Matter of DeVoll v New York City Dept. of Educ.
Annotate this Case
Download PDF
Matter of DeVoll v New York City Dept. of Educ. 2012 NY Slip Op 30550(U) March 5, 2012 Supreme Court, New York County Docket Number: 111310/2011 Judge: Eileen A. Rakower Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. NNED ON 31712012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY b k m E R PRESENT: PART Justice Index Number . 11 1310/2011 DEVOLL, ROLAND vs. NYC DEPARTMENT OF EDUCATION SEQUENCE NUMBER : 001 ARTICLE 78 The following papers, numbered Ito INDEX NO. MOTION DATE MOTION SEQ. NO. - , were read on this motlon to/for Notice of MotionlOrder to Show Cause - Affidavits - Exhibits IWs). Answering Affldavlts - Exhibits \ , z- F IWs). Replying Affldavlts 5! q IN O W Upon the foregoing papers, It I ordered that this motion I s s w 0 I - cn 3 UNFILED JUDGMENT This judgment has not been entered by the County Clerk nnd notice of entry cannot bo served based hereon. To obtain entry, counsel or authorized representative must appbar in person at the Judgment Clerk's Desk (Room 141B)a \ Dated: \ 3\f\\z_. 1. CHECK ONE: ..................................................................... ?I CASE DISPOSED ........................... MOTION IS: GRANTED 1.- 1 DENIED CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER 2. CHECK AS APPROPRIATE: 3. F 1 , J.S.C. W H .z ci DO NOT POST NON-FINAL DISPOSITION fl GRANTED IN PART nOTHER 1.1SUBMIT ORDER uFIDUCIARY APPOINTMENT REFERENCE [* 2] Index No. 11 13 0/11 Petitioner, -again s tNEW YORK CITY DEPARTMENT OF EDUCATION, DENNIS M. WALCOTT, as Commissioner for New York City Department of Education, and r l l E CITY OF NEW YORK, MICHAEL BLOOMBERG, as Mayor of the City of New York, THE CITY OF NEW YORK DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES, EDNA WELLS HANDY as Commissioner ofl he City of New York Dep ai-tinent of Citywide Admi ni st r a t ivu S er vi ccs Roland Devoll ( Petitioner ) brings this petition pursuant for a judgment to immediately rcinstate Petitioner s employment to the New Yorlc City Department of Education ( DOE ). Petitioner also seeks damages I or lost wages and benefits, compensatory damages for emotional pain and suffering, and punitivc damages. Petitioner requests recovery for the cost of the action and reasonable attorneys fees. The relevant issue is Petitioner s claim that the DOG acted in bad faith in refusing to reinstate hini to his former position or a similar or lower level position, and in placing him on a preferred list where he was eligible for reinstatement rbr Ibur years. Petitioner was employed at the DOE as a City I,aborer, with a perinanent civil servicc classification, from January 1 985, until he was terminated pursuant to Civil Service Law 5 72 in July 20 10. In 2005, Petitioner was promoted to Provisional Supervisor. In April 2008, Petitioner was told by the Executive Director of Administration Frank Rorrowic not to report for 2-1 regular weekend o v e r h e assignment. Petitioner was [* 3] later inforincd by Michael 1Iahn, Executive Director, that he allegcdly saw another employce, Mr. Szot, in vidco caiiiera footage, removing approximately eight computers from thc trucking storage area, put them on a dolly, and move thcin to an unknown area. Petitioner later asked Mr. Szot whcre he piit the computers and he stated that he put them in Mr. Borrowic s personal vchicle. Petitioner bclievcd these actions to be misconduct, and made a report to the Special Commissioner of Investigation ( SCT ) for the New York City School Ilistrict. Mr. Borrowic later explained his actions by stating that he was taking the computers to another Department location in his personal vehicle for thc purpose of having them reconfigured. Petitioner alleges that Mr. Borrowic became extremely hostile and angry towards him when he learned he filed a report with SCJ. Petitioner states that when hc was in Mr. Borrowjc s office, Mr. Boi-rowjc told hiin that he knew Petitioner had reported him, and became so agitated and angry that he yelled in his face, threatened him, aiid told Petitioner that he would have liini demoted, and fired, and that he was going to make his life a living hell. Petitioner contends that shortly thereafter, Mr. Borrowic called hiin into a meeting and stated that he was being relieved of his Provisional Supervisor titlc and that another laborcr was taking his position. Petitioner called SCI and informed them that he was being subjected to retaliation as a