Termination for disability pursuant to §73 of the Civil Service Law.
Dep’t of Education v. L.C. (in PDF), OATH Index No. 1956/11
The New York City Department of Education sought dismissal of a clerical associate for “willful misconduct” pursuant to §75 of the Civil Service Law based upon her long-term absence without leave.
In the alternative, the Department sought to remove the employee from service pursuant to §73 of the Civil Service Law because she was absent for more than one year due to a non-work related disability.
The record established that the employee had been undergoing treatment for breast cancer.
Under the circumstances, OATH Administrative Law Judge Ingrid M. Addison found that the Department failed to prove that its employee’s absence was willful.
However, Judge Addison found that there was substantial cause to terminate the employee because her illness rendered her unfit to perform her obligations to her employer for more than one year.
N.B. In contrast to termination pursuant to Civil Service Law §75, termination pursuant to Civil Service Law §73 is not a “pejorative dismissal” and the individual may apply for reinstatement to his or her former position within one year of the abatement of his or her disability.