Opinion
96-CV-0052E(F).
February 14, 2002
FINDINGS OF FACT, CONCLUSIONS OF LAW and ORDER
Plaintiff commenced this action January 25, 1996 naming as defendants Edward Mercado, individually and in his capacity as Commissioner, New York State Division of Human Rights ("DHR"), George C. Sinnott, in his capacities as Head of the New York State Department of Civil Service ("DCS") and as President of the New York State Civil Service Commission ("CSC") and Robert J. Riordan and Virginia M. Apuzzo, in their capacities as Commissioners of the CSC and asserting five causes of action under 42 U.S.C. § 1983. In a Memorandum and Order dated June 5, 1998, this Court dismissed all claims against defendants Sinnott, Riordan and Apuzzo and plaintiff's second through fifth causes of action against Mercado. A bench trial was held from May 22, 2000 through May 24, 2000 on plaintiff's remaining cause of action which alleged that Mercado had violated his Fourteenth Amendment right to procedural due process by terminating his employment with the DHR without cause and without a pre-termination hearing because he had a property interest in his position. Plaintiff filed his Proposed Findings of Facts and Conclusions of Law November 6, 2000 and defendant filed his January 31, 2001. Oral argument on the Proposed Findings of Facts and Conclusions of Law was had February 16, 2001 and such has thereafter been before this Court for disposition. The following constitutes the Findings of Fact and Conclusions of Law of this Court pursuant to Rule 52 of the Federal Rules of Civil Procedure.
This Court also dismissed plaintiff's first cause of action to the extent that it raised an estoppel claim. June 5, 1998 Mem. Order at 13-14.
Plaintiff was hired by the DHR October 30, 1975 as the Regional Director of its Buffalo, N.Y. office. Tr. at 16-17. At the time plaintiff was hired, the official civil service title for all eleven Regional Directors was Associate Field Representative, Salary Grade ("SG") 25. Such was changed to Human Rights Specialist ("HRS") III, SG-25, in 1981; however, the working title of Regional Director and the duties remained the same. Def.'s Ex. 1 (Pl.'s Personnel Record); Tr. at 17-18. As a Regional Director, plaintiff was represented by the Public Employees Federation, AFL-CIO for the Professional, Scientific and Technical Services Unit ("PEF"). Pl.'s Ex. 76.
All Regional Directors, including plaintiff, originally held provisional civil service status and were appointed to their positions by the Commissioner of the DHR. Tr. at 19-21. On April 30, 1982 the DCS announced a Competitive Promotion Examination ("the examination") for the position of HRS III, SG-25 — i.e., the then official Civil Service title for Regional Director. Def.'s Ex. 1 (Competitive Promotion Examination Announcement). This was the first time that a competitive examination for the position of Regional Director had been offered and anyone appointed as a Regional Director as a result of having taken and passed this examination would have permanent, competitive civil service status. Tr. at 20-21, 26. Eligibility to take the examination was limited to those DHR employees who had two years of permanent competitive service as a HRS II, three years of permanent competitive service as a HRS I, HRS I (Spanish Speaking) or three years permanent non-competitive service as a HRS I. Def.'s Ex. 1 (Competitive Promotion Examination Announcement).
This examination was also for the position of Associate Human Rights Program Analyst, SG-23 and appointments from the eligible list resulting from this examination were also to be made to positions other than Regional Director.
Plaintiff applied to take the examination; however his application was rejected by DCS because he did not meet the above eligibility criteria. Pl.'s Ex. 2 (Sep. 15, 1982 Letter from Robert C. Hallock, DCS Associate Staffing Services Representative to Pl.); Tr. at 22-23. Plaintiff appealed the rejection of his application to Commissioner Joseph A. F. Valenti, then President of the DCS, arguing that he should be allowed to take the examination because he had served as a provisional Regional Director for seven years. Pl.'s Ex. 3 (November 1, 1982 Letter from Pl. to Valenti). Plaintiff also argued that it was impossible for him to have met the eligibility requirements to sit for the examination because the only competitive examinations for HRS I and II which had been given during the course of his employment with the DHR were in 1979 and, although he had taken and passed both such examinations, the first permanent appointments from such examinations were not made until 1981. Ibid. Plaintiff accordingly argued that, even if he had already received an appointment from such list, he would still be ineligible to take the HRS III examination. Ibid. Valenti referred plaintiff's appeal to Hallock, who replied to plaintiff upholding his earlier determination that he was ineligible to take the examination. Pl.'s Ex. 4 (Nov. 19, 1982 Letter from Hallock to Pl.). The examination was administered and resulted in a list of fifteen people who were eligible for a competitive appointment, seven of whom were to be appointed as HRS III, SG-25 Regional Directors. Pl.'s Ex. 12 (Dec. 6, 1983 Letter from Commissioner H. Carl McCall of the DHR to Burstein).
The previous examinations for Human Rights Specialists I and II had been given in 1969 — i.e., before plaintiff had been hired by the DHR. Pl.'s Ex. 3 (November 1, 1982 Letter from Pl. to Valenti).
