Matter of Maioli v Board of Coop. Educ. Servs.

[*1] Matter of Maioli v Board of Coop. Educ. Servs. 2006 NY Slip Op 52673(U) [21 Misc 3d 1142(A)] Decided on January 10, 2006 Supreme Court, Monroe County Frazee, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 10, 2006
Supreme Court, Monroe County

In the Matter of the Application of Thomas Maioli, Petitioner,

against

Board of Cooperative Educational Services, FIRST SUPERVISORY DISTRICT OF MONROE COUNTY, Respondent.



2005/01067



ames R. Sandner, General Counsel

800 Troy-Schenectady Road

Latham, NY 12110-2455

Appearing on behalf of the petitioner

By: Gary Johnson, Esq., of Counsel

Harris, Beach, PLLC

99 Garnsey Road

Pittsford, New York 14534

Appearing on behalf of the respondent

By: Edward A. Trevvett, Esq., of Counsel

Evelyn Frazee, J.

In this CPLR Article 78 proceeding, petitioner Thomas Maioli (Maioli) [*2]

challenges his dismissal by the respondent Board of Cooperative Educational Services, First Supervisory District of Monroe County (BOCES).[FN1] Petitioner alleges that BOCES violated Rule XVI(5) of the Monroe County Civil Service Commission and 4 NYCRR §4.5(b)(5)(iii) and acted in bad faith in terminating him from his probationary position as senior network technician and seeks reinstatement with back pay and benefits.

This Court issued a written decision dated April 15, 2005, finding that a hearing was required. The hearing was held and counsel for the parties have now submitted their memoranda of law.

BACKGROUND

On October 7, 1996, petitioner was hired by BOCES as an AV repair assistant. On November 10, 1997, he was appointed to the provisional civil service title of computer hardware installer. Petitioner passed a civil service exam and became a permanent appointee, effective March 24, 1998. In March, 2000, petitioner passed the civil service test for network technician and was appointed to that position, effective on or about June 30, 2000. On August 1, 2001, petitioner was assigned as a senior network technician at the Webster School District [FN2] with the proviso that he had to perform well enough on the senior network technician civil service exam to be eligible for appointment to that position.[FN3] After satisfactorily passing the civil service test for senior network technician on his second attempt, petitioner was given a probationary appointment to that position for one year, effective April 11, 2004.

While performing his senior network technician job duties at the Webster School District, but before his official probationary appointment began on April 11, 2004, petitioner was counseled by memo dated July 2, 2003, and revised August 7, 2003, for behavior issues relating to his performance. This e-mail followed a meeting on or about June 23, 2003. Bonnie Garner (Garner), Assistant Superintendent for Technology for BOCES, testified that the principal at the Webster School District called her to complain that the petitioner had made inappropriate comments in front of female staff members and two young female students and that he also sent an inappropriate e-mail to staff. The comments concerned the petitioner playing a sound-bite on his computer of the sound "schawing" when the female students walked into the room. Garner testified that she later learned that the sound "schawing" was from the film "Wayne's World," and signified an adult male getting an erection after seeing a young woman. Petitioner's e-mail related to the Webster staff's attempts to come up with a name for a committee. Petitioner sent the staff an e-mail with the text message "Here's my joint' Kelly see attached picture" with the attached picture being that of an African- American male [*3]smoking a huge marijuana joint. Petitioner acknowledged that at the June 23, 2003 meeting at which these incidents were discussed, he was told that he must behave in a professional manner and that similar incidents could lead to his discipline. In addition, the petitioner was, at the Webster School District's insistence, removed from their district. BOCES reassigned him to the East Irondequoit School District.

On February 27, 2004, petitioner received a second counseling memo regarding his performance as a senior network technician, this time at the East Irondequoit School District. The memo was from Sheila Wallenhorst (Wallenhorst), Director of Human Resources from BOCES, and stated, in relevant part, as follows:

This memo is a summary of our meeting from Tuesday, February 24, 2004. As I stated in this meeting, the topics that were covered were serious and if your past behavior continued, BOCES will go forward in requesting a section 75 hearing and seek termination of your position.

On February 18, 2004, we met at the Foreman Center with Kathy Scheible, Bill Metherell and Joe Sutorius. The meeting concerned behavior issues that were brought to our attention by the East Irondequoit School District. We discussed Mr. Sutorius' concern in regard to you overstepping your job responsibilities and the need for you to take and follow directives from your supervisor. The three key examples were the installation of a color printer, scheduling a vendor in a staff meeting, and the sending of an e-mail to the East Irondequoit Central Office. All of these situations could have been avoided if you had taken directives and followed through with your supervisor's request.

