MEMORANDUM

SUPREME COURT : QUEENS COUNTY
IA PART 24

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MATTER OF CLAY SINGLETON                      INDEX NO. 19824/99

      - against -                             BY: GOLAR, J.

BERNARD B. KERIK, etc., et al.                DATED:

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In this Article 78 proceeding, petitioner seeks a judgment annulling respondents' determination of July 15, 1999 which terminated his employment as a New York City corrections officer. Petitioner further seeks a judgment directing respondents to remove all references to his termination from his employment file, reinstating him to his employment, together with back pay and other benefits, and awarding costs and disbursements.

Petitioner was appointed to the Department of Corrections as a corrections officer on May 10, 1990. He asserts that at all times during the course of his employment, he conscientiously performed all of his duties as a corrections officer, but he acknowledges that in 1993 he was diagnosed as an alcoholic, and that he was often out Asick@ from work, arrived late, and failed from time to time to call in to report that he would be absent from work. He argues however that all of his attendance problems were directly related to his alcoholism.

On May 9, 1999, petitioner sought help from the Department of Corrections' Employee Assistance Program ("EAP"), and upon the recommendation of an EAP counselor, he entered a three-week in-patient program for rehabilitation from alcoholism with a three-week leave of absence with pay; and he successfully completed the rehabilitation program and was discharged on June 1, 1999. On June 3, 1999, he returned to duty, and his EAP counselor arranged for a tour of duty change so that he could attend an out-patient counseling program. However, petitioner was terminated from his employment on July 15, 1999. He alleges that between June 3, 1999 and July 15, 1999 he was not absent from work, was punctual in attendance, and satisfactorily performed all of his assigned duties and that his termination from employment was in violation of Executive Law ' 296 which prohibits discrimination in employment based on disability; and petitioner argues further that his absenteeism prior to his entering the rehabilitation program, which resulted in his termination, was caused by his alcoholism.

Respondents, in opposition, assert that petitioner had a history of unsatisfactory employment which resulted in seventeen disciplinary charges and the execution of five negotiated plea agreements, and that petitioner's termination was neither arbitrary nor capricious nor an abuse of discretion. Rather, respondents argue, petitioner's termination was based upon repeated disciplinary violations, including his violation of the last negotiated plea agreement entered into on February 5, 1999 and re-executed on April 5, 1999, and that petitioner was on probation and that the evidence in the record establishes that his job performance was unsatisfactory. It is, therefore, claimed by respondents that the termination was made in good faith and should be upheld. Respondents further argue that even if petitioner can establish a prima facie case of discrimination based on a disability under Executive Law ' 296, petitioner's alleged disability prevented him from performing his job duties in a reasonable manner, and his violation of the negotiated plea agreement proves that the termination was for a nondiscriminatory reason.

In 1994, petitioner took eighty-nine sick days, and in December 1994, lost five vacation days due to charges. In 1995, petitioner took thirteen sick days, lost two vacation days as a result of an AWOL charge, and had five separate charges combined which resulted in a ten-day suspension. In 1996, petitioner took twenty-five sick days, and had three separate AWOL charges which resulted in a combined penalty of fifteen days suspension. For the period between September 9, 1996 and March 18, 1997, petitioner had five separate AWOL or lateness violations which resulted in a combined penalty of six months of limited probation for AWOL's and lateness. In 1997, petitioner took twenty-eight sick days; he was absent a total of seventeen days from May 9, 1998 to February 20, 1999 due to illness; he was absent without authorization from February 8, 1997 to May 5, 1999, for a total of thirteen days; and from August 2, 1997 to January 5, 1999, he was late reporting to work on eleven occasions.

In 1998, in addition to the foregoing, five separate AWOL and lateness violations resulted in a combined penalty of twenty-four months of limited probation, plus a loss of ten vacation days. Petitioner consented to this penalty by executing a negotiated plea agreement on February 5, 1999. On April 5, 1999 he was served with a copy of this agreement and acknowledged such service. It should be noted, however, that notwithstanding this poor record no action was taken based on it.

On May 5 and 6, 1999, petitioner failed to report for his assigned tour in direct violation of his negotiated plea agreement. Petitioner also called in sick on May 9, 1999. On May 10, 1999, the warden at the facility where petitioner was assigned requested that petitioner be terminated due to his violation of the February 5, 1999 agreement. The Commissioner of the Department of Correction, in a decision dated July 12, 1999, terminated petitioner as a probationary employee. The Commissioner's determination set forth the absences from work of petitioner on May 5, and May 6, 1999, the sick day of May 9, 1999, and the EAP absence from May 11, 1999 through June 2, 1999. Petitioner's termination became effective on July 15, 1999 and he was notified of the Commissioner's determination on July 14, 1999.

