The following papers numbered 1 to16 read herein:

Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1-314-15

Answer/Opposing Affidavits (Affirmations)4-616

Reply Affidavit (Affirmation)7-9

Supplemental Affirmation10-12

December 4, 2013 letter13[*2]

Upon the foregoing papers in this CPLR article 78 proceeding, petitioners, William Weidig (Weidig) and Keith Smith (Smith), seek an order: (A) annulling the denial of their employment applications by respondent, the New York City Transit Authority (Transit Authority); (B) declaring that the Transit Authority's determinations not to hire them were arbitrary and capricious, were abuses of discretion and violated New York Correction Law §§ 750-755, New York Executive Law §§ 296 (15) and New York City Administrative Code, Title 8, § 8-107 (10); (C) directing the Transit Authority to reconsider their applications; (D) awarding them compensatory damages pursuant to New York City Administrative Code, Title 8, § 8-502 (a) and/or New York Executive Law § 297 (9); (E) imposing punitive damages pursuant to New York City Administrative Code, Title 8, § 8-502; (F) entering judgment on their behalf "in an amount representing back pay from the time of their denials and all other rights, privileges, or benefits that [p]etitioners would have or become entitled to had they not been denied employment"; or alternatively, (G) directing a trial of any issues raised, and (H) awarding them legal fees and costs, including attorneys' fees, pursuant to New York City Administrative Code Title 8, § 8-502(f) and/or CPLR 8601.

Weidig and Smith also move, pursuant to CPLR 408, for leave to serve limited discovery in this Article 78 proceeding.

Weidig and Smith challenge, by this Article 78 proceeding, the Transit Authority's 2013 determinations not to hire them as full-time cleaners and contend that respondents ^[FN1] "have engaged in unlawfully discrimination by summarily denying employment to the [p]etitioners, qualified job applicants, on the basis of their prior criminal convictions."In response, the Transit Authority denies all allegations of wrongdoing, and avers that its "decision not to hire both individuals was fair, reasoned, and rational" and that it "acted lawfully and without unlawful discrimination at all times."

Before applying for full-time employment as cleaners with the Transit Authority, Weidig and Smith participated in the Workplace Experience Program (WEP), which is administered by the New York City Human Resources Administration (HRA), a separate and distinct agency from the Transit Authority. The HRA administers WEP by placing public service recipients, like Weidig and Smith, into work experience assignments with participating New York City agencies, like the Transit Authority, in exchange for receiving [*3]social service benefits (see Social Services Law § 336 [1] [d]). As WEP participants, Weidig and Smith were assigned to the maintenance division at the Transit Authority in early 2012 "which required the performance of a few hours per week of light duty cleaning work in order to receive welfare benefits from the outside agency."

The Transit Authority invited Weidig and Smith to apply for full-time employment as Transit Authority cleaners, but decided not to hire them upon review of their applications. The Transit Authority evaluated Weidig and Smith for employment based on the information they submitted in pre-employment applications, which requested, amongst other things: (1) employment history; (2) military background; (3) education; (4) training and professional licenses; and (5) "full details" regarding their criminal convictions. Marisol Quinones-Gomez (Gomez), Director of Employment Operations at the Transit Authority, independently reviewed Weidig and Smith's pre-employment applications in January and February 2013 and determined not to offer them full-time employment positions "for different reasons based on different facts unique to each applicant." This Article 78 proceeding ensued in June 2013.

The Transit Authority contends that "Mr. Smith's criminal background played no role in [its] decision not to hire him . . ." Rather, according to the Transit Authority, "Mr. Keith Smith was not hired based on his twenty year employment history demonstrating an inability to hold a job for any significant period of time." Gomez's October 21, 2013 affidavit attests that "Mr. Smith's employment history indicated he would not be a reliable and responsible employee over an extended period of time" since "[m]ost of his numerous jobs over the last twenty years lasted one month or less . . ." Gomez avers that "[i]t is not in the Transit Authority's best interest to spend time and resources training employees who are not committed to the job" and that "[o]ther applicants with a more demonstrable work ethic were instead selected," including twelve other applicants who have criminal records.

