Drogan v. Ward

• Decision Date: 17 December 1987
• Docket Number: No. 87 Civ. 4233 (RWS).,87 Civ. 4233 (RWS).
• Citation: 675 F. Supp. 832
• Parties: Thomas DROGAN, Plaintiff, v. Benjamin WARD, Commissioner, New York City Police Department and Judith Levitt, City Personnel Director, New York City Department of Personnel, Defendants.
• Court: U.S. District Court — Southern District of New York

675 F. Supp. 832

Thomas DROGAN, Plaintiff, v. Benjamin WARD, Commissioner, New York City Police Department and Judith Levitt, City Personnel Director, New York City Department of Personnel, Defendants.

No. 87 Civ. 4233 (RWS).

United States District Court, S.D. New York.

December 17, 1987.

Kliegerman & Friess, New York City (Rosemary Carroll, of counsel), for plaintiff.

Peter L. Zimroth, Corp. Counsel of the City of New York, New York City (Patricia O'Malley, Susan Kath, of counsel), for defendants.

OPINION

SWEET, District Judge.

Plaintiff Thomas Drogan ("Drogan") commenced this action under 42 U.S.C. § 1983 alleging that respondents Benjamin Ward, Commissioner of the New York City Police Department, and Judith Levitt, City Personnel Director of the New York City Personnel Department, under color of state law deprived him of his constitutional right to be considered for a promotion without due process. Respondents moved to dismiss the claim under Fed.R.Civ.P. 12(b)(6), and Drogan moved for summary judgment under Fed.R.Civ.P. 56. For the reasons set forth below, both motions are denied.

The Complaint and Undisputed Facts

Drogan has been a uniformed member of the New York City Police Department (the "Department") since January 29, 1973 and a sergeant since August 12, 1982. In April, 1984 Drogan took and passed an examination for promotion to the position of lieutenant which earned him a place on the list of eligible candidates, List # 1613. On September 18, 1985 Drogan was placed on modified assignment because he was the subject of a pending Department investigation into allegations of his misconduct. On November 14, 1985, the Department served Drogan with disciplinary charges and specifications.

After having requested adjournments at each appearance before the Deputy Trial Commissioner, the Department moved on March 19, 1987 to dismiss the charges and specifications against Drogan. It appears that the complainant — a narcotics dealer whom Drogan had arrested several times — had ultimately refused to testify against Drogan. On March 31, 1987 the Department dismissed the charges against Drogan, and on April 3, 1987 Drogan was restored to full duty.

When he was put on modified duty, Drogan had been required to surrender his firearms, shield and identification card and had been assigned to non-enforcement duties. Although he received his full base salary as a sergeant, he earned no overtime pay as he had in previous years. While the charges against him were pending, Drogan was not considered for promotion even though his name remained on the eligible list. List # 1613 expired on March 2, 1987.

Drogan contends that the respondents deprived him of his property interest in being considered for a promotion without due process of law. Specifically, Drogan claims that even though respondents knew that he could not be considered for a promotion while charges were pending against him, they failed to afford him a hearing within a reasonable time as required under state court decisions. A consequence of their deliberate delay, Drogan asserts, was the loss of his right to be considered for a promotion. Thus, in order to determine whether Drogan has stated a cause of action under 42 U.S.C. § 1983, the court must determine (1) whether Drogan had a property right under New York law to be considered for a promotion, and (2) whether the failure of the Department to afford him a hearing on the disciplinary charges against him during the final eighteen months of his eligibility for promotion deprived him of that right without due process.

The Right to Consideration for Promotion as a Property Interest

To state a cause of action under 42 U.S. C. § 1983, Drogan must allege that acting under color of state law the respondents deprived him of rights, privileges, or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). To invoke the procedural protections of the Fourteenth Amendment, Drogan must allege that respondents' actions deprived him of a property or liberty interest without due process. Id. 451 U.S. at 537, 101 S.Ct. at 1914; Board of Regents v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972).

The sufficiency of a claim to a property interest must be decided by reference to state law. Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976); Perry v. Sindermann, 408 U.S. 593, 599-603, 92 S.Ct. 2694, 2698-2700, 33 L.Ed.2d 570 (1972). As the Supreme Court held in Roth, 408 U.S. at 577, 92 S.Ct. at 2709:

Property interests ... are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.

