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Employee?s representative barred from the employee?s psychological examination

By Harvey Randall, Esq.

Employee?s representative barred from the employee?s psychological examination
Matter of Linda Gardner v Niskayuna Cent. School Dist., 2007 NY Slip Op 05816, Decided on July 5, 2007, Appellate Division, Third Department

Niskayuna Central School District employee Linda Gardner served as the confidential secretary to Celeste Keane, the District?s Administrator for Human Resources and K-Twelve Counseling. The title of Gardner?s position: Executive Secretary II.

On November 4, 2005, Gardner was taken from work to a hospital and diagnosed with labile hypertension. Three days later Gardner and her husband met with the Assistant Superintendent of Schools and contended that Gardner could not work under Keane?s supervision. When their request for a promise that Gardner would no longer have to work with Keane was rejected, Gardner?s husband removed her belongings from her workspace.

Upon receiving a note from Gardner?s personal physician, Benoit Tonneau, excusing her from work through January 3, 2006, and notes from the office of a psychiatrist, Kevin George, stating that Gardner should be excused from work through March 31, 2006, the District directed Gardner to undergo a medical examination pursuant to Education Law §913. The decision notes that the Union declined to pursue the employees? claims of wrongful transfer and age discrimination as part of grievance/arbitration it filed against the employer on behalf of these workers. The Circuit Court noted that this case illustrates why the Supreme Court may be reluctant to treat arbitration provisions in CBAs the same as arbitration provisions in individual contracts. If, as Pyett alleged, the Union refused to submit the wrongful transfer claims to arbitration because the Union had agreed to the new contract, the interests of the Union and the interests of Pyett are clearly in conflict.

Gardner was examined by psychologist Earl Teller and psychiatrist Adrian Morris in February and March 2006, respectively. Teller and Morris concluded that Gardner ?did not suffer from any significant or severe psychological problems and that it was her personality, not a psychological disorder, that caused her to absent herself from work.?

On March 17, 2006, Keane left her employment with the District, stating that Gardner?s actions played a significant role in her decision to leave. When Gardner learned that Keane was leaving, ?she became excited about the prospect of returning to work and decided to get a doctor?s note permitting her to return to work earlier than March 31, 2006.?

Gardner obtained a note from George permitting her to return to work on March 20, 2006. The District, however, did not permit her to return to her position. It, instead, suspended her without pay and issued disciplinary charges against her pursuant to Civil Service Law §75. The charges alleged that Gardner was guilty of misconduct and incompetence based upon ?her conduct in remaining absent without justification and refusing to work under her supervisor.?

In the course of the Section 75 hearing, the Hearing Officer denied Gardner?s motion to have the Education Law §913 reports issued by Teller and Morris excluded from consideration. Gardner contended that she was denied the right to be accompanied by a person of her choice during her examination by Teller. Ultimately the Hearing Officer sustained the charges of misconduct filed against her and recommended that the penalty of dismissal be imposed. The Board of Education of the Niskayuna Central School District accepted the Hearing Officer?s findings and recommendation. It then dismissed Gardner from her position with the District. Gardner appealed, challenging the School Board?s determination only to have the Appellate Division affirm the Board?s decision.

The court rejected Gardner?s claim that Teller?s report should not have been considered because her husband was excluded when she was examined by Teller, commenting that ?A ?[s]chool [d]istrict has an interest in seeing that its teachers are fit? and, thus, teachers may be ?required to submit to an examination to determine their physical and mental fitness to perform their duties? pursuant to Education Law § 913.?

Although Section 913 provides that a teacher required to submit to medical examination ?shall be entitled to be accompanied by a physician or other person of his or her choice,? the court said:

? assuming without deciding that [the District] violated [Gardner?s] Education Law §913 right here, [Gardner] makes no argument that Teller?s refusal to allow her husband to accompany her during the psychological examination interfered with her ability to prepare for the disciplinary hearing, formulate a defense or effectively cross-examine Teller, or otherwise ?operated to deprive [Gardner] of a fair hearing?

Although Gardner asserted that her Section 913 right to have a representative present is analogous to that provided in the Civil Service Law Section 75, the Appellate Division noted that ?unlike Civil Service Law §75 (2), Education Law §913 does not provide that exclusion is required if the right to be accompanied is violated.? Presumably the Commissioner provided for back pay for nine months in consideration of Civil Service Law Section 65.2 which provides that ?No provisional appointment shall continue for a period in excess of nine months.?

Further, said the court, Gardner ?points to nothing in the language of the statute or its history in support of her argument that a violation of the right to be accompanied, without more, requires the sanction of suppression or annulment of the Board?s determination.?

In contrast, said the court, the District presented evidence that the presence of Gardner?s husband ?would have compromised or invalidated the results of the evaluation, thereby frustrating [the District?s] statutory right to conduct a medical examination.?

The Appellate Division noted that Gardner?s assertion that the Section 913 right to have her representative present is ?absolute? is belied by ?her concession that it was proper to isolate her from her husband during the written portion of the test, to avoid compromising the integrity of the test results.?

In any event, the court concluded that ?even assuming that a violation of [Gardner?s] right to be accompanied occurred, under these circumstances and in light of the purposes of the statute, we agree with [the District?s argument] that suppression is not required here.?

Furthermore, said the court, the Board?s determination is supported by substantial evidence of Gardner?s ?unjustifiable absence beginning on January 3, 2006, when her personal physician permitted her to return to work.?

In sum, the Appellate Division decided that suppression of the Education Law Section 913 report and the testimony of Teller and Morris was not required under the circumstances present in this action and that substantial evidence supports the Board?s finding of guilt on each of the charges and specifications filed against Gardner.

As to the penalty imposed, termination, the court found that ?dismissal was not so disproportionate to the offense as to shock one?s sense of fairness.?

Full post as published by New York Public Personnel Law on April 08, 2008 (boomark / email).