Preview
FILED: NEW YORK COUNTY CLERK 03/03/2020 05:06 PM INDEX NO. 162169/2019
NYSCEF DOC. NO. 44 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 8EFM
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 )
JOSEPH GIATTINO, being duly sworn, deposes and says:
1. I am the President of Petitioner LOCAL 621, S.E.I.U. ("Local 621"). I am fully
familiar with the facts and proceedings in the EEO matters involving Local 621 members
described below.
2. I submit this Reply Affidavit in support of the Petition and to address two points
Respondents'
raised in opposing papers.
A. The Investigation conducted by the Fire Department's EEO Office
3. In both their Verified Answer (¶¶68, 70) and in their Memorandum of Law (at p.
15), Respondents suggest that their findings against Petitioners Morbelli and McAllister were
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comprehensive and reliable since they are said by Respondents to be based on what they gleaned
employees."
from "thirteen interviews of Fleet Services (Emphasis in original).
4. I attended five of these thirteen interviews; is, those of Petitioners Morbelli and
McAllister (on November those of Auto Mechanic Pichardo's direct supervisors-
6, 2019);
SMMEs John Evangelou (on October 24, 2019) and Steven Perri (on October 30, 2019)-and of
SMME Gary Christiansen on September 26, 2019. Each of these five interviewees is a member
of Local 621. In none of these five interviews did any witness allege that Pichardo received his
assignments from-or at the direction of-Petitioners Morbelli or McAllister. On the contrary,
Morbelli, McAllister, Evangelou, and Perri allmade it clear that Pichardo's assignments came
from his immediate supervisors (Evangelou and/or Perri). The other SMME interviewed in this
matter, Gary Christianson, does not work in the Ladder Section and was not asked about and did
not address the subject.
5. The other eight (8) witnesses interviewed, according to Respoñdeñts, were
complainant,"
Pichardo, "the (as yet unidentified) and six [presumably other] Auto Mechanics
coworkers."
who are said to be "Pichardo's I did not attend any of these interviews and neither I
nor Petiti0ñers Morbelli or McAllister have any direct knowledge of what was said by those
witnesses. Respondents have not disclosed whether any of these witnesses claims to have any
direct proof of actions by Petitioners Morbelli or McAllister to overrule Pichardo's immediate
superiors (Evangelou and Perri) and themselves choose the assignments to be given to Pichardo
or any direct proof that Morbelli or McAllister took any action against Pichardo because of the
EEOC complaint of his wife, Vanessa Feeley. Six of these witnesses are said to be co-workers
of Pichardo, presumably meaning that they are either Auto Mechanics or Auto Service Workers
Petitioners'
in the Ladder Section. As noted in earlier submissions, there is considerable
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resentment among the Auto Mechanics and Auto Service Workers at Pichardo's work location
because of the new tours mandated by the FDNY for which many of these journey-level
employees (wrongly) blame Morbelli and McAllister (perhaps because they are the ones
responsible for implementing and enforcing these new FDNY policies). Since Respondents
never told Local 621, Morbelli, or McAllister who these employees were or what they had to say
"believe"
(beyond the fact that many of them that Pichardo was a victim of retaliation),
Petitioners never had a fairopportunity to respond to the (secret) allegations against them.
Respondents'
6. Also of concern is the apparent indication in papers that the
complainant against Morbelli and McAllister is neither Pichardo nor any of his co-workers. This
suggests that the complainant may be Ms. Feeley herself. If thisis so-and Respondents to this
point have concealed this information from Petitioners-then an entirely new issue of retaliation
against Morbelli and McAllister will have emerged; k, that the complaint is pay-back by Feeley
for the account Morbelli and McAllister gave to FDNY investigators during their May 2019
interview about the Feeley charge that strongly undercuts Ms. Feeley's allegations.
7. The lack of Due Process in the handling of the complaint against Petitioners
Morbelli and McAllister has made it impossible for them to address such matters before the
precipitous EEO findings were rendered against them.
