IN RE: the Application of Kennedy McDONNELL (2006)

Petitioner Kennedy McDonnell commenced this proceeding pursuant to Article 78 of the Civil Practice Law and Rules (CPLR) requesting a judgment annulling and vacating the determination by Respondent Patricia Lancaster as Commissioner of the New York City Department of Buildings (DOB), which terminated Petitioner's employment as a Plumbing Inspector, and restoring to Petitioner all back pay, benefits, service time, vacation time, increments, seniority, and other fringe benefits.

Petitioner claims his termination was arbitrary, capricious and in violation of the State and City “whistleblower” protections codified in Civil Service Law § 75-b (CSL § 75-b) and NYC Administrative Code § 12-113.   Respondent in its answer claims that Petitioner, as a provisional employee, may be terminated for any reason and that Petitioner's inadequate job performance constitutes a good faith basis for his termination.   In addition, Respondent alleges that Petitioner's whistleblower claims must fail, because both the type of conduct and method of reporting fall outside the scope of CSL § 75-b and because Admin. Code § 12-113 does not create a private right of action.

Background Facts

On May 9, 2005, Petitioner was provisionally appointed as a Plumbing Inspector for the DOB. Following a series of events, the facts of which are presented differently by both sides, Petitioner's employment was terminated on July 15, 2005, while he was still a provisional employee.

Petitioner alleges that during work he observed that his co-workers were not performing their duties correctly and were allowing dangerous conditions to remain.   He reported his observations to his superiors, and claims that as a result he was subjected to harassment and intimidation by his superiors and co-workers, which he reported as well.   On June 23, 2005 Petitioner reported to his supervisor that he had been offered a bribe while on the job, which he rejected.   After receiving the telephone number for the Department of Investigations (DOI) from his supervisor, Petitioner reported this incident to DOI by telephone on June 23, 2005 and by letter on June 24, 2005.   Petitioner was fired on July 15, 2005.   He made numerous failed attempts to obtain information regarding his termination, and then timely commenced this Article 78 proceeding.

In contrast, Respondent emphasizes alleged incidents of insubordination by Petitioner and difficulties on the job.   Respondent cites situations, documented in a May 30, 2005 e-mail from Assistant Chief Plumbing Inspector Daniel Colone of the Bronx to Chief Daniel Prendergast, where Petitioner's training supervisor allegedly had to apologize for Petitioner's offensive conduct and lack of professionalism on the job.   In addition, Respondent asserts that Petitioner was hard to train because he would reject instruction with which he did not agree, challenge his superiors and fail to take notes.   While Respondent discusses Petitioner's reporting of the bribery attempt, she does not address the claim that Petitioner's supervisor gave him the telephone number for DOI.

Respondent also provides a copy of Petitioner's performance evaluation dated July 1, 2005, about one week after Petitioner reported the bribery attempt and two weeks before his firing.   In the evaluation, Petitioner was rated as conditional because he “could not get along with other inspectors” and was considered “too high strung”.   On July 7, 2005 Petitioner was the subject of a complaint made to the DOB Office of Internal Audits and Discipline by three of his supervisors.   In this complaint, the supervisors admitted that Petitioner was knowledgeable about plumbing, but recommended termination because of Petitioner's problems with co-workers and supervisors.   In another complaint about Petitioner brought around the same time, the supervisors asserted that Petitioner had inspected sites that did not need inspection and had improperly raised issues where it appeared that the code had been followed.   The complaint also referenced an alleged situation where Petitioner showed up at his superior's vacation home uninvited.   Finally, Respondent discusses a complaint filed by a private plumber against Petitioner.   This complaint stemmed from an incident on July 8, 2005, when Petitioner allegedly gave the plumber a failing mark on a spot inspection because the perforated drawings which Petitioner had requested were being kept downstairs in a shanty due to rain, instead of on the first floor with the foreman as required by law.