Another topic that Mr. Sutorius discussed was your interaction with a co-worker in the East Irondequoit School District. Your reaction to his e-mail was inappropriate and I must remind you that back in July 2003, we asked you to always be professional when interacting with our school districts. Please understand that this expectation is still in effect.

Again, going back to July 2003, we asked that e-mail only be used when appropriate. In two instances since July, you have used e-mail inappropriately. The first was December 1, 2003, to a co-worker and the second time was an e-mail dated February 12, 2004, to the East Irondequoit Central Office. I will remind you again, that e-mail must be used appropriately and professionally.

We also discussed and you agreed that you would seek help through our EAP program that is run by the Health Association. The information is enclosed. We are currently looking at workshops that may help you in improving your interpersonal communication skills.

In summary, I am going to reiterate to you, what Bonnie Garner told you in her memo from last August. The expectation for you is to always be professional when discussing BOCES and/or other districts, avoid inappropriate use of the BOCES e-mail system, and that you represent yourself, colleagues, supervisors, and employer in a positive and professional manner. I will also add that you must take directives from [*4]your new supervisor, Mary Camelio and that you must also follow through with her requests.

Tom, your behavior must improve according to the guidelines listed above. If your behavior does not improve, then BOCES will follow through with a request for a section 75 hearing and seek termination of your position.

Petitioner testified that he was told that the reassignment from East Irondequoit School District to Mary Camelio's department at BOCES in Fairport, New York, was to be a fresh start and that Mary Camelio (Camelio), the Coordinator of Technology Services at BOCES, was purposely not told about any of his past performance problems.

Camelio testified that petitioner first came to her department in March, 2004. She testified that she met with him and discussed how work was assigned, the schedule of regular meetings, and what the meetings would entail. Camelio told petitioner that his assignments would come through her except that in emergencies, he might get a call from the help desk when he was troubleshooting. Petitioner testified that his assignments came from the help desk [FN4] and that once in a while, Camelio would give him an assignment.

Camelio testified that she had issues with petitioner's performance on the first project she assigned him which entailed upgrading the classroom computers from an older operating system 98 to a newer Windows XP. She wanted petitioner to produce an image that would allow their software to work on that operating system. According to Camelio, petitioner worked on this project from March until the end of May and that three attempts to produce the image in the classroom failed. She testified that finally she received a rather irate note from one of the teachers who has an expertise in technology stating that the image was pathetic and getting worse with each test. Camelio testified that she took petitioner off the project and assigned it to another technician two grades lower than petitioner, who successfully completed the project before the start of the school year in September, 2004.

Petitioner had a different version. He testified that he did not test the programs in the classroom and that he was not taken off the project. Rather, he continued on the project up to the time he was terminated. According to petitioner, another senior network technician could not get the project to work either. Petitioner testified that the only comment Camelio made to him about the assignment was that she was going to take the project in a different direction.

The second issue that Camelio had with the petitioner's performance was that in August, 2004, he updated a teacher's laptop computer without being assigned to do so. The teacher called to report that the upgrade was missing something which Camelio [*5]testified resulted in ". . . a dissatisfied person who wanted something else on a computer that now was not working. It was not on the priority list at the time for him to do that." Camelio testified she met with petitioner and expressed her concerns and then sent petitioner an e-mail on August 20, 2004, regarding this incident, which read:

Tom

Per our conversation on Friday afternoon, I want to make sure that you understand that non trouble call work assignments should come through me. If staff ask for work to be done, you should have them contact me. You can also bring requests to my attention. However, unless you have been assigned a task, please do not take it upon yourself to comply. This is in regard to Brian Hart's laptop reimage.

Thanks.

The third issue which Camelio had with petitioner's performance arose when he was asked in September, 2004, to install Lotus Notes on a teacher's computer. Petitioner testified that the computer was a Macintosh computer, that he is a PC technician, not a Macintosh technician, and, therefore, he called the help desk and informed them that they needed to send out a Macintosh technician.

On September 9, 2004, Camelio forwarded an e-mail to petitioner which she received indicating that petitioner was "not familiar with the installation on a Mac so someone from BOCES will have to do it." In forwarding the e-mail, Camelio wrote to petitioner "Just an FYI I sent Matt to do this. But you should feel free to call us if we can talk you through a process. The set up is quite similar." Camelio testified that she reassigned the work to a hardware installer, two grade levels below petitioner, who completed the task. She also testified that there is no distinction between a PC technician and a Macintosh technician and that any senior network technician should have been able to do this work.

