Probationary employee failing to file a timely written notice of her decision to exercise her retreat rights adversely affected her right to reinstatement to her prior position

Matter of Civil Serv. Employees Assn., Inc., Local 100, AFSCME, AFL-CIO v City of Mount Vernon

2022 NY Slip Op 04023

Decided on June 22, 2022

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 22, 2022 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
FRANCESCA E. CONNOLLY, J.P.
REINALDO E. RIVERA
ROBERT J. MILLER
PAUL WOOTEN, JJ.

2019-03102
(Index No. 663787/18)

[*1]In the Matter of Civil Service Employees Association, Inc., Local 100, AFSCME, AFL-CIO, et al., appellants,

v

City of Mount Vernon, et al., respondents.

Charny & Wheeler P.C., Rhinebeck, NY (Nathaniel K. Charny of counsel), for appellants.

Bond, Schoeneck & King, PLLC, Garden City, NY (Richard S. Finkel and Terry O'Neil of counsel), for respondents City of Mount Vernon and Municipal Civil Service Commission City of Mount Vernon.

Bank, Sheer, Seymour & Hashmall, White Plains, NY (Jay B. Hashmall of counsel), for respondent Deborah Reynolds.

 

DECISION & ORDER

In a proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compel the respondents to reinstate the petitioner Jillian Rizo-Brewington to her prior position of employment, the petitioners appeal from a judgment of the Supreme Court, Westchester County (Susan Cacace, J.), dated February 19, 2019. The judgment denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed, with one bill of costs.

On or about June 25, 2014, the petitioner Jillian Rizo-Brewington commenced her employment with the City of Mount Vernon in the position of Account Clerk in the Comptroller's Office and, on February 24, 2016, she was permanently appointed to the position of Account Clerk subject to a six-month probationary period. In 2017, Rizo-Brewington was promoted to the position of Senior Account Clerk and, on May 3, 2018, she was terminated from that position for insubordination. On August 31, 2018, Rizo-Brewington and the petitioner Civil Service Employees

Association, Inc., Local 1000, AFSCME, AFL-CIO commenced the instant proceeding pursuant to CPLR article 78 against the respondents, City of Mount Vernon, Municipal Civil Service Commission City of Mount Vernon, and Deborah Reynolds, seeking, inter alia, that Rizo-Brewington be reinstated to employment at her prior position of Account Clerk. The City and Municipal Civil Service Commission City of Mount Vernon interposed an answer and opposed the petition. Reynolds also interposed an answer and opposed the petition. In a judgment dated February 19, 2019, the Supreme Court denied the petition and dismissed the proceeding. The petitioners appeal. We affirm.

The challenge to the respondents' actions is not ripe for judicial review. Administrative determinations may be challenged in a CPLR article 78 proceeding only after the determination is final (see CPLR 7801[1]; Matter of Greenberg v Assessor of Town of Scarsdale, 121 AD3d 986, 989). At the time of the commencement of this proceeding, Rizo-Brewington had not made a request to the respondents to be reinstated to her prior position of Account Clerk and they [*2]had not determined that she should not be reinstated. As no determination had been rendered as of the date of the commencement of this proceeding, the controversy is not ripe for judicial review (see Matter of Arcamone-Makinano v Perlmutter, 196 AD3d 479, 481; Matter of Ranco Sand & Stone Corp. v Vecchio, 124 AD3d 73, 86-87, affd 27 NY3d 92; Matter of Greenberg v Assessor of Town of Scarsdale, 121 AD3d at 989).

Further, since Rizo-Brewington failed to file a written notice requesting to exercise her retreat rights to her prior position under Municipal Civil Service Commission of the City of Mount Vernon Rule XVI(2)(b), she was not entitled to reinstatement to her prior position of Account Clerk. Mount Vernon Municipal Civil Service Commission Rule (hereinafter Rule) XVI (2)(b) provides that a "provisional, temporary or contingent permanent appointee may return to his/her permanent position at any time by providing written notice to the appointing authority requesting to be returned to such permanent position. The appointing authority shall return such appointee to his/her permanent position within fifteen days of receipt of such written notice." Rizo-Brewington was a provisional employee who possessed retreat rights to her prior position of Account Clerk. However, Rizo-Brewington failed to file a written notice requesting to exercise her retreat rights under Rule XVI(2)(b). Accordingly, since she did not comply with her obligations pursuant to Rule XVI(2)(b), the Supreme Court correctly determined that the respondents were not required to reinstate Rizo-Brewington to her prior position.