Although Petitioner does not discuss any of these incidents in his Petition, in his Reply he takes exception to Respondent's recitation of the facts.   In addition, Petitioner claims that Respondent has included no affidavits to support the assertions made in the e-mail or to support any of the incidents discussed in the answer.   Petitioner also emphasizes that all of the documentation of his alleged problems on the job came after his disclosure to his supervisor of his co-workers' poor job performance and the attempted bribery.   He correctly notes that, but for the May 30, 2005 e-mail, mistakenly interpreted as being sent on January 24, 2006 based on the forwarding date, all of the documentation reporting Petitioner's alleged poor performance occurred after Petitioner's whistleblowing disclosures.

Discussion

A. Petitioner's Status as a Provisional EmployeeDoes Not Bar a Claim under CSL § 75-b

 Wholly without merit is Respondent's argument that CSL § 75-b does not apply to a provisionally appointed employee like Petitioner. CSL § 75-b uses very broad language to define the types of protected public employees who can seek protection under this statute, including “any person holding a position by appointment or employment in the service of a public employer except judges or justices of the unified court system and members of the legislature.”   Based on the statute's definition, a provisional employee, just like any regular employee, is entitled to assert a claim under CSL § 75-b.

In addition, the cases relied upon by Respondent are distinguishable because none of them deals with a claim under CSL § 75-b, interpreting instead situations where no claim of a statutory violation has been asserted.   As the First Department explained in Brown v. City of New York, 280 A.D.2d 368, 370, 721 N.Y.S.2d 497 (1st Dep't 2001), a provisional employee may be discharged for any reason absent a showing that the dismissal was “in bad faith, for a constitutionally impermissible purpose or in violation of law ․” Since Petitioner here is alleging that he was unlawfully discharged in retaliation for a whistleblowing disclosure, the alleged “violation of law” entitles him to judicial review of his discharge.

B. Requirements of CSL § 75-b

For Petitioner to make a successful claim under CSL § 75-b, he must show both that the conduct reported meets one of the two requirements in § 75-b(2), subd. (a), and that the way in which the conduct was reported meets the requirements under subdivision (b) of the same provision.   The burden is on the Petitioner in the first instance to present evidence of a statutory violation, which in this case means showing that Petitioner's claim meets the requirements of CSL § 75-b.   If Petitioner meets this burden, then it becomes Respondent's obligation to establish an independent basis for termination.

Thus, in Hernandez v. City of White Plains, 301 A.D.2d 523, 753 N.Y.S.2d 731 (2nd Dep't 2003), the appellate court ultimately reversed the trial court's order for a hearing, since it found petitioner had failed to meet his burden of showing in the first instance that he had been discharged in bad faith or in violation of law.   The Second Department explained that:

[w]hile a hearing may be required to resolve issues of fact regarding whether the reasons for the termination were impermissible, the petitioner bears the burden of presenting competent proof of the alleged bad faith, the violation of statutory or decisional law, or the unconstitutional or illegal reasons ․

301 A.D.2d at 524, 753 N.Y.S.2d 731 (citations omitted).   Similarly, in Chamberlin v. Jacobson, 260 A.D.2d 317, 689 N.Y.S.2d 83 (1st Dep't 1999), cited by Respondent, the First Department affirmed the lower court's decision to deny petitioner's Article 78 application to compel reinstatement to his former position in the New York City Department of Correction.   The First Department held that, “[t]here is no basis to find that petitioner was terminated solely in retaliation for his purported whistleblowing disclosures” because respondent had offered proof to show that petitioner had been fired due to “budgetary concerns and his lack of the appropriate professional background.”   However, as will be discussed below, where there is a question of fact as to the existence of an independent basis for termination, a hearing is necessary.

C. The Misconduct Alleged by Petitioner Falls Within the Scope of CSL § 75-b

 Respondent asserts that the reported conduct, a bribery attempt, is outside the scope of CSL § 75-b(2), subd. (a).  The parties agree that the bribery attempt does not fall under subdivision (a)(ii) because it is not an improper governmental action as defined by the statute ¹ .  However, subdivision (a)(i) of that section encompasses conduct “regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety ․” Respondent argues that a failed bribery attempt, while reprehensible, does not pose a substantial danger to public health or safety.   In contrast, Petitioner argues that since Plumbing Inspectors are hired to ensure that all relevant codes and standards are followed, a bribery attempt, which if successful could circumvent ensuring that this work is done with the utmost care, creates a substantial and specific danger to public health or safety.

