Chronic absenteeism

Chronic absenteeism

Sirota v NYC Bd. of Ed., 283 AD2d 369

The Sirota case points out that a serious, chronic health condition may not necessarily constitute a disability within the meaning of the Americans With Disabilities Act and other civil rights enactments.

New York City special education teacher Rochelle M. Sirota suffered from cancer. She sued the NYC Board of Education contending that it had unlawfully discriminated against her because of disability and, in addition, unlawfully retaliated against her following her requests for a “reasonable accommodation” because of her disability.

The Appellate Division dismissed her appeal. The court said that Sirota's “cancer and attendant surgeries do not constitute a disability within the meaning of the relevant discrimination statutes (2 USC 12112; New York's Executive Law Section 292[26]; and the Administrative Code of City of New York, Section 8-107[15]) as they did not substantially limit her in any major life activity.”

In support of this determination, the court pointed to statements in letters prepared by Sirota's personal physician “affirming her ability to work on a regular, full-time basis.”

Further, said the court, assuming Sirota does have a disability, her chronic absenteeism, tardiness and unsatisfactory performance evaluations establish that she was unable to perform the essential functions of her job as a special education teacher and thus was not otherwise qualified for the position as required by the discrimination statutes.

As to Sirota's claims of retaliation, the Appellate Division ruled that the refusal to accommodate her requests for a schedule modification or transfer and her being given negative performance evaluations do not show an adverse employment action as required by the discrimination statutes, but only a permissible refusal to change the terms and conditions of her employment.

Another element involving Sirota's claims of unlawful discrimination were based her theory that the school district's conduct constituted a “continuing violation.” In addressing this aspect of her petition, the court noted Sirota claimed that she was the victim of “alleged discriminatory conduct preceding her second, 15-month medical leave of absence.”

Under the circumstances, said the court, the continuing violations exception that might otherwise be applicable is unavailable to her “since the leave of absence, which was voluntary and therefore cannot be considered an act of discrimination, interrupted the alleged pattern of discrimination.”

Determining the effective date of tenure in a position

Determining the effective date of tenure in a position

Remus v Tonawanda City School District, 96 NY2d 271

The Remus decision by the New York State Court of Appeals sets out the high court's view with respect to the effective date of a teacher's employment rights flowing from holding a tenured appointment.

The ruling, which affects the effective date of tenure status provided to individuals employed in unclassified service positions, has significant implications with respect to an appointing authority's ability to rescind an appointment to a position in the classified service prior to the employee’s effective of permanent appointment date as well.*

The underlying issue in the Remus case: “May the appointing authority rescind its resolution granting a probationary teacher tenure if it rescinds its resolution prior to the date on which the teacher's tenure would have otherwise taken effect?”

On June 4, 1998, in accordance with the recommendation of the school superintendent, the Tonawanda school board adopted a resolution appointing probationary teacher Jill Remus “to a tenured position effective September 2, 1998.”

On August 31, 1998, the School Board adopted a resolution rescinding its resolution granting Remus a “conditional tenure appointment” and terminated her employment as a probationary teacher. This action by the board followed Remus' declining an offer to extend her probationary period for an additional year that was made to her earlier the same day. Remus appealed the Board's action, claiming she was a tenured teacher and could not be summarily dismissed.

As the Court of Appeals framed the issue: Does a Board of Education resolution that grants tenure to a teacher effective on a specified future date pursuant to the provisions of Education Law Section 2509[1] immediately entitle that teacher to the benefits of tenure?

The Court of Appeal's conclusion: A teacher granted tenure effective on a [specified] future date is not entitled to the benefits of tenure until the effective date specified in the resolution.

The Court explained that the Education Law draws a distinction between probationary teachers and tenured teachers. Probationary teachers can be terminated at any time during the probationary period, for any reason and without a hearing in contrast to tenured teachers who hold their positions during good behavior and competent service, and are subject to dismissal only after formal disciplinary proceedings.**

The basic argument advanced by Remus was that once she was granted tenure by action of the board pursuant to Section 2509 of the Education Law, her employment could not be terminated except for cause after notice and hearing. In Remus’ view, a teacher’s tenure status accrued upon school board’s adoption of the resolution granting an individual tenure effective on a specified date could not be rescinded by a subsequent resolution adopted by the board prior to that effective date.

