Matter of Castro v. Schriro

Judgment, Supreme Court, New York County (Carol E. Huff, J.), entered August 21, 2014, denying the petition seeking to annul respondents’ determination, dated July 19, 2013, which terminated petitioner’s employment as a probationary correction officer, and granting respondents’ cross motion to dismiss the proceeding brought pursuant to CPLR article 78, reversed, on the law, without costs, the petition reinstated, and the matter remanded to Supreme Court for further proceedings.

Petitioner Raymond Castro commenced this article 78 proceeding to contest respondent New York City Department of Correction’s (DOC) termination of his employment as a probationary correction officer. His termination occurred after an inmate died because petitioner’s superior, a captain, thwarted the efforts of several people, including Officer Castro, to assist the inmate with his medical condition. Officer Castro cooperated in the investigation of the inmate’s death and the federal prosecution of his superior. As fully detailed below, on the present record, Officer Castro’s conduct, both in response to the inmate’s medical emergency and during the investigation of the inmate’s death, appears appropriate. Likewise, Officer Castro’s termination, without an explanation, appears questionable and in bad faith. Under the circumstances, this Court is unable to conclude that his claim of wrongful termination as a probationary correction officer is without foundation to warrant a pre-answer dismissal based solely on the ground that it fails to state a cause of action.

Factual Background

In this pre-answer context, the essential facts are strictly gathered from the petition. Because this case arises on a motion to dismiss this article 78 petition under CPLR 3211, we take the facts alleged by petitioner to be true. Where the allegations are ambiguous, we resolve the ambiguities in petitioner’s favor.

The verified petition states that on August 17, 2012, Officer Castro was assigned to the Mental Health Assessment Unit (MHAU) at the George R. Vierno Center (GRVC) on Rikers Island. Officer Castro’s shift began at 3:00 p.m. and ended at 11:00 p.m. The MHAU is a unit to which DOC sends inmates who are under mental observation and have a disciplinary history. These particular inmates are sent there for housing in traditional cells.

On that day, Officer Castro was assigned to housing area 11A, which had 25 cells, and was on the first tier. A second officer was assigned to another section of housing area 11A, which also had 25 cells hut was on the second tier. During Officer Castro’s tour, there was one supervising captain for his area. Officer Castro’s duties included the care, custody, and control of the inmates therein. To those ends, Officer Castro regularly toured the area where the inmates were housed.

At some point during his 3:00 p.m. to 11:00 p.m. shift, as Officer Castro toured the cells, inmate Echevarria, who was in his cell, told Officer Castro that he swallowed a soap ball, which contained bleach, and that he wanted to get medical attention. Officer Castro immediately informed the officer assigned to the “bubble” or watch post of what the inmate said. Officer Castro could only inform the bubble officer of the situation because Officer Castro’s post did not have a phone. That second officer (the bubble officer) informed Officer Castro that the captain was about to tour the area.

Moments later, Captain Pendergrass and Officer Castro met at the housing area 11A desk. There, Officer Castro informed his superior of what Echevarria had said. Officer Castro did this in order to obtain permission from Captain Pendergrass to contact medical staff, or to otherwise obtain instruction from him. Captain Pendergrass instructed Officer Castro that there was no need to contact medical staff. Instead, Captain Pendergrass told Officer Castro, “[D]on’t call me if you have live, breathing bodies. Only call me if you need an extraction, or if you have a dead body. Tell him [the inmate] to hold that” (second alteration in petition).

Sometime thereafter, Officer Castro began another tour of the area. During this second tour, Officer Castro noticed vomit in Echevarria’s cell. Again, Officer Castro informed his superior, Captain Pendergrass, of his observations. At the time, Captain Pendergrass was inside of the bubble. Again, Captain Pendergrass instructed Officer Castro to tell the inmate to “[h]old it” (alteration in petition).

Within one hour thereafter, a pharmacy technician and her escort officer began medical rounds to provide certain inmates with medication. The pharmacy technician informed Officer Castro that she noticed that Echevarria needed medical attention. Officer Castro informed the technician that he would notify the Captain, and that she should do the same as well. Officer Castro then went to Captain Pendergrass along with the escort officer. The escort officer, Officer Lizarte, informed Captain Pendergrass that the inmate claimed he ingested a soap ball with bleach and needed medical attention. Captain Pendergrass ordered Officer Lizarte to write a report. At that time, Officer Castro attempted to contact medical staff, but could not find the medical number on an old and faded phone contact list. The phone that Officer Castro attempted to use was in the bubble. Captain Pendergrass approached Officer Castro and asked, “[D]id you contact anyone of significance.” Officer Castro informed his superior that he was looking for the extension number to the medical staff. Captain Pendergrass then ordered Officer Castro to take his post. Officer Castro again informed him that he was looking for the medical number. Captain Pendergrass then said, “I am giving you a direct order to take your post.” Officer Castro complied with the captain’s order.

