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Thursday, October 07, 2010

Civil Service Law Section 72 leave

Civil Service Law Section 72 leave
Lara v City of New York, 1999 WL 459803.

It is not unusual for an employee placed on disability leave pursuant to Section 72 of the Civil Service Law to allege that his or her employer’s action in placing the individual on such leave constituted unlawful discrimination because of a disability. In the Lara case, national origin discrimination was claimed to have motivated placing the employee on “an involuntary medical leave” that eventually resulted in Lara’s being placed on Section 72 leave.

Pablo Lara, who was born in the Dominican Republic, was employed as a Program Officer by the New York City Department for the Aging (DFTA). His duties included monitoring contracts between DFTA and community-based organizations.

The New York Foundation for Senior Citizens, for instance, wrote a letter complaining that Lara “continuously” compared the Foundation administration to “‘militant dictatorships in many African countries.’” Throughout a meeting, it was alleged, Lara’s voice was raised and “he seemed agitated.” He repeatedly mimicked Foundation staff at the meeting.

The department decided to place Lara on an involuntary medical leave of absence effective March 21, 1997. Lara was also instructed to report to Dr. Azariah Eshkenazi for a psychiatric examination. According to the decision, Dr. Eshkenazi diagnosed Lara as having a “personality disorder, paranoid type” and “generalized anxiety.”

Lara was also examined by a psychiatrist of his own choosing, Dr. Pedro Rodriguez. Dr. Rodriguez said he found no evidence of “serious psychiatric conditions, including psychosis and personality disorder that could have prevented [Lara] from doing his work.”

Administrative Law Judge [ALJ] Ray Fleischhacker was designated to hold a Section 72 hearing. The ALJ decided to adjourn the hearing so that Lara could be examined by a third psychiatrist, Dr. Myron Gordon. Dr. Gordon diagnosed Lara as having “paranoid personality disorder.”

On December 3, 1997, the ALJ issued a “Report and Recommendation” in which he concluded that Lara was “mentally unfit to perform the duties of his position.” He recommended that Lara be placed on Section 72 leave.

The Department placed Lara on Section 72 leave effective December 15, 1997. While on such leave, Lara was re-evaluated by Dr. Eshkenazi, who determined that “Lara’s mental condition had not improved and that Lara remained unfit to return to work.” The department terminated Lara’s employment effective December 15, 1998. Section 73 of the Civil Service Law authorizes the termination of an individual who has been continuously absent on Section 72 leave for at least one year.

Meanwhile, Lara filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) on April 16, 1997, contending that the department’s decision to place him on involuntary medical leave constituted national origin discrimination. EEOC issued Lara a “right to sue letter” and Lara initiated litigation in federal district court.

A federal district court judge dismissed Lara’s petition, agreeing with the department that Lara had failed to perform his duties satisfactorily and, consequently, he failed to satisfy one of the critical elements required to establish a prima facie case of unlawful discrimination -- the individual’s ability to satisfactory perform the duties of the position.

Judge Cote said that the city had submitted “uncontroverted evidence” of Lara’s inappropriate behavior at staff meetings and that there was unrebutted evidence that “DFTA contractors complained repeatedly about Lara’s unprofessional behavior and requested that Lara be replaced by another program officer.” Accordingly, said the court, “Lara fails to raise an issue of fact that he was performing his job satisfactorily and [thus] fails to establish a prima facie case.”

The decision also notes an important procedural element. Lara had named the City, Shaffer, and DFTA as defendants. Judge Cote said that “[t]here is no individual liability under Title VII and the Title VII claims against Shaffer must be dismissed.” In addition, the court ruled that the Title VII claims against DFTA also had to be dismissed because under Chapter 17, Section 396 of the New York City Charter all actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the City of New York, and not that of any agency, except where otherwise provided by law.

Handbooks focusing on New York State and Municipal Public Personnel Law:

The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on

The Disability Benefits E-book: - This e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on:

A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on


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