result of reporting Mr. Borrowic. Petitioner states that SCI intervened and had his demotion rescinded that day. On December 3, 2008, Petitioner was dcmoted back to his perinanent civil service title, City Laborer, 011 the grounds that he had unexcused absences or lateness. In July 2009, Petitioner was injurcd at the workplace and went on workers compensation leave, and in lune 20 I O , Petitioner rcccived a letter froiii the Department idmining him that he was going to be terminated from his City Laborer position within 30 days because he had not bcen able to perform his duties due to an occupational itijury for more than one ycar. He was informed that within one year of proposed termination, he would have a right to apply for a medical cxatnitiation to delermine his physical and mental ability to perfoi-rn h e duties of a City Laborer. They stated that i f found to be medically fit, then hc would be entitled to reinstatement to his former position, if vacant, or to a vacant position for which he was eligible to transfer, and that if no positions were available, then tic would be placed on a reinstatement list for a pcriod of four ycars. Petitioner was also infortncd that if the Department of Education s Medical Offices deeincd him unfit to return to work, he would be given written notice of the determination and the reasons for the determination, a copy 01 medical the report aiid othcr records on which the determination was based, delivered to [* 4] Petitioner s address of record. On Julie 17, 20 10, Petitioner was seeii by Doctor Stanley Soren, who stated that Petitioner was fit to return to work on light duty. Michael Hutter froni thc Department s Huinaii Kesourccs office informed Petitioner that he could only return to work ifhis doctor stated that he could perform the dutics of a City Laborer with no restriclions whatsoever. A s 3 result, Petitioner was terminated in early July 2010. On June 20 201 1, Petitioner was examined by a physician in the DOE S Medical Review Office and was fouiid physically fit to return to duty. Petitioner spoke with Nancy Grillo of Human Resourccs soon thereafter and infonned her that he could return to work with no restrictions, according to a recommendation by the Department doctor. Ms. Grillo spoke with Petitioner and informed him that there were no vacancies in his former position and that there were no titles below that of City Laborer, thus he was being placed upon a prefcrred list for a pcriod of four years; if and whcn a City Laborer position became available for hiring, petitioner would be contacted and that he would rcniaiii eligible for reinstatement for a pcriod of four years. The issue presented is whether thc DOE acted in a rational and good frtith manner in rehsing to reinstate the Petitioner to his former position or a similar or lower level position, and in placing him on r-1 prefcrred list where hc was eligible for reinstatetncnt for four years. Petitioner argues that the decision by the DOE not to reinstate him to his fonner position is arbitrary and capricious. I Ie contends that Respondent discriminated against him due to his former disability and also retaliated against him in contravention of Civil Service Law $75-b. Specifically, Petitioner states that Respondcnts justification for refusing to reinstate him to his former position of City Laborer on thc ground that there are no vacancies and/or that the position has been abolished supports Petitioner s bad faith argument. He contends that the Respondent failcd to consider appointing him to a vacant position in a similar or lower position in the sainc occupational ficld or to a vacant position for which Petitioner was eligible, and that lie was discriminatcd against because the department could have provided him with an accommodation, such as a light duty assignment. The DOE alleges that thcre was an ob-jcctive good pdith basis for Petitioner s decision not to rehire Petitioner, in that there was a lack of vacancies and an overall headcount reduction as a rcsult of funding reductions mandated by the DOE and the City s Office [* 5] of Management and Budget. Respondent states that it placed Pctitioner on a list for reinstatement, where he will remain for four years, affording hini the right to be rehired if and when a position in his former title becomes availablc. Respondent denies that the failure to reinstate Petitioner is in any way related to the complaint made against his supervisor in 2008, and in any event should