Opinion
Index No. 158685/2023 Motion Seq. No. 001
02-28-2024
VASILIOS SARANTIS, Petitioner, v. JESSICA TISCH, AS COMMISSIONER OF THE NEW YORK CITY DEPARTMENT OF SANITATION, THE NEW YORK CITY DEPARTMENT OF SANITATION, THE CITY OF NEW YORK Respondent.
Unpublished Opinion
PART 14
MOTION DATE 02/23/2024
DECISION + ORDER ON MOTION
HON. ARLENE P. BLUTH, JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 001) 1-12,13, 14,15,16, 17, 18, 19,21,22,23,24, 25, 26, 27, 41,42, 43 were read on this motion to/for ARTICLE 78.
The Court did not consider NYSCEF Doc. Nos. 44-51. which appear to be documents filed for a completely separate and unrelated proceeding.
The petition to reinstate petitioner as a sanitation worker is granted.
Background
Petitioner worked as a sanitation worker starting on August 15, 2022. He explains that on April 15, 2023, he was supposed to work a shift from 7 a.m. through 3 p.m. When he woke up that morning, he discovered that the water heater in his home was broken and that there was flooding in his basement. Petitioner called his supervisor around 6:10 a.m. and told him of the flooding at his home. He insists that he called his contractor, who then unclogged the floor drain and replaced the water heater.
The problem for petitioner, and indeed the central problem in this case, is that petitioner was scheduled for a random drug test that day. Petitioner claims that he was unaware that he had been selected for this random testing and would only have found this out upon reporting for work that morning. He alleges that at about 7:11 a.m., a different supervisor (Mr. Swain) called him and let him know that he was on the list for drug screening and asked if he could come in to take the test. Petitioner stressed that he had an emergency at his house but could possibly come in for testing in a few hours.
He insists that a few minutes later Mr. Swain called him again to let him know that his shift was moved to start at 4 p.m. that day and he would be tested then. He claims Mr. Swain told him to take pictures of the emergency. Petitioner complied and obtained an invoice for the work done that day as well as photographs (complete with geolocation information) in support of his claim that he got his water heater replaced (NYSCEF Doc. No. 2).
He alleges that at just after 8 a m., Mr. Swain called him again and said that petitioner no longer needed to report that day and, instead, should show up for his next shift on April 17, 2023 (two days later) and do the drug test at 6 a.m. Petitioner contends that when he arrived for his testing on April 17, 2023, he submitted his documentation about the water heater and a chief in the department rejected his claim that there was emergency. Petitioner was then cited for violating Sanitation's rule 2.5, which concerns the refusal to take a test.
The complaint fded against him noted that "Employee [petitioner] is suspended for a refusal to test. Failure to submit to a substance use testing when ordered is a violation of the above rule and deemed a refusal to test" (NYSCEF Doc. No. 3). Petitioner was then told he should appear for a drug test on April 19, 2023, which he claims he did, and then appeared at the emergency assistance unit in compliance with Sanitation's policy regarding substance abuse. Petitioner alleges that when he appeared at a second appointment with this unit, a chief for Sanitation tried to get him to resign.
Petitioner explains that the next week, he met with the Probation Evaluation Board and submitted his documentation about his water heater. He claims he then underwent additional drug testing on May 3, 2023 and May 9, 2023, and was eventually cleared to return to full duty on May 12, 2023. On May 26, 2023, petitioner received a termination letter from Sanitation.
Petitioner claims that his termination was arbitrary and capricious and respondents' decision to terminate him was in bad faith. He insists he reported his emergency in accordance with Sanitation's time and leave policy and that respondents improperly rejected his claimed emergency. Petitioner insists that he was unaware that he was on the random drug testing list when he called in about his hot water heater.
This Court previously denied respondents' cross-motion to dismiss (NYSCEF Doc. No. 25). The Court reasoned that there was little dispute that there was an issue with petitioner's water heater on the day in question and that the contractor replaced it that day. The Court noted that respondents should have the chance to answer and address why, exactly, they fired him (id. at 10). Specifically, respondents were encouraged to show their basis for asserting that petitioner knew he was on the random drug testing list that day, why they rejected his documentation concerning his water heater emergency and why it was so important for petitioner to turn over his cell phone (id.).
In their answer and in opposition to the petition, respondents insist that they had a rational basis to suspend and ultimately fire petitioner. They claim that petitioner refused to show up for a drug test later in the day, that his evidence about a hot water heater emergency was not sufficient and that there were several discrepancies in his story. Respondents again insist that petitioner knew he was on the random drug testing list.
