Mapp v. Burnham

OPINION OF THE COURT Catterson, J. In this transferred CPLR article 78 proceeding, this Court is called upon to review the Port Authority’s determination to terminate petitioner’s employment following an administrative hearing. Judicial review of an article 78 proceeding is limited to whether the determination was supported by substantial evidence. (CPLR 7803 [4].) “[A] determination is regarded as being supported by substantial evidence when the proof is ‘so substantial that from it an inference of the existence of the fact found may be drawn reasonably.’ ” (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 179 [1978], quoting Matter of Stork Rest. v Boland, 282 NY 256, 273 [1940].) A reviewing court must determine whether .there is a rational basis for the findings of fact supporting the decision in question by reviewing the whole record. (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d at 182.) Upon a review of the whole record in the instant case, we conclude that the evidence is insufficient, and therefore find that the determination lacks a rational basis and must be annulled. At the time of the terrorist attack of the World Trade Center on September 11, 2001, petitioner was employed as a senior product consultant in the Technology Services Department of the Port Authority of New York and New Jersey. In a memorandum to defendant Joseph Seymour, Executive Director of the Port Authority, defendant Gregory G. Burnham, the Chief [39] Technology Officer of the Technology Services Department, recommended that petitioner be terminated from his employment because he applied for and accepted financial aid from the American Red Cross (hereinafter referred to as the Red Cross) based upon misleading information that petitioner allegedly provided concerning his employment status in the aftermath of September 11th. After an administrative hearing was conducted, the designated hearing officer recommended that petitioner be terminated. In particular, the hearing officer based his decision upon the following evidence: (1) the petitioner’s statement to the Red Cross representative that he was “laid off” when he had not been terminated, and was in fact receiving his paycheck; (2) petitioner’s written statement given to the Office of the Inspector General in which petitioner apologized “profusely” for his actions, which the hearing officer found to be indicative of petitioner’s guilt; and, (3) the petitioner’s testimony that he needed financial assistance from the Red Cross to pay for future childcare,1 while the Red Cross document at issue states that petitioner had requested the funds to pay for outstanding debts, and petitioner used the money to pay the arrears for his children’s after-school program. The hearing officer found such evidence sufficient to support the termination in that these actions were “a significant violation of the General Rules and Regulations for All Port Authority Employees” and, in particular, brought “discredit to the Port Authority.”2 On May 14, 2003, after review of the recommendation, the termination was made final. Petitioner began his employment with the Port Authority in 1986. On the morning of September 11, 2001, petitioner exited a subway station near the World Trade Center and learned that the two towers had been struck by planes. Petitioner was close enough to observe first-hand the horror as people leapt from the buildings, as well as the actual collapse of both towers. He described in detail the mental trauma he suffered in the aftermath of the attack. Petitioner had also been present during the 1993 World Trade Center bombing and suffered emotional trauma from that event, which resurfaced as a direct result of September 11th. Petitioner’s psychologist, Dr. Robert Axel, who [40] had been treating petitioner since 1991, testified as to the acute stress disorder that petitioner suffered as a result of September 11th. On September 14 and 28, 2001, petitioner received his biweekly salary. On October 4, 2001, petitioner went to the Red Cross site for assistance. The Port Authority introduced into evidence at the hearing a Red Cross document entitled “Disaster Registration and Case Record” that was filled out for petitioner by a Red Cross employee that day. The Red Cross representative had written “client is presently layd [s¿c] off and will be-called back to work as soon [sic] the company will relocate.” In another section, the representative wrote “client states that he is helpful [sic] that as soon as the company relocate [sic] he will be called back to work.” The document is signed by the petitioner in two places: one signature stands alone and the other authorizes the release of confidential information. Petitioner states that he was told to sign it by the representative and did so without reading it. Indeed, no affirmation or attestation as to the veracity of the document or the information contained in it is present anywhere on the form. In addition, there is no language on the form, or place for petitioner to sign his name or initials, to indicate that petitioner either read the document or that it had been read to him. The petitioner has always maintained that after viewing Red Cross fliers offering assistance to victims of the attack, he went to the Red Cross center and told the representative that he needed help with childcare because of the stress he was feeling. According to petitioner, the representative told him he had to go to another location for that assistance, and he got up to leave. She then told petitioner that they could help him by giving him a financial gift that he could use to cover childcare expenses, so he sat back down. Petitioner explained that he told the representative that he worked for the Port Authority and showed her his employee identification card. He told her that he was displaced from his job location and would be called back. He testified that he never told her that he was “laid off.” It is uncontroverted that the form in issue was filled out by the representative and not petitioner. Petitioner further stated that later that day, after speaking to a friend at a memorial service, he thought that he might have done something wrong so he called the Red Cross the next day to clarify that he was indeed still employed and receiving his [41] paychecks.3 He was told by the Red Cross representative over the phone that he need not return the money, that it was a gift and if he needed it he should keep it. No testimony or other evidence from the Red Cross was introduced at the hearing. The fliers that petitioner referred to were also introduced