The opinion
Matter of Simmons v City of New York
2024 NY Slip Op 33625(U)
October 7, 2024
Supreme Court, New York County
Docket Number: Index No. 161035/2023
Judge: Leslie A. Stroth
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.
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SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. LESLIE A. STROTH PART 12M
Justice
·----------------------X INDEX NO. 161035/2023
IN THE MATTER OF THE APPLICATION OF SHARDESE
SIMMONS, FOR A JUDGMENT PURSUANT TO ARTICLE MOTION DATE 02/05/2024
78 OF THE CIVIL PRACTICE LAW AND RULES,
MOTION SEQ. NO. 001 002
Plaintiff,
- V -
DECISION + ORDER ON
THE CITY OF NEW YORK, THE NEW YORK CITY
DEPARTMENT OF CORRECTION MOTION
Defendant.
--------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 20, 30
were read on this motion to/for ARTICLE 78 (BODY OR OFFICER)
The following e-filed documents, listed by NYSCEF document number (Motion 002) 21, 22, 23, 24, 25,
26,27,28,29, 31,32, 33
were read on this motion to/for DISMISS
Petitioner Shardese Simmons commenced this article 78 proceeding against respondents
The New York City Department of Correction (DOC) and The City of New York alleging
violations of the New York City Human Rights Law (NYCHRL) and a Settlement Agreement.
Petitioner was hired as a correction officer on October 30, 2014 and terminated on July 11, 2023.
Prior to her termination, Ms. Simmons worked for a limited probationary period pursuant
to a Settlement Agreement to resolve disciplinary charges effected by DOC against her on June
30, 2022, which were composed of a Negotiated Plea Agreement (Exh 1) and a Probation
Agreement (Exh 2). Under the Probation Agreement, Ms. Simmons accepted a negotiated plea as
follows: "[l]imited probation for a period of eighteen (18) months, limited to violations of time
and leave rules, regulations, directives, and laws" (Id.). Petitioner argues that DOC can invoke
termination only for time and leave violations, and that petitioner did not waive her rights under
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the NYCHRL, which prohibits termination based on disability and requires respondent DOC to
engage in a "cooperative dialogue" and provide reasonable accommodation.
Petitioner provided a Memorandum dated June 21, 2023 (Exh 4) and a Personnel
Determination Review (PDR) dated July 3, 2023 (Exh 5) pertaining to her termination of
employment with DOC. The Memorandum stated that Ms. Simmons agreed as follows:
[F]orfeit 18 (Eighteen) compensatory/vacation days and 1 (one) year 1imited probation,
limited to violations oftime and leave rules, regulations, directives and/or policies.
However, on the dates listed below Officer Simmons failed to report to duty for the
following reasons (Exh 4):
LEA VE WITHOUT PAY SICK LEAVE
October 18, 2022 August 18, 2022
October 20-21, 2022 October 11-12, 2022
February 08-09, 2023 December 30 - January O1, 2023
February 27, 2023
March 14, 2023
March 20-24, 2023
March 26-30, 2023
April 1-8, 2023
April 8-15, 2023
April 15-22, 2023
April 22-29, 2023
Please be advised, Shardese Simmons, Correction Officer is from the October 30, 2014
class and has been on Leave Without Pay and Sick Leave for (35) thirty-five days since
signing the negotiated plea agreement.
According to the PDR, "The Robert N. Davoren Center (RNDC) is requesting
termination for Correction Officer Shardese Simmons #5242, for violation of a negotiated plea
agreement. On June 30, 2022 C.O. Simmons entered into a NPA with the Department of
Correction, under settlement DR#2131/2021 stipulating C.O. Simmons serve a limited probation
for a period of 1 year limited to time and leave violations. Since her NPA C.O. Simmons has
be[en] out on sick leave and annual leave. While on a NPA agreement C.O. Simmons has been
out 99 days as follows: Sick (48 days), A/L (15 days), FMLA (8 days), MMR (26 days) &
LWOP (2 days)" (Exh 5).
