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FILED: NEW YORK COUNTY CLERK 03/03/2020 05:06 PM INDEX NO. 162169/2019
NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 03/03/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--------- ¬-- ----------------------------------X
In the matter of the application of )
)
LOCAL 621, S.E.I.U., LOUIS MORBELLI, and )
HUGH MCALLISTER, )
)
Petitioners, )
)
-and-
)
) Index No. 162169/2019
THE NEW YORK CITY FIRE DEPARTMENT; DANIEL )
A. NIGRO, as Commissioner of the New York City Fire )
Department; DON NGUYEN, as Assistant Commissioner )
of the Equal Employment Opportunity Office of the New )
York Fire Department; and the CITY OF NEW YORK )
)
Respondents. )
X
PETITIONERS'
REPLY MEMORANDUM OF LAW AND
MEMORANDUM OF LAW IN OPPOSITION TO MOTION TO CHANGE VENUE
Preliminary Statement
This Reply Memorandum of Law is submitted in further support of the Amended
Respondents' Respondents'
Petition, in response to opposing papers, and in opposition to motion
to change venue.
Respoñdeñts'
opposing papers provide no basis for this Court to ignore the landmark
holding of the Court of Appeals in D'Angelo v. Scoppetta, 19 N.Y.3d 663 (2012) (D'Angelo) or
the recent holdings by this Court and by the Appellate Division in Local 621 v. New York City
Department of Transportation, 178 A.D. 3d 78, 111 N.Y.S. 3d 588 (1 Dept. 2019) ("Local 621"),
all of which clearly and unequivocally establish that an EEO complaint cannot be sustained
against a tenured civil service employee without affording that employee a hearing as well as the
Respondents'
other protections provided for in Civil Service Law § 75. opposing papers, while
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trumpeting their aversion to the holdings in D'Angelo and Local 621, provide no basis for
ignoring these controlling precedents. Since Respoñdêñts do not dispute that Petitioners
Morbelli and McAllister are permanent civil servants and similarly do not dispute that these
Petitioners were not given a hearing before the November 19, 2019 EEO determinations were
rendered against them, there can be no doubt that D'Angelo and Local 621 require that the
Respondents'
Petition here be granted. As is discussed below, efforts to distinguish D'Angelo
and Local 621 are misguided.
Respondents' Petitioners'
Similarly, suggestion that the Court dismiss Human Rights
Law retaliation claims without allowing the matter to proceed to discovery much less to trial,is
directly contrary to controlling law and should be rejected.
Respondents'
As is discussed in Point III,infra, motion to chañge venue should be denied
since the City policy pursuant to which the November 19, 2019 determinations were issued is not
a product of anything that occurred in King's County. While the EEO complaints against
Petitioners Morbelli and McAllister were investigated in Brooklyn, and while Petitioners believe
the investigation and resulting EEO determinations were biased, incompetent, and entirely
misguided, this case is about a good deal more than two mistakenly issued EEO determinations.
What is at issue here is a policy decision by the City of New York to ignore the D'Angelo and
Local 621 decisions. Petitioner Local 621 has joined in the filing of this proceeding not only to
vindicate the rights of two of itsmembers who have been falsely charged and injured, but also to
protect allof its members from the sorts of lawless conduct in which the City is now engaged in
processing EEO complaints against tenured civil servants without offering them even a
semblance of due process. This policy, as is discussed below, is not a product of anything done
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by the EEO unit of the New York City Fire Department in Brooklyn, but of a City-wide policy
which the specific Fire Department investigators here were required to follow.
Finally, as discussed in Point IV, injunctive relief is essential here to protect Petitioners
from irreparable damage to their heretofore exemplary civil service careers.
Argument
PETITIONERS'
DUE PROCESS AND CIVIL
SERVICE LAW § 75 CLAIMS MUST BE
SUSTAINED IN LIGHT OF D'ANGELO
Petitioners'
Respondents opposing Memorandum of Law ("R/M") characterizes claims
that they were denied Due Process as well as their rights under Civil Service Law § 75 as
"specious,"
representing a "fundamental lack of understanding of the [Civil Service Law] and of
policies," extreme." Petitioners'
the City's EEO and "frivolous in the (R/M at p. 2). In fact,
arguments precisely track not only the holdings in D'Angelo and Local 621 but also the
description of those holdings by the City Respondents in their pending motion to appeal to the
Court of Appeals in Local 621 [see January 18,2020 Supplemental Affidavit of Joseph Giattino
Respondents'
("Giattino Supp. Aff."), Exhibit "1"]. The derogatory language that permeates
opposing papers is thus directed at the holdings of this Court, the Appellate Division, and the
Petitioners'
Court of Appeals and not just at citation of controlling authority. Itis obvious that
Respondents dislike the holdings in these two cases. Nonetheless, until reversed or overruled,
Respondents'
those cases remain controlling, disdain for them notwithstanding.
Respondents'
insist that the issuance of the November 19, 2019 determinations cannot be
deemed to be in violation of Civil Service Law § 75 because the determinations themselves
"discipline"
cannot be deemed (R/M at pp. 10-12). That very argument, however, was expressly
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rejected by the Appellate Division in Local 621. Indeed, in their pending motion for leave to
appeal to the Court of Appeals in Local 621, the City Respondents have acknowledged that the
Appellate Division in Local 621 held that Civil Service Law § 75 does indeed require the hearing
which Petitioners contend they should have been afforded here. (See Giattino Supp. Aff.,
"1" Respondents'
Exhibit at pp. 6-12). Quite apart from concession in their motion in Local 621,
the language of the Appellate Division leaves no doubt on the matter:
"Petitioners were correctly awarded judgment on their due process
claims. Civil Service Law §75(1) provides that tenured civil
service employees (such as petitioners) 'shall not be...subjected to
any disciplinary penalty provided in this section except for
incompetency or misconduct shown after a hearing upon stated
charges.'
