IN RE: Wasyl KINACH (2018)

Judgment, Supreme Court, New York County (James d'Auguste, J.), entered on or about November 21, 2016, which denied the petition challenging Mayor's Personnel Order No.2016/1, establishing certain paid parental leave and cancelling a planned pay increase and the accrual of two days of annual leave for managers with 15 or more years of experience, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.  Order, same court and Justice, entered on or about January 9, 2018, which denied petitioners' motion to renew, unanimously affirmed, without costs.

On January 7, 2016, the Mayor issued the Mayor Personnel Order [MPO] No.2016/1, “Paid Parental Leave for Managerial and Original Jurisdiction Employees.”  The order provided that, effective December 22, 2015, managers and original jurisdiction employees would be entitled to 30 days paid parental leave (PPL), every 12–month period, for the birth of a child, adoption, or foster care.  To finance this benefit, the order modified MPO Nos.2015/1 and 2015/2, to eliminate a 0.47% wage increase scheduled to go into effect on July 1, 2017, and modified the annual leave schedule for covered titles by eliminating the accrual of the 26 th and 27 th annual leave days, capping the accrual of annual leave days at 25 days.

Petitioners, five managers, all over the age of forty (40), who work for respondent agencies, challenge MPO No.2016/1, insofar as it cancelled the planned pay raise and capped annual leave accrual at 25 days, eliminating an additional two days of leave given to managers with at least 15 years of experience.  Petitioners did not have a contractual right to the prospective raise or additional annual leave days (see Dodge v. Board of Educ. of City of Chicago, 302 U.S. 74, 78–80, 58 S.Ct. 98, 82 L.Ed. 57 [1937];  Cook v. City of Binghamton, 48 N.Y.2d 323, 329–331, 422 N.Y.S.2d 919, 398 N.E.2d 525 [1979] ).

Petitioners failed to state a claim of age discrimination, under the New York City Human Rights Law (Administrative Code of City of N.Y. § 8–107) and/or the New York State Human Rights Law (Executive Law § 296[1][a] ).  The alleged adverse action did not occur under circumstances giving rise to an inference of discrimination (see e.g. Ferrante v. American Lung Assn., 90 N.Y.2d 623, 629, 665 N.Y.S.2d 25, 687 N.E.2d 1308 [1997];  Melman v. Montefiore Med. Ctr., 98 A.D.3d 107, 113, 946 N.Y.S.2d 27 [1st Dept. 2012] ).  The claim is based upon the false premise that women over 40 years of age cannot bear children, which ignores the fact that PPL benefits cover biological fathers, and any individual, regardless of age, who becomes a parent through adoption or by fostering, and is undercut by petitioners' submission of data reflecting that members of their age group received PPL benefits.  MPO No.2016/1 is facially neutral and applies equally to all covered employees, regardless of age (see Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 321, 786 N.Y.S.2d 382, 819 N.E.2d 998 [2004] ) and no disparate impact has been shown (see Mete v. New York State Off. of Mental Retardation & Dev. Disabilities, 21 A.D.3d 288, 296–297, 800 N.Y.S.2d 161 [1st Dept. 2005] ).

No claim for a violation of the New York's equal protection clause (N.Y. Const, art 1, § 11) has been stated as MPO No.2016/1 treats all similarly situated employees alike (see Matter of Walton v. New York State Dept. of Correctional Servs., 13 N.Y.3d 475, 492, 893 N.Y.S.2d 453, 921 N.E.2d 145 [2009] ).

The state's non-impairment clause (N.Y. Const, art V, § 7) is not implicated as the challenged action does not involve a change directly related to retirement benefits (see Matter of Lippman v. Board of Educ. of the Sewanhaka Cent. High School Dist., 66 N.Y.2d 313, 317, 496 N.Y.S.2d 987, 487 N.E.2d 897 [1985];  Hoar v. City of Yonkers, 295 N.Y. 274, 279, 67 N.E.2d 157 [1946] ).

The cost-cutting measures chosen to pay for the PPL benefit are not arbitrary and capricious (see Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974] ).  Petitioners' belief that less extreme cost-cutting measures should have been taken does not render respondents' determination irrational (see Matter of Saratoga Lake Protection & Improvement Dist. v. Department of Pub. Works of City of Saratoga Springs, 46 A.D.3d 979, 988, 846 N.Y.S.2d 786 [3d Dept. 2007] ).

Finally, the court properly denied the renewal motion, as petitioners failed to offer new facts that would change the prior determination (CPLR 2221[e][2] ).