No member of this court feels more strongly than do I that employees should be protected in their job security. The interest of a worker in a job, especially in public employment, has increasingly been protected, either as a property right or simply as a matter of fairness (see Board of Regents v Roth, 408 US 564; see, also, Friedman, Law in a Changing Society, ch 10, Individual Freedom, Group Control and State Security, p 255).
Upon review of the cases, however, it is my considered judgment that we are bound under constraint of Weiner v McGraw-Hill, Inc. (57 NY2d 458), and Murphy v American Home Prods. Corp. (58 NY2d 293), to conclude that the determination below must be reversed.
The Court of Appeals has been unequivocal. Judge Jones, speaking for the court in Murphy (supra, p 297) unqualifiedly states: “This court has not and does not now recognize a cause of action in tort for abusive or wrongful discharge of an employee; such recognition must await action of the Legislature. Nor does the complaint here state a cause of action for intentional infliction of emotional distress, for prima facie tort, or for breach of contract.” The majority have sought to distinguish this case, but its holding and the penumbra of what it decides clearly prevent reaching the conclusion which the court does here.
*449The law is absolutely clear that an employer, public or private, has the unqualified right to terminate an employee without any kind of hearing, unless it is specifically mandated by statute or by contract, which is not the case here. (Matter of Albury v New York City Civ. Serv. Comm., Dept. of Personnel, 32 AD2d 895, affd 27 NY2d 694; see, e.g., Civil Service Law, §§ 63, 65; Russell v Hodges, 470 F2d 212; Matter of Anonymous v Codd, 40 NY2d 860; Matter of Talamo v Murphy, 38 NY2d 637; Matter of Salvatore v Nasser, 81 AD2d 1012, 1013; Matter of City of Binghamton v Binghamton Civ. Serv. Forum, 63 AD2d 790, 791; Matter of Ause v Regan, 59 AD2d 317, 323; Sirohi v Merges, 58 AD2d 645.)
In the instant proceeding the Manhattan and Bronx Surface Transit Operating Authority (MABSTOA) demonstrates that petitioner is not represented by a collective bargaining unit and that petitioner can be dismissed at will. In the face of the above authorities, petitioner’s major contention is that he is being deprived of a property right and, therefore, entitled to protection under the Federal and State Constitutions. He argues that the actions of MABSTOA will “clearly create a stigma, that will adversely affect [petitioner’s] ability to obtain employment as a chemist.” Petitioner is obviously attempting to demonstrate that his employment is a property right within the ambit of the 14th Amendment and entitled to protection. He is mistaken.
It can be argued that where the State charges a person with an act that might “seriously damage his standing and associations in his community” (Board of Regents v Roth, supra, p 573), then that person is entitled to notice and an opportunity to be heard. Here, however, our Legislature expressly stated that the employees of respondent are not entitled to the protection of the Civil Service Law (Public Authorities Law, § 1203-a). In addition, it cannot seriously be challenged that simply because petitioner was dismissed for an unsatisfactory job performance, this action will permanently stigmatize him and forever place a label on him as unemployable. This one action certainly does not foreclose petitioner from obtaining employment in his chosen field with a different employer.
*450The term used in a communication to petitioner — “failure of compliance” — realistically meant under the circumstances presented that he had not performed a particular assignment satisfactorily. This clearly is not what any of the cases have considered a reason for a name-clearing hearing (see Matter of Petix v Connelie, 47 NY2d 457, where “bad judgment” not of constitutional significance for purpose of name-clearing hearing; see, also, James v Board of Educ., 37 NY2d 891). The petition itself did not allege that he had been stigmatized, nor did it seek such a hearing.
Also, the facts disclose that petitioner received “minimum due process”. Petitioner was advised in writing of the charges against him and had an occasion “to appeal” the ruling. Although labor relations specialist Harrison left the determination up to one of petitioner’s supervisors, who was implicated by petitioner, certainly a questionable practice, the final review was undertaken by the director of labor relations, an independent manager who had no stake in the outcome. Even though petitioner is, apparently, not a public employee (supra), he was accorded the minimum required protection.
Petitioner also attempts to show that he was discharged for exercising his right to free speech. However, the record does not support this argument. To interpret it as such would be to distort the First Amendment. Clearly, MABSTOA at all times claimed that petitioner’s dismissal resulted from his participation in a project. There is not even the slightest hint that petitioner was being reprimanded for his speaking out on an issue of legitimate public concern, and this argument is without merit. The Constitution does not necessarily protect public employees against discharge for complaining about the management of the agency that employs them (Connick v Myers, 461 US_).
Petitioner places himself in a de facto public employment situation. He asserts that both Mr. Bulone, his supervisor, and Mr. Robinson, the director of labor relations, realized this when they recommended that he be placed on probation or returned to his prior title of chemist. While this may be so, the fact still remains that the Legislature chose not to place respondent’s employees in the civil service *451category. MABSTOA does not exist separate and apart from the State and City of New York, and its employees are controlled by government employees (see Collins v Manhattan & Bronx Surface Tr. Operating Auth. [“MABSTOA”], 116 Misc 2d 6). Thus, MABSTOA cannot be estopped by the actions or statements of its employees (Matter of Janosko v Kross, 27 Misc 2d 210).