It is undisputed that no hearing was held before the
petitioners'
determinations were placed into DOT employment
files. The failure to hold a hearing on the charges against these
individuals violated their due process rights [Matter of D'Angelo
(2012)]..."
v. Scoppetta, 19 NY3d 663, 667
178 A.D. 3d at 80-81; 111 N.Y.S. 3d at 590.
Respondents cite two supposed distinctions between the facts here and in D'Angelo and
Local 621. Neither is real.
Respondents firstcontend that this case is different because no penalty beyond the
issuance of the EEO determinations has yet been imposed on Petitioners Morbelli or McAllister.
(R/M at pp. 11-12). This, however, is exactly what happeñed to Petitioner Seupersaud Bharat in
Local 621. Like Petitioners Morbelli and McAllister here (see Reply Affidavit of Joseph
"substantiated"
Giattino, ¶¶13-14), Petitioner Bharat in Local 621 had an EEO complaint against
him by a City EEO office without affording him the hearing required by D'Angelo. He was not
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penalty¹
subjected to any additional such as being required to attend EEO training. As here,
Bharat's case was referred to the disciplinary unit, and disciplinary charges were eventually
preferred against him. By the time of the ruling by the Appellate Division on November 7, 2019,
Bharat had long since had his disciplinary hearing and been exonerated of all of the disciplinary
charges. The Appellate Division nonetheless held in Local 621 that the action of the City
respondents in substantiating an EEO complaint against Bharat without a hearing was a violation
of both Due Process and of Civil Service Law § 75 even though no penalty was ever imposed on
Bharat beyond the substantiation of the EEO complaint against him.
Respondents also seek to distinguish Local 621 on the theory that "no charges have been
imposed."
preferred against petitioners and no discipline has been (R/M at p. 12). This
supposed distinction overlooks the fact that itwas the failure to provide a hearing before the
issuance of the EEO finding that was the basis for the holding in Local 621. There was no Due
Process or Civil Service Law § 75 violation alleged or found there with regard to the disciplinary
process, since Petitioner Bharat in Local 621 was afforded a hearing on his disciplinary charges
and was fully vindicated once that hearing was held and a decision after hearing rendered. The
problem there, as here, had nothing to do with the contractual disciplinary process; the violation
there was the very one complained of here: the failure to hold a hearing before substantiating
EEO charges. As with Petitioner Bharat in Local 621, Petitioners Morbelli and McAllister face
the prospect that-no matter how successful they may be in defeating any disciplinary charges
remain.2
against them-the EEO findings against them will likely Notably, nowhere in their
Two of the other Petitioners in Local 621 (Kubair and Cohen) were-like the Petitioner in
D'Angelo-required to attend EEO training. There was, however, no such provision in the case
of Petitioner Bharat.
2
In the case of Petitioner Bharat in Local 621, the adverse EEO finding stillremains in his file
more than a year after he was found innocent of all of the disciplinary charges stemming from
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opposing papers do Respondents suggest that the EEO findings against Petitioners Morbelli and
McAllister will be rescinded if Petitioners are successful in opposing the disciplinary charges
Respondents say will be brought against them. Small wonder. As this Court held in Local 621
[citing the ruling by the New York City Office of Collective Bargaining in OLR & Comptroller
v. DC 37, 63 OCB 47 (BCB 1999) (Decision No. B-47-99 (arb))], there is no jurisdiction in the
contractual disciplinary process to rule upon the validity of EEO findings. Thus, the disciplinary
process is unlikely to do more for Petitioners Morbelli and McAllister-even if they should be
entirely successful-than ithas done to date for Bharat in Local 621.
Respondents have thus utterly failed to distinguish this case from D'Angelo or from
Local 621. Those cases are controlling and mandate a ruling in favor of Petitioners on their Due
Process and Civil Service Law § 75 claims.
Respondents complain that compelling them to adhere to D'Angelo and Local 621 would
employees'
"grind the EEO process to a halt and forbid the City from investigating complaints of
discrimination."
(R/M at pp. 2-3). This doomsday scenario is simply wrong. First, not every
EEO charge is substantiated even under the inadequate process the City currently utilizes. In
those cases the City chooses to dismiss, no hearings would be required. And for those cases in
which an EEO Office believes itlikely there was an EEO violation, the situation would be no
more onerous for the City than the process itfaces in allother disciplinary proceedings. The
civil servant accused would be entitled to stated charges, prior notice, and a hearing before any
action (even a reprimand) can be taken. The City has managed for decades to adhere to this
statutory and constitutional requirement in all other cases of discipline. Respondets present no
the adverse EEO determination and nearly four months after this Court's ruling in his favor was
affirmed by the Appellate Division. This is the case, of course, because City respondents enjoy a
statutory stay while their appeals wind their way through the appellate process.
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reason why persons accused of human rights violations should be afforded any less process than
those charged with other forms of wrongdoing.
The wisdom of the D'Angelo and Local 621 rulings is demonstrated by what happened
with Petitioner Bharat in Local 621 and by what occurred here. After an EEO complaint was
substantiated against him without a hearing, Petitioner Bharat successfully refuted all of the
charges against him during the course of the ensuing disciplinary process. Had he been given the
hearing guaranteed by D'Angelo, no EEO charges would have been substantiated in the first
place, and the false EEO charges against him would not have been sitting in his file(as they have
Respondents'
been) for the lastmore than two years while he awaits the decision on the City
motion for leave to appeal to the Court of Appeals.
Similarly, Petitioners Morbelli and McAllister-though they have not been afforded
hearings-now have EEO coñiplaiñts deemed to have been substantiated against them. These
complaints-like those lodged against Bharat in Local 621-are frivolous on their face, being
based as they are on assignments that in fact were given to Auto Mechanic Jomar Pichardo by
his immediate supervisors: SMMEs Evangelou and Perri and not by Petitioners Morbelli or
McAllister. Both Evangelou and Perri have submitted affidavits here denying that Petitioners
Morbelli or McAllister had anything to do with the assignments they handed out to Pichardo.
retaliation"
While Respoñdêñts represent that there is "overwhelming evidence of (see Answer
¶73) (just as the City Respondents in Local 621insisted they had overwhelming evidence against
"overwhelming"
Bharat), none of this evidence has as yet been shared with Petitioners, who have
thus far had no opportunity to address and attempt to refute it.