Plaintiff thereafter retained James A. W. McLeod, Esq. and commenced a proceeding pursuant to Article 78 of the N.Y. C.P.L.R. against the DHR and the DCS December 13, 1982 challenging the denial of his application to take the examination. Pl.'s Ex. 5 (Article 78 Proceeding Materials); Tr. at 24-25. Justice Norman J. Wolf of the New York State Supreme Court, Erie County signed an order to show cause that day directing the DHR and the DCS "not to fill any vacancy's [sic] that may exist from said examination pending a determination of the matter herein." Pl.'s Ex. 5 (Article 78 Proceeding Materials). On January 11, 1983 New York State Supreme Court Justice Thomas P. Flaherty issued a memorandum and order directing that a trial be held regarding plaintiff's Article 78 petition and extended the injunction issued by Justice Wolf until the conclusion of such trial. Def.'s Ex. 51 (January 11, 1983 Mem. Order of Justice Flaherty). As a result of the injunction obtained by plaintiff, the DHR and the DCS were barred from making any appointments from the eligible list from the examination. Ibid.
On March 3, 1983 plaintiff was notified that he was being given a permanent, competitive appointment as a HRS I, SG-19 in the Rochester office effective January 27, 1983, subject to a probationary period of up to 52 weeks, based upon his having passed the 1979 competitive examination for HRS I. Pl.'s Ex. 7 (March 3, 1983 Letter from McCall to Pl.). However, plaintiff was granted a leave of absence from such position to continue his employment as Regional Director, HRS III, SG-25 in Buffalo. Ibid. Plaintiff successfully completed his probationary period January 26, 1984. Pl.'s Ex. 15 (Feb. 24, 1984 Letter from McCall to Pl.).
Plaintiff apparently resigned this position sometime after receiving a permanent, non-competitive appointment as Regional Director of the Buffalo office.
On May 23, 1983 Commissioner McCall wrote to Valenti requesting that the position of Regional Director be reclassified from competitive to exempt because the DHR planned to expand the authority and responsibilities of the Regional Directors as part of a "major reorganization of [the] regional staff" and because such would moot plaintiff's injunction. Def.'s Ex. 2 (May 23, 1983 Letter from McCall to Valenti). On December 6, 1983 McCall wrote to Karen Burstein (then President of the CSC) requesting that the Regional Directors be reclassified as non-competitive and designated confidential because they would become policy-influencing based upon "the expansion of their duties" under his planned reorganization of the DHR. Pl.'s Ex. 12 (Dec. 6, 1983 Letter from McCall to Burstein). On December 16, 1983 McCall again wrote to Burstein stating that, after the examination had been given, the "duties and responsibilities of the [HRS III] (Regional Director), were substantially changed to reflect the requirements of my administration." Def.'s Ex. 3 (Dec. 16, 1983 Letter from McCall to Burstein). McCall wrote to Louis A. Choppy (the Chief Classification Compensation Analyst, Division of Classification Compensation of the DCS) on December 20, 1983 requesting that the Regional Directors be reclassified as non-competitive and designated management/confidential because the "nature of their duties and responsibilities have [sic] substantially changed ***." Pl.'s Ex. 14 (Dec. 20, 1983 Letter from McCall to Choppy). However, the DCS had concerns about McCall's request to reclassify the position of Regional Director to non-competitive, because of the seven individuals on the eligible list from the examination who were to be given permanent competitive appointments as Regional Directors. Tr. at 398-399. The PEF also opposed this plan because it would limit the promotional opportunities of its members. Pl.'s Ex. 36 (March 12, 1985 Letter from White to Pierno).
On April 13, 1984 McCall wrote to plaintiff proposing a settlement of his Article 78 suit. Plaintiff attended a meeting on May 30, 1984 in Albany, N Y with Commissioner McCall and James Cape (the Director of Administration) on behalf of the DHR, Burstein, Kathy A. Bennett (the Deputy Commissioner and General Counsel) and Nicholas Vagianelis (the Coordinator of CSC Operations) on behalf of the CSC, to discuss a possible settlement of his Article 78 suit. Pl.'s Ex. 23 (May 30, 1984 Letter from Burstein to Pl.); Tr. at 39-41, 143-144, 440. Plaintiff informed those present at the meeting that what he was seeking was the same rights as those who were to be given competitive appointments as Regional Directors as a result of the examination, which he characterized as "tenure." Tr. at 43, 145. During such meeting plaintiff and the DHR and the DCS reached a settlement of the Article 78 suit. Ibid. The terms of such settlement were as follows: (1) plaintiff would request the New York State Supreme Court, Erie County to lift the injunction barring the appointment of those on the eligibility list from the examination, (2) the DHR would then make appointments from those on the eligible list until such was exhausted with, however, no one to be appointed to plaintiff's position as Regional Director of the Buffalo office, (3) the CSC would then proceed to process the DHR's request to reclassify the Regional Director positions from competitive back to non-competitive and change their formal civil service title to Regional Director, (4) plaintiff would then be permanently appointed Regional Director of the Buffalo office and (5) plaintiff would voluntarily dismiss his Article 78 suit. Tr. at 41-45, 51, 145-147, 212-216, 399-402. At the time this agreement was entered into, the position of Regional Director was not designated as confidential and/or policy-influencing and plaintiff was never informed that the DHR had requested the CSC to redesignate it as such. On the day of this meeting, Burstein sent the following letter to plaintiff which he subsequently reviewed with attorney McLeod:
"The Civil Service Commission and I have developed a plan which we believe will satisfactorily resolve the concern which prompted your court action against the use of the Human Rights Specialist III *** eligible list. The implementation of the plan will result in your permanent appointment to the Non-Competitive position of Regional Director, SG-25, in the Buffalo Office. However, inorder [sic] for the plan to be implemented, it will be necessary for you to have lifted the stay on the use of Human Rights Specialist III *** eligible list, (number 39621), by April 27, 1994. The components of the plan are as follows:
1. Exhaust the eligible list once the stay has been lifted. Your position will not have been filled from the eligible list upon its exhaustion.
2. Change the Jurisdictional Classification of the positions not filled from the eligible list to Non-Competitive and the title to Regional Director, SG-25.
3. Permanently appoint you to the Non-Competitive position of Regional Director in Buffalo." Pl.'s Ex. 18 (Apr. 13, 1984 Letter from McCall to Pl.).
"This letter will confirm the understanding reached at your meeting today with Commissioner H. Carl McCall and James Capel of the Division of Human Rights, Kathy A. Bennett, Deputy Commissioner and General Counsel, and Nicholas Vagianelis, Coordinator of Civil Service Commission Operations, of the Department of Civil Service.
"In order to resolve your lawsuit against the New York State Division of Human Rights and this Department, the procedures outlined below must be followed:
1. The injunction that you have obtained against the use of Civil Service eligible list, No. 39-621 (Human Rights Specialist III/Associate Human Rights Program Analyst) must be lifted;
2. Upon the removal of that injunction, the New York State Division of Human Rights will immediately begin to make appointments from the eligible list, 39-621, for the agreed upon positions, until that eligible list is exhausted;
3. The Division of Human Rights' request for reclassification of Human Rights Specialist III/Associate Human Rights Program Analyst to Regional Director (SG-25) in the non-competitive class will be processed expeditiously by the Division of Classification and Compensation and submitted to the Commission for their action;
4. Within 20 days after the Commission has acted, the above-referenced lawsuit will be withdrawn." Pl.'s Ex. 23 (May 30, 1984 Letter from Burstein to Pl.); Tr. at 47-49.
Although this Court held in a Memorandum and Order dated June 5, 1998, that this letter is not the actual settlement agreement, but rather only references the actual oral settlement, plaintiff did not object to the fact that such letter omitted giving him a permanent position as Regional Director of the Buffalo office in exchange for settling his suit, and plaintiff never made any effort to reduce the oral settlement agreement to writing. Tr. at 153.
In the early spring of 1984, a compromise was reached among the DHR, the CSC and the PEF whereby it was agreed that the seven on the eligible list from the examination for appointment as Regional Directors would be given competitive appointments, but that these positions would be earmarked and would revert to non-competitive status when the current incumbents vacated their positions and that the remaining four positions would immediately be reclassified as non-competitive. Pl.'s Ex. 36 (March 12, 1985 Letter from White to Pierno).
At the request of the plaintiff, Justice Flaherty lifted the injunction barring the appointment of those on the eligibility list from the 1982 examination July 3, 1984. Pl.'s Ex 25 (July 3, 1984 Order of Justice Flaherty); Tr. at 49-50. On October 29, 1984 Douglas H. White (then Executive Deputy Commissioner of the DHR) wrote to Burstein stating that the eligible list had been exhausted and requesting that the CSC proceed to reclassify the position of Regional Director from competitive to non-competitive. Pl.'s Ex. 27 (Oct. 29, 1984 Letter from White to Burstein). During its March 20, 1985 meeting, the CSC tentatively approved the DHR's request to reclassify the position of Regional Director from competitive to non-competitive and also determined that, pursuant to N.Y. Civil Service Law § 42(2-a), the position of Regional Director requires the "performance of functions influencing policy." Pl.'s Ex. 37 (Mar. 28, 1985 Letter from John M. Keefe, Director of Civil Service Operations and Administration, to White); Tr. at 406. The CSC passed a formal resolution to re-classify the position of Regional Director from competitive to non-competitive and to designate it as policy-influencing June 10, 1985; such was approved by the Governor May 6, 1986 and went into effect May 30, 1986 when such was filed with the Department of State. Def.'s Ex. 53 (Formal Reclassification of Regional Director filed with the New York State Department of State). The result of such was that the four Regional Director positions which had not been filled by those on the eligible list from the 1982 examination — including plaintiff's — were immediately reclassified as non-competitive, policy-influencing and that the seven positions which had been filled by those from the eligible list would become non-competitive, policy-influencing as soon as the current incumbent vacated.
On August 27, 1986 White (then Commissioner of the DHR) wrote to plaintiff stating that he had been given a non-competitive permanent appointment as Regional Director of the Buffalo office effective May 30, 1986, subject to a probationary period of up to 52 weeks. Pl.'s Ex. 47 (Aug. 27, 1986 Letter from White to Pl.). Plaintiff was never notified that his position had been designated policy-influencing, however, and his duties and working title of Regional Director remained the same. Tr. at 60-61. Plaintiff thereafter withdrew his Article 78 suit. Tr. at 61. Plaintiff successfully completed his probationary period May 29, 1987. Pl.'s Ex. 48 (June 2, 1987 Letter from White to Pl.).