Respondents'
B. misstatements concerning the Bharat Litigation
Respondents'
8. opposing Memorandum of Law purports to distinguish the recent
holding of the Appellate Division, First Department in Local 621 v. New York City Dep't of
(l"
Transportation, 178 A.D. 78 Dep't 2019) as follows:
"In Local 621 the Court expunged EEO letters only because '[t]he
failure to hold a hearing on the charges against these individuals
rights.'
violated their due process Id. (citing D'Angelo, 19 N.Y. 3d
at 667). Here, as opposed to Local 621, no charges have been
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preferred against petitioners and no discipline has been proposed
by the employer, and therefore there can be no CSL §75 due
..."
process violation
Respondents'
Memorandum of Law ("R/M") at p. 12. This statement by Respondents, which
Petitioners'
will be discussed in more detail in accompanying Reply Memorandum of Law, is
misleading both because itomits a critical sentence in the decision and because it
mischaracterizes what happened in Local 621.
9. With regard to the above quotation, Respondents have not included the sentence
that immediately precedes itin the Appellate Division decision:
"It is undisputed that no hearing was held before the
petitioners'
determinations were placed into DOT employment
files."
"determinations"
The referred to were the adverse EEO determinations against the Petitioners in
Local 621.
10. The facts in Local 621, with which-as President of Local 621 I am fully
Respondents'
familiar-refute suggested distinction between what occurred in Local 621 and
what the Respondents here have done to Petitioners Morbelli and McAllister.
11. There were two EEO Determinations that were invalidated by this Court and by
the Appellate Division, First Department in Local 621:
A) A September 15, 2017 determination issued against two members of Local 621
(SMMEs Kubair and Cohen) for supposedly retaliating against certain DOT employees. This
finding was issued without a hearing. In addition to the finding itself,the September 15, 2017
EEO determination required that Kubair and Cohen undergo EEO training. While disciplinary
charges were later preferred against Kubair and Cohen in February 2018, Kubair retired in April
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2018 before the charges could be processed, and Cohen died in August 2018 before his
disciplinary hearing could be held;
B) An October 4, 2017 determination against SMMEs Bharat, Kubair, and Cohen for
alleged discrimination against a disabled Auto Mechanic. Unlike what occurred in the case of
the September 15, 2017 determination, there was no requirement that Bharat, Kubair, or Cohen
attend EEO training. Disciplinary charges were preferred based on these allegations in February
2018. Although neither Kubair nor Cohen remained on the job long enough for hearings on
these charges against them to be held, SMME Bharat did appear at his disciplinary hearing,
which was held between June and October 2018. In a decision dated November 29, 2018, almost
a full year before the November 7, 2019 decision of the Appellate Division in Local 621 was
issued, all disciplinary charges against SMME Bharat were dismissed.
12. As the above history confirms, the reference in Local 621 to the failure to hold
hearings referred to the failure to hold hearings before the issuance of the EEO determinations on
September 15, 2017 and October 4, 2018 and not to any failure to hold disciplinary hearings.
The only reason there were no disciplinary hearings for Kubair and Cohen is because the former
retired and the latter died before the hearings could be held. In the case of SMME Bharat,
contractual disciplinary hearings pursuant to the procedures set forth in the Local 621 contract
were held long before the Appellate Division ruling Respondents cite. In Local 621, as here, the
only Due Process or Civil Service Law § 75 violations claimed were the failures to hold hearings
before the issuance of the EEO determinations. The Petitioners in Local 621 never alleged, and
the courts never found, any violations concerning the disciplinary process. Rather, we
complained in Local 621 about the failure to hold hearings before the issuance of the EEO
determinations themselves, and both this Court and the Appellate Division (in each case citing
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D'Angelo v. Scoppetta, 19 N.Y.3d 663 (2012)] sustained our claims and invalidated the EEO
determinations on that basis. Petitioners raise the very same claims here under D'Angelo
concerning the November 19, 2019 EEO determinations against Morbelli and McAllister; is.,
that the issuance of these determinations without affording either Morbelli and McAllister a
hearing violated their rights under Civil Service Law § 75 and their rights to Due Process, again
citing D'Angelo.
13. Respondents also seek to distinguish D'Angelo on the grounds that the Petitioner
there not only had an adverse EEO determination placed in his FDNY files, but was in addition
required to attend EEO training. R/M at p. 12. What Respondents fail to acknowledge is that in
this regard what happened to Petitioners Morbelli and McAllister is exactly what happened to
SMME Bharat in Local 621. As here, an adverse EEO determination was issued against
Petitioner Bharat with no requirement that he attend EEO training and no other form of
discipline imposed. Itwas that finding against SMME Bharat that was declared unlawful by this
Court and by the Appellate Division in Local 621, and itis that same adverse action against
Petitioners Morbelli and McAllister that is challenged here.
