Matter of Triola v Daines
2012 NY Slip Op 31069(U)
April 9, 2012
Supreme Court, Suffolk County
Docket Number: 10-43821
Judge: John J.J. Jones Jr
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[* 1]
MEMORANDUM
SUPREME COURT, SUffOLK
COUNTY
IAS. PART 10
--------------------------------------------------------------)(
By:
Jones, l.S.C.
Dated: April
2012
In the Matter of the Application of
THOMAS J. TRIOLA,
'1--,
Petitioner,
For a Judgment Pursuant to Art. 78 of the Civil
Practice Law and Rules,
Index No. 10-43821
Mot. Seq. #001 - MD; CDISPSUBJ
Return Date:
Adjoumcd:
January 12,2011
December 7,2012
- against RICHARD F. DAINES, M.D., Commissioner,
State of New York Department of Health, and
STATE OF NEW YORK DEPARTMENT OF
HEALTH,
Respondents.
--------------------------------------------------------------)(
WOLIN & WOLIN
Attorney for Petitioner
420 Jericho Turnpike, Suite 215
Jericho, New York 1] 753
ERIC T. SCFlNEIDERMAN, ESQ.
Attorney General of the State of New York
By: Susan M. Connolly, Esq.
300 Motor Parkway, Suite 205
Hauppauge, New York I 1788
In this article 78 proceeding, the petitioner seeks the entry of judgment (i) annulling and rescinding
the determination of the respondents which terminated the petitioner, prior to the completion of his
probationary term, from his employment as a senior medical conduct investigator with the New Yark
State Department of Health, Office of Professional Medical Conduct (OPMC), in the Metropolitan Area
Regional Office, Central Islip, New York, (ii) directing the respondents to reinstate him to that position,
together with all the rights and privileges attendant thereto, (iii) restoring to him any back pay, seniority,
and other benefits lost as a result of the termmation, and (iv) affording him an opportunity to clear his
name, through hearing or otherwise.
The petitioner alleges in his verified petition that he is a former criminal investigator and special
agent with the U.S. Department of the Treasury, U.S. Customs Service, having retired on June 30, 2001
after 25 years of service. He was employed by the respondents on March 8, 2010. After one week of
training in the New York City office, he reported to the Central Islip office on March 15. He was initially
assigned several cases, one of which involved a completed case by a co~worker with respect to which the
co~worker was to demonstrate the process by which to present the case for possible administrative
prosecution. On April 2, his supervisor, Judith Pilgrim, falsely accused him and the co~worker of having
worked together for four days on the assignment when, in fact, they had only worked one full day and an
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Matter of Triola v. Daines
Index No. 10-43821
Page 2
additional hour and a half on it. Relieving that the accusation was improper, he reported it to upper
management bye-mail on April 5. Thereafter, according to the petitioner, Pilgrim treated him in an
unjustified, illegitimate, bad faith and retaliatory manner consisting of a series of altacks on his work
performance, all of which was causally related to the disclosure he made and which culminated in his
termination. The petitioner makes similar allegations relative to a "counseling memorandum" which
Pilgrim read to him on May 28 and probation reports dated June 1, July 9, and July 27, to wit, that they
were replete with false and inaccurate comments, and were not reflective of his true performance; that his
responses, which accused Pilgrim of making false allegations and false reports intended to create an
inaccurate record of his performance, prompted Pilgrim to nnleash further unwarranted attacks on his
pcrformance, culminating in his termination; that several of his responses were communicated to
managers in his local chain of conunand; and that his responses constitute «disclosures" protected by
whistleblowing statutes and regulations, including Civil Service Law § 75-b. On August 6, the
petitioners' employment was terminated. The petitioner claims that the unlawfulness orhis termination is
evidenced by the "barrage" of the probation rcports and other evaluations which he received, the
respondents' fllilure to extend his probationary period so as to properly assess his progress or to assign
him to another supervisor, and his performance on the statewide test for the position of supervising
medical conduct investigator aOer just three months as a senior medical conduct investigator. The
petitioner further claims that in failing to extend his employment for the maximum probationary period of
52 weeks, or to oITer a second probationary teml lasting between 12 and 26 weeks in a different
assignment and with a different supervisor, or to recommend termination at least four weeks prior to the
requested termination date, or to give "adequate expectations of'job performance," the respondents
violated their own policy as set forth in the Department of Health's Administrative Policy and Procedures
Manual. Finally, the petitioner claims that his reputation as a former criminal investigator and special
agent has been tarnished by the respondents' actions, and that he should be permitted an opportunity to
clear his name.
The respondents, in their answer, deny the material allegations set forth in the petition. The
respondents also submit the affidavits of Judith Pilgrim and Debra A. Hotaling, the Department of
Health's director of personnel, in opposition to the petition.