In response, petitioner emphasizes that his contractor confirmed that the water heater was old, leaking, and needed to be replaced. He admits he did not immediately think to take photos of the water on the floor of his basement. Petitioner points out that respondents did not cite any evidence that petitioner knew he was on the random drug testing list before calling out for the water heater emergency. He insists that he offered to come in for the drug test later that same day, but was told to come for the drug test during his next shift on April 17, 2023. Petitioner claims that respondents therefore failed to follow their own policies and procedures. He insists that the drug testing list is physically posted at the sanitation garage and that there is no way he could have known he was going to be on the list that day.
With respect to handing over his phone, petitioner claims he was hesitant to do so because the chief he was speaking with supposedly pressured him to resign that day. Petitioner also references the last chance agreement afforded to other sanitation workers as part of his argument that his termination was discretionary. He insists that he was, in fact, subject to several drug tests between April 15, 2023 and his termination date of May 26, 2023 and never tested positive.
Discussion
In an Article 78 proceeding, "the issue is whether the action taken had a rational basis and was not arbitrary and capricious" (Ward v City of Long Beach, 20 N.Y.3d 1042, 1043, 962 N.Y.S.2d 587 [2013] [internal quotations and citation omitted]). "An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts" (id.). "If the determination has a rational basis, it will be sustained, even if a different result would not be unreasonable" (id.). "Arbitrary action is without sound basis in reason and is generally taken without regard to the facts" (Matter of Pell v Board of Educ. of Union Free Sch. Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833 [1974]).
The Court's discussion begins with a few rules discussed in the Court's previous interim order (NYSCEF Doc. No. 25).
"Uniformed employees who cannot report to work must call their work location at least one hour before their assigned tour of duty and notify the Department that they are unable to report to work. The employee must give a valid reason for the emergency leave and must submit verifiable proof of the emergency within 48 hours of the request. Employees unable to call their work location at least one hour before their scheduled tour of duty must give a reason that is acceptable to the Department. Employees may not use emergency leave in lieu of medical leave" (NYSCEF Doc. No. 4, § 1.5).
Sanitation's code of conduct rules provide that "Employees must submit to drug and alcohol tests when ordered, in accordance with the Department's Policy and Administrative Procedure on Substance Abuse, Workplace Violence and any random tests required by the FMCSA for CDL holders" (NYSCEF Doc. No. 4, § 2.5).
The policy on drug testing provides that "Employees whose names have been drawn for testing but who go 'sick', 'AWOL' or 'ETO' (Emergency Time Off) after being informed that they are to be tested, may be charged with a Refusal to Test" (NYSCEF Doc. No. 5, § 9.1[B]). Refusal to test is defined, in pertinent part, as the "failure to submit to a substance use test when ordered to do so" (id. § 3.24). The refusal to test is treated as a positive test (id. § 6.4). Probationary employees who refuse to test "may be immediately terminated" (id. § 7.6).
To summarize, according to the alleged facts here, petitioner called in with an emergency before he knew he was on the list to take a drug test that day. His supervisor told him to come in later to take the test and work a later shift, but that supervisor then called him back and told him not to come in but to wait until his next scheduled shift (two days later). Petitioner came in with proof of his emergency and took several drug tests over the course of a few weeks with no sign of drugs in his system. Still, petitioner was fired because respondents eventually rejected his claimed emergency, which meant that petitioner's failure to appear for his shift also constituted a refusal to test given his inclusion on the drug testing list that day.
If respondents had accepted petitioner's absence as an excused emergency, then there would be no basis for termination. Therefore, a key issue in this proceeding is whether or not respondents rationally justified their determination that petitioner did not have an emergency. The Court finds that respondents failed to cite a rational basis for this conclusion in their answer and accompanying papers. In the verified petition, petitioner explains that he took pictures after Mr. Swain (his supervisor) directed him to do so and the submissions here substantiate his allegations. Petitioner submitted photographs that show he was at his home that morning and show a rusted water heater (NYSCEF Doc. No. 2). He also submitted an invoice showing that the plumber removed his old water heater and put in a new one that day (id).
Respondents' continued insistence that it was not an emergency is bewildering to this Court. What more could petitioner have shown? The fact is that the "investigator's report" confirms that respondents' investigator spoke with petitioner's contractor, who confirmed that he replaced the water heater that day and that the old one was leaking (NYSCEF Doc. No. 18 and 31 [the same documents]). Of course, this report is merely an email that contains observations based almost entirely on hearsay and, therefore, the Court questions how this email could form the sole basis for justifying petitioner's firing as it does not address many of petitioner's claims.