In contrast, the Transit Authority acknowledges that Weidig's "criminal background, and his failure to pay outstanding [Transit Authority] fines from 2004 until approximately two weeks before submitting an applications for employment . . . did play a role in [its] decision not to hire him . . ." In its verified answer, the Transit Authority avers that "[t]he decision not to hire Mr. Weidig made in accordance with an analysis of each of the factors under § 753 of the Corrections Law, was lawful, rational and neither arbitrary nor capricious." In addition, Gomez attests that she evaluated Weidig's pre-employment application in accordance with § 753 of the Corrections Law and determined that Weidig "failed to demonstrate sufficient rehabilitation" since "Weidig had been committing crimes over a span of thirty years," the last of which occurred in 2008 when Weidig was an adult. Gomez also considered the nature of Weidig's 2008 convictions for criminal possession of a controlled substance and criminal trespass on a railroad because "cleaners work with hazardous materials and near hazardous conditions (close to train tracks, electrified third rails, and elevated platforms) and must possess good judgment and be responsible." Essentially, the Transit Authority contends that it did not offer Weidig full-time employment [*4]as a cleaner because his history as a career criminal, eight-year failure to settle outstanding Transit Authority fines for multiple violations and "disregard" for the Transit Authority's rules "indicated irresponsibility and insufficient rehabilitation . . ."

The Transit Authority also relies on the October 18, 2013 affidavit of Richard Makarewicz, Director of WEP at the Transit Authority, to establish that "[s]uccessful completion of a WEP rotation does not ensure employment at the Transit Authority . . ."In its verified answer, the Transit Authority avers that "[a]ll WEP participants are informed [that] while the WEP program is a way of developing new skills, there is no guarantee of employment upon completion of the program." Makarewicz attests that the Transit Authority has approximately 500 WEP participants at any given time who "perform light duty cleaning [and] do not perform the same work as Transit Authority cleaners . . ."

"It is well settled that in reviewing administrative action a court may not substitute its judgment for that of the agency responsible for making the determination, but must ascertain only whether there is a rational basis for the decision or whether it is arbitrary and capricious" (Warder v Board of Regents of University of State of NY, 53 NY2d 186, 194 [1981] see Matter of Pell v Board of Educ., 34 NY2d 222, 231-232 [1974]). "An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts" (Matter of Peckham v Calogero, 12 NY3d 424, 431 [2009]). If the determination has a rational basis, it will be sustained, even if a different result would not be unreasonable (id.). A reviewing court should look to the "whole record to determine whether there exists a rational basis to support the findings upon which the agency's determination is predicated" (Purdy v. Kreisberg, 47 NY2d 354, 358 [1979]).

Thus, judicial review of the Transit Authority's determinations not to hire Weidig and Smith is limited to whether each of those determinations was illegal, arbitrary or an abuse of discretion and whether they had a rational basis and are supported by record evidence.

New York Correction Law Article 23-A

Weidig and Smith challenge the Transit Authority's determinations not to offer them employment as arbitrary and capricious based primarily on the Transit Authority's alleged failure to comply with Article 23-A, §§ 750-755 of the Correction Law (Article 23-A).^[FN2] Petitioners contend that the Transit Authority is guilty of employment discrimination based [*5]on petitioners' criminal records in violation of Correction Law § 752 and failed to consider the eight mandatory factors set forth in Correction Law § 753.

Section 752 of the Correction Law provides, in relevant part, that "[n]o application for any license or employment . . . shall be denied . . . by reason of the individual's having been previously convicted of one or more criminal offenses . . ." There are, however, two statutory exceptions to this general rule, which permit a potential employer to deny employment based on an applicant's criminal record if: (1) a direct relationship exists between the criminal offenses and the employment sought or (2) the grant of employment would involve "an unreasonable risk to property or to the safety or welfare of specific individuals or the general public."

Section 753 of the Correction Law provides that a potential employer "shall" consider the following eight factors before denying employment due to an applicant's criminal record: "(a) The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses"; "(b) The specific duties and responsibilities necessarily related to the license or employment sought"; "(c) The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities"; "(d) The time which has elapsed since the occurrence of the criminal offense or offenses"; "(e) The age of the person at the time of occurrence of the criminal offense or offenses"; "(f) The seriousness of the offense or offenses"; "(g) Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct"; and "(h) The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public."

In Acosta v New York City Department of Education (16 NY3d 309 [2011]), the Court of Appeals held that a potential employer's failure to consider each of the eight factors in Correction Law § 753 before denying employment based on an applicant's criminal record renders the determination arbitrary and capricious (see also Formica Constr., Inc. v Mintz, 65 AD3d 686, 688 [2009] [holding that DCA's answer to petition "does not reflect that it considered all eight statutory factors set forth in Correction Law § 753 (1)"]). Significantly, the Court of Appeals admonished that "[i]t is, of course, improper for courts to engag[e] in essentially a re-weighing' of the Correction Law § 753 factors . . ." (Acosta, 16 NY3d at 318 [quotations and citations omitted]).

