Friday, June 24, 2011

Disability as a defense in disciplinary actions


Disability as a defense in disciplinary actions
Matter of Schlitz v Cavanagh, 2007 NY Slip Op 50026(U), Supreme Court, Suffolk County

The significant issue in the Schlitz case concerned the interplay of two different provisions of the Civil Service Law:

1. Serving disciplinary charges against an individual pursuant to Section 75; and

2. Placing an employee on leave pursuant to Section 72, which is triggered in cases of an employee’s inability to perform the duties of the position because of non-work related disease or disability.

In Penebre v Dzaluk, 51 AD2d 574, the Appellate Division ruled that §75 charges for misconduct should not have been served on a police officer but that the employer should have proceeded under §72, Ordinary Disability Leave instead. Penebre, said the court, “had performed successfully as a police officer for 13 years before his behavior markedly changed.” He became depressed and inattentive.

Under these circumstances, the Appellate Division said that serving Penebre with §75 charges for misconduct was misplaced. The court indicated the rather than initiate disciplinary action, the appointing authority should have utilized Section 72 which provides for the placement of an employee on a leave because of a disability, other than a disability resulting from an occupational injury or disease, in the event it is determined that he or she is unable to satisfactorily perform the duties of the position because of that disability.

Schlitz was served with disciplinary charges pursuant to Section 75. Before the conclusion of the disciplinary hearing, however, Schlitz was placed on Section 72 leave.

A physician was employed by the Town and asked to determine whether or not Schlitz was suffering from a mental health issue that affected his ability to perform his duties satisfactorily. The physician’s opinion, “given within a reasonable degree of medical certainty,” was that "any past misbehavior on the part of Mr. Schlitz would not have been because of a psychiatric condition."

Ultimately, Schlitz was found guilty of various instances of misconduct and the penalty imposed was demotion.

Schlitz appealed but withdrew his claim regarding the Section 75 determination by conceding that there was substantial evidence to justify the findings of misconduct and the penalty imposed. Instead, Schlitz contended that the Town knew that he was suffering from depression and that the filing disciplinary charges against him under these circumstances amounted to unlawful workplace discrimination against a person with a disability.

In addition, Schlitz argued that his employer was required to present the evidence of his depression at the §75 hearing as a defense, or in mitigation of the misconduct charge, on his behalf.

Justice Mayer ruled that Town was within its rights to conduct the §72 proceeding and suspend the §75 hearing pending the results of Schlitz’s medical evaluation. Further, said the court, once the Town had evidence that the misconduct alleged in the §75 charges and specifications were not due to mental disability, it had the right to move forward under §75.

As to Schlitz’s claim that he was the victim of “unlawful workplace discrimination against a person with a disability,” the court said that the medical evidence in this case was that Schlitz’s acts of misbehavior were not caused by a psychiatric condition. Justice Mayer ruled that “there is no admissible proof that the petitioner is, or ever was, mentally disabled, and the claim of workplace discrimination perpetrated by the Town by bringing the charges of misconduct against an allegedly disabled person is, therefore, without merit.”

In contrast to discipline/termination procedures, the basic concept underlying the use of Section 72 in disability related situations is the separation/rehabilitation/reinstatement of the employee.

Section 72.1 sets out the procedures to be followed by the appointing authority before an employee may be placed on leave for ordinary disability involuntarily.

Section 72.3 describes the appeal procedures, including recourse to the courts pursuant to Article 78 of the Civil Practice Law and Rules, available to an individual involuntarily placed on disability leave following a Section 72.1 hearing.

Section 72.5 provides an exception to the basic requirement that a Section 72.1 hearing must be concluded before the employee may be placed on Section 72 disability leave involuntarily based on the appointing officer determination that there is a "potential danger" if the employee is permitted to continue on the job.

If the employee is absent of Section 72 leave for more than twelve consecutive months, the appointing officer may, but is not required, to terminate the individual in accordance with the provisions set out in Section 73 of the Civil Service Law.

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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