Matter of Johnson v Schriro
2012 NY Slip Op 30968(U)
April 10, 2012
Supreme Court, Bronx County
Docket Number: 108275/2011
Judge: Robert E. Torres
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX, PART 29
PRESENT: HONORABLE ROBERT E. TORRES, J.S.C.
In the Matter of the Application of
KIMMI JOrnSON,
INDEX NUMBER: 108275/20 1 I
Petitioner,
For a Judgment Pursuant to Article 78 of the Civil
Practice Law and Rules
-against -
Present:
IHON. ROBERT E. T O W $
DR.
DORA B. SCHRIRO, Commissioner of the New
York City Department of Correction, NEW YORK
CITY DEPARTMENT OF CORRECTION, and
CITY OF NEW Y O K ,
FILED
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Respondents.
Petitioner brings the instant petition pursuant to Article
Rules seeking to move this Court to issue a mandate annulling DR. DORA B. SCHlUROâs
(hereinafter âSchriroâ), Commissioner of the Ncw York City Dcpartment of Correction, NEW
YORK CITY DEPARTMENT OF CORRECTIONâS (hereinafter âdepartment), and CITY OF NEW
YORKâs (hereinafter âCityâ), (hereinafter collectivcly âRespondentsâ) decision to terminate
petitionerâs employment as a correction officer, or, in the alternative, an Order requiring a hearing
pursuant to N.Y. C.P.L.ll.5 7804(h). Specifically, petitioner argues that respondentsâ decision to
terminate petitioner was âaffected by an error of Lawâ bccause they considered illegal evidence
improperly.
Respondents opposes the instant petition on the grounds that the amended verified petition
fails to state a cause of action; that respondentsâ actions were not arbitmy, capricious or an abuse
of discrelion; the finding agaiiist thc petitioner was supported by the record and was reasonable,
lawful, and proper, and not arbitrary, capricious or irrational: the penally imposed was lawhl,
reasonable, and proper; and that h i s matter should be transferred to the Appellate Division pursuant
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to C.P.L.R. 8 7804(g).
The relevant record herein rcveals that petitioner began her employment with the respondents
as acorrection officer in 1989. Pursuant to dircctive 7507R-A, petitioner was randomly selected for
a drug test and provided the requisite urine sample on or about July 15, 201 0. Petitionerâs sample
tested positive for morphine. Departmental policy provides that when an officer tests positive for
opiates or morphine ut a level between 300 and 2000 nanograms per millilitcr. said officer has the
opportunity to take a subsequent test rather than face immediate disciplinary charges. Op August
18,2010,petitioner was told to report to the toxicology trailcr where she signed a consent form and
completed a food and drug questionnaire before providing an actual hair sample. The lab report of
petitionerâs hair test showed a positive for cocaine at 26 milligrams per milliliter. Subsequently,
respondent department filed and served a disciplinary charge against petitioner. Petitioner then
requested a disciplinary hearing pursuant to N . Y . CIV. SERV.L. $ 75.
On January 24, 201 1 , ai administrativc hearing \vas held before Administrative Law Judge
John. B. Spooner (hereinafter âALJ Spoonerâ). At that hearing, petilioner was represented by Peter
Troslcr, Esq. and the respondent department was represented by agency attorney Paul R. Miller,
Esq.. Petitioncrâs attorney objected to the result of the second drug test coming in as evidence on
the grounds that petitioner should have been, but was not, provided with the union representation
at the time of said test as mandated by N Y CIV. SERV. L.
9 75(2). As such, petitionerâs attorney
argues that since the results ofthe test is evidence obtained from an employee who was not provided
with union reprcsentatiou, it should be excluded. Upon conducting snid hearing, ALJ Spooner gave
the parties an opportunity to submit post-hearing mernoranda on the issue of the legality of the
rights were violated. See, NLRB v, J.
second drug test sand whether pctitionerâs Weir7ga~fer-1
Wciiigur~en,
Inc,,420 U.S. 25 1 (1 975).
On February 28,201 1, ALJ Spooner issued an eight page Report and Recommendation to
respondent Schriro. ALJ Spooner detailed his proposcd findings of fact and rcconimended penalty
with respect to the charge brought against petitioner. ALJ Spooner also addressed the issue o r the
legality of the second drug test by h d i n g that it was properly admitted evidence. Moreover, ALJ
Spooner found that petitionerâs right to union representation under Weingarten was not violated
during the second divg test because said rights only attach when an employee is subjcct to
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c
interrogation and not prior to undergoing a drug tcst. SCC,NLRB v. J. Wein.por!en, Znc., 420 U.S. 25 1
(1 975).
On March 21,301 I , respondent Schriro adopted ALJ Spoonerâs Report and Recommendation
and terminated petitioner lierein. Petitioner subsequently filcd the instant petition.
Article 78 of the CPLR provides for limited judicial review of administrative actions.
Administrative agencies enjoy broad discretionary power when making determinations on matters
they are empowered to decide. Section 7803 provides in relevani part that â[tlhe only questions that
may be raised in a proceeding under this arlicle are ... 3. whether a determinaiion was made in
violatiori of lawfill procedure, was affected by an error of law or was arbitrary and capricious or an
abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline
imposed; or 4.whether a determination niade as a result o f a hearing held, and at which evidence was
taken, pursuant to direction by law is, on the entire record, supported by substantial evidence.â
In deciding whether an agencyâs determination was supported by substantial evidence or was
arbitrary, capricious or an abuse of discretion, the reviewing court is limited to assessing whether
the agency had a rational basis for its deterniination and may overturn the agencyâs decision only if
the record reveals that the agency acted without having a rational basis for its decision. See, Heintz
v. Brown, 80 N.Y.2d 998, 1001 (1992) citing Pel1 v . Qoard pf Education, 34 N.Y.2d 222, 230-31
(1974); Sullivan County Harpess Racinrr Association v. Glasser, 30 N.Y.2d 269, 277 (1972).
Substantial evidence is more than âbare surmise, conjecturc, speculation or rumorâ and âless than
a preponderance of the evidence.â 300 Gramatan Avcnue Associates v. Slate Division of Human
Riphts, 45 N.Y.2d 176, 180 (1978). Substantial evidence consists of âsuch relevant proof as a
reasonable mind may accept as adequate to supporl a conclusion or ultirnate fact.â
M
See, also
Consolidated EdisQn v. New York State D IR, 77 N.Y.2d 41 1 , 4 17 ( 1 991 ). Where the Court finds
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the agencyâs detennination is âsupported by facts or reasonable inference that can be drawn from the
record and has a rational basis in the law, it must be confirmed.â American Telephone and
Telemapli Co. v, State Tax Commissioner, 61 N.Y.2d 393, 400 ( I 954).
Petitionerâs Article 78 petition must be denied as the respondentsâ decision was supported
by substantial evidence, w a s not made in violation of lawful procedure, was not affected by an error
of law, nor was it arbitraiy and capricious or an abuse of discretion. On Article 78 review, this Court
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is limited to assessing whether the agency had a rational basis for its determination. These records
are more than sufficient to make a showing of âsubstantial evidenceâ and for a finding that the
respondentsâ determination was not without foundation. Since respondentsâ decision is âsupported
by facts or reasonable inferences that can be drawn from the record and have a rational basis in the
law, it must be confirmed.â American Telephone and Telegraph Co., 61 N.Y.2d 393, 400 (1984).
Accordingly, the pctition is denied and dismissed.
This constitutes the decision and order of this Court.
LZL
Dated: April 10, 201 2
Mon. Robert E. Torres
I
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