Even worse, the Answer here, in listing the individuals who supposedly were interviewed
by the FDNY's EEO Office in connection with the complaint, refers to "Pichardo, the alleged
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..."
victim (twice), the complainant ... [and] six Auto Mechanics who are Pichardo's co-workers
(Answer $70). From this it strongly appears that the person who filed the complaint was neither
Respondents'
Pichardo nor any of his fellow Auto Mechanics in the Ladder Section. Thus,
concern that Petitioners Morbelli or McAllister might retaliate against some of the Auto
Mechanics in the Ladder Section had they been afforded Due Process (Answer $73) has no basis
in fact. Rather, itnow appears that the complainant must either be Feeley herself or somebody in
FDNY management. If the latter, there is no possible basis to fear retaliation even if Petitioners
Morbelli or McAllister were the sort of individuals who engaged in that form of behavior (which
they most definitely are not). If,on the other hand, the complaint was filed by Feeley-agaiñst
whom Morbelli and McAllister provided information that undercut her EEOC charge-
may
Petitioners may in fact be the ones who are victims of retaliation. Petitioners should not be
reduced to having to engage in guesswork about the nature of the charges (they have never seen
the complaint against them), the name of the complainant (especially if he or she is not
somebody against whom they could possibly retaliate), or the nature of the evidence against
them (or, more likely, absence thereof).
Far from undercutting the EEO process as Respondents suggest, the rule enunciated by
D'Angelo and Local 621 will in fact vest the process with the fairness itnow so obviously lacks.
Respondents'
In any case, disagreement with D'Angelo and Local 621 should be sorted
out by the Appellate Division on the City's pending motion and/or by the Court of Appeals. As
the law now stands, the Petition here must be granted.
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H
PETITIONERS'
A TRIAL IS REQUIRED ON
HUMAN RIGHTS CLAIMS
Repeating the same mistaken line of argument advanced by the City Respondents in
Petitioners'
Local 621, Respondents here ask the Court to dismiss retaliation complaints under
the New York City and New York State Human Rights Laws without even affording them a trial
Respondents'
or even any discovery because, on view, Petitioners have "provided no allegations
evidence"
or to support their claim. (R/M at pp. 3, 16-17). Given the liberal pleading standards
for complaints under the New York State and (especially) under the New York City Human
Rights Laws, such dismissal at this stage of the proceeding would be plainly improper.
In contrast to federal discrimination claims, discrimination and retaliation cases arising
standards."
under the City and State Human Rights Laws are reviewed under "notice pleading A
plaintiff need not plead specific facts establishing a prima facie case, but "need only give fair
grounds."
notice of the claim and its Vig v. New York Hairspray Co., L.P., 67 A.D. 3d 140, 145,
885 N.Y.S. 2d 74, 77 (1 Dept. 2009); McIntosh v. Dep't of Ed. of the City of New York, 115
A.D. 3d 464, 981 N.Y.S. 2d 531 (1 Dept. 2014) (reversing lower court dismissal of
discrimination claim for failure to plead sufficient facts to demonstrate discrimination); Krause
v. Lancer & Loader Group, LLC, 40 Misc. 3d 385, 965 N.Y.S. 2d 312 (Sup. Ct. NY Cnty.
2013)(fn. 3) [confirming that the relaxed notice pleading standard articulated in Vig remains
intact in cases under the City and State Human Rights Laws notwithstanding the adoption of
stricter pleading standards for federal discrimination cases as set forth by the U.S. Supreme
Court in Ashcroft v. Iqbal, 556 U.S. 662 (2009)]. See also Williams v. New York City Housing
Authority, 61 A.D. 3d 62, 66 (First Dept. 2009).
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In Local 621, the Petition alleged that Petitioner Bharat had been retaliated by the City in
issuing an EEO determination against him, and that this was pay-back against him because of his
protected in a discrind nMion case against the City. Bharat also alleged that the
activity pursuing
EEO determinations against him had been issued because of his race and national origin. This
Court, finding insufficient evidence alleged in the Petition, dismissed Petitioner Bharat's
retaliation/discrimination complaint at the pleading stage. The Appellate Division in Local 621,
in keepiñg with itsconsistent inveighing against such pleading-stage dismissals, reversed and
remanded Bharat's retaliation and discrimination causes of action to this Court for trial.
Similarly, the retaliation claims of Petitioners Morbelli and McAllister cannot be
dismissed at this early stage.
Respondents complain that Petitioners have not shown that the FDNY's EEO Office
knew about the protected statemeñts Morbelli and McAllister made opposing the Feeley EEO
complaint. (R/M at p. 18). Given the utter lack of information provided to Petitioners in the
sham EEO process to which they were subjected, itis hardly surprising that Petitioners do not
have evidence to which they are prepared to swear in a Verified pleading. That will come with
discovery and at trial.
Respondents'
Based on Answer, as noted above, there is now reason to suspect that the
actual complainant was Vanessa Feeley and that her complaint was pay-back for the information
Morbelli and McAllister supplied to the FDNY that may hinder her chance of obtaining a major
recovery in her discrimination complaint alleging that she was improperly denied appropriate
accommodations to be able to express milk. If and when Petitioners obtain discovery, they will
likely find out whether they have a viable retaliation complaint against Feeley as well as against
Respondents. In addition, and more importantly for the instant proceeding, they may discover
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the link between the Feeley matter and the complaint about Pichardo. If Feeley is indeed the
complainant (and itis shameful that Respondents continue to deprive Petitioners of this vital
information), then she was interviewed by the very EEO FDNY Officer that decided that
Petitioners had retaliated against her husband. By now, Feeley knows that the FDNY obtained
information from Morbelli and McAllister concerning the dubiousness of her discrimination
complaint. Thus, the suggestion by Respondents (not accompanied by an affidavit from anyone
in the FDNY's EEO Office) that the EEO Office was unaware of what transpired in the Feeley
case should not be credited.
