For a Judgment Pursuant to Article 78 of the Civil Practice Law and RulesDECISION and ORDER Petitioner Damon James (“Petitioner”) brings this action, pursuant to Article 78 of the New York Civil Practice Laws and Rules (“Article 78″), seeking the Court to annul the Firearm Review Board’s decision denying Petitioner’s application for firearm privilege on May 1, 2018 (the “Decision”), or in the alternative, if the Court deems there is an issue of fact to order an immediate evidentiary hearing pursuant to Article 7804(h) of the Civil Practice Law and Rules (“Article 7804(h)”). Respondents The New York City Department of Correction (“DOC”) and The City of New York (collectively, “Respondents”) oppose.Background/Factual AllegationsPetitioner has been employed by DOC since 2000. Petitioner contends he was employed from 2000 to June 2012, as a correction officer, and from June 2012 to on or about August 2013, as a captain until his demotion back to correction officer. Petitioner states in his Verified Petition that he is an “openly gay African-American male”. (Petitioner’s Verified Petition at 1).Respondent contends that Petitioner was demoted in 2013 from Captain to Correction Officer for “using excessive force and choking an inmate, and then [Petitioner] made a false and inaccurate report about his use of force”. (Respondent’s Verified Answer at 3).In or about July 2014, Petitioner filed an action in New York Supreme Court, Damon James v. City of New York, Assistant Deputy Warden Mingo, Chief Evelyn Maribel, Index No. 157296/2014 (the “2014 Action”). Respondents contend that Petitioner alleged in the 2014 Action that his demotion from Captain to Correction Officer and his loss of firearm privileges in 2013 was because of discrimination based on his sexual orientation. On March 31, 2015, the Honorable Frank P. Nervo dismissed the 2014 Action because Petitioner failed to set forth facts to support his claim.On May 4, 2015, Petitioner filed an application with the Firearms Review Board to carry a firearm. On July 3, 2015, the Firearms Review Board held a hearing and denied Petitioner’s application, holding that the privilege “will remain in abeyance for a period of one (1) year”. On April 3, 2018, Petitioner filed a second application with the Firearms Review Board to carry a firearm. On May 1, 2018, the Firearms Review Board held a hearing and denied Petitioner’s application, holding that the privilege “will remain in abeyance for a period of one (1) year”. Respondent contends that Petitioner’s application was denied based on Petitioner’s “disciplinary history and failure to accept responsibility or demonstrate contrition for any of his disciplinary incidents”. (Respondent’s Verified Answer at 4).Petitioner commenced this action on August 31, 2018 by filing a Verified Petition as an Article 78 special proceeding. Respondents filed their Verified Answer on January 3, 2019.Parties’ ContentionsPetitioner argues that DOC has a “de facto practice of treating gay male employees differently and worse than heterosexual employees”. (Petitioner’s Verified Petition at 2). Petitioner asserts that since 2007 he has been treated unequally because he is a gay male employee and as a result the work environment has been hostile and dangerous. Petitioner contends that in 2007, a female supervisor, Captain Hernandez, was overtly hostile to Petitioner and changed Petitioner’s roll call. Petitioner further contends that in 2007, he was ordered by Captain Hackett to search an inmate and the inmate’s cell, and during the search the inmate shouted at Petitioner due to his sexual orientation and Captain Hackett “acquiesced”.Petitioner argues that discrimination based on sexual orientation is actionable pursuant to New York City Administrative Code §8-107(1). Petitioner asserts that the Firearms Review Board denied Petitioner’s application to carry a firearm as a result of discrimination. Therefore, Petitioner argues that the Firearms Review Board’s denial was arbitrary and capricious.In opposition, Respondents assert that the Court’s review of the Firearms Review Board decision is limited to whether the decision was based on a rational basis. Respondents contend that the Commissioner of DOC is afforded broad discretion and therefore decisions made by the Commissioner must be given deference by the Court.Respondents contend that Petitioner has not satisfied his burden laid out in Melman v. Montefiore Med. Ctr., 98 A.D.3d 107 (1st Dep’t 2012). Respondents argue that Petitioner is alleging that “any” adverse employment action was a result of Petitioner’s sexual orientation. Respondents contend that Petitioner provides no evidence that his application was denied based on discrimination. Furthermore, Respondents argue that Petitioner’s allegations are barred by res judicata or collateral estoppel because the same allegations were alleged in the 2014 Action.Legal Standard“Article 78 proceedings exist for the relief of parties personally aggrieved by governmental action.” Dunne v. Harnett, 399 NYS 2d 562, 563 [Sup Ct, NY County 1977]. Judicial review is limited to questions expressly identified by CPLR 7803. Featherstone v. Franco, 95 NY2d 550, 554 [2000]. One such question is “whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed.” See CPLR 7803 [3]. “[I]t is settled that in a proceeding seeking judicial review of administrative action, the 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.” Flacke v. Onondaga Landfill Systems, Inc., 69 NY2d 355, 363 [1987]. “An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts.” Testwell, Inc. v. New York City Dept. of Bldgs., 80 AD3d 266, 276 [1st Dept 2010].New York City Administrative Code §8-107(1)(a), in relevant part, states:1. Employment. It shall be an unlawful discriminatory practice: (a) For an employer or an employee or agent thereof, because of the actual or perceived age, race, creed, color, national origin, gender, disability, marital status, sexual orientation or alienage or citizenship status of any person: (2) [t]o refuse to hire or employ or to bar or to discharge from employment such person; or (3) [t]o discriminate against such person in compensation or in terms, conditions or privileges of employment.The First Department has held that a plaintiff alleging discrimination in violation of the New York City Human Rights Law must make a prima facie showing that: “(1) [he] is a member of a protected class; (2) [he] was qualified to hold the position; (3) [he] was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination. Melman v. Montefiore Med. Ctr., 98 A.D.3d 107, 113 [1st Dep't 2012] (quoting Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 304 (2004)).”DiscussionPetitioner has failed to demonstrate that the Firearms Review Board’s denial of Petitioner’s application to carry a firearm was arbitrary and capricious and not based on a rational basis. Flacke, 69 NY2d at 363.Furthermore, Petitioner has not shown unfair discrimination. Melman, 98 A.D.3d at 113. Petitioner has shown that (1) he is a member of a protected class, his sexual orientation and (3) an adverse action occurred, denial of Petitioner’s application to carry a firearm, Id. However, Petitioner failed to show that (2) he was qualified to carry a firearm and (4) that the adverse action, denial of Petitioner’s application to carry a firearm, gives rise to an inference of discrimination based on Petitioner’s sexual orientation. Id. Petitioner makes conclusory allegations of discrimination but fails to allege facts that show Petitioner’s application was denied because of discrimination based on Petitioner’s sexual orientation. Respondents, on the other hand, provide a rational basis for their decision grounded in Petitioner’s disciplinary history. Petitioner fails to meet his burden of demonstrating that the denial of Petitioner’s application to carry a firearm should be disturbed by the Court.Wherefore, it is hereby,ORDERED that the Petition is denied; and its furtherORDERED that the Petition is dismissed in its entirety and the Clerk is directed to enter judgment accordingly.This constitutes the decision and order of the court. All other relief requested is denied.Dated: June 19, 2019