The fourth issue that Camelio had with the petitioner's performance resulted from what she described as an "irate e-mail from a teacher saying that Tom had not fixed the problem [with a CD writer in a computer lab] and had insulted the teacher saying that there was nothing wrong with the computer, but the teacher needed training." Petitioner admitted that he told the teacher to get some training. Camelio again reassigned this work to a hardware installer who fixed what turned out to be a hardware problem.

Following the fourth incident, Camelio testified that she felt that she could not assign petitioner work and she wrote a September 15, 2004 memo to her supervisor, Garner. The memo states:

Near the end of the last school year, I was asked to take Tom Maioli as a senior level shared technician for the remainder of school year and the summer months as an extra set of hands. Due to the following incidents, I am reluctant to continue assigning work to Tom for the BOCES campus.

As a senior technician, I expected Tom to be able to set up a working system for Windows XP and sufficiently test and improve an image. After many attempts, he was [*6]unable to produce a satisfactory image and I had to reassign the work to other staff.

In August, Tom took it upon himself to update a computer at the request of a teacher. This was not assigned to him by me. I spoke to Tom about this inappropriate decision and sent Tom an email memo.

During the first week of school this year, Tom was assigned by you to work in the Fairport school district. I had called their help desk to ask for help with an email ID install for one of our BOCES teachers working in the Northside School in the Fairport School District. The help desk sent Tom to do this. They reported back to me that Tom would not do the work because it was a Macintosh computer. I would expect a senior level technician to be able to troubleshoot either computer platform. Tom could also have called one of our techs to help talk him through that process if he needed help. I did write an email memo to Tom advising him of this process, but received no reply.

On September 14th, I received an email from an irate computer technology teacher. Tom was asked to fix a problem with a CD burner. He said he could not fix it and told the teacher he (the teacher) needed training to be able to use the equipment. A different technician had to be sent to resolve the problem.

As you know, the beginning of the school year is a very busy time for us. I need to know that the technicians I assign will complete the work in a timely manner and will interact appropriately with our customers. Please feel free to call me if you have any questions about this matter.

On September 21, 2004, petitioner and his union representatives met with Camelio and Wallenhorst and discussed the concerns about his work, as outlined in the September 15, 2004 memo.[FN5] Wallenhorst told petitioner she would investigate and get back to him. Petitioner was placed on administrative leave.

In a letter dated September 29, 2004, petitioner was informed by Wallenhorst that BOCES was terminating his employment effective October 30, 2004. The BOCES board voted to approve the termination at its January 6, 2005 meeting.

Petitioner argues that BOCES violated Rule XVI(5) of the Monroe County Civil Service Commission and 4 NYCRR §4.5(b)(5)(iii) by terminating him without any supervisor having advised him from time to time of his status or progress on probation. In making this argument, petitioner asserts that any notice given to him of unsatisfactory job performance prior to the start of his official probationary term as senior network technician on April 11, 2004 is irrelevant. Additionally, petitioner argues that since BOCES approved his continued appointment as a senior network technician in July, 2004 for the coming school year, his termination in September, 2004, was done in bad faith thus entitling him to reinstatement with back pay and benefits.

DISCUSSION[*7]

It is well-established that a probationary civil service employee may be discharged for any or no reason at all in the absence of a showing that his or her dismissal was in bad faith, for a constitutionally impermissible purpose or in violation of law (Matter of Swenton v Safir, 93 NY3d 758, 762-763 [1999]; Taylor v State University of New York, 13 AD3d 1149 [4th Dept, 2004]).

The petitioner first claims that his termination was in violation of law, to wit: Rule XVI(5) of the Monroe County Civil Service Commission and 4 NYCRR §4.5(b)(5)(iii) in that his supervisor did not advise him of his status and progress during his probationary term.

Rule XVI(5) of the Rules of the Monroe County Civil Service Commission provides:

The probationer's supervisor shall carefully observe his/her conduct and performance and, at least two (2) weeks prior to the end of the probationary term, shall report thereon in writing to the proper appointing authority. The supervisor shall also, from time to time during the probationary term, advise the probationer of his/her status or progress. A probationer whose services are to be terminated for unsatisfactory service shall receive written notice at least one (1) week prior to such termination and, upon request, shall be granted an interview with the appointing authority or his/her representatives.

