A probationary teacher may be terminated from his or her position absent a showing that his or her dismissal was made in bad faith, in violation of law, or for a constitutionally impermissible purpose.

A probationary teacher may be terminated from his or her position absent a showing that his or her dismissal was made in bad faith, in violation of law, or for a constitutionally impermissible purpose

2015 NY Slip Op 03479, Appellate Division, First Department 

Supreme Court denied a probationary employee’s [Probationer] petition seeking to have the court annul the appointing authority’s decision to terminate Probationer’s services during her probationary period. The Appellate Division dismissed Probationer’s appeal of the Supreme Court’s ruling.

One of the arguments advanced by Probationer was that she had attained “tenure by estoppel” and thus was entitled to notice and hearing as a condition precedent to her dismissal from her position.

The Appellate Division held that Petitioner was not entitled to tenure by estoppel, explaining that Probationer, while serving an extension of her probationary appointment pursuant to an agreement providing for such an extension, had resigned from that position. The appointing authority subsequently reemployed Probationer as a teacher at a different school subject to a new three-year term of probation. This second probationary period was also extended pursuant to the terms of another agreement. The appointing authority then terminated Probationer’s employment before the expiration of this second extended term of probation.

Accordingly, said the court, Petitioner never taught beyond the expiration of the probationary terms of her employment with the school district, citing Juul v Board of Educ. of Hempstead School Dist. No. 1, Hempstead, 76 AD2d 837, aff’d 55 NY2d 648. The Appellate Division commented that Juul, a teacher, had agreed to forgo any claim to tenure in exchange for the extension of his probationary employment with the school district.

In contrast, the Appellate Division noted the decision in Matter of Gould v Board of Educ. of Sewanhaka Cent. High School Dist., 81 NY2d 446. In Gould the teacher was found to have attained tenure by estoppel “where she obtained tenure in her first position and taught beyond the two-year period of her probation in her second position.”

Finding that the appointing authority had not breached the second agreement extending Petitioner's probation at the second school, the court held that in the absence of a showing of bad faith, a violation of law, or a constitutionally impermissible purpose on the part of the appointing authority, Probationer could terminated from her probationary employment “for any reason or no reason at all.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03479.htm

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Employer has the burden of proving an individual cannot perform the essential functions of the position regardless of any reasonable accommodation provided

Employer has the burden of proving an individual cannot perform the essential functions of the position regardless of any reasonable accommodation provided

2015 NY Slip Op 03465, Appellate Division, First Department

Supreme Court granted the New York City’s Department of Sanitation’s [DOS] motion to dismiss the Article 78 petition filed by an applicant [Applicant] for employment with DOS alleging “disability-based” unlawful discrimination “for failure to state a cause of action.”

Applicant appealed and the Appellate Division unanimously reversed the lower court’s ruling.

Applicant claimed that DOS refused to hire him, notwithstanding he otherwise proved qualified for employment as a sanitation worker based solely on his having a psoriasis condition on his hands. This said the court “makes out causes of action for disability-based discrimination under the New York State and New York City Human Rights Laws.”

The State Human Rights Law required Applicant to plead that he could perform the essential functions of the job if he were afforded reasonable accommodation. Here, said the Appellate Division, Applicant’s complaint alleged that gloves would have constituted a sufficient accommodation to enable him to perform the work satisfied this requirement.

The court then explained that whether DOS was justified in considering Applicant’s psoriasis disqualified him for the position “on the grounds that the condition would have prevented him from performing the essential functions of the position" and “no accommodation (including gloves) would have obviated the interference” cannot be determined from the face of the complaint and the documentary exhibits annexed to it.

Although DOS had submitted evidence in support of its motion tending to show that Applicant's condition rendered him incapable of performing the job of a sanitation worker, its motion was not one seeking summary judgment and thus Supreme Court should have denied its motion to dismiss Applicant’s petition.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03465.htm

An employee, as an active participant in a work-related tragedy rather than as a bystander, is eligible for workers’ compensation benefits

An employee, as an active participant in a work-related tragedy rather than as a bystander, is eligible for workers’ compensation benefits

126 AD3d 1250

In this Workers’ Compensation case an employee [Claimant] alleged that she had  sustained a compensable work-related mental injuries after she responded to the suicide of a patient.

A Workers' Compensation Law Judge found Claimant had disabling depression, anxiety and posttraumatic stress disorder stemming from that incident. The Workers' Compensation Board affirmed, and the self-insured employer and its third-party administrator [Employer] controverted the Board’s decision and appealed.

The Appellate Division affirmed the Board’s ruling, explaining that psychological injuries caused by witnessing the aftermath of a suicide have been held to be compensable where "the claimant was an active participant in the tragedy," as opposed to a bystander, citing Wolfe v Sibley, Lindsay & Curr Co., 36 NY2d 505.

Here, said the court, a patient leapt from a window at the facility where Claimant worked.   Claimant was one of the first workers to reach the scene and, despite her lack of medical training, was directed by her supervisor to retrieve an oxygen tank for the patient.

In the words of the Appellate Divisions: “Claimant did so, but began to feel anxious and hyperventilate and ‘lost it’ altogether after she was ordered by facility officials not to speak to investigators about her prior interactions with the patient.”

This, said the court, constituted substantial evidence for the Board's finding that Claimant was indeed an active participant in the events surrounding the suicide and that the Board was free to, and did, “credit medical evidence indicating that [Claimant} developed disabling depression, anxiety and posttraumatic stress disorder as a result of the incident.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02533.htm