Bergamini v. Manhattan and Bronx Surface Transit Operating Authority

• Decision Date: 21 June 1983
• Citation: 94 A.D.2d 441,463 N.Y.S.2d 777
• Parties: , 115 L.R.R.M. (BNA) 4094 In the Matter of the Application of Carl BERGAMINI, Petitioner-Respondent, v. The MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY and The New York City Transit Authority, Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 777

463 N.Y.S.2d 777

94 A.D.2d 441, 115 L.R.R.M. (BNA) 4094

In the Matter of the Application of Carl BERGAMINI Petitioner-Respondent, v. The MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY and The New York City Transit Authority Respondents-Appellants.

Supreme Court, Appellate Division First Department.

June 21, 1983.

Carla Lowenheim, Brooklyn, of counsel (Richard K. Bernard, Brooklyn, attorney), for respondents-appellants.

Eugene M. Kaufman, New York City, for petitioner-respondent.

Before KUPFERMAN, J.P., and SANDLER, ASCH, LYNCH and MILONAS, JJ.

SANDLER, Justice.

Petitioner was employed by Manhattan and Bronx Surface Transit Operating Authority (MABSTOA) as a chemist on or about September 3, 1973. On April 1, 1980 petitioner was promoted, on a one-year probationary basis, to the position of senior chemist. In that capacity he was assigned to work on an experiment with a fuel additive. The experiment was prematurely terminated when, alleging insufficient notice, the supplier failed to provide on a timely basis the required quantity of additive.

Thereafter William G. Stead, Chief of Staff of both appellants, wrote to petitioner and to a supervisor, Mr. Novak, informing them that their performance in connection with the test, and particularly that of petitioner, was unacceptable. Petitioner promptly responded in a memorandum, described as an Appeal of Notification of Unacceptable Performance, in which he denied responsibility for the failure, urged that he had repeatedly informed his superiors, Mr. Novak and Mr. Bulone, that additional personnel were required to be deployed for supervision of the test, that these requests were not adequately responded to, and that responsibility for the failure of the test was attributable to the refusal of his superiors to provide the requested personnel.

Several weeks later petitioner received a memorandum from Mr. Bulone, one of those he had specifically criticized, directing his appearance before a Mr. Harrison, a labor relations specialist, designated as hearing officer, on certain charges relating to the test, charges that alleged lack of judgment, incompetence and "failure to comply". The charges were signed both by Mr. Bulone and Mr. Harrison.

After an interview, Mr. Harrison dismissed Mr. Bergamini, with the right to work pending appeal, concluding that he had failed to convey to his superiors the seriousness of the situation which caused the experiment to be aborted, but noting that petitioner had thought that he had done the correct thing in reporting to them. Mr. Bulone concurred with this determination and informed petitioner that his continued employment would be considered probationary, commencing January 26, 1981 and continuing through April 26, 1981, during which period he would be expected to improve his professional performance, including correction of "your personal attitudinal mannerisms and professional interaction with your superiors and co-workers."

Following petitioner's refusal to acknowledge this determination without speaking to his counsel, and after an informal meeting with a Mr. Robinson, Director of Labor Relations, the latter, in a memorandum dated March 3, 1981, determined to rescind the previous dismissal and return petitioner to his prior title of chemist. Two days later, without any disclosed intervening event, Mr. Robinson terminated petitioner's employment.

In his petition, which alleges, in addition to the foregoing, that petitioner became a tenured employee one year after his employment, petitioner claims that his constitutional rights were violated because he was dismissed without a constitutionally adequate hearing, and seeks reinstatement to his employment with MABSTOA and related relief.

Appellants cross-moved to dismiss pursuant to CPLR § 3211(a)(7), alleging that the petitioner failed to state a cause of action, and alternatively requesting an opportunity to answer pursuant to CPLR § 7804(f) if the cross motion was denied. In a supporting affirmation counsel for appellants argued that Public Authorities Law § 1203-a specifically exempted employees of MABSTOA from Civil Service status, that therefore MABSTOA was entitled as of right to dismiss its employees at will and without a hearing, and that in any event, petitioner received a constitutionally adequate hearing.

Special Term denied the cross motion to dismiss, and also denied the alternative application for leave to submit an answer, directing a trial pursuant to CPLR § 7804(h) "on the question, whether his performance was in any manner unsatisfactory and the closely related issues whether he had any role in the depletion of the supply of test material." Special Term expressed the view that there was a significant possibility that dismissal resulted from an effort of his superiors to protect themselves at petitioner's expense. We modify to the extent of reversing the direction for an immediate trial and extending to MABSTOA the requested opportunity to file an answer. We also dismiss the petition with regard to the New York City Transit Authority which appears not to have had an employment relationship with petitioner.

