Matter of Local 100, Transp. Workers Union of Greater N.Y. v City of New York Dept. of Citywide Admin. Servs.
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Matter of Local 100, Transp. Workers Union of Greater N.Y. v City of New York Dept. of Citywide Admin. Servs. 2005 NY Slip Op 30590(U) October 11, 2005 Supreme Court, New York County Docket Number: 103015/04 Judge: Doris Ling-Cohan Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] I\ SUPREME COURT OF ~HE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 62 . -------------------------------~------------------------------------------){ In the Matter of the Appli~ation of LOCAL 100, TRANSPORT WORKERS UNION OF GREATER NEW YORK; Petitioner, For an Order and JudgrneC Pursuant to Article 78 of the Civil Practice Law and R/ Jes, Index No. 103015/04 Seqs. · -604 -against! CITY OF NEW YORK J?EPARTMENT OF CITYWIDE ADMINISTRATIVE SE VICES, I Respondent. ------------------------------ -----------------------------------------){ DORIS LING-COHAN, . S. C.: Petitioner Local 00, Transport Workers Union of Greater New York (hereafter, Local 100) represents the non-superv.. soryoperational and maintenance employees of the New York City Transit Authority (hereafter, Tr nsit Authority). Respondent City of New York Department of Citywide Administrative Services (hereafter, DCAS), is a municipal ivil service commission with the responsibility, among other things, for administration of New York City's (hereinafter, the City) municipal and agency employees, · including the administr, tion of examinations for the City's civil service titles 1• I . - - - ,-N_e_w_Y_o-rk_C_1-i./_C_h-arter § 811 provides that the Commissioner ofDCAS " .... shall have all the powers and duti s of a municipal civil _s~rvice commission provided in the civil service law or in any other stat te or local law ... ". One of the responsibilities exercised by DCAS, as a municipal civil service commission, is to schedule and conduct civil service examinations (see New York City Charte § 814 [a] [l] - [a] [5]). 1 1 [* 2] i DCAS had a practice, since in or about 1996, qf conducting two examinations for the position of Transit Authoril station agent, or token booth clerk. One of these examinations was promotional, and was adm~istered to incumbent employees in certain m:iskilled Transit Authority labor titles, held by emplfyees responsible for the protection and maintenance of the Transit Authority's facilities (he,eafter, collectively, cleaner titles). The other, an open-competitive examination, was open to the general public. The examinations were scheduled so that the promotional examination was administered prior to the open- compet)tive examination, which in effect gave test-takers in the cleaner titles an advantage, because open P,ositions were filled from the promotional list, prior to resort to candidates 11. .. tirorn the open-compet1t1v 1st. Station agent is entry-level position. As a result, there are no positions in the direct line for promotion to the stati n agent position. However, section 52 (1) of the New York Civil Service Law (Civil Service LawJ provides that DCAS may extend promotional eligibility to employees which it "determines to ,e in related or collateral lines of promotion". Section 52 (14) of the New York Civil Service Law rovides that: Notwiths~anding any other provision oflaw, in a city containing more than one county, the municipal civil service commission may, for titles designated by it, extend to employees in the service of a civil division public authority under its jurisdiction who are holding a position ie the non-competitive class or the labor class of such service the same opportunities as employees in the competitive class to take promoti al examinations for which such non-competitive class or labor cl ss service is determined by the municipal civil service commiss on to be appropriate preparation. ir For many years, t had been the practice ofthe Transit Authority for cleaners to relieve station agents, when the latter eeded to take "comfort breaks". In fact, the job description for the position 2 [* 3] of "Transit Cl.eaner", onej of the cleaner titles, includes the following: "Relieves Railroad Clerk when necessary." (Respotent's Verified Answer [Answer], Ex. B). When a given station agent took a break, a cleaner wort~g in the station would operate the token booth. Until the station agent returned, the cleaner wouU:l give assistance and instructions to the general public, and perform the I station agent's duties. Th's practice resulted in a type of "on-the-job" training for cleaners, which DCAS had previously det nnined to be adequate preparation, within the meaning of Civil Service Law§ 52 (14), warrantin the preferential treatment accorded the cleaner titles in connection with prior promotional exami ations for station agent positions in 1996 and 1998. As had been the rse in 1996 and 19982, DCAS