350 BROADWAY - STE. 501

NEW YORK, NEW YORK10018

By: Joni H. Kletter, Esq.

Counsel for Respondent:

NYC HOUSING AUTHORITY

250 BROADWAY - 9TH FLR.

NEW YORK, NEW YORK 10007

Ricardo Elias Morales, Esq.

General Counsel

Joan B. Lobis, J.

Petitioner John Coppotelli brings this Article 78 proceeding seeking reinstatement to his former position with respondent the New York City Housing Authority (the "NYCHA" or the "Authority"). Petitioner asserts that the decision to terminate his employment was arbitrary and capricious, an abuse of discretion, and/or not based upon the substantial evidence contained in the record. In addition to reinstatement, he seeks back pay, wages, and benefits retroactive to August 14, 2008, the date of his termination. He also seeks counsel fees. [*2]

According to respondents, petitioner commenced his employment with the Authority on February 16, 1993,[FN1] as a Mason's Helper. The job duties of a Mason's Helper's include assisting bricklayers and cement masons in the preparation and finishing of concrete, cement, brick, tile, and other masonry work. The position of a Mason's Helper is classified as a competitive position in the classified civil service of the City of New York. Although the petition asserts that petitioner held a permanent appointment and was entitled to the protections of the Civil Service Law, the Authority states that petitioner at all times remained a provisionally-appointed Mason's Helper, and never secured a permanent Civil Service appointment to that or any other Civil Service title.

On or about February 1, 2007, the NYCHA served petitioner with disciplinary charges. On April 9, 2007, the NYCHA issued amended disciplinary charges against petitioner (the "April 2007 Notice"). In the first charge, petitioner was charged with incompetency or misconduct for absenting himself from work without approval on the following dates: August 15 and 17, 2005; September 6, 2005; January 12 and 13, 2006; February 9 and 14, 2006; August 23, 2006; March 19-23 and 26-30, 2007; and, April 2-5, 2007. In addition to these absences, in a second charge, petitioner was also charged with being excessively late in reporting to work on thirty-eight (38) occasions between August 8, 2005 and January 22, 2007, for a total of 2,520 minutes. Petitioner was advised that he could answer the charges in writing, or he could have a hearing before the Employee Disciplinary Division of the NYCHA.

On May 4, 2007, the parties resolved the matter without a hearing in a conference that was held concerning the charges (the "Conference Disposition"). Petitioner, who was represented by an attorney, agreed that he was guilty of both charges. The parties agreed that petitioner would serve a suspension from work, without pay, for twenty (20) workdays. Petitioner also agreed to serve an eighteen (18) month Time and Attendance Probationary Evaluation Period (the "Evaluation Period"). The Conference Disposition sets forth the purpose of the Evaluation Period and the procedures that would be in place:

The purpose of a[n] Evaluation Period is to enable the employee to re-establish his fitness to serve as an Authority Mason's Helper in those instances where the employee's time and attendance has seriously compromised his ability to function effectively as an employee of the Authority.

An employee who is subject to a[n] [Evaluation Period] may be terminated from his employment without the service of charges, without a hearing and without further appeal on the basis of unsatisfactory time or attendance during the stipulated [Evaluation Period], except that said termination may not be arbitrary or capricious. . . .

The Conference Disposition further provided that the Evaluation Period would begin on the date of the expiration of petitioner's period of suspension. The settlement was subject to the approval of the Members of the Authority. If approved, the Conference Disposition would be final, and [*3]would be entered on the Authority's records and in petitioner's personnel file. Petitioner further agreed to

waive[] all rights to appeal to the Civil Service Commission or to the Courts, or to arbitration, excepting however, and only excepting, an appeal to an appropriate Court because of an alleged arbitrary or capricious action in contravention of a term or condition of this agreement.

By letter dated September 13, 2007, petitioner was notified that the Members of the Authority approved the disposition of the charges against petitioner, as set forth in the Conference Disposition. Petitioner was informed that his suspension would cover the period from September 17, 2007 through October 12, 2007. Pursuant to the Conference Disposition, the eighteen-month Evaluation Period would begin on October 15, 2007.