14. By the time of the Appellate Division ruling in Local 621, ithad long been clear
that SMME Bharat was not going to face any penalty other than the fact of the issuance of the
October 4, 2017 determination against him. The existence of that adverse finding was,
Petitioners alleged in Local 621, itself harmful to SMME Bharat, since he lost out on an upgrade
within the SMME titlehe had been a heavy favorite to receive just weeks after the issuance of
that determination. Local 621 is very concerned that Petitioners Morbelli and McAllister may
lose valuable employment opportunities as a result of the November 19, 2019 EEO findings
against them which we challenge here. While we are confident that Petitioners Morbelli and
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McAllister will ultimately be successful in contesting any disciplinary charges that may be
preferred against them, this will not protect them from the same harms SMME Bharat suffered
and which were cited in Local 621. Notably, even today, well over a year after SMME Bharat
was successful in defeating all disciplinary charges against him, the October 4, 2017 EEO
determination against him remains in place (since Respondents have moved for Leave to Appeal
to the Court of Appeals and continue to take advantage of the statutory stay they enjoy).
Petitioners seek injunctive relief here because we do not want Morbelli or McAllister to have to
wait over two years (as has happened to SMME Bharat) before their record is ultimately cleared.
JOÉEPH GIATTINO
Sworn to me this _day
of February 2020
NOT Y P LIC
JAMES M. THAYER
Notary Pub!ic,State of New York
No.
02THû045073
Qualified in New York Count
Cornmission Expires July 24, 20
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Preview
FILED: NEW YORK COUNTY CLERK 03/03/2020 05:06 PM INDEX NO. 162169/2019 NYSCEF DOC. NO. 44 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 8EFM 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 ) JOSEPH GIATTINO, being duly sworn, deposes and says: 1. I am the President of Petitioner LOCAL 621, S.E.I.U. ("Local 621"). I am fully familiar with the facts and proceedings in the EEO matters involving Local 621 members described below. 2. I submit this Reply Affidavit in support of the Petition and to address two points Respondents' raised in opposing papers. A. The Investigation conducted by the Fire Department's EEO Office 3. In both their Verified Answer (¶¶68, 70) and in their Memorandum of Law (at p. 15), Respondents suggest that their findings against Petitioners Morbelli and McAllister were 1 1 of 7 FILED: NEW YORK COUNTY CLERK 03/03/2020 05:06 PM INDEX NO. 162169/2019 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 03/03/2020 comprehensive and reliable since they are said by Respondents to be based on what they gleaned employees." from "thirteen interviews of Fleet Services (Emphasis in original). 4. I attended five of these thirteen interviews; is, those of Petitioners Morbelli and McAllister (on November those of Auto Mechanic Pichardo's direct supervisors- 6, 2019); SMMEs John Evangelou (on October 24, 2019) and Steven Perri (on October 30, 2019)-and of SMME Gary Christiansen on September 26, 2019. Each of these five interviewees is a member of Local 621. In none of these five interviews did any witness allege that Pichardo received his assignments from-or at the direction of-Petitioners Morbelli or McAllister. On the contrary, Morbelli, McAllister, Evangelou, and Perri allmade it clear that Pichardo's assignments came from his immediate supervisors (Evangelou and/or Perri). The other SMME interviewed in this matter, Gary Christianson, does not work in the Ladder Section and was not asked about and did not address the subject. 5. The other eight (8) witnesses interviewed, according to Respoñdeñts, were complainant," Pichardo, "the (as yet unidentified) and six [presumably other] Auto Mechanics coworkers." who are said to be "Pichardo's I did not attend any of these interviews and neither I nor Petiti0ñers Morbelli or McAllister have any direct knowledge of what was said by those witnesses. Respondents have not disclosed whether any of these witnesses claims to have any direct proof of actions by Petitioners Morbelli or McAllister to overrule Pichardo's immediate superiors (Evangelou and Perri) and themselves choose the assignments to be given to Pichardo or any direct proof that Morbelli or McAllister took any action against Pichardo because of the EEOC complaint of his wife, Vanessa Feeley. Six of these witnesses are said to be co-workers of Pichardo, presumably meaning that they are either Auto Mechanics or Auto Service Workers Petitioners' in the Ladder Section. As