Matter of Brynien v Governor's Off. of Empl. Relations

[*1] Matter of Brynien v Governor's Off. of Empl. Relations 2008 NY Slip Op 52524(U) [21 Misc 3d 1146(A)] Decided on October 8, 2008 Supreme Court, Albany County Ceresia, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 8, 2008
Supreme Court, Albany County

In The Matter of the Application of Kenneth Brynien, as President of the New York State Public Employees Federation, AFL-CIO, Petitioner, For A Judgment Pursuant to Article 78 of the Civil Practice Law and Rules,

against

The Governor's Office of Employee Relations and GARY JOHNSON, as Director; THE DIVISION OF CLASSIFICATION AND COMPENSATION OF THE NEW YORK DEPARTMENT OF CIVIL SERVICE and NICHOLAS J. VAGIANELIS, as Director; THE NEW YORK STATE OFFICE OF MENTAL HEALTH and MICHAEL F. HOGAN, as Commissioner; ROCKLAND PSYCHIATRIC CENTER and JAMES BOPP, as Executive Director; and MARGARET HENS, Respondents.



2225-08



William P. Seamon, Esq.

Attorney For Petitioner

1168-70 Troy-Schenectady Road

P.O. Box 12414

Albany, NY 12212-2414

Andrew M. Cuomo

Attorney General

State of New York

Attorney For Respondent

The Capitol

Albany, New York 12224

(Christina L. Roberts-Ryba,

Assistant Attorney General

of Counsel)

George B. Ceresia, J.

Petitioner Kenneth Brynien, as President of the New York State Public Employee's Federation, AFL-CIO ("PEF") has commenced the instant CPLR Article 78 proceeding to review and annul a grievance determination issued by respondent Governor's Office of Employee Relations ("GOER") on November 19, 2007 denying an out-of-title work grievance brought by PEF on behalf of Margaret Hens.

Ms. Hens is employed by the Rockland Psychiatric Center, a facility of the New York State Office of Mental Hygiene ("OMH") in the civil service title of Nurse Administrator 2 (NA2) at a salary grade 21. Since August of 2003 she has worked as Service Director [FN1] of the White Plains Service Center, an outpatient clinic serving approximately 250 patients in Westchester County. The petitioner asserts that Ms. Hens, in her position as Service Director for the White Plains Service Center, has actually been performing the duties in the higher civil service title Treatment Team Leader ("TTL"), salary grade M-1. The petitioner contends that the out-of-title assignment constitutes a violation of the New York State Constitution (Article V, § 6), Civil Service Law § 61 (2), and Article 17 of the 2003-2007 collective bargaining agreement between the State and PEF (State/PEF Agreement). Thus, petitioner maintains that respondent GOER's denial of the grievance was irrational, arbitrary, capricious and contrary to law. The petitioner seeks, inter alia, the cessation of the assignment of such duties, and compensation to Ms. Hens for the difference between a salary grade 21 rate of pay and a salary grade M-1 rate of pay for the (ongoing) grieved period.

By letter dated July 26, 2007 OMH denied the Step 2 [FN2] contract grievance filed by the petitioner. The decision recited, in part, as follows:

"After a thorough review of the facts, arguments and relevant documentation submitted during the second step meeting, it is the agency determination that the aggrieved duties do not rise to the level of out-of-title work as a Treatment Team Leader. The number of clinical staff assigned to the White Plains Service Center does not meet the minimum numbers established by the classification standard for Treatment Team Leader, i.e. community service teams consisting of a minimum of 20 clinical staff. Additionally, there exists no classified title of "Service Director"(or "Program Director") in the Office of Mental Health. Management has taken prudent steps to meet accreditation standards by selecting a journey level mental health professional in an administrative title, Nurse Administrator 2 to coordinate the running of this program."

