Espinal v New York City Dept. of Corr

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Espinal v New York City Dept. of Corr 2020 NY Slip Op 31795(U) June 4, 2020 Supreme Court, New York County Docket Number: 160457/2018 Judge: Debra A. James Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 06/10/2020 08:59 AM NYSCEF DOC. NO. 26 INDEX NO. 160457/2018 RECEIVED NYSCEF: 06/10/2020 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DEBRA A . JAMES PART IAS MOTION 59EFM Justice ---------------------------------------------------------------------------------X DIANA ESPINAL, INDEX NO. MOTION DATE Petitioner, 160457/2018 11/1 3/20 18 001 MOTION SEQ. NO. - - --- -vTH E NEW YORK CITY DEPARTMENT OF CORRECTIONS , THE CITY OF NEW YORK, DECISION + ORDER ON MOTION Respondent. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001 ) 2, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 , 21, 22, 23, 24 were read on this motion to/for ARTICLE 78 (BODY OR OFF ICER) ORDER Upon the foregoing documents, it is ORDERED that the petition is DENIED and the proceeding is DISMISSED; and it is further ORDERED and ADJUDGED that the Clerk shall enter judgment accordingly. DECISION Petitioner brings this proceeding challenging respondent Department of Correction (DOCS)' s termination of her employment as a corrections officer during a probationary period. Petitioner claims that the termination was g e nder 16045712018 ESPINAL, DIANA vs. NEW YORK CITY DEPARTMENT Motion No. 001 1 of 4 Page 1of4 [*FILED: 2] NEW YORK COUNTY CLERK 06/10/2020 08:59 AM NYSCEF DOC. NO. 26 INDEX NO. 160457/2018 RECEIVED NYSCEF: 06/10/2020 discriminatory, as it was based on her use of sick leave arising from her pregnancy. The standard to be applied to petitioner's claim is set forth as follows: Absent a statute or rule to the contrary, a probationary employee may be discharged without a hearing and without a statement of reasons so long as the act is done in good faith and not for constitutionally impermissible purposes. Moreover, it is the petitioner who bears the burden of demonstrating respondent's bad faith or illegal or arbitrary action. (1 5 t Dept. 1985). Rainey v McGuire, 111 AD2d 616, 618 On June 27, 2016, petitioner was appointed by DOCS as a probationary corrections officer. Petitioner states that DOCS learned about her pregnancy when she told DOCS on January 4, 2018, the date she took sick leave for that reason. On July 25, 2018, respondent terminated petitioner. Petitioner fails to meet her burden in this proceeding. Even assuming the truth of the facts asserted in her petition and reply affidavit, she does not dispute her sick leave record wherein she was late on at least three occasions, December 29, 2017, February 26, 2018, and March 9, 2018, which dates were during the probationary period. One instance of lateness during probation justifies termination. See Garrett v Safir, 253 AD2d 700 (1st Dept.) app. den. 92 NY2d 817 (1998). Petitioner's record of lateness, in addition to her conceded four nonpregnancy related sick leave absences- January 12, 2 017 ; March 160457/2018 ESPINAL, DIANA vs. NEW YORK CITY DEPARTMENT Motion No. 001 2 of 4 ------- Page 2 of 4 [*FILED: 3] NEW YORK COUNTY CLERK 06/10/2020 08:59 AM NYSCEF DOC. NO. 26 INDEX NO. 160457/2018 RECEIVED NYSCEF: 06/10/2020 10, 2017; March 14, 2017; May 13, 2017 - and at least 25 days of compensatory and annual leave, all during the probationary period and before she notified DOCS of her pregnancy, provide sufficient support for the proposition that respondent's action was not taken in bad faith. It has been held that excessive absences and lateness are sufficient grounds for termination, where such attendance record was well established before the motive for the alleged illegal discrimination arose. v Abate, 205 AD2d 454, (1st Dept. 1994) See Nelson ("petitioner's record of excessive absence and lateness was established well before her participation in that program and provided a sufficient basis for her termination" ) . Thus, petitioner's claim of discrimination fails to establish that respondent's reasons for termination are pre - textual, as petitioner's pre - pregnancy attendance record vitiates any temporal nexus between petitioner's pregnancy and respondent's termination. As petitioner has raised issues of fact with respect to whether she violated DOCS's "undue familiarity" rule, such 160457/2018 ESPINAL, DIANA vs . NEW YORK CITY DEPARTMENT Motion No. 001 3 of 4 - - - - ------------- Page 3 of 4 [*FILED: 4] NEW YORK COUNTY CLERK 06/10/2020 08:59 AM NYSCEF DOC. NO. 26 INDEX NO. 160457/2018 RECEIVED NYSCEF: 06/10/2020 alleged violation, standing alone, would not establish any basis for her termination. However, petitioner's unrefuted excessive absences and lateness, which she does not claim were pregnancy related, fail to establish prima facie any bad faith on the part of respondent. 6/4/2020 BRA~ DATE CHECK ONE: CASE DISPOSED GRANTED 0 DENIED APPLICATION: SETTLE ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN 160457/2018 ESPINAL, DIANA vs. NEW YORK CITY DEPARTMENT Motion No. 001 4 of 4 ~ MES: ~.t. NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT D D OTHER REFERENCE Page4 of4

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