4 NYCRR §4.5(b)(5)(iii) provides:

The probationer's supervisor shall carefully observe his conduct and performance and, at least two weeks prior to the end of the probationary term, shall report thereon in writing to the proper appointing authority. The supervisor shall also, from time to time during the probationary term, advise the probationer of his status and progress. A probationer whose services are to be terminated for unsatisfactory service shall receive written notice at least one week prior to such termination and, upon request, shall be granted an interview with the appointing authority or his representative.

Initially, the Court rejects the petitioner's contention that termination within his probationary period could not validly include misconduct predating the commencement of his official probationary period (see, Fraser v Safir, 282 AD2d 334 [1st Dept, 2001], lv denied 96 NY2d 718 [2001]; Garrett v Safir, 253 AD2d 700 [1st Dept, 1998], lv denied 92 NY2d 817 [1998]). Here, petitioner was provided a meeting on June 23, 2003, and a memo on July 2, 2003, revised August 7, 2003, regarding two incidents of unsatisfactory job performance at the Webster School District. He was removed from that district and assigned to the East Irondequoit School District. Other unsatisfactory job performance issues arose at the East Irondequoit School District, and these were discussed with petitioner at a meeting on February 24, 2004 and in a counseling memo dated February 27, 2004. At that time, he was provisionally appointed to the senior network technician position. These meetings and memos provided petitioner notice of his status and progress (see, Fraser v Safir, supra; Garrett v Safir, supra; Matter of Atkinson v Koch, 161 AD2d 152 [1st Dept, 1990]).

Moreover, petitioner's termination was justified by additional incidents which [*8]occurred during his official probationary term and of which he was advised. The record demonstrates that between March and September, 2004, petitioner's supervisor, Camelio, had issues with petitioner with regard to (1) the Windows XP project; (2) updating a teacher's laptop without being assigned to; (3) inability to install Lotus Notes; and (4) inability to correct a hardware problem with a CD writer and informing a teacher to get some training. The Court finds credible the testimony of Camelio that she provided petitioner verbal feedback directly and during staff meetings on the Windows XP project, and that she took petitioner off the project. The Court also finds credible the testimony of Camelio that she met with petitioner after he updated a teacher's laptop without being assigned to do so and explained

her dissatisfaction with his conduct. Additionally, Camelio sent him an e-mail concerning the incident. Following the third incident involving the petitioner's failure to install Lotus Notes on a Macintosh computer, Camelio, on September 9, 2004, sent petitioner an e-mail reminding him to call her to work through the installation process. Following the fourth incident, Camelio contacted her supervisor, Garner, and the result was the September memo and resulting meeting with petitioner.

It has been held that substantial compliance with 4 NYCRR §4.5(b)(5)(iii) is sufficient because "the primary purpose of civil service laws and rules is to promote the good of the public service, which purpose is not to be frustrated by technical or narrow constructions" (Schuman v Westchester County Health Care Corporation, 304 AD2d 585 [2nd Dept, 2003] quoting Matter of Rosenberg v Wickham, 36 AD2d 881, 882 [3rd Dept, 1971]). Here, the record reveals that petitioner was notified orally and in writing of unsatisfactory performance and warned of the possibility of termination. The respondent substantially complied with Rule XVI(5) of the Monroe County Civil Service Commission and 4 NYCRR §4.5(b)(5)(iii).

Additionally, petitioner has failed to sustain his burden of showing that his discharge was arbitrary and capricious or made in bad faith (see, Taylor v State University of New York, supra; Smith v New York City Department of Correction, 292 AD2d 198 [1st Dept, 2002]; Scott v Worker's Compensation Board of the State of New York, 275 AD2d 877 [3rd Dept, 2000]).

The petition is dismissed.

Dated at Rochester, New York

this 10th day of January, 2006.



Honorable Evelyn Frazee

Justice Supreme Court Footnotes

Footnote 1:BOCES has a campus at Fairport, New York, and three component school districts, the Webster School District, the Fairport School District, and the East Irondequoit School District.

Footnote 2:Petitioner's BOCES supervisor was at the BOCES facility in Fairport, New York, while his on-site supervisor was employed by the Webster School District.

Footnote 3:BOCES approved an adjustment in petitioner's salary from the rate of a network technician to the rate of senior network technician at a meeting on August 30, 2001. Petitioner's formal title was not changed at that time and his duties remained the same.

Footnote 4:The record reflects that BOCES had a central location called a help desk that people would call with their computer problems. If the help desk could not solve it, they would contact a technician who would be dispatched to solve it.

Footnote 5:Petitioner testified he has no recollection of discussing the Windows XP issue at this meeting.