The parties' remaining contentions either are without merit or need not be reached in light of our determination.

CONNOLLY, J.P., RIVERA, MILLER and WOOTEN, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court

The Civil Service Law §58(1)(a) age requirements for appointment as a provisional or permanent police officer are within the law enforcement exception of the ADEA

 

Kelly v State of New York

2022 NY Slip Op 03952

Decided on June 16, 2022

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered:June 16, 2022

529638

[*1]James F. Kelly, Appellant,

v

State of New York, Respondent.

Calendar Date:April 25, 2022
Before:Garry, P.J., Aarons, Pritzker, Reynolds Fitzgerald and Fisher, JJ.

James F. Kelly, Hyde Park, appellant pro se.

Letitia James, Attorney General, Albany (Alexandria Twinem of counsel), for respondent.

 

Reynolds Fitzgerald, J.

Appeal from an order of the Court of Claims (McCarthy, J.), entered June 3, 2019, which granted defendant's motion to dismiss the claim.

Claimant, born in 1964, is a part-time police officer. In 2016, seeking to become a full-time officer, claimant applied to take the relevant open competitive civil service exam sponsored by Ulster County. In November 2016, claimant was informed that he was ineligible to sit for the examination, as he exceeded the age limitation imposed by Civil Service Law § 58. Claimant administratively appealed, and the decision was upheld on review by the County.

Claimant then commenced this action in the Court of Claims, setting forth a general disparate treatment claim and alleging specific violations of the following: the Fourteenth Amendment of the US Constitution; the federal Age Discrimination in Employment Act of 1967 (29 USC chapter 14 [hereinafter ADEA]); NY Constitution, article I, § 11 and article V, § 7; Human Rights Law §§ 291 and 296; and Civil Service Law § 54. Defendant moved pre-answer to dismiss the claim due to lack of subject matter jurisdiction and failure to state a cause of action, and the court granted dismissal. Claimant appeals.^[FN1]

Claimant contends that, contrary to its conclusion, the Court of Claims had subject matter jurisdiction over his federal constitutional causes of action, under Court of Claims Act § 8 and 42 USC § 1983. We disagree. "[F]ederal constitutional claims may not be asserted in the Court of Claims, given that the statutory basis for such claims, 42 USC § 1983, authorizes claims only against a 'person' and defendant is not a person within the meaning of this statute" (Oppenheimer v State of New York, 152 AD3d 1006, 1008 [2017]; accord Moreland v State of New York, 200 AD3d 1362, 1365 [2021], lv denied 38 NY3d 906 [2022]; see Will v Michigan Dept. of State Police, 491 US 58, 64 [1989]). Thus, the Court of Claims correctly dismissed the claims alleging violations of the US Constitution for lack of subject matter jurisdiction.

Turning to the Court of Claims' dismissal of claimant's ADEA claim, claimant argues that defendant's enforcement of Civil Service Law § 58 violates the federal act. The ADEA protects workers over the age of 40 from discrimination in hiring due to the worker's age. Crucially, however, it contains an exception for law enforcement, which provides that states may lawfully refuse to hire, on the basis of age, "an individual as a . . . law enforcement officer . . . pursuant to a bona fide hiring or retirement plan that is not a subterfuge to evade the purposes of [29 USC chapter 14]" (29 USC § 623 [j] [2]). Pursuant to this exception, defendant "need not prove that age is a [bona fide occupational qualification] for its police officers" (Kopec v City of Elmhurst, 193 F3d 894, 902 [7th Cir 1999]; see Feldman v Nassau County, 434 F3d 177, 182 n 5 [2nd Cir 2006]). Civil Service Law § 58 (1) (a) states that "no person shall be eligible for provisional or [*2]permanent appointment in the competitive class of the civil service as a police officer . . . unless he or she shall satisfy" the requirement that "he or she is not less than [20] years of age as of the date of appointment nor more than [35] years of age as of the date when the applicant takes the written examination."