The solution, of course, is not to try to unravel the facts at the pleading stage. Ifindeed
Petitioners, once discovery is complete, are unable to produce evidence sufficient to support their
retaliation claims, Respondents will be able to prevail at trial(or perhaps filea successful
Petitioners'
summary judgment motion). For now, Human Rights Law claims must remain
intact and cannot be dismissed as insufficient.
Petitioners'
In the alternative, and ifthe Court believes allegations are inadequate,
Petitioners should be permitted to filean Amended pleading. See Watson v. TMC Holdings
Corporation, 135 A.D. 2d 375, 377; 521 N.Y.S. 2d 434, 436 (1 Dept. 1987); Dialcom, LLC v.
AT&T Corp., 50 A.D. 3d 727, 728; 854 N.Y.S. 2d 318 (2 Dept. 2008).
Petitioners' Petitioners'
Respondents also claim that allegations were too far removed for
retaliation claims to be permitted to proceed on the basis of temporal proximity. (R/M at pp. 18-
19). Significantly, Respondents cite only federal cases in support of their argument that "the
passage of two to three months between the protected activity and the adverse employment
causation."
action does not allow for an inference of (Id.). Respondents no doubt have cited
only federal caselaw dealing with federal claims because the New York state cases construing
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the New York City and New York State Human Rights Law directly contradict their contentions
temporal proximity. Collins v. 59 Misc. 1052-
regarding See, e.g., Indart-Etienne, 3d, 1026,
1053; 72 N.Y.S. 3d 332, 355 (Sup. Court, Kings Co. 2018) ("courts have found up to eight
months betweeñ the last protected activity and retaliatory action to be close enough in proximity
to establish causation). Even federal cases have recognized periods longer than the period here
as being sufficiently close in proximity to establish a temporal nexus. See Summa v. Hofstra
(2"4
Univ., 708 F. 3d 115, 128 Cir. 2012)(seven month gap between filing lawsuit and adverse
employment sufficient to support retaliation claim); Gorman-Bakos v. Cornell Coop Extension,
252 F. 3d 545, 555 (2d Cir. 2001) (temporal proximity of 5 months is sufficient to support claims
of retaliation); Grant v. Bethlehem Steel Corp., 622 F. 2d 43, 45-46 (2d Cir. 1980) (holding that
eight months between when the defendant discovered plaintiff's EEOC complaint and itsalleged
retaliatory acts indicated a causal connection). Thus, the gap of three months (from Petitioners
protected conduct on May 14, 2019 to the filing of the EEO complaint on August 15, 2019) or of
six months (from May 14, 2019 to the issuance of the adverse EEO determinations on November
19, 2019) is well within the time New York courts have deemed sufficient to state a cause of
action for retaliation based on temporal proximity.
Thus, even apart from the liberal pleading standards for New York City and New York
Petitioners'
State Human Rights Law claims, retaliation claims here are adequate based on
tempóral proximity alone.
III
RESPONDENTS'
MOTION TO CHANGE
VENUE SHOULD BE DENIED
Consistent with the sneering tone of their responding papers, Respondents have labeled
Petitioners'
claim that venue liesin New York County as "pure sophistry of the type routinely
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Courts."
rejected by the (R/M at p. 8). This characterization is unfair and mistaken.
Respondents'
application to change venue might be plausible if this case were solely about the
merits of an EEO determination made in Brooklyn by the FDNY's EEO Office. But the key
issue in the instant proceeding is not just the incompetence of the investigation conducted by the
FDNY's EEO Office, but whether the City's EEO policy-pursuant to which EEO complaints
may be substantiated without affording the charged party a hearing-is unlawful and in violation
of the holdings in D'Angelo and Local 621. Itis apparent that this policy was not promulgated
in Kings County, as it has been followed by at least three different agencies across the City (the
Department of Transportation in Manhattan; the Department of Correction on Riker's Island; and
the FDNY in Brooklyn). See Giattino Supp. Aff. at ¶¶ 3-6.
Respondents'
Indeed the City motion for leave to appeal to the Court of Appeals in Local
process"
621 explicitly acknowledged that the EEO "fact-finding is "established by City
policy." "1,"
(Id. at Exhibit pp. 8-9). This case, far from involving some rogue FDNY EEO
officer's decision to deny Petitioners Morbelli and McAllister Due Process, involves a City-wide
policy that Local 621 and itsmembers have confronted repeatedly (as is amply documented in
the Giattino Supplemental Affidavit) and which Petitioners believe to be in square conflict with
the holding in D'Angelo as well as the more recent rulings by this Court and by the Appellate
Division, First Department in Local 621.
As their pending motion for leave to appeal to the Court of Appeals in Local 621 makes
clear, the City Respondents are unhappy about the way this Court and the Appellate Division,
First Department have construed Civil Service Law § 75 and the Due Process standard
articulated in D'Angelo. This is no basis for Respondents to eñgage in forum-shopping or to
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made.3
remove this proceeding from a venue in which the policy being challenged was Itmight
Respondents'
serve agenda to have a different court and a different Appellate Division review
what this Court and the Appellate Division, First Department ruled upon in Local 621. But, this
serves no purpose other than creating the possibility of inconsistent decisions and perhaps
bolstering the City's chance to revisit D'Angelo in the Court of Appeals.