Plaintiff submitted an Application Requesting an Exemption from Filing a Financial Disclosure Statement March 15, 1989 wherein he stated that he was a Regional Director at the DHR and was represented by the PEF; a copy of this form was filed with plaintiff's appointing authority — i.e., the DHR. Pl.'s Ex. 58; Tr. at 77-82. Plaintiff was granted an exemption from filing a financial disclosure statement by the Executive Director of the State Ethics Commission May 31, 1989 and such form noted that the DHR "has not designated [plaintiff] as a policy-maker and has not filed a written objection to [his] Request for Exemption." Pl.'s Ex. 59 (Decision of the Executive Director); Tr. at 77-82. On March 3, 1993 Lynne A. Weikart (then Executive Deputy Commissioner of the DHR) mailed a Non-Suspension Notice of Discipline to plaintiff notifying him that he was to be terminated for misconduct within fifteen days unless he grieved such through his union, the PEF. Pl.'s Ex. 53 (Mar. 3, 1993 Letter from Weikart to Pl.). Plaintiff grieved such through the PEF March 10, 1993 — Pl.'s Ex. 54 (Grievance Form) — and a settlement was reached between plaintiff, the DHR and the PEF June 28, 1993 whereby plaintiff received a letter of reprimand, a two-week suspension without pay and the loss of two weeks of vacation. Pl.'s Ex. 56 (Disciplinary Settlement Form); Tr. at 64-74. On September 2, 1994 Vallorie Lovelace (the DHR Director of Human Resources Management) wrote to plaintiff stating that the state was petitioning the Public Employment Relations Board to redesignate the position of Regional Director from Professional, Scientific and Technical to Managerial/Confidential, noting that all of the HRS IIIs, both competitive and non-competitive, other than the Regional Directors, were already designated as Managerial/Confidential. Pl.'s Ex. 63 (Sep. 2, 1994 Letter from Lovelace to Pl.). Lovelace stated that, despite the change in designation to Managerial/Confidential, the DHR
"would always ensure that rights of employees are protected, and that the progressive discipline process in this agency applies to all employees, regardless of status. Under a recent change in Section 75 of the Civil Service Law, all M/C employees now have rights to representation for any disciplinary proceedings, and there are hearing and/or arbitration rights outside of the agency for any termination proceedings. If the issue should ever arise, you would be fully informed of your rights in writing." Ibid.
George Pataki was elected governor in November of 1994 and, in a Regional Directors meeting held later that month, Lovelace informed them that those Regional Directors who were non-competitive, policy-influencing were vulnerable to termination once Pataki took office. Pl.'s Ex. 72 (March 8, 1996 Letter from Lovelace to Pl.); Tr. at 168-173, 219-221. Edward Mercado was appointed as Commissioner of the DHR January 9, 1995. Tr. at 286. The Governor's Appointment Office contacted Mercado August 31, 1995 and directed him to request the resignations of seven Regional Directors, including plaintiff — i.e., all Regional Directors who held non-competitive status at that time. Pl.'s Ex. 64 (Lovelace Aug. 31, 1995 Mem. to File); Tr. at 237-238, 286-287. Mercado was concerned both about the effect of simultaneously terminating seven Regional Directors and because some of the best Regional Directors had been identified and, after discussing such with his staff, he contacted the Governor's Appointment Office with his concerns and requested that four of the identified Regional Directors be retained. Tr. at 239-240, 287-289. As a result of Mercado's request, the Governor's Appointment Office faxed him an amended list which only directed him to request the resignations of plaintiff and three other Regional Directors. Pl.'s Ex. 72 (March 8, 1996 Letter from Lovelace to Pl.). One of these three Regional Directors was subsequently removed from the list of requested terminations with the result that only plaintiff and two other Regional Directors were asked to resign. Ibid. After receiving the amended list, Mercado discussed the proposed terminations with Lovelace, Lawrence Kunin (the General Counsel of the DHR), Michael A. Colon (then Executive Deputy Commissioner of the DHR), John Lind (the Deputy Commissioner for Regional Affairs of the DHR) and Leslie Maybe to determine the propriety of requesting the resignations of the Regional Directors identified on the list; however he did not specifically inquire re plaintiff. Tr. at 243-260. Mercado believed that all eleven of the Regional Directors were policy-influencing due to the nature of their duties and because they influenced his policy; he was not aware that some of the Regional Directors had received competitive appointments as a result of the 1982 examination and accordingly were not designated as policy-influencing. Tr. at 246-252, 303.
One of these two Regional Directors, John Cooper, was improperly terminated due to his veteran's status and had to be reinstated after he filed a grievance. Pl.'s Ex. 72 (March 8, 1996 Letter from Lovelace to Pl.); Tr. at 309-313.
Colon wrote a letter to plaintiff September 11, 1995 stating that, as "part of the agency transition under the present administration, we are requesting your resignation from your non-competitive, policy-influencing position as Human Rights Regional Director effective close of business September 27, 1995. Pl.'s Ex. 67 (Colon Sep. 11, 1995 Letter to Pl.). Lovelace called plaintiff at his office that day and informed him that he was being asked to resign from his non-competitive, policy-influencing position and that, if he did not do so, he would be terminated, to which plaintiff responded that his position was permanent based upon the 1984 settlement of his Article 78 suit and that there were documents in his personnel folder which would establish such, in response to which Lovelace told him to speak to Mercado. Tr. at 75, 83-84. Plaintiff telephoned Mercado later that day and Mercado told him to put his argument in writing. Tr. at 84-85. Plaintiff wrote to Mercado September 18, 1995 enclosing the following documents: (1) the August 27, 1986 letter from White confirming his permanent, non-competitive appointment as Regional Director of the Buffalo office effective May 30, 1986, (2) the May 30, 1986 letter from Burstein confirming the agreement reached to settle his Article 78 suit, (3) the April 13, 1984 letter from McCall regarding his proposal to settle the Article 78 suit, (4) the February 24, 1984 letter from McCall stating that he had completed his probationary period as a HRS I effective January 26, 1984, (5) the May 31, 1989 Exemption from Filing Financial Disclosure Statement form and (6) a brief statement regarding his Article 78 suit. Pl.'s Ex. 68 (Sep. 18, 1995 Letter from Pl. to Mercado w/enclosures); Tr. at 86-87.
