Joel Stashenko, New York Law Journal
August 7, 2015
A judge ordered a probationary corrections officer who was fired for “chronic absences” to be reinstated after deciding that her repeated complaints of domestic violence were ignored by the New York City Department of Correction.
Manhattan Supreme Court Justice Doris Ling-Cohan said the agency’s actions provided “ample” evidence of bad faith before it terminated Jenny Castillo. Its actions ranged from denying her “hardship” request not to work the 11 p.m. to 7 a.m. shift so she could care overnight for the five children in her care, to marking her AWOL for the day she was in Family Court at a hearing on an order of protection she sought against her abuser, the judge said.
Castillo was terminated as of Aug. 22, 2012. But Ling-Cohan said the agency was in a position to have known that Castillo might be in a domestic violence situation as early as April 10, 2012, when she reported a back injury to the Department of Correction’s Health Management Division (HMD) that she said was caused by her abuser.
Ling-Cohan also detailed in Matter of Castillo v. Schriro, 104502/12, other instances where the department was on notice of the domestic situation but apparently did nothing.
They included the three “progress notes” in her health division file in April and May 2012 confirming her abuse victim status; referrals as a domestic violence victim as early as April 23, 2012, to the Correction Assistance Response for Employees (CARE) unit; and a letter that Castillo said she delivered in person to her bosses on May 16 from Safe Horizon detailing her situation.
On April 30, the health division deemed Castillo unqualified psychologically to possess a firearm after she told the medical staff about the domestic abuse.
“In fact,” Ling-Cohan wrote, “it appears that the only ‘accommodation’ respondents made in response to petitioner divulging her painful secret of domestic violence, which affected her well-being and that of the five children under her care, was to take away her gun.”
The judge added that “incredibly,” an agent for the correction department sent to check up on her at 10:15 p.m. on a day she was absent from work, believed Castillo’s abuser when he said she was at church. Castillo said she was, in fact, at home.
Castillo argued that she missed work because her abuser hid her jail ID, so she could not report to work; because she was afraid to leave the children with him overnight or; after she secured the order of protection, she could not find overnight arrangements to care for the children in her home.
She said she was also in fear for her own safety and that of the five children-her three children and two grandchildren-due to the verbal threats of violence.
The city maintained that its information about Castillo’s domestic situation was “limited” and that, at any rate, it has liberal authority to dismiss employees who are on probationary terms.
[Description: Justice Ling-Cohan]Justice Ling-Cohan
Ling-Cohan countered that protections in New York City Human Rights Law against discrimination based on disability or status as a domestic violence victim apply to probationary employees. The law puts the burden on the employer to show it tried to provide a “reasonable accommodation” to the affected employee’s circumstances, something the Department of Correction did not do for Castillo, she said.
As far as the arguments about not being apprised of Castillo’s situation, Ling-Cohan said Castillo proved through unchallenged documentation that the Department of Correction and its divisions were adequately informed.
The judge also said the assistant deputy warden who signed off on Castillo’s termination had “unfettered” access to all of Castillo’s records, including those with the agency’s health division and CARE program.
Ling-Cohan said Castillo made a valid claim for a violation of her human rights based on disability with her argument that the department did not recognized the 63 days she missed from September 2011 to February 2012 stemmed from two surgeries she had to repair injuries she suffered when a kitchen cabinet fell on her hand.
Castillo said she was unfairly placed on “chronic absence” status upon her return to work based on earlier absences.
Ling-Cohan ordered Castillo to receive back pay to the date she was terminated as well as benefits and seniority.
Castillo said she was hired as a provisional correction officer subject to a two-year probation period on Dec. 16, 2010, She received a letter of appreciation from the department on May 6, 2011, and a certificate of appreciation on Aug. 7, according to the decision.
Castillo was also cited in a Feb. 27, 2011, New York Daily News story for having saved the life of a choking man on whom she performed the Heimlich maneuver outside a Queens bank.
Assistant Corporation Counsels Stephen Pischl and Anika Bent-Albert defended the Department of Correction.
A spokesman for the corporation counsel’s office said Wednesday the city will “abide by the court’s decision.”
Mercedes Maldonado, senior attorney for Isaacs, Devasia, Castro & Wien LLP in Manhattan, said she was “very happy” and hoped for Castillo’s prompt return to the job.
“This woman really needs to get back to work,” Maldonado said.