Evaluating claims for back pay upon reinstatement from a leave of absence

Evaluating claims for back pay upon reinstatement from a leave of absence
Matter of New York State Correctional Officer & Police Benevolent Assn., Inc. v New York State Dept. of Correctional Servs., 2009 NY Slip Op 07720, decided on October 29, 2009, Appellate Division, Third Department

Elsie Pierre, a correction officer, suffered a work-related injury and was placed on workers' compensation leave.

Subsequently the Department of Correctional Services notified Pierre that it intended to seek termination of her employment pursuant to Civil Service Law §71 as she had been absent from work for more than one year.*

Pierre responded that she was fit to return to work but the Department’s physician determined that Pierre was “unfit for duty.” Pierre appealed and ultimately a Hearing Officer ruled that Pierre was fit for duty and recommended that she be reinstated with pay retroactive to June 12, 2006.

Subsequently the Department rejected the Hearing Officer's recommendation that Pierre receive pay retroactive to June 12, 2006 on the basis that there was no independent evaluation of her fitness for duty at that time and directed that she receive pay retroactive to October 12, 2007, the date of the Hearing Officer's decision and recommendations.

Pierre sued, contending that “inasmuch as it was not controverted at the hearing that [she] was fit to return to work as of June 12, 2006, [the Department's] determination to not award her pay retroactive to that date is arbitrary and capricious."

The Appellate Division rejected Pierre’s theory, noting that she was not fit for duty at the expiration of her workers' compensation leave in September 2005, and this is the date as to which she originally requested reinstatement. Further, said the court, although the record may support a finding that she was fit to return to work on June 12, 2006, because she did not comply with the necessary procedures to effect her reinstatement as of that date, she has not yet exhausted her administrative remedies.

Considering the fact that Pierre had never requested reinstatement from June 12, 2006, the Appellate Division concluded that the Department’s decision not award her pay retroactive to that date was supported by substantial evidence in the record.

Finally, said the court, the appropriate date from which Pierre's retroactive pay should have been calculated is the date of the medical evaluation performed in connection with her request for reinstatement made after the Hearing Officer issued his recommendations.

However, as it is likely that such evaluation did not occur on October 12, 2007 — the same day that the Hearing Officer issued his recommendations — the Appellate Division concluded that Department’s determination to use that date was “evidently an exercise of discretion made in an attempt to fashion a compromise with Pierre.”**

Recognizing that remitting the matter to the Department for a determination of the exact date of the evaluation would likely result in a calculation of Pierre's back pay from later than October 12, 2007, thus undermining Department's apparent concession to her, under the particular circumstances presented here, the Appellate Division elected not to disturb the Department's determination to award Pierre pay retroactive to October 12, 2007.

* An individual who has been absent from work for a cumulative period of more than one year as the result of a work-connected injury or disease may be terminated from his or her position pursuant to Section 71 of the Civil Service Law. In contrast, an individual who has been absence for a consecutive period of more than one year due to a non-work related injury or disease may be terminated from his or her position pursuant to Section 73 of the Civil Service Law.

** The Appellate Division noted that the Department had said that "[I]n consideration of the time it has taken post-decision [by the hearing officer], [it] agrees to pay Ms. Pierre back pay for the period of October 12, 2007, the date of the decision, through February 5, 2008, her actual date of return."

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2009/2009_07720.htm