Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

REALBUTO v. HOWE

November 8, 1993

LORI BOYAR REALBUTO, Plaintiff, against ELIN M. HOWE, Individually and as Commissioner of the New York State Office of Mental Retardation and Development Disability, and EDWARD REGAN, Individually and as Director of the New York State Department of Audit Control, and JOSEPHINE GAMBINO, Individually and as Commissioner of the New York State Department of Civil Service, and THE STATE OF NEW YORK, Defendants.

CON. G. CHOLAKIS, JUDGE, UNITED STATES DISTRICT JUDGE


The opinion of the court was delivered by: CON. G. CHOLAKIS

Plaintiff Lori Boyar Realbuto, a former employee at the New York State Office of Mental Retardation and Developmental Disability (OMRDD), filed this civil rights action against New York State and several of its officials including Elin M. Howe (Commissioner of the OMRDD), Edward Regan (former Comptroller and Director of the State's Department of Audit and Control), and Josephine Gambino (Commissioner of Civil Service). Ms. Realbuto, who suffers from a hearing impairment and chronic fatigue immunity deficiency syndrome, alleges that the defendants discriminated against her on the basis of her handicaps in violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, the due process and equal protection clauses, and the Americans With Disabilities Act, 42 U.S.C. §§ 12101-12213. Now before the Court are cross-motions for summary judgment.

 DISCUSSION

 Rule 56 of the Federal Rules of Civil Procedure permits a court to render a summary judgment only if,

 
the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

 Fed. R. Civ. P. 56(c). The materiality of a factual dispute depends upon the governing law. A brief recitation of the facts and applicable law is therefore in order.

 Ms. Realbuto began her State service in 1974 as a Mental Hygiene Therapy Aid, a position within the competitive class *fn1" of the State's civil service system. In 1979, she was appointed to serve as a Budget Analyst Trainee in the Division for Youth (DFY). This position in the DFY fell within the noncompetitive class of civil service appointments. She served in the DFY until sometime in 1981, when she returned to the OMRDD to serve as a "Senior Administrative Analyst 55-b," also a position in the noncompetitive class.

 The term "55-b" appended to Ms. Realbuto's job title indicates that she obtained her position under Section 55-b of the State's Civil Service Law. That section permits the State to appoint certain handicapped persons to the civil service even though they have not taken the competitive civil service examination. Specifically, the section provides:

 
The state civil service commission may determine up to twelve hundred positions with duties such as can be performed by persons with physical or mental disability who are found otherwise qualified to perform satisfactorily the duties of any such position. Upon such determination the said positions shall be classified in the noncompetitive class, and may be filled only by persons who shall have been certified by the employee health service . . . as being a person with either a physical or mental disability, but capable of performing the duties of such positions.

 N.Y. Civ. Serv. § 55-b[1]. There is no dispute that Ms. Realbuto knew that the Senior Budget Analyst position which she sought in 1981 would be classified as noncompetitive under Section 55-b. See Letter from Lori A. Boyar to Michael Pelham dated May 19, 1981 (attachment No. 15 to Defendants' Answers to Interrogatories).

 Ms. Realbuto served the OMRDD until June, 1991 when defendant Elin M. Howe notified her that her position was being abolished due to a "reduction-in-force" or "RIF" that apparently resulted from the State's fiscal woes. As a result of the RIF, the State laid off 373 employees at the OMRDD. Of those employees, 347 were in the competitive class and 5 were employees classified under Section 55-b as noncompetitive employees. *fn2" See Defendants' 10[J] Statement at P 20; Plaintiff's Responsive 10[J] Statement at P 20.

 The State helped Ms. Realbuto find employment with the Research Foundation for Mental Hygiene, a non-state employer. After accepting the position, however, Ms. Realbuto found it to be unsatisfactory. See Defendants 10[J] Statement at P 26; Plaintiff's Responsive 10[J] Statement at P 26. She complains that the position was temporary, required too much travel, and provided inferior employee benefits. She would have preferred to retain her employment by bumping a more junior colleague, even one in the competitive class.

 Generally, when the State reduces its work force it first displaces the employees with the shortest duration of State service within each class of employees, either the competitive or noncompetitive class. See N.Y. Civ. Serv. §§ 80 (competitive class) & 80-a (noncompetitive class). This principle gives rise to a practice called "bumping" through which an employee whose position is eliminated has the option of displacing a more junior employee in the same class. Under the civil service statute, a noncompetitive employee may not bump a competitive employee and vice versa. Ms. Realbuto, as an employee who held a noncompetitive position, was unable to bump a junior employee and for this reason she lost her job.

 1. Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq.

 Congress has forbidden recipients of Federal financial assistance from discriminating against individuals on the basis of disability. Specifically, the Rehabilitation Act provides:

 
No otherwise qualified individual with a disability in the United States, as defined in section 7(8) [ 29 U.S.C. § 706(8)], shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.