Claimant does not allege that defendant's age limitation hiring plan is a subterfuge to evade the purposes of the ADEA; rather, claimant contends that the exception does not apply here, where claimant worked as a part-time officer and attempted to transfer into full-time employment. However, courts have regularly interpreted alleged violations of the ADEA under similar circumstances, where a claimant seeks to reclassify from part-time to full-time employment, as failure to hire claims (see e.g. Kopec v City of Elmhurst, 193 F3d at 896, 904; Weiner v City College of City Univ. of New York, 1997 WL 381799, *1, *4, 1997 US Dist LEXIS 9705, *2, *13 [SD NY, July 9, 1997, No. 95 Civ 10892 (JFK)]).^[FN2]The instant claim does not require a different analysis. As claimant's contentions constitute a failure to hire claim, they are unavailing; Civil Service Law § 58 (1) (a) falls squarely within the law enforcement exception of the ADEA (see Feldman v Nassau County, 434 F3d at 184; Petrelli v City of Mount Vernon, 9 F3d 250, 253 [2nd Cir 1993]; Ruderman v Police Dept. of City of New York, 857 F Supp 326, 329 [SD NY 1994]). The Court of Claims therefore properly dismissed claimant's ADEA claim for failure to state a cause of action.

Claimant contends that the age requirement of Civil Service Law § 58 also violates Civil Service Law § 54 and that the Court of Claims erred in dismissing this claim. However, Civil Service Law § 54 contains the caveat that "[n]othing herein contained . . . shall prevent the adoption of reasonable minimum or maximum age requirements for open competitive examinations for positions where it is determined by the department and approved by the commission that such age requirements would be reasonable minimum qualification for such position"; thus, Civil Service Law § 54 does not prohibit the enforcement of § 58 (see Matter of Beloten v Diamond, 276 AD2d 438, 439 [2000]; Timerman v Bence, 176 AD2d 1220, 1221 [1991]). Accordingly, this claim must also be dismissed for failure to state a cause of action.

Claimant's remaining contentions have been considered and are without merit.

Garry, P.J., Aarons, Pritzker and Fisher, JJ., concur.

ORDERED that the order is affirmed, without costs.

Footnotes

Footnote 1: To the extent that claimant appeals the dismissal of his claims pursuant to NY Constitution, article V, § 7 and Human Rights Law § 296, he has not advanced any arguments relevant thereto on appeal; thus, these claims are deemed abandoned (see Prendergast v Swiencicky, 183 AD3d 945, 946 n 1 [2020], lv denied 36 NY3d 944 [2020]; Matter of Micklas v Town of Halfmoon Planning Bd., 170 AD3d 1483, 1485 [2019]).

Footnote 2: Claimant's challenge to an earlier denial of the opportunity to sit for the same exam, brought in federal court, was denied under the same analysis (Kelly v County of Ulster, 2018 WL 5811423, *4, 2018 US Dist LEXIS 189724, *9-*10 [ND NY, Nov. 6, 2018, 1:18-CV-00240 (BKS/DJS)]). His contention that defendant is not an employer, but a labor organization, was also rejected in that case (id.). We too reject that contention.

 

Links to decisions of the United States Supreme Court from December 21, 2021 through and including June 24, 2022

June

R-	Date	Docket	Name	Revised	J.	Pt.
59	6/24/22	20-1312	Becerra v. Empire Health Foundation, For Valley Hospital Medical Center		EK	597/1
58	6/24/22	19-1392	Dobbs v. Jackson Women’s Health Organization		A	597/1
57	6/23/22	21-248	Berger v. North Carolina State Conference of the NAACP		NG	597/1
56	6/23/22	21-439	Nance v. Ward		EK	597/1
55	6/23/22	21-499	Vega v. Tekoh		A	597/1
54	6/23/22	20-843	New York State Rifle & Pistol Assn., Inc. v. Bruen		T	597/1
53	6/21/22	20-1641	Marietta Memorial Hospital Employee Health Benefit Plan v. DaVita Inc.		BK	596/2
52	6/21/22	20-1459	United States v. Taylor		NG	596/2
51	6/21/22	21-404	United States v. Washington		B	596/2
50	6/21/22	21-511	Shoop v. Twyford		R	596/2
49	6/21/22	20-1088	Carson v. Makin		R	596/2
48	6/15/22	20-1775	Arizona v. City and County of San Francisco		PC	596/2
47	6/15/22	21-234	George v. McDonough		AB	596/2
46	6/15/22	20-1114	American Hospital Assn. v. Becerra		BK	596/2
45	6/15/22	20-493	Ysleta del Sur Pueblo v. Texas		NG	596/2
44	6/15/22	20-1034	Golan v. Saada		SS	596/2
43	6/15/22	20-1573	Viking River Cruises, Inc. v. Moriana		A	596/2
42	6/13/22	21-401	ZF Automotive U. S., Inc. v. Luxshare, Ltd.		AB	596/2
41	6/13/22	20-7622	Denezpi v. United States		AB	596/2
40	6/13/22	19-896	Johnson v. Arteaga-Martinez		SS	596/2
39	6/13/22	20-322	Garland v. Gonzalez	6/17/22	A	596/2
38	6/13/22	21-5726	Kemp v. United States		T	596/2
37	6/08/22	21-147	Egbert v. Boule		T	596/1
36	6/06/22	21-441	Siegel v. Fitzgerald		SS	596/1
35	6/06/22	21-309	Southwest Airlines Co. v. Saxon		T	596/1
34	6/06/22	20-1263	Gallardo v. Marstiller	6/17/22	T	596/1

