This is a CPLR article 78 proceeding to review the determination of respondent, New York State Division of Human Rights ("DHR" or "Division"), et al., terminating the probationary appointment of petitioner, Joseph F. Muto (muto). Petitioner seeks to annul the determination on the grounds of bad faith and arbitrary and capricious action and to reinstate him with full back-pay and entitlements.

Factual Background

Petitioner, Joseph F. Muto (Muto), was hired by respondent, New York Division of Human Rights ("DHR" or "Division") on or about March 1, 2006 as [*2]a Human Rights Specialist I for a probationary period of one year.^[FN1] Muto wrote on his employment application that although he had worked as practicing attorney in New York, he was not admitted to the New York bar.^[FN2] When asked during his interview, Muto explained that he had been disbarred for negligent client representation by failing to appear for out-of-state cases due to his fear of flying and heights.^[FN3]

Within the probationary period, DHR's senior staff held a meeting to review Muto's personnel file along with several decisions concerning his disbarment.^[FN4] They determined that Muto had failed to fully disclose the reasons for his disbarment,^[FN5] and that his conduct could undermine the public's confidence in the Division's work.^[FN6] Senior staff apprised Respondent Commissioner Gibson of their conclusions, stating that:

petitioner's ability to investigate human rights claims was negatively impacted by his deceit during the interview process and the true reasons for his disbarment which included dishonesty, fraud, deceit and/or misrepresentation. Petitioner's conduct affected the Division's ability to trust petitioner with respect to his responsibilities, duties, and judgment. Further, petitioner's conduct could undermine the public's confidence in the Division's work.^[FN7]

On January 30, 2007, Muto received a termination letter from DHR stating that a review of his disbarment proceeding, Matter of Muto (291 AD2d 188, 739 NYS2d 67 [1st Dept. 2002]), revealed that Muto's representations concerning his disbarment were "incorrect and misleading" and that a total of 43 serious charges [*3]had been brought and confirmed against petitioner by the Appellate Division.^[FN8] Respondents concluded that Muto "would not have been hired as a Division employee had these charges been made known to the Division at the time of [his] interview."^[FN9]

Petitioner Muto then commenced this Article 78 proceeding on the ground that his termination was done in bad faith and was arbitrary and capricious. Petitioner claims that he was honest during his interview with respondents and did not conceal his disbarment.^[FN10] As such, petitioner alleges that respondent's stated grounds are a pre-text for the real reason for his termination - that someone "at respondent's central office harbored a grudge' towards him."^[FN11] Petitioner claims that he was an exemplary employee as demonstrated by his probation reports,^[FN12] that he led the department in number of cases submitted for the year,^[FN13] and that his two immediate supervisors desired his retention.^[FN14] Petitioner also alleges that the former commissioner desired his retention and that "said former commissioner was fully aware of petitioner's disbarment and the underlying facts therefor."^[FN15]

In Matter of Muto (291 AD2d 188 [2002]), the Appellate Division sustained all 43 charges against petitioner and disbarred him finding that his conduct violated the following Disciplinary Rules of the Code of Professional Responsibility:

DR 1-102 (a) (4), (5) and (7) (22 NYCRR 1200.3) (conduct involving dishonesty, fraud, deceit or misrepresentation, prejudicial to the administration of justice, and adversely reflecting on one's fitness to practice law); DR 3-101(a) (22 NYCRR 1200.16) (aiding the unauthorized practice of law); DR 6-101 (a) (2) and (3) (22 NYCRR [*4]1200.30) (handling a legal matter without adequate preparation under the circumstances and neglect of a legal matter); DR 7-101 (a) (1) and (3) (22 NYCRR 1200.32) (failing to seek a client's lawful objectives and intentionally prejudicing or damaging a client during the course of representation);DR 7-106 (a) (22 NYCRR 1200.37) (disregarding a ruling of a tribunal); and DR 9-102 (a), (b), (c) (4), (d), (e), (I) and (j) (22 NYCRR 1200.46) (improper commingling of trust funds; improper maintenance of a trust account; failing to promptly deliver property a client is entitled to receive; failing to keep proper bookkeeping records and to produce such records as required by law; writing a check payable to "cash" from an IOLA account).

Additionally, the Referee found that petitioner had "made affirmative misrepresentations to the Immigration Court and the Department Disciplinary Committee to conceal his professional misconduct." (Matter of Muto, 291 AD2d at 191). Finally, the Appellate Division concluded by quoting the Hearing Panel's finding that petitioner "is a danger to any client who might retain him." (Matter of Muto, 291 AD2d at 193).

