Court Pronouncement Informs that Yonkers Board of Education Trustee President Rev. Steve Lopez Concerned to Help AllWays East, a Transportation Company, Rather Than Being Concerned with the Bus Operator Not Meeting Minimum Safety Standards and Thereby Placing Students in Harms Way
CSEA President Lionel Turner’s Displeasure with the Petitioner Stems from Her Not Knowing, “Our Culture,” Her Implementation of State Mandated Training and Her Attempt to Bring to Order Systemic Abuses Through a Progressive Discipline Regimen
Hon. George E. Fufidio, A.J.S.C. Pronounces that the Decision Made to Fire O’Riley Be Annulled and She Be Reinstated to Her Position as Director of Transportation as a Non-probationary Permanent Employee and Given Back Pay and Benefits from the Date that She Was Terminated, October 20, 2017 to the Date That She is Reinstated
WHITE PLAINS, NY and YONKERS, NY — November 3, 2018 — Shelley O’Riley petitioned the Supreme Court of the State of New York in the County of Westchester with the Honorable George E. Fufidio, A.J.S.C. Presiding against the Yonkers Board of Education, the Yonkers City School District, and Luisa Erika Lassi, in her official capacity as the Director of Transportation for the Yonkers City School District.
The Honorable George E. Fufidio, A.J.S.C. Writes: “This is a proceeding commenced by the Petitioner, SHELLY A. O’RILEY, pursuant to CPLR Article 78 and Civil Service Law section 75-b, challenging her termination from her job as Director of Transportation for the Yonkers City School District. E-filed Documents numbered 1- 56 have been read and considered in rendering this decision. Upon the foregoing papers, for the reasons articulated hereinafter the Respondent’s motion to dismiss is denied and Petitioner’s Article 78 claim alleging arbitrary and capricious termination from her position as Director of Transportation for the Yonkers City School District is granted.
“Factual and Procedural Background
“The Petitioner, Shelly O’Riley was hired as the temporary Director of Transportation for
the Yonkers City School District at the start of the 2015-2016 school year, after the prior Director was convicted and imprisoned for her role in defrauding money from the school district by running no show routes using a transportation company that was fronted by another former Director of Transportation.
“On August 12, 2015 the Petitioner was appointed as a temporary employee and then on November 20,2015 she was provisionally appointed to the same position which lasted until April 20, 2017.
“On April 21, 2017, as a result of where the Petitioner placed on the civil service exam”, she was permanently appointed to the position that she had been hired for and which she held when she was terminated on October 20,2017. The permanent appointment was conditioned by a 26 week probationary period which was to end on October 20,2017, after which her permanent appointment would have been unconditional. Her immediate supervisor for the more than 2 years that she held her job was Patricia Malgieri, who retired on October 4,2017.
At the beginning of the 2015-2016 school year, shortly after the Petitioner was appointed, she began a review of the bus monitors that were assigned to the various school busses used throughout Yonkers. She learned that the monitors had received none of the training that was required by 8 NYCRR 156.3 as a prerequisite for employment as a monitor. This deficiency in training was brought to the attention the Superintendent of Schools, Dr. Quezada, and the Petitioner developed a plan to bring the bus monitors into compliance with state mandated training. In addition to the deficiencies in bus monitor training the Petitioner also uncovered what she felt to be theft of services and absenteeism by monitors who were assigned to “must cover” routes. She discovered that there were monitors who would not show up for their assigned routes and monitors who would sign in for work that they did not perform. In the autumn of 20 15 the Petitioner instituted a progressive disciplinary system in order to address what she felt to be a pervasive problem. The response from Lionel Turner, President of the CSEA union which represents the bus monitors was that the Petitioner needed to, “learn our culture” and that the bus monitors had never had training in the past and that many of them likely would not pass the required training tests.
“In early 2017, the New York State Education Department generated an announcement which was distributed to all the certified school bus driving instructors, of which the Petitioner is one, offering the state mandated bus monitor training for free. The use of the announcement was approved by Ms. Malgieri and the intent of the offer was to provide a means for the monitors to come into compliance, before the deadline of March 1, 2017 for free. The training is mandatory, however the monitors were free to get the training wherever they chose as long as it was completed by March 1, 2017 otherwise the lack of training could impact their employment.
“Shortly after distributing the announcement, CSEA, on their own began telling the bus monitors that the training was not in fact mandatory and that any failure of training could not negatively impact the monitors’ employment.
“Continually, until she was fired, the Petitioner reported her concerns and efforts to the school administration, the Board of Education, the CSEA union president and the monitors themselves.
“In addition to uncovering problems with the school bus monitors, the Petitioner also began rectifying problems with some of the school bus companies that had contracted with the School District to provide transportation for the district’s students.