Mercado reviewed plaintiff's letter and the documents he had submitted and discussed the termination of plaintiff with Lovelace, Colon and Kunin, and possibly with Lind; however, he did not consult with anyone who had been present at the May 30, 1984 meeting in Albany during which the settlement of the Article 78 suit had been reached. Tr. at 261-269, 278-281, 284-285. Based upon his discussion with Lovelace, Colon and Kunin, Mercado concluded that plaintiff did not have a permanent position as Regional Director from which he could only be terminated for cause after a pre-termination hearing as a result of the settlement of his Article 78 suit. Tr. at 279-280. Mercado did not see anything in the papers submitted by plaintiff that indicated that he was not classified as policy-influencing by the CSC and did not believe that the settlement of the Article 78 suit could change such classification absent formal action by the CSC. Tr. at 303-305, 317-320. Mercado concluded that plaintiff was a policy-influencing, political appointee who could be terminated at will. Tr. at 307-308.
Colon responded to plaintiff on behalf of Mercado September 25, 1995 stating that, because his position was designated as non-competitive, policy-influencing by the CSC, he had no tenure rights under N.Y. Civil Service Law § 75(1)(c) and that, if he did not resign, he would be terminated September 27, 1995. Def.'s Ex. 11 (Sep. 25, 1995 Letter from Colon to Pl.); Tr. at 89-90. After receiving this letter, plaintiff called Mercado and requested to be allowed to work until October 30, 1995 so that he would have twenty years of service, but Mercado denied such stating that the decision has already been made. Tr. at 90-91.
Plaintiff filed a Step 1 grievance through the PEF arguing that he had received a permanent position in settlement of his Article 78 suit and accordingly could not be terminated except for cause after a pre-termination hearing. The DHR denied plaintiff's Step 1 grievance November 7, 1995. Pl.'s Ex. 72 (March 8, 1996 Letter from Lovelace to Pl.). Plaintiff was ultimately terminated in November of 1995 for political reasons occasioned by the election of Pataki, not because of his performance. Ibid. Plaintiff then filed a Step 2 grievance and a hearing on such was conducted via conference call February 29, 1996 between plaintiff and Elizabeth Vignaux (PEF Field Representative) and Gloria Sanchez (Director of Affirmative Action Programs), Kunin and Lovelace on behalf of the DHR. Ibid. Lovelace wrote to plaintiff March 8, 1996 stating that the DHR was denying his Step 2 appeal of his termination. Ibid. In such letter, Lovelace stated that plaintiff had "not provided any documentation concerning the specific agreement that he alleges was made, granting him permanent protections, and there is no documentation that we have been able to locate within the agency that supports that contention." Ibid.
On November 2, 1995, Robert Carrothers, a Contract Analyst with the PEF wrote to plaintiff stating that his position of Regional Director was to be changed from Professional, Scientific and Technical to Managerial/Confidential effective January 11, 1996 pursuant to the State's 1994 request and that, upon such change, he could no longer be a member of the PEF. Pl.'s Ex. 70 (Nov. 12, 1995 Letter from Carrothers to Pl.). Despite such letter the PEF continued to represent plaintiff throughout the grievance process.
Plaintiff commenced this action January 25, 1996 — i.e. while his Step 2 grievance was still pending.
In this action brought pursuant to 42 U.S.C. § 1983, plaintiff argues that he obtained a property interest in his position as Regional Director of the Buffalo office as a result of the May 30, 1984 "settlement agreement and/or understanding, whether express or implied" — Compl. ¶ 54 — between himself and the DHR and that defendant, acting under color of state law, violated his Fourteenth Amendment right to procedural due process by terminating him from such position without cause and a pre-termination hearing. He seeks reinstatement with back pay, $200,000 in compensatory damages due to the humiliation, embarrassment and depression he suffered as a result of his termination, $1,000,000 in punitive damages and attorney fees. Defendant argues that plaintiff had no property interest in his position and that as a result he did not violate plaintiff's Fourteenth Amendment right to procedural due process by terminating him for political reasons without a pre-termination hearing or, assuming arguendo that plaintiff did have a property interest in his position, that he is entitled to qualified immunity.
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State *** subjects, or causes to be subjected, any citizen of the United States *** to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ***." 42 U.S.C. § 1983.
It is not disputed that defendant was acting under color of state law when he terminated plaintiff.
