Conviction Record Discrimination Claim Against ACS Rejected; CPLR Article 78 Petition Dismissed

In Whitfield v. City of New York Admin. For Children’s Services, No. 101407/2019, 2020 WL 5040369 (N.Y. Sup Ct, New York County Aug. 26, 2020), the court rejected the petitioner’s claim of impermissible discrimination based on his criminal record (specifically, a conviction for second degree murder).

The Court framed the issue – which came before it in the context of a petition asserted under CPLR Article 78 – as “whether ACS’s determination was made in good faith, was rational, and based only on permissible factors, or whether the reasons proffered by ACS for its determination were pretextual, that is, the actual reason for denial of the application was in fact the petitioner’s criminal record.” It concluded that the determination not to hire the petitioner “was rational, based upon appropriate factors, and not discriminatory.”

Specifically, after summarizing the substantive law (including N.Y. Executive Law § 296(15) and N.Y. Correction Law §§ 752 and 753), the court explained:

The administrative record, as supplemented by ACS’s additional filing, reflects that there were numerous applicants for the position of YDS, and that there were many vacancies in that position on a rolling basis, in other words, the applicants were not competing for one slot. A review of the resumes and applications of the successful applicants reveals that all of them had significant prior experience as one-on-one youth counselors, the one qualification that ACS claimed that the petitioner lacked. Many of the successful applicants had extensive experience as one-on-one youth counselors working for ACS itself, other municipal agencies, private social service agencies, hospitals, and youth homes. In addition, several of the successful applicants had criminal records, and one successful applicant had been convicted of manslaughter. Hence, there is no basis for the petitioner’s claim that ACS discriminated against him on the basis of his prior criminal record or that his qualifications necessarily were superior to any of the successful applicants.

Interestingly, Judge Kelley noted that “had the petitioner commenced a direct action against ACS pursuant to Executive Law § 298 alleging unlawful discrimination in hiring on the basis of his criminal record, rather than seeking judicial review pursuant to CPLR article 78, he would have had the opportunity to establish his claims only by the preponderance of the evidence,” but that since “petitioner elected to challenge ACS’s hiring decision via this CPLR article 78 proceeding, the court is constrained to apply the ‘arbitrary and capricious’  standard of judicial review (see CPLR 7803[3]), which is far more deferential to the factual findings of the agency decision maker than is the ‘preponderance of the evidence’ standard.”

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