The petitioner then filed a Step 3 grievance with the Director of GOER, which was referred to [*2]the Director of Classification and Compensation for an advisory opinion. In a decision dated September 21, 2007 the Step 3 grievance was denied based upon an advisory opinion recommending denial issued by the Director of Classification and Compensation. This was followed by what is commonly referred to by the parties as a "Step 3½" Appeal [FN3]. The grievance was denied by GOER in a decision dated November 19, 2007, which adopted findings of the Director of Classification and Compensation. The determination recited, in part, as follows:

"Properly classified Nurse Administrators 2 (Psychiatric), Grade 21, are second-level supervisors'/ Nurse Managers' who serve as assistants to a Director of Nursing, M-4. Incumbents in these positions oversee, coordinate, and direct the activities of multiple Nurse Administrators 1 (Psychiatric), Grade 20, and other supervisory-level' nurses (e.g., Nurses 3 Psychiatric), Grade 20, Infection Control Nurses, Grade 19, etc.) engaged in the day-to-day' supervision of nursing and direct care staffs/administration of nursing programs; assist in the development and implement of nursing policies and procedures; attend and chair nursing committee meetings; ensure adequate staff coverage on nursing wards; identify the training needs of staff; and ensure that all nursing staffs' credentials are up to date.'

"Properly classified Treatment Team Leaders (Various Parenthetics), —1, plan, organize and supervise the implementation of a residential, habilitation, clinical, day center or community program for mentally ill, mentally retarded or developmentally disabled persons. Incumbents have program and administrative responsibility for the treatment activities of an interdisciplinary treatment team and direct and coordinate a total program tailored to the individual needs of clients. Incumbents are responsible for marshaling and assigning team resources to accomplish team goals, and evaluating team programs. The size and composition of treatment teams vary according to facility program and clients served, following one of these organizational models: combined residential and community service teams consisting of a minimum of 35 clinical staff; residential teams consisting of a minimum of 20 clinical staff; or geriatric teams responsible for 100 inpatients.

"The December 30, 2005 Examination Announcement for this title (a copy of which was provided by PEF with the submitted grievance) stated that a Nurse Administrator 2 or Nurse Administrator 2 (Psychiatric), [...]would be in charge of nursing services for a large number of individuals who meet the criterion for services by the agency in which [the incumbent] is employed. This will involve direct or indirect supervision of professional and clinical staff.' The duties that the grievant performed, as compared to those listed above, all fall within the purview of appropriate duties for a Nurse Administrator 2 (Psychiatric), Grade 21. The grievant was responsible for all aspects of supervision, including employee evaluations, for Nursing staff only; she was not responsible for the professional guidance of staff outside of her expertise. Furthermore, even if the grievant was functioning in a Treatment Team leader capacity, the grievant's Team' does not meet the minimum number of staff per the Treatment Team leader (Mental Health), M-1, Classification Standard; The size and composition of treatment teams [*3]vary according to facility program and clients served, following one of these organizational models: combined residential and community service teams consisting of a minimum of 35 clinical staff; residential teams serving a minimum of 48 inpatients; community service teams consisting of a minimum of 20 clinical staff; and geriatric teams responsible for 100 inpatients.'

"Finally, it must be mentioned that it is the responsibility of all employees in State facilities to assist in the total care of patients and/or consumers of those facilities, in addition to their occupational' responsibilities. Such was the case here with the purported grieved duties."

