Commissioner of New York State Dept. of Civil Service v. State Human Rights Appeal Bd.

• Decision Date: 28 September 1978
• Citation: 408 N.Y.S.2d 975,64 A.D.2d 999
• Parties: In the Matter of the COMMISSIONER OF NEW YORK STATE DEPARTMENT OF CIVIL SERVICE et al., Petitioners, v. STATE HUMAN RIGHTS APPEAL BOARD et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 975

408 N.Y.S.2d 975

64 A.D.2d 999

In the Matter of the COMMISSIONER OF NEW YORK STATE

DEPARTMENT OF CIVIL SERVICE et al., Petitioners, v. STATE HUMAN RIGHTS APPEAL BOARD et al., Respondents.

Supreme Court, Appellate Division, Third Department.

Sept. 28, 1978.

John E. Robitzek, Harvey Randall, Albany, for petitioners.

Grace Marie Ange, Buffalo, for respondent Mary K. Davey.

Before MAHONEY, P. J., and KANE, STALEY, MAIN and HERLIHY, JJ.

MEMORANDUM DECISION.

Proceeding pursuant to section 298 of the Executive Law to review a determination of the State Human Rights Appeal Board, dated February 15, 1978, which reversed a determination of the State Division of Human Rights, dated October 18, 1974, dismissing the complaint of Mary K. Davey on the ground that there was no probable cause to believe that an unlawful discriminatory practice had been engaged in by the State Department of Social Services.

On March 12, 1974, complainant, Mary K. Davey, a hearing officer employed by the New York State Department of Social Services, filed a complaint with the Division of Human Rights charging the Department of Civil Service and the Department of Social Services of the State of New York with discriminatory practices in her employment on the basis of sex. An amended complaint alleging further acts of discrimination was filed on March 25, 1974.

After three adjournments requested by the petitioners, the Division of Human Rights conducted an investigatory confrontation conference on June 7, 1974 at which the complainant appeared with counsel.

On October 2, 1974, complainant commenced an article 78 proceeding against the petitioners. Said proceeding sought an order to cease and desist all alleged discriminatory employment actions against complainant by the petitioners. The proceeding also sought mandamus relief to require that a public hearing be conducted by the State Division of Human Rights on the issue of discrimination or, in the alternative, to permit the complainant to seek such relief in court.

On October 18, 1974, the State Division of Human Rights made a final determination dismissing the complaint of the complainant, as amended, by finding that there was no probable cause to support the allegations in said complaint.

On October 24, 1974, complainant filed an appeal with the respondent, State Human Rights Appeal Board. Also, on October 24, 1974, complainant filed a memorandum pursuant to the article 78 proceeding commenced on October 2, 1974 in Supreme Court, County of Erie, challenging the investigation conducted by the Division of Human Rights and requesting a hearing before the Division.

On November 12, 1974, the article 78 proceeding commenced by complainant was dismissed as being moot with the appropriate remedy being an appeal to the respondent, State Human Rights Appeal Board. Complainant appealed this decision to the Appellate Division, Fourth Department.

The order of the Supreme Court of November 12, 1974 was amended by Justice Roger T. Cook on February 25, 1975 granting the adjudication of specific claims involving the Civil Service Law, and ordering a new hearing of the proceeding. Such claims concerned the legality of the appointment of the provisional Supervising Hearing Officer for the Buffalo region. Complainant claimed that she, and not the male holding the post, should have been appointed to that position.

On February 24, 1975, complainant had filed an application with the respondent, Human Rights Appeal Board, to reopen the proceeding before that body. The application was denied by the Division on May 7, 1975.

The appeal to the Human Rights Appeal Board, which had been filed on October 24, 1974, was not heard by the board until January 22, 1976. A decision by the board was rendered on May 12, 1976 dismissing the appeal on the ground that it had been divested of its statutory jurisdiction because complainant's act of filing a proceeding in Supreme Court on the same day an appeal to the board was filed resulted in an election of forums. The board held that such election, pursuant to article 15 of the Executive Law, placed the exclusive jurisdiction to consider the merits of complainant's claim with the Supreme Court.

On June 11, 1976, complainant filed a notice of motion and a petition to the Appellate Division, Fourth Department, to review the order of the respondent, Human Rights Appeal Board, which had dismissed her complaint. On April 7, 1977, the Appellate Division, Fourth Department, ruled that the board had not been divested of its jurisdiction since complainant had filed her complaint with the Division of Human Rights before she initiated the article 78 proceeding, and remanded the matter to the board for a determination on the merits (State Div. of Human Rights v. Commissioner of N. Y. State Dept. of Civ. Serv., 57 A.D.2d 699, 395 N.Y.S.2d 774).

On June 22, 1977, a hearing was conducted before the respondent, Human Rights Appeal Board, at which the complainant and the petitioners were represented by counsel.

On January 20, 1978, the Appellate Division, Fourth Department, unanimously affirmed the dismissal of the petition of complainant which had been brought in Supreme Court on April 11, 1975 wherein she claimed that she was illegally denied a position with the Department of Social Services because of alleged violation of the Civil Service Law, and that a male had been holding the position in violation of the Civil Service Law. Complainant sought a declaration that she was eligible for the position and entitled to it. The Appellate Division, Fourth Department, found that the proceeding, pursuant to article 78 was time-barred. The court further stated as follows:

Even if petitioner were not precluded from bringing this action, her position is lacking in merit. The record amply supports the determination at Special Term that, at the time of Gambacorta's provisional appointment, there was no list of certified eligibles following a competitive examination and no field of eligible candidates from which a promotion could be made. A provisional appointment without a competitive examination was within the authority of the commissioner. (Civil Service Law, § 65.) Nor is there merit to petitioner's position that her provisional appointment ripened into a permanent appointment. (See Mierzwa v. Genesee County Civ. Serv. Comm., 55 A.D.2d 815, 390 N.Y.S.2d 287). Subdivision 4 of section 65 of the Civil Service Law permits a provisional appointment to ripen into a permanent appointment only in cases where the provisional appointee was reachable on an eligible list but not appointed to a permanent position, such as in a case where the list is inadequate. (Matter of Smith v. Hoyt, 59 A.D.2d 1058, 399 N.Y.S.2d 818; Matter of Vazquez v. New York City Dept. of Social Servs., 56 A.D.2d 432, 393 N.Y.S.2d 23; Sanders v. Kramarsky, 85 Misc.2d 954, 384 N.Y.S.2d 444.)

(Davey v. Dept. of Civ. Serv., 60 A.D.2d 998, 401 N.Y.S.2d 660.)

On February 15, 1978, the Human Rights Appeal Board issued a decision and order reversing the finding of no probable cause made by the Division of Human Rights on October 18, 1974. The February 15, 1978 order was served on the petitioners on February 22, 1978. A timely motion to reopen was made by the petitioner, Department of Civil Service, and the petitioners, Department of Social Services and Assistant Commissioner Carmen Shang, similarly served a notice to reopen on the respondent, Human Rights Appeal Board, on March 10, 1978.

Petitioners' first contention is that the Human Rights Appeal Board was in error in finding that the decision of the Division of Human...