noted in earlier submissions, there is considerable 2 2 of 7 FILED: NEW YORK COUNTY CLERK 03/03/2020 05:06 PM INDEX NO. 162169/2019 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 03/03/2020 resentment among the Auto Mechanics and Auto Service Workers at Pichardo's work location because of the new tours mandated by the FDNY for which many of these journey-level employees (wrongly) blame Morbelli and McAllister (perhaps because they are the ones responsible for implementing and enforcing these new FDNY policies). Since Respondents never told Local 621, Morbelli, or McAllister who these employees were or what they had to say "believe" (beyond the fact that many of them that Pichardo was a victim of retaliation), Petitioners never had a fairopportunity to respond to the (secret) allegations against them. Respondents' 6. Also of concern is the apparent indication in papers that the complainant against Morbelli and McAllister is neither Pichardo nor any of his co-workers. This suggests that the complainant may be Ms. Feeley herself. If thisis so-and Respondents to this point have concealed this information from Petitioners-then an entirely new issue of retaliation against Morbelli and McAllister will have emerged; k, that the complaint is pay-back by Feeley for the account Morbelli and McAllister gave to FDNY investigators during their May 2019 interview about the Feeley charge that strongly undercuts Ms. Feeley's allegations. 7. The lack of Due Process in the handling of the complaint against Petitioners Morbelli and McAllister has made it impossible for them to address such matters before the precipitous EEO findings were rendered against them. Respondents' B. misstatements concerning the Bharat Litigation Respondents' 8. opposing Memorandum of Law purports to distinguish the recent holding of the Appellate Division, First Department in Local 621 v. New York City Dep't of (l" Transportation, 178 A.D. 78 Dep't 2019) as follows: "In Local 621 the Court expunged EEO letters only because '[t]he failure to hold a hearing on the charges against these individuals rights.' violated their due process Id. (citing D'Angelo, 19 N.Y. 3d at 667). Here, as opposed to Local 621, no charges have been 3 3 of 7 FILED: NEW YORK COUNTY CLERK 03/03/2020 05:06 PM INDEX NO. 162169/2019 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 03/03/2020 preferred against petitioners and no discipline has been proposed by the employer, and therefore there can be no CSL §75 due ..." process violation Respondents' Memorandum of Law ("R/M") at p. 12. This statement by Respondents, which Petitioners' will be discussed in more detail in accompanying Reply Memorandum of Law, is misleading both because itomits a critical sentence in the decision and because it mischaracterizes what happened in Local 621. 9. With regard to the above quotation, Respondents have not included the sentence that immediately precedes itin the Appellate Division decision: "It is undisputed that no hearing was held before the petitioners' determinations were placed into DOT employment files." "determinations" The referred to were the adverse EEO determinations against the Petitioners in Local 621. 10. The facts in Local 621, with which-as President of Local 621 I am fully Respondents' familiar-refute suggested distinction between what occurred in Local 621 and what the Respondents here have done to Petitioners Morbelli and McAllister. 11. There were two EEO Determinations that were invalidated by this Court and by the Appellate Division, First Department in Local 621: A) A September 15, 2017 determination issued against two members of Local 621 (SMMEs Kubair and Cohen) for supposedly retaliating against certain DOT employees. This finding was issued without a hearing. In addition to the finding itself,the September 15, 2017 EEO determination required that Kubair and Cohen undergo EEO training. While disciplinary charges were later preferred against Kubair and Cohen in February 2018, Kubair retired in April 4 4 of 7 FILED: NEW YORK COUNTY CLERK 03/03/2020 05:06 PM INDEX NO. 162169/2019 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 03/03/2020 2018 before the charges could be processed, and Cohen died in August 2018 before his disciplinary hearing could be held; B) An October 4, 2017 determination against SMMEs Bharat, Kubair, and Cohen for alleged discrimination against a disabled Auto Mechanic. Unlike what occurred in the case of the September 15, 2017 determination, there was no requirement that Bharat, Kubair, or Cohen attend EEO training. Disciplinary charges were preferred based on these allegations in February 2018. Although neither Kubair nor Cohen remained on the job long enough for hearings on these charges against them to be held, SMME Bharat did appear at his disciplinary hearing, which was held between June and October 2018. In a decision dated November 29, 2018, almost a full year before the November 7, 2019 decision of the Appellate Division in Local 621 was issued, all disciplinary charges against SMME Bharat were dismissed. 