Matter of Rivera v New York State Div. of Human Rights

[*1] Matter of Rivera v New York State Div. of Human Rights 2008 NY Slip Op 50273(U) [18 Misc 3d 1133(A)] Decided on February 13, 2008 Supreme Court, New York County Bransten, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through March 18, 2008; it will not be published in the printed Official Reports.

Decided on February 13, 2008
Supreme Court, New York County

In the Matter of the Application of Zoraida Rivera, Petitioner,

against

New York State Division of Human Rights and New York City Police Department, , Respondent.



112120/07

Eileen Bransten, J.

In this Article 78 proceeding, petitioner Zoraida Rivera ("Ms. Rivera") seeks a judgment, among other things, annulling the July 13, 2007 determination by the New York State Division of Human Rights ("Human Rights") that there was no probable cause to believe that respondent New York City Police Department ("NYPD") engaged in any unlawful discriminatory practice. She also challenges NYPD's determination to terminate her on October 16, 2006.[FN1]

Human Rights opposes the petition. NYPD opposes the petition as well and cross-moves for its dismissal based on passage of the statute of limitations.

Background

In July 1991, Ms. Rivera began working as a Provisional Civilian Technical Support Aide for NYPD. Verified Petition ("Petition"), Ex. A, at 1; Ex. B. Over the years she signed letters acknowledging her understanding that she could be replaced for failure to maintain satisfactory work performance and could be terminated if a civil service list was established. Petition, Ex. A, at 1-2.

In January 2003, Ms. Rivera was assigned to the 124 Room at the 13th Precinct, where her responsibilities included receiving and documenting complaints from the public, [*2]data input, and answering calls. Her immediate supervisor was Senior Police Administrative Aide Patricia Herman ("SPAA Herman"), who is African American. Petition, Ex. A, at 2.

On September 15, 2003, Ms. Rivera received a negative evaluation from SPAA Herman. Petition, Ex. B. The "Overall Evaluation" indicated that she was "below standards" and the recommendation for assignment was that she be given "lesser responsibility" because she "needs constant supervision." Id. Specifically, SPAA Herman commented: "[Ms. Rivera] could be a productive worker, but fails to listen and adhere to formal instructions. She fails to make necessary notifications. PAA Rivera fails to get along with several members of the command, both Uniform and peers. Need to improve Sick record; Sick record is too high."

Id.

On February 19, 2004, PRAA Albert Molinet evaluated Ms. Rivera and also concluded that her overall performance was "below standards." PRAA Molinet explained: "No rapport with peers * * *. Not helpful to Officers in the 124 Room saying ("I don't know how to do that," etc.) officers will go to other workers in the 124 Room to avoid her. After assigned to the Complaint Room for a year now, PAA Rivera claims not to be proficient at the basic applications needed to discharge her assigned duties * * * . Keeps entering her codes wrong, therefore, she is purged from the system, and then she will claim, "my code doesn't work." Poor communication with Supervisors, she has had several confrontations with Lieutenants and Sergeants. Sick leave is high, needs improvement."

Petition, Ex. B.

In April 2004, Ms. Rivera was called to One Police Plaza. She signed a letter titled "Notification of Placement Into Performance Monitoring," acknowledging that she understood that she would be closely monitored and that continued "poor performance or the accrual of negative performance evaluations while in [the] program [would] result in disciplinary action being commenced, possibly resulting in termination." Petition, Ex. A.

On May 19, 2004, Ms. Rivera received another "below standards" evaluation from Lieutenant Dennis Keogh. The evaluation set forth that Ms. Rivera's productivity in the complaint room was "way too low," that she had little or no "rapport with peers" and that her "attitude towards her work must improve." Petition, Ex. B.

On August 3, 2005, PRAA-II Audrey Torres evaluated Ms. Rivera and initially found her work to be "below standards," concluding that:

"PAA Rivera continues to have severe personal and professional conflict with her immediate supervisor and several other members of the command. These conflicts continue to have a negative impact on PAA Rivera's overall rating as well as the command. The [*3]continued refusal of ratee to be present in complaint room with her immediate supervisor displays an unwillingness to follow instructions and departmental procedure. PAA Rivera's sick leave remains high and [she] has several absences without proper documentation."