See also Winston v. City of New York, 759 F.2d 242, 247 (2d Cir.1985). In New York, the "public policy of the State, by the terms of its statutes, regulations and common law, defines the scope and contours" of property interests that qualify for constitutional protection under the due process clause. Economico v. Village of Pelham, 50 N.Y.2d 120, 428 N.Y.S.2d 213, 215, 405 N.E.2d 694 (1980).

In support of his claim to a property interest in being considered for promotion, Drogan relies on the New York Court of Appeals' decision in Cassidy v. Municipal Civil Service Comm'n, 37 N.Y.2d 526, 375 N.Y.S.2d 300, 337 N.E.2d 752 (1975). In Cassidy, the Court of Appeals upheld the constitutionality of section 61 of New York's Civil Service Law which authorizes appointment of any one of the three people ranking highest on a list of eligible candidates. In rejecting the due process claim of the plaintiff, who had received the highest grade on an examination, the court stated:

the due process claim raised by petitioner is wholly without merit. The right alleged to have been invoked here is not of sufficient substance to merit the protection of the due process guarantees of the New York and Federal Constitutions. Petitioner does not possess any mandated right to appointment or any other legally protectible interest. He can assert at most the right to consideration for and a "hope" of appointment. (See Board of Regents v. Roth, 408 U.S. 564 92 S.Ct. 2701 ...)

Cassidy, 375 N.Y.S.2d 302-03, 337 N.E.2d 752. The language quoted from the Court's decision in Cassidy is not free from ambiguity. Although the Court did state that an applicant has the right to consideration for an appointment, it did not expressly hold that such a right rose to the level of a property interest. Indeed, the Court's holding that the petitioner "does not possess any mandated right to appointment or any other legally protectible interest" could be construed to support the opposite conclusion. Cassidy, 375 N.Y.S.2d at 303, 337 N.E.2d 752 (emphasis added). Drogan concedes that the holding in Cassidy bars him from asserting a right to a promotion per se, but he contends that the last sentence of the quoted passage is sufficient to meet Roth's requirement that one who asserts a constitutionally protected property interest must "have a legitimate claim of entitlement to it." Roth, 408 U.S. at 577, 92 S.Ct. at 2709.

New York statutory law contains support for the Court of Appeals' statement in Cassidy that there is a right to be considered for promotion. Section 61 of the Civil Service Law (McKinney's 1983) provides that "appointment or promotion from an eligible list to a position in the competitive class shall be made by the selection of one of the three persons certified by the appropriate civil service commission as standing highest on such eligible list...." In Cassidy, the Court of Appeals rejected a challenge to section 61's one-in-three rule on the grounds that it was consistent with the state constitution's requirement that appointments and promotions in the civil service should be made according to merit and fitness to be ascertained, as far as practicable, by competitive examination. Cassidy, 375 N.Y.S. at 302, 337 N.E. 2d 752; see N.Y. Const. art. 5, § 6; Koscherak v. Schmeller, 363 F.Supp. 932 (S.D.N. Y.1973).

The right to consideration has been codified in the rules and regulations governing the appointment and promotion of candidates for the civil service. Section 3.6 of the Rules and Regulations of the Department of Civil Service (McKinney's 1983) provides:

Every candidate who attains a passing mark in an examination as a whole ... shall be eligible for appointment to the position for which he was examined and his name shall be entered on the eligible list in the order of his final rating.... (emphasis added)

Thus, section 3.6 expressly creates a right to be considered for promotion or appointment that is limited only by the requirement that an applicant successfully complete the requisite examination. This section is part of a statutory scheme that establishes procedures for rating examinations, establishing eligible lists, notifying candidates of their rating and position on the list, and appointing and promoting candidates from the list. Although neither the Civil Service Law nor the rules and regulations promulgated thereunder provide, implicitly or otherwise, that any candidate has the right to a promotion or appointment, these regulations do create a "benefit" under New York law that goes beyond a mere "abstract need," or "desire" or "unilateral expectation." See Roth, 408 U.S. at 577, 92 S.Ct. at 2709. Therefore, section 61 of the Civil Service Law and section 3.6 of the Rules invest one who has successfully completed an examination with a "legitimate claim of entitlement to" the right to be considered for a promotion or appointment. See id.

Apart from the statutory framework, there is merit to the contention that the legitimacy of a civil service system that promotes and appoints people...