According to Pilgrim, she met with the petilioner on March 16,2010, the day aner he first reported
to the of-fice, to explain the goals and expectations of him as a senior medical conduct investigator. The
petitioner also received a manual defining his role as an investigator, detailing how to perform the job and
the expectations for the position. Nevertheless, his job performance was problematic from the onset of his
employment. He wa') unable to handle the workload assigned to him and he had ongoing issues rcgarding
adhcrence to the chain of command, making independent decisions without prior discussions with his
supervisor and J~lilingto follow instructions given by his supervisor. On April 2, she met with the
petitioner to discuss his failure to meet a deadline to present a case. The petitioner took offense to
criticism presented at this meeting. On May 20, she conducted a review of the petitioner's assigned cases
and determined that, of the 23 cases which he had been assigned, six had not been worked on, and in 22 of
the cases, the petitioner had not followed her written instructions. On May 2S, she initiated a counseling
session with the petitioner regarding his failure to meet investigative deadlines and issued a counseling
memo regarding his failure to meet investigative deadlines. On June 2, she met wilh the petitioner to
conduct his first evaluation and to discuss his first probation report, dated June I, 2010, which contained
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Matter of Triola v. D<lines
Index No. 10-43821
Page 3
"unsatisfactory" ratings in all applicable categories: work quality, work quantity,
initiativelresourcefi.I!ness, reliability, and interpersonal relations. On June 15, she conducted a follow-up
review of the petitioner's assigned cases and determined that, of the 26 cases which he had been assigned,
three had not been worked on (including two which had been assigned in March), five had not been
worked on for a month or longer, and only three could be considered on target. On June 30, she was tirst
made aware of the petitioner's accusations concerning her and was shown the petitioner's mcmorandum
to her supervisors in regard to their April 2 meeting as well as his response to her May 28 counseling
memo. On July 1, she conducted a follow-up review of the petitioner's assigned cases and determined
that, of the 28 cases which he had been assigned, one, which had been assigned in March, still showed no
documented work, and only 12 were on target or up to date while 16 were not meeting supervisory and
program deadlines. On July 6, she initiated a counseling session with the petitioner regarding his work
performance. On July 12, she met with the petitioner to discuss his second probation report, dated July 9,
2010, which contained "unsatisfactory" ratings in the categories of work quantity and
initiative/resourcefulness. On July 16, she conducted a "total" review of the petitioner's assigned cases
and determined that, of the 29 cases which he had been assigned, at least 15 reflected no work done since
the prior review on July 1. On July 26, she conducted another "total" review of the petitioner's assigned
cases and determined that numerous cases reflected no activity for an extended period of time and
inadequate documentation to show what work, if any, had been done, and that the petitioner had not
closed any of his cases. On July 27, she prepared a final probation report containing "unsatisfactory"
ratings in the categories of work quantity, initiative/resourcefulness, and interpersonal relations, and
recommending the petitioner's dismissal. The petitioner's termination became effective on August 6.
Hotaling states in her ani davit that all new permanently appointed employees must complete a
probationary period as set forth in the Department of Health's Administrative Procedures and Policy
Manual, which is consistent with Civil Service Law § 63 and Rule 4.5 of the Civil Service Rules (4
NYCRR 4.5), the latter of which explicitly provides that "[i]f the conduct or performance of a probationer
is not satisfactory, his or her employment may be terminated at any time after eight weeks and before
completion of the maximum period of probation." When, after training, coaching, and other interventions
an employee is not meeting the standards orhis or her position, and it appears that the employee is not
going to be successful in the position, the employee may be terminated prior to completion of the
probationary period_ In the petitioner's easc, after a review of all relevant submissions, it was determined
that the petitioner was not going to be successful in his probationary period, despite efforts to make it a
success. Contrary to the petitioner's assertion, there is no maximum number of probation reports an
employee can receive, and a supervisor has discretion to issue such reports more frequently to address a
probationer's progress or lack thereof Probation reports arc filed in the probationer's personnel file.
\Vhen a regIOnal office recommends dismissal of a probationary employee, the personnel admimstrator
responsible for that office reviews the contents of the employee's personnel file, as well as any
documentation and justification presented by the program in support of its recommendation and any
comments provided by the el11ploye(;~.I-Iere, Denise Fiendel, an assistant director of per sonne! and a
member of Hotaling's stall who had previously reviewed the petitioner's probation reports and
determined that the petitioner's supervisor had provided an adequate explanation for aJi the
"unsatisfactory" ratings received by the petitioner, reviewed the request for the petitioner's dismissal and
recommended approval in a memorandum dated July 29, 2010. As to the petitioner's claim that he was
not atforded an opportunity to serve a second probationary term, Hotaling noted that such an opportlll1ity
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Matter of Triola v. Daines
Index No, 10-43821
Page 4
is rarely allowed, and only \vhcre there is strong documentation that an employee has exhibited attributes
that could possibly lead to success in a new assigrunent with a new supervisor. While reassignment of the
petitioner to a different off-ice was considered by Fiendel in her memorandum, she determined that
because senior medical conduct investigators are only classified in the OPMC program, and because
expectations for that position were the same throughout the program regardless of the location of the
assignment, reassignment to a different supervisor or program area did not appear to be a viable option for
the petitioner, particularly considering that his performance continued to be unsatisfactory. Fiendel's
recommendation was approved by Hotaling and by John R. Conroy, who was then the Department of
Health's director of human resources and operations. As to the petitioner's claim that the respondents
failed to comply with the four-week notification period relative to the termination of a probationary
employee, Hotaling noted that this period is for the benefit of personnel management staff to allow them
sufTicient time to obtain and review information and to make determinations; where, as here, all required
steps had been taken and persOlmel had been made aware of the actions taken throughout the petitioner's
probation, the full four weeks was not necessary to process and review the termination request.