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* * *
Petitioner moves here to annul her termination, reinstate her employment with DOC, and
be granted back pay, plus interest, and benefits as a correction officer (Motion #001). Petitioner
alleges that DOC equated five "Leave Without Pay" (L WOP) days to "Absent Without Leave"
(AWOL), although she was never AWOL during her limited probation. 1 According to petitioner,
"Leave Request Reports" provide five days for L WOP: October 18, 2022 (1 hour and 21
minutes), October 20, 21, 2022 and February 8, 2023 (full work shift), and February 9, 2023, all
of which were marked as "Approved Final" (Exh 6). Thus, petitioner's L WOP was authorized
and there is no "time and leave" violation under the settlement agreement that would provide a
basis for termination by DOC. Petitioner also argues that the February 9th L WOP was correctly
marked as FMLA, and that DOC violated FMLA when using the date for termination. 2
Plaintiff alleges that she was diagnosed with a pinched nerve and that a laminectomy was
recommended by a doctor due to back injuries sustained from a car accident that occurred on
August 10, 2020. The laminectomy was performed on March 13, 2023. The following timeline
was provided by petitioner:
*March 15 and 16, 2023, petitioner called out sick to DOC's Health Management
Division ("HMD"), informing them of the surgery and her inability to work.
*March 17 and 18, 2023, petitioner used previously approved FMLA leave for a separate
condition. March 21, 2023, petitioner returned to work and was then on sick leave due to
difficulty standing up and throwing up.
*March 22, 2023, HMD called petitioner at home to give her an appointment for March
28, 2023 to report to HMD with a letter from her doctor.
*March 28, 2023, petitioner's surgeon completed a report for HMD and recommended
that she "rest and recover from surgery at home" and return to light work duties on May
13, 2023 (Exh 7).
1
Petitioner states that AWOL is unauthorized absence and LWOP is approved, unpaid leave.
2
The petition indicates that the amount of sick leave and L WOP days in the Memorandum and PDR are not
identical, and that it will address 48 sick days and five L WOP days as DOC' s reason for termination.
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*March 28, 2023, petitioner saw Dr. Albert Strojan at HMD who continued her on sick
leave and scheduled her to return to HMD on April 4, 2023.
*April 4, 2023, Dr. Strojan continued her on the sick list and scheduled her to revisit
HMD on April 20, 2023 (Exh 8).
*April 20, 2023, Dr. Strojan evaluated petitioner and continued her on the sick list with a
date to return to HMD on May 3, 2023 (Exh 9).
*April 21, 2023, petitioner's surgeon Dr. Elie Levine completed a report for HMD and
indicated that petitioner "may return to work on 5.21.2023 with light duties, minimal
inmate contact, no lifting or pushing over 10 lbs" (Exh 10). Dr. Levine also drafted a
letter stating that she "may return to work on full duty on 7/3 l /2023" (Exh 11 ).
*May 3, 2023, petitioner provided Dr. Levine's return to work recommendations during
the HMD appointment.
*HMD scheduled her to revisit on June 21, 2023 (Exh 12).
*Petitioner reported to HMO on June 21, 2023. However, Dr. Strojan was not present and
a staff member scheduled her to revisit on July 19, 2023 with Dr. Strojan. HMD
continued her on light duty (Exh 13).
Petitioner relies upon New York City Administrative Code §8-107(1)(a) in arguing that her back
surgery on March 13, 2023 to remedy an impairment of her musculoskeletal system is a
disability under §8-102(16). HMD followed up on petitioner's sick leave and was aware that her
sick absences were related to her surgery.
Petitioner also alleges that DOC violated §8-107(15)(a) and §8-107(28)(a) by failing to
precede its termination decision on July 11, 2023 with any cooperative dialogue of her being on
light duty until July 31, 2023, which is the date her physician recommended that she return to
work on full duty. In addition, DOC failed to provide reasonable accommodation, such as by
terminating her employment instead of continuing her on light duty performance. Petitioner
required eight additional days of light duty until her HMD appointment on July 19, 2023.
Finally, petitioner claims that her sick leave was not a "time and leave" violation under
DOC's sick policy and is insufficient to warrant her termination under the Settlement
Agreement. According to petitioner, there were 43 sick days related to her disability, leaving five
sick days. Petitioner cites DOC Directive 2258R-A, "Absence Control/Uniformed Sick Leave
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Policy", in stating that the 43 days cannot be the source for her termination and that the
remaining five days are not in such termination criteria. Further, petitioner states that DOC
cannot base petitioner's termination on lateness.
