Russo v. White
| Decision Date | 08 October 1991 |
| Docket Number | No. 90 Civ. 3715 (RWS).,90 Civ. 3715 (RWS). |
| Citation | 775 F. Supp. 639 |
| Parties | Charles RUSSO, Plaintiff, v. Douglas WHITE, as Personnel Director of the City of New York, and the Department of Personnel of the City of New York; Lee P. Brown, Police Commissioner, and as Chairman of the Board of Trustees of the Police Pension Fund, Article II; Police Pension Fund, Article II; the City of New York; and the Police Department of the City of New York, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Dienst & Serrins, New York City, for plaintiff (Richard A. Dienst, of counsel).
Victor A. Kovner, Corp. Counsel, New York City, for defendants (Julie O'Neill and Frances Sands, of counsel).
Plaintiff Charles Russo ("Russo") brought this action against defendants Douglas White ("White"), the Department of Personnel of the City of New York ("Personnel"), Police Commissioner Lee P. Brown ("Commissioner Brown"), the Police Pension Fund ("PPF"), the City of New York ("City") and the Police Department of the City of New York ("Police Department") (collectively "Defendants") seeking monetary and injunctive relief for (1) Defendants' alleged deprivations of his rights under the due process and equal protection clauses of the fourteenth amendment, and under the first, fourth, fifth, and sixth amendments in violation of 42 U.S.C. § 1983; (2) Defendants' alleged violation of 42 U.S.C. § 1985; (3) Defendants' alleged deprivation of his rights under the due process and equal protection clauses of the New York State Constitution; and (4) Defendants' alleged violation of the New York Human Rights Law.1 Defendants have brought the present motion for an order granting them judgment on the pleadings pursuant to Rule 12(c), Fed. R.Civ.P. or granting them summary judgment pursuant to Rule 56, Fed.R.Civ.P. For the following reasons, Defendants' motion for summary judgment is granted.
Russo, a resident of Nassau County, New York, is a retired police officer of the Police Department.
White is Personnel Director of the City of New York. Brown is the New York City Police Commissioner and Chairman of the Board of Trustees of the PPF.
Russo commenced this action on May 31, 1990. The present motion was filed on April 30, 1991. Oral argument was heard, and the motion and supporting papers were considered fully submitted on July 18, 1991.
Russo was appointed a police officer with the Police Department on September 15, 1969. Following his appointment, Russo elected a twenty-year retirement selection with an effective retirement date of September 15, 1989. He was promoted to the rank of sergeant in 1983.
In June of 1988, Russo took the civil service promotional examination for the rank of lieutenant (the "June Examination"). Due to the pendency of litigation surrounding the June Examination, however, Personnel was unable to promulgate a list of eligible candidates when, in April of 1989, the Police Department experienced a severe shortage of officers holding the rank of lieutenant. At that time, there were approximately 300 vacancies in that rank. Therefore, in April of 1989, the Police Department obtained mayoral approval to appoint provisionally 250 lieutenants to fill the gap in the rank of lieutenant pending the promulgation of a civil service list for that rank.
The Police Department developed a list of prospective provisional appointees by using the available raw scores of the promotional candidates on the June Examination.
On May 30, 1989, the Police Department finalized its list of prospective candidates for provisional appointment, and the Personnel Orders Section directed that the appointees be notified that the promotion ceremony would be held on June 1, 1989 and that they were to report to the Police Academy on June 2, 1989 to begin a one-week orientation. Russo was one of the officers selected for provisional appointment to the rank of lieutenant.
Meanwhile, before learning of the possibility of provisional appointment to lieutenant, Russo had requested permission in February of 1989 to use all of his vacation days, starting in May of 1989 and ending in July of 1989. Furthermore, on May 15, 1989, Russo applied for sixty-six days of terminal leave to commence on July 12, 1989, the day immediately following his last scheduled vacation day, and to end September 15, 1989. Terminal leave is the term used to describe the paid vacation days granted to a retiring employee. The last day of Russo's terminal leave was the effective date of his retirement. On May 15, 1989, Russo also returned all of his police property, including his weapons, to the Police Department.
