This decision has been referenced in a table in the New York Supplement.
Jerold E. Levine, Valley Stream, attorney for the plaintiff.
NYC Dept. of Citiwide Admin., Corporation Counsel, New York, attorney for the defendant.
ALEXANDER W. HUNTER JR., J.
Two separate motions were filed by the parties in this action. Both motions are decided herein.
The application by petitioner for an order pursuant to Article 78 of the CPLR, annulling and remanding respondents' determination disqualifying petitioner from employment as a New York City Police Department (" NYPD" ) police officer, and enjoining respondents from disqualifying petitioner from future police officer employment upon any bases violative of petitioner's right to freedom of religious belief, is denied with costs and disbursements to respondents. The application by petitioner for an order granting leave to maintain the instant proceeding with a " Doe" caption, is denied.
Petitioner commenced the instant proceeding with an anonymous " Doe" caption without leave of court. Subsequently, petitioner's counsel contacted respondents' counsel privately and notified them of petitioner's real name and other identifying data. After commencing the instant proceeding, petitioner's counsel spoke to several press outlets about the instant proceeding.
In 2009, petitioner applied for appointment as an NYPD cadet under exam number 2210. As part of petitioner's employment investigation, he was directed to appear for a pre-appointment psychological interview. In the candidate psychological disqualification summary dated June 3, 2009, an NYPD psychologist found that petitioner was psychologically unsuitable for appointment as an NYPD cadet due to a combination of factors including: (1) depression because psychological testing suggested the presence of depressive feeling and social withdrawal; (2) bias because petitioner answered in the affirmative to the question " Do you think that homosexuals should be locked up?" and stated that he believed that homosexual people were criminals and should be incarcerated to keep them from committing any more crimes; and (3) poor work history because petitioner dropped out of high school, took two years to complete his GED, and had never even held a part-time job. (Respondents' exhibit 1).
In 2010, petitioner passed civil service exam number 8050. Petitioner was directed to appear for a pre-employment psychological interview. The NYPD provides police officer candidates with a new and individual evaluation with a different psychologist for each exam. In the candidate psychological disqualification summary dated April 8, 2010, another NYPD psychologist found that petitioner failed to meet the requirements to be considered psychologically suitable for police officer work due to his bias and poor stress tolerance. The NYPD psychologist noted that petitioner claimed to no longer believe that " homosexual behavior is a grounds for arrest. However, there is not adequate evidence that he longer has such a bias. This bias serves as a significant liability should he be unable to perform his duties when working with homosexuals or if a fellow officer or supervisor would identify as homosexual." Moreover, petitioner's poor stress tolerance and past depression indicated a vulnerability that was outside the criteria for police officer work. (Respondents' exhibit 5).
On July 8, 2010, upon review of petitioner's entire Psychological Services record, including an opinion letter from a privately retained psychiatrist, an NYPD Department Supervising Psychologist recommended that the interviewing psychologist's decision to reject petitioner as psychologically unsuited for the police officer position be sustained. Accordingly, by letter dated July 19, 2010, petitioner was notified that he had not met the requirements for the position of police officer and was thereby disqualified under exam number 8050 (" disqualification" ). The disqualification letter stated that " [t]his determination was based on the evaluation of your psychological tests and interview which found personality characteristics incompatible with the unique demands and stress of employment as a New York City Police Officer." (Respondents' exhibit 8).
Petitioner appealed his disqualification to the New York City Civil Service Commission (" CSC" ). As part of the appeal process, petitioner's entire Psychological Services record, which included reports from two privately retained mental health professionals, was reviewed twice. Each time, it was reviewed first by an independent appeals consultant and then by the Director of Psychological Services. By letters dated June 29, 2011 and September 22, 2011, the Director of Psychological Services recommended to the CSC that petitioner's disqualification for psychological reasons be sustained and that he be marked not qualified. Petitioner was represented by counsel throughout the appeal process and had an opportunity to submit a memorandum of law and affidavit in support of his appeal.
Several changed circumstances were noted throughout petitioner's appeal. Petitioner no longer claimed that he believed homosexuals should be incarcerated, although he maintained that homosexuality was against his Islamic religious belief. Petitioner had also made progress by successfully working part-time as a pizza delivery person and getting married. In addition, petitioner is a member of the Auxiliary Police.
By Notice of CSC Action dated February 10, 2012, the CSC affirmed petitioner's disqualification (the " final determination" ). The final determination stated that upon careful review of " the results of the clinical testing of [petitioner], the report of the Police Department interviewers, the documents submitted by [petitioner] and the report of the Police Department consultant," there was a rational basis for the conclusion that petitioner was not suited for a police officer position and that the record did not raise any issue requiring a hearing. (Respondents' exhibit 20).
This court first turns to the issue of whether petitioner may proceed under an anonymous caption with a " Doe" pseudonym. The parties do not dispute that petitioner did not follow the proper procedure under the Rules of the Supreme Court, Civil Branch, New York County to commence an action claimed to be confidential with an anonymous caption. Petitioner should have named the real parties in the caption of an order to show cause with a temporary restraining order seeking an anonymous caption and a sealing order. Then the papers should have been submitted to the Ex Parte Office for determination of the temporary restraining order by an Ex Parte Justice before filing. This allows a matter to ...