* * *
Respondents move to dismiss the petition, pursuant to CPLR §321 l(a)(l), (4) and (7), on
the following grounds: 1) petitioner's claims are time-barred; 2) there is a pendency of a prior
proceeding between the parties; 3) petitioner failed to present evidence showing DOC acted in
bad faith; 4) petitioner failed to state a plausible termination based on disability claim under
SHRL and CHRL; and 5) respondents' determination was neither arbitrary nor capricious
(Motion #002).
On December 16, 2021, petitioner was charged due to a "pattern of excessive absence
and being unable to perform the full range of duties of her position as a correction officer by
reporting sick on approximately ninety (90) days, demonstrating an excessive use of sick leave
and/or an inability/medical incompetence to perform her duties as a correction officer" (Exh B).
Respondents argue that from February 28, 2023 through May 20, 2023, petitioner reported sick
for 48 days. Since petitioner's probationary period began, she failed to arrive to work for 99 days
- - 48 sick days, 15 annual leave days, 8 days of family leave, and 2 days of leave without pay.
Respondents allege that petitioner failed to submit proof of her back surgery and that she
received cosmetic surgery of liposuction 360° of the arms, inner thighs, and knees on March 13,
2023, the date of her laminectomy (Exh D, p 62-64, 67, 128-130). Petitioner failed to
demonstrate how her back injuries or pain impacted any ability.
Next, respondents rely on CPLR 217, in that a proceeding under Article 78 "must be
commenced within four months after the determination to be reviewed becomes final and
binding upon the petitioner." An administrative determination becomes final and binding on the
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date that "the petitioner has received notice of the determination and is aggrieved by it."
(Robertson v. Bd. of Educ., 175 AD2d 836 (2 nd Dept 1991)). DOC notified petitioner of her
termination on July 11, 2023, which is when its determination became final and binding.
Petitioner had until November 8, 2023 to commence the instant proceeding, and did so on
November 9, 2023. Respondent also argues that petitioner filed a complaint on August 4, 2023,
seeking compensatory damages for emotional distress based on respondents' alleged
discrimination, and that damages overlap with the instant article 78 proceeding seeking
reinstatement and back pay against respondents.
Respondents also argue that petitioner failed to show that her termination was done in
bad faith (Witherspoon v. Horn, 19 AD3d 250 (1st Dept 2005) and substantiate any claims
regarding disability. Instead, respondents terminated petitioner based on violation of time and
leave rules. First, Ms. Simmons reported sick for 48 days between February 28, 2023 and May
20, 2023, which were over the 40 days of absence in a calendar year. In addition, petitioner's
injury did not relate to a line of duty incident or result from hospitalization, and her sick leave
during those 40 days was an outcome of her elective liposuction, not a back injury and pinched
nerve. Petitioner did not provide any medical documentation to support her absences.
Respondents also state that petitioner pled a legal conclusion without factual support and
failed to establish a prima facie case of disability, identify such disability, and assert a plausible
connection between the disability and termination. As to a duty to engage in a cooperative
dialogue, none exists since petitioner failed to request reasonable accommodation and provide
medical evidence to support her disability. Respondents further argue that petitioner did not
prove under §8-107(15)(b) that she could not perform her essential job functions without an
accommodation. Finally, respondents argue that their determination was not arbitrary or
capricious, and that it was rational based on petitioner's failure to report to her appointed place
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of duty at the time scheduled, perform the tours of duty scheduled, and having AWOL for more
than five consecutive workdays (Memorandum, p 20). Respondents allegedly did not have any
knowledge of petitioner's disability.
* * *
"CPLR 21 7 requires an Article 78 proceeding to be commenced within four months after
the determination to be reviewed becomes binding and final upon the petitioner. Where, as here,
the determination is unambiguous and of certain consequence, the statutory period commences
as soon as the aggrieved party is notified" (Kan v. New York City Env't Control Bd., 262 A.D.2d
135 (1s t Dept 1999)). Since petitioner was notified of her termination on July 11, 2023, the Court
finds that the statute of limitations to commence this proceeding is November 11, 2023, and that
petitioner timely filed her petition on November 9, 2023.
