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FLEISCHMAN v. GRINKER

August 5, 1991

PAUL FLEISCHMAN, PLAINTIFF,
v.
WILLIAM GRINKER, COMMISSIONER OF THE NEW YORK CITY HUMAN RESOURCES ADMINISTRATION, NEW YORK CITY HUMAN RESOURCES ADMINISTRATION, HAROLD HERKOMMER, EXECUTIVE DIRECTOR OF THE NEW YORK CITY EMPLOYEES' RETIREMENT SYSTEM, AND THE NEW YORK CITY EMPLOYEES' RETIREMENT SYSTEM, DEFENDANTS.



The opinion of the court was delivered by: Leisure, District Judge:

OPINION AND ORDER

This is an action brought pursuant to 42 U.S.C. § 1983, alleging violations of the United States and New York State Constitutions, and seeking various forms of declaratory and injunctive relief. The parties have now cross-moved for summary judgment. For the reasons set forth below, defendants' motion for summary judgment is granted and plaintiff's cross-motion for summary judgment is denied.

Background

The facts giving rise to this action are largely undisputed. Plaintiff Paul Fleischman was employed as a caseworker with defendant New York City Human Resources Administration ("NYCHRA") beginning in 1967, and in 1968 plaintiff became a member of defendant New York City Employees' Retirement System ("NYCERS"), choosing to enroll in the Career Pension Plan ("Plan A"). In December 1983, plaintiff was confronted with charges that he had made unwanted sexual advances while performing his official duties. The three instances charged involved unrelated females, one a client,*fn1 one a co-worker,*fn2 and one a client's daughter,*fn3 and all took place in November 1983. The NYCHRA Inspector General's office thereafter began an investigation.

The investigation included, inter alia, interviews with the women involved, a survey of plaintiff's other clients, and an interview in August 1984 with plaintiff. Following the completion of this investigation, the investigator drafted formal charges recommending plaintiff's dismissal, and plaintiff was served with the charges in September 1984. During this time, plaintiff continued to receive full pay from NYCHRA.

Pursuant to New York State Civil Service Law and a collective bargaining agreement, a "Step I" hearing was held on April 15, 1985, before Conference Officer Paul D. Shur. Plaintiff was represented by his union representative, Henry Coto, of the Social Services Employees' Union. Plaintiff and Mr. Coto spoke at the hearing, and, on April 16, 1985, Conference Officer Shur issued a report finding the charges substantiated, and recommending that plaintiff be dismissed.

Plaintiff, with his union's consent, thereafter waived his right to a hearing under New York State Civil Service Law § 75, and elected to follow the collective bargaining grievance procedure. Pursuant to this procedure, a "Step II" hearing was held on May 23, 1985, before Hearing Officer Peter Zito of the NYCHRA Office of Labor Relations. Plaintiff was present and represented by a union representative. Plaintiff denied all charges, except that he admitted that he was guilty of a mild indiscretion with respect to Specification II.

In a report dated June 10, 1985, approved by John R. Lewis, Assistant Administrator for the NYCHRA Office of Labor Relations, plaintiff's grievance was denied and the penalty of dismissal upheld. The report stated that a copy of the determination would be forwarded to the Office of Personnel Services for appropriate action. The collective bargaining agreement applicable to plaintiff provides that the agency head has the power to impose discipline, including dismissal, at the completion of the Step II process.

On June 17, 1985, plaintiff and plaintiff's union appealed the denial of his grievance, and, on July 8, 1985, NYCHRA Administrator/Commissioner George Gross approved the Step II determination and authorized plaintiff's dismissal. By letter dated July 15, 1985, plaintiff was informed of his dismissal "effective at the close of business today."

Plaintiff thereafter appealed his dismissal in a "Step III" hearing, at which plaintiff's union representative and the NYCHRA investigator spoke. The Step III hearing officer, in a report dated August 21, 1985, found that the procedures used by NYCHRA in imposing the penalty of dismissal were appropriate, and concluded that dismissal was warranted. Plaintiff and his union then requested impartial arbitration of plaintiff's grievance. The arbitrator heard testimony from plaintiff and from the investigator, as well as other evidence, and, in a decision dated July 18, 1986, determined that plaintiff had been dismissed in accordance with the collective bargaining agreement.

In early 1987, plaintiff submitted an application to NYCERS for pension benefits. On April 3, 1987, plaintiff's application was denied, and, in a letter received by NYCERS on September 10, 1987, plaintiff requested clarification of this decision. On September 11, 1987, NYCERS responded by letter, stating that under the applicable law an employee must vest his pension rights under Plan B prior to his leaving city employment.*fn4 Because plaintiff had not done so, he was ineligible for vesting, although he could obtain a refund of his accumulated contributions.

In March 1989, plaintiff commenced this § 1983 action, challenging the denial of his pension application as a violation of his due process rights under the United States Constitution, and asserting pendent claims alleging violations of the New York State Constitution.*fn5 Specifically, plaintiff claims that the automatic denial of his pension, without a separate hearing or formal determination addressing that issue, and without his previously having been personally informed of the effect of his dismissal on his pension eligibility, constituted a violation of his constitutional rights. Defendants have moved for summary judgment, however, arguing that plaintiff's § 1983 claim accrued upon his dismissal on July 15, 1985, and thus this action — not commenced until three years ...


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