By letter dated August 14, 2008, petitioner was advised that his employment with the Authority was being terminated, in accordance with the Conference Disposition, effective close of business that same day. The letter does not set forth the reasons for the termination. The petition asserts that petitioner performed all of his duties satisfactorily during his probationary Evaluation Period. He claims that his termination from employment, without explanation, is arbitrary and capricious. Notably, the petition is silent as to any problems related to petitioner's employment either prior to the April 2007 Notice or after his return to work.

As a threshold matter, since the Authority's decision to terminate petitioner's employment was not made as a result of a hearing held and evidence taken, the standard of review is not whether the determination is supported by substantial evidence, but rather whether the determination has a rational basis in law. C.P.L.R. § 7803(4); Matter of Sullivan County Harness Racing Ass'n, Inc. v. Glasser, 30 NY2d 269, 277 (1972); Matter of Colton v. Berman, 21 NY2d 322, 329 (1967). For the reasons set forth below, this court finds that the Authority's decision to terminate petitioner's employment was not arbitrary and capricious, nor an abuse of discretion, and was rationally based..

The Authority's response to the petition clearly sets forth all of petitioner's employment infractions both before and after the time and attendance abuses delineated in the April 2007 Notice. According to the Authority, during the period from February 5, 2002 to September 5, 2006, petitioner had been issued nine counseling memoranda concerning his time and attendance abuses. In May 2003, petitioner entered a plea of guilty to a charge of being absent without approved leave on ten (10) occasions; he agreed to a penalty of two days' loss of accrued annual leave. After a second hearing concerning his time and attendance in June 2005, petitioner was charged with being absent without leave on eight occasions, and was charged with being late thirty-five (35) times, for a total of 2,310 minutes, which averages to being over an hour late on each occasion. On December 8, 2006, petitioner's department sought to have charges brought against petitioner and the remedy of termination of petitioner's employment, based on petitioner's time and attendance history. The request noted the history of both verbal and written counseling, and that despite the warnings, petitioner's time and attendance had not improved. Charges were [*4]apparently first brought in a letter, dated February 1, 2007. These charges were then amended, as set forth in the April 2007 Notice.

After his return to work following the twenty-day suspension, petitioner was assigned to work as a Mason's Helper with the Brooklyn Management Department. Almost immediately upon his return to work on October 15, 2007, after serving his twenty-day suspension, petitioner failed to report to work on time. On October 22, 2007, petitioner received a counseling memorandum which cited him for punching in at a location other than his assigned work location on fifteen (15) occasions between July 10, 2007 and September 5, 2007, a period before his suspension was served. In his affidavit in opposition to the petition, Jerome Paige, the Skilled Trades Administrator in the Authority's Management Department for the Borough of Brooklyn,[FN2] avers that after petitioner returned to work following his suspension, Mr. Paige met with petitioner at various times and counseled petitioner concerning his time and attendance. Petitioner was warned that he had to report to work on time; that he had to punch in at the proper location, rather than at another location to attempt to obtain an earlier arrival time; and, that his absences had been excessive.

Thereafter, petitioner continued to be absent from work without prior authorization. The Authority noted that of seventeen (17) absences during the first quarter of his probationary period, nine were either before or after a weekend or holiday. Petitioner received an unsatisfactory rating for time and attendance on his first quarter evaluation report for the period from October 15, 2007 through January 24, 2008. A counseling memorandum, dated April 23, 2008, was served on petitioner the next day, which he refused to sign. The memorandum detailed petitioner's absences for the period from November 1, 2007 through April 1, 2008. According to the memorandum, petitioner was absent without prior approval for twelve personal days; in 2007, he was absent on November 14, 19, and 20, and on December 10 and 17. His absences continued into 2008, with absences on January 2 and 15; February 4, 5, and 19; and, March 5 and 14. There are six additional days listed as personal days without pay, two of which are in December 2007 and four of which are in January 2008. There are three additional dates, one each in February, March and April, which are described as days when petitioner was absent without official leave. The Authority's counseling memorandum also sets forth two days that petitioner was sick, and five dates when he was absent that are charged as sick leave without pay. Finally, the memorandum notes that he was late eight times for a total of 325 minutes. Petitioner received an unsatisfactory rating for time and attendance on his second quarter Probationary Evaluation Report for the period from January 15 to April 14, 2008. [*5]