Preview
FILED: NEW YORK COUNTY CLERK 03/03/2020 05:06 PM INDEX NO. 162169/2019 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 03/03/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------- ¬-- ----------------------------------X In the matter of the application of ) ) LOCAL 621, S.E.I.U., LOUIS MORBELLI, and ) HUGH MCALLISTER, ) ) Petitioners, ) ) -and- ) ) Index No. 162169/2019 THE NEW YORK CITY FIRE DEPARTMENT; DANIEL ) A. NIGRO, as Commissioner of the New York City Fire ) Department; DON NGUYEN, as Assistant Commissioner ) of the Equal Employment Opportunity Office of the New ) York Fire Department; and the CITY OF NEW YORK ) ) Respondents. ) X PETITIONERS' REPLY MEMORANDUM OF LAW AND MEMORANDUM OF LAW IN OPPOSITION TO MOTION TO CHANGE VENUE Preliminary Statement This Reply Memorandum of Law is submitted in further support of the Amended Respondents' Respondents' Petition, in response to opposing papers, and in opposition to motion to change venue. Respoñdeñts' opposing papers provide no basis for this Court to ignore the landmark holding of the Court of Appeals in D'Angelo v. Scoppetta, 19 N.Y.3d 663 (2012) (D'Angelo) or the recent holdings by this Court and by the Appellate Division in Local 621 v. New York City Department of Transportation, 178 A.D. 3d 78, 111 N.Y.S. 3d 588 (1 Dept. 2019) ("Local 621"), all of which clearly and unequivocally establish that an EEO complaint cannot be sustained against a tenured civil service employee without affording that employee a hearing as well as the Respondents' other protections provided for in Civil Service Law § 75. opposing papers, while 1 1 of 17 FILED: NEW YORK COUNTY CLERK 03/03/2020 05:06 PM INDEX NO. 162169/2019 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 03/03/2020 trumpeting their aversion to the holdings in D'Angelo and Local 621, provide no basis for ignoring these controlling precedents. Since Respoñdêñts do not dispute that Petitioners Morbelli and McAllister are permanent civil servants and similarly do not dispute that these Petitioners were not given a hearing before the November 19, 2019 EEO determinations were rendered against them, there can be no doubt that D'Angelo and Local 621 require that the Respondents' Petition here be granted. As is discussed below, efforts to distinguish D'Angelo and Local 621 are misguided. Respondents' Petitioners' Similarly, suggestion that the Court dismiss Human Rights Law retaliation claims without allowing the matter to proceed to discovery much less to trial,is directly contrary to controlling law and should be rejected. Respondents' As is discussed in Point III,infra, motion to chañge venue should be denied since the City policy pursuant to which the November 19, 2019 determinations were issued is not a product of anything that occurred in King's County. While the EEO complaints against Petitioners Morbelli and McAllister were investigated in Brooklyn, and while Petitioners believe the investigation and resulting EEO determinations were biased, incompetent, and entirely misguided, this case is about a good deal more than two mistakenly issued EEO determinations. What is at issue here is a policy decision by the City of New York to ignore the D'Angelo and Local 621 decisions. Petitioner Local 621 has joined in the filing of this proceeding not only to vindicate the rights of two of itsmembers who have been falsely charged and injured, but also to protect allof its members from the sorts of lawless conduct in which the City is now engaged in processing EEO complaints against tenured civil servants without offering them even a semblance of due process. This policy, as is discussed below, is not a product of anything done 2 2 of 17 FILED: NEW YORK COUNTY CLERK 03/03/2020 05:06 PM INDEX NO. 162169/2019 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 03/03/2020 by the EEO unit of the New York City Fire Department in Brooklyn, but of a City-wide policy which the specific Fire Department investigators here were required to follow. Finally, as discussed in Point IV, injunctive relief is essential here to protect Petitioners from irreparable damage to their heretofore exemplary civil service careers. Argument PETITIONERS' DUE PROCESS AND CIVIL SERVICE LAW § 75 CLAIMS MUST BE SUSTAINED IN LIGHT OF D'ANGELO Petitioners' Respondents opposing Memorandum of Law ("R/M") characterizes claims that they were denied Due Process as well as their rights under Civil Service Law § 75 as "specious," representing a "fundamental lack of understanding of the [Civil Service Law] and of policies," extreme." Petitioners' the City's EEO and "frivolous in the (R/M at p. 2). In fact, arguments precisely track not only the holdings in D'Angelo and Local 621 but also the description of those holdings by the City Respondents in their pending motion to appeal to the Court of Appeals in Local 621 [see January 18,2020 Supplemental Affidavit of Joseph Giattino Respondents' ("Giattino Supp. Aff."), Exhibit "1"]. The derogatory language that permeates opposing papers is thus directed at the holdings of this Court, the Appellate Division, and the Petitioners' Court of Appeals and not just at citation of controlling authority. Itis obvious that Respondents dislike the holdings in these two cases. Nonetheless, until reversed or overruled, Respondents' those cases remain controlling, disdain for them notwithstanding. Respondents' insist that the issuance of the November 19, 2019 determinations cannot be deemed to be in violation of Civil Service Law § 75 because the determinations themselves "discipline" cannot be deemed (R/M at pp. 10-12). That very argument, however, was expressly 3 3 of 17 FILED: NEW YORK COUNTY CLERK 03/03/2020 05:06 PM INDEX NO. 162169/2019 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 03/03/2020 rejected by the Appellate Division in Local 621. Indeed, in their pending motion for leave to appeal to the Court of Appeals in Local 621, the City Respondents have acknowledged that the Appellate Division in Local 621 held that Civil Service Law § 75 does indeed require the hearing which Petitioners contend they should have been afforded here. (See Giattino Supp. Aff., "1" Respondents' Exhibit at pp. 6-12). Quite apart from concession in their motion in Local 621, the language of the Appellate Division leaves no doubt on the matter: "Petitioners were correctly awarded judgment on their due process claims. Civil Service Law §75(1) provides that tenured civil service employees (such as petitioners) 'shall not be...subjected to any disciplinary penalty provided in this section except for incompetency or misconduct shown after a hearing upon stated charges.' It is undisputed that no hearing was held before the petitioners' determinations were placed into DOT employment files. The failure to hold a hearing on the charges against these individuals violated their due process rights [Matter of D'Angelo (2012)]..." v. Scoppetta, 19 NY3d 663, 667 178 A.D. 3d at 80-81; 111 N.Y.S. 3d at 590. Respondents cite two supposed distinctions between the facts here and in D'Angelo and Local 621. Neither is real. Respondents firstcontend that this case is different because no penalty beyond the issuance of the EEO determinations has yet been imposed on Petitioners Morbelli or McAllister. (R/M at pp. 11-12). This, however, is exactly what happeñed to Petitioner Seupersaud Bharat in Local 621. Like Petitioners Morbelli and McAllister here (see Reply Affidavit of Joseph "substantiated" Giattino, ¶¶13-14), Petitioner Bharat in Local 621 had an EEO complaint against him by a City EEO office without affording him the hearing required by D'Angelo. He was not 4 4 of 17 FILED: NEW YORK COUNTY CLERK 03/03/2020 05:06 PM INDEX NO. 162169/2019 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 03/03/2020 penalty¹ subjected to any additional such as being required to attend EEO training. As here, Bharat's case was referred to the disciplinary unit, and disciplinary charges were eventually preferred against him. By the time of the ruling by the Appellate Division on November 7, 2019, Bharat had long since had his disciplinary hearing and been exonerated of all of the disciplinary charges. The Appellate Division nonetheless held in Local 621 that the action of the City respondents in substantiating an EEO complaint against Bharat without a hearing was a violation of both Due Process and of Civil Service Law § 75 even though no penalty was ever imposed on Bharat beyond the substantiation of the EEO complaint against him. Respondents also seek to distinguish Local 621 on the theory that "no charges have been imposed." preferred against petitioners and no discipline has been (R/M at p. 12). This supposed distinction overlooks the fact that itwas the failure to provide a hearing before the issuance of the EEO finding that was the basis for the holding in Local 621. There was no Due Process or Civil Service Law § 75 violation alleged or found there with regard to the disciplinary process, since Petitioner Bharat in Local 621 was afforded a hearing on his disciplinary charges and was fully vindicated once that hearing was held and a decision after hearing rendered. The problem there, as here, had nothing to do with the contractual disciplinary process; the violation there was the very one complained of here: the failure to hold a hearing before substantiating EEO charges. As with Petitioner Bharat in Local 621, Petitioners Morbelli and McAllister face the prospect that-no matter how successful they may be in defeating any disciplinary charges remain.2 against them-the EEO findings against them will likely Notably, nowhere in their Two of the other Petitioners in Local 621 (Kubair and Cohen) were-like the Petitioner in D'Angelo-required to attend EEO training. There was, however, no such provision in the case of Petitioner Bharat. 2 In the case of Petitioner Bharat in Local 621, the adverse EEO finding stillremains in his file more than a year after he was found innocent of all of the disciplinary charges stemming from 5 5 of 17 FILED: NEW YORK COUNTY CLERK 03/03/2020 05:06 PM INDEX NO. 162169/2019 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 03/03/2020 opposing papers do Respondents suggest that the EEO findings against Petitioners Morbelli and McAllister will be rescinded if Petitioners are successful in opposing the disciplinary charges Respondents say will be brought against them. Small wonder. As this Court held in Local 621 [citing the ruling by the New York City Office of Collective Bargaining in OLR & Comptroller v. DC 37, 63 OCB 47 (BCB 1999) (Decision No. B-47-99 (arb))], there is no jurisdiction in the contractual disciplinary process to rule upon the validity of EEO findings. Thus, the disciplinary process is unlikely to do more for Petitioners Morbelli and McAllister-even if they should be entirely successful-than ithas done to date for Bharat in Local 621. Respondents have thus utterly failed to distinguish this case from D'Angelo or from Local 621. Those cases are controlling and mandate a ruling in favor of Petitioners on their Due Process and Civil Service Law § 75 claims. Respondents complain that compelling them to adhere to D'Angelo and Local 621 would employees' "grind the EEO process to a halt and forbid the City from investigating complaints of discrimination." (R/M at pp. 2-3). This doomsday scenario is simply wrong. First, not every EEO charge is substantiated even under the inadequate process the City currently utilizes. In those cases the City chooses to dismiss, no hearings would be required. And for those cases in which an EEO Office believes itlikely there was an EEO violation, the situation would be no more onerous for the City than the process itfaces in allother disciplinary proceedings. The civil servant accused would be entitled to stated charges, prior notice, and a hearing before any action (even a reprimand) can be taken. The City has managed for decades to adhere to this statutory and constitutional requirement in all other cases of discipline. Respondets present no the adverse EEO determination and nearly four months after this Court's ruling in his favor was affirmed by the Appellate Division. This is the case, of course, because City respondents enjoy a statutory stay while their appeals wind their way through the appellate process. 6 6 of 17 FILED: NEW YORK COUNTY CLERK 03/03/2020 05:06 PM INDEX NO. 162169/2019 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 03/03/2020 reason why persons accused of human rights violations should be afforded any less process than those charged with other forms of wrongdoing. The wisdom of the D'Angelo and Local 621 rulings is demonstrated by what happened with Petitioner Bharat in Local 621 and by what occurred here. After an EEO complaint was substantiated against him without a hearing, Petitioner Bharat successfully refuted all of the charges against him during the course of the ensuing disciplinary process. Had he been given the hearing guaranteed by D'Angelo, no EEO charges would have been substantiated in the first place, and the false EEO charges against him would not have been sitting in his file(as they have Respondents' been) for the lastmore than two years while he awaits the decision on the City motion for leave to appeal to the Court of Appeals. Similarly, Petitioners Morbelli and McAllister-though they have not been afforded hearings-now have EEO coñiplaiñts deemed to have been substantiated against them. These complaints-like those lodged against Bharat in Local 621-are frivolous on their face, being based as they are on assignments that in fact were given to Auto Mechanic Jomar