Legal Standard

It is well settled that a probationary employee may be terminated for any reason or no reason at all without an explanation. A probationary employee has no right to challenge a termination by way of a hearing or otherwise, absent a showing that the probationary employee was dismissed in bad faith or for an improper or impermissible reason. (see Matter of Swinton v. Safir, 93 NY2d 758, 720 NE2d 89, 697 NYS2d 869 [1999]; Matter of York v. McGuire, 63 NY2d 760, 469 NE2d 838 [1984], affg 99 AD2d 1023, 473 NYS2d 815 [1984]; Matter of Che Lin Tsao v. Kelly, 28 AD3d 320, 812 NYS2d 522 [1st Dept. 2006]).

"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, and that mere speculation, or bald, or conclusory allegations are insufficient to shoulder this burden." (Matter of Che Lin [*5]Tsao, 28 AD3d at 321; see also Matter of Cortijo v. Ward, 158 AD2d 345, 551 NYS2d 36 [1st Dept. 1990]; D'Aiuto v. Department of Water Resources, 51 AD2d 700, 379 NYS2d 409 [1st Dept. 1976]). Moreover, the Court of Appeals has opined, "mere personality conflicts must not be mistaken for unlawful discrimination . . ." (Matter of Che Lin Tsao, 28 AD3d at 321, quoting Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 309, 819 NE2d 998, 786 NYS2d 382 [2004]).

Judicial review of such an determination is "limited to an inquiry as to whether the termination was made in bad faith." (Soto v. Koehler, 171 AD2d 567, 568, 567 NYS2d 652, 654 [1st Dept. 1991], quoting Matter of Johnston v. Katz, 68 NY2d 649, 496 NE2d 223, 505 NYS2d 64 [1984]). "An arbitrary action is without sound basis in reason and is generally taken without regard to the facts." (Matter of Pell v. Board of Educ., 34 NY2d 222, 230-1, 313 NE2d 321, 325, 356 NYS2d 833, 838-9 [1974]; seealso CPLR 7803 [3]).

Finally, in determining the fitness of candidates for civil service, [W]ide discretion is afforded, . . . and [t]he exercise of that discretion is to be sustained unless it has been clearly abused." (Matter of Metzger v. Nassau County Civ. Serv. Commn., 54 AD2d 565, 566, 386 NYS2d 890, 891 [2nd Dept. 1976]). The court's function "should not be to second guess' administrative determinations made by various agencies and departments. Judicial review, as noted, is simply to determine if petitioner has shown bad faith on the part of the respondents." (Soto v. Koehler, 171 AD2d at 569).



Discussion

In the present matter, petitioner argues that there was no rational basis for terminating his employment. Petitioner asserts the termination was in bad faith because he had informed respondents of his disbarment which, as a matter of public record, gave respondents constructive notice of the full extent of his disbarment. Petitioner also alleges bad faith on the ground that he was an exemplary employee during the probationary period.

Petitioner's arguments fail to show that DHR's determination was in bad faith and lacked a rational basis for several reasons.

Civil Service Law § 50(4), authorizes a commissioner to "investigate the qualifications and background of an eligible after he has been appointed from the list, and upon finding facts which if known prior to appointment, would wave warranted his disqualification, or upon a finding of illegality, irregularity or fraud [*6]of a substantial nature in his application . . . may revoke such eligible's certification and appointment and direct that his employment be terminated." (emphasis added).

Thus, respondent was legislatively authorized to investigate petitioner's background even after he had been appointed. Given the work and the integrity required of a Human Right Specialist, "revocation after appointment upon a finding of a material omission of facts that otherwise would have precluded petitioner from qualification, is appropriate." (Matter of Dolan v. New York State Dept. of Civ. Serv., 304 AD2d 1037, 1039, 759 NYS2d 221, 223 [3rd Dept. 2003]). Petitioner's contention that respondent could have discovered all the details of petitioner's disbarment as a matter of the public record does not mitigate the fact that petitioner selectively disclosed aspects of his disbarment while omitting material facts on his application and during the interview process.

In Smith v. City of New York(228 AD2d 381, 644 NYS2d 720 [1st Dept. 1996]), the court emphasized the wide discretion afforded to civil service commissions; holding it was not arbitrary or capricious to terminate probationary employment on the grounds of unfit character for an employee whose answers, although truthful, were incomplete or ambiguous on an employment questionnaire regarding his conviction record.