By memorandum dated June 23, 2008, Mr. Paige made a request to the Director of the Brooklyn Borough Management Department that petitioner's employment be terminated based on that fact that petitioner failed his first, second, and third quarter conference probations. The memorandum sets forth four additional unauthorized absences on April 15, 22, and 23, and on May 8, 2008. On July 3, after termination was recommended, Mr. Paige prepared the third quarter report and directed Mr. Calvello to give it to petitioner; petitioner also received an unsatisfactory rating for time and attendance on this report, for the period from April 15 to July 14, 2008. Petitioner refused to sign the report.

The Director of the Brooklyn Borough Management Department then made a request to the Director of Human Resources Department, by memorandum dated July 25, 2008, attaching the June 23 memorandum and requesting that petitioner's employment be terminated. By letter dated August 14, 2008, the Director of Human Resources advised petitioner that his employment with the Authority was being terminated as of close of business that day.

In response to respondents' timeline and listing of all of petitioner's absences, petitioner sets forth that some of his absences were due to his wife's chronic illnesses, which have rendered her unable to work or care for their two children, ages eight and eleven. Petitioner states that his wife suffers from rheumatoid arthritis, lupus, heart disease, throat cancer, and cervical cancer, and that she needs surgery, which they cannot afford. Petitioner states that some of his absences are because his wife needs his help with medical visits and home care. He further alleges that over the past few years, he has suffered from chronic back pain, due to disc herniation, bursitis, and degenerative and hypertrophic changes throughout his spine. He states that his chronic back problems are due primarily to injuries he sustained as a Mason's Helper. Petitioner states that he is on numerous medications.

Petitioner contends that he constantly spoke with Mr. Paige and Mr. Calvello, as well as the Authority's Director of Human Resources, concerning all of these issues and his absences. Petitioner claims that nobody informed him that there was a problem with his excused absences. He also disputes three of the dates on which he was listed as absent, and claims he was actually at work on January 28, February 4, and February 19, 2008, but his swipe card did not register. Petitioner also includes in his reply papers copies of various requests for leaves of absence. His requests, however, are all dated after he was absent. For example, on November 15, 2007, he submitted a written request for his absence on November 14, which was one of the days he was charged with being absent without prior approval. Similarly requests were submitted for many of the dates set forth on p. 6, supra: requests were submitted on November 21 (for November 19 and 20), December 12 (for December 10)December 18 (for December 17), etc. Although petitioner states that these requests were ultimately approved, he fails to account for his latenesses, the days he was absent without leave, and other unexcused absences.

While this court is not unsympathetic to petitioner's claims of chronic back pain and his need for medical care, nor is this court without compassion for petitioner's family because of his [*6]wife's chronic condition, the fact remains that petitioner was absent from work for a significant amount of time, without prior approval. He was also late on numerous occasions. Although petitioner refused to sign many of the memoranda concerning his misconduct and refused to sign two of the probationary evaluation reports, his claim that he was not aware of his problems with time and attendance is contradicted by his signature on the second quarter Probationary Evaluation Report, dated May 14, 2008.

Given petitioner's chronic abuses of the time and leave rules during his period of probation following Conference Disposition, it was not arbitrary and capricious, nor was it an abuse of discretion, for the Authority to terminate petitioner's employment.

Accordingly, the petition is denied and the proceeding is dismissed. This constitutes the decision, order, and judgment of the court.

Dated: January, 2009

______________________________

Joan B. Lobis, J.S.C. Footnotes

Footnote 1: Petitioner states that his employment began on February 23, 1993.

Footnote 2: Each borough in the City of New York has its own management department, which is responsible for the daily operation and maintenance of the Authority's public housing developments in that particular borough. Mr. Paige has direct supervisory responsibility over staff in the following six trades: carpenters, plumbers, bricklayers, roofers, exterminators, and electricians. Among his duties are to organize schedules and monitor assignments. Mr. Paige supervised Douglas Fescine, the Supervisor of Bricklayers, who was petitioner's direct supervisor in April 2007, and also supervised Louis Calvello, who became petitioner's immediate supervisor in December 2007.