IN RE: Police Officer CHE LIN TSAO (2006)

Order and judgment (one paper), Supreme Court, New York County (Doris Ling-Cohan, J.), entered April 19, 2004, which granted the petition to the extent of annulling the determination of the Police Commissioner of the New York City Police Department dismissing petitioner as a probationary police officer and directing respondents to restore him to his position as a police officer with full back pay, benefits and seniority, unanimously reversed, on the law, without costs, respondents' termination of petitioner's employment reinstated, the petition denied and the proceeding dismissed.

 Petitioner, as a probationary employee, may be discharged without a hearing, or statement of reasons, for any reason or no reason at all, in the absence of a demonstration that the dismissal was in bad faith, for a constitutionally impermissible reason, or in violation of the law (Matter of York v. McGuire, 63 N.Y.2d 760, 761, 480 N.Y.S.2d 320, 469 N.E.2d 838 [1984];  Matter of Welsh v. Kerik, 304 A.D.2d 417, 757 N.Y.S.2d 430 [2003], lv. denied 100 N.Y.2d 510, 766 N.Y.S.2d 163, 798 N.E.2d 347 [2003] ).   While a hearing may be necessary in those instances where an issue of a substantial nature is raised regarding the probationary employee's dismissal (Matter of Beacham v. Brown, 215 A.D.2d 334, 627 N.Y.S.2d 358 [1995], lv. denied 87 N.Y.2d 801, 637 N.Y.S.2d 688, 661 N.E.2d 160 [1995];  Matter of Miciotta v. McMickens, 118 A.D.2d 489, 491, 499 N.Y.S.2d 960 [1986] ), the burden falls squarely on the petitioner to demonstrate, by competent proof, that a substantial issue of bad faith exists, or that the termination was for an improper or impermissible reason (Matter of Cipolla v. Kelly, 26 A.D.3d 171, 812 N.Y.S.2d 462;  Matter of Beacham v. Brown, 215 A.D.2d at 334, 627 N.Y.S.2d 358), and mere speculation, or bald, conclusory allegations are insufficient to shoulder this burden (Matter of Green v. Bd. of Educ. of the City Dist. of New York, 262 A.D.2d 411, 412, 691 N.Y.S.2d 187 [1999];  Matter of Garcia v. New York City Probation Dept., 208 A.D.2d 475, 476, 617 N.Y.S.2d 724 [1994];  Matter of Cortijo v. Ward, 158 A.D.2d 345, 551 N.Y.S.2d 36 [1990] ).   Moreover, as the Court of Appeals recently opined, “mere personality conflicts must not be mistaken for unlawful discrimination ․” (Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 309, 786 N.Y.S.2d 382, 819 N.E.2d 998 [2004] ).

 In this matter, petitioner has failed to present any evidence that his dismissal was due to bad faith or racial animus.   Indeed, there are no allegations that petitioner's supervisor used racial epithets or referred to petitioner's race in any manner, and it is clear from the record that petitioner, the only officer assigned to a certain allegedly undesirable duty on the date in question, had the least seniority among the officers present for the detail.   Accordingly, the Commissioner's disciplinary determination to dismiss petitioner, which decision is entitled to substantial deference (Trotta v. Ward, 77 N.Y.2d 827, 566 N.Y.S.2d 199, 567 N.E.2d 241 [1991];  Matter of Batista v. Kelly, 16 A.D.3d 182, 791 N.Y.S.2d 45 [2005] ), should be reinstated.