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N.B. §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL applies this protocol to individuals referred to in a decision self-identifying as LGBTQA+.

January 12, 2011

Disciplinary action follows failure to report for medical exam

Disciplinary action follows failure to report for medical exam
Santiago v Koehler, 546 NYS2d 625

An appointment was schedule for an employee to be evaluated by the employer's Health Management Division. This apparently was one of a series of such appointments. Earlier appointments that had been scheduled for the employee but he failed to appear for the examination. When the Santiago failed to appear for this, the most recent scheduled appointment, he was served with disciplinary charges alleging misconduct based on his failure to report for the medical examination as scheduled.

Found guilty, Santiago was told that he had a choice as to the penalty to be imposed. He could elect either a five-day suspension without pay or, in the alternative, agree to pay a fine of 300 dollars. Santiago elected the five-day suspension without pay rather than the $300 fine. He then sued to vacate the disciplinary action, asking the court to rescind the penalty he had elected.

The Appellate Division, 1st Department, decided that the disciplinary determination was supported by substantial evidence. This evidence apparently included admissions by Santiago concerning the event. It then said that “the penalty of five days suspension, chosen by [Santiago] from the options adopted by the Commissioner, is not excessive in relation to the repeated infractions here involved.”

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