As pertinent to the allegations of the petition, the basic constitutional rules governing the right of a public employee to a pre-termination hearing consistent with due process requirements were set forth by the United States Supreme Court in a group of decisions commencing with Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570. See also Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15; Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684; Codd v. Velger, 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92. In substance, the Supreme Court has held that a public employee may not be dismissed without a pre-termination hearing consistent with due process if the employee has a "property right" in his employment. A property interest was defined as "a legitimate claim of entitlement" to a benefit (Board of Regents v. Roth, supra, 408 U.S. at 579, 92 S.Ct. at 2710), a claim which arises if the conditions of the employment are such that the public employee may not be terminated except for cause. See Bishop v. Wood, supra.

As further developed by the Supreme Court, the existence of a property interest is determined by reference to sources other than the United States Constitution, such as State law, and may arise from statute, regulation or contract, express or implied. It may arise from "rules or mutually explicit understandings that support his claim of entitlement to the benefit ...." See Perry v. Sindermann, supra, 408 U.S. at 601, 92 S.Ct. at 2699.

In determining whether the petition sets forth a legally sufficient claim of property interest or de facto tenure under the law of this state, we note, of course, that, as contended by appellants, Public Authorities Law § 1203-a explicitly exempts employees in petitioner's former position from Civil Service status. Nor does the petition allege any other applicable statute limiting MABSTOA's right to terminate his employment at will, nor any rule or regulation so providing. Neither does the petition allege that petitioner was employed under a contract that set forth a fixed term of employment or any limitation on the right to dismiss. It is, of course, a well-established rule in this state that such contracts of employment are deemed terminable at will by either party. Murphy v. American Home Products Corp., 58 N.Y.2d 293, 461 N.Y.S.2d 232, 448 N.E.2d 86; Watson v. Gugino, 204 N.Y. 535, 98 N.E. 18; Parker v. Borock, 5 N.Y.2d 156, 182 N.Y.S.2d 577, 156 N.E.2d 297; Haines v. City of New York, 41 N.Y.2d 769, 396 N.Y.S.2d 155, 364 N.E.2d 820; see also Quinn v Syracuse Model Neighborhood Corp., 613 F.2d 438 (2nd Cir.1980).

The presence of these factors have consistently resulted in this state in judicial rejection of claims by public employees that their constitutional rights were violated by dismissal without a pre-termination hearing. Matter of Stanziale v. Executive Dept. of Office of General Services, 55 N.Y.2d 735, 447 N.Y.S.2d 150, 431 N.E.2d 635; Matter of Holbrook v. State Insurance Fund, 54 N.Y.2d 892, 444 N.Y.S.2d 913, 429 N.E.2d 420; DeLucia v. Lefkowitz, 62 A.D.2d 674, 406 N.Y.S.2d 150; affd. sub nom Matter of Hopkins v. Lefkowitz, 48 N.Y.2d 901, 424 N.Y.S.2d 897, 400 N.E.2d 1349; Matter of Carter v. Murphy, 80 A.D.2d 960, 437 N.Y.S.2d 344; Rivera v. Beekman, 86 A.D.2d 1, 448 N.Y.S.2d 492.

Notwithstanding this uninterrupted line of authority, we think it appropriate to observe that the petition appears to state a stronger claim to a constitutionally protected property interest in a public employment than any that have been previously addressed in the appellate decisions in this state.

Petitioner had been employed for some eight years before his dismissal. Cf. Perry v. Sindermann, supra, 408 U.S. at 602, 92 S.Ct. at 2700. More important, however, is the circumstance that petitioner had been appointed a senior chemist on a one-year probationary basis. From this designation there is at least a possible implication that his previous status involved a legitimate expectation that he would not be terminated without cause. This possibility would appear to be buttressed to some extent by the circumstance that a preliminary determination had been made to return petitioner to his prior status as chemist. Indeed, it is a possible inference from the events leading up to his dismissal that appellants understood that petitioner could not be terminated except for cause.

In short, the situation is comparable to the "de facto tenure" in Perry v. Sindermann, supra, which the Supreme Court found to state a legally sufficient claim to a constitutionally protected property interest. However, as the Supreme Court made clear in the several authorities referred to earlier, the existence of such a...