On May 27, 1989, Russo began his vacation, which was scheduled to end on July 11, 1989, the day before his terminal leave was scheduled to commence.
Since Russo was on vacation on May 30, 1989 when the Police Department finalized its list of candidates for provisional appointment, Police Department personnel contacted him at home to advise him of his impending appointment and of the promotion ceremony on June 1, 1989.
On June 1, 1989, Russo attended the promotion ceremony. On the same day, he received written orders advising that he had been transferred from the 101st Precinct in Queens to the 41st precinct in the Bronx and instructing him to report to the Police Academy on June 2, 1989 to begin a one-week orientation. Russo was issued a new identification card and police shield.
Russo neither attended the orientation nor reported to his new assignment. Russo claims, but has not substantiated, that a police sergeant told him that he could continue his vacation and attend the Police Academy upon returning from vacation. On June 5, 1989, he filed his pension application with the Police Department Pension Section.
On June 5, 1989, staff members from the Employee Management Division ("EMD") of Personnel were dispatched to the Police Academy to distribute packets of personnel forms that each provisional appointee was required to complete. While at the Police Academy, they discovered that Russo and five other officers had not attended the orientation.
A subsequent investigation revealed that the five absent officers were on vacation. The investigation also resulted in the discovery that (1) Russo had applied for terminal leave and returned all of his police property on May 15, 1989 and (2) that he had commenced his final vacation/terminal leave on May 27, 1989. Through the investigation, Personnel also learned that Russo had filed his pension application on June 5, 1989 and that it had been endorsed and approved by the Pension Section.
When it came to her attention on June 12, 1989 that Russo had commenced retirement and would not be available to serve in his provisional position, Helen R. Tanzosh ("Tanzosh"), Director of the EMD, recommended that Russo's provisional appointment be rescinded and that Sergeant Jan P. Leicht ("Leicht") be appointed to fill the vacancy. On the same day, Commissioner Brown approved Tanzosh's recommendation.
On June 13, 1989, to avoid abuse of provisional status, the Department established a requirement that all candidates being considered for provisional appointments be queried concerning their availability and denied provisional appointments unless they acknowledged their availability for training and service in the respective position for a minimum of one year.
By Personnel Order No. 189 dated June 15, 1989, Russo's provisional appointment was rescinded, and he was returned to the rank of sergeant.
In mid-June 1989, Russo contacted the EMD Executive Officer concerning the revocation of his provisional appointment. He was informed that if he was still interested in becoming a lieutenant, he could withdraw his retirement papers, return to the Police Department, and wait for Personnel to promulgate the civil service list of those eligible for permanent appointments to the rank of lieutenant.
The complaint alleges that Russo reconsidered his retirement and decided to remain with the Police Department and to take an upcoming promotional test for the rank of captain. However, Russo did not in fact withdraw his retirement papers but rather continued his vacation and terminal leave.
Following the completion of his terminal leave, Russo retired from the Police Department on September 18, 1989.
On October 31, 1989, the Police Department Pension Section commenced partial payment of Russo's pension benefits based on the then-effective lieutenant's salary. The Pension Section did not adjust Russo's partial payments to reflect that he had been returned to the rank of sergeant because it was anticipated that the settlement in pending negotiations over the sergeant's contract would result in greater pension benefits than those Russo was receiving as a newly appointed provisional lieutenant. Since contract negotiations have been completed, upon the finalization of his pension, Russo will receive approximately $2607 per month to correspond to his salary as a sergeant on the date of his retirement, with adjustments to reflect the salary rates prescribed in the new contract for the date of his retirement.
Police Department records show that, of the 1,364 officers provisionally appointed to various ranks within the last five years, fifteen officers, not including Russo, retired with their provisional titles. All of the officers who retired with their provisional titles were aged forty and above. Of the fifteen, one retired because of an accidental disability and ten retired after serving approximately six to fifteen months in their provisional titles. The four remaining officers, including two who were also provisionally appointed to the rank of lieutenant on June 1, 1989, retired within approximately four months after their provisional appointments. Each of those officers attended the Police Academy orientation, completed the required paperwork, and reported to their new assignments....
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