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Cancel v. New York City Human Resources Administration/Department of Social Services

United States District Court, S.D. New York

October 31, 2014



P. KEVIN CASTEL, District Judge.

Plaintiff Frankie Cancel, proceeding pro se, brings this action against the New York City Human Resources Administration/Department of Social Services (the "HRA"), several of its employees, the City of New York, and former Mayor Michael Bloomberg. He alleges that the HRA rescinded an offer of employment as a Paralegal Aide based on his criminal record, in violation of New York State and City law, and depriving him of a constitutionally protected property interest in violation of procedural due process. The parties now cross-move for summary judgment.

As will be explained, Cancel cannot establish that he had a constitutionally protected right in the Paralegal Aide position. Though he claims he was orally promised a permanent position, New York law requires a civil service employee to serve a probationary period, and does not empower employees to vary or modify that requirement. Cancel could only have been lawfully offered a probationary position to which, under established precedent, there can be no constitutionally protected right. Thus, summary judgment is granted to the defendants on Cancel's procedural due process claim, and the Court declines to exercise supplemental jurisdiction over his remaining city and state law claims.


In 1992, at the age of nineteen, Cancel was convicted of first-degree manslaughter and sentenced to four to twelve years' imprisonment, and in 1997, while incarcerated, he was convicted of second-degree assault on a fellow inmate. (Jorgensen Decl. Ex. F.; Jorgensen Decl. Ex. B 41:8-42:5 ("Cancel Dep.").) While in prison, Cancel took a number of counseling and educational courses, becoming involved with the Alternatives to Violence Project and completing a paralegal training program. (Pl.'s 56.1 ¶¶ 3-7, 16; Pl.'s Exs. 25, 28.) He was released in September 2002, (Cancel Dep. 42:6-8), and has been gainfully employed since June 2003. (Pl.'s 56.1 ¶¶ 24-26; Jorgensen Decl. Ex. D.) He obtained an associate's degree in paralegal studies from Fiorello H. LaGuardia Community College of the City University of New York in 2005, and a bachelor's degree in legal studies from St. John's University in 2007. (Pl.'s 56.1 ¶¶ 17-19; Pl.'s Ex. 25.)

On February 23, 2008, Cancel, along with several hundred other applicants, took a civil service examination for the position of Paralegal Aide. (Pl.'s 56.1 ¶ 29.) He scored 95%, and was ranked 41 on the resulting civil service list. (Id.) On January 5, 2009, HRA sent him a letter informing him that his name had been certified for possible appointment, and instructing him to appear for a pre-selection hiring pool interview on January 15. (Defs.' 56.1 ¶ 6; Pl.'s 56.1 ¶¶ 30-31.) In the pre-interview paperwork accompanying the letter, Cancel disclosed that "[i]n 1992 and 1997, during [his] late teens, [he] was convicted of a felony, " with the words "and 1997" appearing as an above-the-line insertion. (Jorgensen Decl. Ex. D.)

Cancel and the defendants' accounts of the January 15, 2009 interview differ. Cancel maintains that his interviewers appointed him to a Paralegal Aide position in the Child Support Litigation and Program Counselling Unit ("CSLPCU"), with no probationary period and subject only to the completion of "ministerial tasks." (Pl.'s 56.1 ¶¶ 46-47.) He also claims that he signed a form accepting the employment offer. (Cancel Dep. 81:5-12.) The defendants, on the other hand, assert that he was merely "selected subject to further review" for the position. (Defs.' 56.1 ¶ 11.) Cancel was instructed to report back on January 22 for processing of his application paperwork. (Defs.' 56.1 ¶ 11; Pl.'s 56.1 ¶ 52.)