In any event, the alleged discrepancies cited in this email and in respondents' answer are not material discrepancies. That there is a dispute about whether or not petitioner actually went to Home Depot to get materials related to the leak (he claims he ended up not purchasing anything), the exact time the contractors arrived, and the extent of the leak does not justify petitioner's termination. Again, respondents do not dispute that the contractor confirmed that the old water heater was leaking that day, that it was replaced that day or that the photographs show both a rusted water heater and a new one (NYSCEF Doc. No. 2). Under any conceivable interpretation of the concept "emergency," discovering a leaking water heater is an emergency. Certainly, it is not a life-threatening event like a serious car accident or the sudden death of a loved one, but it is an emergency requiring same-day repair; it requires someone responsible to stay home, make sure the water heater is replaced, and clean up the area. It is not something that can be ignored for hours and hours.
And it is completely understandable that petitioner would not document this flood as if he were a private investigator or an attorney. Regular people's first thought is to deal with the emergency - only a lawyer (or someone familiar with the legal process) may think to document a condition first because there may be a lawsuit later. In fact, petitioner admits that he only took photos after his supervisor suggested that he should (his supervisor admits this); this apparently occurred only after he had cleaned up much of the standing water. Moreover, while the Court understands that respondents wanted to review petitioner's cell phone, petitioner's allegation (which was not rebutted via an affidavit) that he was being pressured to resign that day justifies his decision not to hand over his phone. And respondents did not claim they fired him for not turning over his phone or cite to any rule or regulation that required him to turn over his cell phone when requested.
The cascading series of unfortunate events here resulted in termination solely because petitioner had an emergency which prevented him from appearing for a shift when he was on the random drug testing list. If he wasn't scheduled for a drug test that day, respondents do not argue that he would have been fired had he claimed an emergency that was later rejected. On this record, the only reason he was fired is because he was on the random drug testing list that day
And the fact is that petitioner's version of events is uncontested as respondents did not submit affidavits from individuals with personal knowledge to contradict petitioner's account. The verified petition alleges that petitioner explained that he learned he was on the drug testing list that morning from his supervisor, Mr. Swain, and that petitioner told Swain that he could report for the drug test in a few hours (NYSCEF Doc. No. 1, ¶ 10). Next, he alleges that Swain called him back and told him his shift was changed to the 4 p.m. to 12 a.m. shift and he would be tested then (id. ¶ 11). About an hour later, Swain again called petitioner and told him he did not have to appear for the shift later that day and should show up for his next shift on April 17, 2023 and be tested then (id. ¶ 12).
None of these facts are directly contested, even though the Court specifically highlighted these issues in the decision denying the cross-motion to dismiss (see NYSCEF Doc. No. 25 at 10). The Court questions, under these uncontested facts, how respondents can rationally justify firing petitioner. Petitioner made himself available to be tested later that day and respondents initially agreed, only to later tell him to report for work in two days. Then they fired him because he didn't come in. That appears to be a set-up or, at the very least, shows bad faith.
Most concerning is that in their memorandum of law in support of the answer, respondents allege, as they did in their cross-motion to dismiss, that "Petitioner knew he was on the list to be tested" (NYSCEF Doc. No. 37 at 5). On what basis can that assertion be made? Despite this Court expressly highlighting this issue in the interim order denying their cross-motion to dismiss, respondents again make this allegation but do not include any support whatsoever for this assertion. Given the importance of this issue-whether petitioner knew he was on the random drug testing list-making this claim again without any citation is a borderline frivolous argument. Obviously, if respondents had proof that petitioner knew he was on the list before he called in his emergency, they would presumably have included it. That they did not leaves the clear impression that he did not know. Plus, as noted above, petitioner's assertion that he learned about his placement on the list from his supervisor, after he called in due to his emergency, is uncontested.
In the previous decision, the Court expressly rejected respondents' curious argument that petitioner had constructive knowledge of his inclusion in the drug testing list as this assertion was based on an irrelevant premises liability principle (NYSCEF Doc. No. 25 at 7). Respondents apparently abandoned this constructive knowledge theory in their answer.
Respondents did not submit an affidavit from Mr. Swain to contest any of petitioner's factual assertions - notably, that Mr. Swain told petitioner he was on the testing list that day, that he first told petitioner to come in later for the drug test then called him back and told him not to come in. Significantly, respondents instead included two emails from Swain (NYSCEF Doc. Nos. 4 and 5) although respondents did not establish a proper foundation for their admissibility; no specifics are provided as to how these emails are kept or that they are fair and accurate copies of these communications.
