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April 11, 1979

Patrick J. WOODS, an employee of the New York State Department of Labor, Plaintiff,
The STATE of New York, the Department of Labor of the State of New York, Philip Ross, Industrial Commissioner, State of New York, Victor Bahou, President of the Civil Service Commission, State of New York, the Civil Service Commission of the State of New York, Louis Sitkin, Appeal Board Chairman, Department of Labor, State of New York, Irving Trow, Chief Administrative Law Judge, Department of Labor, State of New York, David Weisenberg, Senior Administrative Law Judge, Department of Labor, State of New York, Irving Blachman, Senior Administrative Law Judge, Department of Labor, State of New York, Martin Rice, Senior Attorney, Department of Labor, State of New York, Jane Rubin, Manager of Local Office518, Department of Labor, State of New York, Joshua Williams, Manager of Local Office 590, Department of Labor, State of New York, Baldazzaro Abbruzo, Director of Personnel, Department of Labor, State of New York, Antonio Murphy, Assistant Personnel Director, Department of Labor, State of New York, Nathan Vogel, Personnel Administrator, Department of Labor, State of New York, Defendants

The opinion of the court was delivered by: WEINFELD

Plaintiff Patrick Woods, an Unemployment Insurance Referee (now called "Administrative Law Judge"), commenced this action against the State of New York, the Department of Labor and Civil Service Commission of New York, and various state officials, charging that an unsatisfactory work performance rating issued to him for 1977 was the result of arbitrary and discriminatory conduct depriving him of constitutional rights under the Fourteenth Amendment. Causes of action are asserted under 42 U.S.C., sections 1981 and 1983, and the New York Constitution; the Court has jurisdiction over the former claims pursuant to 28 U.S.C., section 1343(3) and pendent jurisdiction over the latter. The defendants move for summary judgment under Rule 56 of the Federal Rules of Civil Procedure *fn1" or, in the alternative, that the Court abstain from taking jurisdiction.


 The affidavits and exhibits submitted to the Court establish the following facts: *fn2" Plaintiff was appointed as an Unemployment Referee from a civil service list and started working for the New York Department of Labor in December 1974. He participated with four attorneys appointed to the Appeal Board staff in a month-long training program arranged by Irving Trow, then an Associate Attorney for the Unemployment Insurance Appeal Board. The program consisted of attending lectures, listening to recorded training tapes, reading selected court and Appeal Board cases, and participating in discussions; plaintiff received procedural instruction from Senior Referees and sat in on hearings conducted by experienced Referees. This training was at least as comprehensive as the informal instruction normally afforded new Referees and was substantially similar to the more formal sessions set up for the large group of new Referees appointed in January 1977. *fn3"

 After the initial training period, Woods functioned as a Referee conducting hearings to determine whether claimants were entitled to unemployment benefits without any unusual degree of supervision. The Department, however, received complaints from parties and co-workers regarding plaintiff's work performance. For example, in 1976 various persons in letters or written appeals from plaintiff's decisions complained of "the referee's bias against (parties or their representatives) and his abusive treatment of them," "the intimidating way in which Mr. Woods presided," and a tendency to go "far astray in the course of this hearing and . . . to show little or no regard for the professionalism and efficiency of the Employment Service and its personnel." *fn4" Not only was plaintiff's conduct of hearings objected to by parties who appeared before him, but the quality of his opinions was called into question by his superiors. Trow, promoted to Chief Referee, wrote to Woods on October 25, 1976, criticizing three decisions for poor judgment, injudicious style and tone, and miscitation of authority: "The Chairman of the Appeal Board finds this work unsatisfactory and I concur in this judgment. Unless an improvement is shown in the quality of your work, a satisfactory rating will not be possible when the time comes for your annual rating." *fn5"

 The situation was such that Trow in November 1976 decided that Irving Blachman, a Senior Referee, should review all of plaintiff's decisions before publication and later advised plaintiff that, although he received a satisfactory rating for 1976, his work performance during 1977 would be observed closely to determine whether he would receive the same rating for that year. *fn6" During 1977 Blachman wrote over 100 notes and memoranda to Woods, pointing to problems in his written work, and on June 1, 1977, he summarized the grounds upon which he and another Senior Referee found Woods' work deficient: failure to use all of the available evidence in making findings and reaching judgments, unnecessary and injudicious findings against parties, application of incorrect rules and criteria, findings inconsistent with Appeal Board precedent, and unnecessary advice to claimants. In a second memorandum, dated October 6, Blachman recited the continued flaws in Woods' opinions and his "hostile and uncompromising" reactions to constructive criticism and concluded that the work performance after June 1, 1977 remained "unsatisfactory." *fn7" These reviews, comments and criticisms were within the duties and authority of the reviewing officers.

