Smith v. Carey

• Decision Date: 10 July 1979
• Docket Number: No. 76 Civ. 767 (CHT).,76 Civ. 767 (CHT).
• Citation: 473 F. Supp. 268
• Parties: Edward SMITH, Plaintiff, v. Hugh CAREY, Individually and as Governor of the State of New York, Benjamin Ward, Individually and as Commissioner of Correctional Services of the State of New York, Security Unit Employees Council 82, American Federation of State, County and Municipal Employees, AFL-CIO, Donald Wollett, Individually and as Director of Employee Relations of the State of New York, John Burns, Individually and as Director, Bureau of Labor Relations, Department of Correctional Services of the State of New York, Henry Bankhead, Individually and as Director of Personnel, Department of Correctional Services, State of New York, John Van De Car, Individually and as Director of Manpower and Employee Relations, Department of Correctional Services, State of New York, Defendants.
• Court: U.S. District Court — Southern District of New York

473 F. Supp. 268

Edward SMITH, Plaintiff, v. Hugh CAREY, Individually and as Governor of the State of New York, Benjamin Ward, Individually and as Commissioner of Correctional Services of the State of New York, Security Unit Employees Council 82, American Federation of State, County and Municipal Employees, AFL-CIO, Donald Wollett, Individually and as Director of Employee Relations of the State of New York, John Burns, Individually and as Director, Bureau of Labor Relations, Department of Correctional Services of the State of New York, Henry Bankhead, Individually and as Director of Personnel, Department of Correctional Services, State of New York, John Van De Car, Individually and as Director of Manpower and Employee Relations, Department of Correctional Services, State of New York, Defendants.

No. 76 Civ. 767 (CHT).

United States District Court, S. D. New York.

July 10, 1979.

Harlem Assertion of Rights, Inc., New York City, for plaintiff; James N. Finney, Dwight W. Loines, New York City, of counsel.

Robert Abrams, Atty. Gen. of the State of New York, New York City, for New York State defendants; Lillian Z. Cohen, Asst. Atty. Gen., New York City, of counsel.

Rowley & Forrest, Albany, N. Y., for Union; Richard R. Rowley, Albany, N. Y., of counsel.

OPINION

TENNEY, District Judge.

Edward Smith, a black man, was suspended and subsequently dismissed from his tenured job as a New York State Corrections Officer assigned to Green Haven Correctional Facility in Stormville, New York. His employer, the New York State Department of Correctional Services ("DCS") imposed the suspension on April 16, 1975, pursuant to Article 8.4A(2) of an agreement ("Collective Bargaining Agreement") between it and the plaintiff's union, Security and Law Enforcement Council 82, American Federation of State, County and Municipal Employees, AFL-CIO, a unit of corrections officers, i. e., prison guards, and other peace officers ("the Union"). Article 8.4 is entitled "Suspension Before Notice of Discipline." Subsection A(2) provides in pertinent part

that appointing authority or his designee may with agency approval suspend without pay an employee charged with the commission of a crime. Such employee shall notify his appointing authority in writing of the disposition of any criminal charge including a certified copy of such disposition within five days thereof. Within 30 calendar days following such suspension under this provision . ., a notice of discipline shall be served on such employee or he shall be reinstated with back pay.

Collective Bargaining Agreement, Exh. A to Union Statement submitted pursuant to Rule 9(g) of the General Rules of the Southern District of New York. Smith's suspension was triggered by his arrest in New York City on charges of committing the crime of public lewdness, N.Y. Penal Law § 245.00.

On May 16, 1975, the DCS sent Smith a Notice of Discipline, which informed him that

pursuant to Article 8, Security Services Union 1974-1977 Agreement between the State of New York and Council 82, AFSCME, you are hereby informed that we propose to implement the following penalty:

DISMISSAL FROM SERVICE

* * * * * *

If you believe that this discipline is not for just cause or that the penalty is excessive, you must file a disciplinary grievance with me postmarked no later than fourteen calendar days from the receipt of this notice. Unless such a grievance is filed, the penalty will be imposed at the close of the appeal period, and the matter may not otherwise be reviewed.

You are provided two copies of this notice in order that one may be given to your representative. Your union representative is Council 82, AFSCME.

Brief for Union at 3-4 (emphasis added). Smith never filed a grievance or inquired about the procedure for doing so.¹ His communications with the DCS, certain phone calls and letters to officials, occurred after his dismissal became final. When the public lewdness charges against Smith were later dropped after the complainant failed to appear, Smith sent the DCS a "Certification of Disposition" stating that fact. He also sent a letter requesting reinstatement; it was denied.