“Around May, 2016, the Petitioner received a letter from the transportation company, AllWays East’s (AWE) insurance company telling her that the company’s insurance had been cancelled. This compounded the problems that the School District already knew about AWE, specifically that they had failed to post a contractually required performance bond. After this information was disclosed to her supervisors a meeting was held with the Board of Education wherein it was decided, based on the Petitioner’s reasoning, not to renew AWE’s contract for the next school year.
“At the time that the School District was initially having this larger conversation regarding the fitness of AWE’s relationship with the district, Rev. Steven Lopez was the Vice-President of the Board of Education. In July, 2016, Rev. Lopez became the Board of Education President.
“Rev. Lopez is also apparently close, personal friends with the owners of AWE, Judith M. Koller and Marlaina Koller and to emphasize the nature of the relationship with them, he told the Petitioner that he, “changed Marlaina’s diapers” and expressed a grave concern that the decision not to renew their contract was bankrupting the company and by implication causing financial harm to his friends; thereby leading the Petitioner to believe that he held her responsible for the company’s financial problems. In addition, he had advocated strongly in favor of renewing their contract while still Vice-President of the Board.
“Further, the Petitioner began receiving personal communication from Rev. Lopez asking her to re-approve AWE. The Petitioner did not because AWE still lacked the requisite insurance and were no longer an approved vendor. The solicitation was so consistent that her supervisor Ms. Malgieri told the Petitioner to direct Rev. Lopez’s communications to Dr. Quezada. In another meeting, Rev. Lopez asked the Petitioner if she could arrange so called “cash trips” for AWE, which evidently is a practice whereby the individual schools could contract with the various transportation companies for cash to provide transportation for certain extracurricular trips. This practice is approved as long as the various companies were in compliance with their requirements necessary to transport students, which AWE was still not. The Petitioner made this known to Rev. Lopez who, “indicated personal anger and outrage,” towards her. As a result of this meeting, in November 2016, the School District issued protocols for handling charters for the individual schools in Yonkers, which was approved by Dr. Quezada.
“Nevertheless, Rev. Lopez continued to solicit charters on behalf of AWE and the Petitioner had to intervene and inform the schools that they could not charter transportation if the company did not have the proper insurance and other approvals and that AWE still did not have the proper clearance.
“In addition to the problems that the Petitioner was having with AWE, in early 2017 the Petitioner also learned that the Phoenix (PHX) transportation company also was soliciting “cash trips” without having New York State Department of Transportation passenger transportation authority and she had also expressed to Dr. Quezada and Ms. Malgieri concerns with some of the paperwork that PHX had submitted to become an approved vendor. In the spring of2017, there was a meeting with PHX, Ms. Malgieri, the Petitioner, Dr. Quezada, another Board Trustee and two lawyers, one from the School District’s legal department and the other, outside counsel, Robert Spolzino, who was retained by the School District. After the meeting, Rev. Lopez confronted the Petitioner on her knowledge about the law on this issue and insisted that she was wrong in her opinions on what AWE and PHX could and could not do.
“From early 2017 through October 2017, the Petitioner had to regularly intervene to prevent PHX from transporting students and from May 2017, after Mr. Spolzino rendered his opinion on the issue, Rev. Lopez began trying undermine her job performance.
“Turning towards the reasons put forth by the Respondents for the Petitioner’s termination, of note, in September 2017, approximately one month before Petitioner’s termination, Rev. Lopez complained to Dr. Quezada about an issue with the budget that the Petitioner had created which resulted in Dr. Quezada “berating” the Petitioner over Rev. Lopez’s complaint in a meeting with Ms. Malgieri and Dr. Quezada. Despite the Petitioner and Ms. Malgieri’s insistence that it was ,in fact, a misunderstanding about the utility of the budgetary documents and in any event, that it was not the Petitioner’s responsibility, rather it was Ms. Malgieri’s responsibility to handle the budgetary issues, this instance was, nevertheless, used as a reason for firing the Petitioner. The other reasons put forth by the District include the issue with claiming a school bus monitor training to be mandatory (supra) and a problem with one student arriving late to school in September 2017 and another wheelchair bound student’s bus stop being moved fifty yards farther than it had previously been, due to a problem with getting transportation to the end of the dead end street where the student lived.
