In Matter of Whitfield v. City of New York, 199 A.D.3d 548, 2021 WL 5364756, 2021 NY Slip Op 06466 (App. Div. 1st Dept. Nov. 18, 2021), the court upheld the determination to decline to hire petitioner as a youth development specialist.
The respondent proffered two reasons for not hiring the petitioner. The first was that the petitioner lacked relevant experience. The second was based on a 2003 essay in which the petitioner “expressed views of the fundamental unfairness of the criminal justice system.”
The court rejected petitioner’s arguments based on this rationale, including his argument that the determination violated the First Amendment.
While such opinions might help petitioner to empathize and bond with youth charged to his care, it was not irrational for the respondent to conclude that petitioner’s opinions might demonstrate a cynicism that would impede his ability to counsel at-risk youth who were enmeshed in the system. It was also rational for respondent to believe that petitioner continued to hold those views, particularly since petitioner submitted the essay in support of his application.
Also unavailing is petitioner’s argument that, to the extent respondent declined to hire him on account of the views he expressed in the 2003 essay, it violated his free speech rights under the First Amendment. It was rational for respondent to be concerned about the potential disruptiveness of petitioner’s speech (see Johnson v Ganim, 342 F3d 105, 114 [2d Cir 2003]; see e.g. Matter of Spence v New York State Dept. of Agric. & Mkts., 154 AD3d 1234, 1236 [3d Dept 2017], affd 32 NY3d 991 ). To the extent there was some concern about the likelihood that petitioner’s work with children would be affected by his views, the concern was rationally based in the essay’s content and context. The record supports respondent’s assertion that it declined to hire petitioner because of its concern for the potential impact of his speech on his work, and not in retaliation for the content of that speech.
The court also held that there was no basis for finding that respondent did not hire petitioner because of his criminal conviction in violation of NY Correction Law § 752 and Executive Law § 296(15); “[t]o the contrary, the record shows that respondent viewed rehabilitated persons with criminal convictions — such as petitioner — as ‘Credible Messengers’ for at-risk youth, and frequently hired such persons, including one person with a manslaughter conviction, as [youth development specialists].”