Establing a special eligible list

Establing a special eligible list
NYC v NYS Division of Human Rights, 250 AD2d 273

This case started 25 years ago when Eddie Ricks took and passed Civil Service Examination No. 3090 for the title of sanitation worker in the New York City Department of Sanitation (DOS). Ricks was disqualified because of spina bifida, a condition that, under the medical standards then in place, automatically disqualified an applicant for the position.*

In August 1990, the then-Commissioner of Human Rights signed an order upholding a finding of unlawful discrimination. However, the original eligible list had expired, preventing Ricks from being placed on a special eligible list on the basis of Deas v. Levitt (73 NY2d 525). Nevertheless, the then-Commissioner directed the city to pay Ricks compensatory damages consisting of back pay computed from the date he was disqualified to the date the eligible list expired (offset by his actual earnings during that time) as well as the compensatory damages recommended by an Administrative Law Judge.

The State Division Human Rights subsequently realized that the Commissioner who signed the order had appeared as counsel for SDHR in the matter and that “such dual participation in the proceedings” required de novo review and a new order. The newly appointed successor Commissioner vacated the 1990 order, conducted a de novo review of the hearing record and issued a new order that found that Ricks had been discriminated against on the basis of a disability that did not prevent him from performing the duties of the position sought. The city appealed the new ruling.

The Appellate Division said that there was a significance change in the Civil Service Law since Rick’s initial filing of his complaint with SDHR in 1983 with respect to the Division’s 1990 order. In 1990, under the Deas decision, once an eligible list expired, an applicant could be placed on a special eligible list only if he or she had commenced the proceeding challenging the validity of the list prior to its expiration. In 1994, specifically in response to Deas, the Legislature amended Civil Service Law Section 56 to provided that “[a]n applicant or eligible whose disqualification has been reversed or whose rank order has been adjusted subsequent to the expiration of an eligible list shall be placed on a special eligible list for a length of time ... not to exceed a maximum of one year” (CSL Section 56[3]).

The court said that the amendment recognized that because there were often long delays in adjudicating such claims, whether by administrative or judicial proceeding, “[t]oo often applicants find that, like those in Deas and DiNatale, they have won the battle to be found eligible to compete for a permanent civil service appointment, but have lost the war -- because the eligible list is approaching expiration or has expired.”

The Appellate Division resolved the matter by approving the Commissioner’s order in part, directing the city to:

(1) create a special eligible list for the position of sanitation worker for Ricks;

(2) award Ricks retroactive seniority if he is appointed from the special eligible list; and

(3) pay him $10,000 for mental anguish.

It rejected the Commissioner’s awarding Ricks back pay because Ricks only had “an expectancy” of employment rather than a guarantee of an appointment from an eligible list.

* The medical standards were subsequently revised, and the automatic disqualification for spina bifida was dropped.
NYPPL