Court vacates jury’s determination that employee was laid off because of her political affiliation

Miller v County of Nassau, 2009 NY Slip Op 31178(U), May 11, 2009, Supreme Court, New York County, Docket Number: 28936/92, Judge: Ute W. Lally [Not selected for publication in the Official Reports]

Roberta Miller was the only Democrat employed by the Nassau County Department of Senior Citizens Affairs. She was one of about 600 employees demoted or laid off from their positions with Nassau County because of a $115 million budget deficit. Alleging that she was selected for layoff because she was a member of the Democratic Party, Miller filed an Article 78 petition seeking reinstatement with back pay pursuant to §77 of the Civil Service Law.*

Nassau County denied that Miller was laid off in bad faith but conceded that she was entitled to one year's back salary because her position "was required to be abolished by the Legislature."**

Although the jury found that Miller had been laid off in bad faith, the County asked the court to vacate the jury’s decision and grant its motion for judgment dismissing Miller’s petition “as a matter of law.” Although Judge Lally set aside the jury's decision, the County's motion for summary judgment was denied by the court.

Commencing with the premise that “A public employer may, in the absence of bad faith, collusion, or fraud, abolish positions for purposes of economy or efficiency, Judge Lally recited the basic notion that following the seperation of temporary and provisional employees, permanent employees are to be excessed in their "inverse order" of seniority. In the event such an employee is laid off, and a less senior employee retained in the same title, the layoff will be deemed to be in bad faith.

In adopting a layoff plan in times of fiscal restraint, said the court, a public employer must be guided by principles of "efficiency and economy" and may not target employees for layoff based upon their political party affiliation.

Using as an analogy cases alleging unlawful discrimination, Judge Lally said that statistical evidence, i.e., the percentage of Democrats laid off as measured againts the percentage of Republicans laid off, along with "other objectively established evidence," may give rise to an inference that the decision to lay off a particular individual was not made in good faith.

While Miller was the only Democrat in her department, the court said that there was no evidence submitted as to “how many Democrats were employed by other departments of the County or how they were affected by the layoffs.”***

Judge Lally found that while Miller’s salary was funded in part by federal funds, her termination must be deemed to have resulted in cost saving because there is no evidence introduced to the contrary.

Noting that Miller was hired and promoted under Republican administrations, the court ruled that in the absence of statistical evidence that Democrats were more adversely affected by Nassau County’s layoffs, “there is no fair interpretation of the evidence that [Miller] was laid off based upon her political party affiliation.”

Accordingly, Judge Lally set aside the jury’s verdict in favor of Miller as against the weight of the evidence. A new trial was ordered with respect to the issue of whether Miller was laid off based upon her affiliation with the Democratic Party.

* Civil Service Law § 77 provides that an officer or employee reinstated by court order after a finding that he or she was removed from their former position in violation of the Civil Service is entitled to back pay, less the amount of any unemployment insurance benefits he or she may have received in connection with such dismissal.

** Although not discussed in the decision, this is apparently a reference to the Doctrine of Legislative Equivalency. In Torre v County of Nassau, 86 NY2d 421, the Court of Appeals explained that the doctrine holds that “a position created by a legislative act must be abolished by a correlative legislative act.”

*** The court also noted that “Where the number of members of a particular party employed in the unit is too small to make statistical evidence reliable, plaintiff may prove his or her case without statistics.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2009/2009_31178.pdf

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein