An out-of-title work grievance proceeded through review as provided by the relevant collective bargaining agreement [CBA] and eventually was considered by an arbitrator
The arbitrator determined that,
because the title in question, a County position allocated to Grade 18 had been
abolished, the CBA barred arbitrating whether the County violated the CBA by
assigning Petitioner the duties of the Grade 18 title without paying her for
those duties.
The Petitioner appealed the arbitrator's decision.
The Appellate Division held that
the arbitrator's findings with respect to changes in Petitioner's job
responsibilities are not entitled to estoppel effect in connection with a Civil Service Law §61(2) challenge, citing Tydings v Greenfield, Stein &
Senior, LLP, 11 NY3d 195 and Malloy v Trombley, 50 NY2d 46, and concluded
that Supreme Court erred in granting the County's motion to dismiss.
Remitting the matter to Supreme
Court for further action, the Appellate Division's decision is set out below.
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Matter of Theopheles v |
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2024 NY Slip Op 03915 |
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Decided on |
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Appellate Division, Third
Department |
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Published by New York State Law Reporting Bureau pursuant
to Judiciary Law § 431. |
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This opinion is uncorrected
and subject to revision before publication in the Official Reports. |
Decided and Entered:
CV-23-1086
In the Matter of Lisa Theopheles, Appellant,
Calendar Date:May 30, 2024
Before:Clark, J.P., Aarons, Reynolds Fitzgerald, McShan and Powers, JJ.
Gleason, Dunn, Walsh &
O'Shea,
BolaÑos Lowe PLLC, Pittsford
(Kyle W. Sturgess of counsel), for respondents.
Aarons, J.
Appeal from a judgment of the
Supreme Court (Richard J. McNally Jr., J.), entered May 23, 2023 in
Petitioner is a supervising
support investigator (hereinafter the grade 15 title) in the child support unit
of respondent Rensselaer County Department of Social Services (hereinafter
DSS). In September 2019, petitioner filed a grievance pursuant to the
collective bargaining agreement (hereinafter CBA) between respondent County of
Rensselaer and the United Public Service Employees Union, alleging that, after
the abrupt resignation of Matthew Breig, a supervisor of investigations and
support (hereinafter the grade 20 title) and petitioner's supervisor, she began
supervising the entire child support unit in the capacity of support collection
supervisor (hereinafter the grade 18 title), the title held by the head of the
child support unit before Breig was hired. The grievance proceeded through
review as dictated by the CBA and eventually landed before an arbitrator in
2021. The arbitrator determined that, because the grade 18 title had been
eliminated, the CBA barred her from deciding whether the County violated the
CBA by assigning petitioner the duties of the grade 18 title without paying her
for those duties. Instead, the arbitrator evaluated whether petitioner had
fulfilled the duties of Breig's vacant grade 20 title, which oversaw the child
support unit and the fraud unit. There was, of course, no evidence that
petitioner had been assigned to oversee the fraud unit before or after Breig's
resignation. Because the arbitrator concluded that the CBA only required the
County to increase an employee's pay when the employee was temporarily assigned
the "full duties" of an existing higher-grade position, the
arbitrator found in favor of the County.
Petitioner commenced this CPLR
article 78 proceeding asserting that respondents violated Civil Service Law §
61 (2), which "provides that in cases other than a temporary emergency,
'no person shall be assigned to perform the duties of any position unless he
[or she] has been duly appointed, promoted, transferred or reinstated to such
position in accordance with the provisions of this chapter and the rules
prescribed thereunder' " (Matter of Collins v Governor's Off. of Empl.
