Summary
holding that there was no alleged constitutional deprivation where Fire Department employee's assignment to desk duty left him ineligible for overtime pay
Summary of this case from Bertram v. Metro. Transp. Auth.Opinion
No. 00 Civ. 3009 (BSJ).
January 3, 2001.
Memorandum Opinion
Plaintiff, an emergency medical specialist ("EMS") claims that he was deprived of a constitutionally protected property interest in violation of the Due Process clause of the Fourteenth Amendment when he was placed on desk duty pending the resolution of criminal charges against him. Specifically plaintiff alleges, and there is no dispute, that while on desk duty he was prevented from working overtime shifts for his employer the Fire Department of New York ("FDNY") and therefore from earning overtime pay.
Courts, including those of this Circuit, have consistently held that the right to work overtime is not a constitutionally protected property interest. As in this case, where an employee has retained his rank and base pay after an administrative action, courts have not found an unconstitutional deprivation property. See, e.g., Kane v. Krebser, 44 F. Supp.2d 542 (S.D.NY 1999); McNill v. NYC Dept. of Correction, 950 F. 564 (S.D.N Y 1996); Weg v. Macchiarola 729 F. Supp. 328 , 337-38 (S.D.N.Y. 1990); Boyd v. Schembri, 1997 U.S. Dist. LEXIS 11965 (S.D.N.Y. Aug. 13, 1997). The plaintiff attempts to distinguish these cases because they do not specifically address mandatory overtime. In support of this distinction, plaintiff cites the fact that the FDNY could require EMSs to work overtime shifts when needed and that under the "command discipline operating guide, the Bureau of Emergency Service lists "refusal of ordered overtime" as a ground for employee discipline. See Pl.'s Memo. at 6.
These facts do not create a constitutionally protected property right in the plaintiff to work overtime. Rather, in this case the FDNY's mandatory overtime rules created a unilateral obligation on the plaintiff to work overtime rather than an obligation on the FDNY to provide overtime work and overtime compensation to him. Although plaintiff has alleged that the FDNY can demand overtime work of EMSs as needed and that EMSs can be disciplined for refusing overtime work, he has not (and presumably cannot) allege that EMSs can demand overtime work from the FDNY, even where it is not needed.
Accordingly, the Court finds that by assigning Mr. Caniello to desk duty with the same rank and base pay pending the resolution of the charges against him and thereby depriving him of the opportunity to work EMS overtime shifts, an opportunity which is at best an expectation rather than an entitlement, the defendants did not deprive him of a constitutionally protected property interest. See Roth v. Board of Regtents, 408 U.S. 564, 577 (1972) (to prevail on Due Process claim, plaintiff must "have more than a unilateral expectation" in the benefit at issue). Defendant's motion to dismiss Plaintiff's Fourteenth Amendment Due Process claim is accordingly granted.
Because plaintiff has no viable federal law claim, the Court declines to exercise supplemental jurisdiction over his state law claims. See 28 U.S.C. § 1367 (c)(3) ("[d]istrict courts may decline to exercise supplemental jurisdiction over a claim . . . if . . . (3) the district court has dismissed all claims over which it has original jurisdiction."). Accordingly, the Complaint is dismissed and the Clerk is directed to close the case.