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Wednesday, March 30, 2016

Omitting examples of the specific “out-of-title” duties the employee alleges he or she was assigned in his or her out-of-title work grievance is a fatal flaw


Omitting examples of the specific “out-of-title” duties the employee alleges he or she was assigned in his or her out-of-title work grievance is a fatal flaw
New York State Corr. Officers & Police Benevolent Assn., Inc. v Governor's Off. of Empl. Relations, 2016 NY Slip Op 02280, Court of Appeals

Thomas Tierney was employed by the Office of Mental Health [OMH] as a Safety and Security Officer 2 [SSO2], a Salary Grade [SG] 15 position. When the Chief Safety and Security Officer [CSSO] of the Hudson River facility, position allocated to SG 20, transferred to another facility in June 2011, Tierney was advised that he would be serving as the Acting CSSO. He served in that capacity until Hudson River closed in January 2012.

In August 2011, Tierney filed an out-of-title work grievance with OMH in accordance with the three step review process set out in the relevant collective bargaining agreement seeking compensation at the SG 20 level for the out of title duties he alleged he was performing as Acting CSSO.

OMH granted Tierney’s grievance but noted that under the terms of the controlling collective bargaining agreement "[o]nly the Director of the Governor's Office of Employee Relations [GOER] has the authority to issue monetary awards" in the event an out-of-title grievance is sustained by the appointing authority.

Step 3 of the grievance procedure set out in the collective bargaining permited GOER to seek an opinion from the Civil Service Department’s Division of Classification and Compensation [DCC] as to whether the grieved duties substantially differed from those appropriate to the title “to which the employee is certified.” 

DCC undertook its own comparison of the duties and responsibilities of CSSOs and SSO2s* and determined that the duties Tierney described in the grievance he filed did not constitute “out-of-title” duties but, rather, were consistent with the duties of a SSO2.

GOER adopted the findings of DCC and denied the grievance. Tierney appealed GOER’s decision.

In his Article 78 petition Tierney alleged that, in addition to the duties he included in the grievance form he had submitted to OMH, he had performed the out-of-title duties DCC had listed as examples of out-of-title work in its decision. The Court of Appeals said that “[a]s those additional duties were not included in the grievance form and apparently were not considered by OMH, they were not considered by either Supreme Court or by the Appellate Division.”

Sustaining the decisions of DCC and GOER, the court said that “judicial review of administrative determinations is confined to the facts and record adduced before the agency." In the words of the Court of Appeals, “[t]he motion court concluded that GOER's determination that [Tierney’s] responsibilities as an acting CSSO were substantially similar to the job description of a SSO2 was not arbitrary and capricious.” A divided Appellate Division had affirmed GOER’s determination (see 126 AD3d 1267 [3d Dept 2015]) and the Court of Appeals affirmed the Appellate Division's decision.

Citing Nehorayoff v Mills, 95 NY2d 671, the Court of Appeals explained that where the administrative determination "is supported by a rational basis, and is neither arbitrary nor capricious, it will not be disturbed."

Noting that Civil Service Law §61(2) bars the assignment of an employee to "perform the duties of any position unless he [or she] has been duly appointed, promoted, transferred or reinstated to such position" other than when those duties are performed on a temporary emergency basis, the court said that there was evidence in the record to support the determination that Tierney was performing duties as the Acting CSSO that were “consistent with, and a natural extension of, his title as a SSO2."

Finding that the combination of out-of-title work and the work being performed for an extended period of time was not present, the Court of Appeals held that the conclusion reached by DCC and adopted by GOER was neither arbitrary nor capricious simply because it differed from OMH's conclusion.

Accordingly, said the court, “GOER's determination that Tierney was performing duties consistent with his position as a SSO2 and was not performing the key distinctive duties of the CSSO position [was] rationally based.”

A number of court decisions addressing out-of-title work and position classification grievance determinations are summarized in NYPPL at http://publicpersonnellaw.blogspot.com/2011/04/out-of-title-work-and-position.html

* DCC also described some of the duties that are assigned to CSSOs and that would have been out-of-title for a SSO2 but such duties were not included in Tierney's grievance,

The decision is posted on the Internet at:


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