Friday, February 24, 2012

Hearing officer recommends that employee found guilty of excessive absence be terminated from her position

Hearing officer recommends that employee found guilty of excessive absence be terminated from her position
NYC Department of Corrections v E.G., OATH Index #214/11

The Department of Correction sought to terminate a correction officer, E.G., pursuant to §73 of the Civil Service Law after she had been absent from work for more than a year due to a non-work related disability.*

In the alternative, the Department simultaneously filed disciplinary charges against E,G. pursuant to §75 of the Civil Service Law alleging that she medically incompetent to perform the duties of her position as she had ben absent on sick leave for 313 days during an 18-month period.

E.G., on the other hand, asserted that she was fit to return to work.

After weighing the testimony of three experts and the Department of Correction, OATH Administrative Law Judge Ingrid A. Addison found E.G. unfit to return to work due to her “non-job related disability.”

The ALJ also found that E.G.’s absence from work involved an excessive use of sick leave and that such conduct provided an independent basis for disciplinary action pursuant to Civil Service Law §75. 

Judge Addison ruled that E.G. was “medically incompetent to perform the duties of her position and recommended that the Appointing Authority terminate E.G.’s employment pursuant to Civil Service §75.

The ALJ also found that as E.G. “is not rehabilitated," such dismissal from her position "is not violative of her human rights protections," citing McEniry v. Landi, 84 NY2d 554.

* §73 permits the appointing authority, as a matter of discretion, to terminate an employee who has been continuously absent for one year or longer, regardless of whether such absence was self-imposed by the employee or flowing from the employee's having been involuntarily placed on a leave of absence by the appointing authority pursuant to §72 of the Civil Service Law [see §72.4]. In contrast to termination pursuant to §75, termination pursuant to §73 is not pejorative and the individual may apply for reinstatement to his or her former position "within one year after the termination of such disability."

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-2141.pdf

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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