Grieving alleged out-of-title work assignments

Grieving alleged out-of-title work assignments
Bailey v GOER, 259 AD2d 940

Sometimes a Taylor Law contract will include a provision barring unit members from being assigned to perform “out-of-title” work. Such a provision was included in a collective bargaining agreement between the State of New York and a negotiating unit represented by the Civil Service Employees Association, Local 1000 [CSEA]. As demonstrated by the Bailey decision, courts appear to be quite liberal in analyzing job descriptions when considering allegations of out-of-title work.

Complaints were received by the State Department of Transportation concerning Robert W. Bailey, a Supervising Motor Vehicle Inspector [SMVI]. Bailey was relieved of his normal SMVI duties and was given a “special assignment” while the department conducted its investigation of the complaints. Bailey performed this “special assignment” for 54-day commencing March 20, 1997.

Contending that Bailey’s “special assignment” constituted out-of-title work in violation of the collective bargaining agreement, as well as Civil Service Law Section 61(2), CSEA filed a contract grievance on his behalf. The grievance was denied at the agency level and, upon appeal, by the Governor’s Office of Employee Relations [GOER].

Section 61(2) of the Civil Service Law provides that “no person shall be appointed, promoted or employed under any title not appropriate to the duties to be performed.” CSEA contended that Bailey’s “special assignment” duties were not appropriate to his title - Supervising Motor Vehicle Inspector.

Grievances filed under the out-of-title work provision were not subject to arbitration. Accordingly, when CSEA decided to appeal GOER’s decision, it filed an Article 78 petition [Article 78, Civil Practice Law and Rules] seeking judicial review.

CSEA’s major argument was that the tasks Bailey was assigned while on special assignment were among those performed by employees in a higher position -- Intermodal Transportation Specialist 2 [ITS2]. As additional evidence of out-of-title work, CSEA alleged that the duties of incumbents of ITS2 positions involved supervision. Accordingly, CSEA claimed that Bailey was assigned out-of-title work. NYPPL

The Appellate Division agreed that the ITS2 position was a supervisory position, requiring the management of a unit. It pointed out, however, that Bailey’s special assignment did not involve any supervisory responsibility.

Considering the circumstances involved in Bailey’s situation, the court concluded that the mere fact that there may have been some overlap between the duties of Bailey’s special assignment and those of the higher ITS2 position did not demonstrate any irrationality in GOER’s holding that Bailey was not performing out-of-title work during the period in question.

Another argument made by CSEA in support of its position was that the duties Bailey was assigned while on special assignment involved “streamlining bus inspection forms and revising program guidelines, forms and manuals for the Motor Carrier Safety Bureau.” Such duties, CSEA claimed, did not fall within any of the tasks he had performed as an SMVI.

The Appellate Division commented that the classification standards for the SMVI position included participating in special studies relating to bus safety, preparing of reports and records concerning transportation district program and providing of technical assistance and advice. It apparently decided that Bailey’s special assignment tasks could be encompassed under such “special studies.” The court said the record as a whole provides a rational basis for GOER’s determination that Bailey was not performing out-of-title work and dismissed CSEA’s appeal.
NYPPL

Independent medical examinations

Independent medical examinations
Olivier v Rockland Co., 260 AD2d 482

The Olivier case addresses the question of an employer’s right to require an “independent medical examination” as a condition precedent to its making a determination concerning an employee’s application for disability benefits pursuant to Section 207-c of the General Municipal Law.

Frank Olivier, a corrections officer with the Rockland County Sheriff Department, claimed disability benefits pursuant to Section 207-c of the General Municipal Law as the result of a “work-related illness.” Before the sheriff made any determination concerning providing Olivier with such benefits, Olivier filed an Article 78 action [Article 78, Civil Practice Law and Rules] seeking a court order directing Rockland County to classify his disability as work-related pursuant to Section 207-c and to pay him the benefits mandated by that law.

Olivier contended that he had prima facie established his entitlement to benefits, and therefore should be immediately awarded the benefits provided by law.*

The Appellate Division rejected Olivier’s argument that he was entitled to Section 207-c benefits upon his prima facie showing of a right to such benefits. The court observed that “it is well settled that the County was not required to award benefits based on a prima facie showing of entitlement, but was permitted to order an independent medical examination before making a determination.” It cited the Court of Appeal’s decision in DePoalo v County of Schenectady, 85 NY2d 527, in support of its ruling.

