Opinion
100122/2017
08-07-2017
In the Matter of the Application of Susan Starker and LEE GORDON, Petitioners For a Judgment Pursuant to Article 78 of the Civil Practice Laws and Rules v. Gladys Carrion, as Commissioner of the New York City Administration for Children's Services; the NEW YORK CITY ADMINISTRATION FOR CHILDREN'S SERVICES, and the CITY OF NEW YORK, Respondents.
Lichten & Bright, P.C. by Stuart Lichten, Esq. Attorneys for Petitioners 387 Park Avenue South, 5th Floor New York, N.Y. 10016 (646) 588-4877 Zachary W. Carter Corporation Counsel of the City of New York by Sheryl Neufeld, Esq., Ave Maria Brennan, Esq. and Kerri A. Divine, Esq., of counsel Attorneys for the Respondents 100 Church Street, New York, N.Y. 10007 (212) 356-2214
Lichten & Bright, P.C. by Stuart Lichten, Esq. Attorneys for Petitioners 387 Park Avenue South, 5th Floor New York, N.Y. 10016 (646) 588-4877 Zachary W. Carter Corporation Counsel of the City of New York by Sheryl Neufeld, Esq., Ave Maria Brennan, Esq. and Kerri A. Divine, Esq., of counsel Attorneys for the Respondents 100 Church Street, New York, N.Y. 10007 (212) 356-2214 Manuel J. Mendez, J.
Upon a reading of the foregoing cited papers, it is Ordered and Adjudged that this Petition seeking to: (i) declare that Respondent New York City Administration for Children's Services' ("ACS") suspension and demotion of Petitioners was arbitrary and capricious, (ii) order ACS to make Petitioners whole, and (iii) order a holding of a name-clearing hearing, pursuant to Article 78 of the CPLR, is denied. Respondents' cross-motion to dismiss the Petition is granted
and the Petition is dismissed.
Petitioners Susan Starker and Lee Gordon were the director of the Employment Law Unit ("ELU") and Deputy Director of ELU respectfully, since 2011. In September of 2016, in the aftermath of the tragic death of a six-year-old boy, Respondent ACS conducted an internal review to determine if there were any failures of procedure by its staff. ACS found that in 2014 Petitioners were made aware of allegations that Nitza Sutton, an ACS Child Protective Specialist assigned to the case of the young boy, falsified documents. Petitioners, who were responsible for bringing disciplinary proceedings against employees suspected of incompetence or misconduct, subsequently initiated an internal audit of Sutton's case that eventually appeared to confirm Sutton's professional malpractice. The completed Sutton audit was sent to Petitioners in October of 2014 as it was then their responsibility to bring the findings to the attention of the Department of Investigation ("DOI") who could bring charges against Sutton for incompetence. Petitioners failed to alert the DOI and Sutton subsequently returned to her full duty, and resumed responsibility over the file of the young boy.
On October 7, 2016 after Petitioners Supervisor, ACS General Counsel Joseph Cardieri and ACS Commissioner Gladys Carrion became aware of Petitioners failures to alert the DOI of the Sutton audit, Petitioners were suspended for thirty (30) days without pay and demoted. Starker and Gordon contend the suspension and demotion was ordered as a retaliatory action for observing a religious holiday on the days following the murder of the young boy and were unable to timely respond to ACS General Counsel Cardieri's inquiries.
On January 31, 2017 Petitioners filed this Article 78 proceeding to: (i) have the court adjudge and declare that Respondents' suspension and demotion of Petitioners was arbitrary and capricious, (ii) order Respondents to make Petitioners whole, including back pay and benefits, removal of all defamatory material from Petitioners' personnel files, and reinstatement to their formal titles, and (iii) hold a name-clearing hearing. Respondents have submitted a Verified Answer and cross-move to deny the Petition and dismiss this proceeding in its entirety.
An administrative decision will withstand judicial scrutiny if it is supported by substantial evidence, has a rational basis and is not arbitrary and capricious (Matter of Pell v Board of Education, 34 NY2d 222, 356 NYS2d 833, 313 NE2d 321 [1974]; Davis v Hernandez, 13 AD3d 90, 786 NYS2d 444 [1st Dept. 2004]). "It is well settled that a court may not substitute its judgment for that of the board or body it reviews unless the decision under review is arbitrary and unreasonable and constitutes an abuse of discretion (Matter of Arrocha v Board of Education of the City of New York, 93 NY2d 361 [1999]). A courts review of an administrative decision ends when a rational basis has been found (Heintz v Brown, 80 NY2d 998, 592 NYS2d 652, 607 NE2d 799 [1992]). A reviewing court does not examine the facts de novo to reach an independent determination (id). "The determination of an agency, acting pursuant to its authority and in its area of expertise, is entitled to deference" (Nelson v Roberts, 304 AD2d 20, 757 NYS2d 41 [1st Dept. 2003]).
Respondent ACS has shown that the decision to suspend and demote Petitioners was supported by substantial evidence. The record indicates that Petitioners were suspended and demoted solely for their failure to adhere to their job responsibilities and follow-up on an ACS audit that raised serious concerns about an ACS caseworker. The suspension and demotion due to Petitioners professional failures are reflected in the various email exchanges between Petitioners and ACS General Counsel Cardieri (Respondents' Opposition Papers Exs. A-S). Petitioners contention that they were suspended as a form of religious discrimination since they were observing a religious holiday during the days of the aftermath of the tragic event appears disingenuous. While the few emails annexed by Petitioners taken out of context may suggest the suspension and demotion was a retaliatory action, the emails together paint a vastly different picture. Petitioners fail to overcome the high threshold that must be met to vacate the determination given, as the decision by ACS was not arbitrary and capricious considering the circumstances of the tragic murder of the young boy. Petitioners are not entitled to a name-clearing hearing as they have failed to establish that: (i) they were defamed; and (ii) the defamation occurred in the course of the termination of their employment or was coupled with a deprivation of a legal right or status (Abramson v Pataki, 278 F3d 93 [2nd Cir. 2002]). The statements made by Respondent ACS or ACS General Counsel Cardieri were neither false nor stigmatizing, and the statements made by various news reports regarding the events leading up to the murder of the young boy and subsequent actions taken by New York City and ACS were not attributable to ACS.
Accordingly, it is ORDERED AND ADJUDGED, that the Petition pursuant to Article 78 seeking to vacate and set aside Respondent New York City Administration for Children's Services determination to suspend and demote Petitioners, is denied, and it is further,
ORDERED, that Respondents' cross-motion to dismiss the Petition is granted, and it is further,
ORDERED AND ADJUDGED, that the proceeding is dismissed, and it is further,
ORDERED, that the Clerk of Court enter judgment accordingly. Dated: August 7, 2017 MANUEL J. MENDEZ