In the Matter of the Application of Lionel Allen, Petitioner,
The City of New York and the New York City Department of Environmental Protection, Respondents.
ATTORNEY FOR THE PLAINTIFF :
Firm: MARY J. O'CONNELL [General Counsel, DC-37]
ATTORNEY FOR THE RESPONDENTS
Alexander W. Hunter Jr., J.
On February 3, 2010, petitioner slipped and fell while working to deice the grounds outside the Kensico Reservoir laboratory, which resulted in injuries to his right shoulder and knees. Petitioner promptly informed his supervisor at the DEP of the accident and submitted a workers' compensation claim. Petitioner consulted his primary care physician within several days of the accident and then in March 2010 he went to see Dr. Adam Soyer ("Dr. Soyer"), an orthopedic surgeon. Although petitioner initially returned to work, he took off numerous days between March 2010 and August 2010 due to a delay in the processing of his workers' compensation authorizations for diagnostic tests and treatment. Petitioner communicated to his supervisors that the cause of his increased use of leave time was attributed to his occupational injuries. Petitioner ultimately received authorizations for an MRI and a shoulder surgery with postoperative physical therapy in September 2010 and October 2010, respectively. A second shoulder surgery was later authorized and performed on or about August 3, 2012.
By letter dated December 5, 2011, the DEP gave petitioner a notice of intended action under Civil Service Law §73. Civil Service Law §73 provides that an employee may be terminated when he is continuously absent from his position for one year or more due to a disability, "other than a disability resulting from occupational injury or disease as defined in the workmen's compensation law...."* Petitioner did not respond to this letter.
By letter dated January 6, 2012, the DEP gave petitioner a notice of termination pursuant to Civil Service Law §73, which stated that petitioner's employment with the DEP was thereby terminated because of his absence from work since November 8, 2010 due to a non-work related disability.
In January 2012, petitioner's attorney contacted the DEP to demand that it rescind petitioner's termination pursuant to Civil Service Law §73 because petitioner's absences from work were caused by an occupational injury. Petitioner would have been more properly terminated under Civil Service Law §71, which provides for reinstatement after an employee has been separated from service due to a disability caused by an occupational injury as defined in the workmen's compensation law and further entitles the employee to a leave of absence for at least one year.
In an email sent from the DEP's counsel to petitioner's counsel dated January 18, 2012, the DEP explained that it had proceeded with a non-disciplinary termination under Civil Service Law §73 in order to give petitioner the ability to be reinstated to his position after presenting medical documentation showing his fitness to return to work, which would not have been an option if petitioner was terminated under Civil Service Law §75 based on abandonment of his job. In addition, petitioner retained the same rights to reinstatement under Civil Service Law §71 and Civil Service Law §73.
After a lengthy appeal, the Workers' Compensation Board issued a notice of decision on April 12, 2012, directing petitioner's employer or insurance carrier to pay workers' compensation benefits for various past periods from December 2010 and to continue payments.
A non-probationary public employee possesses a constitutional property interest in his employment. See, Cleveland Bd. of Educ. v. Loudermill, 470 US 532 (1985); Faillace v. Port Auth. of NY & N.J., 130 AD2d 34 (1st Dept 1987). "In the context of termination from civil service employment under Civil Service Law §73, due process requires notice and some opportunity to respond.'" Matter of Hurwitz v. Perales, 81 NY2d 182, 185 (1993), citing Matter of Prue v. Hunt, 78 NY2d 364, 369 (1991). The due process requirements under Civil Service Law §71 should be at least as strict as those provided under Civil Service Law §73 as the former "affords greater procedural protections and opportunities for reinstatement." Matter of Allen v. Howe, 84 NY2d 665, 673 (1994).
This court finds that due process requires notice and some opportunity to respond before an employee is terminated from civil service employment under Civil Service Law §71.
The parties remaining contentions are without merit.
Accordingly, it is hereby,
ADJUDGED that the application by petitioner for an order, pursuant to Article 78 of the CPLR, declaring that respondents improperly terminated petitioner pursuant to Civil Service Law §73 and failed to satisfy due process requirements for termination pursuant to Civil Service Law §71, is granted with costs and disbursements to petitioner; and it is further
ADJUDGED and DECLARED that respondents' termination of petitioner was in violation of its duties under New York City Rules and Regulations, New York State Civil Service Law, and the New York State and United States Constitutions; and it is further
ADJUDGED that the final determination of respondent DEP, dated January 6, 2012, terminating petitioner as a Watershed Maintainer, is vacated and annulled and petitioner is reinstated to said position with any and all benefits to which he was lawfully entitled from January 6, 2012, the date of termination.
Dated: May 2, 2013