Relations, 211 AD2d 1001, 1002 [3d
"The doctrines of res
judicata and collateral estoppel apply to arbitration awards. Res judicata bars
not only those claims that were actually litigated previously, but also those
which might have been raised in the former action or arbitration" (Piller v Princeton Realty Assoc. LLC, 173 AD3d 1298, 1303 [3d
Dept 2019] [internal quotation marks, brackets and citations omitted]; see Matter of Anonymous v New York State Justice Ctr. for the Protection
of People with Special Needs, 195 AD3d 1137, 1138-1139 [3d Dept
2021]). "However, where an issue not determined by an arbitrator is the
subject of a subsequent action, the arbitration award is not a bar to that
action or the claims raised therein" (Hagopian v Karabatsos, 157 AD3d 1020, 1022 [3d
Most of the requirements of res
judicata are met and not meaningfully disputed. Respondents assert, and we
agree, that the parties here are the same or in privity with one another, and
petitioner's claim that she was assigned out-of-title work arises out of the
same transactions or series of transactions as the CBA violation decided by the
arbitrator (see Simmons v Trans Express Inc., 37 NY3d 107, 111
[2021]; Jeda Capital-56, LLC v Potsdam Assoc., LLC, 225 AD3d 988,
989-990 [3d Dept 2024]). There is also no question that the alleged Civil
Service Law violation claimed in the petition was not raised in arbitration
(see Jeda Capital-56, LLC v Potsdam Assoc., LLC, 225 AD3d at 989-990).
Res judicata did not attach,
however, because petitioner's statutory claim was not subject to arbitration
under the CBA (see Cheslowitz v Board of Trustees of the Knox Sch., 156 AD3d 753,
756 [2d
Furthermore, collateral estoppel
does not bar petitioner from litigating under Civil Service Law § 61 (2) the
issue of whether she was[*3]"assigned to perform the duties of a higher
grade, without a concomitant increase in pay, frequently, recurrently and for
long periods of time" based on her alleged performance of out-of-title
supervision of the whole child support unit rather than its investigative
functions (Matter of City of Saratoga Springs v City of Saratoga Springs Civ.
Serv. Commn., 90 AD3d at 1400 [internal quotation marks and citations
omitted]). "The party seeking the benefit of collateral estoppel has the
burden of demonstrating the identity of the issues in the present litigation
and the prior determination, whereas the party attempting to defeat its
application has the burden of establishing the absence of a full and fair
opportunity to litigate the issue in the prior action" (Abele v City of Albany, N.Y., 214 AD3d 1107, 1109 [3d Dept
2023] [internal quotation marks and citations omitted]). "More
fundamentally, preclusive effect is limited to only those 'issues that were
actually litigated, squarely addressed and specifically decided' " (Church v New York State Thruway Auth., 16 AD3d 808, 810 [3d
The record does not show that
there is an identity of issues or that there was a full and fair opportunity to
litigate the matter petitioner actually sought to resolve — in essence, that
she was impermissibly assigned to supervise the entirety of the child support
unit as if promoted to the former grade 18 title without a pay increase (see Matter of Terry v County of Schoharie, 162 AD3d 1344, 1346
[3d Dept 2018]; compare Holloway v City of Albany, 169 AD3d 1133, 1134 [3d
Dept 2019], lv denied 34 NY3d 901 [2019]). Instead, the arbitrator
constrained the issue before her to whether petitioner fulfilled all of the
duties of the grade 20 position — an issue that petitioner never injected into
her grievances in the first place. Notwithstanding the parties' undisputed
representation by counsel at an evidentiary hearing, the record does not show
careful deliberation in support of the arbitrator's conclusion that
petitioner's job responsibilities did not change "in any way." For
example, there is no specific finding as to whether petitioner took on
allegedly out-of-title responsibilities for supervising child support unit
clerical staff, as opposed to the investigative staff on which she held a
senior position. Indeed, there was no reason to consider the extent of
petitioner's alleged supervisory role in the child support unit given that
there was no evidence that petitioner ever supervised the fraud unit, and the
issue before the arbitrator could be resolved on that basis alone. We therefore
conclude that the arbitrator's findings with respect to changes in petitioner's
job responsibilities are not entitled to estoppel effect in connection with
this Civil Service Law § 61 (2) challenge (see Tydings v Greenfield, Stein & Senior, LLP, 11 NY3d 195,
200 [2008]; Malloy v Trombley, 50 NY2d 46, 52 [1980]). Accordingly[*4],
Supreme Court erred in granting respondents' motion to dismiss and we remit the
matter for respondents to file an answer pursuant to CPLR 7804 (f).
Petitioner's remaining points
are academic.
Clark, J.P., Reynolds
Fitzgerald, McShan and Powers, JJ., concur.
ORDERED that the judgment is
reversed, on the law, with costs, motion denied, and matter remitted to the
Supreme Court to permit respondents to file and serve an answer within 20 days
of the date of this Court's decision.