Preview
FILED: NEW YORK COUNTY CLERK 03/03/2020 05:06 PM INDEX NO. 162169/2019
NYSCEF DOC. NO. 46 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, ) REPLY AFFIDAVIT
)
-and-
)
) Index No. 162169/2019
) I.A.S. Part 8EMF
THE NEW YORK CITY FIRE DEPARTMENT; DANIEL ) (Kotler, J.)
A. NIGRO, as Commissioner of the New York City Fire )
Department; DON NGUYEN, as Assistant Commissioner )
of The Equal Opportunity Employment Office of the New )
York Fire Department; and the CITY OF NEW YORK )
)
Respondents. )
--------------------------------------------------------X
STATE OF NEW YORK )
) ss:
COUNTY OF QUEENS )
HUGH MCALLISTER, being duly sworn, deposes and says:
1. I am one of the Petitioners in this proceeding. I submit this affidavit in support of
Respondents'
the petition, and in response to opposing papers.
2. In their response to the Petition, Respondents state "it is beyond dispute that the
Equal Employment Opportunity Office ("EEO Office") of the New York City Fire Department
("FDNY") gave both me and Petitioner Morbelli "notice of the allegations against them and gave
story."
them a meaningful opportunity to be interviewed and to tell their side of the (SSee
Respondents'
Memorandum of Law p. 15). This is simply not the case.
3. Respondeñts attach to their Verified Answer the documents that supposedly
"notice"
constitute the Petitioner Morbelli and I received. These documents consist of:
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A) Letters from the FDNY's EEO Office dated August 16, 2019 to me and to
Petitioner Morbelli informing us that complaints had been filed against us
alleging that we had retaliated against Auto Mechanic Pichardo because his wife
Vanessa Feeley filed a charge with the United States Equal Employment
Opportunity Commission ("EEOC"). (Verified Answer Exhibits 2 and 3); and
B) Letters to me and to Petitioner Morbelli from the FDNY's EEO Office dated
September 11, 2019 (Verified Answer Exhibits 4 and 5) and October 15, 2019
(Verified Answer Exhibits 5 and 6) stating that the investigation into the
complaints against us were proceeding and that the investigation would be
completed by November 15, 2019.
These were the only written notices Petitioner Morbelli or I received prior to the November 19,
2019 determinations purporting to find that there was "sufficient credible evidence that [we]
retaliated against Auto Mechanic Jomar Pichardo because his wife, Auto Mechanic Vanessa
EEOC."
Feeley, filed a charge with the
4. Apart from the above documents, the only information I obtained concerning the
nature of the allegations against me--and so far as I am aware, the only information provided to
Petitioner Morbelli about the allegations against him-was based on the questions posed to us
during our interviews by the FDNY EEO Office on November 6, 2019. From what littleI was
told during that interview, itappeared that allegations had been made concerning the assignments
given to Pichardo by SMMEs John Evangelou and Steven Perri, the two Supervisors in charge of
the Ladder Section where Pichardo works. I was not, however, and itis my understanding that
Petitioner Morbelli likewise was not, provided with: (i) a copy of the EEO complaint against us;
(ii) an itemization of any assignments Pichardo received from Supervisors Evangelou and/or
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Perri; (iii) any basis to believe that either Petitioner Morbelli or I had anything to do with the
making of any of these assignments (especially given the express denial by Evangelou and Perri
that any of the assignments they gave to Pichardo came from us; or (iv) any basis to believe that
any of the assigñmeñts Pichardo received was in any way related to the EEOC charge filed by
Auto Mechanic Vanessa Feeley.
5. The clearest statement (though stillwoefully lacking in specifics) of the
Respondents'
allegations against Petitioner Morbelli or me isthat contained in Paragraph 62 of
Answer: "... after Feely filed the EEOC charge, Pichardo began receiving disproportionately
Mechanic."
demãñdiñg work assignments that were ordinarily assigned to more than one Auto
6. Had Petitioner Morbelli or I been provided with a list of the assignments that were
deimñding,"
allegedly "disproportionately we would have had the opportunity to make specific
responses to such allegations. We could, for example, have determined whether these
assignments in fact differed from or were more onerous than those assigned to other Auto
Mechanics in the Ladder Section or differed from assignments given to Pichardo before his wife
filed her EEOC charge.
7. Had Petitioner Morbelli or I been provided with some basis for the allegation that
some of Pichardo's assignments really came from one of us and not from Supervisors Evangelou
or Perri, we could have responded specifically to these claims.