After reviewing the arguments of both parties, the Court finds that a failed bribery attempt does indeed meet the “substantial and specific danger to the public health or safety” requirement of this provision and constitutes the type of conduct that is protected by CSL § 75-b.   The cases Respondent cites are distinguishable since they deal with claims brought under Labor Law § 740.  Labor Law § 740 has different requirements than CSL § 75-b, which are not applicable in the present case.

 Petitioner has, in any event, offered a second basis for his CLS § 75-b claim, pointing to reports he made about his co-workers' alleged misconduct which he reasonably believed constituted improper governmental action that posed a specific danger to the health and safety of the public.   Unlike the bribery attempt, which only met one of the two alternate criteria required under CSL § 75-b(2), subd. (a), the incidents relating to the co-workers' alleged misconduct could meet either of the criteria under § 75-b(2), subd. (a).  First, Petitioner must be able to show that the alleged misconduct was in violation of a “law, rule or regulation”.   Then, since the alleged misconduct included the use of faulty valves, improper gas meters, and the placement of gas close to an infant's bedroom, such actions would meet the “substantial and specific danger to the public health or safety” requirement of CSL § 75-b(2)(a)(I).   Secondly, the alleged misconduct can be considered “improper governmental action” as defined by the statute ² , given that Petitioner's co-workers are public employees and their alleged actions were done in the performance of their official duties.   Therefore, this reported conduct could also meet the criteria of CSL § 75-b(2), subd. (a)(ii) in that it arguably violated “any federal, state or local law, rule or regulation”.

D. CSL § 75-b(2)(b) Reporting Requirement Must also be Satisfied

In addition to the above showing, Petitioner must also satisfy the reporting requirements of § 75-b(2), subd. (b).  Respondent argues that out of Petitioner's claims, only the bribery attempt deserves attention because the others fail to meet the reporting requirements of this provision.   CSL § 75-b(2), subd. (b) requires that:

[p]rior to disclosing information [to a governmental body] an employee shall have made a good faith effort to provide the appointing authority ․ the information to be disclosed and shall provide the appointing authority ․ a reasonable time to take appropriate action unless there is imminent and serious danger to public health or safety.

While Petitioner reported both the alleged misconduct of his co-workers and the bribery incident to the appointing authority, his supervisor, he failed to report anything other than the bribery attempt to a governmental body.

 Petitioner's assertions notwithstanding, the case law indicates that reporting to both an appointing authority and a governmental body is necessary to make a claim under CSL § 75-b.   As explained in Bal v. City of New York, 266 A.D.2d 79, 698 N.Y.S.2d 852 (1st Dep't 1999), merely reporting the alleged misconduct to a supervisor does not constitute the required disclosure to a governmental body necessary to make a claim under CSL § 75-b.   Similarly, in Brohman v. N.Y. Convention Ctr. Operating Corp., 293 A.D.2d 299, 740 N.Y.S.2d 312 (1st Dep't 2002), the First Department affirmed this Court's decision, dismissing the CSL § 75-b claim on the ground that petitioner had failed to disclose the alleged misconduct to an appropriate appointing authority prior to reporting it to the governmental body.   Therefore, since Petitioner only reported the alleged bribery to both an appointing authority and governmental body, only that claim remains viable under CSL § 75-b.

However, Respondent claims that even if the bribery attempt was appropriately reported to both an appointing authority and a governmental body, this claim should still fail because Petitioner did not allow a reasonable time between when he reported the incident to his supervisor and his contact with the Department of Investigations (DOI).   According to CSL § 75-b(2), subd. (b), a reasonable time must be allowed between reporting information to an appointing authority and a governmental body in order to afford the appointing authority a chance to take appropriate action.   In response, Petitioner asserts that, according to the latter portion of subdivision (b), a reasonable time is not needed when “there is imminent and serious danger to public health or safety.”   Petitioner claims that a bribery attempt poses an imminent and serious danger to public health or safety because if such conduct is allowed to occur, building safety, which Plumbing Inspectors are supposed to ensure, is at high risk.   Secondly, Petitioner argues that since it was his supervisor who had given him the telephone number for DOI in response to the reported bribery attempt, Respondent should not be allowed to argue that Petitioner did not afford his supervisor a reasonable time to take appropriate actions to handle the situation.

