December 10, 2012

An individual terminated pursuant to Civil Service Law §71 must be reinstated consistent with §71 once the individual has been found qualified to return to work by a medical officer selected by personnel department or civil service commission having jurisdiction

An individual terminated pursuant to Civil Service Law §71 must be reinstated consistent with §71 once the individual has been found qualified to return to work by a medical officer selected by personnel department or civil service commission having jurisdiction
Lazzari v Town of Eastchester, 2012 NY Slip Op 08052, Court of Appeals

A Town of Eastchester employee, Richard Lazzari, injured his neck, back, and both arms while performing his job duties. Eventually the Town placed Mr. Lazzari on workers’ compensation leave pursuant Civil Service Law §71 and ultimately the Town notified him that his employment with the Town wasterminated. Mr. Lazzari was also told that he had certain rights regarding reinstatement to his former position and the Town provided him with a copy of Civil Service Law §71.*

Subsequently Mr. Lazzari requested and obtained a review of his medical condition by the Westchester County Department of Human Resources [DHR]. DHR designated a physician to examine Mr. Lazzari and the physician determined that Mr. Lazzari was medically able to perform the duties of his position. Accordingly, DHR advised the Town that as "[t]he examining physician has concluded in his written report provided to this department that Mr. Lazzari is able to perform [his job] duties," Mr. Lazzari should be immediately restored to his position.

The Town Supervisor, however, requested that DHR send the Town a copy of the medical report, contending that "[i]n light of the apparently conflicting medical opinions, we are concerned about Mr. Lazzari's safety and that the interests of the Town and its residents will be imperiled if [he] cannot effectively perform the essential functions of his position."

In response, DHR advised the Town that it would not provide a copy of the requested report and again advised the Town that should immediately reinstate Mr. Lazzari to his former position.**

The Town neither reinstated Mr. Lazzari nor filed a Freedom of Information Law (FOIL) for the document. Further, the Town did not commence an Article 78 proceeding against the County to procure the medical documentation. Neither did the Town challenge the County's determination under Civil Service Law §71. As a result, Mr. Lazzari was required to take the initiative and filed an Article 78 petition seeking a court order compelling the Town to reinstate him.

Supreme Court granted Mr. Lazzari's petition and ordered the Town to reinstate him, reasoning that "i]gnoring the mandate of Civil Service Law §71 is not the appropriate mechanism for questioning [Mr. Lazzari's] condition or challenging the determination of [DHR]." The Town appealed and the Appellate Division reversed the lower court’s ruling on the procedural ground that DHR had not be named as a necessary party in the action and remitted the matter for further consideration with DHR's participation (see 62 AD3d 1002).

The Supreme Court, after revisiting the matter, concluded that Civil Service Law §71 does not provide for a challenge to the determination of the medical officer selected by the civil service commission or department and held the only available remedy was for the Town to institute its own Article 78 proceeding against DHR,. Supreme Court then noted that the Town failed to do so within the statutorily mandated time frame of four months.

Supreme Court then granted Mr. Lazzari’s petition and ordered the Town to reinstate him to his former position, and, in addition, ordered the Town to compensate him with back pay in accordance with Civil Service Law §77, retroactive to the date of DHR's initial letter directing Mr. Lazzari's reinstatement.

Still refusing to reinstate Mr. Lazzari, the Town appealed. The Appellate Division sustained the Supreme Court’s ruling, holding that Civil Service Law §71 did not require DHR to provide the Town with a medical certification or provide it with the underlying medical report (see 87 AD3d 534). In addition, the Appellate Division agreed that Mr. Lazzari was entitled to back pay as directed by Supreme Court.

The Court of Appeals affirmed the Appellate Division’s decision, explaining than when a municipal civil service commission or county personnel officer directs a municipal employer to reinstate an employee pursuant to a medical officer's determination of fitness pursuant to Civil Service Law §71, the municipal employer must immediately reinstate the employee and should it wish to challenge that determination, such a challenge must "take the form of an Article 78 petition."

As the coda to its decision, the Court of Appeals, Justice Pigott dissenting, said:

“After five years of litigation, the County's refusal to give the Town a copy of the medical report, and the Town's refusal to ask for it under FOIL, remain unexplained. The County does not suggest that it would have any ground for rejecting a FOIL request. It seems that a bit more common sense and less stubbornness on either side could have avoided years of trouble and expense. Since the parties have chosen to litigate, however, we must resolve the dispute, and we do so in the County's favor.

“On the issue of back pay, Civil Service Law §77 provides that an "employee who is removed . . . and who thereafter is restored to such position by order of the supreme court, shall be entitled to . . . the salary or compensation which he would have been entitled by law to have received in such position but for such unlawful removal...." The Town argues that because Mr. Lazzari was lawfully terminated and not unlawfully removed, and does not even challenge his initial termination, Civil Service Law § 77 does not apply. However, within the context of the statute there is no meaningful distinction between an unlawful removal and an unlawful refusal to reinstate, so Mr. Lazzari is entitled to back pay retroactive to the time the County directed the Town to reinstate him on December 18, 2007”

* Civil Service Law §71 provides that an employee terminated for a job-related incident can apply for reinstatement within one year of the abatement of his or her disability. The employee is to apply to the civil service department or municipal commission having jurisdiction "for a medical examination to be conducted by a medical officer selected for that purpose by such department or commission." §71 further provides that “[t]he employee ‘shall be reinstated’ if such medical officer shall certify that such person 'is physically and mentally fit to perform the duties"' of the job,"

** §71, in pertinent part, provides that “If no appropriate vacancy shall exist to which reinstatement may be made, or if the work load does not warrant the filling of such vacancy, the name of such person shall be placed upon a preferred list for his or her former position, and he or she shall be eligible for reinstatement from such preferred list for a period of four years” In the event that the individual is reinstated to a position in a grade lower than that of his or her former position, his or her name is to be placed on the preferred eligible list for his or her former position or any similar position.
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