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Saturday, May 11, 2013

Decision of the Week - Applying the provisions of Civil Service Law §§71, 72 and 73


NYPPL's Decision of the Week for the Week ending May 11, 2013

Applying the provisions of Civil Service Law §§71, 72 and 73
Allen v City of New York, 2013 NY Slip Op 50717(U), Supreme Court, New York County [Not selected for publication in the Official Reports]

This decision could serve as a model explanation of the critical elements to be considered and addressed in applying the provisions of Civil Service Law §§71, 72 and 73. It is set out in its entirety below.

Supreme Court, New York County


In the Matter of the Application of Lionel Allen, Petitioner,

against

The City of New York and the New York City Department of Environmental Protection, Respondents.



102624/12

ATTORNEY FOR THE PLAINTIFF :
Firm: MARY J. O'CONNELL [General Counsel, DC-37]

ATTORNEY FOR THE RESPONDENTS
Firm: CORPORATION COUNSEL – City of New York

Alexander W. Hunter Jr., J.

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, and in the alternative, failed to satisfy due process requirements for termination pursuant to Civil Service Law §73, is granted.

As a preliminary matter, it must be noted that the Workmen's Compensation Law was enacted in 1914 as such, but the title was changed to the Workers' Compensation Law in 1978 to acknowledge the significant presence of women in the work force.

Petitioner was employed by the New York City Department of Environmental Protection ("DEP") from on or about May 13, 1989 until his termination on January 6, 2012. Petitioner worked for the DEP in the Bureau of Water Supply with the title of Watershed Maintainer. Petitioner was originally terminated under Civil Service Law §73, which was addressed in the first motion sequence of the instant proceeding. However, after the commencement of the instant proceeding, the DEP rescinded its termination of petitioner pursuant to Civil Service Law §73 and terminated him pursuant to Civil Service Law §71 by letter dated December 14, 2012. The effective date of petitioner's termination remained January 6, 2012. Thereafter, motion sequence one was withdrawn and this court so ordered a stipulation allowing the instant amended petition to be filed in order to address petitioner's termination under Civil Service Law §71.

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 September 29, 2010, petitioner informed the DEP that he was unable to return to work due to his shoulder injury and requested workers' compensation leave as he had exhausted his sick and annual leave by that time. Petitioner attached a note from Dr. Soyer, dated September 22, 2010, recommending that petitioner remain out of work from September 27, 2010 through November 1, 2010. An undated addendum to the September 29 letter stated that petitioner's request for workers' compensation leave had been changed in accordance with a second note from Dr. Soyer, dated October 25, 2010, which recommended that petitioner remain out of work pending authorization of the shoulder surgery.

The DEP granted petitioner leave for various periods of times from September 30, 2010 through November 1, 2010. However, as a matter of policy, the DEP does not accept doctors' notes indicating an indefinite period of leave. The DEP subsequently marked petitioner "absent without leave" for every work week from November 29, 2010 through December 30, 2011. By letter dated April 18, 2011, the DEP informed petitioner that he was required to provide continued proof of disability on a monthly basis. In addition, the DEP informed petitioner that he was required to provide information regarding his medical condition and when he would be able to return to work by April 29, 2011, or the DEP would consider petitioner absent without leave and take appropriate action.

By letter dated July 27, 2011, the DEP preferred charges against petitioner in accordance with Civil Service Law §75 and scheduled an informal conference. Civil Service Law §75 provides for removal for incompetency or misconduct shown after a hearing. Petitioner did not appear at the informal conference. The DEP did not pursue this method of termination and the charges preferred against petitioner were never filed with the Office of Administrative Trials and Hearings.

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.
There is no dispute that petitioner was improperly terminated under Civil Service Law §73 because his absences were due to a disability resulting from an occupational injury as defined in the workmen's compensation law. The DEP was admittedly aware all along that petitioner's injuries were occupational. The DEP belatedly realized its error and retroactively terminated petitioner under Civil Service Law §71. The DEP should not be rewarded for confusing an employee by continually changing its basis for termination from one section to another. Regardless, petitioner was improperly terminated because the DEP did not provide petitioner with a notice of intended action under Civil Service Law §71. Petitioner had no opportunity to respond to the specific charges leveled against him, which led to his termination.

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

ENTER:
________________________
J.S.C.

* NYPPL Comment: Although the employee must be absent on leave pursuant to §72 continuously for period of one year or longer to trigger the appointing authority’s ability to elect to terminate the individual pursuant to §73, the appointing authority may, as an exercise of discretion, terminate an employee absent on §71 Worker’s Compensation Leave after he or she has been absent on such leave due to the same injury or disease for an “accumulative period” of one year or longer. However, neither §71 nor §72 requires the termination of the employee after he or she has been absent for the requisite minimum period of such a leave.

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/

A Reasonable Penalty Under The Circumstances 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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