Pichardo by his immediate supervisors: SMMEs Evangelou and Perri and not by Petitioners Morbelli or McAllister. Both Evangelou and Perri have submitted affidavits here denying that Petitioners Morbelli or McAllister had anything to do with the assignments they handed out to Pichardo. retaliation" While Respoñdêñts represent that there is "overwhelming evidence of (see Answer ¶73) (just as the City Respondents in Local 621insisted they had overwhelming evidence against "overwhelming" Bharat), none of this evidence has as yet been shared with Petitioners, who have thus far had no opportunity to address and attempt to refute it. Even worse, the Answer here, in listing the individuals who supposedly were interviewed by the FDNY's EEO Office in connection with the complaint, refers to "Pichardo, the alleged 7 7 of 17 FILED: NEW YORK COUNTY CLERK 03/03/2020 05:06 PM INDEX NO. 162169/2019 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 03/03/2020 ..." victim (twice), the complainant ... [and] six Auto Mechanics who are Pichardo's co-workers (Answer $70). From this it strongly appears that the person who filed the complaint was neither Respondents' Pichardo nor any of his fellow Auto Mechanics in the Ladder Section. Thus, concern that Petitioners Morbelli or McAllister might retaliate against some of the Auto Mechanics in the Ladder Section had they been afforded Due Process (Answer $73) has no basis in fact. Rather, itnow appears that the complainant must either be Feeley herself or somebody in FDNY management. If the latter, there is no possible basis to fear retaliation even if Petitioners Morbelli or McAllister were the sort of individuals who engaged in that form of behavior (which they most definitely are not). If,on the other hand, the complaint was filed by Feeley-agaiñst whom Morbelli and McAllister provided information that undercut her EEOC charge- may Petitioners may in fact be the ones who are victims of retaliation. Petitioners should not be reduced to having to engage in guesswork about the nature of the charges (they have never seen the complaint against them), the name of the complainant (especially if he or she is not somebody against whom they could possibly retaliate), or the nature of the evidence against them (or, more likely, absence thereof). Far from undercutting the EEO process as Respondents suggest, the rule enunciated by D'Angelo and Local 621 will in fact vest the process with the fairness itnow so obviously lacks. Respondents' In any case, disagreement with D'Angelo and Local 621 should be sorted out by the Appellate Division on the City's pending motion and/or by the Court of Appeals. As the law now stands, the Petition here must be granted. 8 8 of 17 FILED: NEW YORK COUNTY CLERK 03/03/2020 05:06 PM INDEX NO. 162169/2019 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 03/03/2020 H PETITIONERS' A TRIAL IS REQUIRED ON HUMAN RIGHTS CLAIMS Repeating the same mistaken line of argument advanced by the City Respondents in Petitioners' Local 621, Respondents here ask the Court to dismiss retaliation complaints under the New York City and New York State Human Rights Laws without even affording them a trial Respondents' or even any discovery because, on view, Petitioners have "provided no allegations evidence" or to support their claim. (R/M at pp. 3, 16-17). Given the liberal pleading standards for complaints under the New York State and (especially) under the New York City Human Rights Laws, such dismissal at this stage of the proceeding would be plainly improper. In contrast to federal discrimination claims, discrimination and retaliation cases arising standards." under the City and State Human Rights Laws are reviewed under "notice pleading A plaintiff need not plead specific facts establishing a prima facie case, but "need only give fair grounds." notice of the claim and its Vig v. New York Hairspray Co., L.P., 67 A.D. 3d 140, 145, 885 N.Y.S. 2d 74, 77 (1 Dept. 2009); McIntosh v. Dep't of Ed. of the City of New York, 115 A.D. 3d 464, 981 N.Y.S. 2d 531 (1 Dept. 2014) (reversing lower court dismissal of discrimination claim for failure to plead sufficient facts to demonstrate discrimination); Krause v. Lancer & Loader Group, LLC, 40 Misc. 3d 385, 965 N.Y.S. 2d 312 (Sup. Ct. NY Cnty. 2013)(fn. 3) [confirming that the relaxed notice pleading standard articulated in Vig remains intact in cases under the City and State Human Rights Laws notwithstanding the adoption of stricter pleading standards for federal discrimination cases as set forth by the U.S. Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662 (2009)]. See also Williams v. New York City Housing Authority, 61 A.D. 3d 62, 66 (First Dept. 2009). 9 9 of 17 FILED: NEW YORK COUNTY CLERK 03/03/2020 05:06 PM INDEX NO. 162169/2019 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 03/03/2020 In Local 621, the Petition alleged that Petitioner Bharat had been retaliated by the City in issuing an EEO determination against him, and that this was pay-back against him because of his protected in a discrind nMion case against the City. Bharat also alleged that the activity pursuing EEO determinations against him had been issued because of his race and national origin. This Court, finding insufficient evidence alleged in the Petition, dismissed Petitioner Bharat's retaliation/discrimination complaint at the pleading stage. The Appellate Division in Local 621, in keepiñg with itsconsistent inveighing against such pleading-stage dismissals, reversed and remanded Bharat's retaliation and discrimination causes of action to this Court for trial. Similarly, the retaliation claims of Petitioners Morbelli and McAllister cannot be dismissed at this early stage. Respondents complain that Petitioners have not shown that the FDNY's EEO Office knew about the protected statemeñts Morbelli and McAllister made opposing the Feeley EEO complaint. (R/M at p. 18). Given the utter lack of information provided to Petitioners in the sham EEO process to which they were subjected, itis hardly surprising that Petitioners do not have evidence to which they are prepared to swear in a Verified pleading. That will come with discovery and at trial. Respondents' Based on Answer, as noted above, there is now reason to suspect that the actual complainant was Vanessa Feeley and that her complaint was pay-back for the information Morbelli and McAllister supplied to the FDNY that may hinder her chance of obtaining a major recovery in her discrimination complaint alleging that she was improperly denied appropriate accommodations to be able to express milk. If and when Petitioners obtain discovery, they will likely find out whether they have a viable retaliation complaint against Feeley as well as against Respondents. In addition, and more importantly for the instant proceeding, they may discover 