Meyers v. City of New York

• Decision Date: 06 February 1995
• Citation: 622 N.Y.S.2d 529,208 A.D.2d 258
• Parties: Gerald MEYERS, Respondent, v. CITY OF NEW YORK, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 529

622 N.Y.S.2d 529

208 A.D.2d 258

Gerald MEYERS, Respondent, v. CITY OF NEW YORK, et al., Appellants.

Supreme Court, Appellate Division Second Department.

Feb. 6, 1995.

Paul A. Crotty, Corp. Counsel, New York City (Stephen J. McGrath and A. Orli Spanier, of counsel), for appellants.

George V. Cornell III, Staten Island (Ralph P. Cafaro, of counsel), for respondent.

Before LAWRENCE, J.P., and SANTUCCI, ALTMAN and GOLDSTEIN, JJ.

GOLDSTEIN, Justice.

The principal issue on this appeal involves the present-day viability of the United States Supreme Court trilogy of Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403, United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681, and Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012, and whether they constitute a valid predicate by a discharged probationary employee for a Federal due process violation. Specifically, the question presented is whether, pursuant to these decisions, a municipal agency's failure to adhere to its own procedural rules governing a probationary employee's discharge encroaches upon the probationary employee's procedural due process rights.

The plaintiff, a probationary correction officer, contends that these constitutional rights were violated when the defendant New York City Department of Correction (hereinafter the DOC) offered him the choice of either resigning or being discharged without strictly adhering to certain procedures outlined in the DOC's rules and regulations. We conclude that an agency's failure to follow its own procedural rules cannot give rise to a constitutional procedural due process claim for a probationary employee. Moreover, based on the Supreme Court's more recent pronouncements in this area, the plaintiff's reliance on the trilogy of Service, Accardi, and Vitarelli is clearly misplaced.

The plaintiff was appointed to the position of probationary correction officer on August 2, 1990. On April 20, 1991, while the plaintiff was still serving his probationary period, a criminal complaint was lodged against him. This complaint charged him with assault in the third degree arising out of a street altercation which occurred earlier on that same date. On May 3, 1991, as a result of the pending criminal action, the plaintiff was served with a notice of summary suspension from duty by the DOC. On May 6, 1991, the plaintiff received a DOC memorandum of complaint (hereinafter the complaint) setting forth several administrative disciplinary charges against him. On May 8, 1991, the plaintiff appeared before the DOC Commissioner, the defendant Allison Lewis-Smith. At that time, he was offered the option of either voluntarily resigning his position or being discharged from his employment. In response to this offer, the plaintiff submitted his resignation on May 8, 1991. On October 29, 1991, the criminal charges pending against the plaintiff were dismissed. On November 4, 1991, the plaintiff sent a letter to the personnel division of the DOC requesting that he be reconsidered for reinstatement to his former position as a probationary correction officer. By letter dated November 7, 1991, the DOC rejected the plaintiff's request.

On April 24, 1992, the plaintiff commenced this action, alleging that his procedural due process rights under the United States Constitution and 42 U.S.C. § 1983 had been violated. The plaintiff's complaint asserted that he had been given only two days to respond to the DOC's complaint, contravening the DOC's rule 3.25.040 requiring that DOC employees be given at least eight days to respond to administrative disciplinary charges preferred against them. The plaintiff further alleged that his procedural due process rights had been violated because the defendants failed to provide him with a name-clearing hearing upon termination of his employment. Finally, the plaintiff pleaded certain State-law claims in that, as a result of the failure of the DOC to follow its own procedural rule, he was denied an opportunity to respond to the charges, his resignation was coerced, and he was being caused to suffer severe physical and mental distress. Based on these claims, the plaintiff sought a judgment declaring, inter alia, that the defendants had violated his rights to procedural due process, and further sought an award of compensatory monetary damages. After the plaintiff moved for leave to enter a default judgment, by notice of cross motion dated January 4, 1993, the defendants cross-moved to dismiss the complaint on the grounds that the complaint failed to state a cause of action and that the plaintiff's challenge to his discharge as a probationary correction officer was time-barred. In support of their cross motion, the defendants contended that the plaintiff, as a probationary employee, had no property interest in his job and his discharge, therefore, did not violate any constitutional rights to procedural due process. The defendants further argued that the plaintiff failed to establish a constitutional claim for a name-clearing hearing since the complaint failed to allege that the purported defamatory material contained in his personnel file had been published. As to the plaintiff's State-law claims, the defendants contended that they were without merit since the plaintiff, as a probationary employee, could be fired at will, and, thus, offering him an opportunity to resign did not constitute coercion. Additionally, the defendants argued that the plaintiff's State claims challenging his dismissal should have been brought in a proceeding pursuant to CPLR article 78, which is required to be commenced within four months of the date of the termination of his employment.

