A complaint was filed against two tenured employees in the Classified Service employed by the New York City Fire Department [Department] with the New York City's Department Equal Employment Opportunity [EEO], alleging that two individuals employed by the Department had engaged in unlawful retaliatory conduct against another of the Department's employee because that other employee's spouse had filed a charge of unlawful discrimination with the United States Equal Employment Opportunity Commission. Following an investigation, EEO had issued determinations finding that there was sufficient credible evidence that the employees named in the complaint had engaged in unlawful retaliatory conduct and referring the matter to the Department's Bureau of Investigations and Trials. These determinations were placed in the files of the EEO Office.
Local 621, S.E.I.U. [SEIU] commenced this hybrid CPLR Article 78 proceeding seeking [1] review of the Department's determinations and [2] an action to recover damages alleging the Department had denied its two members administrative due process "because they were not afforded hearings prior to [these] determinations being placed in the files". The Department, pursuant to CPLR §3211(a), moved to dismiss the "second amended petition/complaint".
Supreme Court granted the Department's motion, denied the second amended petition/complaint, and dismissed the proceeding/action. SEIU appealed the Supreme Court's ruling.
Citing Matter of Taylor v Justice Ctr. for the Protection of People with Special Needs, 182 AD3d 815 and Matter of Ortiz v Simmons, 67 AD3d 1208, the Appellate Division, noting that one of SEIU's members involved in the instant litigation had retired from the Fire Department, explained "so much of the second amended petition/complaint as was asserted by him is not academic, as the determination that there was sufficient credible evidence that he had engaged in retaliatory conduct still remains, and its existence may affect him, such as in his attempt to secure future employment."
Observing that Civil Service Law §75 typically provides that permanent civil service employees may not be subjected to a disciplinary penalty without a hearing and afforded other due process safeguards, the Appellate Division noted that "Disciplinary penalties include a reprimand."
Here, opined the Appellate Division, by failing to hold a hearing, the Department failed to provide the SEIU's members in this action the procedural protections set out in §75 of the Civil Service Law. The court then ruled that Supreme Court should not have denied the relevant branch of the SEIU's motion and granted that relevant part of SEIU's second amended petition, annulling EEO's the determinations and directed that the relevant EEO determinations "be expunged from the Department's files".
The Appellate Division, however, also ruled that "Supreme Court properly granted those branches of the [Department's] motion which were pursuant to CPLR 3211(a) to dismiss the causes of action to recover damages for unlawful retaliation in violation of NYSHRL and NYCHRL, as the second amended petition/complaint failed to sufficiently allege potentially actionable retaliatory conduct."
Click HERE to access the Appellate Division's decision posted on the Internet.