Next, "[u]nder CPLR 321 l(a)(4), a court has broad discretion in determining whether an
action should be dismissed based upon another pending action where there is a substantial
identity of the parties, the two actions are sufficiently similar, and the relief sought is
substantially the same. It is not necessary that the precise legal theories presented in the first
action also be presented in the second action so long as the relief ... is the same or substantially
the same" (Jaber v. Elayyan, 168 AD3d 693 (2 nd Dept 2019)). The Court is unpersuaded by
respondents' argument that the relief sought in this matter is substantially the same as that in the
August 4, 2023 action since it seeks compensatory damages and punitive damages for emotional
distress in the amount of $1,000,000.00, unlike the instant proceeding where petitioner moves to
annul her termination (Exh E).
Nonetheless, the Court is denying the petition in its entirety and granting respondents'
motion to dismiss. Judicial review of an administrative determination is limited to whether the
determination was made "in violation of lawful procedure, was affected by an error of law or
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was arbitrary and capricious or an abuse of discretion ... " CPLR 7803(3). In Matter of Pell v
Board a/Educ. (34 NY2d 222,231 [1974]), the Court of Appeals held that an action is "arbitrary
and capricious" when it is " ... without sound basis in reason and is generally taken without
regard to the facts." "In reviewing an administrative agency determination, [courts] must
ascertain whether there is a rational basis for the action in question or whether it is arbitrary and
capricious" (McCollum v. City of New York, 184 AD3d 838 (2 nd Dept 2020)).
For a plaintiff to succeed on a claim for discrimination under both the NYSHRL and
NYCHRL, a plaintiff must prove that: ( 1) they are members of a protected class; (2) they are
qualified to hold the position; (3) they suffered an adverse employment action; and (4) the
adverse action occurred under circumstances giving rise to an inference of discrimination (See
Stephenson v Hotel Empls. & Rest. Empts. Union Local I 00 ofAFL-CIO, 6 NY3d 265
(2006); see also Forrest v Jewish Guild for the Blind, 3 NY3d 295 (2004)).
After establishing its prima facie case, "the burden then shifts to the defendant to rebut
plaintiffs' prima facie case of discrimination with a legitimate reason for the firing [upon which
showing] the plaintiffs must show by a preponderance of the evidence that defendant's reasons
are pretextual" (Stephenson, 6 NY3d at 271). The City HRL applies a more lenient standard,
wherein the plaintiff needs to "only show she was treated differently from others in a way that
was more than trivial, insubstantial, or petty" (Dimitracopoulos v City ofNew York, 26 F Supp
3d 200 (ED NY 2014)). However, the City HRL is not a "general civility code," and a plaintiff
must still show "that the conduct is caused by a discriminatory motive" (See Mihalik v Credit
Agricole Cheuvreux N Am., Inc., 715 F 3d 102 (2d Cir 2013)).
Here, petitioner failed to demonstrate that termination was caused by Ms. Simmon's
disability. "[I]n order to state a cause of action for disability discrimination under the State HRL,
the complaint must allege that the plaintiff suffers a disability and that the disability caused the
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behavior for which the individual was terminated" (Vig v. New York Hairspray Co., L.P., 67
A.D.3d 140 (1 st Dept 2009); see New York City Administrative Code §8-107(1)(a)(3)).
Petitioner relies upon Vig, 67 A.D.3d 140, in arguing that termination based on disability-related
absences is similar to such due to disability. However, in Vig, "[d]efendant's stated reason for
terminating plaintiff was directly related to his disability, or defendant's perception that he was
disabled, i.e., that he was not eligible for the medical leave he had taken following his surgery"
(Id.). Such is not the case here where petitioner failed to provide any specific facts in the petition
to demonstrate that respondents terminated her based on disability.
The Court further finds that respondents' determination had a rational basis and was not
arbitrary or capricious in that they established that petitioner's termination resulted in violations
of the following:
Rules and Regulations 3.05.100: Members of the Department shall report to their
appointed place of duty at the time scheduled.
