Vijungco v. Metropolitan Transp. Auth.

Vijungco v Metropolitan Transp. Auth. 2024 NY Slip Op 31023(U) March 6, 2024 Supreme Court, New York County Docket Number: Index No. 158756/2023 Judge: Denise M. Dominguez Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

INDEX NO. 158756/2023 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 03/27/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DENISE M DOMINGUEZ PART 35M .Ju.1-tice -·················--·-···----- ---------- ------- ----------------------------------X 11",DEX r,;o, 158756/2023 JUSTIN VTJUNGCO MOTIO~ SEQ. NO. _ ___:_00::.:l'-------- Petitioner

- V - DECISION AND ORDER ON METROPOLITAN TRANSPORTATION AUTHORITY, MOTION

Respondent ---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 15, 16, 18, 19, 20, 21, 22, 23,24,25,26,27,28, 29, 30,31,32, 33 were read on this motion to/for ARTICLE 78 (BODY OR OFFICER)

For the reasons that follow, this Petition pursuant to CPLR Art. 78, seeking to annul and rescind

Petitioner JUSTIN VIJUNGCO's voluntary resignation as a probationary police officer with

Respondent METROPOLITAN TRANSPORTATION AUTI IORITY (MTA) is denied.

Background

Petitioner was hired by Respondent's Police Department (MTAPD) in July 2022. He

graduated the Police Academy in January 2023, at \vhich time Petitioner became a MTAPD

Probationary Police Oflicer. The probationary period would be for one year. During Petitioner's first

three months of his probationary period, he was unsuccessful in Phase 2 of field training, Phase 3 of

field training, and in a third subsequent Remedial Phase.

Phase 2 of Field Training

Based on Petitioner's evaluation of Phase 2, Petitioner's performance was found to be

"unusual" compared to over 800 other officers previously instructed by the evaluating officer.

Specifically, the otliecr found that Petitioner had "difficulty understanding the appropriate use of force

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NYSCEF DOC. NO. 34 INDEX NO. 158756/2023 RECEIVED NYSCEF: 03/27/2024 l in several scenarios and was apparently terrified to speak to the simulator in several stressful scenarios

and did discharge his weapon at inappropriate times."

Based on the written evaluation, dated March 3, 2023, and signed by Petitioner, his

perfonnancc was found to be "unacceptable" and "generally did not meet performance expectations"

and it \Vas recommended that "the recruit be failed for this segment of training."

The evaluation further noted that while Petitioner showed signs of progress in some aspects,

and had the drive to learn, he "appeared to have difficulty retaining information given to him ... needed

to be reminded and/or instructed multiple times to correct his actions on what would reasonably be

considered basic tasks in the course of his duties, some of which were related to officer safety."

Phase 3 of Field Training

Petitioner then proceeded to Phase 3. Upon completing Phase 3, a written review evaluation

summary, dated Apri I 1, 2023, noted again that Petitioner's performance was ''unacceptable'', and

"generally did not meet performance expectations" and it was recommended that "the recruit be failed

for this segment of training." It was specifica!ly noted that while Petitioner appeared professional and

eager to learn, he ;'needs improvement on safety tactics and report writing" and to "familiarize himself

with the daily functions of a police officer and improve social skills when interacting with the public."

A separate end of Phase Evaluation Summary, dated April I, 2023, was prepared and again signed by

Petitioner, recommending that at this point, Petitioner receive a remedial extension training.

Remedial ]raining

The Remedial Phase included another simulator training session on April 21, 2023. An

evaluation noted that Petitioner had "difficulty comprehending the instructions he was given" had

"difficulty explaining his conduct" and " ... exhibited an inability to understand the dynamic and fluid

nature of decision making that police work requires."

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INDEX NO. 158756/2023 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 03/27/2024

Following the Remedial Phase, a Review Evaluation Summary dated April 22, 2023 and signed

by Petitioner, noted that Petitioner had improved in the administrative functions of becoming a police

officer and a strong dedication to completing summonses and reports in a timely manner. However, it

was also noted that during busy times, Petitioner became uncomfortable and needed to improve his

calm demeanor and command voice. It was also noted that Petitioner needed to improve

communicating with subjects during stops and to "make appropriate decisions and maintain officer

safety." Notably, the reviewing sergeant specifically indicated that "f a]s a patrol supervisor, [he did]

not believe Officer Vijungco is confident enough at this time to be able to solo patrol which is a

necessary function of the MT A Police Department." Petitioner's evaluation was again signed by

Petitioner and found to be "unacceptable."