As for petitioner's allegations regarding the quality of his work performance, the court found in York v. McGuire (63 NY2d 760), that the fact that a probationary employee had received some favorable evaluations as well as some unfavorable ones during her probationary period was not sufficient to raise a triable issue of fact as to bad faith.

Furthermore, in determining the fitness of candidates, the Civil Service Commission may inquire into the character and reputation of applicants and exclude "any person it deems unfit to occupy a public position and yet not be actually incompetent." (Matter of Metzger (54 AD2d at 566). An employee "could be excluded from public service by reason of indolence, inadaptibility to the service, garrulousness, want of character, experience, tact, integrity, or a lack of proper disposition, or the existence of habits which would render him quite unfit to assume the duties of the position." (Matter of Metzger, 54 AD2d at 566). Thus, although of great value and use to employers, satisfactory performance evaluations and statistics are not the sole criteria by which an employer may determine the fitness of their employees for a particular appointment. Petitioner's probation reports are insufficient to meet his burden of showing bad faith.

Petitioner additionally alleges that respondents acted in bad faith because his [*7]Regional Director and his immediate supervisor both desired his retention.^[FN16] This assertion neither rebuts respondent's stated rational basis, nor does it show the Commissioner's abuse of discretion. A commissioner is charged with appreciably different responsibilities and considerations than a supervisor. Accordingly, the Court of Appeals has held that "a Commissioner is entitled to substantial deference because [he or she], and not the courts, is accountable to the public for the integrity of the department." (Trotta v. Ward, 77 NY2d 827, 828, 567 NE2d 241, 242, 566 NYS2d 199, 200 [1991]).^[FN17]

Petitioner mistakenly relies on Cannon v. Adams(141 NYS2d 230 [1955]), which held that dismissal by a successor commissioner at the end of a patrolman's probationary period on the grounds of a prior arrest was arbitrary in the absence of new facts because the patrolman had fully disclosed the prior arrest to the former commissioner.

Petitioner has not met Cannon's requirement of showing actual full disclosure to the former commissioner. Instead, petitioner has submitted the affidavit of a former deputy commissioner who merely recounts petitioner's interview and states that she was "personally very upset" upon hearing of petitioner's termination.^[FN18]

Moreover, the circumstances in Cannon are readily distinguishable from the instant matter. In Cannon, the court's finding of arbitrary action was strongly influenced by the fact that the patrolman was a juvenile at the time and that he was not an actual participant in the crime. (Cannon, 141 NYS2d at 233). The court concluded that "there is no claim [the patrolman] was guilty of any act which would constitute the slightest infraction of law even if committed by an adult," and that "petitioner was not guilty of any act which should prevent his appointment." (Cannon, 141 NYS2d at 234). In contrast, petitioner in this matter was not only an [*8]adult, but he also violated several disciplinary rules warranting his disbarment.

Petitioner's other argument is that his termination was motivated by a "grudge" held by the Executive Deputy Director. Petitioner relies on Matter of Edell v. Municipal Broadcasting System (9 Misc 2d 220, 169 NYS2d 993 [1958]) for the proposition that a personal grievance can give rise to a triable issue. Edell, however, is distinguishable from the instant matter. In Edell, there was evidence in the form of various affidavits that a personal difference between petitioner and respondent's director had arisen because it was claimed that the director had wrongfully blamed petitioner for a program error of another employee. The court concluded, "If the venting of a personal grievance is found to lurk behind a finding of unfitness, the action taken becomes arbitrary and is stricken down. If the petitioner can establish his claim that this occurred here, he is entitled to redress." (Matter of Edell, 9 Misc 2d at 222). Here, petitioner has not established such a claim through any evidence of malice or personal grievance save the allegation set forth in ¶ 18 of the Verified Petition. Finally, "a mere speculative or conclusory allegation is not enough," and "mere personality conflicts must not be mistaken for unlawful discrimination."(Che Lin Tsao, 28 AD3d at 321).

In sum, petitioner has not met his burden in this matter to raise a triable issue of fact to support of a claim of bad faith, improper motive, arbitrariness or capriciousness. Respondents were authorized under Civil Service Law § 50(4) to investigate and revoke his appointment upon a finding of facts that if known would have precluded his appointment. Thus, respondents had a rational basis for terminating petitioner upon the discovery of facts and characteristics that rendered petitioner unfit for the position, undermined employer trust in petitioner, and could undermine public confidence in the Division.

Conclusion

Accordingly, the Respondent's Cross Motion to dismiss this Petition is granted. This constitutes the decision and judgment of this Court.

Date: April 10, 2008

______________________________

George D. Salerno, JSC [*9]