Friday, August 19, 2011

Chronic absenteeism


Chronic absenteeism
Sirota v NYC Bd. of Ed., 283 AD2d 369

The Sirota case points out that a serious, chronic health condition may not necessarily constitute a disability within the meaning of the Americans With Disabilities Act and other civil rights enactments.

New York City special education teacher Rochelle M. Sirota suffered from cancer. She sued the NYC Board of Education contending that it had unlawfully discriminated against her because of disability and, in addition, unlawfully retaliated against her following her requests for a “reasonable accommodation” because of her disability.

The Appellate Division dismissed her appeal. The court said that Sirota's “cancer and attendant surgeries do not constitute a disability within the meaning of the relevant discrimination statutes (2 USC 12112; New York's Executive Law Section 292[26]; and the Administrative Code of City of New York, Section 8-107[15]) as they did not substantially limit her in any major life activity.”

In support of this determination, the court pointed to statements in letters prepared by Sirota's personal physician “affirming her ability to work on a regular, full-time basis.”

Further, said the court, assuming Sirota does have a disability, her chronic absenteeism, tardiness and unsatisfactory performance evaluations establish that she was unable to perform the essential functions of her job as a special education teacher and thus was not otherwise qualified for the position as required by the discrimination statutes.

As to Sirota's claims of retaliation, the Appellate Division ruled that the refusal to accommodate her requests for a schedule modification or transfer and her being given negative performance evaluations do not show an adverse employment action as required by the discrimination statutes, but only a permissible refusal to change the terms and conditions of her employment.

Another element involving Sirota's claims of unlawful discrimination were based her theory that the school district's conduct constituted a “continuing violation.” In addressing this aspect of her petition, the court noted Sirota claimed that she was the victim of “alleged discriminatory conduct preceding her second, 15-month medical leave of absence.”

Under the circumstances, said the court, the continuing violations exception that might otherwise be applicable is unavailable to her “since the leave of absence, which was voluntary and therefore cannot be considered an act of discrimination, interrupted the alleged pattern of discrimination.”

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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