The Fourteenth Amendment prohibits the termination of a governmental employee with a property interest in continued employment without procedural due process, including a pre-termination hearing. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538, 541-542 (1985); O'Neill v. City of Auburn, 23 F.3d 685, 688 (2d Cir. 1994); Petrella v. Siegel, 843 F.2d 87, 89 (2d Cir. 1988); Dwyer v. Regan, 777 F.2d 825, 829 (2d Cir. 1985), modified, 793 F.2d 457 (1986). "Property interests *** are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law ***." Board of Regents v. Roth, 408 U.S. 564, 577 (1972). See also, Loudermill, at 538; Dwyer, at 829; Ezekwo v. NYC Health Hospitals Corp., 940 F.2d 775, 782-783 (2d Cir.), cert. denied, 502 U.S. 1013 (1991); Baden v. Koch, 638 F.2d 486, 489 (2d Cir. 1980); Quinn v. Syracuse Model Neighborhood, 613 F.2d 438, 447-448 (2d Cir. 1980). A governmental employee may obtain a property interest in continued employment through a statute or regulation or, in the absence of a statute or regulation to the contrary, through a contract whether express or implied, formal or informal rules promulgated by the employer, explicit or implicit understandings between the employer and employee, a course of conduct or dealing between the employer and employee, or the policies and practices of the employer. Perry v. Sindermann, 408 U.S. 593, 599-603 (1972); Ezekwo, at 782-783; Stein v. Board of City of New York, 792 F.2d 13, 17 (2d Cir.), cert. denied, 479 U.S. 984 (1986); Baden, at 492-493; Bergamini v. Manhattan Bronx Transp. Transit Operating Auth., 62 N.Y.2d 897, 899 (1984) (property interest in position not subject to N.Y. Civil Service Law could be achieved through contract with employer). However, for it to constitute a property interest, the employee must have a "legitimate claim of entitlement" to continued employment, as opposed to a mere "unilateral expectation of it." Roth, at 577. See also, White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1062 (2d Cir.), cert. denied, 510 U.S. 865 (1993); Hawkins v. Steingut, 829 F.2d 317, 321 (2d Cir. 1987); Quinn, at 447-448.
Where a statute or regulation expressly permits the removal of persons holding certain positions in the civil service without cause or a pre-termination hearing, such a person can be removed without a pre-termination hearing regardless of any mutual understandings, agreements, rules, policies and practices or course of conduct or dealing to the contrary, because such can "not create a property interest for purposes of due process when they are contrary to the express provisions of regulations and statutes." Baden, at 489, 492-493. See also, McMenemy v. City of Rochester, 241 F.3d 279, 286-287 (2d Cir. 2001); Hawkins, at 322; Civil Service Employees Assoc., Inc. v. Town of Harrison, 48 N.Y.2d 66, 74 (1979); Union Free Sch. Dist. No. 2 of Town of Cheektowaga v. Nyquist, 38 N.Y.2d 137, 143-144 (1975) ("it is beyond the power of the parties to alter or modify the statutory provision"). Under New York law, agreements with state agencies which are in violation of express statutory requirements are invalid; accordingly where officers or agents of a state agency lack the authority to enter into agreements except in compliance with certain statutory requirements, no obligation on the part of such agency can be created absent compliance with such statutory requirements. Seif v. City of Long Beach, 286 N.Y. 382, 387-388 (1941) (holding that the "equitable powers of the courts may not be invoked to sanction disregard of statutory safeguards and restrictions"); Novak v. New York State Office for the Aging, 226 A.D.2d 859, 860 (3d Dep't 1996). Cf., Granada Bldgs., Inc. v. City of Kingston, 58 N.Y.2d 705 (1982) (contract with municipality made in derogation of statutory requirements is invalid); City of Zanesville, Ohio v. Mohawk Data Services Corp., 97 A.D.2d 64, 66 (4th Dep't 1983) (same). The actions of an employer in treating an employee as having a property right in his position cannot create a property interest in continued employment in such position in contravention of the classification of such position by the CSC, even when the actions of the employer misled the employee into believing that he does have a property interest in his continued employment. Dworkin v. New York State Dep't of Envtl. Conservation, 229 A.D.2d 42, 48-49 (3d Dep't 1997).
"Those dealing with officers or agents [of a state agency] must at their peril see to it that such officers or agents are acting within their authority and they have no right to presume that the persons with whom they are dealing are acting within the line of their authority. Although application of this rule results in occasional hardship, it has been held that the loss should be ascribed to the negligence of the person, who failed to ascertain the authority vested in the [officers or agents] with whom he dealt and statutes designed to protect the public should not be annulled for his benefit. Common sense dictates this course of action since statutory requirements could otherwise be nullified at the will of public officials ***." City of Zanesville, at 66-67.
Internal citations and quotation marks omitted.
Pursuant to the Constitution of the State of New York, "[a]ppointments and promotions in the civil service of the state *** shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive ***." N.Y. Const. art V. § 6.
"By placing this provision in the Constitution the People of the State have declared in unmistakable terms that merit, ascertained as therein provided, shall govern appointments and promotions in the public service, and have thus formulated and announced the public policy of the State. No administrative officer may violate the provisions of the Constitution, and no court may sanction a violation. Administrative officers may at times through inadvertence disregard a mandate of a statute or even of the Constitution. When redress is sought in the courts for an alleged wrongful discharge or removal of an employee of the State or one of its civil divisions, the court, too, may fail to note that the employment was illegal from its inception, unless the legality of the employment is challenged by the defendant. An employment which in its inception violates the provisions of the Constitution is illegal and against public policy, regardless of the good faith of the parties. It is the duty of the appropriate administrative officers of the State or its civil divisions to discontinue an illegal employment when they note its illegality, and if rights based upon such employment are asserted in the courts, the legality of the appointment should not go unchallenged by public officers; but regardless of whether the legality is challenged or not, a court must refuse to sanction such an employment which violates the mandate of the Constitution whenever the illegality becomes apparent to it. In such case the defense cannot be waived by the defendant. The defense is allowed, not for the sake of the defendant, but of the law itself. It will not enforce what it has forbidden and denounced." Palmer v. Board of Educ. of Union Free Sch. Dist., 276 N.Y. 222, 226 (1937). See also, Civil Service Employees, at 74 ("the public policy manifested in the Civil Service Law is very strong").