In that paperwork, Cancel disclosed his criminal history in greater detail. (Jorgensen Decl. Ex. E at 0031.) He also signed an affirmation stating that "[f]ailure to meet the standards for [a] background investigation could result in disqualification, " (id. at 0033), and a "Notice to Applicant" cautioning him that "completing this application process is not an offer of employment" (emphasis in original), and that no offer of employment with the HRA can legally be made without written approval from "other oversight agencies." (Id. at 0036.) On January 22, Cancel also signed a "Deferral Notice" informing him that his appointment was contingent upon his presenting certificates of disposition for his convictions by January 26. (Jorgensen Decl. Ex. H.) Cancel submitted those certificates, although it appears he was a few days late. (Jorgensen Decl. Ex. F.)

On February 2, defendant Elena Holmes, an HRA employee, sent Cancel a letter tersely informing him that his application was "under review, " and that he would "be notified once a final determination [was] made." (Jorgensen Decl. Ex. I.) In an internal email dated February 4, the HRA Deputy General Counsel responsible for reviewing Cancel's materials recommended against hiring him, expressing concerns about Cancel's multiple convictions, which she took as evidence of "poor impulse control, " and emphasizing that the CSLPCU works a "highly charged, " "chaotic and volatile" courthouse environment. (Jorgensen Decl. Ex. K.) On or about February 6, Cancel telephoned HRA Processing Specialist and defendant Mildred Luciano, who told him that his application had been denied. (Defs.' 56.1 ¶ 28.) On February 10, Holmes sent Cancel a letter formally denying his appointment to the Paralegal Aide position. (Jorgensen Decl. Ex. M.)

New York law requires an employer, upon request, to provide a written statement setting forth its reasons for denying employment to "any person previously convicted of one or more criminal offenses." N.Y. Correction Law § 754. Cancel made such a request on February 10, (Jorgensen Decl. Ex. N), and on March 13, defendant Paul Ligresti, an Assistant General Counsel, sent him a longer letter, explaining that he had been determined to be "unsuited to the sensitive responsibilities" of the position for which he was interviewing. (Jorgensen Decl. Ex. O.) The letter noted that Cancel's criminal record was "a factor in the overall determination." (Id.)

On July 22, 2009, Cancel commenced a proceeding pursuant to Article 78 of the New York Civil Practice Law and Rules, challenging HRA's denial of his appointment as discriminatory. On October 23, the proceeding was dismissed due to Cancel's failure to comply with the four-month statute of limitations period. (Jorgensen Decl. Ex. P.) Cancel then filed this action on December 30, 2011, and filed an amended complaint on April 13, 2012. (Dkt. Nos. 2, 17.) He asserted claims under 42 U.S.C. §§ 1981 and 1983, as well as under a number of statelaw provisions.

On August 1, 2012, this Court dismissed Cancel's federal law claims. 2012 WL 4761491. As is relevant here, it held that Cancel had failed to establish a protectable property interest in the Paralegal Aide position that would support a procedural due process claim, because his appointment to the position never became effective. Id. at *4-*6. This Court then declined to exercise supplemental jurisdiction over Cancel's state-law claims. Id. at *10. On appeal, the Second Circuit reinstated the procedural due process claim, stating that "a written or verbal communication guaranteeing government employment may, in some circumstances, give rise to [a constitutionally protected] property interest, " and holding that Cancel's complaint "allege[d] a legitimate claim of entitlement to the Paralegal Aide position, subject only to the completion of ministerial tasks prior to his start date." 527 Fed.App'x 42, 44-45 (2d Cir. 2013). Because the federal claim had been reinstated, it also reversed this Court's decision to decline to exercise supplemental jurisdiction over Cancel's state-law claims. Id. at 45. Cancel moved for summary judgment on all remaining claims on June 2, 2014, and the defendants cross-moved for summary judgment on July 21, 2014.


Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Rule 56(a), Fed.R.Civ.P. A fact is material if it "might affect the outcome of the suit under the governing law...." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). It is the initial burden of a movant on a summary judgment motion to come forward with evidence on each material element of his claim or defense, demonstrating that he is entitled to relief. The evidence on each material element must be sufficient to entitle the movant to relief in its favor as a matter of law. Vt. Teddy Bear Co. v. 1-800 Beargram Co. , 373 F.3d 241, 244 (2d Cir. 2004). If the moving party meets its burden, "the nonmoving ...

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