| Matter of Sheeran v New York State Dept. of Transp. |
| 2009 NY Slip Op 08914 [68 AD3d 1199] |
| December 3, 2009 |
| Appellate Division, Third Department |
| In the Matter of Thomas Sheeran, Respondent, v New York StateDepartment of Transportation et al., Appellants. |
—[*1] William P. Seamon, New York State Public Employees Federation, Albany (Rita J. Verga ofcounsel), for respondent.
Stein, J. Appeal from a judgment of the Supreme Court (Cahill, J.), entered July 29, 2008 inAlbany County, which granted petitioner's application, in a proceeding pursuant to CPLR article78, to annul a determination of respondent Department of Transportation placing petitioner oninvoluntary leave of absence.
Petitioner was employed as a civil engineer for respondent Department of Transportation.Due to recurring medical problems, petitioner took voluntary sick leave beginning February 23,2007. Although petitioner's personal physician subsequently cleared him to return to work,respondents first required petitioner to submit to a medical examination by a physician ofrespondents' choosing pursuant to 4 NYCRR 21.3 (e). Following examinations by JohnHargraves (a physician with respondents' employee health services) and John Wapner (apsychologist), both determined that petitioner was unfit to resume employment. As a result,respondents informed petitioner in June 2007 that, until he was found fit to return to work, hewould be placed on sick leave with half pay and, when his accrued leave was exhausted, hewould be placed on sick leave with no pay. Additionally, respondents notified petitioner that hisemployment could be terminated after a continuous absence of one year. Upon reexaminingpetitioner approximately four months later, Hargraves determined that petitioner was still unable[*2]to return to work and petitioner was so advised.
In November 2007, petitioner's union, the Public Employees Federation, requested a hearingon behalf of petitioner pursuant to Civil Service Law § 72.[FN1] Respondents denied the request. In doing so, respondents asserted that Civil Service Law§ 72 applies only to employees who are placed on involuntary leave from an "active"status, not—as in petitioner's case—to employees who are prevented from returningto work from voluntary sick leave. Instead, respondents asserted that the provisions of 4 NYCRR21.3[FN2] and article 30 of the collective bargaining agreement (hereinafter CBA)[FN3]between the union and respondents were applicable.
Respondents thereafter notified petitioner that his employment would be terminated as ofFebruary 22, 2008 based on his continuous absence from work for one year (see CivilService Law § 73). Petitioner requested and received a pretermination hearing pursuant toCivil Service Law § 73 (see generally Matter of Gooshaw v Village of Massena,216 AD2d 819, 820-821 [1995]), after which the Hearing Officer upheld respondents' findingsand petitioner's employment was terminated. At his posttermination hearing (seegenerally Civil Service Law § 73; Matter of Hurwitz v Perales, 81 NY2d 182,186-187 [1993]), petitioner appeared without [*3]counsel andfailed to present information refuting Hargrave's findings of unfitness. Based upon the HearingOfficer's determination in respondents' favor, petitioner commenced this CPLR article 78proceeding, as a result of which Supreme Court annulled respondents' determination and sent thematter back to respondents for reconsideration, finding that petitioner should have been affordedthe procedures set forth in Civil Service Law § 72. Respondents now appeal.
We first note that, as the issue before us involves a matter of pure statutory interpretation, weare " 'free to ascertain the proper interpretation from the statutory language and legislative intent'" (Matter of Belmonte v Snashall, 2NY3d 560, 566 [2004], quoting Matter of Gruber [New York City Dept. ofPersonnel—Sweeney], 89 NY2d 225, 231 [1996]). After doing so, we must thenascertain whether there was a rational basis for respondents' actions or whether they werearbitrary and capricious (see Matter ofPeckham v Calogero, 12 NY3d 424, 431 [2009]; Matter of Gilman v New YorkState Div. of Hous. & Community Renewal, 99 NY2d 144, 149 [2002]). Here, respondentsargue that the plain language of Civil Service Law § 72 restricts its application tosituations in which an employer seeks to place an employee who is currently working oninvoluntary leave. On the other hand, respondents contend that 4 NYCRR 21.3 (e) and article 30of the CBA apply—to the exclusion of Civil Service Law § 72—when anemployee, like petitioner, is already on voluntary sick leave and wants to return to work.
