New York State Court of Claims

New York State Court of Claims

LERNER v. THE STATE OF NEW YORK, #2001-016-210, Claim No. 99692


No State constitutional tort violative of free speech found where the claimant, a parole officer, communicated with his elected representatives about the unprofessional behavior of his supervisor vis a vis him.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Alan C. Marin
Claimant's attorney:
Jeffrey S. Karp, P.C.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Gail Pierce-Siponen, AAG
Third-party defendant's attorney:

Signature date:
December 10, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This decision follows the liability trial of the claim of Gary Lerner, which arose from his employment with the New York State Division of Parole. Lerner had worked for the Division

since 1980, from 1994 as a senior parole officer.
The events in question occurred in 1997 and 1998 when claimant was assigned to Region 3 of Queens County, supervising a unit consisting of six
parole officers. His duties included conferences with these officers to evaluate their cases and review the chronological entries for each. Lerner was responsible for deciding whether an arrest warrant would be appropriate, and was the issuing officer. Claimant also had case-related contacts as appropriate with assistant district attorneys and other counsel. Lerner's immediate supervisor from August of 1996 into 1997 had been Patrick Hoy. The genesis of this claim lies with the workplace relationship between officers Lerner and Hoy.
Hoy did not testify. Claimant took the stand and called Debra Boyd, a secretary in the Region 3 bureau; Richard Barten, a fellow senior parole officer; Arthur Hollinsed,
a retired senior parole officer and union representative; and Betty Kyle, a parole officer supervised by claimant. Defendant called three managers from the Division: Gustave Person, Ferdinand Diaz and Carl Cornelius.
* * *
The earliest friction between claimant and Hoy can be traced to an April 1997 incident involving Officer Kyle and her testimony in Syracuse at a parole hearing for a drug dealer.
Lerner testified that he had made the arrangements for Kyle's trip. Claimant learned from Hoy that he was forbidding Kyle to take her weapon. Lerner recalled that claimant then went to him, her immediate superior. He expressed agreement with her, but pointed out that he had to follow Hoy's direction; what he would do was arrange to have Kyle met by armed personnel of the Division at the Syracuse airport, and the same upon her return to New York City.
Kyle had already left for upstate, when according to Lerner's testimony, Hoy came over to him, insisting that
, "nobody was allowed to pick her up when she landed in LaGuardia. Only he, Patrick Hoy, could pick her up [at the airport]. . . I contacted Mr. Hollinsed, who was shop steward, to inform him." Hollinsed then spoke to the Deputy Director Cornelius and relayed to claimant Cornelius' view that he simply ignore Hoy and have Officer Kyle met at the airport in Queens.
Hoy proceeded to bring Hollinsed up on insubordination charges, and at the hearing called claimant as a witness against Hollinsed. Lerner recalled Hoy saying, "
I betrayed him, and he would do anything in his power to get me."
At least two other officers subsequently heard Hoy say that he was going to shoot claimant "in the ass." None of defendant's witnesses denied that the threats occurred; at least one explained that he did take it seriously. As late as mid-August, claimant testified that while he and Hoy were reviewing some cases, Hoy said to him that when they were finished "you and I are going to [go] at it." In September 1997
Hoy was transferred out of the Region 3, and Gustave Person became claimant's supervisor. As noted, Hoy was not called by the defendant, which expended no effort trying to defend his behavior.
* * *
Lerner in his trial (and deposition) testimony made no allegation in support of his cause of action for religious discrimination based upon the State Human Rights Law (Executive Law §296). Nor did any other witness. There was, however, in an exhibit from the defendant, a mention of time-off for a religious holiday, but which by its own -- unchallenged -- terms does not support a claim for religious discrimination (exh A).[1]
Defendant at trial moved to dismiss such cause of action; that motion is now granted.
The description of the Lerner-Hoy interaction serves as background to the real issue in this case, namely, what happened when Lerner went outside the agency to complain about how Hoy's actions
vis a vis him were being handled. Lerner had written a letter on May 28, 1997 to his State Senator, which provided in part that:
I am writing to inform you of a very serious matter that happened to me at my job . . . I was recently informed by two other officers with the Division of Parole that my supervisor Patrick Hoy had stated that he was going to shoot me. I contacted the Regional Parole Office and I was informed that they would handle the matter.
However, to date, they have not taken away his gun or removed him from close proximity to me. I feel that my life is in danger and the Division of Parole has taken no action.

Senator Norman J. Levy immediately wrote to the Chair of the Division and a response, via the executive director, was also quickly dispatched:[2]
At the Chairman's direction, Regional Director Diaz of this Division completed
a detailed investigation of the situation involving Senior Parole Officer Lerner. In a report submitted on May 20, 1997, he indicated that Senior Parole Officer Lerner's life is not in danger and that a safe working condition exists. His review also noted that administrative action would be recommended if continuing investigation showed this to be appropriate.

