Matter of McDonnell v Lancaster

[*1] Matter of McDonnell v Lancaster 2007 NY Slip Op 51783(U) [17 Misc 3d 1101(A)] Decided on July 23, 2007 Supreme Court, New York County Schlesinger, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 23, 2007
Supreme Court, New York County

In the Matter of the Application of Kennedy McDonnell, Petitioner,

against

Patricia J. Lancaster, as Commissioner, New York City Department of Buildings, Respondent.



115677/05



Counsel for Petitioner

Scott E. Agulnick, Esq.

Greenblatt & Agulnick, P.C.

42-26 Bell Boulevard

Bayside, NY 11461

718-352-4800

Counsel for Respondent

Robert J. Anderson, Esq.

Corporation Counsel

100 Church Street

New York, NY 10007-2601

212-788-0860

Alice Schlesinger, J.

Petitioner Kennedy McDonnell commenced this Article 78 proceeding to challenge respondent's decision to discharge him from his position as a Plumbing Inspector for the New York City Department of Buildings. By decision and order dated July 31, 2006, this Court determined that a hearing was needed to determine whether, as petitioner claimed, Mr. McDonnell was discharged in violation of the "whistleblower" protections codified in Civil Service Law §75-b based on his report to the Department of Investigations of a bribery attempt, or whether, as respondent claimed, the Department of Buildings made a good faith determination to discharge petitioner, a provisional employee, for work-related reasons. Specifically, this Court stated as follows:

A hearing pursuant to CPLR 7804(h) is necessary to determine whether Petitioner is entitled to CSL §75-b protection. Although I have found that the bribery attempt here can constitute the type of conduct protected by CSL §75-b, the Court must determine whether the reporting requirement of CSL §75-b(2), subd. (b), has been met. If the reporting requirement has not been met, then Petitioner's claim must fail. However, if the Court determines that the reporting requirement has been met, then the burden will shift to the Respondent to prove the existence of a good faith basis for Petitioner's termination. See Chamberlin v. Jacobson, 260 AD2d 317 (1st Dep't 1999). If Respondent proves that Petitioner was discharged for a reason independent of his disclosure of the whistleblowing information, Petitioner's claim under CSL §75-b must fail. However, since there is conflicting information pertaining to the existence of an independent basis for Petitioner's termination, this material issue of fact must also be addressed at the CPLR 7804(h) hearing.

The Witnesses at the Hearing

The hearing was held on April 5 and 6 of 2007. At the outset, the City indicated that it was no longer disputing the first point as to whether the reporting requirement had been met. (TR 1-14).[FN1] [*2]The burden then shifted to the City to prove the existence of a good faith basis for the termination of Mr. McDonnell's employment, independent of the attempted bribery report.

The City called five witnesses: Mark Sanabria the Executive Director of Internal Affairs and Discipline who made the ultimate decision to discharge petitioner based on information provided by others in the Department; Daniel Prendergast, the Chief in the Bronx department where petitioner worked for part of his tenure; Assistant Chief Plumbing Inspector Daniel Colone who participated in petitioner's training in the Bronx; Technical Director Robert Daly, a supervisor in the Manhattan department where petitioner worked for part of his tenure; and Manhattan Chief Arthur Cordes, another supervisor in Manhattan. These witnesses testified to various work-related reasons for the termination of petitioner's employment based on various observations made by DOB employees. These observations ranged from petitioner's personal practices, such as an aversion to dirty hands, to his contentious interactions with others on the job.

The testimony offered by the DOB witnesses tended to support respondent's assertion that petitioner was discharged because he lacked an ability to work well with others, including fellow employees and plumbers whose work he was inspecting. However, at no time did respondent dispute that petitioner possessed all the technical qualifications for the job. Petitioner himself then testified, justifying from his point of view each and every action for which he had been criticized.