Responding to a position adopted by the Appellate Division regarding action that the employee is required to take to confirm his or her “tenure status,” the Court of Appeals commented that the Education Law does not require a formal offer and acceptance of a tenure appointment and, “given the express grant of power to make tenure appointments before the end of the probationary period, no reason exists to inject such a requirement into the statute.”

Noting that this specific issue -- rescinding an appointment prior to its effective date -- was not addressed in Weinbrown v Board of Education, 28 NY2d 474, a case cited by Tonawanda in support of its argument, the Court of Appeals held that:

A Board resolution granting a probationary teacher tenure effective on a future date (one set either to coincide with the end of or to occur before the end of that teacher's probationary period) confers tenure upon the teacher only as of that specified future date.

The decision suggests that any permanent appointment, or contingent permanent appointment, that is subject to a probationary period, or an appointment based on reinstatement from a preferred list, whether in the classified service or the unclassified service, may be rescinded prior to its effective date by the appointing authority, provided such action (1) is not otherwise prohibited by law and (2) would not otherwise constitute unlawful discrimination.

It may be significant that the decision refers to the appointing authority's granting tenure effective on a specified future date insofar as trigging the individual's tenure rights are concerned. If, on the other hand, no “future date” is specified, it could be argued that the individual attains his or her tenure rights immediately upon the act granting such status by the appointing authority.***

* With the exception of appointment from a preferred list, a permanent appointment to a position in the classified service is typically subject to the satisfactory completion of a probationary period. Accordingly, while the individual enjoys “permanent status” for certain purposes such the right to notice and hearing if the appointee is to be removed prior to the competition of his or her minimum probationary period or termination in the event of a layoff due to the abolishment of a position, such an individual does not attain “tenure” in the title until he or she has completed the maximum period of probation required by the appointing authority. However, the appointing authority may grant an individual tenure status at any time after the appointee has completed the minimum period of probation required by law or by the rules or regulations of the responsible civil service commission.

** Typically probationers in the classified service may be summarily dismissed from the position only after completing the minimum period of their probationary period and prior to the end of their probationary period. If the appointing authority wishes to remove a probationer before the end of the appointee’s minimum period of probation, it must provide the individual with “notice and hearing” in accordance with the provisions of §75 of the Civil Service Law or in accordance with the controlling provisions of a collective bargaining agreement. However, there is no bar to granting a probationary employee tenure status at any time during his or her probationary period once he or she has completed the required minimum period of probation.

*** The effective date of appointment insofar as rescinding an appointment would not be particularly relevant in the case of a provisional or a temporary appointment as provisional and temporary employees may be dismissed at any time and without a pre-termination hearing unless a collective bargaining agreement otherwise provides.

Work-related stress

Work-related stress

Maine v Commissioner of Labor, 282 AD2d 854

The Unemployment Insurance Appeals Board ruled that Vivian W. Maine was disqualified from receiving unemployment insurance benefits because he voluntarily left his employment without good cause.

Maine argued that he was eligible for unemployment insurance benefits because he resigned from his clerk position with the State Insurance Fund as a result of work-related stress caused by an increased workload due to a reduction in staff.

Pointing out that Maine neither informed his supervisor of the problems he claimed that he was experiencing nor that he had received medical advice to leave his job, the Appellate Division sustained the Appeal Board's determination.

The court said that substantial evidence supports the Board's decision that Maine voluntarily left his employment with the State Insurance Fund without good cause.

Citing Matter of Costello, 268 AD2d 845, the court noted that “dissatisfaction with one's employment, including assertions of being overworked, does not constitute good cause for leaving employment.”