"Out-of-title work, other than on an emergency basis, is prohibited by Civil Service Law § 61(2)"(Matter of Civil Service Employees Association, Inc. v Angello, 277 AD2d 576, 578 [3d Dept., 2000]; see also Matter of Woodward v Governor's Office of Employment Relations, 279 AD2d 725, at 726 [3d Dept., 2001]). The standard of review is whether the record as a whole provides a rational basis for the determination to deny the grievance (see Matter of Civil Service Employees Association, Inc. v Angello, supra, at 578). Performance of duties which are substantially similar to those set forth in the employee's job description, and/or are a reasonable outgrowth thereof are not considered out-of-title work (see Matter of Woodward v Governor's Office of Employment Relations, supra, at 726; Matter of Civil Service Employees Association, Inc. v Angello, supra, at 722; Matter of Loehr v Governor's Office of Employee Relations, 3 AD3d 653, at 654 [3d Dept., 2004]). In addition "not all additional duties constitute out-of-title work, and the mere fact that there may be some overlap between two particular positions does not mandate a finding that a petitioner is being compelled to perform out-of-title work" (Matter of Woodward v Governor's Office of Employment Relations,279 AD2d 725, 726[3d Dept., 2001] "An out-of-title work assignment exists when an employee has been assigned or compelled to perform the duties of a higher grade, without a concomitant increase in pay, frequently, recurrently and for long periods of time, unrelated to any temporary emergency requirement" (Matter of Caruso v Mayor of the Village of South Glens Falls, 278 AD2d 608, 609 [3d Dept., 2000], citing O'Reilly v Grumet, 308 NY 351, 355; see also Matter of Sprague v Governor's Office of Employee Relations, 13 AD3d 849, 850 [3d Dept., 2004]). "An employee need not be assigned the full range of duties of a higher salary grade to be performing out-of-title work" (Matter of Steen v Governor's Office of Employee Relations, 271 AD2d 738, 739-740 [3d Dept., 2000]). "Moreover, out-of-title work under the Civil Service Law has been established based upon a significant increase in supervisory responsibility" (Matter of Caruso v Mayor of the Village of South Glens Falls, supra). Judicial review of such issues is permitted "on a case-by-case basis, balancing the protection of employees' rights with the realities of workplace absences and vacancies" (see Matter of Sprague v Governor's Office of Employee Relations, supra, at 850 [3d Dept., 2004]).

The job description for the title Nurse Administrator 2, as set forth in a notice of a promotional examination dated December 30, 2005, recites as follows:

"As a Nurse Administrator 2 or Nurse Administrator 2 (Psychiatric), you would be in [*4]charge of nursing services for a large number of individuals who meet the criterion for services by the agency in which you are employed. This will involve direct or indirect supervision of professional and clinical staff. Your responsibilities may include ensuring implementation of facility policies and procedures relating to nursing; initiating special investigations; scheduling staff; directing staff; teaching appropriate nursing techniques; and reviewing individuals' records for compliance with agency practice/protocol and developing a plan for correcting any deficiencies found. In some facilities you may function as Assistant to the Director of Nursing."

The job description for Treatment Team Leader includes the following [FN4]:

"Treatment Team Leaders plan, organize and supervise the implementation of a residential, habilitation, clinical, day center or community program for mentally ill, mentally retarded or developmentally disabled persons.

"Treatment Team Leader (Children and Youth Services) and Treatment Team Leader (Mental Health) exist in the Psychiatric Centers of the Office of Mental Health. Treatment Team Leader (Mental Retardation) exists in the Developmental Centers of the Office of Mental Retardation and Developmental Disabilities.

"Treatment Team Leaders have program and administrative responsibility for the treatment activities of an interdisciplinary treatment team and direct and coordinate a total program tailored to the individual needs of clients. The Team Leader is responsible for marshaling and assigning team resources to accomplish team goals, and evaluating team programs.

"The size and composition of treatment teams vary according to facility program and clients served, following one of these organizational models: combined residential and community service teams consisting of a minimum of 35 clinical staff; residential teams serving a minimum of 48 inpatients; community service teams consisting of a minimum of 20 clinical staff; and geriatric teams responsible for 100 inpatients.

"Treatment Team Leaders are distinguished from journey level positions in Psychology, Social Work, or in other recognized mental health/mental retardation treatment disciplines by their responsibility for supervising and directing of an interdisciplinary treatment team containing such journey level positions and direct care staff.

"Develops administrative and treatment goals for the Treatment Team.

Meets and confers with facility management to determine policies and set goals for the treatment team and to discuss progress and impediments to progress. [*5] Plans, develops and supervises the implementation of programs on an inpatient or an outpatient basis.Deter mines the number of primary treatment groups that will comprise the Treatment Team.Over sees the assignment of direct care staff in a manner that provides sufficient coverage and equitable distribution among the groups.Assi gns other treatment staff in a manner consistent with the privileges for which they are credentialed and the service needs of the groups clients.Hol ds periodic staff meetings and conferences to discuss treatment programs, policies and procedures, to obtain input from team members to the goal-setting process, and to periodically evaluate goal accomplishment.