After Officer Castro manned his post, Officer Lizarte arrived at Officer Castro’s desk with a blank report form, and began to write his report. Moments later, Captain Pendergrass asked Officer Lizarte if he was sure he had heard the inmate correctly. Officer Lizarte responded, “[Y]es.” Captain Pendergrass then said, “I believe you heard him incorrectly. I just spoke to the nurse and she did not hear that at all.” Captain Pendergrass then ordered Officer Lizarte to follow him, and they left the area.

At some point thereafter, Officer Castro noticed that Captain Pendergrass went to Echevarria’s cell, remained there for a few seconds, and then left the area. Officer Castro was relieved of his post at 11:30 p.m. The next day, another officer informed Officer Castro that Echevarria was found dead in his cell in the morning, many hours after Officer Castro had been relieved of his post.

In the days and months after the incident, Officer Castro was ordered to verbally inform DOC of his involvement with Echevarria, and then was interviewed by the DOC, the United States Attorney’s Office for the Southern District of New York, the City’s Department of Investigation, and the New York County’s District Attorney’s Office. Eventually, in May 2014, Captain Pendergrass was federally indicted. In December 2015, Pendergrass was convicted of violating inmate Echevarria’s Civil Rights under the Due Process Clause of the 14th Amendment of the United States Constitution. In July 2015, he was sentenced to five years in prison.

Meanwhile, in July 2013, Officer Castro was terminated from his employment as a probationary correction officer. After exhausting his administrative remedies, Officer Castro commenced this article 78 proceeding seeking an order annulling DOC’s determination. Prior to serving an answer, DOC moved to dismiss the petition, contending only that petitioner had failed to state a cause of action. Supreme Court granted the motion and dismissed the petition. This appeal ensued.

Discussion

A probationary employee may be dismissed for almost any reason, or for no reason at all, and the employee has no right to challenge the termination in a hearing or otherwise, absent a showing that he or she was dismissed in bad faith or for an improper or impermissible reason (see Matter of Swinton v Safir, 93 NY2d 758, 762-763 [1999]). The burden falls on the petitioner to demonstrate by competent proof that bad faith exists, or that the termination was for an improper or impermissible reason (see Matter of Che Lin Tsao v Kelly, 28 AD3d 320, 321 [1st Dept 2006]).

This case presents the unique procedural scenario where DOC sought to dismiss this article 78 petition at the pre-answer stage on the sole ground that the petition fails to state a cause of action. We disagree with Supreme Court’s determination that the petition fails to sufficiently state a claim of improper termination of a probationary correction officer. On the contrary, petitioner alleges that his termination was arbitrary and capricious, and in bad faith. In addition, petitioner provides a factual predicate for his allegations. In sum and substance, the petition avers that despite serving as a correction officer who acted in complete accord with DOC’s rules and proper protocol, pursuant to orders from his supervisor, and in full cooperation, with the investigation of inmate Echevarria’s death, which lead to Captain Pendergrass’ indictment, Officer Castro was inexplicably terminated.

For instance, with regard to his activities in response to the inmate’s statement that he had harmed himself by swallowing a soap ball, Officer Castro alleges that he acted pursuant to “normal protocol” and that he was “trained to [ ] contact a supervisor in these situations.” Similarly, with regard to his activities in response to his observation of the inmate’s vomit, Officer Castro alleges that he acted “pursuant to the protocol . . . of inform[ing] his superior, Captain Pendergrass, of his observations.” Moreover, with regard to his return to his post after attempting unsuccessfully to contact medical personnel, Officer Castro alleges that he was acting in “compli[ance] with his captain’s order.” Significantly, to support his allegation that these actions were made pursuant to and consistent with DOC rules and proper protocols, petitioner cites to DOC rules 610.030 and 7.05.090 and DOC Directives 4516 (IV) (A) and 5001R (III), (IV) (A) and (V).^* Finally, not knowing the reason for his termination, petitioner surmises dubitably that, “[u]pon information and belief, [he] was terminated for some ‘misconduct’ surrounding the death of inmate Echevarria,” for which only the captain was prosecuted and convicted. Considered as a whole, these uncontradicted allegations present a substantial issue of bad faith — namely, whether petitioner’s discharge was unrelated to work performance — sufficient to require a denial of the pre-answer motion to dismiss.