Resignation

By memo dated April 27, 2023, a summary of Petitioner's probationary period was submitted

to a Chief of Police. Based upon negative daily observation reports, evaluations and emails, the

MTAPD concluded that Petitioner's performance did not meet expected levels.

On May 8, 2023, Petitioner resigned. The letter states "IP"llease accept this letter as my formal

notice of resignation from Probationary Police Officer with the MT A Police Department, effective

today May 8, 2023 .''

About a week later, on May ·,s, 2023, Petitioner submitted a letter via email to the MTAPD

Human Resources Department. Therein he asked to ';appeal the decision made to me to voluntary

resign." In the letter Petitioner acknowledges that he was advised during an in-person meeting with

Captain Pisanel!i and Lieutenant Echevarria that as he did not pass field-training he would be

terminated or alternatively, he could resign and return in the future. Petitioner further acknowledges

that as he wanted the opportunity to return, he voluntarily resigned. Hy email correspondence dated

May 18, 2023, MTAPD advised Petitioner that he would not be reinstated as a probationary officer.

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INDEX NO. 158756/2023 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 03/27/2024

Petitioner now moves pursuant to Article 78 to 1) annul and rescind his resignation as a

probationary police officer with the MT A and 2) be reinstated as a probationary police officer.

Specifically, the Petition alleges that "[t]he determination to force [Petitionerl to resign in lieu of being

terminated was arbitrary, capricious, in bad faith, and an abuse of discretion.

Discu.<tsion

Pursuant to CPLR §78, judicial review by this Court is limited to whether there was a rational

basis for an administrative agency's determination, whether the determination was arbitrary and

capricious, or whether there was an abuse of discretion (see CPLR 78; Pell v. Bd of Ed. of Union Free

S'ch. Dist. lv'o. l of Towns of Scarsdale & Mamaroneck, Westchester Cnty., 34 NY2d 222 [ 1974];

Gilman v NY. State Div. of Haus. & Community Renewal, 99 NY2d 144 [20021; Gaines v. New York

State Div. of Haus. & Cmty. Renewal, 90 NY2d 545 [1997]). further, this Court must conduct the

limited assessment without disturbing the agency's underlying factual determinations (see Heintz v.

Brown, 80 NY2d 998 [ 1992]).

Upon review of the submitted evidence, this Court first finds that Petitioner's resignation

was voluntary and thus CPLR 78 is not applicable here (see Stefandel v. Sielaff, 176 AD2d 651 [1st

Dept 1991 ]; see e.g. Garcia v. l'./ew York City Prob. Dep't, 208 AD2d 4 75 [l st Dept 1994]; Quaranta

v. Jacobson, 250 AD2d 544 [1st Dept 19981). Here after Petitioner did not pass phase 2, phase 3,

and a remedial phase, Respondent informed Petitioner that he would be terminated or in the

alternative Petitioner could resign. When given this choice Petitioner then freely and voluntarily

prepared and send his resignation letter to Respondent. Moreover, Petitioner by his own admission

admits choosing to resign because he wanted the opportunity to return.

In addition, even if Petitioner's resignation was not deemed voluntary and CPI ,R 78 applied,

this Court nonetheless would find that Respondent showed a rational basis for rinding Petitioner's

performance did not meet its standards and would further find the Petitioner's unsatisfactory

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INDEX NO. 158756/2023 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 03/27/2024

evaluations were not arbitrary, in bad faith or discriminatory. Here Respondent relied upon multiple

reports and evaluations documenting Petitioner's progress and shortfalls during simulated field

trainings and comparing it to other recruits to conclude that Petitioner's performance did not meet the

expected levels for the necessary decision making and officer safety actions required of police work.

Notably, after Petitioner was found unsuccessful in phases 2 and 3, he was given a third opportunity

with a remedial field training phase which he also did not pass. Further, after every phase, Petitioner

received and signed an evaluation with the reasons for his failure. Thus, Respondent's evaluations were

not unfounded, irrational, arbitrary nor ethically discriminatory. Rather, Respondent's failing

evaluations were based on important findings such as Petitioner discharging his weapon at

inappropriate times and Respondent's genuine concern that Petitioner was not ready to make proper

decisions regarding his safety as a pol ice officer if working alone and the safety of others.

Accordingly, since Petitioner has not submitted any evidence for this Court to find or properly

in fer that Petitioner's resignation was coerced, or that Respondent's evaluations ,vcrc irrational, it is

hereby ORDERED that the Petition is denied and the proceeding is dismissed

3106/2024 DATE DENISE M DOMINGUEZ, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED 0 DENIED GRANTED IN PART □ OTHE APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFERIREASSIG N FIDUCIARY APPOINTMENT □ REFEREN

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Footnotes

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