UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
January 7, 1983
SAM HILF, Plaintiff, against NEW YORK CITY HOUSING AUTHORITY, Defendant.
The opinion of the court was delivered by: SWEET
Plaintiff Sam Hilf ("Hilf"), employed by defendant New York City Housing Authority (the "Authority") as Assistant Architect, brought this action pursuant to 42 U.S.C. § 1983 seeking monetary and injunctive relief. Hilf has moved for a preliminary injunction pursuant to Rule 65 Fed.R.Civ.P. enjoining the Authority from continuing his suspension without pay for more than thirty days. On December 3, 1982 a hearing on the preliminary injunction was held. For the reasons set forth below, the motion is granted.
Hilf was originally suspended on August 4, 1982. In a related case, Hilf v. New York City Housing Authority, 82 Civ. 6499 (S.D.N.Y. Oct. 13, 1982), this court found that at the time of the suspension, the Authority had not yet decided whether to initiate disability proceedings under section 72 of the N.Y.Civ.Serv.Law (McKinney 1973)
or disciplinary proceedings pursuant to section 75 of the N.Y.Civ.Serv.Law (McKinney 1973).
Because the Authority had not complied with the requirements of either section, the court held that Hilf was entitled to back pay and restoration to the payroll. Familiarity with the decision dated October 13, 1982 is assumed.
Because the Authority did not implement this court's order, Hilf filed a motion for contempt which was heard on October 27, 1982. By that time the Authority had decided to act pursuant to section 75 and had served Hilf with the requisite written charges on October 15. On October 27, the court denied the contempt motion on the condition that by October 29 the Authority pay Hilf his monthly salary from August 4 through October 15. The Authority complied.
As indicated above, the charges were served on Hilf on October 15, and as such, that date is treated as the suspension date for section 75 purposes. Hilf's disciplinary hearing, held during the past two months, ended on or about December 22.
Preliminary injunctive relief calls for a showing of irreparable harm and either likelihood of success on the merits or sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardship tipping decidedly toward the party requesting the preliminary relief. Jack Kahn Music v. Baldwin Piano & Organ, 604 F.2d 755 (2d Cir. 1979). I find that Hilf has met this standard.
Hilf argues that he should have been restored to the payroll on November 15 pursuant to section 75 and that he has been illegally suspended without pay. Hilf is likely to succeed on the merits of his case. Section 75(3) reads as follows:
Suspension pending determination of charges; penalties.
Pending the hearing and determination of charges of incompetency or misconduct, the officer or employee against whom such charges have been preferred may be suspended without pay for a period not exceeding thirty days.
Section 75(3) has consistently been interpreted to allow employees suspended for a period longer than thirty days to recover wages from the thirty-first day until final determination of the charges against him, even if he is not reinstated. Lewis v. New York City Transit Authority, 79 Civ. 139 (E.D.N.Y. 1979); see City of Cohoes v. Cohoes Police Benev. and Protective Ass'n, 63 A.D.2d 793, 404 N.Y.S.2d 763 (3d Dep't 1978); Burrison v. New York City Transit Authority, 60 A.D.2d 651, 400 N.Y.S.2d 364 (2d Dep't 1977); Gerber v. New York City Housing Authority, 42 N.Y.2d 162, 397 N.Y.S.2d 608, 366 N.E.2d 268 (1977); Maurer v. Cappelli, 42 A.D.2d 758, 346 N.Y.S.2d 154 (2d Dep't 1973); Amkraut v. Hults, 21 A.D.2d 260, 250 N.Y.S.2d 171 (1st Dep't), aff'd, 15 N.Y.2d 627, 255 N.Y.S.2d 672, 203 N.E.2d 923 (1964). Further, this right to recover wages continues until the final determination of the charges and imposition of penalty, if any, and not merely until the disciplinary hearing commences. Lewis, supra; Mason v. Perrotta, 41 A.D.2d 916, 343 N.Y.S.2d 748 (1st Dep't 1973).
The only exception to entitlement under section 75(3) is where the employee himself is responsible for a delay in the disciplinary proceedings and has engaged in dilatory tactics. Such an employee cannot be heard to complain of a loss in wages and may be considered to have abandoned his claim for pay during suspension. Lewis, supra; Gerber, supra. This exception does not require that the employee press for an expeditious hearing but should only apply where the employer shows that the employee has unreasonably delayed for the purpose of increasing the award of frustrating the administrative process. Lewis, supra; see Fusco v. Griffin, 67 A.D.2d 827, 413 N.Y.S.2d 75 (4th Dep't 1979); Yeampierre v. Gutman, 57 A.D.2d 898, 394 N.Y.S.2d 450 (2d Dep't 1977). The exception is "circumscribed in nature and should be limited to circumstances of gravity." Gerber, 42 N.Y.2d at 166, 367 N.Y.S.2d at 610. The exception has been applied in cases involving an attempt by an employee to postpone disciplinary proceedings until the disposition of parallel criminal charges, Shales v. City of Rochester, 91 Misc.2d 195, 397 N.Y.S.2d 566 (Sup.Ct., Monroe County 1977), and an attempt by an employe to evade personal service, Gerber, supra.
The Authority argues that Hilf falls within this exception, asserting that the hearing, originally scheduled for October 26, was adjourned on several occasions by Hilf's counsel, Richard Rosenthal ("Rosenthal"). At the evidentiary hearing held by this court on December 3, Rosenthal's testimony presented a credible version of the events in question. The Authority did not put on any witnesses at the hearing.
It is unnecessary to determine which version of the facts is correct because neither makes out the type of intentional delay required by the authorities cited above. Hilf did not engage in dilatory tactics; the alleged delays were of the kind that inhere in the legal process. The Authority has not demonstrated that Hilf deliberately attempted to impede resolution of his case, nor has there been evidence that the delay was unreasonable and calculated to increase the award or frustrate the administrative process. Thus the exception is inapplicable.
Hilf has been without income for close to three months, a period longer than the plaintiff in Lewis, supra, a case in which the Honorable Eugene H. Nickerson found irreparable harm. Judge Nickerson stated:
Plaintiff Lewis has however suffered irreparable harm by his lengthy suspension without pay. The purpose of § 75(3) was to protect the employee from having his income totally cut off pending resolution of the charge against him and to encourage the employer to proceed expeditiously. A suspended employee will often be reluctant to seek other employment, particularly if he has some form of tenure or pension rights.
Further, as Judge Nickerson pointed out, if the charges against Hilf are sustained, section 75(3) allows the imposition of a fine, additional suspension without pay, or removal, and restoration to the payroll does not burden the Authority so as to outweigh the harm incurred by Hilf.
For the foregoing reasons injunctive relief is appropriate. The Authority is enjoined from continuing to withhold Hilf's wages pending final determination of the charges as required by section 75. The Authority is further ordered to award Hilf accrued backpay from the thirty-first day of his suspension until the present. Pursuant to Rule 65(c) Fed.R.Civ.P., the preliminary injunction is conditioned on the posting of security by Hilf in the amount of $500.00, no submissions on the issue having been made by either party. Leave is granted to make further application with respect to the amount of the bond within ten (10) days of the filing of this opinion.
IT IS SO ORDERED.