12. As the above history confirms, the reference in Local 621 to the failure to hold hearings referred to the failure to hold hearings before the issuance of the EEO determinations on September 15, 2017 and October 4, 2018 and not to any failure to hold disciplinary hearings. The only reason there were no disciplinary hearings for Kubair and Cohen is because the former retired and the latter died before the hearings could be held. In the case of SMME Bharat, contractual disciplinary hearings pursuant to the procedures set forth in the Local 621 contract were held long before the Appellate Division ruling Respondents cite. In Local 621, as here, the only Due Process or Civil Service Law § 75 violations claimed were the failures to hold hearings before the issuance of the EEO determinations. The Petitioners in Local 621 never alleged, and the courts never found, any violations concerning the disciplinary process. Rather, we complained in Local 621 about the failure to hold hearings before the issuance of the EEO determinations themselves, and both this Court and the Appellate Division (in each case citing 5 5 of 7 FILED: NEW YORK COUNTY CLERK 03/03/2020 05:06 PM INDEX NO. 162169/2019 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 03/03/2020 D'Angelo v. Scoppetta, 19 N.Y.3d 663 (2012)] sustained our claims and invalidated the EEO determinations on that basis. Petitioners raise the very same claims here under D'Angelo concerning the November 19, 2019 EEO determinations against Morbelli and McAllister; is., that the issuance of these determinations without affording either Morbelli and McAllister a hearing violated their rights under Civil Service Law § 75 and their rights to Due Process, again citing D'Angelo. 13. Respondents also seek to distinguish D'Angelo on the grounds that the Petitioner there not only had an adverse EEO determination placed in his FDNY files, but was in addition required to attend EEO training. R/M at p. 12. What Respondents fail to acknowledge is that in this regard what happened to Petitioners Morbelli and McAllister is exactly what happened to SMME Bharat in Local 621. As here, an adverse EEO determination was issued against Petitioner Bharat with no requirement that he attend EEO training and no other form of discipline imposed. Itwas that finding against SMME Bharat that was declared unlawful by this Court and by the Appellate Division in Local 621, and itis that same adverse action against Petitioners Morbelli and McAllister that is challenged here. 14. By the time of the Appellate Division ruling in Local 621, ithad long been clear that SMME Bharat was not going to face any penalty other than the fact of the issuance of the October 4, 2017 determination against him. The existence of that adverse finding was, Petitioners alleged in Local 621, itself harmful to SMME Bharat, since he lost out on an upgrade within the SMME titlehe had been a heavy favorite to receive just weeks after the issuance of that determination. Local 621 is very concerned that Petitioners Morbelli and McAllister may lose valuable employment opportunities as a result of the November 19, 2019 EEO findings against them which we challenge here. While we are confident that Petitioners Morbelli and 6 6 of 7 FILED: NEW YORK COUNTY CLERK 03/03/2020 05:06 PM INDEX NO. 162169/2019 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 03/03/2020 McAllister will ultimately be successful in contesting any disciplinary charges that may be preferred against them, this will not protect them from the same harms SMME Bharat suffered and which were cited in Local 621. Notably, even today, well over a year after SMME Bharat was successful in defeating all disciplinary charges against him, the October 4, 2017 EEO determination against him remains in place (since Respondents have moved for Leave to Appeal to the Court of Appeals and continue to take advantage of the statutory stay they enjoy). Petitioners seek injunctive relief here because we do not want Morbelli or McAllister to have to wait over two years (as has happened to SMME Bharat) before their record is ultimately cleared. JOÉEPH GIATTINO Sworn to me this _day of February 2020 NOT Y P LIC JAMES M. THAYER Notary Pub!ic,State of New York No. 02THû045073 Qualified in New York Count Cornmission Expires July 24, 20 7 7 of 7