Furst v. New York City Transit Authority
| Decision Date | 01 April 1986 |
| Docket Number | No. 84 Civ. 4189.,84 Civ. 4189. |
| Citation | 631 F. Supp. 1331 |
| Parties | Barry FURST, Plaintiff, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Stephen D. Hans, Rego Park, N.Y., and Ronald L. Skoler, New York City, for plaintiff.
Robert A. Rifkin, Office of Richard K. Bernard, Brooklyn, N.Y., for defendant.
Shortly after he pled guilty to second degree attempted manslaughter in Nassau County Court, plaintiff Barry Furst was dismissed by his employer, defendant New York City Transit Authority (NYCTA). Following his dismissal, the plaintiff instituted this action for reinstatement under 42 U.S.C. § 1983 and now moves for summary judgment against the NYCTA contending that he lost his job pursuant to the defendant's unconstitutional policy of dismissing all employees convicted of committing felonies. The defendant cross-moves for summary judgment asserting that no such policy exists. For the reasons stated herein, the plaintiff's motion is granted and the defendant's motion is denied.
The plaintiff was hired as a bus driver by the defendant on or about February 15, 1965. The plaintiff held that position for over fifteen years until his promotion to the position of surface line dispatcher on December 20, 1980. During his tenure with the defendant, the plaintiff received three letters of commendation and was never the subject of internal disciplinary proceedings.
On August 27, 1981, the plaintiff's son Roger handed the plaintiff a licensed gun and during the exchange, the gun discharged, killing Roger. On that date, the plaintiff was arrested and charged with manslaughter in the second degree for the death of Roger.1
The defendant suspended the plaintiff without pay on September 4, 1981, charging that the plaintiff had committed a crime in violation of Rules 11(f) and 35 of the Rules and Regulations Governing Employees Engaged in the Operation of the New York City Transit System (NYCTA Rules).
Rule 11(f) provides:
Employees must not violate any criminal law, commit any illegal act, or be a party to any immoral or indecent conduct, whether on or off duty.
Rule 35 provides:
Disobedience of these rules and regulations or of instructions ... shall be reason for charges of misconduct and incompetence and such misconduct or incompetence will be subject to penalty of dismissal, demotion, suspension or other such penalty as the Authority shall impose.
On October 15, 1981, Richard Bernard, General Counsel to the defendant, ordered the plaintiff, by letter, to appear at a hearing to answer the charges contained in the suspension order of September 4, 1981. Bernard wrote that if the charges were sustained, the plaintiff would be dismissed, demoted or otherwise disciplined.
After pleading guilty to the lesser crime of attempted manslaughter in the second degree on October 16, 1981, the plaintiff was sentenced to the Nassau County Correctional Center for one year,2 and after 67 days of incarceration was placed in a work release program. The plaintiff has not been accused of any criminal activity since his release.
On May 13, 1982, a hearing was held before Referee Daniel Gutman, pursuant to N.Y.Civil Service Law § 75(2) (McKinney 1983), to determine the validity of the charges against the plaintiff contained in the suspension order of September 4, 1981.
Section 75(2) provides:
2. Procedure. A person against whom removal or other disciplinary action is proposed shall have written notice thereof and of the reasons therefor, shall be furnished a copy of the charges preferred against him and shall be allowed at least eight days for answering the same in writing. The hearing upon such charges shall be held by the officer or body having the power to remove the person against whom such charges are preferred, or by a deputy or other person designated by such officer or body in writing for that purpose. In case a deputy or other person is so designated, he shall, for the purpose of such hearing, be vested with all the powers of such officer or body and shall make a record of such hearing which shall, with his recommendations, be referred to such officer or body for review and decision. The person or persons holding such hearing shall, upon the request of the person against whom charges are preferred, permit him to be represented by counsel, or by a representative of a recognized or certified employee organization, and shall allow him to summon witnesses in his behalf. The burden of proving incompetency or misconduct shall be upon the person alleging the same. Compliance with technical rules of evidence shall not be required.
Under § 75(2), Referee Gutman was to determine the validity of the charges against the plaintiff and to make recommendations as to the plaintiff's future employment status to the President of the NYCTA.
