Appellate Division sustains employee's appeal of the employer's denial of the employee's out-of-title work grievance

Plaintiff in this appeal to the Appellate Division was employed as a Supervising Support Investigator, Salary G-15 by the County's Department of Social Services [DSS]. 

Plaintiff filed a grievance pursuant to the relevant collective bargaining agreement between the County and the Plaintiff's Union alleging that Plaintiff began performing out-of-title work following the resignation of the supervisor of the DDS' child support unit then serving in the title of Supervisor of Investigations and Support [Salary Grade-20]. Plaintiff contended that she commenced supervising the entire DSS child support unit but served in the title of, and was being paid as, a Support Collection Supervisor [Salary Grade-18]. Her grievance was denied and the Union demanded the matter be submitted to arbitration. The arbitrator ultimately ruled in favor of the County. 

Plaintiff then initiated the instant CPLR Article 78 proceeding, contending that DSS violated Civil Service Law §61(2) by assigning her to perform out-of-title work without providing her with the appropriate compensation for her services.

The Appellate Division explained that "Out-of-title work, other than that performed on an emergency basis, is prohibited by Civil Service Law §61(2)", noting that "[it] is well settled that an out-of-title work assignment exists when an employee has been assigned or compelled to perform the duties of a higher grade, without a concomitant increase in pay, frequently recurrently and for long periods of time, unrelated to any temporary emergency requirement", citing a number of relevant New York State Court to that effect in its decision.*

In the words of the Appellate Division, "It was undisputed that Petitioner was tasked with the supervision of DSS's entire child support unit during the relevant time period". The Appellate Division said that the question before it "distills to whether a rational basis supports finding that such a supervisory role fell within the duties of [Plaintiff's] job title".

The Appellate Division said that the record in the instant matter indicated that the County Civil Service Commission [Commission] had informed DSS that a determination concerning its request for the reclassification of the Supervising Support Investigator position had been made but the job description for the position set out in the County's MSD-222 form submitted by DSS to the Commission as part of its application for reclassification of the position "was not adopted by the Commission". Instead, the position's duty specifications submitted by DSS were revised by the Commission.**

The Appellate Division concluded that DSS' reliance on the job description in its MSD-222 form submitted to the Commission was misplaced and "merely reflects DSS' unsuccessful effort to include a general supervisory duty as part of the reclassification of the grade 15 title". 

Accordingly, the Appellate Division held that DSS' determination that Plaintiff's supervision of DSS's entire child support unit fell within her job title specifications and thus did not constitute assigned out-of-title work was "without a rational basis and must be reversed".

The Appellate Division then remitted the matter to DSS for further proceedings "not  inconsistent" with the Court's decision.

* The Appellate Division also noted that "[n]ot all additional duties constitute out-of-title work but, instead, the question is whether the new duties are appropriate to [the individual] petitioners' titles and/or are similar in nature to, or a reasonable outgrowth of, the duties listed in [the individual] petitioners' job specifications" and the Court's review of an out-of-title work grievance is limited to "whether the record as a whole provides a rational basis for the underlying determination, which will not be disturbed absent a showing that it is wholly arbitrary or without any rational basis".

** The Appellate Division opined that, when applying for employment in a job title, "an applicant relies upon the published job description and not the employer's application underlying the creation or reclassification of that title. To be sure, the applicant may not be aware of or, for that matter, have access to that application short of making a request pursuant to the Freedom of Information Law".

Click HERE to access the Appellate Division's decision posted on the Internet.

July 4, 2026 Attendance and Leave Memorandum issued by the New York State Department of Civil Service

Advisory Memorandum -- Independence Day -- July 4, 2026

The text of the New York State Department of Civil Service's Advisory Memorandum 2026-03 has been posted on the Internet at:

AM 2026-03 - Independence Day—July 4, 2026

To access a PDF version of this memorandum posted on the Internet, please click below: 

 

AM 2026-03 - Independence Day—July 4, 2026 PDF . 

To view earlier Attendance and Leave Bulletins issued by the New York State Department of Civil Service posted on the Internet, visit:

                            https://www.cs.ny.gov/attendance_leave/index.cfm

New York State school district personnel are required by law to report alleged child abuse to New York State's Child Protective Services

In this appeal to New York State's Commissioner of Education Betty A. Rosa,  Dr. Rosa noted that the Petitioner challenged certain alleged actions by officers or employees of the school district's Board of Education [Board] involving a report of alleged child abuse to the Child Protective Services [CPS] of the New York State Office of Children and Family Services.