Petition, Ex. B.

Later, that day, however, PRAA-II Torres revised the evaluation and found that Ms. Rivera's performance "meets standards." In the new evaluation, PRAA-II Torres commented that "Ratee must continue to work on her willingness to receive instruction re: daily operations and procedure of the complaint room from her supervisor. PAA Rivera's sick record remains somewhat high and should be improved."

Petition, Ex. B.

On February 4, 2006, Ms. Rivera passed the Department of Citywide Administrative Services' ("DCAS") Open Competitive Police Administrative Aide Exam no. 2017. Petition, Ex. A, at 3.

On February 23, 2006, Ms. Rivera's performance was again evaluated by PRAA-II Torres, who found that overall Ms. Rivera's performance was "Above Standards" and that she "continued to display above standard performance with her interaction with complainants in the complaint room. Her absence and tardiness [is] much improved and well within Department guidelines." Petition, Ex. B.

Because Ms. Rivera passed DCAS's exam, her name was forwarded to NYPD to determine whether she would be permanently appointed or terminated. Id. NYPD compiled and reviewed her employment record.

On October 16, 2006, NYPD terminated Ms. Rivera.

On January 17, 2007, Ms. Rivera filed a complaint with Human Rights, alleging that NYPD had engaged in unlawful discriminatory employment practices based on her national origin and gender. Petition, Ex. A, at 1.

On July 13, 2007, Human Rights issued a Determination and Order After Investigation ("Determination"), setting forth: "After investigation, and following opportunity for review of related information and evidence by the named parties, the Division has determined that there is NO PROBABLE CAUSE to believe that [NYPD] has engaged in or is engaging in the unlawful discriminatory practice complained of. * * *"Our investigation has failed to uncover evidence substantiating [Ms. Rivera's] allegation that [NYPD] engaged in unlawful discriminatory practice because of race and sex." * * * The record suggests that [Ms. Rivera's] termination was for the non-discriminatory reason that [NYPD] viewed her work record negatively. The record further indicates that [NYPD] also issued the same letters to similarly [*4]situated non-Hispanic female and male provisional employees who were also terminated."[NYPD] articulated legitimate, non-discriminatory reasons for its decisions respecting [Ms. Rivera's] employment that were not shown by [Ms. Rivera] to be pretextual. The allegations, standing [alone], are insufficient to find for [Ms. Rivera]. The investigation failed to uncover a causal nexus between the treatment of which she complains and the basis of the allegations cited in this complaint."The complaint is therefore ordered dismissed and the file is closed."

Petition, Ex. A.

In August 2007, Ms. Rivera commenced this Article 78 proceeding, challenging her October 16, 2006 termination and Human Rights' July 13, 2007 finding of no probable cause. See, Petition and Reply Affidavit. She asserts, among other things, that if her work was negative, NYPD would not have kept her on the job for 15 years. She further contends that many of the individuals who gave her negative evaluations were part of a "big circle of friends" who teamed up against her and treated her unfairly. Ms. Rivera points out that evaluations should be based on performance, not whether one is "liked or unliked." Petition. She stresses that she'll "never understand why [she] was terminated after 15 years of service with [NYPD] and * * * why [Human Rights] dismissed [her] case, upon [its] investigation." Petition. Ms. Rivera requests a judgment restoring her job and awarding her back pay.

NYPD and Human Rights oppose the petition and NYPD cross-moves for its dismissal on statute of limitations grounds. Because its determination to terminate Ms. Rivera was made on October 16, 2006, NYPD argues that she had until February 16, 2007 to challenge the decision. Her petition, however, was not filed until August 30, 2007six months after expiration for the applicable four-month statute of limitations. Memorandum of Law in Support of Respondent New York City Police Department's Cross-Motion to Dismiss the Petition ("Opp."), at 7.