“Ms. Malgieri, the Petitioner’s supervisor thought highly of her and notes several occasions in her affidavit when the Petitioner’s work as Transportation Director was lauded by other Yonkers city employees, school Principals and Dr. Quezada himself, who expressed delight in how well the 2017-2018 school year transportation was going. Ms. Malgieri also expressed dismay at how Rev. Lopez and President Turner interfered with the Petitioner’s managerial and administrative prerogatives as the Director of Transportation and was concerned that these problems were also being relayed to Dr. Quezada. By October 4,2017, when she retired, she was uncertain, due to mixed messages from Dr. Quezada, whether or not he would ultimately permit the petitioner to complete her probationary period and Dr. Quezada has made it entirely clear that the decision as to whether or not she would be allowed to complete her probationary period rested solely with him and him alone.
“On October 12,2017, the Petitioner was given a Notice of Termination by the Yonkers City Human Resources Department informing her that as of October 20, 2017 she would be fired and on that date she was.
“In response to the petition the Respondents moved to dismiss the allegations that were raised, but did not answer the petition.
“The Respondents have moved to dismiss the “combined verified petition and complaint” pursuant to CPLR article 3211(a)(1) and (7). The Respondent’s motion is decided as follows:
“As to the complaints against the Respondent/Defendant Erika Lassi who is named in her official capacity the Respondent’s motion is denied. Although it is evident that she had no involvement in any of the events leading up to and decisions made that ultimately led to the Petitioner’s termination it is equally as evident that her position as the Yonkers School District Transportation Director will potentially be adversely affected by the ultimate judgment in this case. As such she is a necessary party and was properly named (Mount Pleasant Cottage School Union Free School District v. Sobol, 163 AD2d 715 [3rdDept. 1990]).
“The Petitioner has set forth two claims under an Article 78 mandamus to review theory. The first is that her firing was arbitrary and capricious or was done in bad faith and the second is that the School District failed to follow lawful procedure.
“Likewise, the motion is denied with respect to the claims set forth under Civil Service Law section 75-b and the CPLR article 78 claims that the Petitioner’s firing was arbitrary and capricious. In considering the Respondent’s arguments and the evidence set forth by the Petitioner, it is evident that the Petitioner has a cause of action under both CPLR Article 78 for arbitrariness and capriciousness and Civil Service Law section 75-b (Meyer v. Guinta, 262 AD2d 463 [2ndDept. 1999]). Despite providing evidence that the school district was already aware of the fact that there were problems with AllWays East Transportation, the Respondent has not shown by documentary evidence anything that conclusively resolves the Petitioner’s claim she was fired for taking action with respect to unqualified transportation companies AllWays East and Phoenix and for attempting to impose mandated New York State standards for bus monitors on the monitors monitoring the busses for the Yonkers School District (Fontanetta v. Doe, 73 AD3d 78 [2ndDept. 2010]).
“However, the respondent’s motion is granted with respect to the prong of the Petitioner’s Article 78 claim that the Yonkers School District failed to follow lawful procedure with respect to her firing. Aside from her position that the decision to fire her was done arbitrarily and capriciously, the Petitioner has made no other showing under Article 78 that her termination was procedurally or legally infirm. She has cited both to Civil Service Law section 63 and Yonkers Municipal Civil Service Rules section XVI, the Court finds that the School District was in compliance with both. Civil Service Law section 63 makes no reference to required periodic updates on the employee’s status as the Petitioner seems to suggest that it does and the Municipal Civil Service Rules require that the employee’s supervisor, at least two weeks prior to the employee’s probation termination date, give the appointing authority a written evaluation, which, as her own papers demonstrate, was done.! Additionally, the Yonkers Municipal Civil Service Rules section XVI(5) provides for a probationary employee to receive notice of their termination at least seven days in advance and allows for the employee, if they so request, to have an interview with the appointing authority or their representative. The Petitioner’s own papers demonstrate that she did receive her notice of termination at least seven days in advance and she has not put forth that she ever requested the permitted interview.
“Turning towards the surviving claims under Article 78; although, the Respondent has not yet filed an answer, the facts of this case are so fully presented in the papers that have thus far been submitted that the Court is able to render a decision based upon those facts (Kickertz v. New York University, 25 NY3d 942 ). The authority that a public employer has to fire a civil service probationary employee is all but limitless. The general rule is that a probationary employee can be fired for almost any reason, or no reason at all and with virtually no recourse for the terminated party (Matter o/Swinton v. Safir, 93 NY2d 758 ). However, CPLR article 78 does give the aggrieved employee a modicum of recourse if they can show, by competent proof, that the decision was arbitrary and capricious, that is, that it was made in bad faith (DeSalvo v. Kolb, 54 AD2d 991 [3rd Dept. 1976]).
