New York City Commission's Bias Complaint Procedures Don't Violate Due Process Rights

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By Jay-Anne B. Casuga

Feb. 10 — A federal district court properly dismissed a fired circuitry worker's claim that the New York City Commission on Human Rights' procedures for investigating and resolving discrimination complaints violated his constitutional due process rights, the U.S. Court of Appeals for the Second Circuit ruled Feb. 7 (Rosu v. City of New York,2014 BL 34583, 2d Cir., No. 13-243, 2/7/14).

The court rejected Mircea Rosu's argument that the city commission failed to provide sufficient process under the 14th Amendment to the U.S. Constitution by not holding a hearing before deciding whether his religious, national origin and disability bias complaint had probable cause.

The court explained that the lack of a hearing before the deprivation of a protected interest will not violate due process “if there is sufficient process after the deprivation.” Here, it said, the commission allows claimants to appeal probable cause determinations to both the commission itself and to New York state courts.

In addition, the appeals court held that requiring an extra hearing for a complainant such as Rosu to present his case prior to an initial probable cause ruling would not necessarily decrease the risk of an erroneous deprivation, and would “undoubtedly” tax the commission's resources.

Judges Rosemary S. Pooler, Barrington Daniels Parker and Richard C. Wesley joined in the per curiam decision.

Commission Found No Probable Cause

Under its administrative complaint procedures, the city human rights commission may choose to mediate an employee's discrimination claim, the court said.

Where mediation is unsuccessful, the commission assigns the case to investigators who determine whether the employee's complaint has probable cause. The investigators may interview witnesses and review documents before reaching a conclusion.

The commission will dismiss a complaint absent a finding of probable cause. However, an employee may appeal that decision to the commission itself and later seek judicial review by New York state trial courts.

In April 2005, Rosu filed an administrative complaint with the commission, alleging that Scientific Components Corp. violated the New York City Human Rights Law by permitting Jewish workers and employees from former Soviet Union countries to harass him based on his Romanian and Christian background.

He also claimed that a manager told him that “Jews were superior to Romanians,” the court said. In addition, Rosu alleged he was fired after he provided Scientific Components with a physician's note indicating that he had experienced a stroke.

The commission assigned Rosu's case to two different sets of investigators, who ultimately concluded that the complaint lacked probable cause. The commission affirmed that determination.

Although Rosu seemingly sought review of the commission's decision in state court, that action was discontinued because of a “technical defect,” the court said.

He eventually sued under the Civil Rights Act of 1871 (42 U.S.C. § 1983) against the city in the U.S. District Court for the Southern District of New York.

Rosu argued that the commission's procedures—which permit it to dismiss a complaint for lack of probable cause in the absence of a hearing that would allow a complainant to cross-examine witnesses or access the agency's investigative file—violate the 14th Amendment's due process requirements.

The district court dismissed Rosu's complaint for failure to state a claim on which relief may be granted, under Rule 12(b)(6) of the Federal Rules of Civil Procedure, and Rosu appealed.

Commission's Procedures Satisfy Due Process

Affirming, the Second Circuit ruled that the human rights commission's procedures provide sufficient process under the 14th Amendment.

The absence of a hearing before the deprivation of that protected interest—that is, dismissal for lack of probable cause—does not violate due process “if there is sufficient process after the deprivation,” the Second Circuit said.

The court acknowledged that Rosu's discrimination claim constituted a protected property interest.

However, the absence of a hearing before the deprivation of that protected interest—that is, dismissal for lack of probable cause—does not violate due process “if there is sufficient process after the deprivation,” the court said, relying on Spinelli v. City of New York, 579 F.3d 160 (2d Cir. 2009).

Here, the commission allows administrative and judicial review of its probable cause determinations, thus satisfying constitutional due process requirements, the court said.

In addition, the appeals court measured the risk of an erroneous deprivation under the commission's procedures against the value of adding an extra hearing prior to an initial probable cause ruling.

“Though any additional step in the procedures might theoretically make a mistake less … likely, it is not clear that new procedures, as suggested by Rosu, would necessarily make this less likely,” the court said.

The Second Circuit also assessed the government's interest, observing that “common sense dictates that the addition of an extra hearing … prior to an initial probable cause assessment would undoubtedly tax” the commission's resources.

“Additional personnel would be needed to conduct the hearing and new procedures for reviewing the record presented,” the court said. “This would not only be costly, it would slow the processing of complaints in the [c]ommission, perhaps depriving others of their timely process.”

Derek T. Smith of Akin & Smith in New York represented Rosu. Ellen S. Ravitch of the New York City Law Department represented the city.

 

To contact the reporter on this story: Jay-Anne B. Casuga in Washington at jcasuga@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the opinion is available at http://www.bloomberglaw.com/public/document/Rosu_v_City_of_New_York_Docket_No_1300243_2d_Cir_Jan_15_2013_Cour.