Reinstatement from a preferred list

Reinstatement from a preferred list
Harvey v State of New York, 281 A.D.2d 846

On July 12, 1995, Ronald S. Harvey was laid off from his civil service position with the Department of Environmental Conservation. His name was placed on preferred lists and reemployment rosters for certification for appointment to comparable titles by the Department of Civil Service [DCS].

A clerical error resulted in Harvey's name being removed from the preferred lists and reemployment rosters on August 25, 1995. DCS corrected the error and restored Harvey's name to the appropriate lists October 31, 1995.

However, on November 1 and 2, 1995, other State agencies made permanent appointments to two Salary Grade 18 positions for which Harvey would have had seniority if his name had remained on the lists. Ultimately Harvey was reinstated to a Salary Grade 23 in the Division of Budget effective September 30, 1996.

Harvey sued, seeking compensation for the damages he suffered as a result of the removal of his name from the lists.

As the State stipulated to the fact that Harvey's name was erroneously removed from the lists, the primary issue is the scope and calculation of damages resulting from that error. Harvey, said the Appellate Division, has the burden of proving lost wages with reasonable certainty.

As Harvey proved with reasonable certainty that the persons hired on November 1 and 2, 1995 would not have received their jobs if his name had been on the lists, he was entitled to compensation for the period November 1, 1995 to September 30, 1996, the date he was actually rehired, based on employment in a Salary Grade 18 position.

Harvey's damages: The salary of a Grade 18 employee for that period plus lost retirement contributions, his expenses for health insurance coverage and 11 months of service credit in the NYS Employees' Retirement System. After making an adjustment for unemployment insurance benefits and “outside earnings,” the Appellate Division concluded that Harvey was entitled to $37,690 as damages.

Another aspect of the case concerned Harvey's demand for disclosure of vacancy and reemployment records. The court said that such records would not be of any relevant assistance to him. Why? Because, said the court, “at best, they would have revealed additional job openings for which he would have been qualified,” but this may be misleading as “the hiring agencies would not have been required to fill” any such position.