8. Based on what Petitioner Morbelli and I were able to discem from our November
6, 2019 interviews, we offered to supply documents to the FDNY's EEO Office concerning the
assignment of work to Pichardo and other Auto Mechanics in the Ladder Section which were
contained in the Fleet Services database. Following our November 6, 2019 interviews, Petitioner
Morbelli and I attempted to gather these materials. Based on what appears in Paragraph 62 of
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Respondents'
Answer, the materials we located were highly relevant and-we believe-should
have dispelled the notion that Pichardo received assignments that were unfair or
demanding."
"disproportionately The FDNY's EEO Office, however, concluded their
investigation and issued the November 19, 2019 determinations against us without giving
Petitioner Morbelli or e to complete our search. When we offered to produce them
thereafter, the FDNY's EEO Office was not interested.
9. With regard to the suggestion that Petitioner Morbelli or I harbored some
resentment against Auto Mechanic Vanessa Feeley (or her husband) because of her EEOC
charge relating to her alleged difficulties in receiving proper times and locations to express milk
Respondents'
following the birth of her child, the allegations in Verified Answer are at best
misleading. In fact, after Ms. Feeley's child was born, Petitioner Morbelli and I provided an area
for Ms. Feeley to be able to express milk in private. In order to accommodate her, we permitted
her to express milk during working hours. Ms. Feeley did not object to any of these
accommodations until FDNY management in or about January 2019 overruled Petitioner
Morbelli and me and required Ms. Feeley to use her own time+and not the paid time we had
permitted-for expressing milk.
10. As set forth in my earlier affidavit, I never did anything to retaliate against Auto
Mechanic Pichardo because of anything his wife did, and I had nothing to do with any of the
assignments he received from his immediate Supervisors John Evangelou or Steven Perri that
appear to be the basis for his complaint. I most certainly never directed that Pichardo be given
any unduly taxing and burdensome or unfair assignments, and to this day I am not aware of any
assignments he received from his immediate supervisors that could even plausibly be deemed
improper or significantly different from work ordinarily assigned to FDNY Auto Mechanics.
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NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 03/03/2020
GH MCALLISTER
Sworn to me this day
of February 2020
NOT PUBL
JAMES
.- M. THA. ER
c . New York
No. 02TH6045073
Qualified in New York County
Commission Expires July 24, 20 _f2
5
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Preview
FILED: NEW YORK COUNTY CLERK 03/03/2020 05:06 PM INDEX NO. 162169/2019 NYSCEF DOC. NO. 46 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, ) REPLY AFFIDAVIT ) -and- ) ) Index No. 162169/2019 ) I.A.S. Part 8EMF THE NEW YORK CITY FIRE DEPARTMENT; DANIEL ) (Kotler, J.) A. NIGRO, as Commissioner of the New York City Fire ) Department; DON NGUYEN, as Assistant Commissioner ) of The Equal Opportunity Employment Office of the New ) York Fire Department; and the CITY OF NEW YORK ) ) Respondents. ) --------------------------------------------------------X STATE OF NEW YORK ) ) ss: COUNTY OF QUEENS ) HUGH MCALLISTER, being duly sworn, deposes and says: 1. I am one of the Petitioners in this proceeding. I submit this affidavit in support of Respondents' the petition, and in response to opposing papers. 2. In their response to the Petition, Respondents state "it is beyond dispute that the Equal Employment Opportunity Office ("EEO Office") of the New York City Fire Department ("FDNY") gave both me and Petitioner Morbelli "notice of the allegations against them and gave story." them a meaningful opportunity to be interviewed and to tell their side of the (SSee Respondents' Memorandum of Law p. 15). This is simply not the case. 3. Respondeñts attach to their Verified Answer the documents that supposedly "notice" constitute the Petitioner Morbelli and I received. These documents consist of: 1 1 of 5 FILED: NEW YORK COUNTY CLERK 03/03/2020 05:06 PM INDEX NO. 162169/2019 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 03/03/2020 A) Letters from the FDNY's EEO Office dated August 16, 2019 to me and to Petitioner Morbelli informing us that complaints had been filed against us alleging that we had retaliated against Auto Mechanic Pichardo because his wife Vanessa Feeley filed a charge with the United States Equal Employment Opportunity Commission ("EEOC"). (Verified Answer Exhibits 2 and 3); and B) Letters to me and to Petitioner Morbelli from the FDNY's EEO Office dated September 11, 2019 (Verified Answer Exhibits 4 and 5) and October 15, 2019 (Verified Answer Exhibits 5 and 6) stating that the investigation into the complaints against us were proceeding and that the investigation would be completed by November 15, 2019. These were the only written notices Petitioner Morbelli or I received prior to the November 19, 2019 determinations purporting to find that there was "sufficient credible evidence that [we] retaliated against Auto Mechanic Jomar Pichardo because his wife, Auto Mechanic Vanessa EEOC." Feeley, filed