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FURST v. NEW YORK CITY TRANSIT AUTH.

April 1, 1986

BARRY FURST, Plaintiff
v.
NEW YORK CITY TRANSIT AUTHORITY, Defendant



The opinion of the court was delivered by: GLASSER

MEMORANDUM AND ORDER

 GLASSER, United States District Judge:

 Shortly after he pled guilty to second degree attempted manslaughter in Nassau County Court, plaintiff Barry Furst was dismissed by his employer, defendant New York City Transit Authority (NYCTA). Following his dismissal, the plaintiff instituted this action for reinstatement under 42 U.S.C. § 1983 and now moves for summary judgment against the NYCTA contending that he lost his job pursuant to the defendant's unconstitutional policy of dismissing all employees convicted of committing felonies. The defendant cross-moves for summary judgment asserting that no such policy exists. For the reasons stated herein, the plaintiff's motion is granted and the defendant's motion is denied.

 Background

 The plaintiff was hired as a bus driver by the defendant on or about February 15, 1965. The plaintiff held that position for over fifteen years until his promotion to the position of surface line dispatcher on December 20, 1980. During his tenure with the defendant, the plaintiff received three letters of commendation and was never the subject of internal disciplinary proceedings.

 On August 27, 1981, the plaintiff's son Roger handed the plaintiff a licensed gun and during the exchange, the gun discharged, killing Roger. On that date, the plaintiff was arrested and charged with manslaughter in the second degree for the death of Roger. *fn1"

 The defendant suspended the plaintiff without pay on September 4, 1981, charging that the plaintiff had committed a crime in violation of Rules 11(f) and 35 of the Rules and Regulations Governing Employees Engaged in the Operation of the New York City Transit System (NYCTA Rules).

 Rule 11(f) provides:

 
Employees must not violate any criminal law, commit any illegal act, or be a party to any immoral or indecent conduct, whether on or off duty.

 Rule 35 provides:

 
Disobedience of these rules and regulations or of instructions . . . shall be reason for charges of misconduct and incompetence and such misconduct or incompetence will be subject to penalty of dismissal, demotion, suspension or other such penalty as the Authority shall impose.

 On October 15, 1981, Richard Bernard, General Counsel to the defendant, ordered the plaintiff, by letter, to appear at a hearing to answer the charges contained in the suspension order of September 4, 1981. Bernard wrote that if the charges were sustained, the plaintiff would be dismissed, demoted or otherwise disciplined.

 After pleading guilty to the lesser crime of attempted manslaughter in the second degree on October 16, 1981, the plaintiff was sentenced to the Nassau County Correctional Center for one year, *fn2" and after 67 days of incarceration was placed in a work release program. The plaintiff has not been accused of any criminal activity since his release.

 On May 13, 1982, a hearing was held before Referee Daniel Gutman, pursuant to N.Y. Civil Service Law § 75(2) (McKinney 1983), to determine the validity of the charges against the plaintiff contained in the suspension order of September 4, 1981.

 Section 75(2) provides:

 
2. Procedure. A person against whom removal or other disciplinary action is proposed shall have written notice thereof and of the reasons therefor, shall be furnished a copy of the charges preferred against him and shall be allowed at least eight days for answering the same in writing. The hearing upon such charges shall be held by the officer or body having the power to remove the person against whom such charges are preferred, or by a deputy or other person designated by such officer or body in writing for that purpose. In case a deputy or other person is so designated, he shall, for the purpose of such hearing, be vested with all the powers of such officer or body and shall make a record of such hearing which shall, with his recommendations, be referred to such officer or body for review and decision. The person or persons holding such hearing shall, upon the request of the person against whom charges are preferred, permit him to be represented by counsel, or by a representative of a recognized or certified employee organization, and shall allow him to summon witnesses in his behalf. The burden of proving incompetency or misconduct shall be upon the person alleging the same. Compliance with technical rules of evidence shall not be required.

 Under § 75(2), Referee Gutman was to determine the validity of the charges against the plaintiff and to make recommendations as to the plaintiff's future employment status to the President of the NYCTA.

 Referee Gutman made an independent finding that the plaintiff committed a criminal act in violation of Rules 11(f) and 35 of the NYCTA Rules and recommended the discharge of the plaintiff stating:

 
Under the circumstances of the case, we see no basis for the mitigation of penalty for this tragic event. The policy of the Authority where employees are convicted of a felony, requires discharge (emphasis added).

 In making his recommendation, Referee Gutman did not indicate that he considered any factor other than the plaintiff's crime in reaching his decision. *fn3"

 In a deposition, William I. Buchanan, the NYCTA's Chief Labor Relations Assistant, who at the time was responsible for the management of the NYCTA's disciplinary section, defined the "policy" of the NYCTA to which Referee Gutman had referred in his decision. The deposition reads in part, as follows:

 
Q. . . . It is the findings and recommendations of the Hearing Referee Gutman. Take a look at that, please.
 
A. Yes.
 
Q. Mr. Buchanan, if I may direct your attention to page 3 under the title recommendation, referring to the last sentence of the third paragraph which states, "The policy of the Authority where employees are convicted of a felony requires discharge."
 
Do you see that line?
 
A. Yes.
 
Q. Is that a correct ...

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