“The facts presented by the parties, as this Court finds them, demonstrate that by all accounts the Petitioner was performing satisfactorily. The reasons put forth by the Respondents as to why they fired the Petitioner are trivial in the face of her two year employment and do nothing but convince this Court that they were put forth as a pretext to cover the true motivation behind the Petitioner’s termination which was to appease the CSEA and Reverend Lopez. Seemingly, the only areas in which the Petitioner was unsatisfactory in her performance involved her being non-compliant with certain budgetary directives, which was not even her responsibility, but was her supervisor, Patricia Malgieri’s; and that as a result of certain routing problems one wheelchair bound student’s bus stop was moved 50 yards away from where it was originally because the busses that were being employed at the time could not adequately and safely pick the child up at the original stop. The bus stop re-Iocation was a temporary solution until a safer and more expedient solution was found. Nothing was presented that shows that this was anything more than a temporary 100 yard per day inconvenience for the child. Likewise, the other routing problem, that another child in the first few weeks of the 2017 school year was arriving late to school, again, was not shown to be a problem without a solution and it was shown that the Petitioner was working on resolving it.
“Contrasting these relatively minor transgressions are the facts that the Petitioner had been at her job as Transportation Director for more than 2 years by the time she was fired. She was initially hired as a temporary replacement for her predecessor who was convicted of a felony for fraud committed while on the job. After taking the civil service examination the Petitioner was offered the job as a permanent civil service employee, subject to the required probationary period.
“Her supervisor was Patricia K. Malgieri who was responsible for the Petitioner’s performance evaluations. Ms. Malgieri said in her affidavit that she rated the Petitioner, “highly on many of the evaluation categories …” and that the Petitioner had shown improvement in many categories from 2016 to 2017. Her opinion of the Petitioner’s performance was, “More than satisfactory.” Her affidavit also states that the Petitioner was praised on her job performance by school district officials including Dr. Quezada, Yonkers government employees and members of the public with whom she had directly and indirectly interacted. Ms. Malgieri’ s affidavit provides several specific examples of such praise.
“Despite such praise, the Petitioner also seemingly managed to draw the ire of Reverend Lopez, the Board of Education President and Lionel Turner, CSEA union President, for nothing more than trying to enforce rules that had for some reason or another either had never been enforced before or had fallen to the wayside under prior directors. Ms. Malgieri also sets forth her observation that despite Dr. Quezada’s earlier praise, this displeasure was being brought to his attention and negatively impacted the Petitioner’s standing with him.
“CSEA President Turner’s displeasure with the Petitioner stems from her not knowing, “our culture,” her implementation of state mandated training and her attempt to bring to order systemic abuses through a progressive discipline regimen. The pushback by the union, the complaints made by President Turner to the Petitioner herself, her direct supervisor Ms. Malgieri and Dr. Quezada, coupled with President Turner’s statement about “our culture,” implies that by implementing training and discipline for bus monitors that the Petitioner was somehow disrupting a tacit agreement where absenteeism and no show work and lack of regard for state mandated training was somehow condoned by the union and the School District and that in order to maintain this, “culture” the Petitioner either needed to fall in line or otherwise be pushed out.
“Reverend Lopez’s displeasure with the Petitioner arises from actions she took against AllWays East Transportation Company for failing to be in compliance with their insurance requirements, as set forth above.
“In this Court’s opinion, this was an effort to undermine the Petitioner’s authority as Director of Transportation, impact her standing within the school district and to force her termination before her probationary period was finished and her job status became more protected. The Petitioner had held the Transportation Director job for more than two years before she was fired. In those two years there was evidently nothing that warranted her firing, otherwise, it is safe to assume, she would have been, given that her job protection was just as tenuous as a temporary employee as it was as a permanent probationary employee. The opportunity to fire the Petitioner when her job was not as entrenched manifested itself when her supervisor, Ms. Maglierei, retired on October 4,2017. Despite Dr. Quezada making it manifestly clear that the decision to fire the Petitioner rested solely with him, undoubtedly the Petitioner lost the institutional protection of her manager, who thought highly of her job performance, when she retired shortly before the Petitioner was fired. From the Court’s perspective, the decision to fire the Petitioner on her last day of probation was unduly influenced by the self-interested input of CSEA President Turner and Dr. Lopez and was accordingly made in bad faith.
“Because the Court is granting the relief requested by the Petitioner under Article 78 it is declining to reach the action brought under Civil Service Law section 75-b because in this Court’s opinion it is now a moot issue.
“Based on the foregoing, it is hereby ORDERED, that the decision made to fire the Petitioner be annulled and that she be reinstated to her position as Director of Transportation for the Yonkers City School District as a non-probationary permanent employee and that she be given back pay and benefits from the date that she was terminated, October 20, 2017 to the date that she is reinstated.
“The foregoing constitutes the opinion, decision and order of this court.”
Dated: White Plains, New York. Honorable George E. Fufidio, A.J.S.C
October 31, 2018
TO: New York Courts Electronic Filing System
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