Assists in hiring new staff, participates in their orientation, and insures that they get adequate initial and continuing training.

Prepares periodic performance evaluations of subordinates, discusses the evaluation with the employee and makes appropriate recommendations and suggestions for improving performance.

Prepares or assists in preparing the team budget and monitors and controls the use of budgeted funds.

"Within the established organizational and procedural framework, supervises and evaluates the treatment planning process for each client assigned to the Treatment Team and ensures accomplishment of Team goals.

Participates in screening referred clients for possible admission to the facility, and in periodic screening conferences to discuss admissions and possible treatment modalities." [*6]

A 2007 evaluation of Ms. Hens's job performance in the position of Service Director for the White Plains Service Center provides some information with regard to the nature and scope of actual duties performed:

"Ms. Hems continues to serve as a strong leader and a highly effective manager, she runs the White Plains Service Center in an organized manner and has very good rapport with all of the staff. She works closely with the Medical Director, Dr. Jospitre and it is this successful relationship that is reflected in every aspect of the Center's functioning.

"Ms. Hens is dedicated to ensure the Center services the White Plains community and assists the staff to make necessary referrals for additional services through the SPOA System for housing, case management and entitlements.

"Ms. Hens conducts the weekly team meeting to enhance communication, reviews referral packets, conducts intakes, assigns new cases and closely monitors the risk status of the enrolled consumers. This meeting is also used to cover administrative issues and required staff training. Ms. Hens actively involves herself in covering groups when needed and meeting with consumers when this extra individualized attention will ensure community stabilization. Ms. Hens meets individually with staff and helps them review their work load, to ensure their charting requirements are being met. This Center consistently has the highest Utilization Review compliance.

"Ms. Hens attends the WCDMH meeting as required and has positive relationships with staff from other community agencies that make referrals to the Center. Ms. Hens has a positive relationship with the White Plains Community Advisory Board and was actively involved in their recent fund raiser that was held in March.

"Ms. Hens also assists me with reviewing the nursing practices for the CMNH nurses and ensures that the procedures implemented in the Treatment Room meet RPC Policies. Ms. Hens' insight and knowledge have proven invaluable to ensure that the nurses are adhering to all procedures.

"This past year, the White Plains Service Center had a social worker and a psychiatrist added to their staffing. Ms. Hens ensured that they were properly oriented to the Center's procedures and population. In addition, Ms. Hens reviews T and A sheets, requests for time off and completes the annual evaluations.

"Ms. Hens is known for her daily rounds throughout the day. She makes sure the building is clean and secure. Recently, Ms. Hens has been working closely with Chief Stacel to upgrade the building's security.

"Ms. Hens meets regularly with the consumers, welcomes them to the Center daily, covers groups and knows all of the consumers who are enrolled at the Center. She welcomes their input and works hard to make adjustments into the Center's programs to reflect their [*7]feedback.

"Ms. Hens welcomes family involvement and in June the Center will be participating in the PSYCKES program.

"Ms. Hens' monthly report is timely, comprehensive and ensures to cover hospitalizations, pharmacy usage, census, consumer satisfaction and staffing needs.

"In conclusion, recently Ms. Hens was asked to become my back up and graciously agreed to this additional duty. I want to express my admiration for Ms. Hens and thank her for continual professionalism, dedication and care she demonstrates for the consumers enrolled at the Center."

A Nurse Administrator 2 supervises and oversees other nurses (including subordinate supervising nurses) with respect to all aspects of nursing care, and with respect to student nursing education. Treatment Team Leaders, inter alia, "plan, organize and supervise the implementation of a . . . clinical, day center or community program for mentally ill, mentally retarded or developmentally disabled persons" (see Job Description For Treatment Team Leaders, supra). "Treatment Team Leaders have program and administrative responsibility for the treatment activities of an interdisciplinary treatment team and direct and coordinate a total program tailored to the individual needs of clients" (id.). They also develop and determine administrative and treatment goals and policies for the Treatment Team; and plan, develop and supervise the implementation of programs on an inpatient or an outpatient basis.