Respondent relies on Garrity v. University at Albany, 301 A.D.2d 1015, 755 N.Y.S.2d 471 (3rd Dep't 2003) to support her argument that Petitioner's CSL § 75-b claim should fail here because he reported the bribery to DOI by telephone the same day that he informed his supervisor.   In Garrity, petitioner, a probationary pharmacist, had his CSL § 75-b claim dismissed because he had failed to allow a reasonable time between when he reported the questionable conduct to an appointing authority and his report to a governmental body the very next day, Garrity did not allow his appointing authority adequate time to take appropriate steps to deal with the situation.   However, the facts in Garrity are distinguishable from those in the present case because here Petitioner's supervisor gave him the telephone number of a governmental body to contact (DOI) after Petitioner went to him to report the bribery.   This act may well have been interpreted by Petitioner to mean that the appropriate next step was to contact DOI and/or that his supervisor was unwilling to deal with the situation himself.

However, the papers presented here do not provide sufficient detail about the circumstances surrounding Petitioner's receipt of DOI's telephone number from his supervisor.   Therefore, after reviewing the arguments, the Court finds that whether or not the reporting of the bribery attempt meets the CSL § 75-b(2)(b) criteria remains a question of fact.

E. A Hearing is Directed Under CPLR § 7804(h)

 CPLR Article 78 governs special proceedings brought against a body or officer, including this proceeding against the Commissioner of the N.Y.C. DOB, Patricia Lancaster.  CPLR § 7804(h) states in part that, “[i]f a triable issue of fact is raised in a proceeding under this article, it shall be tried forthwith.”   See also, Matter of Pantelidis v. N.Y. City Bd. of Stds. & Appeals, Index No. 102563/03, Slip op. (Sup.Ct. N.Y. Co., September 19, 2003) (Schlesinger, J.), aff'd, 13 A.D.3d 242, 786 N.Y.S.2d 510 (1st Dep't 2004).   Since an issue of fact has been raised here in regard to both the criteria of CSL § 75-b(2), subd. (b), as well as to the existence of an independent basis for Petitioner's termination, a trial is not only necessary, but statutorily compelled.

A hearing pursuant to CPLR 7804(h) is necessary to determine whether Petitioner is entitled to CSL § 75-b protection.   Although I have found that the bribery attempt here can constitute the type of conduct protected by CSL § 75-b, the Court must determine whether the reporting requirement of CSL § 75-b(2), subd. (b) has been met.   If the reporting requirement has not been met, then Petitioner's claim must fail.   However, if the Court determines the reporting requirement has been met, then the burden will shift to the Respondent to prove the existence of a good faith basis for Petitioner's termination.   See Chamberlin, supra.   If Respondent proves that Petitioner was discharged for a reason independent of his disclosure of the whistleblowing information, Petitioner's claim under CSL § 75-b must fail.   However, since there is conflicting information pertaining to the existence of an independent basis for Petitioner's termination, this material issue of fact must also be addressed at the CPLR 7804(h) hearing.

In Rameau v. Cannon, 141 A.D.2d 454, 530 N.Y.S.2d 5 (1st Dep't 1988), the appellate court reversed the lower court's decision to annul petitioner's discharge as a case manager with the Bronx Borough of Developmental Services ³ without first holding a hearing and resolving outstanding issues.   The First Department explained that:

[w]hile the record contains substantial evidence that petitioner's performance was marginal, at best, and that his termination as a probationer was based solely on poor performance, there is also an indication that his termination may have been the culmination of an effort to silence his “whistleblowing” activities.