10 10 of 17 FILED: NEW YORK COUNTY CLERK 03/03/2020 05:06 PM INDEX NO. 162169/2019 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 03/03/2020 the link between the Feeley matter and the complaint about Pichardo. If Feeley is indeed the complainant (and itis shameful that Respondents continue to deprive Petitioners of this vital information), then she was interviewed by the very EEO FDNY Officer that decided that Petitioners had retaliated against her husband. By now, Feeley knows that the FDNY obtained information from Morbelli and McAllister concerning the dubiousness of her discrimination complaint. Thus, the suggestion by Respondents (not accompanied by an affidavit from anyone in the FDNY's EEO Office) that the EEO Office was unaware of what transpired in the Feeley case should not be credited. The solution, of course, is not to try to unravel the facts at the pleading stage. Ifindeed Petitioners, once discovery is complete, are unable to produce evidence sufficient to support their retaliation claims, Respondents will be able to prevail at trial(or perhaps filea successful Petitioners' summary judgment motion). For now, Human Rights Law claims must remain intact and cannot be dismissed as insufficient. Petitioners' In the alternative, and ifthe Court believes allegations are inadequate, Petitioners should be permitted to filean Amended pleading. See Watson v. TMC Holdings Corporation, 135 A.D. 2d 375, 377; 521 N.Y.S. 2d 434, 436 (1 Dept. 1987); Dialcom, LLC v. AT&T Corp., 50 A.D. 3d 727, 728; 854 N.Y.S. 2d 318 (2 Dept. 2008). Petitioners' Petitioners' Respondents also claim that allegations were too far removed for retaliation claims to be permitted to proceed on the basis of temporal proximity. (R/M at pp. 18- 19). Significantly, Respondents cite only federal cases in support of their argument that "the passage of two to three months between the protected activity and the adverse employment causation." action does not allow for an inference of (Id.). Respondents no doubt have cited only federal caselaw dealing with federal claims because the New York state cases construing 11 11 of 17 FILED: NEW YORK COUNTY CLERK 03/03/2020 05:06 PM INDEX NO. 162169/2019 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 03/03/2020 the New York City and New York State Human Rights Law directly contradict their contentions temporal proximity. Collins v. 59 Misc. 1052- regarding See, e.g., Indart-Etienne, 3d, 1026, 1053; 72 N.Y.S. 3d 332, 355 (Sup. Court, Kings Co. 2018) ("courts have found up to eight months betweeñ the last protected activity and retaliatory action to be close enough in proximity to establish causation). Even federal cases have recognized periods longer than the period here as being sufficiently close in proximity to establish a temporal nexus. See Summa v. Hofstra (2"4 Univ., 708 F. 3d 115, 128 Cir. 2012)(seven month gap between filing lawsuit and adverse employment sufficient to support retaliation claim); Gorman-Bakos v. Cornell Coop Extension, 252 F. 3d 545, 555 (2d Cir. 2001) (temporal proximity of 5 months is sufficient to support claims of retaliation); Grant v. Bethlehem Steel Corp., 622 F. 2d 43, 45-46 (2d Cir. 1980) (holding that eight months between when the defendant discovered plaintiff's EEOC complaint and itsalleged retaliatory acts indicated a causal connection). Thus, the gap of three months (from Petitioners protected conduct on May 14, 2019 to the filing of the EEO complaint on August 15, 2019) or of six months (from May 14, 2019 to the issuance of the adverse EEO determinations on November 19, 2019) is well within the time New York courts have deemed sufficient to state a cause of action for retaliation based on temporal proximity. Thus, even apart from the liberal pleading standards for New York City and New York Petitioners' State Human Rights Law claims, retaliation claims here are adequate based on tempóral proximity alone. III RESPONDENTS' MOTION TO CHANGE VENUE SHOULD BE DENIED Consistent with the sneering tone of their responding papers, Respondents have labeled Petitioners' claim that venue liesin New York County as "pure sophistry of the type routinely 12 12 of 17 FILED: NEW YORK COUNTY CLERK 03/03/2020 05:06 PM INDEX NO. 162169/2019 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 03/03/2020 Courts." rejected by the (R/M at p. 8). This characterization is unfair and mistaken. Respondents' application to change venue might be plausible if this case were solely about the merits of an EEO determination made in Brooklyn by the FDNY's EEO Office. But the key issue in the instant proceeding is not just the incompetence of the investigation conducted by the FDNY's EEO Office, but whether the City's EEO policy-pursuant to which EEO complaints may be substantiated without affording the charged party a hearing-is unlawful and in violation of the holdings in D'Angelo and Local 621. Itis apparent that this policy was not promulgated in Kings County, as it has been followed by at least three different agencies across the City (the Department of Transportation in Manhattan; the Department of Correction on Riker's Island; and the FDNY in Brooklyn). See Giattino Supp. Aff. at ¶¶ 3-6. Respondents' Indeed the City motion for leave to appeal to the Court of Appeals in Local process" 621 explicitly acknowledged that the EEO "fact-finding is "established by City policy." "1," (Id. at Exhibit pp. 8-9). This case, far from involving some rogue FDNY EEO officer's decision to deny Petitioners Morbelli and McAllister Due Process, involves a City-wide policy that Local 621 and itsmembers have confronted repeatedly (as is amply documented in the Giattino Supplemental Affidavit) and which Petitioners believe to be in square conflict with the holding in D'Angelo as well as the more recent rulings by this Court and by the Appellate Division, First Department in Local 621. As their pending motion for leave to appeal to the Court of Appeals in Local 621 makes clear, the City Respondents are unhappy about the way this Court and the Appellate Division, First Department have construed Civil Service Law § 75 and the Due Process standard articulated in D'Angelo. This is no basis for Respondents to eñgage in forum-shopping or to 13 13 of 17 FILED: NEW YORK COUNTY CLERK 03/03/2020 05:06 PM INDEX NO. 162169/2019 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 03/03/2020 made.3 remove this proceeding from a venue in which the policy being challenged was Itmight Respondents' serve agenda to have a different court and a different Appellate Division review what this Court and the Appellate Division, First Department ruled upon in Local 621. But, this serves no purpose other than creating the possibility of inconsistent decisions and perhaps bolstering the City's chance to revisit D'Angelo in the Court of Appeals.