Lerner had also gone to the district attorney regarding Hoy's threatening behavior, but was asked by his superiors to hold off, which he did.
The surviving cause of action contends that by retaliating against Gary Lerner for going outside the chain-of-command, defendant has violated claimant's free speech and petition rights under the State Constitution (Article I, §§ 8 & 9), relying upon
Brown v State of New York, 89 NY2d 172, 652 NYS2d 223 (1996).
Lerner's superiors were undeniably upset at him for bringing in the legislators.
Ferdinand Diaz stated that he became aware of claimant's communications with his legislators because "[o]ne day I got a telephone call from my boss, Mike Cohen, who was very angry, regarding the situation [re the legislators] . . . I 'm [Cohen] getting telephone calls and the chairman is getting phone calls."
Q. And what was the reason that Mr. Cohen was upset? A. [He] had a very strict chain of command.
Q. But did he tell you that he was upset with Gary Lerner? A. Oh, yes. Yes.
Carl Cornelius in 1997 was a deputy regional director for Brooklyn, Queens, Staten Island and Long Island. He had a softer, perhaps sanitized, take on what the legislative intervention caused, recollecting a telephone call from either the statewide director of operations or his deputy: "they had asked me to let him know that he had gone outside the chain of command. We would much have preferred that he had take[n] things up, if there was a problem, he had come through the chain of command. And if it wasn't resolved, that he was free to go outside then."

This animus apparently manifested itself in an audit of Lerner's files that was conducted in July, 1997.
Two other similarly situated individuals -- the senior parole officers at his worksite were not audited. The audit was performed with some notable administrative clout -- in both numbers and rank, according to Richard Barten, also a senior parole officer with an office next door to Lerner: Diaz, Cornelis and the deputy regional director for Brooklyn, Lou Cally. Under the circumstances, it was appropriate to exclude Hoy from participation in the audit, even though he was claimant's immediate supervisor. Defendant's witnesses were unconvincing in trying to make this audit of Lerner look like business as usual.
Moreover, claimant testified that he was frisked. Patting down is odd because claimant was required to carry his weapon. The State's witnesses were stepping gingerly in a matter they felt defensive about; Diaz appeared a reluctant witness, his testimony filled with
"I don't recall" and "I may have" in his answer as to whether he submitted a report on Lerner. Nor would any superior officer be likely to forget whether he frisked a fellow officer. Diaz could not even deny it is the kind of thing he would never do – "I don't remember patting him down."
In any event, there is no precedential support for the position that such an audit, whatever the underlying motivation, constitutes an adverse employment action. Compare with
Yankelevitz v Cornell University, 1996 WL 447749 (SD NY 1996).
Hollinsed, claimant's own witness and union representative, conceded without contradiction that there was no evidence that claimant's compensation, seniority, right to transfer thereto or work assignment was affected. However, a counseling memorandum or an unsatisfactory performance evaluation like the ones received by claimant[3] do have a sufficiently substantive impact in the workplace to support an otherwise valid claim of retaliation. Beattie v Guilderland Central School District (which included a reprimand),124 F. Supp 2d 802, 806 (ND NY 2000) and see, analogously, in the whistleblower law: the definition of adverse personnel action includes "evaluation of performance" (Civil Service Law §75-b for the public sector).
Claimant asserts that he was treated differently than his similarly situated senior parole officer colleagues. For example, one of them, Officer Beatrice Cunningham, lost the entire files for a two-year period for two parole officers in her unit. One of defendant's witnesses lamely explained that maybe these large two books fell into the "large" wastebasket next to her desk.

