Opinion
13429-2008.
Decided May 15, 2009.
Nancy E. Hoffman, Esq., Attorney for Petitioners Michael J. Cravatta and Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, (Leslie C. Perrin, Esq., of Counsel), Hon. Andrew M. Cuomo, Attorney General of New York State, Attorney for Respondents, (Kim Murphy Esq., Assistant Attorney General, of counsel).
Petitioner Cravatta is a union member of the Petitioner Civil Service Employees Association, Inc., Local 100, AFSCME, AFL-CIO (hereinafter CSEA). Respondent New York State Department of Transportation (hereinafter DOT), was Cravatta's employer. Petitioners commenced this CPLR Article 78 proceeding seeking a judgment directing Respondent DOT to restore Petitioner Cravatta to the title of Highway Maintenance Worker 2 (hereinafter HMW 2), and asking the court to find Respondents' termination of Petitioner Cravatta was arbitrary and capricious, contrary to law, violated due process, consisted of disparate treatment, and was without regard to the applicable facts. At issue is whether this action is controlled by an agreement between the Civil Service Employees Association, Inc. and the State of New York with effective dates of 2003 through 2007. The agreement sets forth in detail at Article 33 the procedures for discipline of an employee. Article 33.1 of the contract expressly states the section on disciplinary procedures was negotiated, "in lieu of the procedure specified in sections 75 and 76 of the Civil Service Law and shall apply to all persons currently subject to (those laws)." Respondents argue the contract does not control the termination procedure as Mr. Cravatta was not disciplined/fired for incompetency or misconduct. If this contract does not control under the facts of this case, Petitioners allege the procedure used to terminate Mr. Cravatta did not meet with procedural due process. Petitioner Cravatta was a DOT employee since January 13, 1994. During the relevant time period he was classified as an HMW 2. On May 13, 2007 Petitioner Cravatta was arrested and charged with misdemeanor offenses of DWI, aggravated DWI, and traffic infractions. On June 11, 2007 his CDL was suspended. A conviction on the charges did not occur until September 22, 2008.
Petitioner Cravatta worked from his arrest date until September 7, 2007 when he was injured at work. He was absent due to an occupational injury from September 2007 until July 2008. As early as September 14, 2007 Petitioner Cravatta was notified that he was required to provide proof he possessed a valid CDL and if he was unable to do so, he would be terminated. However, no further action was taken while Cravatta was out on Worker's Compensation leave. Once Cravatta returned to work on July 21, 2008 he was placed on administrative leave with pay and was directed to appear on August 4, 2008 to provide documentation that he possessed a valid Class B or higher Commercial Driver's License. Petitioner Cravatta appeared at the hearing but did not have the requested documentation. He was terminated from employment as of August 16, 2008.
Part of the petitioner's claim for lack of due process is that he was terminated before a conviction on the criminal charges which did not take place until September 22, 2008. (Exhibit O to Petitioner's papers).
The Termination Procedure
Petitioner Cravatta was terminated from employment using a procedure referred to by the parties as a "Felix" procedure pursuant to the case of Felix v. New York City Dep't of Citywide Administrative Services, 3 NY3d 498 (2004). In Felix a pre-removal hearing pursuant to CSL § 75 was not required prior to termination because the employee violated the city's mandatory residency requirement. The employee was given an opportunity to present proof of residency, but not given the opportunity of a hearing as outlined in CSL § 75. The Court of Appeals held the "notice of and opportunity to contest the charge" procedure used by the City of New York met with due process. Mr. Felix was ineligible for continued municipal employment pursuant to an Administrative Code section as distinguished from an act of misconduct which would require a pre-removal hearing.
Due Process
Due process does not always require a hearing for loss of a job or license. Summary terminations without a hearing have been upheld under different circumstances. (See, eg. Mandelkern v City of Buffalo, 64 AD2d 279 [4th Dept 1978]; D'Ambrosio v Dep't of Health , 4 NY3d 133 ; Lemieux v City of Niagara Falls, 138 AD2d 945 [4th dept. 1988]; Feola v Carroll , 10 NY3d 569 ). However, each of the cases invokes a statute that had been violated (residency requirement as in Mandelkern) or a statute which mandates the loss of license as in D'Ambrosio [Education Law § 6509 (5) (d)] or a mandatory loss of job upon conviction of a crime pursuant to Public Officers Law § 30 [e] as in the Lemieux and Feola cases. This particular summary dismissal was done prior to Petitioner's conviction.
Although Mr. Cravatta was not in possession of a CDL at the time of the summary proceeding, there is nothing in the record to show it was the result of a statutory violation such as a refusal to submit to a chemical test. Where there is no prima facie evidence of a statutory violation a hearing was required so the extent and nature of his misconduct could be resolved before he was disciplined (see, Civil Service Law § 75). Under the facts of this case where the termination was sought prior to the resolution of the criminal charges a summary proceeding is not enough to comport with due process as there is no procedure in place to apply for reinstatement following the conclusion of the criminal matter; even were it to end favorably for the petitioner. (Compare: Civ. Serv. L. §§ 71, 72 and 73).