In any event, these emails do not address petitioner's allegations in the verified petition that Swain was the one who told him he was on the drug testing list or that petitioner offered to come in for a drug test later that day. And they confirm petitioner's claim that Swain told him to get as much evidence as possible about the claimed emergency and to report for work on April 17 (two days later) (id.). Although hearsay evidence can be used in Article 78 proceedings (e.g., O'Hara v Brown, 193 A.D.2d 564, 565 [1st Dept 1993]), the issue here is that these submissions from Swain do not address many of petitioner's allegations, which leaves many of petitioner's claims as uncontested.
The Court recognizes that petitioner was a probationary employee. "A court's review of a determination to terminate a probationary employee is limited to consideration of whether the dismissal was in bad faith, in violation of statutory or decisional law, or for unconstitutional or illegal reasons" (Matter of Cooke v County of Suffolk, 11 A.D.3d 610, 611, 783 N.Y.S.2d 392 [2d Dept 2004]). The Court finds that petitioner's termination was in bad faith. Petitioner followed the guidance of his supervisor, showed up for next shift, took the drug test and passed it (along with additional tests in the following weeks). And now, for reasons not disclosed to this Court, respondents seem intent on firing him for not appearing for a randomly scheduled drug test despite being told he could show up for the test in two days.
On this uncontested record, respondents' bad faith is the only logical interpretation of petitioner's firing. The Court addressed, in great detail, the reasons why it denied respondents' cross-motion to dismiss. Chief among these was petitioner's version of events. And, yet, despite the Court highlighting the key issues, respondents did not submit an affidavit from anyone with personal knowledge in its answer and opposition papers. In fact, its answer is "verified" by an Executive Agency Counsel for Sanitation "upon information and belief." The failure to submit an affidavit to respond to the allegations in the petition or to expound upon respondents' justification compels the Court to find that petitioner's termination was in bad faith as petitioner's version of events is uncontradicted. Plus, the fact that there are no contested material facts negates any need for a hearing.
Summary
The twin issues of the claimed "emergency" and the "drug test" are inextricably intertwined in this proceeding. The basis for petitioner's firing is not that he failed a drug test or that he refused to show up for his test without providing a reason. Rather, respondents rejected his emergency, which (unfortunately for petitioner) happened to fall on the same day he appeared on a drug testing list.
This record shows, in this Court's view, that respondents seemed to have twisted themselves into a pretzel because they were intent on firing petitioner. They acknowledged that he had his hot water heater replaced that day and that petitioner called to report this emergency before his shift. But respondents scrutinized the severity of the claimed emergency to an unreasonable degree. They questioned the extent of the leaking, quibbled about petitioner's reason for not immediately leaving his home for the drug test, and complained about the sufficiency of petitioner's photo and documentary evidence.
To be clear, the Court finds that there was bad faith because petitioner alleged that he offered to come in that day for his drug test but was told that he could come in for his drug test on his next shift and he did so. Respondents should have accepted petitioner's offer to come in later that day to be drug tested or, alternatively, accepted the results of the drug tests petitioner subsequently took. Respondents did not cite any rational reason for why it applied such strict scrutiny towards petitioner's documentation and his employment status especially given that petitioner, on this record, passed multiple drug tests.
Petitioner was a probationary employee - respondents could have fired him for nearly any reason. But they could not fire him in bad faith. And here, the uncontested facts show just that. They knew he had a broken water heater that was leaking and replaced that day. They knew he was willing to come in for the drug test later that day once the plumber was finished. They told him not to come in and to wait the two days until his next shift. Then they fired him for not coming in the day his water heater broke-a day he offered to come in.
As petitioner pointed out, his termination was only discretionary, not mandatory. It may be that respondents suspect that petitioner somehow found out he was on the drug testing list and concocted this entire scenario to avoid taking the test (although that theory is belied by petitioner's uncontested allegation that he offered to come in the afternoon of the leak). But that suspicion must be supported with admissible evidence, not innuendo and conjecture. To rely solely on suspicion, without more, constitutes a bad faith reason to terminate a probationary employee who later appeared exactly when he was told and subsequently passed multiple drug tests.
Accordingly, it is hereby
ADJUDGED that the petition is granted, petitioner shall be reinstated and he shall be entitled to back pay and benefits from the date of his termination (May 26, 2023).