Under Civil Service Law § 72, if an employer decides that an employee is unable toperform his or her employment duties because of a disability, the employer may require theemployee to undergo a medical examination by a state physician (see Civil Service Law§ 72 [1]). If the physician considers the employee unfit for employment, the employermust notify the employee "that he or she may be placed on leave of absence" (CivilService Law § 72 [1] [emphasis added]). If the employer elects to place the employee onleave of absence, it must give the employee written notice of the employee's procedural rights, aswell as "the reason for the proposed leave and the proposed date on which suchleave is to commence" (Civil Service Law § 72 [1] [emphasis added]). If the employeeobjects and requests a hearing, the imposition of the proposed leave of absence is held inabeyance pending a final determination, unless the employee's "continued presence" onthe job is potentially dangerous (Civil Service Law § 72 [1], [5] [emphasis added]).
On the other hand, unlike Civil Service Law § 72—which may require amedical examination before an employee is placed on a leave of absence—4 NYCRR 21.3(e) specifically applies to employees "who [have] been absent because of personal illness," andauthorizes the employer to require a medical examination "prior to and as a condition of his[or her] return to duty" (4 NYCRR 21.3 [e] [emphasis added]). If the physician declares theemployee unfit to return to work, the CBA then provides that "the employee shall be placed onthe appropriate leave status in accordance with the Attendance Rules."[FN4] Neither 4 NYCRR 21.3 nor the CBA [*4]provides for a hearingon the issue of an employee's fitness until after a decision has been made to terminate his or heremployment.
While we agree with petitioner's contention that an employee's leave status effectivelybecomes involuntary where the employee is already on sick leave and is prevented fromreturning to work by the employer's determination of unfitness, as well as where an activeemployee is required to commence a leave of absence, this does not compel the conclusion thatCivil Service Law § 72 applies to both situations. Rather, based upon the plain language ofthat statute—especially when read in juxtaposition to the language of the provisions of 4NYCRR 21.3 and article 30 of the CBA—we conclude that the former is intended to applyto active employees, whereas the latter applies to employees already on voluntary sick leave. Toconclude otherwise would, among other things, render portions of 4 NYCRR 21.3 and article 30of the CBA"entirely superfluous." Thus, we find that respondents' actions were not arbitrary,capricious, irrational or contrary to law.
To the extent not specifically addressed herein, we have considered petitioners' remainingcontentions and find them to be unavailing.
Mercure, J.P., Kavanagh, McCarthy and Garry, JJ., concur. Ordered that the judgment isreversed, on the law, without costs, and petition dismissed.
Footnote 1: Civil Service Law §72—entitled "Leave for ordinary disability"—sets forth the procedures to beemployed "[w]hen in the judgment of an appointing authority an employee is unable to performthe duties of his or her position by reason of a disability." (Civil Service Law § 72 [1].)The statute was amended in 1983 following the decision in Laurido v Simon (489 FSupp 1169 [1980]), finding Civil Service Law former § 72 to be unconstitutional becauseit failed to provide due process protections to tenured employees placed on involuntary leave(Laurido v Simon, 489 F Supp at 1178). In response, the Legislature passed Laws of1983 (ch 561)—the current form of Civil Service Law § 72—which includescertain notice and hearing requirements. It is those requirements that respondents foundinapplicable here.
Footnote 2: 4 NYCRR 21.3 is entitled "Sickleave" and is found in part 21 ("Absence with Pay") under the Department of Civil ServiceAttendance Rules for Nonmanagerial/Confidential Employees in New York State Departmentsand Institutions.
Footnote 3: Article 30 of the CBA isentitled "Verification of Doctor's Statement" and concerns the time in which a medicalexamination must be completed when the state requires an employee "who has been absenton sick leave" (emphasis added) to be examined by a doctor before returning to work, aswell as the employee's pay status pending such examination and following a determination ofunfitness to return to duty. The majority of those provisions in article 30 (see §30.1 [b]-[f]) were negotiated and added to the parties' 1985-1988 CBA after the 1983amendments to Civil Service Law § 72.
Footnote 4: We note that the Attendanceand Rule Manual states that "[i]f, as a result of any medical examination . . . anemployee who has voluntarily absented himself/herself from duty seeks to return and isdenied based on the inability to perform his/her duties, the [employer] should consult with theDepartment of Civil Service Counsel's office for guidance on appropriate procedure."