scheduled two examinations for station agent, one promotional, jd one open-competitive, for the 2004 examination year. In the fall of 2003, DCAS asked the ransit Authority to provide the basis upon which it could administer a promotional examinatio to the cleaner titles, and the Transit Authority informed DCAS that it believed that the practice of cleaners relieving station agents during comfort breaks, outlined above, was being followed (An wer, Affidavit of Thomas J. Patitucci on behalf of Respondent [Patitucci Aff. ], at~ 22). Therefor , the Transit Authority suggested that the experience of cleaners provided adequate preparation for work as station agents, so that the two lines could be considered related or collateral, within them aning of Civil Service Law§ 52, as the cleaners had to be familiar with both the equipment st,tion agents operated and the issues they generally encountered (id.). DCAS had pr viously scheduled b~th promotional and open-competitive examinations for station agent positio s in April 1996 and August 1998. The announcements for the promotional examinati ns stated that employees in the cleaner titles were eligible to take the examinations and then xplained, "For this examination only, admission of employees is extended to persons ho ding the above competitive or labor class positions which have been detennined by the Dep ment of Personnel to be in related or collateral lines of promotion." (Answer, Ex. C) 2 3 [* 4] I However, when asked b1 DCAS to definitively confinn that this practice of cleru:iers relieving station agents during comfort breaks was routinely followed, the Transit Authority was unable to verify that this practice wt, indeed, being followed (Patitucci Aff., at~ 23). In a subsequent l~tter to DCAS dated December 22, 2003, Kevin Hyland, the Transit Authority's Vice President for Human Resources, requested that the cleaners be afforded the opportunity to take the piomotional examination for the station agent position (Answer, Ex. D). However, Mr. Hyland' s lrer did not advance the "comfort break" reliefpractice as the justification. Instead, Mr. Hyland advird DCAS that the Transit Authority was in the process of changing the duties of station agents fr/m functions limited to work within token booths to work within the entire area of the stations, inclu ing interacting with customers (id.). Mr. Hyland emphasized the fact that cleaners currently fulfil ed roles which included prioritizing information and interacting with customers. Accordingly, r. Hyland concluded, "It is our belief that the customer service elements in the Cleaner job create sufficient job affinity with the Station Agent title to justify continuing the collateral promotional o ,portunity" (id.). r DCAS disagreed with the Transit Authority's new justification, that the customer service elements of the work promotion" with regard cleaners either made the cleaner titles ''related or collateral lines of r the station agent title, within the meaning of Civil Service Law§ 52 (1), or provided "adequate p ·eparation" for work as a station agent, within the meaning of Civil Service Law§ 52 (14). Accord ngly, on December 31, 2003, DCAS cancelled the scheduled April 2004 promotional examinati n, which, in effect, meant that the employees in the cleaner titles were relegated to competing gainst the general public for the station agent positions to be filled from the 4 [* 5] In a letter dated January 21, 2004, PCAS Deputy Commissioner Joseph A. De Marco wrote to Mr. Hyland, in responsl to his December 22, 2003 letter, stating that the basis for allowing employees in the cleaner titles to take promotional examinations for station agent positions had been I the practice of cleaners relieving station agents during their "comfort breaks", thereby allowing cleaners to become famillar with the equipment operated by station agents and the issues they encountered (Answer, Ex. ). Mr. De Marco explained, "Appropriate preparation is required by the Civil Service Law in ord r to consider a title to be collateral when it is not in a direct line of promotion to another title, and to make this title eligible for a promotional exam to the other title" (id.). He then noted that.I "once cleaners no longer relieved station agents, the basis for making cleaners eligible for the romotional exam was eliminated" (id.). Mr. De Marco further stated, however, that he had rev ewed copies of a proposed new Transit Authority training program for cleaners and, once the p r has been implemented, DCAS will evaluate it to detennine whether it provides cleaners with [~.equate preparation to perform the duties and responsibilities of station agents (id.). The Transit luthority did not send further correspondence to DCAS on this issue, and, thus, DCAS concluded that the Transit Authority had understood and accepted its rationale for cancelling the 2004 projotional examination for the cleaner