Disciplinary hearing opened to the public

Disciplinary hearing opened to the public

Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/

Reproduced with permission. Copyright © 2011, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Matter of Doe v. City of Schenectady 84 AD3d 1455, (3d Dep't May 5, 2011), is an interesting case. The court holds that police disciplinary hearings can be open to the public. As the court explained:

In any event, petitioners' contention that Civil Rights Law § 50-a mandates that disciplinary hearings be closed to the public is belied by both the language of the statute and its legislative history. Section 50-a (1) provides, in pertinent part:

All personnel records, used to evaluate performance toward continued employment or promotion, under the control of any police agency or department of the state or any political subdivision thereof including authorities or agencies maintaining police forces of individuals defined as police officers in [CPL 1.20] shall be considered confidential and not subject to inspection or review without the express written consent of such police officer . . . except as may be mandated by lawful court order.

Section 50-a created, for reasons that will be discussed below, an exemption from document disclosure that might otherwise occur under the Freedom of Information Law (see Public Officers Law art 6; Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 567 [1986]). Nothing in section 50-a mentions the word disciplinary hearing, let alone requires that such hearings be held in private, and we discern no import from this omission other than the obvious — that the failure of the Legislature to include it within the statute is an indication that its exclusion was intended (see Pajak v Pajak, 56 NY2d 394, 397 [1982]; Matter of Collins v Dukes Plumbing & Sewer Serv., Inc., 75 AD3d 697, 699-700 [2010], lv granted 15 NY3d 713 [2010]; see also McKinney's Cons Laws of NY, Book 1, Statutes § 74 ["[T]he failure of the Legislature to include [a] matter within the scope of an act may be construed as an indication that its exclusion was intended."], § 94 ["The legislative intent is to be ascertained from the words and language used, and the statutory language is generally construed according to its natural and most obvious sense, without resorting to an artificial or forced construction."]; Bright Homes v Wright, 8 NY2d 157, 162 [1960] ["Courts are not supposed to legislate under the guise of interpretation, and in the long run it is better to adhere closely to this principle and leave it to the Legislature to correct evils if any exist."]; People v Olah, 300 NY 96, 102 [1949] ["A statute must be construed and applied as it is written by the Legislature, not as some judges may believe it should have been written." (citation omitted)];Matter of Kittredge v Planning Bd. of Town of Liberty, 57 AD3d 1336, 1339 [2008] ["In construing a statute, a court must attempt to harmonize all its provisions and to give meaning to all its parts, considered as a whole, in accord with legislative intent. Such intent and meaning is best determined from the plain language of the statutory text." (citations omitted)]).

The legislative history of Civil Rights Law § 50-a is similarly unavailing to petitioners' position. The "statute was intended to apply to situations where a party to an underlying criminal or civil action is seeking documents in a police officer's personnel file, and was apparently designed to prevent 'fishing expeditions' to find material to use in cross-examination" (Matter of[*4]Capital Newspapers Div. of Hearst Corp. v Burns, 109 AD2d 92, 95 [1985], affd 67 NY2d 562 [1986] [citation omitted]; see Matter of Daily Gazette Co. v City of Schenectady, 93 NY2d 145, 154 [1999]; Matter of Dunnigan v Waverly Police Dept., 279 AD2d 833, 834 [2001], lv denied 96 NY2d 710 [2001]; Carpenter v City of Plattsburgh, 105 AD2d at 298; Senate and Assembly Introducer Mem in Support, Bill Jacket, L 1976, ch 413; Mem of Div of Criminal Justice Servs, Bill Jacket, L 1976, ch 413). The Court of Appeals has confirmed that "the legislative intent underlying the enactment of Civil Rights Law § 50-a was narrowly specific, to prevent time-consuming and perhaps vexatious investigation into irrelevant collateral matters in the context of a civil or criminal action" (Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d at 569 [internal quotations marks and citation omitted]). Significantly, none of the legislative history mentions the topic of disciplinary hearings.

Mitchell H. Rubinstein

NYPPL Comment: The Commissioner’s Regulations [see 8 NYCRR 82-1.9] provide that unless the employee notifies the Education Law Section 3020-a hearing officer at least twenty-four hours before the first day of the hearing that he or she demands a public hearing, the hearing shall be private. This provision appears to be inconsistent with present case law as well as placing a burden on the employee that does not appear to be mandated by law.

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.