Thereafter Smith brought this suit charging that the suspension and termination procedures sanctioned in the Collective Bargaining Agreement between the Union and the DCS violate his constitutional rights. He urges that the power to suspend without pay prior to a hearing offends due process; that the summary suspension procedure for criminal charges infringes equal protection guarantees because they have a disproportionate effect on blacks who, plaintiff claims, are arrested more frequently than whites; that mere criminal charges should not constitute just cause for suspension and termination; and that the Union violated its duty of fair representation because, inter alia, it entered the Collective Bargaining Agreement with the state. Smith seeks reinstatement to his former job, back pay, and appropriate seniority and a judgment declaring, first, that Article 8.4A(2) of the Collective Bargaining Agreement is null and void; second, that Smith was suspended without cause; and third, that the agreement had an adverse and disparate impact on blacks. Smith also asks for a permanent injunction against proceeding under Article 8.4A(2) and for one million dollars in damages. Both sides have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, judgment is awarded to the defendants.

Discussion

The defendant Union and the state-related defendants have marshalled numerous arguments in support of their position that Smith's claim is meritless. For the sake of clarity, the Court will attend to them one by one.²

Due Process Claim

Smith complains that the suspension procedure agreed upon by the Union and the DCS in Article 8.4 of the Collective Bargaining Agreement offends due process because it fails to provide for a hearing prior to suspension without pay. Smith contends that the necessity for presuspension hearings was endorsed by a "majority of six of the justices" expressing opinion in Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). Plaintiff's Memorandum at 14. That reading of Arnett is simply wrong.³ In Arnett the plaintiff complained that he was deprived of due process when he was dismissed from his tenured position in the Federal Civil Service without a preremoval hearing. His employment was governed by a statute which provided that employees could be removed only for such cause as would promote the efficiency of the service. The statute outlined specific notice and protest procedures, but explicitly stated that no hearing was required (although the agency involved in the case had provided for a posttermination evidentiary trial-type hearing at the appeal stage with provision for reinstatement and full back pay upon vindication).

Three justices in Arnett concluded that the statute under which that plaintiff was hired governed his employment exclusively and foreclosed his request for constitutional due process. They held that the employee had no valid, independently protectable entitlement to his employment because "the property interest which he had in his employment was itself conditioned by the procedural limitations which had accompanied the grant of that interest." Id., 416 U.S. at 155, 94 S.Ct. at 1645. The remaining six Justices disagreed with that view of the employee's property interest in his work, finding it at odds with Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), and Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), which, taken together, illustrate how a legitimate claim of entitlement to employment and a corresponding entitlement to due process may arise. However, while the Arnett majority found a Roth/Sindermann property interest, that majority did not, as this plaintiff asserts, determine that "notice and a hearing of some type is required prior to the temporary loss of employment." Plaintiff's Brief at 14. The three Justices who found in Arnett no protectable property interest in employment a fortiori concluded that no pretermination hearing was required for divestment of that employment. Justices Powell and Blackmun, concurring in part with the plurality opinion and in part in the result, concluded that a valid property interest in employment was present and that due process applied, but that the decision vel non to afford a pretermination hearing depended upon a "balancing process in which the Government's interest in expeditious removal of an unsatisfactory employee is weighed against the interest of the affected employee in continued public employment." Id., 416 U.S. at 167-68, 94 S.Ct. at 1651. On the Arnett facts they concluded that a prior evidentiary hearing was not necessary. Id. at 171, 94 S.Ct. 1633.

Justice White, who concurred in part and dissented in part, also concluded that the Arnett plaintiff had a protectable property interest in retaining his job and was entitled to "some kind of hearing . . . at some time before he is finally deprived of his property interests." Id. at 178, 94 S.Ct. at 1656. Justice White thought that some type of pretrial hearing should occur, although not necessarily one involving the full panoply of trial procedures. However, he also recognized that a notice requirement prior to termination may be dispensed with in some circumstances, e. g., when "there is reasonable cause to believe an employee is guilty of a crime for which a sentence of imprisonment can be imposed." Id. at 195, 94 S.Ct. at 1664, citing 5 C.F.R. § 752.202(c)(2) (1972). Justices Douglas, Marshall and Brennan dissented completely. They found a protectable property interest in the employee and, after balancing the needs of the Government against those of the discharged employee, found a duty to hold an evidentiary hearing before job termination.

Two years after Arnett in...