Matter of Johnson v Schriro

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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 Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] [* 2] 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 1 Respondents. Petitioner brings the instant petition pursuant to Article Rules seeking to move this Court to issue a mandate annulling DR. DORA B. SCHlURO s (hereinafter Schriro ), Commissioner of the Ncw York City Dcpartment of Correction, NEW YORK CITY DEPARTMENT OF CORRECTION S (hereinafter department), and CITY OF NEW YORK s (hereinafter City ), (hereinafter collectivcly Respondents ) decision to terminate petitioner s 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 respondents decision to terminate petitioner was affected by an error of Law 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 respondents 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 Page 1 of 4 [* 3] 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. Petitioner s 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 petitioner s 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 ALJ Spooner ). At that hearing, petilioner was represented by Peter Troslcr, Esq. and the respondent department was represented by agency attorney Paul R. Miller, Esq.. Petitioncr s 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, petitioner s 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 pctitioner s 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 petitioner s 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 Page 2 of 4 [* 4] 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 Spooner s 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 [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. In deciding whether an agency s 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 agency s 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 bare surmise, conjecturc, speculation or rumor and less than a preponderance of the evidence. 300 Gramatan Avcnue Associates v. Slate Division of Human Riphts, 45 N.Y.2d 176, 180 (1978). Substantial evidence consists of such relevant proof as a reasonable mind may accept as adequate to supporl a conclusion or ultirnate fact. 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 l the agency s detennination is supported by facts or reasonable inference that can be drawn from the record and has a rational basis in the law, it must be confirmed. American Telephone and Telemapli Co. v, State Tax Commissioner, 61 N.Y.2d 393, 400 ( I 954). Petitioner s Article 78 petition must be denied as the respondents 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 [* 5] 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 substantial evidence and for a finding that the respondents determination was not without foundation. Since respondents decision is supported by facts or reasonable inferences that can be drawn from the record and have a rational basis in the law, it must be confirmed. 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 Page 4 of 4

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