The Applicable Rule of Law

The parties agree that petitioner Kennedy McDonnell was a provisional employee who worked for 10 weeks, from May 9, 2005 until his discharge on July 15, 2005. It is well established that a provisional 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..." Brown v. City of New York, 280 AD2d 368, 370 (1st Dep't 2001), citing Matter of Swinton v. Safir, 93 NY2d 758, 762-763; Matter of Preddice v. Callanan, 69 NY2d 812. As applied here, this rule of law compels the Court to determine whether the decision to terminate petitioner's employment was made in bad faith and in violation of CSL §75-b because it was "the culmination of an effort to silence his whistleblowing' activities," or whether the decision was made in good faith based on job performance. Rameau v. Cannan, 141 AD2d 454, 454-55 (1st Dep't 1988).

The issue is not whether this Court agrees or disagrees with respondent's decision, as the Court may not substitute its judgment for respondent's. For as noted above, respondent may offer no reason or any reason for its decision to terminate Mr. McDonnell as a provisional employee, so long as the reason does not violate the law. Thus, the only issue is whether the evidence establishes that the decision to discharge was made in bad faith based upon petitioner's June 23, 2005 report to the Department of Investigation of a bribery attempt. Beacham v. Brown, 215 AD2d 334, 335 (1st Dep't 1995), lv. den., 87 NY2d 801. While the respondent has the burden of going forward with proof that the termination was made in good faith based on work-related reasons, once that has been done, the petitioner bears the ultimate burden of proving that the dismissal was for an improper reason; i.e., based on his report of the bribery attempt and in violation of CSL §75-b. Beacham, 215 AD2d at 334, citing Matter of Anonymous v. Codd, 40 NY2d 860.

The burden on petitioner, as a provisional employee, is a difficult one to meet, as the proof must effectively demonstrate that "petitioner was terminated solely in retaliation for his purported whistleblowing disclosures." Chamberlin v. Jacobson, 260 AD2d 317 (1st Dep't 1999), citing CSL §75-b(3)(a);(4); and Matter of Crossman-Battisti v. Traficanti, 235 AD2d 566, 568. Thus, in [*3]Chamberlin, the Appellate Division affirmed the trial court's dismissal of the Article 78 proceeding when the proof established that petitioner was terminated because of budgetary concerns and his lack of the appropriate professional background. Similarly, in Johnson v. Katz, 68 NY2d 649 (1986), the Court of Appeals affirmed the Third Department's reversal of the trial court and upheld the dismissal of the Article 78 proceeding, stating (at p. 650) as follows:

Evidence in the record supporting the conclusion that performance was unsatisfactory establishes that the discharge was made in good faith (Matter of King v. Sapier, 47 AD2d 114, 116, affd on opn below 38 NY2d 960; see, Matter of York v. McGuire, 99 AD2d 1023, affd 63 NY2d 760; Matter of Matsa v. Wallach, 42 AD2d 1004, 1005, affd 34 NY2d 891). Special Term had before it affidavits of petitioner's supervisors detailing "continuing problems concerning her relationships with other staff" and a meeting with petitioner at which such problems were discussed; a performance appraisal report prepared two months before her termination showing a comparatively low rating regarding her ability to communicate with staff and others; and petitioner's own lengthy correspondence explaining various problems she had with fellow employees. In the face of such evidence establishing good faith in her termination, no material issue of fact was raised by petitioner's disputed assertion that the facility deputy director told her she was being discharged to protect other employees from scheduled layoffs.

The Evidence Adduced at the Hearing

Having carefully reviewed the evidence adduced at Mr. McDonnell's hearing in this case, this Court finds that the proof fails to demonstrate that respondent terminated petitioner's employment in bad faith "solely in retaliation for his purported whistleblowing activities" as required by Chamberlin and the other cases discussed above. On the contrary, respondent's witnesses persuasively testified to work-related issues similar to those in Johnson such as continuing problems concerning Mr. McDonnell's relationships with staff. Some of that evidence follows.

