Matter of Doe v New York City Police Dept.

[*1] Matter of Doe v New York City Police Dept. 2013 NY Slip Op 50801(U) Decided on May 15, 2013 Supreme Court, New York County Hunter, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 15, 2013
Supreme Court, New York County

In the Matter of the Application of Farhan Doe, Petitioner,

against

New York City Police Department, New York City Civil Service Commission, and New York City Department of Citywide Administrative Services, Respondents.



102960/12



Appearances of Counsel:

ATTORNEY FOR THE PLAINTIFF :

Firm: JEROLD E. LEVINE

Address : 5 SUNRISE PLAZA - SUITE 201, VALLEY STREAM, N. Y. 11580

ATTORNEY FOR THE DEFENDANT :

Firm: NYC DEPT. OF CITIWIDE ADMIN.

Address : 1 CENTRE STREET, 21 FLOOR S., NEW YORK, NEW YORK 10007

ATTORNEY FOR THE DEFENDANT :

Firm: CORPORATION COUNSEL

Address : 100 CHURCH ST, RM 3-301, NEW YORK, NY 10007

Alexander W. Hunter Jr., J.

Two separate motions were filed by the parties in this action. Both motions are decided herein.

The application by petitioner for an order pursuant to Article 78 of the CPLR, annulling and remanding respondents' determination disqualifying petitioner from employment as a New York City Police Department ("NYPD") police officer, and enjoining respondents from [*2]disqualifying petitioner from future police officer employment upon any bases violative of petitioner's right to freedom of religious belief, is denied with costs and disbursements to respondents. The application by petitioner for an order granting leave to maintain the instant proceeding with a "Doe" caption, is denied.

Petitioner commenced the instant proceeding with an anonymous "Doe" caption without leave of court. Subsequently, petitioner's counsel contacted respondents' counsel privately and notified them of petitioner's real name and other identifying data. After commencing the instant proceeding, petitioner's counsel spoke to several press outlets about the instant proceeding.

In 2009, petitioner applied for appointment as an NYPD cadet under exam number 2210. As part of petitioner's employment investigation, he was directed to appear for a pre-appointment psychological interview. In the candidate psychological disqualification summary dated June 3, 2009, an NYPD psychologist found that petitioner was psychologically unsuitable for appointment as an NYPD cadet due to a combination of factors including: (1) depression because psychological testing suggested the presence of depressive feeling and social withdrawal; (2) bias because petitioner answered in the affirmative to the question "Do you think that homosexuals should be locked up?" and stated that he believed that homosexual people were criminals and should be incarcerated to keep them from committing any more crimes; and (3) poor work history because petitioner dropped out of high school, took two years to complete his GED, and had never even held a part-time job. (Respondents' exhibit 1).

In 2010, petitioner passed civil service exam number 8050. Petitioner was directed to appear for a pre-employment psychological interview. The NYPD provides police officer candidates with a new and individual evaluation with a different psychologist for each exam. In the candidate psychological disqualification summary dated April 8, 2010, another NYPD psychologist found that petitioner failed to meet the requirements to be considered psychologically suitable for police officer work due to his bias and poor stress tolerance. The NYPD psychologist noted that petitioner claimed to no longer believe that "homosexual behavior is a grounds for arrest. However, there is not adequate evidence that he longer has such a bias. This bias serves as a significant liability should he be unable to perform his duties when working with homosexuals or if a fellow officer or supervisor would identify as homosexual." Moreover, petitioner's poor stress tolerance and past depression indicated a vulnerability that was outside the criteria for police officer work. (Respondents' exhibit 5).

On July 8, 2010, upon review of petitioner's entire Psychological Services record, including an opinion letter from a privately retained psychiatrist, an NYPD Department Supervising Psychologist recommended that the interviewing psychologist's decision to reject petitioner as psychologically unsuited for the police officer position be sustained. Accordingly, by letter dated July 19, 2010, petitioner was notified that he had not met the requirements for the position of police officer and was thereby disqualified under exam number 8050 ("disqualification"). The disqualification letter stated that "[t]his determination was based on the evaluation of your psychological tests and interview which found personality characteristics incompatible with the unique demands and stress of employment as a New York City Police Officer." (Respondents' [*3]exhibit 8).

Petitioner appealed his disqualification to the New York City Civil Service Commission ("CSC"). As part of the appeal process, petitioner's entire Psychological Services record, which included reports from two privately retained mental health professionals, was reviewed twice. Each time, it was reviewed first by an independent appeals consultant and then by the Director of Psychological Services. By letters dated June 29, 2011 and September 22, 2011, the Director of Psychological Services recommended to the CSC that petitioner's disqualification for psychological reasons be sustained and that he be marked not qualified. Petitioner was represented by counsel throughout the appeal process and had an opportunity to submit a memorandum of law and affidavit in support of his appeal.

