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April 13, 2011

Temporary appointees not entitled to a pretermination due process hearing


Temporary appointees not entitled to a pretermination due process hearing
Sanni v NYS Office of Mental Health, USDC, EDNY, 2/15/2000


Frequently a public employee holding a temporary appointment will challenge his or her termination from the position claiming that he or she is entitled to a pretermination due process hearing. This was one of the issues considered by Federal District Court Judge Gleeson in the course of his deciding the Sanni case.


Thomas Sanni, then employed in a grade 27 project director position at Kings Park Psychiatric Center, was served with disciplinary charges pursuant to Section 75 of the Civil Service Law. Simultaneously, he was reinstated to his permanent grade 18 position and transferred to Queens Children Psychiatric Center.


Ultimately, arbitrator Howard A. Rubenstein found Sanni guilty of 11 of the 14 charges filed against him. Among the charges for which Sanni was found guilty were the following:


1. Improperly participating in and supporting the decision to employ the minister of [Sanni’s] church to exorcise a patient possessed by spirits;


2. Transporting a patient in his car when he did not hold a valid driver’s license;


3. Claiming overtime for work he did not perform;


4. Having his personal automobile repaired by Kingsboro and billing the facility for personal items he shipped overseas via international Federal Express; and


5. Lying under oath in the course of being interviewed concerning the charges.


The department accepted Rubenstein’s findings and his recommendation that Sanni be terminated. Sanni sued, contending that the Office of Mental Health’s disciplinary action against him (1) violated his civil rights, (2) constituted retaliation for his filing a Title VII complaint against it and (3) it terminated him from the grade 27 position in violation of Section 75.


As to Sanni’s due process claims, Judge Gleeson pointed out that a public employee who has a property interest or right in his or her position is entitled to a pretermination hearing before he or she may be removed from the position. By logical extension, said the court, an employee covered by Section 75 has a property interest in his or her civil service grade since one of the penalties that may be imposed under Section 75 is demotion in grade and title.


The problem with Sanni’s argument, however, was that temporary employees in New York have no property interest in their jobs. Accordingly, Judge Gleeson, citing the Appellate Division’s ruling in Jones v Westchester County, 644 NY2d 640, granted the State’s motion to summarily dismiss this branch of Sanni’s complaint.


Sanni’s civil rights and retaliation claims based on his demotion and transfer to another department facility survived, however.


This suggests that in such situations the State may attempt to have the case dismissed on the grounds that it immune from suit in federal court for alleged violations of Title VII in view of the rulings by the Supreme Court of the United States in Kimel v Board of Regents, 528 U.S. 62 and Alden v Maine, 527 U.S. 706, cases involving employees suing their state employer in federal court for alleged violations of, respectively, the Age Discrimination in Employment Act and the Fair Labor Standards Act.
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