Gonzales v. N.Y.C. Police Dep't

• Decision Date: 07 February 2014
• Docket Number: Index No. 400163/2011
• Citation: 2014 NY Slip Op 30576
• Parties: In the Matter of the Application of THERESA D. GONZALES, Petitioner, For an Order and Judgment Pursuant to Article 78 of the Civil Practice Law and Rules v. NEW YORK CITY POLICE DEPARTMENT (Raymond Kelly, Commissioner; Paula Berlinerman, Personnel Director); NYC DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES (Michael Cardozo, Director); CITY OF NEW YORK (Michael R. Bloomberg, Mayor), Respondents
• Court: New York Supreme Court

2014 NY Slip Op 30576

In the Matter of the Application of THERESA D. GONZALES, Petitioner,
For an Order and Judgment Pursuant to Article 78 of the Civil Practice Law and Rules
v.
NEW YORK CITY POLICE DEPARTMENT (Raymond Kelly, Commissioner;
Paula Berlinerman, Personnel Director); NYC DEPARTMENT
OF CITYWIDE ADMINISTRATIVE SERVICES (Michael Cardozo, Director);
CITY OF NEW YORK (Michael R. Bloomberg, Mayor), Respondents

Index No. 400163/2011

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 46

March 12, 2014
DATED: February 7, 2014

DECISION AND ORDER

LUCY BILLINGS, J.S.C.:

I. BACKGROUND

This proceeding pursuant to C.P.L.R. Article 78 challenges the termination September 23, 2010, of petitioner's employment by respondent New York City Police Department's Division of School Safety, treating petitioner as a provisional employee subject to termination for any reason or none at all. Petitioner claims that she was not a provisional employee and therefore was entitled to a hearing before being terminated. She seeks a judgment declaring that she attained non-competitive, permanent employee status on December 23, 1998, and reversing the termination of her employment as arbitrary and in violation of the Due Process Clause of the Fourteenth Amendment to the United

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States Constitution; reinstatement to her position or its equivalent; and pay retroactive the date of her unlawful termination. C.P.L.R. §§ 7801, 7803(3). She also seeks a preliminary injunction requiring respondent to provide her her unaltered electronic employment record, in its form before respondents' admitted alteration, and permission to conduct disclosure. C.P.L.R. §§ 408, 6301, 6312(a).

II. PETITIONER'S CLAIMS

Petitioner alleges that she was hired initially in December 1995 as a probationary employee in the position of word processor at the Division of School Safety (DSS), which was then a division of the New York City Board of Education (BOE). She claims the word processor position was not a competitive job title because no civil service examination was offered or preferential hiring list of candidates who passed an examination was maintained for the position during her tenure from 1995 to 1998. Instead, this position was governed by an "automatic maturation program," as she describes it, that provided for a non-competitive advancement process based on length of service. Aff. of Theresa D. Gonzales ¶ 4.

Petitioner claims she attained permanent status after she completed her probationary period and passed an internal performance examination. Specifically, she alleges that she became a permanent non-competitive employee, reflected in her employment record as an "A2C NON-COMPETITIVE APPT NO RULE #" classification September 19, 1998, contemporaneous with her

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reclassification to the secretary position that she held until her termination from respondents' service in September 2010. Id. Ex. 4.

On September 19, 1998, petitioner was transferred laterally to a secretary 3A position as part of the transfer of DSS from BOE to the New York City Police Department (NYPD), effective December 20, 1998. Although the position of secretary is ordinarily competitive, petitioner claims that she retained her permanent non-competitive status in the transfer, relying on two 1995 Public Employee Press articles describing the DSS transfer:

All permanent employees in the title of word processor at assignment level 1 shall continue to mature to level 2 after six months. After serving one year at level 2, they shall mature to the higher assignment level 3. Having completed- this maturation, permanent employees will then be reclassified to secretary level 3a in accordance with restructuring.

Id. Ex. 6 col. 4.

Once [permanent and provisional employees] reach word processor level 3, permanent employees will.be reclassified to secretary level 3a and provisionals will be assigned to level 3a.

Id. Ex. 7 cols. 2-3 n.3. Respondent New York City Department of Citywide Administrative Services' Amendment to Classification sets forth a comparable provision. Aff. of Leslie Johnson Ex. E, at 6. Petitioner claims her reclassification to the secretary 3A title demonstrates her previously attained permanent status that was not relegated to provisional employment in the division transfer.