Rules and Regulations 3.05.110: Members of the Department shall perform the tours of
duty scheduled by the Commanding Officer.
Rules and Regulations 3.10.250: When a member of the uniformed force has been absent
without leave for five (5) consecutive workdays the Commanding Officer shall forward a
written memorandum of Complaint to the Commissioner in conformity with Rule
3.40.030 (Exh 4).
Petitioner avers that respondents failed to engage in cooperative dialogue and provide reasonable
accommodation. Under New York City Administrative Code §8-107(15), "It is an unlawful
discriminatory practice for any person prohibited by the provisions of this section from
discriminating on the basis of disability not to provide a reasonable accommodation to enable a
person with a disability to satisfy the essential requisites of a job or enjoy the right or rights in
question provided that the disability is known or should have been known by the covered entity."
Further, §8-107(28)(a) states that "[i]t shall be an unlawful discriminatory practice for an
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employer ... to refuse or otherwise fail to engage in a cooperative dialogue within a reasonable
time with a person who has requested an accommodation or who the covered entity has notice
may require such an accommodation."
However, petitioner "failed to set forth in her [petition] factual allegations sufficient to
show that, upon the provision of reasonable accommodations, she could perform the essential
functions of her job. She offered instead only conclusory assertions without factual support"
(McKenzie v. Meridian Cap. Grp., LLC, 35 A.D.3d 676 (2 nd Dept 2006)). Petitioner avers that
out of the 48 sick days cited by DOC, only 43 are related to disability which leaves five sick
days, which is not permitted by DOC Directive 2258R-A, "Absence Control/Uniformed Sick
Leave Policy" (Exh 14). Petitioner also claims that respondent failed to provide reasonable
accommodation by terminating her instead of continuing her on light duty.
Under Directive 2258R-A(E)(l), "[a] member who reports sick forty (40) or more work
days within a twelve (12) month period may be subjected to termination" (Exh 5). As the Court
indicated earlier, according to the PDR, "While on a NPA agreement C.O. Simmons has been
out 99 days as follows: Sick (48 days), AIL (15 days), FMLA (8 days), MMR (26 days) &
LWOP (2 days)" (Id. at p 5). Petitioner notes that Section (F)(5) provides "[b]efore a disciplinary
or termination action is commenced, the following mitigating factors shall be considered: The
nature of the illness" (Id.). This Court is not convinced. As respondents displayed in their papers,
although petitioner alleged that her absence was due to back surgery and a pinch nerve, evidence
was submitted that she underwent "cosmetic surgery of liposuction 360 degrees, arms, inner
thighs and the knees on March 13, 2023. Flu w/MD 3/21/23. Received post-op instructions from
plastic surgery & Dermatology ofNYC. 3 pages. HMD appt 4/4/223 ... " (Exh D, p 128- 131).
The Court notes that Ms. Simmons indicated in her affidavit that "[i]n regard to my
surgery on 3/13/23, Dr. Levine performed a laminectomy, as alleged in the Petition, in addition
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to liposuction. I informed my attorney, Ms. Maldonado, about the laminectomy, but not the
liposuction" (para 10). In addition, petitioner failed to submit any medical evidence, which
respondents allegedly requested, to support that she indeed had a disability from a laminectomy.
Petitioner failed to meet her "burden of showing that respondent[s] acted in bad faith, there being
evidence in the record that respondent[ s] terminated petitioner" due to her having over 40 days
absence in a calendar year (see Jones v. Sielaff, 189 AD2d 593 (1 st Dept 1993)). The Court finds
that petitioner's "record of excessive absence ... provided a sufficient basis for her termination"
(Nelson v. Abate, 205 AD2d 454 (1 st Dept 1994)). Thus, the petition is dismissed.
* * *
Accordingly, it is hereby
ORDERED, that motion #001 by petitioner, including to annul her termination and
reinstate her employment with DOC, is denied in its entirety; and it is further
ORDERED, that motion #002 by respondents to dismiss to petition is granted. The Court
is not inclined to grant costs, fees, and disbursements.
The foregoing constitutes the decision and order of the Court.
DA TE: 10/7/2024
J.S.C.
~
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART ~ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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