Bergamini v. Manhattan & Bronx Surface Transit Operating Authority

OPINION OF THE COURT Sandler, J. Petitioner was employed by Manhattan and Bronx Surface Transit Operating Authority (MABSTOA) as a chemist oh or about September 3, 1973. On April 1, 1980 petitioner was promoted, on a one-year probationary basis, to the position of senior chemist. In that capacity he was assigned to work on an experiment with a fuel additive. The experiment was prematurely terminated when, alleging insufficient notice, the supplier failed to provide on a timely basis the required quantity of additive. — 442 — Thereafter William G. Stead, chief of staff of both appellants, wrote to petitioner and to a supervisor, Mr. Novak, informing them that their performance in connection with the test, and particularly that of petitioner, was unacceptable. Petitioner promptly responded in a memorandum, described as an appeal of notification of unacceptable performance, in which he denied responsibility for the failure, urged that he had repeatedly informed his superiors, Mr. Novak and Mr. Bulone, that additional personnel were required to be deployed for supervision of the test, that these requests were not adequately responded to, and that responsibility for the failure of the test was attributablé to the refusal of his superiors to provide the requested personnel. Several weeks later petitioner received a memorandum from Mr. Bulone, one of those he had specifically criticized, directing his appearance before a Mr. Harrison, a labor relations specialist, designated as hearing officer, on certain charges relating to the test, charges that alleged lack of judgment, incompetence and “failure to comply”. The charges were signed both by Mr. Bulone and Mr. Harrison. After an interview, Mr. Harrison dismissed Mr. Bergamini, with the right to work pending appeal, concluding that he had failed to convey to his superiors the seriousness of the situation which caused the experiment to be aborted, but noting that petitioner had thought that he had done the correct thing in reporting to them. Mr. Bulone concurred with this determination and informed petitioner that his continued employment would be considered probationary, commencing January 26, 1981 and continuing through April 26, 1981, during which period he would be expected to improve his professional performance, including correction of “your personal attitudinal mannerisms and professional interaction with your superiors and coworkers.” Following petitioner’s refusal to acknowledge this determination without speaking to his counsel, and after an informal meeting with a Mr. Robinson, director of labor relations, the latter, in a memorandum dated March 3, 1981, determined to rescind the previous dismissal and return petitioner to his prior title of chemist. Two days — 443 — later, without any disclosed intervening event, Mr. Robinson terminated petitioner’s employment. In his petition, which alleges, in addition to the foregoing, that petitioner became a tenured employee one year after his employment,' petitioner claims that his constitutional rights were violated because he was dismissed without a constitutionally adequate hearing, and seeks reinstatement to his employment with MABSTOA and related relief. Appellants cross-moved to dismiss pursuant to CPLR 3211 (subd [a], par 7), alleging that the petitioner failed to state a cause of action, and alternatively requesting an opportunity to answer pursuant to CPLR 7804 (subd [f]) if the cross motion was denied. In a supporting affirmation counsel for appellants argued that section 1203-a of the Public Authorities Law specifically exempted employees of MABSTOA from civil service status, that therefore MABSTOA was entitled as of right to dismiss its employees at will and without a hearing, and that in any event, petitioner received a constitutionally adequate hearing. Special Term denied the cross motion to dismiss, and also denied the alternative application for leave to submit an answer, directing a trial pursuant to CPLR 7804 (subd [h]) “on the question, whether his performance was in any manner unsatisfactory and the closely related issues whether he had any role in the depletion of the supply of test material.” Special Term expressed the view that there was a significant possibility that dismissal resulted from an effort of his superiors to protect themselves at petitioner’s expense. We modify to the extent of reversing the direction for an immediate trial and extending to MABSTOA the requested opportunity to file an answer. We also dismiss the petition with regard to the New York City Transit Authority which appears not to have had an employment relationship with petitioner. As pertinent to the allegations of the petition, the basic constitutional rules governing the right of a public employee to a pretermination hearing consistent with due process