Petitioner further alleges that in 1998 respondents explicitly informed her of her permanent employee status and

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reassured that her non-competitive employee status would remain in her reclassification as secretary 3A at NYPD. In reliance on respondents' oral assurances of her non-competitive status in 1998 and again in 2008 and 2009, she did not take the civil service examinations offered for the secretary title in 2008 and 2009.

Petitioner maintains that she was "grandfathered" as a noncompetitive employee, Gonzales Aff. ¶ 14, as specified in the Memorandum of Understanding governing the DSS transfer, to compensate for abolishing her word processor title, for which no civil examination was offered, and to compensate for reclassifying her to the secretary position at NYPD. V. Answer Ex. 1, at 5 ¶ 7(a). While she maintains that she attained permanent status through the automatic maturation process from 1995 to 1998, she also contends that five continuous years of satisfactory service as a non-competitive employee entitled her to permanent status subject to removal only for incompetence or misconduct after a hearing on such charges pursuant to New York Civil Service Law § 75(1)(c). Finally, petitioner claims that respondents are equitably estopped from now retracting their repeated assurances that she attained permanent non-competitive status, which induced her to accept her transfer to the secretary position and subsequently to forgo taking a civil service test.

III. RESPONDENTS' DEFENSES

Respondents maintain that petitioner was a provisional employee throughout her 14 years of service, from her first

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provisional appointment to word processor December 4, 1995, until the abolition of that title and change to secretary pursuant to a Clerical-Secretarial Resolution dated April 21, 1996. Johnson Aff. ¶ 8 and Ex. E. Specifically, respondents claim that petitioner's civil service title changed to a provisional secretary on June 4, 1997, instead of the September 1998 date petitioner claims, and, when her provisional employment with BOE ceased, she was reappointed at NYPD with that civil service title and retained her provisional status until her 2010 termination. Respondents further maintain that both the word processor and the secretary titles were competitive civil service titles. To achieve permanent status the secretary title specifically requires either appointment from a civil service list or a passing grade on a civil service examination, which petitioner never took when examinations were offered during the period of her employment.

Respondents claim that petitioner's "A2C non-competitive" payroll code, used to designate an appointment, was a clerical error in her BOE record, because that code included an "A," which signifies leave status, designating petitioner as inactive at BOE to facilitate her transfer to NYPD, yet an employee could not be inactivated and appointed simultaneously. Aff. of Nancy Grillo ¶ 6. Respondents maintain that the correct code was a provisional reason code instead of a non-competitive designation. Johnson Aff. ¶ 11. Respondents admit that they removed petitioner's "A2C

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non-competitive" code from her employment record in November 2010 after she was terminated. Grillo Aff. ¶ 7.

IV. THE PARTIES' MOTIONS

Petitioner insists respondents falsified her record. First, they deleted the "A2C non-competitive" code shortly after she notified them that she intended to commence a proceeding challenging her discharge. Second, they altered her entire work history to show that she received only provisional appointments, first as a word processor in 1995, then as a secretary level 3A in April, June, and December 1996 and in June 1997. Gonzales Aff. Ex. 2. Her petition seeks a preliminary injunction restoring her employment record to its form before her termination and before respondents changed her permanent noncompetitive employee status and seeks disclosure before a determination of the petition. C.P.L.R. § 408.

Despite petitioner's request for disclosure and for production of her unaltered record to establish her claims, petitioner nonetheless moves for summary judgment. C.P.L.R. § 3212(b). She relies on her affidavit; employment records she obtained without formal disclosure; and respondents' answer to her notice to admit, C.P.L.R § 3123, the single disclosure device available without the court's permission in a special proceeding. C.P.L.R. § 408; Stapleton v. City of New York, 7 A.D.3d 273, 274-75 (1st Dep't 2004).

Respondents oppose petitioner's motion as premature, since no disclosure has been conducted to support the petition,

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Consequently, respondents cross-move for summary judgment dismissing the petition because it lacks the necessary support. C.P.L.R. § 3212(b).

V. APPLICABLE STANDARDS

To obtain summary judgment, the moving parties must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating all material issues of fact. C.P.L.R....