Petitioner began his training in Manhattan on May 9, 2005 for about two weeks, continued training in the Bronx for a few weeks, and then returned to Manhattan on June 3, 2005. Robert Daly, a Manhattan supervisor, persuasively testified that he made his decision to discharge petitioner at or about June 10, weeks before the alleged whistleblowing activities related to the June 23 bribery attempt (TR 191-92). Arthur Cordes, Manhattan Chief Plumbing Inspector, and Bronx Chief Daniel Prendergast similarly testified that their termination decisions pre-dated the bribery report. (TR 264-65; 77). Executive Director Sanabria, who made the final decision, confirmed that he did not learn of the bribery incident until some time in July, well after his decision had been made. (TR 30-31).

In addition, the various DOB witnesses all proffered work-related reasons for Mr. McDonnell's discharge. Although petitioner's technical expertise was not questioned, his encounters with DOB supervisors and staff, as well as with on-site plumbers and other professionals, often ended in conflict. For example, Bronx Inspector Colone testified that Mr. McDonnell routinely questioned him or commented inappropriately about people's ethnicity, failed to introduce himself to plumbers before commencing an inspection, and "always started arguments about ways things were done." (TR 125-27, 137-40). Bronx Chief Daniel Prendergast confirmed that petitioner frequently argued with other inspectors. (TR 75-76, 79). Daly's testimony similarly confirmed that petitioner frequently argued with supervisors, staff and professionals in the field, resulting in complaints to the [*4]Department. (TR 171, 198). Arthur Cordes noted problems with petitioner's tendency to get into arguments and his failure to complete required inspections. (TR 261). The written Performance Evaluation completed on July 1 by Robert Daly, while post-dating the bribery, corroborated these work-related problems with petitioner's employment. (Pet. Exh. 1).

In response, Mr. McDonnell established his excellent credentials and his goal of strict application of the laws he was hired to enforce. His report of the bribery attempt was consistent with his goals and appropriate under the law, even in the eyes of DOB. Mr. McDonnell also offered his explanation for the various "arguments" about which respondent's employees complained. However, these explanations, which included a May 30, 2005 letter from Mr. McDonnell to Deputy Chief Horaldo Blanco (Pet. Exh. 3) and Mr. McDonnell's June 24, 2005 written report to the Department of Investigation (Resp. Exh. F), tended to support, rather than belie, the testimony that petitioner, while well-intentioned, often experienced conflict while on the job.

Petitioner argues in his post-hearing memorandum that he should prevail because respondent acted in bad faith by relying for its decision, at least in part, on petitioner's personality traits, such as his tendency to use hand wipes in the field, and largely ignored his technical expertise. But even if that were true, it is not dispositive. Petitioner's suggestion that respondent must make a showing of "good faith" which somehow surpasses a reliance on job performance finds no reasonable support in the case law and is, in fact, contradicted by cases such as Johnson. So long as the evidence does not establish that the termination was based on petitioner's whistleblowing activities, then the various job-related reasons proffered are sufficient.

For as stated above, petitioner as a provisional employee has virtually no job protection. Respondent was free to discharge petitioner for any reason or no reason, so long as the decision was not made in retaliation for petitioner's whistleblowing activities. When viewed as a whole, the evidence fails to prove that petitioner was discharged in violation of CSL §75-b based on his June 23, 2005 report of a bribery attempt. Therefore, his petition must fail.

Accordingly, it is hereby

ADJUDGED that the Article 78 petition is denied and this proceeding is dismissed, without costs or disbursements.

This constitutes the decision and judgment of this Court.

Dated: July 23, 2007

________________________

J.S.C.

Counsel for Petitioner

Scott E. Agulnick, Esq.

Greenblatt & Agulnick, P.C.

42-26 Bell Boulevard

Bayside, NY 11461

718-352-4800

Counsel for Respondent

Robert J. Anderson, Esq.

Corporation Counsel

100 Church Street [*5]

New York, NY 10007-2601

212-788-0860 Footnotes

Footnote 1:"TR" refers to pages in the hearing transcript.