Pilawa v. City of Utica

• Decision Date: 10 July 1980
• Citation: 76 A.D.2d 103,429 N.Y.S.2d 959
• Parties: In the Matter of the Application of Stanley PILAWA, Appellant, v. The CITY OF UTICA, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 959

429 N.Y.S.2d 959

76 A.D.2d 103

In the Matter of the Application of Stanley PILAWA, Appellant, v. The CITY OF UTICA, Respondent.

Supreme Court, Appellate Division, Fourth Department.

July 10, 1980.

Buckley & Scholl, Utica, for appellant (John C. Scholl, Utica, of counsel).

Lawrence P. George, Corp. Counsel, Utica, for respondent (J. K. Hage, Utica, of counsel).

Before SIMONS, J. P., and HANCOCK, SCHNEPP, DOERR and WITMER, JJ.

OPINION

WITMER, Justice.

In this Article 78 proceeding petitioner seeks annulment of the determination by respondent City of Utica (the City) dismissing him as of June 25, 1974 from his position as stationary engineer in the City's Auditorium without filing and serving charges against him and affording him a hearing. Petitioner asks for restoration to his position of employment and payment of his salary from the effective date of his dismissal. We conclude that his petition should be granted in part and that further proceedings should be had as herein specified.

Beginning in 1960 petitioner was employed by the City as a stationary engineer. On June 17, 1974 the City dismissed him effective June 25, 1974. He instituted a proceeding under section 75 of the Civil Service Law for restoration to his position and for back pay until the City should file charges against him and afford him a hearing thereon. In the fall of 1974 a memorandum was written and an order was entered in that proceeding determining that petitioner had been a permanent employee of the City since August 1961 and could not be discharged for cause without charges being made against him and an opportunity granted to him to be heard thereon. The Court deferred until after such contemplated charges and hearing a decision as to petitioner's rights to restoration to his position and to back pay. The City did not appeal from the order, and so it became the law of the case with respect to petitioner's employment status.

The City filed and served eleven charges against petitioner on March 1, 1975 and a hearing thereon began on March 10, 1975. It continued intermittently for nine days through April 30, 1975 when it was suspended for over a year, during which time the City's counsel in the case and the Hearing Officer were changed, and the hearing was resumed for sixteen additional days on May 10, 1976 through June 29, 1976. Upon reviewing the testimony taken in these two periods, consisting of more than 2000 pages, and the many exhibits, in November 1976 the Hearing Officer rendered his decision sustaining the charges against petitioner. On January 6, 1977 the City adopted the decision in all respects.

Four months later petitioner instituted this proceeding for review and annulment of the determination sustaining his dismissal, and for restoration to his former position and for back pay; the City answered, and the proceeding was transferred to this court by order of August 10, 1977. For failure of prosecution of the proceeding we dismissed it, sua sponte, on February 4, 1980; but on March 28, 1980, on petitioner's application, we vacated that dismissal on condition that the case be heard at the May term 1980, which it was.

Shortly after petitioner's dismissal in June 1974, the City entered into contracts with outside companies for them to install new equipment in the Auditorium and to perform most of the services formerly performed there by the three stationary engineers (of whom petitioner was one); it abolished the three positions of stationary engineer; and one of petitioner's former associate stationary engineers, Mr. Jaloweic, was reemployed at his former salary under the title of Auditorium Maintenanceman. The record establishes that the City had valid economic reasons for abolishing the three positions of stationary engineer; that it acted in good faith in doing so; and that petitioner has no valid grievance by reason thereof (see Matter of Saur v. Director of Creedmor Psychiatric Center, 41 N.Y.2d 1023, 395 N.Y.S.2d 629, 363 N.E.2d 1374; Matter of Wipfler v. Klebes, 284 N.Y. 248, 254, 30 N.E.2d 581; Switzer v. Sanitary Dist. No. 7, Town of Hempstead, 73 A.D.2d 617, 422 N.Y.S.2d 455 and 59 A.D.2d 889, 399 N.Y.S.2d 43; Matter of Schmidt v. Board of Supervisors of County of Monroe, 244 App.Div. 493, 279 N.Y.S. 855). Thus, petitioner's request to be restored to his former position must be denied. Because it was established by the order of November 13, 1974 that petitioner was improperly dismissed as of June 25, 1974, it remains for decision whether the hearing record establishes that the later confirmation on January 6, 1977 of such dismissal was supported by substantial evidence; whether the penalty of dismissal was excessive, and, if so, to what relief petitioner is entitled with respect to reemployment by the City and in any event to what back pay petitioner is entitled.

Although the Hearing Officer sustained all of the eleven charges against petitioner, he made no specific finding with respect to five of them, to wit, charges numbered 3, 4, 5, 9 and 11; he merely stated that they were sustained by the general tenor of the testimony. Those charges against petitioner were of a general deprecatory nature, mostly petty, and for lack of proof and findings they must be disregarded. We shall briefly review the other six charges.

Charge number 1 was that petitioner "constantly refused" to work. This of course is a serious charge, but no solid evidence was introduced to support it. Neither the Mayor nor the City's Auditorium Manager who dismissed petitioner appeared to testify against him and only one employee who worked with petitioner was called to testify against him. The other witnesses worked in other areas and were generally not in a position to know the facts firsthand. Although these witnesses testified that petitioner was often idle and that he refused to help others, such as the laborers, no one testified that petitioner failed to perform the tasks required of a stationary engineer. Only one instance of refusal to work was shown, and in that instance there existed a legitimate dispute by petitioner as to whether it was his duty to perform that task, i. e., to clean the boiler and engineering room. At any rate, evidence of one refusal could not establish what appeared to be an excessive charge of "constantly" refusing to work. No evidence was introduced to establish that petitioner ever failed or refused to do work required in his job title.

Charge number 2 was that petitioner was critical of laborers in the Auditorium, indicating to them that they were slow in performing their work, thus irritating them. The background of this charge is that because of the close scheduling of different types of events in the Auditorium, it was often necessary to change the floor from an ice rink to a wood floor and vice versa. It appears that petitioner's criticisms arose from the pressure on him and his fellow employees to accomplish such changes to accommodate the scheduled events. The evidence establishes the charge against petitioner and that his conduct angered the laborers at whom it was directed.

Charge number 6 was that petitioner remained "motionless" while on duty. This is another incidence of overcharging. The evidence shows that petitioner's principal duties were to check gauges every hour and make needed repairs. The work did not consume the whole hour; and so after doing his work every hour he had some time for reading or talking with others. There was no proof that such action on his part constituted "misconduct". At best this evidence only tends to show that the City acted in good faith in deciding to abolish the position of stationary engineer upon finding a more economical way of having the service performed.

Charge number 7 was that petitioner uttered a racial slur to another (Black) employee. The evidence supports the charge. In mitigation, however, there was evidence that it was done in jest; and ethnic references were part of the bantering that took place amongst the employees, including the object of the alleged slur.

Charge number 8 was that petitioner conspired to blackmail the Manager. In light of the uncontradicted evidence of the conduct of the Manager, at which petitioner's...