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Matter of Michael D’Angelo v Nicholas Scoppetta

Matter of Michael D’Angelo v Nicholas Scoppetta

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Published by Leonard E Sienko Jr

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Published by: Leonard E Sienko Jr on Dec 28, 2012
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07/17/2014

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=================================================================This opinion is uncorrected and subject to revision beforepublication in the New York Reports.-----------------------------------------------------------------No. 166In the Matter of MichaelD'Angelo,Respondent,v.Nicholas Scoppetta, &c., et al.,Appellants.Ellen Ravitch, for appellants.Michael N. Block, for respondent.CIPARICK, J.:In this appeal, we consider whether a written letterfrom the Assistant Commissioner of the Fire Department of theCity of New York (the Department) to petitioner firefighteradvising him that he violated the Department's Code of Conductand Equal Employment Opportunity (EEO) Policy may be made part of- 1 -
 
- 2 -No. 166petitioner's permanent EEO file without affording him anopportunity for a hearing pursuant to section 15-113 of theAdministrative Code of the City of New York. We conclude thatpetitioner is entitled to a hearing before the Department mayplace such letter in his permanent file.Petitioner has been employed as a firefighter with theDepartment since 2003. On January 22, 2006, petitioner andRussell Harris, an emergency medical technician with theDepartment, separately responded to the scene of a motor vehicleaccident in Brooklyn. There, Harris alleges that petitionerassaulted him and yelled a racial epithet at him. In response,Harris filed a police report and notified a supervisor. Alieutenant at Harris' station prepared an Unusual OccurrenceReport (UOR) describing the purported incident and identifyingpotential witnesses. Based upon this UOR, the Department'sBureau of Investigations and Trials (BIT) initiated an internalinvestigation.
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 Three days later, Harris lodged a complaint with theDepartment's EEO office and a two-year investigation ensued.During this time, the EEO office notified petitioner of thecomplaint and interviewed him. The EEO office also questionedother personnel present at the time of the alleged incident,including individuals named by petitioner. At the conclusion of
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Neither the police nor BIT ultimately took any actionagainst petitioner.- 2 -
 
- 3 -No. 166the investigation, the EEO office found that the evidencesubstantiated Harris' allegations that petitioner made aninappropriate racial slur.An attorney with the EEO office prepared a reportsummarizing the findings of its investigation and furnished it tothe Assistant Commissioner of the Department. In turn, theAssistant Commissioner submitted her own report to theDepartment's Commissioner, detailing the determination of the EEOoffice and recommending that petitioner receive additional EEOtraining and that he "sign and acknowledge an Advisory Memorandumregarding the rights and responsibilities" of an employee withthe Department. Upon review, the Commissioner approved thisrecommendation.Accordingly, by letter dated June 5, 2008, theAssistant Commissioner informed petitioner that the EEO officehad determined he "exercised unprofessional conduct and made anoffensive racial statement" in connection with the complaintfiled against him by Harris. The letter instructed him to readand sign the attached Advisory Memorandum and advised him that hewould receive further EEO training at a future date. TheCommissioner characterized the letter to petitioner "as a formalNotice of Disposition of the filed Complaint." The letter wassubsequently placed in petitioner's permanent EEO file.Petitioner objected to the placement of this letter inhis EEO file contending that the Department denied him due- 3 -

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