Several changed circumstances were noted throughout petitioner's appeal. Petitioner no longer claimed that he believed homosexuals should be incarcerated, although he maintained that homosexuality was against his Islamic religious belief. Petitioner had also made progress by successfully working part-time as a pizza delivery person and getting married. In addition, petitioner is a member of the Auxiliary Police.

By Notice of CSC Action dated February 10, 2012, the CSC affirmed petitioner's disqualification (the "final determination"). The final determination stated that upon careful review of "the results of the clinical testing of [petitioner], the report of the Police Department interviewers, the documents submitted by [petitioner] and the report of the Police Department consultant," there was a rational basis for the conclusion that petitioner was not suited for a police officer position and that the record did not raise any issue requiring a hearing. (Respondents' exhibit 20).

This court first turns to the issue of whether petitioner may proceed under an anonymous caption with a "Doe" pseudonym. The parties do not dispute that petitioner did not follow the proper procedure under the Rules of the Supreme Court, Civil Branch, New York County to commence an action claimed to be confidential with an anonymous caption. Petitioner should have named the real parties in the caption of an order to show cause with a temporary restraining order seeking an anonymous caption and a sealing order. Then the papers should have been submitted to the Ex Parte Office for determination of the temporary restraining order by an Ex Parte Justice before filing. This allows a matter to proceed anonymously until the return date on the order to show cause, at which time respondents would have an opportunity to explain why confidentiality should not be continued.

There is little case law on the use of anonymous captions. The First Department has held that a party will be permitted to proceed anonymously upon alleging that the matter implicates "a privacy right so substantial as to outweigh the customary and constitutionally embedded presumption of openness in judicial proceedings." "J. Doe No. 1" v. CBS Broadcasting Inc., 24 AD3d 215, 215, 2005 NY Slip Op 09448 (1st Dept 2005); see Doe v. New York Univ., 6 Misc 3d 866, 2004 NY Slip Op 24529 (Sup Ct, NY County 2004); Stevens v. Brown, 2012 NY Slip Op 31823(U) (Sup Ct, NY County 2012). [*4]

The cases in which the court has permitted a party to proceed by pseudonym involved drastic circumstances. See e.g. "J. Doe No. 1", 24 AD3d 215 (plaintiffs not permitted to proceed by pseudonym in case alleging trespass to chattel); New York Univ., 6 Misc 3d 866 (plaintiff permitted to proceed by pseudonym in civil sexual assault case); Stevens, 2012 NY Slip Op 31823(U) (plaintiff who alleged that she contracted anal herpes from her boyfriend permitted to proceed under a pseudonym due to the deeply personal and sensitive subject matter); Anonymous v. Anonymous, 191 Misc 2d 707 (Sup Ct, NY County 2002) (parties' request to proceed anonymously granted in assault case on the grounds that the defendant cafeteria owner might not receive a fair trial due to likelihood of media coverage); Doe v. Kidd, 19 Misc 3d 782, 2008 NY Slip Op 28111 (Sup Ct, NY County 2008) (suppression of plaintiff's identity unwarranted in assault and battery action brought against famous basketball player, which alleged that the basketball player grabbed plaintiff's buttocks and crotch area; plaintiff's voluntarily identification of defendant in her pleadings and to the press undermined her claimed need to protect her privacy and identity); Doe v. Szul Jewelry, Inc., 2008 NY Slip Op 31394(U) (Sup Ct, NY County 2008) (plaintiff in an action involving a sexually explicit videotape who complained of harassment, ridicule, and embarrassment allowed to use a pseudonym in the caption); Doe v. Hirsch, 2011 NY Slip Op 30689(U) (Sup Ct, NY County 2011) (plaintiff in a psychiatric malpractice case was required to replace the pseudonym "Jane Doe" in complaint with her true name because the mere fact that the case involved psychiatric treatment and general allegations about the care rendered failed to demonstrate that an anonymous caption was warranted).

Previous media coverage is not a key factor in considering a request to proceed with an anonymous caption. See e.g. Stevens, 2012 NY Slip Op 31823(U); Kidd, 19 Misc 3d 782. More significant is the fact that this case is brought against a public entity, which weighs in favor of the public's right to know the identity of the parties. See Szul Jewelry, Inc., 2008 NY Slip Op 31394(U).

Petitioner's counsel submits an affirmation in support of his motion for leave to maintain the instant proceeding with a "Doe" caption. The affirmation includes a selection of hateful "reader comments" from articles about the instant proceeding published online. Petitioner's counsel speculates that these comments indicate a significant risk that petitioner will be subjected to harassment or worse should petitioner's identity be publicly disclosed. While these comments may be the basis of concern in the eyes of petitioner's counsel, any harm to petitioner is mere conjecture at this point. Moreover, this court declines to consider unauthenticated internet postings in its determination. See CPLR Article 45.