Referee Gutman made an independent finding that the plaintiff committed a criminal act in violation of Rules 11(f) and 35 of the NYCTA Rules and recommended the discharge of the plaintiff stating:
Under the circumstances of the case, we see no basis for the mitigation of penalty for this tragic event. The policy of the Authority where employees are convicted of a felony, requires discharge (emphasis added).
In making his recommendation, Referee Gutman did not indicate that he considered any factor other than the plaintiff's crime in reaching his decision.3
In a deposition, William I. Buchanan, the NYCTA's Chief Labor Relations Assistant, who at the time was responsible for the management of the NYCTA's disciplinary section, defined the "policy" of the NYCTA to which Referee Gutman had referred in his decision. The deposition reads in part, as follows:
Deposition of William I. Buchanan, March 15, 1985 at 46-47 (Buchanan deposition)
Pursuant to the collective bargaining agreement between the plaintiff's union, the Queens Supervisory Association, and the NYCTA, the plaintiff appealed the Hearing Referee's decision to the NYCTA Impartial Disciplinary Board (Board). The Board, comprised of a representative from the NYCTA, a representative from the plaintiff's union, and an independent member, was authorized to review the decision of the Hearing Referee and to make recommendations to the President of the NYCTA.
On March 26, 1984, the Board approved the Referee's findings and recommended the discharge of the plaintiff, claiming that the policy of the NYCTA supported such a decision. The Board wrote:
... the crime for which Mr. Furst was convicted was a serious one and we conclude that the Authority had just cause to dismiss Mr. Furst. Accordingly, the Board is unable to conclude that the decision of the Hearing Officer was inappropriate in light of the facts and circumstances of this case and the Authority's policy and practice in similar cases (emphasis added).
In his deposition, Mr. Buchanan, the NYCTA representative on the Board, explicated the Board's understanding of the NYCTA's "Policy and Practice":
Buchanan deposition at 44-46.
Despite the Board's recommendation to discharge the plaintiff, it suggested elsewhere in its opinion that the NYCTA consider reinstating the plaintiff, citing the plaintiff's unblemished employment record and the "unfortunate," "isolated" circumstances of his son's death.4
The court can only speculate in attempting to reconcile the Board's recommendation that the plaintiff be discharged with its suggestion that he be reinstated. It would appear that the Board believed that the NYCTA maintained a policy requiring the dismissal of employees who were convicted of...
To continue reading
Request your trial
-
Whaley v. Lopez
...United States Constitution); Cusamano v. Alexander, 691 F. Supp. 2d 312, 321 (N.D.N.Y. 2009)(accord); Furst v. New York City Transit Authority, 631 F. Supp. 1331, 1336-37(E.D.N.Y. 1986) (accord); United States v. Wicks, 132 F.3d 383, 389 (7th Cir. 1997) (accord); see also Rosa v. City Unive......
-
Lopez v. McMahon
...Motor Vehicles (1979) 93 Cal.App.3d 358, 368, 155 Cal.Rptr. 643 [denial of license to sell vehicles]; Furst v. New York City Transit Authority (E.D.N.Y.1986) 631 F.Supp. 1331, 1337-1338 [denial of city employment]; Kindem v. City of Alameda (N.D.Cal.1980) 502 F.Supp. 1108, 1111-1113 [same];......
-
Nixon v. Com.
...existed between the classification and a legitimate governmental purpose for which it was used. Also see Furst v. New York City Transit Authority, 631 F.Supp. 1331 (E.D.N.Y.1986) (granting summary judgment to plaintiff in suit challenging constitutionality of employer's policy of dismissing......
-
Muller Tours, Inc. v. Vanderhoef
...20. In addition, there was a rational basis for the County's denial of Muller's application. See also Furst v. New York City Transit Authority, 631 F.Supp. 1331 (E.D.N.Y. 1986) (a challenged policy that does not disadvantage a suspect class and does not interfere with fundamental rights sur......
-
Unequal protection: comparing former felons' challenges to disenfranchisement and employment discrimination.
...New Approaches to the Civil Disabilities of Ex-Offenders, 64 KY. L.J. 382, 402-09 (1975). (122.) Furst v. New York City Transit Auth., 631 F. Supp. 1331, 1338 (E.D.N.Y. 1986) (invalidating Transit Authority's policy of discharging ex-felons); see also, e.g., Smith v. Fussenich, 440 F. Supp.......