Under New York law, the CSC is charged with the classification of positions in the civil service. N.Y. Civil Service Law § 6. The CSC can reclassify a civil service position from competitive to non-competitive only if it determines that it is "not practicable to ascertain the merit and fitness of applicants by competitive examination" for such position, and no civil service "position shall be deemed to be in the non-competitive class unless it is specifically named in such class" by the CSC. Id. at § 42(1). The CSC is also authorized to "designate among positions in the non-competitive class in its jurisdiction those positions which are confidential or require the performance of functions influencing policy." Id. at § 42(2-a). The CSC is authorized to act only as a body; individual commissioners have no authority to act unilaterally and the CSC cannot be bound by the unauthorized actions of individual commissioners. Id. at §§ 5-11; Cf. Granada, at 708 (reviewing authority of city council); Seif, at 388 (same). The "reclassification of a position from the competitive to the noncompetitive *** class can only be accomplished in the manner set forth" in the N Y Civil Service Law and any attempt to reclassify a position without following the procedural requirements set forth in the N.Y. Civil Service Law is invalid. Joyce v. Ortiz., 108 A.D.2d 158, 164 (1st Dep't 1985). When an appointment is constitutionally defective, the protections of N.Y. Civil Service Law § 75 are not applicable, because it "is beyond the power and jurisdiction of the Commissioner or any other administrative officer or body to confer upon an applicant eligibility for appointment which is illegal." Spring v. Broadnax, 158 A.D.2d 240, 244 (3d Dep't 1990). Consequently, "a person holding an administrative position by appointment or contract of employment without compliance with the provisions of the [New York State] Constitution, has no legal right which is violated by a discharge." Palmer, at 229 ("There can be no right to make an appointment or contract which would create a legal right of tenure where the Constitution forbids such right.").
Internal citation omitted.
If, after making the requisite finding that it is "not practicable to ascertain the merit and fitness of applicants by competitive examination" for a particular position, the full CSC votes to reclassify that position as non-competitive, such change does not become effective until it is approved by the Governor and filed with the Secretary of State. N.Y. Civil Service Law §§ 6(1), 42(1). Positions in the civil service which are classified by the CSC as either competitive, or as non-competitive and not designated confidential/policy-influencing, are subject to the protections of N.Y. Civil Service Law § 75(1) and employees holding such positions "shall not be removed or otherwise subjected to any disciplinary penalty provided in this section except for incompetency or misconduct shown after a hearing upon stated charges ***." Governmental employees whose positions are subject to the protections of N.Y. Civil Service Law § 75(1) have a property interest in continued employment — O'Neill, at 688; Dwyer, at 829 ___, in contrast, those governmental employees holding positions "that state law permits to be terminated at the whim of another person [do not have] a property right that is protected by the Due Process Clause." Patterson, at 1062.
Prior to 1982 plaintiff had provisional status as Regional Director, HRS III, SG-25 which meant that he could be terminated without cause or a pre-termination hearing. Successfully taking the examination would have made him eligible for appointment to such position with permanent, competitive status under N.Y. Civil Service Law § 75(1)(a) with the result that he could not be terminated "except for incompetency or misconduct shown after a hearing upon stated charges ***." Inasmuch as plaintiff already held the provisional position of Regional Director, HRS III, SG-25, the only benefit he would have received from such an appointment would be the protection of N.Y. Civil Service Law § 75(1)(a); his working title, duties and salary would remain the same. On January 26, 1984 plaintiff successfully completed his probationary period for the permanent, competitive position of HRS I, SG-19 in the Rochester office and became entitled to the protection of N.Y. Civil Service Law § 75(1)(a) and could not be removed from such position "except for incompetency or misconduct shown after a hearing upon stated charges ***." N.Y. Civil Service Law § 75(1). As a result of such appointment, were plaintiff to be removed from his position as Regional Director, HRS III, SG-25, in the Buffalo office, his employment with the DHR would not be terminated but he would simply return to his position as HRS I, SG-19 in the Rochester office.
Two of the Regional Directors who would be displaced from their positions as Regional Directors by appointments from the eligible list from the examination, T. Danish and Albert Rivero, were to revert back to the permanent, competitive positions of HRS II and HRS I respectively, from which they were on leave. Pl.'s Ex 12 (Dec. 6, 1983 Letter from McCall to Burstein). Plaintiff apparently gave up this position in exchange for his non-competitive appointment as Regional Director, SG-25 in the Buffalo office.
On May 30, 1984 plaintiff reached a settlement of his Article 78 suit with McCall and Capel on behalf of the DHR and Burstein, Bennett and Vagianelis on behalf of the CSC pursuant to the following provisions: (1) plaintiff would request the New York State Supreme Court, Erie County to lift the injunction barring the appointment of those on the eligibility list from the 1982 examination, (2) the DHR would then make appointments from those on the eligible list until such was exhausted with no one to be appointed to plaintiff's position as Regional Director of the Buffalo office, (3) the CSC would then proceed to process the DHR's request to reclassify the Regional Director positions from competitive back to non-competitive and change their formal civil service title to Regional Director, (4) plaintiff would then be permanently appointed Regional Director of the Buffalo office and (5) plaintiff would voluntarily dismiss his Article 78 suit. In accordance with the first and second provisions of the settlement agreement, plaintiff's injunction was lifted at his request and the DHR exhausted the eligible list from the examination without filling plaintiff's position as Regional Director of the Buffalo office. The third provision of the settlement agreement was for the CSC to process the DHR's request to reclassify the Regional Director positions from competitive to non-competitive and change their formal civil service title from HRS III to Regional Director.