May

R-	Date	Docket	Name	Revised	J.	Pt.
33	5/23/22	21-328	Morgan v. Sundance, Inc.		EK	596/1
32	5/23/22	20-1009	Shinn v. Martinez Ramirez		T	596/1
31	5/16/22	20-979	Patel v. Garland		AB	596/1
30	5/16/22	21-12	Federal Election Comm’n v. Ted Cruz	5/16/22	R	596/1
29	5/02/22	20-1800	Shurtleff v. Boston		B	596/1

April

R-	Date	Docket	Name	Revised	J.	Pt.
28	4/28/22	20-807	LeDure v. Union Pacific Railroad Co.		PC	596/1
27	4/28/22	20-219	Cummings v. Premier Rehab Keller		R	596/1
26	4/21/22	20-1472	Boechler v. Commissioner		AB	596/1
25	4/21/22	20-303	United States v. Vaello Madero	4/28/22	BK	596/1
24	4/21/22	20-826	Brown v. Davenport		NG	596/1
23	4/21/22	20-1566	Cassirer v. Thyssen-Bornemisza Collection Foundation		EK	596/1
22	4/21/22	20-1029	City of Austin v. Reagan National Advertising of Austin, LLC		SS	596/1
21	4/04/22	20-659	Thompson v. Clark		BK	596/1

March

R-	Date	Docket	Name	Revised	J.	Pt.
20	3/31/22	20-1143	Badgerow v. Walters		EK	596/1
19	3/24/22	20-804	Houston Community College System v. Wilson		NG	595/2
18	3/24/22	21-5592	Ramirez v. Collier		R	595/2
17	3/23/22	21A471	Wisconsin Legislature v. Wisconsin Elections Commission		PC	595/2
16	3/07/22	20-5279	Wooden v. United States	3/08/22	EK	595/2
15	3/04/22	20-828	FBI v. Fazaga		A	595/2
14	3/04/22	20-443	United States v. Tsarnaev	3/04/22	T	595/2
13	3/03/22	20-601	Cameron v. EMW Women’s Surgical Center, P. S. C.	3/04/22	A	595/2
12	3/03/22	20-827	United States v. Zubaydah	3/07/22	B	595/2

February

R-	Date	Docket	Name	Revised	J.	Pt.
11	2/24/22	20-915	Unicolors, Inc. v. H&M Hennes & Mauritz, L. P.		B	595/2

January

R-	Date	Docket	Name	Revised	J.	Pt.
10	1/24/22	19-1401	Hughes v. Northwestern Univ.		SS	595/1
9	1/20/22	20-637	Hemphill v. New York	1/21/22	SS	595/1
8	1/13/22	21A244	NFIB v. OSHA		PC	595/1
7	1/13/22	21A240	Biden v. Missouri		PC	595/1
6	1/13/22	20-480	Babcock v. Kijakazi		AB	595/1

December

R-	Date	Docket	Name	Revised	J.	Pt.
5	12/10/21	21-588 (21A85)	United States v. Texas		PC	595/1
4	12/10/21	21-463	Whole Woman’s Health v. Jackson	12/10/21	NG	595/1