Ms. Hens, as Service Director of the White Plains Service Center, works in conjunction with a Medical Director for the facility (Dr. Jospitre)[FN5]. In her capacity as Service Director, she is responsible for the day-to-day operation of the facility, in much the same way a Nurse Administrator 2 assigned to a nursing unit is responsible for the day-to-day operation thereof. In this respect, it would appear that the Service Director position has broad similarities to the supervisory responsibilities of a Nurse Administrator 2. One difference between the two positions is that, with respect to the position of Service Director, Ms. Hens is required to supervise personal service clinicians outside the nursing discipline, that is, clinicians in the titles of social worker, psychologist rehabilitation counselor, senior recreation therapist and recreation worker. It appears, however, that such oversight is not with respect to matters involving their professional expertise, but rather with respect to issues related to day-to-day staffing and management of the facility. Insufficient evidence is presented to demonstrate how, or in what respect, the fact that the petitioner supervises clinicians outside her professional discipline essentially changes the character of her position from Nurse Administrator 2 to Treatment Team Leader. There is no evidence in the instant record that Ms. Hens, as a part of her duties, engages in planning and program development and/or the development of treatment policy and goals, a significant feature of the Treatment Team Leader position. While the size of the facility is not, of [*8]itself, controlling (see Matter of Collins v Governor's Office of Employee Relations, 211 AD2d 1001 [3d Dept., 1995]), it is still a factor to be considered. It appears that Ms. Hens currently supervises one half the minimum number of clinical staff which a Treatment Team Leader is required to oversee. There is no evidence that a person assigned to a nursing unit as Nurse Administrator 2 would supervise a significantly smaller number of clinicians (i.e. nurses). The petitioner provides evidence suggesting that at least one small facility (the New Rochelle Clinic - having a clinical staff of under ten individuals) is supervised by a Treatment Team Leader. Notably, however, the contention is not supported by an affidavit by a person with knowledge to establish the underlying facts. The exhibit submitted in support of the petitioner's contention (Exhibit G, pp. 32-33, annexed to the petition) is so unintelligible that, standing alone, it lacks probative value. Moreover, even if evidence of the foregoing in admissible form was presented, it would not be a compelling factor, since it would not establish the existence of a consistent policy of assigning Treatment Team Leaders to undersized facilities (see e.g. Matter of Gajewski v Angello, 301 AD2d 721 [2003]).

The Court is of the view that the determination of GOER dated November 19, 2007, which found, in effect, that Ms. Hens' current responsibilities are substantially similar to, and/or a reasonable outgrowth of the duties set forth in the job description of a Nurse Administrator 2, is not arbitrary and capricious.The Court finds that the determination was not made in violation of lawful procedure, is not affected by an error of law, and is not irrational, arbitrary and capricious, or an abuse of discretion. The Court concludes that the petition must be dismissed.

Accordingly, it is

ORDERED and ADJUDGED, that the petition be and hereby is dismissed.

This shall constitute the decision, order and judgment of the Court. All papers are returned to the attorney for the respondent who is directed to enter this Decision/Order/Judgment without notice and to serve all attorneys of record with a copy of this Decision/Order/Judgment with notice of entry.

ENTER

Dated:October 8, 2008/s/ George B. Ceresia, Jr.

Troy, New YorkGeorge B. Ceresia, Jr.

Supreme Court Justice Footnotes

Footnote 1:"Service Director" is an informal and/or unofficial "in-house" title which denominates the head administrator of the facility.

Footnote 2:Under paragraph 17.3 (a) of the parties' collective bargaining agreement, a grievance for out of title work commences at Step 2.

Footnote 3:Taken pursuant to paragraph 17.4 (d) of the parties' Collective Bargaining Agreement, which permits an additional appeal where new facts are presented, or where the facts are in dispute.

Footnote 4:All headings have been omitted.

Footnote 5:Unfortunately, the record is bereft of information concerning the duties and responsibilities of the Medical Director with respect to the overall operation of the White Plains Service Center.