bc denied for Failure to file a notice of claim. Respondent further contcnds that Petitioner's remaining claims should be summarily dismissed as time barred from consideration as well as for failing to comply with applicable notice of claims requirement. C.P.L.R. 8 2 17 provides that an article 78 proceedings must be coiiiinenced within four months aftur the determination.. . recej ved becomes filial and binding upon the Petitioner. [FJora determination to bc final it must be clcar that the petitioner seeking review has been aggrieved by it. Lubin v. Board of Educ. of the City of N.Y., 60 N.Y.2d 974,976 ( I 983). Here, the article 78 procecding was commenced on October 4, 20 1 1 . Thus, the four inoiith statutc of limitations commcnced running on June 4, 20 1 1. Accordingly, while plaintifi s alleged wrongful denial of reinstatement claim from on or around June 20, 201 1 is not time barred, his allegations arising from the alleged wrongful denial of reinstatement in June 201 0 and his termination on July 3, 20 10 are barred. Additionally, Education Law 5 38 13( 1) sets out that a noticc of claim must be filed before any cause of action can be brought against the DOE or its employee, and that a notice of claim rnust be filed within three months ofthe accrual of such claim. As a matter of law, no action OT proceeding may be prosecuted or maintained against any school district or board of education unless another claim has been presentcd to the governing body. Parochial B L ~ S Inc., v. Bd. olEduc. Ofthe City of New York, 60 $ys. N.Y.2d 539, 549 (1983). Petitioner failed to comply with the notice of claim requirement prior to commencing his proceeding in that he did not file a notice of claim before bringing a cause of action against tlie DOE. Had a notice of claim Iiad been filed, Petitioners non-time-barred complaint of wrongful denial ol reinstatcment would still fail under Civil Service Law 5 71. The law states that where a public cmployee is incapable of performing job duties due to a disability either resulting from an occupational injury 01- disease under workers compensation law, s/he is entitled to a leave of absence of up to one year, After a year has passed, tlie employer may tcrtninate the employee. N.Y. Civil Service Law 5 71 (McKinney 201 1). Within a year of termination, the civil servant can make an application to the civil service departtnent/commissioii with jurisdiction over the position for a medical examination designated by the departmcntlcommission. If the [* 6] medical officer certillies that h e civj 1 servant is mentally/physically fit to perform the dutics of the civil service position held by the civil servant, then: he or she sliall be reinstated to the fortncl- position, if vacant, or to a vacancy in a similar position or a position in a lowcr grade in the same occupational field, or to a vacant position for which he or shc was eligible to transfer. If no appropriatu vacancy shall exist to which reinstatement may be madc, or if the work load does not warrant the filling of such vacancy, the name o r such person shall be placed upon a preferred list for his or her former position, and he or she shall be cligible for reinstatement from such preferrcd list for a period of four ycars. - It should be notcd that the scope ofjudicial review is limited to a determination that the administrative body had a rational basis for its actions. See Hughes v. Doherty, 5 N.Y.3d 100, 107 (2005). Here, the DOE acted rationally in granting petitioner all ol' the rights al'forded under Civil Service Law (j 71, which are noted above. On or around June 20, 20 1 1, Petitioiier contacted the DOE for possible reinstatement. l'lie DOE rererred hiin for a incdical exam and once he was found fit for duty, attempted to reinstate him. The DOE did iiot have any vacancics at the time in Petitioner's former position or any lower grade position in the same occupational field due to budgetary constraints, so in compliance with Civil Service Law 5 71, it placed Petitioner's name on a list for reinstatement to his former position for the next four years. Pctitioner has the opportunity to be reinstated if a position becomes available in the future. Wherefore it is hereby ADJUDGED that the petition is denied and the proceeding is dismissed. This constitutes tlic decision and order of the court. All other relief requestcd is denied. Dated: M a r c h 5 2 0 12 1 EILEEN A. RAKOWER, J.S.C.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
