pre-deprivation hearing exists with respect to termination as
well as with respect to a demotion in civil service grade.
Sanni v. New York State Dep't of Mental Health, 2000 WL 194681
*10 (E.D.N.Y. February 15, 2000).
Under New York law, the rights conferred by Section 75 are not
absolute. Other sections of the Civil Service Law limit the job
security conferred by Section 75. For example, Section 50 of the
Civil Service Law allows for the termination of employees upon
an investigation revealing, inter alia, illegality or
substantial irregularity in the initial appointment. N.Y.Civ.
Serv.L § 50(h). Additionally, rights granted by Section 75 are
subject to modification and/or waiver by the terms of a
collective bargaining agreement. Romano v. Canuteson,
11 F.3d 1140, 1141 (2d Cir. 1993); see, e.g., Grippo v. Martin,
257 A.D.2d 952, 686 N.Y.S.2d 118, 119 (3d Dep't 1999); Apuzzo v.
County of Ulster, 98 A.D.2d 869, 871, 470 N.Y.S.2d 814, 816 (3d
Dep't 1983), aff'd, 62 N.Y.2d 960, 962, 479 N.Y.S.2d 191, 192,
468 N.E.2d 29 (1984).
Thus, in determining the scope of an alleged property right,
the court is not limited to consideration of only Section 75,
but also to the totality of the laws and agreements governing
the terms of employment between a plaintiff and his public
employer. It is only upon this broad consideration that the
court can determine the scope of the employee's property right
and decide whether or not there is a legitimate claim of
entitlement to the particular right alleged to have been
II. Disposition of the Motion
A. Documents Considered
At the outset, the court makes clear the documents considered
in making the determination herein. While this is a motion
directed to the pleadings, it is appropriate, as noted above, to
consider certain other documents of which plaintiff had notice
"and which were integral [his] claim . . . even though those
documents were not incorporated into the complaint by
reference." Cortec, 949 F.2d at 48. Here, those documents are
the collective bargaining agreement and the arbitrator's award.
Neither party can complain of the court's consideration of these
documents since all have relied upon them in their motion
papers. For example, Plaintiff relies on the CBA to support the
characterization of his PMM-I position as permanent and not
probationary. Defendants rely on the CBA in support of the
argument that Plaintiffs property right to continued employment
is not as broad as claimed in the complaint.
B. Plaintiff Does Not Possess the Property Right Alleged
Upon consideration of all materials properly before this court
and construction of all facts in favor of Plaintiff, the court
holds that while Plaintiff possess certain property rights to
continued employment with the DPW, he does not possess the
particular right that forms the basis of this lawsuit. A right
that, if recognized, would contravene the terms of the CBA.
Plaintiff here claims that he was deprived of his
constitutionally protected right to retain his position in the
absence of a finding of incompetence or misconduct after notice
and an opportunity to be heard. Were this a claim of termination
or demotion that involved only Section 75, Plaintiff would
clearly state a claim upon which relief could be granted — it is
undisputed that Plaintiff was demoted without a Section 75
hearing and no provision of the CBA alters that right in most
factual settings. Under the circumstances here,
however, the contours of Plaintiffs proper ty right — the right
to which he can argue, "legitimate claim of entitlement" — are
drawn not by reference to Section 75 alone, they must
incorporate the terms of the CBA that apply to the factual
situation at hand.
Here, Plaintiff was demoted because his appointment was found
to have been made in violation of the CBA. When both Section 75
and the CBA are considered together, Plaintiffs property right
to continued employment (as granted by Section 75) is
necessarily limited by the seniority terms of the CBA. Indeed,
New York state law, which is the source of Plaintiffs rights, so
To illustrate, in Apuzzo v. County of Ulster, 98 A.D.2d 869,
470 N.Y.S.2d 814 (3d Dep't 1983) the Appellate Division of the
Third Department held that an arbitrator had properly removed an
employee from his position in favor of more senior employee
where the removed employee's appointment violated the seniority
provision of the relevant collective bargaining agreement. The
court rejected the notion that Section 75 of the Civil Service
Law prohibited the removal of the less senior employee on the
ground that Section 75 was modified and restricted by the union
agreement. Apuzzo, 98 A.D.2d at 871, 470 N.Y.S.2d at 816.
The New York Court of Appeals agreed that Section 75 was no
bar to the removal of the employee in Apuzzo because the
failure to follow the seniority provision was a "substantial
irregularity" within the meaning of Section 50 of the Civil
Service Law allowing for immediate removal. Apuzzo, 62 N.Y.2d 960,
962, 479 N.Y.S.2d 191, 192, 468 N.E.2d 29 (1984).
Plaintiffs property right to continued employment as a PMM-II
is governed by Section 75, as limited by the terms of the CBA.
Accordingly, Plaintiff can claim no property right that
contravenes the CBA. Because the right sought to be protected
here is a right finding no support in the CBA, it is not a right
to which Plaintiff had a "legitimate claim of entitlement" and
therefore, not a property right upon which a Section 1983 claim
can be sustained. Accordingly, the court must dismiss Plaintiffs
claims pursuant to Section 1983.
III. Remaining Claims
Having dismissed Plaintiffs Section 1983 claims, the only
claims remaining are claims brought pursuant to New York State
law. The court declines to exercise its discretion to entertain
such claims. The state law claims are, accordingly, dismissed
For the foregoing reasons, Defendants' motions to dismiss are
granted in their entirety. The Clerk of the Court is directed to
close this case.