"A probationary employee may be discharged '0/ithout a hearing and without a statement ofreasons
in the absence of any demonstration that the dismissal was in bad faith, for a constitutionally
impermissible or an illegal purpose, or in violation of statutory or decisional law" (If1atterof Barry v City
of New York, 21 AD3d 551,800 NYS2d 594, 595-596 [2005]). Judicial review of a determination to
discharge a probationary employee is limited to an inquiry as to whether the termination was made in bad
faith or for an improper or impermissible reason (Matter of Swinton v Safir, 93 NY2d 758, 697 NYS2d
869 [1999]; Malter of Johnson v Katz, 68 NY2d 649, 505 NYS2d 64 [1986J; Malter ofShahazz v New
York State Dept. of Correctional Servs., 63 AD3d 1253, 879 NYS2d 832 (20091). The petitioner bears
the burden of establishing bad faith, violation of law, or the unconstitutional or illegal reasons by
competent proof (Malter of Son taro v County of Suffolk, 20 ADJd 429,798 NYS2d 508 [2005]).
Neither the mere assertion oCbad faith without the presentation of evidence demonstrating it (Matter of
Soto v Koeltler, 171 AD2d 567, 567 NYS2d 652, Iv denied 78 NY2d 855, 573 NYS2d 644 [1991]) nor
speculative or conclusory allegations of misconduct or unlawfulness (Matter of Robinson v Health &
J/osl's. Corp., 29 AD3d 807, 815 NYS2d 222, uppeals dismissed 7 NY3d 845, 823 NYS2d 774 [2006];
Matter of Cooke v County of Suffolk, 11 AD3d 610, 783 NYS2d 392 [2004]) are sufticient to meet this
burden.
The Court J-lndsthat the petitioner failed to meet his burden. As to his claim that he was
terminated in retaliation for his written responses to various memoranda and reports prepared by his
supervisor concerning his work performance, the petitioner failed to demonstrate that Pilgrim was even
knowledgeable of those responses in time to effect such retaliation; according to her affidavit, it was not
until June 30 that she was tirst made aware of his responses to the April 2 meeting and the May 28
counseling memo. Nor does it support the petitioner's claim that Pilgrim'5 initial criticism of his job
performance predated his responses. ·T'hepetitioner likewise presented no competent proof that the
expectations imposed on him were unreasonable. To the extent the petitioner claims that he was
dismissed in retaliation for his alleged whistleblowing, it suffices to note that the petitioner huled to allege
the violation of any law, rule or regulation which was the subject of his "disclosures" (see Civil Service
Law § 75-b [2J [a]; Labor Law § 740 [2] [a]).
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Matter of Triola v. Daines
Index No. 10-43821
Page 5
In any event. upon review of the record, the Court finds that the respondents' detennination was
rationally based, i. e., that the petitioner's dismissal was not motivated by bad faith but rather by
unsatisfactory job performance-primarily, his inabilil)' to manage his workload. As for the petitioner's
claim thaI the respondents aeted in bad faith by deviating from their own wTillen policies, it appears that
the respondents complied with their obligations to provide the petitioner with periodic updates as to his
progress and to provide one week's notice prior to the effective date of his tenlllnation (see 4 NYCRR 4.5
Ibll5J [iiil; 1l1atter of Scol1 v Workers' ConrpemwtiolJ Rd. of State of N. Y., 275 AD2d 877, 713 NYS2d
57! 12000"]),and that the respondents offered reasonable explanations for their fai lure to extend the
petitioner's probation for the maximum term, to offer a second probationary term in a different
assignment and with a different supervisor, and to recommend termination at [cast four weeks prior to the
requested termination date.
The petitioner also failed to establish his entitlement to a name-clearing hearing, which is
warranted only if the reasons for the dismissal may be said to affect the petitioner's good name,
repulation, honor, and integrity, and such reasons are publicly disclosed by the respondents (Matter of
Carda v MI/rphy, 104 AD2d 884, 480 NYS2d 726 [1984]). The Court finds that the reasons for the
petitioner's dismissal are not so stigmatizing as to support his request for such a hearing (see Maffer of
Swinton v Saftr, supra).
The Court has reviewed the petitioner's remaining claims and finds them to be without merit.
Accordingly, the petition is denied and the proceeding is dismissed.
Submit judgment.
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