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KLOTSCHE v. CITY OF NEW YORK

November 18, 1985

ROBERT KLOTSCHE and ROBIN ACOSTA, Plaintiffs,
v.
CITY OF NEW YORK, Defendant



The opinion of the court was delivered by: MOTLEY

Motley, Ch. J.

Plaintiffs Robert Klotsche and Robin Acosta have commenced this action challenging the legality of section 434a-8.0 of the New York City Administrative Code. Section 434A-8.0 establishes a maximum hiring age of twenty-nine years for New York City police officers. Plaintiffs contend that this policy violates the Equal Protection Clause of the federal Constitution because it is not rationally related to any legitimate state purpose. Plaintiffs also assert that the hiring age policy constitutes a violation of the New York Executive Law's proscription against age discrimination in employment. The parties have cross-moved for summary judgment. For the following reasons, the defendant's motions for summary judgment are granted. Plaintiff's motion is denied.

 FACTS

 Plaintiffs took and passed the written civil service examination (Examination #1175) for appointment to the New York City Police Department. Plaintiffs both had reached their twenty-ninth birthday prior to filing their application for this examination. Plaintiff Klotsche was disqualified by the Department of Personnel of the City of New York ["Department of Personnel"] pursuant to section 434a-8.0 of the New York City Administrative Code. Section 434a-8.0(a) provides that "[o]nly persons shall be appointed patrolmen who shall at the date of the filing of an application for civil service examination less than 29 years of age."

 Plaintiff Acosta was disqualified by the Department of Personnel because he failed the psychological examination that is a prerequisite of appointment as a police officer. See Exhibit "1", Affidavit of Joel Grobtuch. Robin Acosta appealed his psychological disqualification to the New York City Civil Service Commission, but the appeal was dismissed for failure to prosecute.

 Mr. Klotsche filed a discrimination complaint against New York City with the New York State Division of Human Rights, again alleging an age discrimination claim. The State Division found probable cause to believe that there was discrimination by the defendant.

 DISCUSSION

 PLAINTIFF ROBIN ACOSTA

 It is undisputed by the parties that plaintiff Acosta was rejected for appointment as a patrol officer because his psychological tests and interviews indicated "the presence of personality traits incompatible with the demands and stresses of employment as a New York City Police Officer." (Affidavit of Joel Grobtuch, Exhibit "1".) Although plaintiff Acosta argues that he also was rejected because of his age, it is patently obvious that even if the age limitation did not exist, he still would not be appointed as a police officer. Accordingly, defendant's motion for summary judgment as to plaintiff Acosta is granted.

 NEW YORK EXECUTIVE LAW

 It also is undisputed that plaintiff Klotsche has filed a discrimination claim with the State Division of Human Rights, charging defendant with age discrimination. New York Executive Law section 297, subsection 9 provides that "[a]ny person claiming to be agrrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages and such other remedies as may be appropriate, unless such person had filed a complaint hereunder or with any local commission on human rights." Thus, under section 297 there is a statutory election of remedies which has been enforced by the courts. Collins v. Manufacturers Hanover Trust Co., 542 F. Supp. 663, 672-73 (S.D.N.Y. 1982); Marin v. New York State Dep't of Labor, 512 F. Supp. 353, 355 (S.D.N.Y. 1981). Even if Klotsche were to withdraw his complaint before the State Human Rights Division, he could not maintain this action unless it was withdrawn for administrative convenience. Emil v. Dewey, 49 N.Y.2d 968, 428 N.Y.S.2d 887, 406 N.E.2d 744 (1980). Accordingly, pursuant to the statutory requirements set forth in Executive Law section 297, this court must grant defendant's motion for summary judgment as to plaintiff Klotsche's state law claims.

 Additionally, even if Klotsche could maintain his state law cause of action after filing his complaint with the State Division of Human Rights, his pendent state law claim would still be dismissed. Under the current case law of New York, the 29 year age limitation does not violate the, provisions of the Human Rights Law, N.Y. Executive Law section 296, section 3-a. See Knapp v. Monroe County Civil Service Commission, 77 A.D.2d 817, 437 N.Y.S.2d 136 (4th Dep't 1980).

 EQUAL PROTECTION CLAIMS

 Both parties have moved for summary judgment on the equal protection claim. Plaintiffs contend that the age limitation provision in the Administrative Code should be reviewed by a "flexible equal protection standard" using a "heightened" level of scrutiny as advocated by Justice Marshall in his dissent in Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 325, 49 L. Ed. 2d 520, 96 S. Ct. 2562 (1976). In addition, plaintiff argues that even if the "rational basis standard" is applied, as defendant contends, the provision should be declared in violation of the Equal Protection Clause of the Fourteenth Amendment. The City of New York, relying on prior decisions, ...


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