titles (Patitucci Aff., at, 28). On or about Febf ary 26, 2004, Local 100 commenced this Article 78 proceeding, seeking, among other things, to ompel DCAS to reinstate the promotional examination for station agent, for the benefit of its me lbers in the cleaner titles. DCAS cross-moved 10 dismiss the petition. In response, Local I 00 pro, uced affidavits from several of its members, indicating that cleaners were still providing comfort reak relief to station agents (see Affidavits of Marvin Holland, Jacqueline and Darlyne Lawson in Support of Verified Petition). For example, 5 [* 6] i Marvin Holland, who worked as a cleaner until in or about January 2004, stated that his job duties . included relieving statioj agents when they went on breaks, and that cleaners generally relieve station agents. from two t1 three times per day, up to eight to ten times per day (see Holland Aff., at~~ ~acqueline 3-5). Station agent Allison stated that while cleaners still relieve station agents I during breaks at other tokin booths in her subway station, around May 2004, her supervisor told her to discontinue the practic of allowing cleaners into her booth to relieve her during "comfort breaks" (Allison Aff., at~ ~ 8, I ). In addition, Ms. Allison and another station agent, Alice Ackennan, stated that the official T ansit Authority announcement broadcast heard in token booths at least several times per week, riminds station agents that person authorized to enter token booths include "Cleaners on duty, clean·ng token booths or giving authorized comfort relief to Station Agents" (Allison Aff., at ~ ~ 5-7 Ackerman Aff., at ~ ~ 3-5). Ms. Ackennan also stated that cleaners regularly relieve her whe she taken "comfort breaks" (Ackerman Aff., at ~ 6). DCAS asserts, h wever, that based upon the information provided by the Transit Authority to DCAS in late 2003 an early 2004 regarding the changes in functions of the station agents and changes in the prior praclice of cleaners relieving station agents in token booths during the latter's "comfoti breaks", it haf a rational basis to exercise its discretion to cancel the promotional examination for employies in the cleaner titles and this decision was neither arbitrary nor capricious (see Patitucci Aff., at 1f 1J 28-3 l). By order enter d o~ October 4, 2004, this Court denied the cross motion by respondent DCAS to dismiss the p tition and directed DCAS to file an answer (Answer, Ex. H). This Court reasoned that DCAS had the discretion to determine whether to administer promotional examinations to emplo ees in the cleaner titles for the position of station agent, as the cleaner titles 6 [* 7] were not in the direct linj of promotion to station agent, but, rather, were allegedly in related or collateral lines (see Civil rrvice Law§ 52 [l]) (id.). This Court concluded that the petition stated a cognizable cause of actir under CPLR Article 7 8, as there was conflicting evidenc;e as to whether the Transit Authority had,I in fact, discontinued the practice of having cleaners relieve ticket agents during "comfort breaks", rhich had been the basis for the determination by DCAS that the cleaner titles were related or co Ila eral to the station agent title (id.). After DCAS filed its answer, Local I 00 re-noticed the petition, w ich is now being considered on the merits. Discussion Courts defer to the discretion of the appropriate civil service commission, in this case DCAS, to determine the lligibility requirements for promotional examinations, including whether ce1iainjob titles are in re ated or collateral lines, within the meaning of Civil Service Law§ 52 (1), or provide "appropriate reparation" for another job title, within the meaning of Civil Service Law § 52 (14) (see Matter ofIon/on v McCoy, 22 NY2d 356, 362-363 [ 1968]; Wirzberger v Watson, 305 NY 507, 513-514 [1953r Matter of Gallagher v City ofNew York, 307 AD2d 76, 80-82 [I" Dept 2003 ], Iv denied 1 NY3d 103 [2003]; Matter ofPalaia v Yonkers Civil Serv. Commn., 293 AD2d 4 79 [2d Dept 2002]; Liebe v Nassau County Civil Serv. Commn., 291 AD2d 451 [2d Dept 2002]; Matter . I of Beloten v Dzamond, r6 AD2d 438 [ l SI Dept 2000]; Matter ofMcGrath v Sajir, 250 AD2d 4 70 [ 1si Dept 1998]; Matter ifHedeman v County ofDutchess, 234 AD2d 294 [2d Dept 1996]). Com1s will not substitute thei judgment for that of a civil service commission regarding the eligibility. requirements to take a . romotional examination, if any fair argument can be made to sustain the commission's determin ti on (see Wirzberger v Watson, 305 NY at 513; Matter of Gallagher v City ofNew York, 307 AD2, at 81; Matter ofMcGrath v Safir, 250 AD2d at 479). Courts have upheld 7 [* 8] I the discretion of a civil s.hvice commission in changing existing requirements for promotional examinations, if the co1ission's determination was supported by a fair argument and was not arbitrary or capricious (fee Matter of McGrath v Safir, 250 