September 29, 2010

Lawsuit challenging reassignment to another position rule moot because employee retired before trial

Lawsuit challenging reassignment to another position rule moot because employee retired before trial
Cannon v Watervliet, App. Div., Third Dept., 263 AD2d 920, Motion for leave to appeal denied, 94 NY2d 756

The City of Watervliet reassigned John Cannon from the position of investigator to the uniform patrol division. He was continued in his rank of sergeant. Typically the appointing authority has the right to reassign an employee to another position for which he or she is qualified without the individual’s consent.

Cannon sued, seeking to be reinstated as an investigator. Because Cannon had retired before his petition went to trial, Supreme Court dismissed his petition as moot. The Appellate Division affirmed the lower court’s determination. It pointed out that a case that is moot may not be considered by the court unless it falls within the exception to the mootness doctrine:

1. A likelihood of repetition, either between the parties or among other members of the public;

2. A phenomenon typically evading review; and

3. A showing of significant or important questions not previously passed on, i.e., substantial and novel issues.”

The Appellate Division pointed out that Cannon’s retirement clearly rendered his petition moot inasmuch as the primary relief he requested, reinstatement to his former position of investigator, was no longer attainable. Significantly, the court noted that since Cannon retained the rank of sergeant, there is no indication that his salary or benefits were adversely affected.

Additionally, the Appellate Division rejected Cannon’s claim that he was forced to retire, stating that it found no evidence “that the reassignment forced [Cannon] into retirement, [since] there is no evidence of duress or coercion in this record from which we can conclude that his retirement was involuntary.”
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