Labor & Employment Law

Termination of an employee placed on leave pursuant to Civil Service Law §72

By Harvey Randall, Esq.

Termination of an employee placed on leave pursuant to Civil Service Law §72
Matter of Mair-Headley v County of Westchester, 41 A.D.3d 600, Appellate Division, Second Department

Veronica Mair-Headley was absent from work, presumably on Civil Service Law Section 72 leave, due to a non-occupational injury or disease. According to the Appellate Division, she was so absent for more than one year and thus she could be terminated from her position at the discretion of the appointing authority pursuant to Civil Service Law Section 73.

The Commissioner of the Westchester County Department of Corrections elected to terminate Mair-Headley?s employment as a correction officer pursuant to Civil Service Law §73. A subsequent report and recommendation of a hearing officer found that the Commissioner?s determination was appropriate under the circumstances and consistent with the relevant administrative procedures.

The Appellate Division ruled that the Commissioner satisfied the requirements of due process by providing Mair-Headly with [1] a pretermination ?notice and some opportunity to respond? on the issues of ?whether [she] was absent for one year or more and [2] whether [she] is able to return to [her] position,? as well as [3] a post-termination hearing to resolve those issues.

The Court rejected Mair-Headly?s contention that ?due process required that she be notified at the time her leave commenced that her employment could be terminated if she did not return to work within one year.?¹

Mair-Headly also contended that her employment was terminated in violation of the Human Rights Law. The Appellate Division said that this claim ?is also without merit.?

On this point, the Court said the requirement that the employer make reasonable accommodations of Mair-Headly?s disability ?does not entail any obligation to create a new light-duty position or a permanent light-duty position.? Thus, said the Appellate Division:

Since substantial evidence in the record supports the conclusion that the [Department] would have had to do so here in order to accommodate the [Mair-Headly?s] disability, the Commissioner?s determination to terminate the [Mair-Headly?s] employment under Civil Service Law §73 did not violate the Human Rights Law.

The court then dismissed Mair-Headly?s appeal..

1 Mair-Headly was not terminated in the pejorative sense as she was eligible for reinstatement following her termination pursuant to Section 73. Section 73, in pertinent part, provides: ?Such employee may, within one year after the termination of such disability, make application to the civil service department or municipal commission having jurisdiction over the position last held by such employee for a medical examination to be conducted by a medical officer selected for that purpose by such department or commission? [emphasis supplied] to determine if he or she is physically or mentally qualified for reinstatement to his or her former position.

Full post as published by New York Public Personnel Law on March 26, 2008 (boomark / email).