Transit Authority's Determination Not To Hire Smith

Based on the record, the court finds that the Transit Authority's decision not to offer Smith full-time employment based on his employment history was not arbitrary or capricious and is supported by sufficient record evidence. The Transit Authority's decision not to hire Smith was not unreasonable, since his employment history "demonstrated an inability to work at a full time job for any significant period of time over the last twenty years." Article 23-A and the statutory factors listed in Correction law § 753 are inapplicable because the [*6]Transit Authority's employment determination was not based on Smith's criminal record.

Transit Authority's Determination Not To Hire Weidig

The Transit Authority, on the other hand, admittedly denied employment to Weidig based on his criminal record after considering the eight factors set forth in Article 23-A. Gomez, who reviewed Weidig's pre-employment application, attests that:

"I noted according to the New York Supreme Court's Certificates of Disposition, Mr. Weidig's most recent criminal convictions occurred in 2008. At that time, Mr. Weidig was convicted on two counts of criminal possession of a controlled substance (PL 220.03) and Criminal Trespass on a Railroad (PL 140.10) . . . Based on that information, I considered each of the factors under Corrections Law § 753. I noted these were misdemeanor crimes occurring approximately five years ago when Mr. Weidig was an adult (approximately fifty-four years old). I noted although these were misdemeanors, they were not isolated occurrences, but rather, Mr. Weidig had been committing crimes over a span of thirty years. I noted the public policy in New York State is to encourage licensure and employment of those previously convicted of one or more criminal offenses. I noted while the duties of a cleaner do not require specific education or experience, cleaners work with hazardous materials and near hazardous conditions (close to train tracks, electrified third rails, and elevated platforms) and must possess good judgment and be responsible. I noted all information produced by Mr. Weidig concerning good conduct and rehabilitation (such as, for example, his participation in WEP and all the credits, certificates and counseling he obtained concerning alcohol and drug abuse programs).

"After reviewing all his information, I determined Mr. Weidig failed to demonstrate sufficient rehabilitation. In particular, Mr. Weidig had multiple fines pending against him from the Transit Authority itself since 2004 for violations of: obstruction of seating (February 9, 2004), selling/soliciting at [the Transit Authority] (February 9, 2004 and February 14, 2004), and unauthorized sale of a fare (January 5, 2004). Mr. Weidig neglected to settle these violations for more than seven years until December 20, 2012, approximately two weeks before he applied for employment with the Transit Authority in 2013. This disregard for [Transit Authority] rules (until he decided he wanted to work at [the Transit Authority]) demonstrated irresponsibility and a disregard for authority — undesirable qualities for [Transit Authority] cleaners. Further, at age fifty-four, Mr. Weidig had still been committing crimes (drug possession and trespassing), as he had been for the past thirty years. Mr. Weidig's WEP participation and drug and alcohol counseling, credits and certificates were insufficient to overcome the factors weighing against him (continued commission of crimes at age 54 and failure to settle three separate violations at [Transit Authority] until December 20, 2012). Other applicants, who better demonstrated responsibility and a willingness to comply with authority, were instead selected" (emphasis added). [*7]

Thus, Gomez, on behalf of the Transit Authority, avers that she considered the eight statutory factors enumerated in Correction Law § 753, including New York's public policy of encouraging the employment of applicants with criminal records.

Gomez considered the bearing that Weidig's criminal record would have on his ability to perform the duties of a Transit Authority cleaner and the safety of property and the general public, noting that "cleaners work with hazardous materials and near hazardous conditions." In applying the factors in Correction Law § 753, Gomez considered the time that elapsed since Weidig's most recent conviction (about five years) and the fact that he was an adult (fifty-four years old) at that time. While Gomez noted that Weidig's crimes were misdemeanors, she weighed that against the facts that "they were not isolated occurrences" and that "Weidig had been committing crimes over a span of thirty years." In addition to Weidig's long-standing criminal record, Gomez concluded that Weidig was irresponsible and "failed to demonstrate sufficient rehabilitation" based on multiple Transit Authority violations that were outstanding until the eve of Weidig's pre-employment application. Gomez concluded that Weidig's multiple violations that remained outstanding for several years reflect Weidig's "disregard" for Transit Authority rules.

The Transit Authority submitted sufficient testimonial evidence that it considered each of the statutory factors set forth in Correction Law § 753 when determining not to hire Weidig based, in part, on his criminal record. Petitioners' contention that "[r]espondents cannot point to any contemporaneous evidence to support the fact that such an analysis ever took place" is unavailing. In Acosta, the Court of Appeals specifically held that a potential employer's failure to submit contemporaneous business records evidencing compliance with Correction Law § 753 does not render the employment determination arbitrary and capricious (16 NY3d at 319).

