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AULETTA v. TULLY

October 3, 1983

Pasquale AULETTA, Harold Dobson, Earl Goods, and Robert Skaggs, individually on behalf of themselves and all other persons similarly situated, Plaintiffs,
v.
James H. TULLY, Individually and as the Commissioner of the New York State Department of Taxation and Finance, Victor Bahou, individually and as President of the New York State Civil Service Commission, Josephine L. Gambino and James T. McFarland, individually and as members of the New York State Civil Service Commission and W. Barry Lorch, individually and as Director of Classification and Compensation of the New York State Department of Civil Service, Defendants; Frank GIACCONE, Marie Laudati, William Barr, and Henry Orlow, individually on behalf of themselves and all other persons similarly situated, Plaintiffs, v. James H. TULLY, Individually and as the Commissioner of the New York State Department of Taxation and Finance, Victor Bahou, individually and as President of the New YOrk State Civil Service Commission, Josephine L. Gambino and James T. McFarland, individually and as members of the New York State Civil Service Commission and W. Barry Lorch, individually and as Director of Classification and Compensation of the New York State Department of Civil Service, Defendants.



The opinion of the court was delivered by: MINER

Memorandum-Decision and Order.

MINER, District Judge.

 I

 These actions arise out of a decision by the New York State Department of Taxation and Finance (hereinafter "Department") which effected a reclassification of certain civil service positions, and resulted in promotion of certain individuals, within the Department. Alleging a denial of equal protection of the law in violation of the fourteenth amendment of the United States Constitution *fn1" stemming from the reclassification, plaintiffs bring these clase actions *fn2" seeking declaratory and injunctive relief, as well as back pay, pursuant to the provisions of 42 U.S.C. § 1983. Jurisdiction in this Court is predicated upon 28 U.S.C. §§ 1331 and 1343. Before the Court are defendants' motions for summary judgment pursuant to Fed.R.Civ.P. 56(b).

 II

 According to the allegations in the "Auletta" complaint (82-CV-924), the Department, in 1975, adopted a proposal made "under the auspices of the Department of the Budget and paid for with a federal grant." Auletta Complaint, P24. The proposal was intended to increase the efficiency of the Department, to increase the number of career personnel remaining with the Department, and to increase the tax revenues collected by the State of New York. Id., P25. The porposal resulted in the division of the Department's personnel into two categories: tax technicians, performing administrative office tasks, and tax auditors, primarily performing field audits. Id., P27. *fn3"

 In 1978, pursuant to this reclassification plan, defendant Lorch, Director of Classification and Compensation, reclassified as grade eighteen sales tax auditors I all grade fourteen assistant sales tax auditors who had been with the Department for two years, without requiring any of them to meet the prerequisites of a four-year college degree and twenty-four college credits in accounting or two years of on the job training designed specifically for new recruits. No similar upgrading was made with respect to sales tax technicians. Finally, the supervisory duties originally performed by grade eighteen sales tax auditors were assigned to grade twenty-three sales tax auditors II, and the "second line supervisory" duties were assigned to grade twenty-seven employees.

 Dissatisfied with this assignment of job functions, a number of employees, in June of 1978, filed complaints with the Director of Classification and Compensation pursuant to N.Y.Civ.Serv.Law § 120(I). *fn4" In those proceedings, the aggrieved employees sought to have their grade eighteen and grade twenty-three positions upgraded to grades twenty-three and twenty-seven, respectively, to reflect the reassignment of job functions. In other words, the aggrieved employees alleged that their former supervisory duties had been reassigned to employees in higher grade positions. Accordingly, they sought a corresponding appointment to those higher grade positions.

 Defendant Lorch, as Director of Classification and Compensation, denied the request for an upgrading of positions.An appeal was filed soon thereafter with defendants Bahou, Gambino and McFarland of the New York State Civil Service Commission pursuant to N.Y.Civ.Serv.Law § 120(2). *fn5" At the conclusion of the appeal, the Commission held that the reclassification of positions and the reassignment of job duties were done "prematurely" and required a "roll-back" from the new auditor positions to the former examiner positions.

 Howard Miller, the Director of the Budget, and defendant Tully, Commissioner of the Department, each requested of the Civil Service Commission a new hearing to determine if the reclassification of jobs was justified by a "substantial change of duties." See N.Y.Civ.Serv. Law § 132(2). *fn6" A new hearing then was provided in February of 1980. Mr. Quinn, former Executive Director of the Civil Service Commission, presided at that hearing and determined that plaintiffs Dobson, Auletta and those persons similarly situated properly were reassigned to journeyman positions. Finally, a August of 1980, the Commission determined that the assignment of grade fourteen journeyman duties to grade eighteen auditors was proper, in effect, upholding the validity of the original reclassification.

 The administrative determinations were reviewed in an Article 78 proceeding in New York Supreme Court, Albany County. The determinations were found not to be arbitrary and capricious and, therefore, were upheld by the reviewing court. This determination was affirmed by the Appellate Division, Third Department, Adelman v. Bahou, 85 A.D.2d 862, 446 N.Y.S.2d 500 (3d Dep't 1981) and leave to appeal to the New York Court of Appeals was denied, 56 N.Y.2d 502, 450 N.Y.S.2d 1023, 435 N.E.2d 1099 (1982).

 Plaintiffs Auletta, Dobson, Giaccone and Barr, prior to the reclassification, held grade eighteen positions within the Department. Sometime after the reclassification, each of these individuals was promoted provisionally to a grade twenty-three position. Subsequently, however, each has been reassigned to his former permanent grade eighteen position. It is the contention of these plaintiffs that they are entitled to permanent appointment in grade twenty-three positions by virtue of the title restructuring plan.

 Similarly, plaintiff Orlow is a grade eighteen excise tax auditor I. He alleges that, prior to the title structure change, he performed supervisory duties as a grade eighteen tax examiner. Here, Orlow complains that, although he still is a grade eighteen employee, he no longer is performing supervisory duties. Rather, he now is a journeyman along with former grade fourteen journeyman employees who have been upgraded to grade eighteen. It is Orlow's contention that he and similarly situated others are entitled to promotion to grade twenty-three positions.

 Plaintiff Laudati, originally a grade fourteen tax examiner with the Department, had her position reclassified to tax technician in 1977 pursuant to the overall plan for title restructuring. As a tax technician, Laudati alleges, she no longer performs desk audits as she did while a tax examiner. According to Laudati, however, those tax examiners who were reclassified as tax auditors at grade eighteen perform the same auditing functions that Laudati performed as a tax examiner. Plaintiff alleges that she never was informed of her option to become a grade eighteen auditor, rather than a grade fourteen technician. Similarly, ...


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