April 10, 2014

No private right of action flows from a mere statement of general policy applicable to all Civil Service employees

No private right of action flows from a mere statement of general policy applicable to all Civil Service employees
Matter of Subway Surface Supervisors Assn. v New York City Tr. Auth., 2014 NY Slip Op 02380, Court of Appeals

The Subway Surface Supervisors Association, representing employees working under the title Station Supervisor Level One (SS-I) commenced a special proceeding against the New York City Transit Authority (TA) alleging that its members were being paid a lower base salary than their claimed counterparts, Station Supervisor Level Two (SS-II), for the same type of work.

The sole allegation in the petition was that the TA violated Civil Service Law §61(2), prohibiting out-of-title work.

The TA moved to dismiss the petition on, among other grounds, failure to state a cause of action. In response, the Union abandoned its §61(2) claim and opposed the TA's motion on new, unpleaded theories, that the TA's conduct violated Civil Service Law §115 and the Equal Protection Clauses of the New York and United States Constitutions.

Supreme Court deemed the §61(2) claim abandoned and, despite the fact that the Union failed to move for leave to replead or to amend its petition to allege the new claims, concluded that the petition stated a "potential" §115 violation, but that "a factual dispute remained" concerning whether SS-Is and SS-IIs performed the same duties. It referred the disputed issue to a special referee for a hearing, but before that hearing could be held Supreme Court granted the TA leave to appeal to the Appellate Division.

A divided Appellate Division affirmed. The majority found that the petition alleged viable Civil Service Law §115 and equal protection claims. The dissenting Justices would have dismissed the petition for failure to state a cause of action because, in their view, §115 enunciated only a state policy and did not confer upon state courts jurisdiction to enforce that policy. The dissenters would have found the Union's Equal Protection Clause arguments to be without merit.

TA then obtained leave to appeal its ruling on the certified question whether the order of Supreme Court as affirmed by the Appellate Division was properly made.

The Court of Appeals held that the order of the Appellate Division should be reversed and “the motion to dismiss the petition granted, and the certified question answered in the negative.”

The court explained that courts of this State have routinely interpreted §115 and its predecessor, the nearly identically-worded former Civil Service Law §37* "a mere statement of general policy applicable to all Civil Service employees" and that is is clear that §115 is a preamble to Civil Service Law Article VIII, and no private right of action flows from it. In contrast, said the court, Article 14 of the Civil Service Law (the Taylor Law) provides the mechanism for represented employees to challenge alleged wage disparities between classifications.

As to the Union’s Equal Protection argument, the Court of Appeals said that the Union's equal protection claims must be dismissed because the Union freely negotiated and executed the collective bargaining agreement that contained lower wage rates for SS-Is and, to the extent an equal protection claim can be raised, it must be asserted by the employees subjected to the alleged discriminatory conduct.

N.B. Justice Rivera issued a concurring opinion commenting stating “I agree that petitioner Subway Surface Supervisors Association's (SSSA) claims under the Federal and State Equal Protection Clauses should be dismissed. However, I disagree with the reasons stated for dismissal of the Civil Service Law §115 claim, and would instead dismiss that claim because SSSA failed to plead its entitlement to relief based on proper §115 equal pay for equal work allegations [and I am writing separately] to present my analysis that §115 sets forth a clear legislative mandate to ensure pay equality for state employees, guaranteed in part by a cognizable private cause of action that allows parties to challenge pay discrimination.”

* See Civil Service Law of 1909, enacted as Chapter 15 of the Laws of 1909.

The decision is posted on the Internet at: