Displacement and layoff

Displacement and layoff
Yonkers Muni. Housing Auth. v Dugan, 261 AD2d 406

Typically when a position is abolished and this results in the layoff of a permanent employee, his or her name is placed on a preferred list in accordance with the provisions of Civil Service Law Section 80 [permanent employees in the competitive class] or Section 80-a [permanent employees in the noncompetitive class].

In some instances, however, the individual may be able to “displace” a less senior, lower grade employee in accordance with Section 80.6 of the Civil Service Law. Section 80.6 essentially allows a higher level, more senior individual whose position in the competitive class has been abolished to “displace” a less senior employee in a lower grade position “in the direct line of promotion” of the relevant job class.*

The Dugan case arose after the Yonkers Civil Service Commission ruled that Iliana Rodriguez, a Yonkers Housing Authority Field Representative had the right to “retreat” to another Housing Authority position -- Tenant Relations Aide -- when her position was abolished. The Commission’s decision was challenged by three Authority employees: Thomas E. Dugan, Mary E. Dorman, and Patricia Ortiz.

In the court proceeding that followed the Commission conceded that it was incorrect when it held that Rodriguez had the right to “retreat” to the title Tenant Relations Aide, and that it should have placed Rodriguez’s name a preferred list for the title of Field Representative as of the date of her termination.

The Commission then contended that the position of Tenant Relations Aide was “comparable” to the position formerly held by Rodriguez and thus her appointment from the Field Representative preferred list was authorized by Civil Service Law Section 81.

However, as the decision points out, the Commission’s initial determination contained no finding that the two titles were comparable. This was a fatal omission in the eyes of the Appellate Division. Nor could the court support the determination that Rodriguez had the right to ‘retreat’, because the Commission had admitted that it was in error with respect to that determination.


Accordingly, the matter had to be remanded [returned] to the Commission so that it could make express findings of fact, and to make whatever it deems the correct determination to be. The decision notes that “without such minimal findings, and without a concrete statement of exactly what it is the Commission intended to determine, intelligent judicial review is not possible.

Typically the price of making an incorrect personnel decision in a layoff situation is that the appointing authority must appoint or reinstate the individual who was entitled to the position with back salary and benefits as a matter of law.

* Section 80-a.6 provides displacement rights to employees in the noncompetitive class if specified conditions are satisfied.

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