into evidence at the hearing. Under a heading labeled “Assistance Provided According to Need” there is a section that specifies that the Red Cross would give aid to “Physically or Emotionally Affected Individuals and Their Families.” In particular, this section of the brochure states that the Red Cross can provide “[financial assistance with mortgage, rent, utilities, monthly bills, food and clothing.” (Emphasis added.) In another section, the “Emergency Family Gift Program,” under the same heading, it states that there is “[immediate cash assistance to aid families of the victims of the World Trade Center.” Finally, under the heading “Eligibility for American Red Cross Services,” it lists “[plhysically and or emotionally affected individuals and their families” as a group that the Red Cross hoped to help. Contrary to respondents’ position, there is nothing in these fliers that requires that a recipient be “laid off” or terminated from employment in order to receive aid. Furthermore, it stands uncontroverted that petitioner was affected by the tragedy of September 11th. Therefore, contrary to the unsupported allegations of the dissent that the petitioner had to have suffered some “economic injury,” the petitioner was entitled to the aid he received, which was the determination reached by the Red Cross itself in 2001 when it gave the gift of financial assistance to petitioner and told him to keep it the next day. Respondents have utterly failed to establish any evidence to the contrary. Similarly, the dissent’s argument that the Port Authority properly resolved this issue against the petitioner based upon “common sense” is nothing more than crediting the Port Authority’s speculation as to respondent’s eligibility. The dissent’s query on why the Red Cross worker would have written down that respondent was laid off if “that fact had [no] relevance to his entitlement” only compounds the hopeless speculation. Thus, there was no basis for the hearing officer, or respondents, to find that petitioner did anything wrong by receiving aid from the Red Cross. In addition, that a Red Cross representative may have misinterpreted petitioner’s statement that he was displaced [42] (which respondents concede he was) is inconsequential and cannot stand as a reason to fire petitioner. The petitioner testified that he never read the document relied on by respondents and the hearing officer. He certainly never swore to the truth of its statements and his signatures on the document cannot be construed as such an attestation. Even if petitioner had falsely represented that he was unemployed at the time, because being unemployed was not a prerequisite to receiving the assistance he collected, any such misleading statement is irrelevant and the conclusion that he lied to receive aid is inaccurate. He qualified for the aid in any event. Therefore, there is no basis to conclude that petitioner lied to receive the funds in question. Also unavailing is respondents’ argument that the petitioner is guilty of some wrongdoing because the application for aid reports that petitioner wanted the funds to pay for utilities, credit cards and groceries, while petitioner testified that he needed the money for future childcare, and yet actually used the funds to pay for past childcare arrears. Indeed, there simply was no condition placed upon petitioner’s use of the money. That he found it more important to pay for childcare arrears, rather than future childcare services is not evidence of any guilt or wrongdoing. Furthermore, respondents’ position (as well as that of the hearing officer) that petitioner’s written statement to investigators for the Office of the Inspector General containing an apology, indicates that petitioner must have done something wrong because he felt guilty enough to apologize, is preposterous. After receiving Miranda warnings, petitioner made a written statement that he applied for Red Cross aid that he understood from friends was available to victims of the World Trade Center attacks. In his statement, petitioner wrote that he was worried about the after-school program arrears he owed. He spoke to a caseworker and told her he worked for the Port Authority and gave her his identification card. She asked petitioner whether he was at work or at home and petitioner responded that he was at home and that the Port Authority had set up a command station. The Red Cross worker asked if petitioner would be called back to work and he answered yes, but that he did not know when. He told the representative he did not need money to pay his rent, but he did owe money for his children’s programs. According to petitioner’s statement, the caseworker told him that he could have $560 to use for whatever he needed and a food voucher, and she gave him a list of grocery stores [43] that accepted the voucher. She asked petitioner whether he had any other bills, he said he did not have any “on him,” and she asked him to come back the next day so that the Red Cross could help pay those other bills. According to the statement, the representative also stated that she would keep his case open. Petitioner then wrote that he did not return the next day, and that he felt bad about what he did. He spoke to a friend the next day and thought he should clarify that he would continue to receive his paychecks, so he called the Red Cross and informed a representative. That representative told him it was up to him, but that if he needed the money he should keep it. He stated that he cashed the check and used it to pay for his children’s after-school childcare arrears, and used the food voucher for food. Finally, the petitioner wrote that he never did anything like this before, that he realized that what he did was wrong, that he never intended to hurt anyone, and will repay the money. Petitioner stated at the hearing that he sought out the Inspector General’s Office to explain what had happened. Petitioner then told the hearing officer the circumstances surrounding the making of his written statement. He explained that he was there for a few hours, that he was very scared and nervous, that he is not a good writer and it takes him “forever to write something and think it through.” He also stated that he wrote and rewrote his signed statement, that the investigators wanted him to hurry, that he told them he was “stressed out” and needed childcare assistance, that he had mixed feelings about taking the charity because of the way he was raised and that “[y]ou don’t go on welfare[,] [t]here are certain things you don’t do.” Petitioner also testified that he was grateful to the Red