On October 30, 1998, Officer Person issued a counseling memorandum to claimant (cl exh 7). This memo can properly be construed to be an adverse personnel action. Note that Person observed on the witness stand that: "I considered [the counseling memo] to be a serious matter. There are a number of things I could have done at that point. I could have issued him a verbal reprimand. I could have issued a counseling memo, or I could have requested that my supervisor bring him up on formal disciplinary charges." A copy of the memorandum was placed in Lerner's permanent personnel record.
But, the facts evince a legitimate, non-retaliatory ground for the counseling memo.[4]
See generally, Ferrante v American Lung Association, 90 NY2d 623, 665 NYS2d 25 (1997); Coombs v Village of Canaseraga, 247 AD2d 895, 668 NYS2d 862 (4th Dept 1998). In the summer of 1998, homicide detectives had been seeking to arrest a parolee for murder. Officer Person testified that when he went to Lerner's office (who was out on sick leave) to review the supervisory records on the parolee, he discovered that his case record was very incomplete. When Lerner returned from sick leave in late September, Person randomly selected 24 cases drawn from four of claimant's parole officers and reviewed them, but only for information entered before claimant went on sick leave. He found all 24 to be unsatisfactory.
Person came across as professional and persuasive.
At about the same time,[5]
Person evaluated Lerner as Satisfactory for the period from September, 1997 to October, 1998; after thinking it over and conferring with Deputy Regional Director Cornelius, changed it to Unsatisfactory. But this personnel action cannot, for our purposes, be viewed as adverse inasmuch as the evaluation was reversed on appeal and the satisfactory rating restored. While the appeals board noted Lerner's "zero compliance with agency standards for documenting case conferences," the board ruled that some action should have been taken to "address this performance issue" during the one-year evaluation period (cl exh 9).
* * *
Even were the Lerner personnel actions found to be merely a pretext to cover retaliation for writing to his elected representatives, such will not support a State constitutional tort per
Brown, supra. No precedent therefor exists, and claimant, for his part, in his Brief cites only to Brown and an inapposite case involving the National Guard.[6]
In 1996 in Brown, the Court of Appeals sustained claims for damages brought in this court that were based upon the equal protection and unreasonable searches and seizures provisions of the State Constitution (Article I, §§11 & 12). The facts underlying Brown arose from the reported assault of a woman in her home outside the city limits of Oneonta, a campus of the State University. After the victim described her assailant as a black male, the state police (with the aid of university and local law enforcement) secured a list of every black male at SUNY-Oneonta and interrogated each one. When this procedure yielded no suspects, the police began a five-day street sweep in which every black male in and around the City of Oneonta was stopped and interrogated.
The Court of Appeals stated, "Damages are a necessary deterrent . . . remedies now recognized, injunctive or declaratory relief, all fall short. Claimants are not charged with any crime as a result of their detention and thus exclusion has no deterrent value. Claimants had no opportunity to obtain injunctive relief before the incidents described and no ground to support an order enjoining future wrongs." 89 NY2d at 192, 652 NYS2d at 235.
The Court of Appeals, in a case decided November 19, 2001, its first constitutional tort case since Brown, described such cause of action as a narrow remedy addressing two interests: "the private interest that citizens harmed by constitutional violations have an avenue of redress, and the public interest that future violations be deterred." Martinez v City of Schenectady, 2001 WL 1459659 (2001). Such language has a similar basis as that found in the cases brought under the First Amendment of the U.S. Constitution:
The determination whether a public employer has properly discharged an employee for engaging in speech requires "a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering v Board of Education, 391 U.S. 563, 568 . . . (1968); Connick v Myers, 461 U.S. 138, 140 . . . (1983) . . . The threshold question . . . is whether [the] speech may be "fairly characterized as constituting speech on a matter of public concern." Connick, 461 U.S. at 146 . . .

Rankin v McPherson, 483 US 378, 384 (1987).
Mr. Pickering was dismissed from his position as a school teacher for writing a letter to the local newspaper complaining about his school district's budgetary process. See analogously, a case brought under New York's private sector whistleblower statute (Labor Law §740) alleging retaliation for reporting safety violations at a nuclear power plant. Bordell v General Electric Company, 88 NY2d 869, 644 NYS2d 912 (1996).
Lerner recognized the limited scope of his complaint:
"I am writing to inform you of a very serious matter that happened to me at my job." (Emphasis added; cl exh 1). The facts at bar do not, even assuming the actions of the defendant were pretextual, fall within the protection of Brown v State of New York.
Therefore, the claim of Gary Lerner (claim no. 99692) is dismissed. All previous motions not ruled upon are hereby denied.

December 10, 2001
New York, New York

Judge of the Court of Claims

  1. [1]Correspondence dated September 26, 1997 to Lerner from the Division's employee relations officer includes the following passage on this issue: " Mr. Diaz checked with the North Bellmore Temple and learned that no service was scheduled for April 29, 1997. The letter you submitted from Rabbi Goldscheider did not establish that there was. Moreover, you made no formal request of Mr. Hoy for time off and could have left to attend a service if one was, in fact, scheduled had you completed the assignment promptly and timely."
  2. [2]See claimant's exhibits 2 & 3. Exhibit 4 is the Chair's response to claimant's representative in the State Assembly, Donna Ferrara, whom Lerner had telephoned, not written.
  3. [3]There was some effort to show workload differential, but the argument was inadequately developed.
  4. [4]And this is without addressing the reality that the passage of time tends to weaken any causative link: claimant is attempting to prove that the memorandum of October, 1998 was in retaliation for events that occurred more than a year before. Claimant does not complain about an earlier counseling memo issued on July 22, 1997 by Diaz (def exh B). The Division's employee relations officer stated, "I note that you have not disputed ...your failure to use controls, or your failure to conference with your Parole Officers" (def exh A, page 2).
  1. [5]Cl exh 8. Person's signature is dated October 29, 1998 and Cornelius' is dated November 4, 1998.
  2. [6]Kolomick v New York Air National Guard, 219 AD2d 367, 642 NYS2d 915 (2d Dept 1996), app dismissed 88 NY2d 1064, 651 NYS2d 407 (1996).