Termination for disability pursuant to §73 of the Civil Service Law.

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.

Union's duty of fair representation

Union's duty of fair representation

Matter of Robert Hickey, 34 PERB 4530

Hempstead school teacher Robert Hickey alleged that the Hempstead School Administrators Association violated its duty of fair representation when if failed to press the school district to pay him at the same rate of compensation for extra-curricular activities as the district paid to its other administrators for similar work. Hickey said he was paid about $33 per hour for his work while the others were paid $65 per hour.

According to Hickey, although he was advised that “the District refused to budge during negotiations with respect to his compensation ... he was not sure how serious an attempt was made by the Association to increase his compensation to the level of other administrators.”

PERB's Administrative Law Judge Elena Cacavas said that “absent bad faith, the duty of fair representation does not preclude an employee organization from reaching agreements that are more favorable to some unit employees than to others.”

Finding that Hickey failed to show that the Association “acted irresponsibly, grossly negligently or with improper motive,” Cacavas dismissed his charge in its entirety.

Establishing a right to General Municipal Law Section 207-c benefits

Establishing a right to General Municipal Law Section 207-c benefits

White v County of Cortland, 283 AD2d 826, affirmed, 97 NY2d 336

In the White case the Appellate Division, Third Department, set out a basic principal it follows in determining if an individual is eligible for disability benefits under General Municipal Law Section 207-c as follows: Section 207-c is a remedial statute and thus is to be liberally construed in favor of the claimant.

The facts underlying this disability claim case are relatively straightforward.

Herbert I. White suffered a heart attack prior to his being hired as a full-time correction officer by Cortland County in 1989. He performed his duties without incident until June 18, 1995, when he suffered a work-related heart attack. He was disabled from performing his job duties until October 21, 1995. White returned to work but on June 13, 1996, he experienced chest pains and shortness of breath. His request for medical leave was approved. Unable to work, he has been continued on such leave through the present time.

The Section 207-a Hearing Officer determined that “although [White's] condition is work related, it is not causally related [to his employment] 'to a substantial degree'” Cortland adopted the hearing officer's findings and refused to pay White Section 207-c benefits with respect to his absence after June 13, 1996.

A State Supreme Court determined that Cortland decision was “an error of law” and annulled it insofar as it denied White's application for Section 207-c benefits since June 13, 1996.

The Appellate Division affirmed the lower courts ruling, holding that “Section 207-c is a remedial statute intended to benefit law enforcement personnel disabled by a work-related illness or injury and, as such, should be liberally construed in their favor.”

The court said that “[t]he language of the statute and precedent from this Court require only that the claimant prove disability and a causal relationship between the disability and the claimant's job duties.”