NYPD also urges that Human Rights' finding of no probable cause was neither arbitrary nor capricious since Ms. Rivera had "substandard work performance." Opp., at 9. Additionally, NYPD terminated "similarly situated non-Hispanic female and male provisional employees at or around the time of [Ms. Rivera's] termination." Opp., at 9. In sum, NYPD contends that Ms. Rivera's "conclusory allegations fail to demonstrate that [Human Rights'] determination and Order lacks a rational basis. She provides no evidence to establish that her supervisors' repeated warnings as to her job performance were gender or national origin motivated. Nor does [she] provide any evidence to establish that the nondiscriminatory reasons proffered by [NYPD] for terminating her employment were not [*5]its true reasons, but merely a pretext for discrimination." Opp., at 10.

Analysis

Human Rights' "No Probable Cause" Determination

It is well-settled that the standard for judicial review of an administrative determination pursuant to CPLR Article 78 is limited to inquiry into whether the agency acted arbitrarily or capriciouslywithout any sound basis in reason. Matter of Pell v. Board of Educ., 34 NY2d. 222, 231-232 (1974); see also, Matter of Arrocha v. Board of Educ., 93 NY2d 361, 363 (1999). Judicial review is not intended to weigh the merits of competing professional opinions because doing so undermines the function, authority and expertise of administrative agencies. See, Matter of Arrocha v. Board of Educ., supra, 93 NY2d, at 363. Provided there is someindeed, anyrational basis or credible evidence to support an administrative determination, the agency's decision must be upheld. See, Matter of Pell v. Board of Educ., supra, 34 NY2d, at 231; Matter of Guzman v. Safir, 293 AD2d 281 (1st Dep't 2002) (determination was not arbitrary and capricious "because there was some credible evidence to support the Board's conclusion"), lv. denied 98 NY2d 614 (2002).

More specifically, a "no probable cause" determination by Human Rights "will not be set aside unless it is found to be arbitrary and capricious" as the agency has "broad discretion in determining the method to be employed in investigating a claim." See, McFarland v. New York State Div. of Human Rights, 241 AD2d 108, 112 (1st Dept. 1998); see also, State Office of Drug Abuse Servs. v. State Human Rights Appeal Bd., 48 NY2d 276, 284 (1979); Albert v. Beth Israel Medical Ctr., 230 AD2d 695, 697 (1st Dept. 1996); Patel v. New York State Div. of Human Rights, 212 AD2d 715, 716 (2d Dept. 1995), appeal dismissed 87 NY2d 893 (1995) ; Bal v. New York State Div. of Human Rights, 202 AD2d 236, 237 (1st Dept. 1994), lv. denied 84 NY2d 805 (1994).

Here, there is absolutely no evidence that Human Rights' determination was wrong, much less that it was irrational. There is absolutely no indication that NYPD's decision to terminate Ms. Rivera was motivated by any discrimination, particularly since similarly situated non-Hispanic female and male NYPD members were terminated at the same time as Ms. Rivera and her personnel file contained substandard evaluations.

Ms. Rivera fails to offer any proof that the decision to terminate her had to do with her national origin or gender. Her commendations from members of the public and contentions that she was terminated because she was not liked do not demonstrate discrimination. "Absent any proof of unlawful discrimination, [Human Rights] properly concluded that there was no probable cause to believe that [NYPD] had engaged in discriminatory practices in its relationship with petitioner." McFarland v. New York State Div. of Human Rights, 241 AD2d, at 113.

Ms. Rivera was given a full and fair opportunity to present her allegations to Human Rights. She did not meet her burden of showing probable cause as to the discriminatory acts charged. Id.

October 16, 2006 Termination by NYPD [*6]

To the extent that Ms. Rivera seeks to challenge NYPD's October 16, 2006 determination to terminate her employment, the petition is clearly barred by the applicable 4-month statute of limitations. See, CPLR 217(1).

Accordingly, it is ORDERED and ADJUDGED that the petition is denied and the proceeding is dismissed; the cross-motion to dismiss is GRANTED.

This constitutes the Decision, Order and Judgment of the Court.

Dated: New York, New York

February ___, 2008

ENTER:

_________________________

Hon. Eileen Bransten Footnotes

Footnote 1: Ms. Rivera submitted papers and notations along with her petition that were directed "only for the Judge." These materials were not considered by the Court.