Petitioner was deprived of due process of law when he was terminated without a hearing and prior to his conviction on the criminal charges. (See, Matter of Economico v Village of Pelham, 50 NY2d 120 (1980); Matter of Duffy v Ward, 81 NY2d 127 (1993)). Although Economico dealt with a Civil Service Law § 73 termination the due process analysis used by the Court of Appeals is also applicable here. As the Court noted in Economico, "in some instances a hearing may be required to satisfy the demands of due process. As the statute conditions the continued existence of a property interest on the absence of certain specified objective criteria, where the facts underlying operation of the statute are in dispute the affected employee must be afforded an opportunity to be heard before that interest is finally extinguished ( Mathews v Eldridge, 424 U.S. 319, 334). For example, if the employee maintains that his disability arose in the course of his employment or there is a dispute concerning the length of time the employee has been disabled, the opportunity to be heard must be afforded."
In this case, where the criminal charges have not been finally adjudicated, the "facts underlying operation of the statute" are still in dispute and Petitioner should have the opportunity to be heard on his defenses to the charges.
The alternatives for Mr. Cravatta were not limited to either summary dismissal or continued employment with the DOT. Dismissal could still occur after a hearing. The practical effect of granting petitioner a hearing will be to ensure that he is afforded an opportunity to present his version of the incident before a determination is made on whether dismissal is warranted (See, Civil Service Law § 75).
At the time of his dismissal there was no conviction which could otherwise be presented as prima facie proof to establish a violation of a statute. Due process, in the absence of a conviction or proven statutory violation such as a residency requirement, requires a hearing so any factors which the Petitioner may have raised to controvert his guilt on the charges could be presented in his defense. (See, Civil Service Law § 75). Since "a criminal defendant has no right to stay a disciplinary proceeding pending the outcome of a related criminal trial" ( Matter of Watson v City of Jamestown , 27 AD3d 1183 (4th Dept. 2006) citing, Matter of Geary, 80 Misc 2d 963, 965, (Sup.Ct. Westchester Co. 1975)), the Civil Service Law § 75 hearing or, as in this case, the hearing required by the contract at Article 33, could be held prior to the conviction so that an inordinate delay in a criminal case will not affect the safety of the public work force.
Unlike the cases of Carr vs. New York State DOT, Supreme Court, Albany County, Index No. 5313-08 and Stolzman v. New York State DOT, Supreme Court, Albany County, Index No. 8919-07, cited by the Respondents, Mr. Cravatta was terminated prior to a criminal conviction and without an opportunity to explain at a hearing.
In consideration of all of the above, the court finds the record before it and the case law of this state establish the Petitioner was improperly terminated on August 16, 2008. However, the record also clearly establishes the Petitioner was convicted of the charge of driving while intoxicated on September 22, 2008 and that, as a result, his New York State driver's license was revoked. As such, once the conviction was entered due process no longer required the hearing procedures set forth in CSL § 75 or under Article 33 of the contract as the classification standard for HMW 2 (provided as an exhibit with the petition) states a worker " must hold a New York State Class B CDL with the Department of Transportation specified endorsements or a comparable higher level license and One-person Plow certification." (Emphasis added). This mandatory job requirement was not met as established by the prima facie evidence of the conviction with notice of license suspension.
Therefore, it is hereby
ADJUDGED, the petition is granted in part and the Petitioner is reinstated to the position of Highway Maintenance Worker 2 for the period of August 16, 2008 until September 22, 2008, as if he had no break in service; and it is further
ADJUDGED, the petition is denied in all other respects in accordance with this decision.
This is the decision and judgment of this court. Submission of a judgment by the parties is not necessary. The mailing of a copy of this decision and judgment by this Court to counsel shall not constitute notice of entry.
Papers Considered:
1.Notice of Verified Petition, dated December11, 2008
2.Verified Petition, dated December 11, 2008 with Exhibits A-O annexed;
3.Affidavit of Michael J. Cravatta, dated December 9, 2008;
4.Affidavit of Mary J. Rubilotta, dated Decemer 10, 2008;
5.Brief on Behalf of Petitioners dated March 6, 2009;
6.Lisa M. McNeil affidavit, dated March 6, 2009;
7.Answer dated March 24, 2009
8.Affidavit of David Harris, dated March 20, 2009 with Exhibits 1-9 annexed;
9.Brief on behalf of Respondents, dated March 24, 2009 with Appendix 1 and 2;
10. Affidavit of Kim S. Murphy, dated March 31, 2009
11. Reply Affidavit of Mary J. Rubilotta, dated March 30, 2009;
12. Reply Memorandum of Law of Petitioners dated March 30, 2009;