In Matter of McEniry v Landi (84 NY2d 544), the Court of Appeals found that alcohol dependency qualifies as a disability within the meaning of the Human Rights Law. (Executive Law ' 296[21][a].) To establish a prima facie case of discrimination under Executive Law ' 296, a petitioner must demonstrate that he or she "suffers from a disability and the disability caused the behavior for which the individual was terminated." (Matter of McEniry v Landi, 84 NY2d 554, 558.) "Once a prima facie case is established, the burden of proof shifts to the employer to demonstrate that the disability prevented the employee from performing the duties of the job in a reasonable manner or that the employee's termination was motivated by a legitimate nondiscriminatory reason." (Matter of McEniry v Landi, supra, at 558.) The relevant time for assessing whether the employee is capable of performing the duties of the job is when he or she is actually terminated, rather than when the misconduct which formed the stated basis for the dismissal occurred. (See, Matter of McEniry v Landi, supra, at 560.)

The facts in this case are similar to those presented in McEniry (supra). Petitioner Singleton entered a rehabilitation program and, upon discharge therefrom, he performed his job in a satisfactory manner, without relapse. Respondents do not challenge petitioner's assertion that his pre-rehabilitation attendance problems were alcohol related. Prior to entering the rehabilitation program, petitioner was charged with, and ultimately dismissed for, pre-rehabilitation absenteeism which occurred on May 5, 6 and 9, 1999 (as well as for his absences while he was actually an in-patient in the rehabilitation program). Thus contrary to respondents' assertion in this proceeding, petitioner's termination was not based solely upon his cumulative attendance and disciplinary record. The court finds, under these circumstances, petitioner has established a prima facie case of discrimination based on his alcoholism and respondents have failed to establish that at the time of his termination, petitioner was unable to perform his job duties because of alcoholism. Respondents' termination of petitioner, thus, was in violation of Executive Law ' 296. (See, Matter of McEniry v Landi, supra; cf., Matter of Siano v Dolce, 256 AD2d 582; Matter of Murolo v Safir, 246 AD2d 653; Matter of Myszczenko v City of Poughkeepsie, 239 AD2d 584.)

The fact that petitioner, pursuant to the negotiated plea agreement, was a probationary employee, does not require a different result. A probationary employee can be terminated "without a hearing and without a statement of reasons in the absence of any demonstration that the dismissal was for a constitutionally impermissible purpose or in violation of statutory or decisional law [citations omitted]." (Matter of York v McGuire, 63 NY2d 760, 761.) Judicial review of such a determination "is limited to an inquiry as to whether the termination was made in bad faith." (Matter of Johnson v Katz, 68 NY2d 649, 650.) The burden of raising and proving "bad faith" is on the employee and the mere assertion of "bad faith" without the presentation of evidence demonstrating it does not satisfy the employee's burden. (See, Matter of Soto v Koehler, 171 AD2d 567; Matter of Cortijo v Ward, 158 AD2d 345.)

Applying these principles to the case at bar, the court finds that respondents' determination to terminate petitioner was taken in "bad faith" so as to be arbitrary and capricious. Petitioner has established that his termination was improperly based upon his past transgressions after he successfully completed a rehabilitation program and returned to work. There is no evidence in the record that following petitioner's return to work on June 3, 1999 he was absent, late, was subject to discipline or failed to perform his job duties in a satisfactory manner. Petitioner had entered the rehabilitation program with his employer's knowledge and approval. The very purpose of the EAP program is to permit an individual who has an alcohol abuse problem to be rehabilitated, start anew and become a productive employee without fear of retribution. The timing of petitioner's termination, approximately six weeks after he completed the rehabilitation program, "sends a particularly chilling message to others who would seek help, but fear the stigma and retribution associated with admitting alcohol or drug dependency." (Kroboth v Sexton, 160 AD2d 126, 130.) Respondents' decision to terminate petitioner for pre-rehabilitation absenteeism, thus, constitutes "bad faith." (See generally, Matter of Johnson v Katz, 68 NY2d 649, 650; Kroboth v Sexton, 160 AD2d 126; cf., Rogers v City of New York, 193 AD2d 506; Soto v Koehler, 171 AD2d 567.)

In view of the foregoing, the within petition is granted, and the Commissioner's decision to terminate petitioner as of July 15, 1999 is vacated. Respondents are directed to reinstate petitioner to his position as a Corrections Officer, with full back pay and all benefits, as of July 15, 1999.

Settle judgment.

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             J.S.C.