Piekielniak v. Axelrod

Department of Health as a consultant nurse (emergency coronary care), holding a permanent appointment grade 24 in the classified service until November 19, 1981, when her position was terminated because of a reduction in Federal Highway Safety grants. Petitioner contends that hers was the only position abolished and that her duties continue to be performed by persons with less seniority, constituting denial and circumvention of her seniority rights. Because of a reduction of $280,035 in the Federal grant for advanced emergency technician training, a retrenchment plan which would enable the bureau to continue essential services within the reduced budget was implemented, which provided for cuts in contractual services, training equipment, and supplies, and which resulted in the abolition of petitioner’s position. Respondent director of the bureau used an evaluation grid on each of the nine positions funded by the grants for a comparative evaluation in determining which position would be eliminated. Petitioner’s position was rated lowest, and after her discharge her principal remaining duty, that of auditing teaching methods, environment and techniques, was absorbed by the remaining employees of lesser seniority. Petitioner argues that the abolition of her position was a subterfuge to discharge her as an individual and was not done in good faith. Hence, she contends that it was a denial of her rights under the collective bargaining agreement in effect in lieu of sections 75 and 76 of the Civil Service Law and was also a violation of her rights under section 80 of the Civil Service Law. A grievance proceeding filed by petitioner was withdrawn. Special Term dismissed petitioner’s CPLR article 78 proceeding, holding that respondent’s determination had a rational basis. This appeal ensued. It is undisputed, as petitioner concedes, that competitive civil service positions may, in the absence of bad faith, fraud or collusion, be abolished in the interest of economy (Matter of Saur v Director of Creedmoor Psychiatric Center, 41 NY2d 1023 , 1024; Matter of Turner v Berle, 61 AD2d 712 , 714). Petitioner has the burden of proving that the abolition of her position was brought about in bad faith and in an effort to circumvent the Civil Service Law (see Matter of Aldazabel v Carey, 44 NY2d 787 , 788; Matter ofWipfler v Klebes, 284 NY 248 , 255). She has failed to sustain this burden by failing to demonstrate that there was not a bona fide financial reason for the abolition of her position, or that no savings was accomplished as a result thereof, or that another person was hired in her place. The record reflects that included in the over-all savings effected under the retrenchment plan was $46,575 for her position. Further, it is uncontroverted that no other person was hired to replace petitioner, and that those duties which she performed were subsequently carried out by other existing employees. While conceding that budgetary factors may have been a consideration, petitioner alleges that respondent acted in bad faith by dismissing her as a disciplinary measure and by depriving her of the procedural rights provided in the union contract. She cites the affidavit submitted by respondent director Huszar, which stated, inter alla, “Petitioner was rated lower than other persons whose positions were being funded from the grant being reduced”. This contention must be rejected because the record demonstrates clearly, as does the entirety of the Huszar affidavit, that petitioner was not terminated but rather that it was the position petitioner held which was abolished.^[1] We reject this contention, holding that there is substantial evidence in the record to support the determination and that bad faith has not been established as the motivation for the abolition of the position. Nor does the fact that others of less seniority retained their positions and assumed petitioner’s duties require a different conclusion (see Matter of Connolly v Carey, 80 AD2d 936 , 937; Matter