Motion For Limited Discovery

Weidig and Smith also move, pursuant to CPLR 408, for an order granting them leave to serve "narrowly tailored discovery" consisting of proposed document discovery and depositions to support their employment discrimination claims and a potential class action.Specifically, Weidig and Smith seek discovery regarding: (1) the Transit Authority's "decision making process" when it denied them employment, and (2) "similarly situated individuals with criminal records who have been denied employment by the Respondents." Petitioners thus contend:

"[b]ecause the information underlying Respondents' employment decision making process is solely in [their] possession, and because Petitioners' claims require resolving whether discriminatory animus has played any part' in the Respondents' employment decisions, discovery is necessary . . . Petitioners, therefore, seek leave to serve limited discovery, narrowly tailored to obtain evidence that is both material and necessary to support their claims for unlawful discrimination.

. . . . [*8]

"Petitioners believe that this action may ultimately require certification of a class comprised of all WEP interns who have criminal conviction histories and who have been, and continue to be, denied employment with [the Transit Authority] as a result of Respondents' unlawful discrimination. Because establishing the existence and extent of this putative class requires information that is within the exclusive possession and knowledge of the respondents,' discovery is warranted . . . Petitioners, therefore, seek leave to serve narrowly tailored discovery concerning similarly situated individuals with criminal records who have been denied employment by the Respondents."

Weidig and Smith argue that such discovery would not cause any prejudice to the Transit Authority, since "[t]he requested disclosures are easily available . . . and simple to produce"

The Appellate Division, Second Department has held that "[i]n a proceeding such as this, where disclosure is available only by leave of the court . . . the Supreme Court " has broad discretion in granting or denying disclosure" (City of Glen Cove Indust. Dev. Agency v Doxey, 79 AD3d 1038, 1038 [2010]). The Second Department further held that the "pertinent criteria" for limited discovery under CPLR 408 include:

"(1) whether the petitioner has asserted facts to establish a cause of action; (2) whether a need to determine information directly related to the cause of action has been demonstrated; (3) whether the requested disclosure is carefully tailored so as to clarify the disputed facts; (4) whether any prejudice will result; and (5) whether the court can fashion or condition its order to diminish or alleviate any resulting prejudice" (Lonray, Inc. v Newhouse, 229 AD2d 440, 440-441 [1996]).

Finally, denial of leave for limited discovery in an Article 78 is appropriate, in the court's discretion, if the issues "may be fully and fairly determined without the need for discovery" (Price v New York City Bd. of Educ., 16 Misc 3d 543, 551 [Sup Ct, NY County 2007]).

Petitioners' accompanying motion for document discovery and depositions from the Transit Authority to support this Article 78 proceeding and a potential class action is denied. As previously discussed, Weidig and Smith have failed to submit evidence of employment discrimination. In contrast, the Transit Authority produced credible testimonial evidence from Gomez establishing that the Transit Authority complied with Correction Law § 753 when it declined to hire Weidig based on his lengthy criminal history and transit violations. In light of Gomez's affidavit testimony detailing the employment decisions at issue here, there is no need for petitioners to depose "those with personal knowledge of the relevant employment decisions." Furthermore, as discussed above, the Court of Appeals has specifically held that production of contemporaneous records regarding the employment determination at issue is not required in a proceeding involving claims of employment discrimination under Correction Law § 753, as a matter of law (see Acosta, 16 NY3d at 319).Weidig and Smith also seek pre-action discovery for a potential class action on the grounds that "[t]he principles that weigh in favor of granting [them] discovery concerning [*9]their own discrimination claims likewise support permitting discovery concerning discrimination against the putative class." Specifically, Weidig and Smith seek discovery regarding "other similarly situated individuals" based on mere conjecture that the Transit Authority's alleged misconduct "was not an anomaly, but rather arose from a policy and practice" of unlawfully discriminating against WEP participants who have criminal records. Because Weidig and Smith have failed to produce evidence of such a "policy and practice," and their class action claims are based on pure speculation, discovery regarding other Transit Authority applicants is unwarranted. Accordingly, it is

ORDERED AND ADJUDGED that Weidig and Smith's motion for leave to serve discovery, pursuant to CPLR 408, is denied; and it is further

ORDERED AND ADJUDGED that Weidig and Smith's first amended verified petition is denied in its entirety and dismissed with prejudice.

This constitutes the decision, order and judgment of the court.

E N T E R,

__________________________

J. S. C.