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.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
Alan C. Marin
Jeffrey S. Karp, P.C.
Eliot Spitzer, Attorney GeneralBy: Gail Pierce-Siponen, AAG
December 10, 2001
See also (multicaptioned
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
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
Defendant at trial moved to dismiss such cause of action; that motion is now
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
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
At the Chairman's direction, Regional Director Diaz of this Division
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
Lerner's superiors were undeniably upset at him for bringing in the
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."
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
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
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
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
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
At about the same time,
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
* * *
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
. No precedent therefor exists, and claimant, for his
part, in his Brief cites only to Brown
and an inapposite case
involving the National Guard.
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
, 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.
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
, 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
, 461 U.S. at 146 . . . Rankin v
, 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
, 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
previous motions not ruled upon are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
December 10, 2001
York, New York
HON. ALAN C. MARIN
Judge of the Court of Claims
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."
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.
There was some effort to show workload
differential, but the argument was inadequately developed.
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).
Cl exh 8. Person's signature is dated October
29, 1998 and Cornelius' is dated November 4, 1998.
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).