 Section 140 of New York's Civil Service Law requires all departmental agencies of the New York state government to keep and report "performance ratings" of their employees, that is, "an annual summary judgment of the value of an employee's performance and conduct prepared by his supervisors for the purpose of determining the employee's eligibility for salary increment and promotion. Such summary judgment shall be recorded only as "satisfactory' or "unsatisfactory.' " *fn8" Pursuant to this requirement, Blachman in January 1978 filed a "Report of Unsatisfactory Performance": "Mr. Woods has been doing work below an acceptable level and has been unwilling to accept constructive criticism." *fn9" Under the Rules of the Civil Service Commission and guidelines promulgated by the Department of Labor, *fn10" plaintiff had the right to appeal his unsatisfactory rating to a "Performance Rating Board," which would conduct an informal hearing "to determine whether or not the rating for this employee will remain unsatisfactory; to afford each party an adequate opportunity to present his case." *fn11" Plaintiff exercised his right to appeal, and on March 8, 1978, the Board conducted its hearing, with plaintiff and his counsel present.

 The Board consisted of three impartial officials of the Department. *fn12" In the course of its five-hour hearing, Blachman explained the basis for the unsatisfactory rating and submitted forty-eight of Woods' decisions; although the Board did not allow plaintiff to defend each decision orally during the hearing, plaintiff did present his version of events, questioned Blachman at length concerning the rating, and submitted a fifteen-page written answer to the specific criticisms. *fn13" Upon a consideration of all the evidence, the Board confirmed the rating. Woods then appealed the result to the Industrial Commissioner of New York and to the State's Civil Service Commission. The former affirmed the determination on April 3, based upon a review of the entire record; *fn14" and the latter agreed with the Board's conclusion on August 21, after an interview of the plaintiff (together with Blachman, Trow, and plaintiff's attorney) by one of the Commission's investigators, who found the rating well justified and the charges of ethnic discrimination wholly unsubstantiated. *fn15"

 Plaintiff thereupon brought two lawsuits one in state court to overturn the unsatisfactory rating and to compel the Commission to establish minimum procedural standards for such hearings, and the instant suit in federal court, alleging violations of the Fourteenth Amendment and New York law. Although there is much to the defendants' position that this Court abstain from exercising jurisdiction, since the state proceeding presents many of the same issues, the Court's word-by-word review of the extensive record and its consideration of the arguments of the parties convinces it that the matter should be disposed of on the merits. *fn16" Accordingly, defendants' motion for summary judgment is granted, and the Court dismisses the complaint against all defendants. *fn17"


 Plaintiff's claims can be distilled to two charges: that he was the victim of invidious discrimination depriving him of equal protection of the laws and that the procedures afforded for him to challenge this discrimination were unfair, fraught with bias and prejudice, and contrary to the mandates of due process. Yet the documents and particularized affidavits in the case clearly negate these claims; they foreclose any contention of the existence of a genuine issue of material fact of invidious discrimination or of denial of procedural due process.


 The complaint alleges that Woods was discouraged from applying for the job of Referee, given inadequate training compared with "all other referees who have joined the agency," and treated in an unfair or harassing manner by his supervisors. While it is true that the regulations of the Civil Service Commission require "so far as practicable that rating standards (be) applied uniformly within the agency," *fn18" there is no credible evidence that plaintiff was treated differently in any respect or that the standard applied to him was stricter than that applied to other Referees. For example, his own affidavit admits to substantial training opportunities "listening to recorded cassettes of meetings conducted several years prior, reading a voluminous set of dog-eared yellowed notes . . . reading some cases from a (syllabus) prepared in prior years, brief contact with Mr. Trow and Mr. Tinaher . . . and discussions with the attorneys who were being trained for lower level positions" undermining its assertion that he was given cursory and meaningless instruction; nowhere does plaintiff rebut defendants' affidavits describing the analogous education of other Referees.

 Similarly unsubstantiated are Woods' conclusory allegations that his supervisors retaliated against him for filing a human rights complaint and harassed or conspired against him because he was an Irish nonpolitical appointee. *fn19" To the contrary, the copious notes and memoranda written by the individual defendants fully refute his unsupported assertions. The record establishes that the defendants exercised great patience and reasonableness, and it is Woods himself who often appears preemptory and petulant. Plaintiff's supervisors were, if anything, lenient in giving him a satisfactory rating for 1976, despite numerous complaints, and working with him to try to improve the quality of his decisions.

 Moreover, any discrimination against plaintiff on his asserted grounds of "ethnicity, nepotism, and political influence" is not the sort of "racial discrimination " prohibited by section 1981. *fn20" Nor would any "distinctive" treatment asserted by plaintiff be actionable under section 1983 as an "invidious discrimination," since plaintiff asserts no fundamental constitutional interest, nor is he a member of a disadvantaged group for which the Fourteenth Amendment carries special solicitude, and since the supervisors' treatment appears rational at every point. *fn21" Thus, in the light of myriad complaints about his work, his own recalcitrant ...

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