Rubin v. Levine , 41 N.Y. 1024 ( 1977 )

Memorandum. The order of the Appellate Division should be affirmed.

For the reasons expressed in Matter of Sauer v Director of Creedmoor Psychiatric Center (41 NY2d 1023), we hold that respondent’s policy of "horizontal displacement” does not offend seniority rights guaranteed by subdivision 1 of section 80 of the Civil Service Law.

In this case, however, petitioner further contends that even though she refused an offered reassignment, she is nonetheless entitled to a "vertical displacement” pursuant to subdivision 6 of section 80 of the Civil Service Law. "Vertical displacement” grants a higher titled employee the privilege of displacing a next lower titled employee in direct line of promotion in the same layoff unit.

The Department of Civil Service has interpreted the statute to mean that "An employee who declines such offer of reassignment [under Civil Service Law, § 80, subd 1] is identified as one to be laid off and placed on a preferred list. He is not, however, entitled to any displacement rights [under Civil Service Law, § 80, subd 6]” (Memorandum of Department of Civil Service, dated Sept. 28, 1972). Under that interpretation, the choice of whether an horizontal or vertical displacement procedure is to be employed rests with the employer rather than the employee.

According to the agency, its construction is motivated by a desire both to avoid a constant shifting of positions with attendant loss of efficiency to the public and to lessen the possibility of the need for reduction in job titles of employees. It is not necessary for us to agree with its rationale for us to conclude that the agency’s implementation of the statutory scheme was not arbitrary or capricious (cf. Matter of Howard v Wyman, 28 NY2d 434, 438).

We also note that petitioner’s rights were not violated by the form of notice of layoff. Nor is class action relief appropriate (Matter of Rivera v Trimarco, 36 NY2d 747).

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed, without costs, in a memorandum.