In this appeal, however, DOC makes no attempt to refute or let alone shed light on these allegations; DOC simply argues that, as a probationary employee, Officer Castro was not required to be furnished with the charges against him and could have been dismissed without a reason (see Matter of Swinton v Safir, 93 NY2d at 762-763; Matter of York v McGuire, 63 NY2d 760, 761 [1984]). Petitioner’s situation, however, is an exception to this general principle. Where a substantial issue of bad faith is raised, as here, in that the termination of the probationary employment may not have been the result of the petitioner’s failure to perform his or her duties satisfactorily but may have been due to some improper basis, a petition should not be dismissed on the pleadings (cf. Matter of Higgins v La Paglia, 281 AD2d 679 [3d Dept 2001] [a hearing was directed regarding the termination of a probationary correction officer where an issue was raised as to good faith because of, inter alia, conflicting evaluation reports], appeal dismissed 96 NY2d 854 [2001]; Matter of Ramos v Department of Mental Hygiene of State of N.Y., 34 AD2d 925 [1st Dept 1970] [a hearing was directed because a substantial issue had been raised regarding whether the probationary employee’s discharge was in reality the result of a personality conflict with a supervisor]).

The dissent gratuitously accuses the majority of “giving lip service” to the law applicable to probationary employees. What the dissent turns a blind eye to and wishes us to ignore is the fact that an employee has the right to challenge a termination when it appears to be based on bad faith or for an improper or impermissible reason (see Matter of Swinton v Safir, 93 NY2d at 763). Thus, when a termination is putatively related to work-related deficiencies, one would expect an agency like DOC to refute contrary allegations or, if true, to provide an explanation of the work-related deficiencies. Here, however, DOC presents nothing other than a pre-answer motion to dismiss based on the sole ground that the petition fails to state a claim of improper termination. At the very least, DOC, the firing agency, should be required to provide responsive pleadings so as to explain the basis of the termination. Of course, ultimately, the burden falls squarely on petitioner to demonstrate by competent proof at an evidentiary hearing that his termination was for an improper or impermissible reason.

The dissent’s argument that the petition fails to state a claim of improper termination is not persuasive. In fact, the dissent completely misconstrues and mischaracterizes petitioner’s conduct surrounding the death of inmate Echevarria as “just following orders.” Likewise, the dissent mischaracterizes the majority’s position as viewing any possible DOC finding of misconduct by Officer Castro as a possible “mistake.” The dissent’s characterization is disingenuous. We simply hold that, at this stage of the proceedings, where DOC has not answered the petition, we are not willing to speculate as to whether petitioner’s or DOC’s actions were inappropriate under any standard.

Rather, at this juncture, we construe the petition in the light most favorable to petitioner, as required on a pre-answer motion to dismiss. The reasonable inferences to be drawn from petitioner’s factual allegations belie the dissent’s conclusion that Officer Castro’s conduct surrounding the inmate’s death was “gross indifference” to the inmate’s safety and constitutional rights. Indeed, without basis in fact, the dissent belittles petitioner’s apparently sincere efforts to assist the inmate, by among other things, repeatedly informing his superior and attempting to call medical personnel. Moreover, the dissent minimizes the fact that at the time the captain thwarted petitioner’s efforts to assist the inmate, the pharmacy technician, who presumably had medical training and direct access to medical personnel, the escort officer, who was directed to complete an accident report, and the bubble officer, were all alerted to and involved in the inmate’s situation. Under the circumstances, the dissent’s ominous conclusions — that petitioner was fully aware that his failure to take any further and immediate action, in contravention of his superior’s efforts, would lead to the inmate’s death — dehors the record and is pure speculation.

In short, at no time during these proceedings has anyone— other than the dissent — characterized petitioner’s activities surrounding the inmate as a callous indifference to Echevar-ria’s safety and constitutional rights.

Concur — Acosta, J.P., Renwick, Andrias and Moskowitz, JJ.

* In his petition, Officer Castro gives a summary explanation of these rules and directives. He explained as follows: “DOC Rule 6.10.030 requires a correction officer to inform a captain when he believes an inmate may harm himself (e.g. swallow soap to harm himself). DOC Rule 7.05.090 . . . requirfes] a correction officer to inform his captain of any abnormal conditions that may indicate suicidal tendencies). Likewise, and more to the point, DOC Directive 4516 (IV) (A) requires the Petitioner to inform his captain of an inmate’s complaint of an injury. And, DOC Directive 5001R (III), (IV) (A), and (V) further require the tour commander (captain) to notify the proper authorities regarding an inmate’s illness” (citations omitted).