Cross for what they did and how they helped people, and so he wanted to repay them in the future. Petitioner said at the hearing that he made the apology in his written statement because he was afraid that child welfare services would take his children away. When asked by the hearing officer why he thought that his children could be taken from him if he did nothing wrong, petitioner responded that he had had dealings with the Department of Child Welfare in Atlanta and felt if he were also arrested4 he would lose his children. He testified that he apologized because he “just wanted this to go [44] away” and that by the end of the session with the investigators, that is how he felt. He did not think, however, when he received the check originally, that he had done anything wrong. His psychologist, Dr. Axel, explained that petitioner always had been made to feel guilty whenever he had asked for anything for himself even if he had not engaged in any wrongdoing. Petitioner clearly felt badly for having asked for charity. From the above recitation of the record, it is unclear how the hearing officer could have gleaned that petitioner did anything wrong. In any case, how petitioner felt at any given point in this investigation is irrelevant to the analysis since he did not engage in any wrongdoing, nor was there any basis in this record to conclude that he had. The respondents’ reliance on the exchange at the hearing and the petitioner’s unsworn written statement which was probative of nothing but petitioner’s baseless feelings of guilt and fear, underscores the baseless nature of the challenged determination. The dissent urges that the entire matter distills to credibility determinations that the respondents were free to resolve against the petitioner. However, the evidence of record does not support any credibility determination made by the respondents. The law does not allow the respondents to substitute their personal feelings and prejudices, in the guise of credibility findings, for evidence. Nihil nequam est praesumendum.* **5 . Finally, the respondents argue that the petitioner’s actions violated several Port Authority rules. One such rule prohibits any attempt by petitioner to use his employment to secure unwarranted benefits. Petitioner did not use his employment to secure benefits as he was entitled to the benefits he received regardless of his employment status or the Red Cross’ understanding of his employment status. Another rule requires that petitioner be honest and accurate in presenting information. There is no evidence that petitioner failed to abide by this provision. Indeed, the only evidence of record is that he told the representative at the Red Cross center that he was displaced, not that he was unemployed, and that he would be returning to work when called back. Respondents do not contend that this was inaccurate information. The petitioner, in any event, tried to dispel any misconceptions by calling the Red Cross the next [45] day. The other rules that the petitioner is alleged to have violated require that petitioner not “bring discredit” to the Port Authority. It remains unclear from the record of this proceeding just how petitioner brought discredit to the Port Authority by asking for assistance from the Red Cross to which he was entitled.6 In any event, even if there had been substantial evidence of record to support the determination, the penalty may not be upheld as it is “ ‘so disproportionate to the offense as to be shocking to one’s sense of fairness.’ ” (Matter of Kelly v Safir, 96 NY2d 32, 38 [2001], quoting Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 237 [1974].) Indeed, petitioner collected a total of $560 and a food voucher for which he was terminated from his position (as well as arrested). Just as a 19-year jail sentence is too harsh for stealing a loaf of bread, the impact of such penalty upon an employee in good standing of 15 years is too severe in light of any alleged misconduct, and disproportionate to any harm suffered by the Port Authority or the general public. (See Matter of Kelly v Safir, 96 NY2d at 38, 39.) The penalty constitutes an abuse of discretion as a matter of law. The dissent’s reliance on the horrific events of September 11th to justify respondent’s decision to terminate petitioner is nothing more than an unfortunate use of a “great national tragedy” as a legal argument. The tragedy does not alter the basic requirements of evidence of wrongdoing to support the termination, evidence that is glaringly absent from the record. In sum, petitioner’s termination rested on a single sentence (that he was “laid off’) not directly attributable to him, that he did not swear to or even read. As there is no substantial evidence of record upon which to base the determination, the decision at issue is without a rational basis and must be vacated. Accordingly, the determination of respondent Port Authority of New York & New Jersey, dated May 14, 2003, which dismissed petitioner from his position as a Port Authority employee, is annulled, without costs, the petition granted, the petitioner reinstated, and the proceeding (transferred to this Court by order of the Supreme Court, New York County [Sheila Abdus [46] Salaam, J.], entered March 11, 2004) remanded to Supreme Court for the determination of an award for lost wages, benefits and all emoluments of his employment from the date of separation to the date of reinstatement. Footnotes [1] Petitioner is the legal guardian and single parent of his two nephews who were born to his drug-addicted sister. [2] Respondents argue that petitioner violated provisions of the “General Rules and Regulations for All Port Authority Employees” found in chapter 2, paragraphs 1 and 3; chapter 3, paragraph 1; and, chapter 4, paragraph 1. [3] Petitioner supplied proof in the form of his phone records to demonstrate that he did call the Red Cross the following day. [4] Petitioner stated that he knew that those who filed allegedly false statements to receive financial assistance from various organizations such as the Red Cross, had been arrested. On January 29, 2002, petitioner was arrested [44] and charged with filing a false instrument, falsifying a business record, and petit larceny. On October 22, 2002, the criminal matter was disposed of by the issuance of an adjournment in contemplation of dismissal. [5] Nothing wicked is to be presumed. [6] Such a baseless finding could create an unwanted chilling effect on similarly situated victims who are eligible for charitable assistance, resulting in the exact situation that the rules are meant to eschew.