Plaintiff desired to obtain — and was led to believe by those present at the May 30, 1984 meeting that he would receive — a permanent, competitive appointment as Regional Director, SG-25 of the Buffalo office subject to the protections of N.Y. Civil Service Law § 75(1)(c); he was unaware that the DHR had requested the CSC to designate such position as confidential/policy-influencing and no one present at the meeting disclosed such to him. However, when the CSC processed the DHR's request to reclassify the position of Regional Director from competitive back to non-competitive and to change its formal civil service title to Regional Director in accordance with the third provision of the settlement agreement, it also designated the position as confidential/policy-influencing pursuant to N.Y. Civil Service Law § 42(2-a) pursuant to the request of the DHR. Accordingly, when the DHR subsequently appointed plaintiff to the permanent, non-competitive position of Regional Director, SG-25 of the Buffalo office May 30, 1986 in accordance with the fourth provision of the settlement agreement, unbeknownst to plaintiff such position was not subject to the protections of N.Y. Civil Service Law § 75(1)(c) as a result of the action of the CSC in designating such position as confidential/policy-influencing. Plaintiff thereafter discontinued his Article 78 suit in accordance with the fifth and final provision of the settlement agreement.
Although plaintiff now argues that he received a permanent, non-competitive appointment as Regional Director, SG-25 of the Buffalo office subject to the protections of N.Y. Civil Service Law § 75(1)(c) and accordingly had a property interest in his position as a result of the May 30, 1984 "settlement agreement and/or understanding, whether express or implied" — Compl. ¶ 54, the May 30, 1984 settlement agreement clearly recognized that the representatives of the CSC present at that meeting — i.e., Burstein, Bennett and Vagianelis did not have the authority to confer upon plaintiff a permanent, non-competitive appointment as Regional Director with the protections of N Y Civil Service Law § 75(1)(c), as reflected by the third provision of the settlement agreement whereby it was recognized that the CSC would first have to approve the DHR's request to reclassify the position of Regional Director from competitive back to non-competitive before plaintiff could be given such an appointment. Accordingly, plaintiff's argument that he obtained a property interest in his position as a result of the settlement agreement is without merit. Even if the representatives of the CSC and/or the DHR present at the May 30, 1984 meeting had unequivocally promised plaintiff a permanent, non-competitive appointment subject to the protections of N.Y. Civil Service Law § 75(1)(c) instead of simply leaving such determination to future action by the CSC, plaintiff would not have obtained a property interest in his position because such representatives were without authority to confer a property interest upon him. Accordingly, the permanent, non-competitive position of Regional Director to which plaintiff was appointed as a result of the May 30, 1984 settlement agreement was never subject to the protections of N.Y. Civil Service Law § 75(1)(c) because it had been designated confidential/policy-influencing by the CSC pursuant to N.Y. Civil Service Law § 42(2-a) and therefore plaintiff never had a property interest in continued employment in such position. Furthermore, the actions of the DHR in treating plaintiff as having a permanent, non-competitive position subject to the protections of N.Y. Civil Service Law § 75(1)(c) — e.g. by subjecting him to the one-year period of probation pursuant to N.Y. Civil Service Law § 75(1)(c) as modified by the agreement with the PEF, by not objecting to his March 15, 1989 Application Requesting an Exemption from Filing a Financial Disclosure Statement and by affording him notice and a hearing when it sought to terminate him for misconduct March 3, 1993 — cannot alter the fact that plaintiff was not in fact entitled to such protection.
Inasmuch as plaintiff did not have a property interest in his continued employment as Regional Director of the DHR's Buffalo office, he had no Fourteenth Amendment right to procedural due process before being removed from such position and accordingly Mercado did not violate section 1983 when he terminated plaintiff without a pre-termination hearing due to the change in administration occasioned by the election of Governor Pataki. Assuming arguendo that plaintiff had obtained a property interest in his continued employment as Regional Director of the Buffalo office, defendant would however be entitled to qualified immunity.
"The doctrine of qualified immunity shields state officials from liability for damages if their actions did not violate clearly established statutory or constitutional rights of which a reasonable person would have known, or even where the rights were clearly established, if it was objectively reasonable for defendants to believe that their acts did not violate those rights. An official does not have such immunity where the contours of the right were sufficiently clear that a reasonable official would understand that what he is doing violates that right." Patterson, at 1063-1064. See also, Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Stein, at 17.
Internal citations and quotation marks omitted.
Although it is well-settled that a governmental employee with a property interest in continued employment may only be terminated for cause and must be afforded a pre-termination hearing — Loudermill, at 542 ___, it is not well-settled that plaintiff could obtain a property interest in continued employment under New York law in the manner in which he claims to have done so and, accordingly, defendant would be entitled to qualified immunity because it was objectively reasonable for him to believe that plaintiff did not have a property interest in continued employment. Patterson, at 1064.
Accordingly, it is hereby ORDERED that the Complaint is dismissed, that judgment shall be entered in favor of defendant and that this case shall be closed in this Court.