In essence, the Appellate Division held that the employer is entitled to an opportunity to rebut an employee’s prima facie case that he or she is entitled to Section 207-c benefits and it may order the individual to submit to an “independent medical examination” for this purpose.

Presumably the courts will apply the same reasoning to cases involve GML Section 207-a, which provides similar benefits to firefighters injured in the line of duty.

* If a party makes a prima facie case, it will prevail unless rebutted by evidence presented by the other side. In other words, if an individual establishes a prima facie case, he or she will win if no “answer” is made to the allegation by the other party or if the evidence presented against the individual’s claim by the other party is unpersuasive.

Jarema credit and eligibilty for tenure

Jarema credit and eligibilty for tenure
Barbaccia v Locust Valley CSD, 282 AD2d 674

The central issue in the Barbaccia case concerned a teacher’s eligibility for Jarema credit for the purposes of granting tenure. As the decision demonstrates, determining whether an individual qualifies for Jarema credit is not always an easy task.

The case arose when Tori Barbaccia was denied tenure prior to the end of his two-year probationary period. He claimed that he had acquired tenure be estoppel a year earlier as he was entitled to Jarema credit for one and one half years of prior service as a “permanent per diem” substitute teacher with his employer, the Locust Valley Central School District.

Barbaccia had served as a per diem substitute during the 1992-93 and 1993-94 school years. He was then appointed as a part-time four-fifths social studies teacher for the 1993-94 school year. In September 1, 1995, Barbaccia was given a two-year probationary appointment and by letter dated April 11, 1997, was advised that he would not be recommended for tenure. He was terminated effective August 1, 1997.

Claiming that he had acquired tenure by estoppel or acquiescence in February 1997, Barbaccia sued to compel the board to reinstate him to his former position with tenure and back salary on the authority of Section 3012(1)(a) of the Education Law. Section 3012(1)(a), sets a three-year probationary period for teachers, but allows a reduction of the probationary period for up to one year by extending a credit (referred to as “Jarema credit”) for up to two years of “satisfactory service as a regular substitute.”*

The school board argued that Barbaccia did not qualify as a “regular substitute” since he “did not take over the class of another teacher on a permanent basis for any definite time but rather substituted for other teachers on a daily basis or for other short periods of time.” Barbaccia, the district claimed, fell within the category of “itinerant substitute.”

Barbaccia substituted for many teachers and in different subject areas, including his certified area of social studies, but never replaced any teacher for any extended period of time and never for a full semester or term. The Appellate Division, however, said what is controlling is the character of the teacher’s actual service.

The ruling notes that the Commissioner of Education has classified substitute teachers: those performing regular substitute service and those performing itinerant substitute service.

A “regular substitute” is one who takes over the class of another teacher upon a permanent basis, i.e., under circumstances where the regular teacher for maternity reasons, or for sabbatical or sick leave, has been given a definite leave of absence” while the “itinerant substitute” is a person who is called in for half a day, for short periods or for a week or more, to take the place of a teacher who is temporarily absent because of sickness or otherwise.”

An itinerant substitute is paid upon a day rate, is not entitled to membership in the teachers’ retirement system, and receives no recognition by statute for that type of service” (65 NY St Dept Rep 65, at page 67).

In Matter of Spechler, 90 NY2d 110, the Court of Appeals held that whether one falls within the category of “regular substitute” or “itinerant substitute” must be based on the substitute teacher’s actual service. It said that the substitute teacher’s title, rate of pay (per diem or annual salary), and whether the teacher for whom the substitution is made was absent for a definite or indefinite period may be factors to be considered but each alone is not dispositive and “the distinction between definite and indefinite absences should not be rigidly applied.”

The Appellate Division decided that Barbaccia was not entitled to any Jarema credit for the fall 1992 semester because he did not provide services for the entire semester nor for the time he worked as a part time teacher. But since the part time employment was immediately prior to the probationary appointment, the court ruled that he may be entitled to Jarema credit for the time he served as a “permanent substitute” that may otherwise qualify.

To resolve the issue, the court remanded the question of whether Barbaccia qualified for Jarema credit to Judicial Hearing Officer Marie G. Santagata.

* "Jarema credit" is named after the bill's sponsor, Assemblyman Stephen J. Jarema.
NYPPL