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Friday, July 01, 2011

Proceeding with disciplinary action in situations where disability may be a consideration

Proceeding with disciplinary action in situations where disability may be a consideration
Matter of Schlitz v Cavanagh, 14 Misc.3d 1213(A

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) 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.

Essentially Section 72 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 perform the duties of the position satisfactorily because of that 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.

Schlitz also was served with disciplinary charges pursuant to Section 75. Before the conclusion of the disciplinary hearing, however, Schlitz was placed on Section 72 -- non-occupational disability leave -- from his position.

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 and penalty 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 of disciplinary charges against him under these circumstances amounted to unlawful workplace discrimination against a person with a disability.

In addition, Schlitz argued that the Town was required to present the evidence of his depression in the §75 hearing as a defense or in mitigation of the misconduct charges.

Justice Mayer found 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 held 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.

Section 73 of the Civil Service Law addresses the termination of an individual who has been continuously absent from his or her position on Section 72 leave for more than one year.

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/

A Reasonable Penalty Under The Circumstances 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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