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HEWITT v. D'AMBROSE

July 29, 1976

GEORGE F. HEWITT, Plaintiff,
v.
ALPHONSE E. D'AMBROSE, Personnel Director, Department of Personnel; CIVIL SERVICE COMMISSION, CITY OF NEW YORK; ROBERT A. LOW, Administrator, Environmental Protection Administration; MARTIN LANG, Acting Commissioner of Sanitation, Department of Sanitation, City of New York, and HARRISON J. GOLDIN, Comptroller, City of New York, Defendants.



The opinion of the court was delivered by: CONNER

CONNER, D.J.:

 On October 3, 1975, plaintiff George F. Hewitt (Hewitt) was summarily discharged from his position with New York City's Department of Sanitation for failure to meet age requirements. Hewitt, who had been employed by the Department of Sanitation for approximately twenty months, claims that his satisfactory completion of a six-month probationary period invested him with a property interest in the job and that his employment therefore could not thereafter be terminated in the absence of the procedural safeguards outlined in cases such as Perry v. Sindermann, 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972), and Board of Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972), and guaranteed by the Due Process Clause of the fourteenth amendment. Asserting that defendants' refusal to afford him a pretermination hearing denied him these safeguards, on November 5, 1975 Hewitt commenced this action for injunctive and declaratory relief under the Civil Rights Act of 1871, 42 U.S.C. § 1983, and its jurisdictional counterpart, 28 U.S.C. § 1343 (3), (4).

 Presently before the Court is Hewitt's motion, pursuant to Rule 56 F.R.Civ.P., seeking a summary judgment (1) declaring his termination illegal and (2) ordering his reinstatement. Since the record before the Court discloses that "there is no genuine issue as to any material fact," Rule 56(c) F.R.Civ.P., we conclude, for reasons outlined in detail below, that a summary judgment is indeed appropriate in this case.

 THE UNDISPUTED FACTS

 In late 1969, the Civil Service Commission of the City of New York (CSC) announced that on January 31, 1970 it would hold an open competitive civil service examination for the position of "Sanitation Man (Street Cleaner)." The announcement specified the following age requirement:

 
"Open only to persons who shall not have passed their 30th birthday on the date of the written test."

 However, those who had served in the military were permitted to

 
"deduct the length of time, not exceeding a total of six years, which they spent in [the] military * * * from their actual age in determining their eligibility."

 Hewitt, a veteran of approximately twenty months in the United States Army, was thirty-three years, three months and sixteen days old when the test was given. Thus, even deducting the time spent in military service from his actual age, Hewitt was more than one-and-one-half years past his thirtieth birthday on the scheduled date of the test.

 Nevertheless, in December 1969, Hewitt filed an application to compete in the examination. In his application, he correctly set forth his date of birth and the fact that he had served in the military. The application did not request, nor did Hewitt volunteer, specific information regarding the duration of his tour in the military.

 Hewitt received a sufficiently high score on the examination to be placed on a list of eligibles for appointment as a Sanitation Man. Thereafter, in June 1973, a vacancy arose in the Department of Sanitation and Hewitt was "certified" by the CSC for "appointment" as a probationary Sanitation Man.

 In the interim, Hewitt had taken and passed a competitive civil service examination for employment as a "Custodial Assistant" with the Department of Social Services. He began serving in that capacity May 18, 1970.

 On July 6, 1973, as a condition precedent to his appointment as a Sanitation Man, Hewitt executed a form entitled "Terms and Conditions of Certification and Appointment" in which he acknowledged his understanding that his certification and appointment were subject to a subsequent investigation of his qualifications, including those set forth in the advertisement of the examination; failure to satisfy any of the qualifications, it was explained, would result in the revocation of certification and appointment. That form is a necessary counterpart of the CSC's practice of postponing its investigation of a candidate's basic qualifications, such as age and education, until after the candidate's actual appointment.

 Defendants state, and Hewitt does not dispute, that it would be an administrative impossibility to screen properly all applicants prior to testing, certification or even ultimate appointment, without significant delays in the appointment process. Rather than subjecting the city agency, which is in need of an employee, and the potential civil servant, who is typically in need of employment, to the delay of an often extended investigation, the CSC has opted for a policy of appointment subject to subsequent investigation.

 Two weeks after executing the "Terms and Conditions of Certification and Appointment" form, Hewitt resigned from his position as a Custodial Assistant to accept appointment as a Sanitation Man. Hewitt satisfactorily completed a required six-months' "probationary" period and on January 22, 1974 became a "permanent" employee by operation of Section 4.5(a)(3) of the New York Code of Rules and Regulations, Civil Service.

 Twenty months after attaining permanent employee status, by notice dated September 2, 1975, Hewitt was advised that he had been found "not qualified" for his position by reason of being "over age on date of written test." He was further advised that his department had been requested to terminate his employment and that the "decision" could "be appealed in writing to the [CSC] * * * within thirty (30) days * * *."

 Three weeks later, on September 23, 1975, Hewitt filed, through counsel, a 1-1/2-page written appeal which recounted the circumstances of Hewitt's appointment and asserted that his summary dismissal, "without stated charges and ...


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