Petitioner has not made a showing of how he would be harmed by disclosure of his identity beyond vague allegations of harassment. In addition, a possibility that petitioner might be dismissed from the Auxiliary Police does not vitiate his privacy interests. Therefore, without ruling on the implications of the procedural defect, this court finds that petitioner's privacy right does not outweigh the presumption of openness in judicial proceedings. As such, petitioner's application for leave to maintain the instant proceeding with an anonymous caption is denied. [*5]

This court now turns to the central issue in the instant proceeding. Petitioner is seeking for the CSC's final determination to be annulled and remanded for a de novo determination. Furthermore, petitioner is seeking for respondents to be enjoined from disqualifying petitioner from future police officer employment upon any bases violative of petitioner's right to freedom of religious belief.

It is well settled that a determination is arbitrary and capricious when it is made "without sound basis in reason and is generally taken without regard to the facts." See Matter of Pell v. Bd. of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 (1974)."Even though the court might have decided differently were it in the agency's position, the court may not upset the agency's determination in the absence of a finding, not supported by this record, that the determination had no rational basis." Matter of Mid-State Mgt. Corp. v. New York City Conciliation & Appeals Bd., 112 AD2d 72, 76 (1st Dept 1985). Therefore, this court's role is limited to whether or not the CSC's final determination was made without a rational basis.

The CSC applies the same standard of review as the judicial standard applicable in Article 78 proceedings, namely whether there is a rational basis to support the Police Department's determination. See Matter of City of New York v. New York City Civ. Serv. Commn., 6 NY3d 855 2006 NY Slip Op 03441 (2006), affg 20 AD3d 347, 2005 NY Slip Op 06085 (1st Dept 2005); Matter of City of New York v. New York City Civ. Serv. Commn., 2011 NY Slip Op 31487(U) (Sup Ct, NY County 2011). An appointing authority has wide discretion in determining the fitness of candidates and in particular may apply high standards in the hiring of police officers. See Matter of City of New York v. New York City Civ. Serv. Commn., 61 AD3d 584, 2009 NY Slip Op 03384 (1st Dept 2009) ("Matter of Elias"); Matter of Rogers v. New York City Police Dept., Sup Ct, NY County, Dec 14, 2011, Hunter, J. index No. 106438/11.

"In determining whether a candidate is medically qualified to serve as a police officer, the appointing authority is entitled to rely upon the findings of its own medical personnel, even if those findings are contrary to those of professionals retained by the candidate, and the judicial function is exhausted once a rational basis for the conclusion is found." Matter of Elias, 61 AD3d 584, 585; see Matter of Holzberg v. Kelly, 13 AD3d 280, 2004 NY Slip Op 09684 (1st Dept 2004). Bias against a protected group may be considered as a factor in determining whether an individual is psychologically suited for police work. See Matter of City of New York v. New York City Civ. Serv. Commn., 19 Misc 3d 1123(A), 2008 NY Slip Op 50826(U) (Sup Ct, NY County 2008) (upholding psychological disqualification of a police officer candidate who admitted to a bias against women among other disqualifying factors).

In the instant proceeding, the CSC found that there was a rational basis to support the disqualification after an extensive appeal process in which copious documentation was submitted and petitioner was examined by both private and NYPD mental health professionals. The disqualification did not rest on petitioner's religious belief that homosexuality is a sin but rather regarded petitioner's stated belief that homosexual behavior is grounds for arrest as a single [*6]factor to consider along with his depression, poor stress tolerance, limited education, and lack of relevant work experience. Accordingly, this court finds that the CSC's final determination was rational and did not violate petitioner's right to freedom of religious belief.

Moreover, respondents are not enjoined from disqualifying petitioner from future police officer employment upon any bases violative of petitioner's right to freedom of religious belief. This court would look at this matter in a different light if the NYPD refused to hire petitioner as a police officer due to his Islamic religious beliefs, for instance, because he was requesting breaks for prayer. However, there is no indication in the instant proceeding that petitioner was found psychologically unsuitable for police officer work because he was a Muslim. While this court cannot draw a bright line, it finds that personal beliefs or biases, which might lead to actions that put the public or fellow police officers at risk, may be considered by the NYPD as factors in determining whether an applicant is a suitable candidate for employment as a police officer.

The parties' remaining contentions are without merit.

Accordingly, it is hereby,

ADJUDGED that the application by petitioner for an order pursuant to Article 78 of the CPLR, annulling and remanding respondents' determination disqualifying petitioner from employment as an NYPD police officer, and enjoining respondents from disqualifying petitioner from future police officer employment upon any bases violative of petitioner's right to freedom of religious belief, is denied with costs and disbursements to respondents; and it is further

ADJUDGED that the application by petitioner for an order pursuant to CPLR 2214, granting leave to maintain the instant proceeding with a "Doe" caption, is denied; and it is further

ORDERED that petitioner shall amend his petition by changing the name of petitioner from "Farhan Doe" to his true name, and shall serve a copy of this order with notice of entry upon the County Clerk, who is directed to mark the court's records to reflect the change in caption herein.

Dated:May 15, 2013

ENTER:

________________________

J.S.C.