The thrust of the petition is that petitioner’s constitutional rights were denied because he was terminated without compliance with the due process requirements of notice and a fair hearing. The resolution of this issue — clearly the central one presented in the petition itself — is whether or not the petitioner has a property interest in his position. As developed in the opinions of the Supreme Court, a property interest involves “a legitimate claim of entitlement” to a benefit, a claim which is created and defined from sources independent of the Constitution, such as State law. It 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, 408 US 593, 601).
As ultimately defined in Arnett v Kennedy (416 US 134), and Bishop v Wood (426 US 341), the test appears to be whether a public employee is terminable at will or whether he may only be terminated for cause. If under State law a public employee may not be terminated except for cause, he is entitled to due process.
It may be argued that the Court of Appeals dealt only with the situation of private employees terminable at will in Weiner (57 NY2d 458, supra) and Murphy (58 NY2d 293, supra). However, the express language in Murphy is all inclusive. “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.” (Murphy v American Home Prods. Corp., supra, p 305.) Even a superficial reading of the language of Murphy, and its use of both judicial precedent as well as statutory reference, makes it clear that the court is not limiting its *452decision to purely private employees terminable at will. Most public employees are protected by civil service statutes. The petitioner herein does not fall into that category.
As has just been observed, “The old at-will doctrine, holding that in the absence of an express agreement any employee can be abruptly discharged for no cause or for any cause, is undergoing change in areas which recognize that such court-made rules of law are manifestly unjust.” (Julien, The Missed Opportunities, NYLJ, April 27, 1983, p 1, col 1, p 28, col 1.) There is an avalanche of legal literature, media comment and decisional law, as well as legislative enactments, which have urged increased recognition of the rights of employees (see, e.g., cases cited in Murphy v American Home Prods. Corp., supra [Meyer, J., dissenting in part], ns 3, 4; see, also, Lewin, “Help for Workers Lacking Contracts”, New York Times, April 21, 1983, D-l, cols 4, 5; see, also, the articles and cases cited in Julien, The Missed Opportunities, NYLJ, April 27,1983, p 1, col 1).
It is clear that the Legislature has been very much aware of the issues involved in the cases concerning the discharge of employees. A number of bills have been enacted into law relating to special situations and special employees, and a number have been rejected. Bills have been proposed to protect employees at will, but the Legislature in its wisdom has refused to enact them into law (see Murphy v American Home Prods. Corp., supra, n 1, majority opn, n 5 dissenting opn).
It cannot be successfully argued in a vacuum that appellant’s discharge was arbitrary and capricious. The majority notes alleged circumstances of petitioner’s dismissal which it asserts are “legally sufficient to present such an issue.” An examination of the record, however, makes it clear that petitioner had several opportunities, although informal, to present his position. It is uncontroverted that the experiment for which he had some responsibility, did not succeed, arguably because of his negligence, at least in part. Petitioner has the burden in this proceeding of showing that respondent’s, determination was arbitrary or capricious (see Matter of Bergstein v Board of Educ., 34 NY2d 318, *453323; Haberman v Codd, 48 AD2d 505, 508). The petitioner has failed to meet this burden.
Since upon his petition and the affidavits submitted, there was some evidence that his performance was less than satisfactory, “a dismissal upon that basis cannot be said to have been made in bad faith” (Matter of Matsa v Wallach, 42 AD2d 1004,1005, affd 34 NY2d 891) or to have been arbitrary and capricious (Matter of Smith v Chambers, 32 AD2d 949, affd 26 NY2d 876). Sympathy is just not enough as a predicate for legal action by this court. The majority concedes that the appellant does not have a property interest in his job. But for us to afford him some relief, he must then establish some legally protected right.
Murphy v American Home Prods. Corp. (58 NY2d 293, supra) has expressly repudiated any legal theory upon which appellant may rest his claim. Presumably, the Court of Appeals has said what it means and means what it says.
In view of the unequivocal refusal of the Court of Appeals to recognize the right of an employee at will, whether public or private, to job security, as well as the refusal of the Legislature to extend legislative protection to these persons, it is incumbent upon this court to bow to superior authority in this matter, although most regretfully.
Kupferman, J. P., Lynch and Milonas, JJ., concur with Sandler, J.; Asch, J., dissents in an opinion.
Order, Supreme Court, New York County, entered on January 19, 1982, modified, on the law, without costs and without disbursements, to the extent of striking the direction for an immediate trial, and permitting the filing of an answer within 10 days after service of this court’s order with notice of entry, dismissing the petition with regard to the New York City Transit Authority, and otherwise affirmed.