Thursday, May 23, 2013

A “perfect storm” of personnel transactions and decisions


A “perfect storm” of personnel transactions and decisions 
2013 NY Slip Op 03559, Appellate Division, First Department

This decision describes a series of events resulting from a “perfect storm” of personnel transactions and decisions including an incorrect administrative personnel determination by a central personnel agency and a career choice made by the employee [AR] that ultimately resulted in the frustration of AR’s immediate employment expectations.

The genesis of the Appellate Divisions ruling was AR’s filing a petition pursuant of CPLR Article 78 seeking, among other things,

1. Reinstatement to her prior position of permanent Fraud Investigator;

2. Placement on the New York City Department of Homeless Services' (DHS) eligible list for promotion to Associate Fraud Investigator; and

3. Monetary damages for wrongful denial of promotion and wrongful transfer.

Supreme Court denied AR’s petition, which ruling the Appellate Division affirmed on appeal.

According to the Appellate Division's decision, DHS had permanently appointed AR to the position of Fraud Inspector and subsequently provisionally promoted her to Associate Fraud Inspector. However, the New York City Department of Citywide Administrative Services (DCAS) ruled that AR was ineligible for permanent appointment to Associate Fraud Inspector. AR challenged and successfully appealed DCAS’s decision regarding her eligibility for promotion to the higher title.

AR, however, was employed by the New York City Human Resources Administration (HRA) when she won her administrative appeal regarding the error made DCAS concerning her eligibility for promotion to Associate Fraud Inspector. This proved to be a critical element in the Appellate Division’s analysis of AR’s several claims.

The Appellate Division said that although DCAS had erroneously ruled AR ineligible for promotion to the position of Associate Fraud Inspector, AR conceded that she was not entitled to be appointed to that position, but only to be placed on a special eligible list and given due consideration for appointment from that list.*

Further, the court ruled that AR’s contention that DCAS acted arbitrarily in failing to place her on an eligibility list certified to DHS — where she was working when the error regarding her eligibility was made, rather than HRA, where she was employed when she won her administrative appeal — was unavailing “as the record indicates that AR turned down the opportunity to return to DHS, evidently believing at that point that her prospects were better at HRA.”**

Addressing another aspect of AR’s personnel related claims, the Appellate Division agreed with AR’s argument that she would not have been laid off as a DHS Fraud Inspector but for DCAS's miscalculation of her seniority. However, the court ruled that AR was not entitled to back pay as a result of this error because she had transferred to a job at HRA with the same title and compensation.

Finally, the court ruled that AR was not entitled to compensation in connection with her demotion from provisional Associate Fraud Inspector to her permanent title, Fraud Inspector. Her provisional appointment, said the court, preceded her transfer to HRA and thus AR “had no expectation of tenure in the provisional position,” and, as a provisional employee, she could be dismissed from that title without a pre-termination disciplinary hearing or any statement of reasons for her termination from that position.

* See Andriola v Ortiz, 82 NY2d 320, Certiorari denied, 511 US 1031

** Although the decision is silent as to the nature of AR's moving from DHS to HAR, this observation by the court suggests that AR resigned, or was deemed to have resigned, from her postion with DHS simultaneously with her appointment to HAR or at some point after her "transfer" to HAR.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_03559.htm

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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