Petitioner had alleged that one or more of the school district's officers or employees knowingly filed, or contributed to the filing of, a false CPS complaint against Petitioner.  For relief, Petitioner asked the Commissioner to provide "prospective relief such as increased training, formation of an “oversight committee … to ensure accountability,” and an improved "and expanded hiring practices".

The Board contended that the appeal to the Commissioner must be dismissed as untimely, for lack of jurisdiction and that the Commissioner was unable to grant Petitioner the relief Petitioner had requested.

Commissioner Rosa dismissed Petitioner's appeal, explaining that New York State's “Social Services Law §§411-28 sets forth the scheme for mandatory reporting by school officials of suspected cases of child abuse or maltreatment”. Commissioner Rosa also opined that “the Commissioner of Education has no authority to review whether reports to CPS are appropriate pursuant to Social Services Law”.

In addition, Commission Rosa noted that the Commissioner of Education has no authority to request that school officials discontinue filing reports of suspected abuse to CPS or that school officials contact the student's parent [or guardian] prior to submitting such reports to CPS, citing Appeal of M.I.B., 55 Ed Dept Rep, Decision No. 16,847.

The Commissioner then dismissed Petitioner's appeal for lack of jurisdiction.

Click HERE to access Commissioner's Rosa's decision posted on the Internet.

Employee's misconduct deemed sufficient to justify his termination from his position under the circumstances

New York City Office of Administrative Trials and Hearings Administrative Law Judge [ALJ] Charlotte E. Davidson recommended termination of employment of the Employee [Respondent], a patient care associate, who made inappropriate comments to a patient and kissed the patient’s arm before drawing her blood. 

Judge Davidson, who had conducted this disciplinary hearing by videoconference, found that the Employer established that Respondent had kissed the patient’s arm and made a series of inappropriate comments to her, including referring to himself as a Chupacabra, a mythical blood-sucking monster; telling the patient he also sucks milk; asked the patient if she breastfed her children; and asked the patient if she was allergic to money. 

Judge Davidson, however, found that the Employer failed to prove the allegation that Respondent told the patient that he "loves veins". 

In considering the appropriate penalty to recommend to the appointing authority to be  impose on Respondent, the ALJ considered Respondent’s lack of a history of disciplinary action with the Employer, the inappropriate and sexual nature of Respondent’s misconduct and Respondent’s failure to demonstrate outstanding job performance during his short term of employment with the Employer. 

Accordingly, Judge Davidson recommended that the appointing authority terminate Respondent's employment with the facility.

Click HERE to access the ALJ's findings and recommendation posted on the Internet.

A Reasonable Disciplinary Penalty Under the Circumstances - An e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service of the State of New York and its political subdivisions. For more information and access to a free excerpt of the material presented in this e-book, click here: http://booklocker.com/books/7401.html

Employee failed to link his termination to his religion rather than his noncompliance with New York City's vaccine mandate

Supreme Court granted New York City's motion to dismiss the Plaintiff's [Employee] unlawful discrimination complaint and denied Employee's cross-motion to compel discovery as moot. The Appellate Division unanimously affirmed the Supreme Court's decision, noting that "Supreme Court properly dismissed the complaint as against defendant New York City Police Department, which is a non-suable agency of the City", citing Troy v City of New York, 160 AD3d 410.

Addressing the merits of the Employee's complaint, the Appellate Division said "Plaintiff failed to allege any nonconclusory facts linking his termination to his religion rather than his noncompliance with the [New York City's] vaccine mandate" as he cited no nexus to a religious prohibition against vaccination.

The Court also observed that Employee failed to establish he suffered "constructive discharge" as "he advanced no nonconclusory facts that the Employer deliberately created working conditions so intolerable, difficult or unpleasant that a reasonable person would have felt compelled to resign".

With respect to Employee's alleged "lack of cooperative dialogue" claim, the Appellate Division noted that Supreme Court had properly dismissed that contention as Employee had "availed himself of the approved appeals process and failed to establish how it fell short of the New York State or New York City Human Rights Law."

The Appellate Division also noted that Employee's "Free Exercise claim fails, as there is no private right of action to recover damages for state constitutional violations where alternative remedies exist".

Click HERE to access the Appellate Division's decision posted on the Internet.