requirements were set forth by the United States Supreme Court in a group of decisions commencing with Board of Regents v Roth (408 US 564) and Perry v Sinder — 444 — mann (408 US 593). (See, also, Arnett v Kennedy, 416 US 134; Bishop v Wood, 426 US 341; Codd v Velger, 429 US 624.) In substance, the Supreme Court has held that a public employee may not be dismissed without a pretermination hearing consistent with due process if the employee has a “property right” in his employment. A property interest was defined as “a legitimate claim of entitlement” to a benefit (Board of Regents v Roth, supra, p 577), a claim which arises if the conditions of the employment are such that the public employee may not be terminated except for cause. (See Bishop v Wood, supra.) As further developed by the Supreme Court, the existence of a property interest is determined by reference to sources other than the United States Constitution, such as State law, and may arise from statute, regulation or contract, express or implied. It may arise from “rules or mutually explicit understandings that support his claim of entitlement to the benefit”. (See Perry v Sindermann, supra, p 601.) In determining whether the petition sets forth a legally sufficient claim of property interest or de facto tenure under the law of this State, we note, of course, that, as contended by appellants, section 1203-a of the Public Authorities Law explicitly exempts employees in petitioner’s former position from civil service status. Nor does the petition allege any other applicable statute limiting MABSTOA’s right to terminate his employment at will, nor any rule or regulation so providing. Neither does the petition allege that petitioner was employed under a contract that set forth a fixed term of employment or any limitation on the right to dismiss. It is, of course, a well-established rule in this State that such contracts of employment are deemed terminable at will by either party. (Murphy v American Home Prods. Corp., 58 NY2d 293; Watson v Gugino, 204 NY 535; Parker v Borock, 5 NY2d 156; Haines v City of New York, 41 NY2d 769; see, also, Quinn v Syracuse Model Neighborhood Corp., 613 F2d 438.) The presence of these factors have consistently resulted in this State in judicial rejection of claims by public employees that their constitutional rights were violated by dismissal without a pretermination hearing. (Matter of — 445 — Stanziale v Executive Dept., Off. of Gen. Servs., 55 NY2d 735; Matter of Holbrook v State Ins. Fund, 54 NY2d 892; Matter of De Lucia v Lefkowitz, 62 AD2d 674, affd sub nom. Matter of Hopkins v Lefkowitz, 48 NY2d 901; Matter of Carter v Murphy, 80 AD2d 960; Matter of Rivera v Beekman, 86 AD2d 1.) Notwithstanding this uninterrupted line of authority, we think it appropriate to observe that the petition appears to state a stronger claim to a constitutionally protected property interest in a public employment than any that have been previously addressed in the appellate decisions in this State. Petitioner had been employed for some eight years before his dismissal. (Cf. Perry v Sindermann, 408 US 593, 602, supra.) More important, however, is the circumstance that petitioner had been appointed a senior chemist on a one-year probationary basis. From this designation there is at least a possible implication that his previous status involved a legitimate expectation that he would not be terminated without cause. This possibility would appear to be buttressed to some extent by the circumstance that a preliminary determination had been made to return petitioner to his prior status as chemist. Indeed, it is a possible inference from the events leading up to his dismissal that appellants understood that petitioner could not be terminated except for cause. In short, the situation is comparable to the “de facto tenure” in Perry v Sindermann (supra), which the Supreme Court found to state a legally sufficient claim to a constitutionally protected property interest. However, as the Supreme Court made clear in the several authorities referred to earlier, the existence of such a property interest is normally to be determined by relevant State law, and the test to be applied is whether under State law a public employee is terminable at will or may be terminated for cause. The recent decision of the New York Court of Appeals in Murphy v American Home Prods. Corp. (supra), strongly reaffirming the traditional New York terminable-at-will rule, leaves no room for doubt as to the controlling rule in — 446 — this State. This was an action for damages by the employee of a private corporation who alleged in pertinent part, that at the age of 59, after 23 years of employment, he was dismissed because, in accordance with his duties, he had exposed misconduct on the part of corporate personnel. The Court of Appeals (58 NY2d, at p 305) restated the New York rule as follows: “In sum, under New York law as it now stands, absent a constitutionally impermissible purpose, a statutory proscription, or an express limitation in the individual contract of employment, an employer’s right at any time to terminate an employment at will remains unimpaired.” In light of this explicit statement, petitioner’s claim to a property interest in his public employment entitling him to a fair hearing before termination may be sustained only if a distinction might properly be made with regard to the terminable-at-will rule between private employment and public employment. As a matter of first impression, there might be something to be said in favor of such a distinction. The court’s opinion in Murphy (supra, p 301) noted the trend that has emerged in the courts of other states “to temper what is perceived as the unfairness of the traditional rule”. The court declined the invitation to adopt “the emerging view”, expressing the opinion that such a significant change was best left to the Legislature. The opinion noted (supra, p 302) that “the multifarious types of employment and the various circumstances of discharge” made it more appropriate for any tempering of the established rule to be “accomplished through a principled statutory scheme, adopted after opportunity for public ventilation, rather than in consequence of judicial resolution of the partisan arguments of individual adversarial litigants.” Moreover, the court also noted (supra, p 302) that changes in rights and obligations under relationships established in reliance on existing legal principles might preferably “be given prospective effect only, or at least so the Legislature might conclude.” Arguably the considerations which led the Court of Appeals in Murphy (58 NY2d 293, supra) to prefer the legislative route to change in this area are less compelling — 447 — with regard to exempt permanent public employees who have been employed for a number of years under circumstances in which there is a reasonable expectation, indeed “mutually explicit understandings”, that the employment will not be terminated except for cause. But we are unable to perceive any suggestion of support for such a distinction in any of the authorities that have previously addressed the issue presented. However, as apparently construed by Special Term, in our opinion correctly, the petition may also be reasonably interpreted as alleging that petitioner’s dismissal was arbitrary, capricious and in bad faith. Wholly without regard to the existence of a property interest entitling a public employee to a pretermination hearing, it has been the consistent rule in this State that a public employee may not be dismissed for such reasons. (Matter of Talamo v Murphy, 38 NY2d 637, 639; Tuller v Central School Dist. No. 1 of Towns of Conklin, Binghamton, Kirkwood & Vestal, 40 NY2d 487, 495; Matter of Anonymous v Codd, 40 NY2d 860; Matter of Matsa v Wallach, 42 AD2d 1004,1005, affd 34 NY2d 891; Matter of Ramos v Department of Mental Hygiene of State of N. Y., 34 AD2d 925.) Circumstances are clearly alleged in the petition and the accompanying exhibits that are legally sufficient to present such an issue. Among other such circumstances, we note that petitioner’s dismissal followed a detailed defense of his actions which placed the responsibility for the failed experiment on his superiors, that one of the superiors so criticized was involved in the decision to dismiss petitioner, and that the decision to dismiss him followed within two days an earlier decision to restore him to his prior status as chemist without any apparent intervening event to explain the changed determination. In substance, the so far uncontradicted allegations of the petition, supported by the annexed exhibits, pointedly present the issue as to whether petitioner was dismissed because he chose not to accept quietly blame for a failed experiment that was more properly attributable to his superiors, including one who was actively involved in the proceedings that led to petitioner’s dismissal. — 448 — Considered as a whole, the petition presents a claim that petitioner’s termination was arbitrary, capricious and in bad faith sufficient to sustain denial of the motion to dismiss. Accordingly, the order of the Supreme Court, New York County (Ostrau, J.), entered January 19, 1982, which denied appellant’s motion to dismiss this CPLR article 78 proceeding seeking petitioner’s reinstatement as an employee of the Manhattan and Bronx Surface Transit Operating Authority, and related relief, and directed an immediate trial, should be modified on the law, without costs, to the extent of striking the direction for an immediate trial, and permitting the filing of an answer within 10 days after service of an order with notice of entry, dismissing the petition with regard to the New York City Transit Authority, and otherwise affirmed.