New York Public Personnel Law: Refusal to administer civil service test to an applicant during pending litigation violated the individual’s First Amendment rights

October 25, 2011

Refusal to administer civil service test to an applicant during pending litigation violated the individual’s First Amendment rights

Refusal to administer civil service test to an applicant during pending litigation violated the individual’s First Amendment rights

Lathrop v Onondaga County, USDC NDNY, 220 F. Supp. 2d 129

Charlene Lathrop enrolled in the Central New York Police Academy in 1997. She completed all of the course requirements except the "defensive tactics" portion of the program successfully. After she failed a "retest" for defensive tactics, the Academy told her she could be again retested within a year of her provisional appointment as a police officer with the Village of Marcellus.

Lathrop, however, had filed a human rights complaint against the Academy alleging discrimination because of her gender. Following its receipt of the complaint, the Academy's offer to again retest Lathrop was withdrawn by its director. Although Lathrop subsequently passed the defensive tactics portion of her training requirement, the State Division of Criminal Justice Services refused to certify her as a police officer because she had not passed the test within one year of her appointment to her police officer position.

Chief JudgeScullin ordered the Division to certify Lathrop as qualified for appointment as a police officer. Judge Scullin held that Lathrop's First Amendment rights were violated as a result of being denied any retest opportunities during the relevant year qualifying period in retaliation for her having filed a civil rights complaint against the Academy. In effect, said the court, the State refused to certify a police officer candidate who had not completed her testing within the required time period because it barred her from taking the test while her gender discrimination claim was pending.

Significantly, the decision notes that the Academy director had told Lathrop that she would not be tested because of the pending litigation she had initiated. This, in itself, said Judge Scullin, constituted a violation of Lathrop's First Amendment rights.

Further, the court noted that any delay in Lathrop's becoming fully qualified for employment as a police officer resulted from actions taken by the Academy rather than because of failure on her part to satisfy its requirements.

The relief directed by Judge Scullin: DCJS was ordered to issue a "certificate of completion" to Lathrop certifying that she had completed the basic course required for appointment as a police officer and thus met this requirement for such employment.

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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.