141 A.D.2d at 454, 530 N.Y.S.2d 5.   Based on this finding, the court concluded that enough had been shown to warrant a judicial hearing to determine whether petitioner's termination had been made in good faith, and it remanded the case to the trial court for a hearing.   Likewise, in Garrity, appellate court reversed the trial court's decision, finding that there was sufficient evidence on the record to warrant a hearing to determine whether petitioner's termination “was made in bad faith or related to work performance.”  301 A.D.2d at 1017, 755 N.Y.S.2d 471.⁴  Also, as in this case, in Garrity “there [was] no documentary evidence confirming respondents' allegation that insubordination and inability to work with others were reasons for termination contemplated before petitioner's whistleblowing.”  Id.

In addition, in Weber v. County of Nassau, 215 A.D.2d 567, 627 N.Y.S.2d 64 (2nd Dep't 1995), the Second Department affirmed the trial court's order for a hearing because petitioner had raised a material issue of fact regarding whether her dismissal had been in bad faith.   In Weber, petitioner was a probationary Mental Health Representative for the Nassau County Department of Mental Health.   During her employment she learned of a situation which she believed she was required to report pursuant to Social Service Law § 413.   Petitioner's supervisor told her not to file such a complaint, and she alleged that she had been discharged because of her intention to do so.   In contrast, the County contended that petitioner was discharged because of unsatisfactory work performance.   As a result of these conflicting facts, the trial court conducted a hearing on the matter and found that petitioner had been wrongfully discharged and directed that she be reinstated.   While the Second Department ultimately reversed the trial court's decision to grant judgment in favor of petitioner (since Social Service Law § 413 did not actually apply), it supported the trial judge's decision to conduct a trial on this matter since petitioner had raised material issues of fact as to her termination.

In the present case, as in the above cases, the parties present conflicting claims as to why Petitioner's employment was terminated.   Petitioner provided evidence, including documentation of the complaints he made in regard to his co-worker's conduct and the bribery attempt, to support the claim that his termination was the result of retaliation for his whistleblowing disclosures.   In addition, Petitioner points out that aside from the e-mail offered by Respondent (which Petitioner asserts has admissibility issues), all other documentation to support the independent basis for Petitioner's termination was completed after his complaint to his supervisor and the DOI in regard to the bribery attempt.   However, Respondent submitted an e-mail, performance evaluations, and formal complaints to support an independent basis for Petitioner's termination.   Therefore, as in Rameau, Garrity and Weber, issues of fact exist warranting a hearing to determine whether Petitioner's discharge violates CSL § 75-b.

Conclusion

The purpose of the CPLR 7804(h) hearing directed here is twofold.   First, the Court must determine based on the evidence presented by the parties whether the reporting requirement outlined in CSL § 75-b(2), subd. (b), has been met.   Assuming the Court finds in favor of Petitioner on that point, it must then decide whether Respondent has established a good faith basis for Petitioner's termination.⁵

Accordingly, it is hereby

ORDERED that the petition is granted to the extent of directing a hearing consistent with this decision;  and it is further

ORDERED that the parties shall appear in Room 222 on September 13, 2006 at 10:30 am for a conference to schedule a hearing in accordance with this decision.

This constitutes the decision and order of the Court.

FOOTNOTES

1.   CLS § 75-b explains that, “improper governmental action' shall mean any action by a public employer or employee, or an agent of such employer or employee, which is undertaken in the performance of such agent's official duties, whether or not such action is within the scope of his employment, and which is in violation of any federal, state or local law, rule or regulation.”

2.   See note 1

3.   A division of the New York State Office of Mental Retardation and Developmental Disabilities

4.   However, the petitioner in Garrity, a probationary pharmacist who brought a claim under CSL § 75-b, could not succeed because he had failed to allow a reasonable time between reporting the information to an appointing authority and a governmental authority.

5.   In this proceeding Petitioner claims a violation of both NYC Admin. Code § 12-113 and N.Y. CSL § 75-b.   Since there is a private right of action pursuant to CSL § 75-b, it is unnecessary at this time to address Respondent's claim that no private right of action exists under NYC Admin. Code § 12-113.

ALICE SCHLESINGER, J.