In the order appealed from, the Supreme Court denied the defendants' cross motion. The court found that the plaintiff had clearly framed an action for damages based upon the theory of denial of due process. We are unable to agree with the Supreme Court's ruling.

"The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property" (Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548, affd 408 U.S. 593, 92 S.Ct. 2717, 33 L.Ed.2d 581). In order to establish a Federal procedural due process claim, the plaintiff must first establish that he possesses a property right in his continued employment (see, Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684). It is well settled that a probationary employee, unlike a permanent employee, has no property rights in his position and may be lawfully discharged without a hearing and without any stated specific reason (see, Matter of McKenzie v. Jackson, 152 A.D.2d 1, 8, 547 N.Y.S.2d 120, affd 75 N.Y.2d 995, 557 N.Y.S.2d 265, 556 N.E.2d 1072; Matter of York v. McGuire, 63 N.Y.2d 760, 761, 480 N.Y.S.2d 320, 469 N.E.2d 838; Matter of Connor v. Board of Educ., 184 A.D.2d 698, 587 N.Y.S.2d 181; Matter of Young Ju Park-Cunningham v. City of Watertown, 186 A.D.2d 1027, 590 N.Y.S.2d 791; Matter of Engoren v. County of Nassau, 163 A.D.2d 520, 521, 559 N.Y.S.2d 342). Accordingly, the plaintiff, as a probationary employee, had no legitimate claim of entitlement to his position, and his allegation of a constitutional procedural due process violation based on the defendants' failure to follow rule 3.25.040 is without any merit (see, Board of Regents v. Roth, supra ).

In support of his position, the plaintiff improperly relies on the "trilogy" of Supreme Court cases, Service v. Dulles (supra), United States ex rel. Accardi v. Shaughnessy (supra), and Vitarelli v. Seaton (supra), decided in the 1950's. ^* Specifically, the plaintiff, in relying on these cases, contends that even if the Fourteenth Amendment of the United States Constitution did not require the DOC to afford him procedural due process in the first instance, once it adopted certain procedures for determining whether an employee should be discharged the DOC was obliged to follow them. Thus, the argument is made that even if he did not have a property interest in the job itself, he nonetheless possessed a property interest in the procedures for determining whether he should be discharged. The Supreme Court has declined to adopt this anomalous reasoning. The court's more recent pronouncements, moreover, make clear that the plaintiff's reliance on the older cases of Accardi, Service, and Vitarelli in support of his present claim is not well taken.

In Olim v. Wakinekona, 461 U.S. 238, 250, 103 S.Ct. 1741, 1748, 75 L.Ed.2d 813, the Supreme Court expressly held that an expectation of receiving process is not, without more, an interest protected by the due process clause. In Olim, the court found that since prisoners had no right to remain at any particular facility and could be transferred at will, prison regulations and procedures regarding transfers did not create a constitutionally protected due process interest (Olim v. Wakinekona, supra, at 248-250, 103 S.Ct. at 1747-1748). The court stated that "[p]rocess is not an end in itself. Its constitutional purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement * * * The [s]tate may choose to require procedures for reasons other than protection against deprivation of substantive rights, of course, but in making that choice the [s]tate does not create an independent substantive right" (Olim v. Wakinekona, supra, at 250-251, 103 S.Ct. at 1748, quoting Shango v. Jurich, 681 F.2d 1091, 1100; accord, Hewitt v. Helms, 459 U.S. 460, at 471, 103 S.Ct. 864, at 871, 74 L.Ed.2d 675).

The courts have explicitly and repeatedly rejected the proposition that an individual has an interest in a State-created procedural device, such as a hearing, that is entitled to constitutional due process protection (see, Brandon v. Dist. of Columbia Board of Parole, 823 F.2d 644; United States v....