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KEYER v. CIVIL SERV. COMMN. OF NEW YORK

July 31, 1975

ROBERT KEYER and JOSEPH CARPENTER, Individually and on behalf of all others similarly situated, Plaintiffs,
v.
CIVIL SERVICE COMMISSION OF THE CITY OF NEW YORK et al., Defendants



The opinion of the court was delivered by: NEAHER

MEMORANDUM AND ORDER FOR PRELIMINARY INJUNCTION

 NEAHER, District Judge.

 Plaintiffs Robert Keyer and Joseph Carpenter, dismissed New York City Civil Service employees, brought this action under 42 U.S.C. § 1983, 28 U.S.C. §§ 1331, 1343(3) and (4), and 2201, seeking a judgment declaring that their dismissals from employment violated their constitutional rights, directing their reinstatement with back pay, and enjoining future violations of the type complained of. Plaintiffs also sue on behalf of all City civil service employees similarly situated but no class has yet been certified. The case is now before the court on plaintiffs' motion for a preliminary injunction reinstating them in the City's employ and enjoining the dismissal of any members of the class they seek to represent pending the resolution of this controversy. For the reasons discussed below the motion is granted only as to the named plaintiffs.

 The following facts are not in dispute. Plaintiff Keyer was from February 1972 until his dismissal on November 9, 1974, employed by the Board of Higher Education of the City of New York as a Special Officer assigned to the Administration Building of the City University of New York (C.U.N.Y.). "Special Officer" is a competitive civil service position held by persons who function essentially as security guards for various City agencies and departments. *fn1" In August 1972, Keyer completed his probationary period of employment and became a permanent civil servant. *fn2" In May 1973 he passed the standard character investigation conducted by the City Personnel Department, and was marked "qualified" for the position to which he had been appointed some fourteen months earlier. After satisfactorily serving as a Special Officer for nearly three years, Keyer was dismissed from employment by the Board of Higher Education solely because the License Division of the Police Department ("License Division") disapproved him for designation as a "Special Patrolman." *fn3"

 Plaintiff Carpenter was from August 23, 1973, until his dismissal on February 28, 1975, employed by the Department of Traffic of the New York City Transportation Administration, initially as a Parking Enforcement Agent in which capacity he issued parking tickets, and subsequently as a Traffic Control Agent in which capacity he directed traffic and issued summonses for parking and moving violations. In February 1974, he completed his probationary period of employment and became a permanent civil servant. After satisfactorily serving for a year and a half, Carpenter was dismissed from employment by the Transportation Administration solely because the License Division refused to approve him for designation as a Special Patrolman. The City Personnel Department apparently never completed its standard background investigation of Carpenter. *fn4"

 There is no question that both plaintiffs successfully passed through each stage of the civil service process leading to their appointment in the respective positions they held when dismissed. These included scoring high enough in written examinations to attain eligibility ratings, passing medical and physical tests, surviving interviews by appointing agencies and the so-called "one-in-three rule"; i.e., being chosen in preference to two other prospective appointees. Keyer also passed the character screening investigation conducted by the City Personnel Department. Carpenter, apparently because of administrative backlogs, had not yet been subjected to it when dismissed and it is not the reason for his termination. In addition, as already noted, each plaintiff had survived the six months probationary period during which the appointing agencies must make a specific determination as to whether an appointee has performed satisfactorily and should be continued on the job in permanent civil service status, see n. 2 supra.

 It also appears beyond doubt that during the entire periods of their employment Keyer, as a Special Officer, and Carpenter, as a Traffic Control Agent, were required to perform and did perform the identical duties without "Special Patrolman" designation that they would have performed had they received such a designation. While the documentation provided by the City on the hearing is incomplete, enough appears to warrant the finding that neither plaintiff was requested to apply for "Special Patrolman" status until long after his probationary period had ended. Thus Keyer's application to the License Division is dated February 26, 1974 -- two years after he had entered on active duty as a Special Officer. *fn5"

 Carpenter, a former Port Authority probationary police officer, has been directing traffic, enforcing traffic regulations and issuing tickets for violations since he entered on duty in August 1973. *fn6" At his "hearing" before the License Division, protesting the refusal to designate him as a Special Patrolman, the following illuminating interchange occurred:

 
"HEARING OFFICER: All right; now at the present time you do not have deputization as a special patrolman. If you were deputized would your duties and/or responsibilities change?
 
"MR. CARPENTER: No, they would not.
 
"HEARING OFFICER: Now, would you have summonsing powers as a special patrolman?
 
"MR. CARPENTER: Yes.
 
"HEARING OFFICER: In other words -- are you qualified now to issue summonses?
 
"MR. CARPENTER: Yes; I've been trained in the proper procedure for issuing summonses.
 
"HEARING OFFICER: All right, now why would it be necessary then -- since your duties and responsibilities wouldn't change, why would it be necessary for you to be deputized as a special patrolman?
 
"MR. CARPENTER: It would be necessary so that the summonses that I do issue would be legal in the eyes of the law; so that I am a special patrolman in the eyes of the law.
 
"HEARING OFFICER: Do you issue summonses now?
 
"MR. CARPENTER: Yes.
 
"HEARING OFFICER: Are these summonses you ...

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