AD2d 479, supra [experience requirement increased fot promotional examination for police sergeant]; Matter of Hedeman v I I County of Dutchess, 234 AD2d 294, supra [educational requirements for promotion to junior civil engineer position increas d]; Matter of Connery v White, 164 AD2d 535 [3d Dept 1990] [Civil Service Commission co Id make requirements for promotion to Department of Transportation Personnel Director more stringent]). I An administrativd agency, like DCAS, however, must explain its reasons for departing from I a prior practice, in this c e administering a promotional examination for the station agent position open to employees in th cleaner titles. If an administrative agency does not provide adequate reasons for departing fr m prior practice or precedent in cases where the facts are substantially similar, its determinatio may be considered arbitrary and capricious (see Matter ofKlein v Levin, 305 AD2d 316, 317-318 1st Dept 2003], Iv denied 100 NY2d 514 [2003]; see also Matter ofBuffalo Civic Auto Ramps, Inc. v Serio, ---AD2d-, 800 NYS2d 686 [1st Dept 2005]; Matter of2084-2086 BPE Assocs. v State of Jew York Div. of Hous. and Community Renewal, 15 AD3d 288 [1" Dept 20051, zv denied ---NYr- [Sept. 13, 2005]). The petition asserts that DCAS cancelled the 2004 promotional examination for the cleaner titles, based upon the mi taken belief that the prior practice ofhaving cleaners relieve station agents during comfort breaks ad been discontinued.(Verified Petition, at~~ 26-27). As has been noted above, in his January 2 , 2004 letter to Transit Authority Vice President Kenneth Hyland, DCAS Deputy Commissioner oseph DeMarco stated, "once cleaners no longer relieved station agents, the 8 [* 9] I I j basis for making the cleanls eligible for the promotional exam was eliminated" (see Answer, ~x. E). According to DCASJ in response to its inquiries, the Transit Authority could not confinn whether, in light of their ~ew duties, station agents were still relieved by cleaners. DCAS did not I I accept the new rationale for allowing cleaners to take the promotional examinations proposed by I ) Transit Authority Vice Ptesident, Kenneth Hyland in his December 22, 2003 letter, namely that certain "customer service lements of the Cleaner job create a sufficient job affinity with the Station Agent title" (Answer, E . D and E). The record on the Instant petition is inadequate to enable this Court to make a detennination on certain disputed factua issues necessary to review the determination by DCAS to cancel the 2004 promotional examinatioJ for cleaners. Accordingly, pursuant to CPLR 7804 (h), this Court refers this matter for a hearing before a Special Referee, concerning the disputed factual issues, including: (1) whether, in or after 2 04, the Transit Authority continued its prior practice of having employees in the cleaner titles reliev station agents during "comfort breaks"; and (2) whether, in or after 2004, the cleaners have had ot er training or work experience providing them with adequate preparation to perfonn the work of rtation agents (see Matter of Sontag v Bronstein, 33 NY2d 197 [ 1973]; Matter ofAnonymous v Lommr. ofHealth, _AD3d _ , 2005 NY Slip Op 06884 (1st Dept Sept. 27, 2005); Matter ofPa/ telidis v New York City Bd. ofStds. and Appeals, 13 AD3d 242 [I" Dept 2004], Iv denied 4 NY31809 [2005]; Church ofScientology ofNew York v Tax Commn. of City of New York, 120 AD2d 3~6 [l st Dept 1986], appeal dismissed 68 NY2d 807 [1986] and 69 NY2d 659 [1986]). Accordingly, it s ORDERED tha, pursuant to CPLR 7804 (h), the disputed factual issues specified herein, 9 [* 10] . ~ related to the determination iby the New York City Department of Citywide Administrative Services to cancel the 2004 promot~onal examination for employees in the cleaner titles, are referred to a Special Referee to hear anc~ report with recommendations; and it is further ORDERED that pe,nding receipt of the Special Referee's report and recommendations, and a motion pursuant to CPL ~ 4403, the final determination of the within Article 78 proceeding is held in abeyance; and it is furt er ORDERED that, ithin thirty days of entry, petitioner shall serve a copy of this decision and order, with notice of entry, upon respondent and shall also serve a copy of the decision and order, with notice of entry and a completed Information Sheet using the form annexed hereto, on the Special Referee Clerk in he Motion Support Office, Room 119 , in order to obtain a hearing date; and it is further ORDERED that pon failure of petitioner to comply with the above, the petition is denied and the proceeding is di/missed. This constitutes re decision and order of the Court.. Dated: October Jj_, rzoos IJOJi/81.!J . . ~~c DORIS LING-COHAN, J..C. '01f4/v ENTER J H:\Supreme Court\Article 7 \Local 100.DCAS - renoticed pet. - promotional eligibility.wpd 10
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