a charge with the 4. Apart from the above documents, the only information I obtained concerning the nature of the allegations against me--and so far as I am aware, the only information provided to Petitioner Morbelli about the allegations against him-was based on the questions posed to us during our interviews by the FDNY EEO Office on November 6, 2019. From what littleI was told during that interview, itappeared that allegations had been made concerning the assignments given to Pichardo by SMMEs John Evangelou and Steven Perri, the two Supervisors in charge of the Ladder Section where Pichardo works. I was not, however, and itis my understanding that Petitioner Morbelli likewise was not, provided with: (i) a copy of the EEO complaint against us; (ii) an itemization of any assignments Pichardo received from Supervisors Evangelou and/or 2 2 of 5 FILED: NEW YORK COUNTY CLERK 03/03/2020 05:06 PM INDEX NO. 162169/2019 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 03/03/2020 Perri; (iii) any basis to believe that either Petitioner Morbelli or I had anything to do with the making of any of these assignments (especially given the express denial by Evangelou and Perri that any of the assignments they gave to Pichardo came from us; or (iv) any basis to believe that any of the assigñmeñts Pichardo received was in any way related to the EEOC charge filed by Auto Mechanic Vanessa Feeley. 5. The clearest statement (though stillwoefully lacking in specifics) of the Respondents' allegations against Petitioner Morbelli or me isthat contained in Paragraph 62 of Answer: "... after Feely filed the EEOC charge, Pichardo began receiving disproportionately Mechanic." demãñdiñg work assignments that were ordinarily assigned to more than one Auto 6. Had Petitioner Morbelli or I been provided with a list of the assignments that were deimñding," allegedly "disproportionately we would have had the opportunity to make specific responses to such allegations. We could, for example, have determined whether these assignments in fact differed from or were more onerous than those assigned to other Auto Mechanics in the Ladder Section or differed from assignments given to Pichardo before his wife filed her EEOC charge. 7. Had Petitioner Morbelli or I been provided with some basis for the allegation that some of Pichardo's assignments really came from one of us and not from Supervisors Evangelou or Perri, we could have responded specifically to these claims. 8. Based on what Petitioner Morbelli and I were able to discem from our November 6, 2019 interviews, we offered to supply documents to the FDNY's EEO Office concerning the assignment of work to Pichardo and other Auto Mechanics in the Ladder Section which were contained in the Fleet Services database. Following our November 6, 2019 interviews, Petitioner Morbelli and I attempted to gather these materials. Based on what appears in Paragraph 62 of 3 3 of 5 FILED: NEW YORK COUNTY CLERK 03/03/2020 05:06 PM INDEX NO. 162169/2019 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 03/03/2020 Respondents' Answer, the materials we located were highly relevant and-we believe-should have dispelled the notion that Pichardo received assignments that were unfair or demanding." "disproportionately The FDNY's EEO Office, however, concluded their investigation and issued the November 19, 2019 determinations against us without giving Petitioner Morbelli or e to complete our search. When we offered to produce them thereafter, the FDNY's EEO Office was not interested. 9. With regard to the suggestion that Petitioner Morbelli or I harbored some resentment against Auto Mechanic Vanessa Feeley (or her husband) because of her EEOC charge relating to her alleged difficulties in receiving proper times and locations to express milk Respondents' following the birth of her child, the allegations in Verified Answer are at best misleading. In fact, after Ms. Feeley's child was born, Petitioner Morbelli and I provided an area for Ms. Feeley to be able to express milk in private. In order to accommodate her, we permitted her to express milk during working hours. Ms. Feeley did not object to any of these accommodations until FDNY management in or about January 2019 overruled Petitioner Morbelli and me and required Ms. Feeley to use her own time+and not the paid time we had permitted-for expressing milk. 10. As set forth in my earlier affidavit, I never did anything to retaliate against Auto Mechanic Pichardo because of anything his wife did, and I had nothing to do with any of the assignments he received from his immediate Supervisors John Evangelou or Steven Perri that appear to be the basis for his complaint. I most certainly never directed that Pichardo be given any unduly taxing and burdensome or unfair assignments, and to this day I am not aware of any assignments he received from his immediate supervisors that could even plausibly be deemed improper or significantly different from work ordinarily assigned to FDNY Auto Mechanics. 4 4 of 5 FILED: NEW YORK COUNTY CLERK 03/03/2020 05:06 PM INDEX NO. 162169/2019 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 03/03/2020 GH MCALLISTER Sworn to me this day of February 2020 NOT PUBL JAMES .- M. THA. ER c . New York No. 02TH6045073 Qualified in New York County Commission Expires July 24, 20 _f2 5 5 of 5