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In the Matter of Thomas Sheeran v. New York State Department of Transportation et al

November 17, 2011

IN THE MATTER OF THOMAS SHEERAN, APPELLANT,
v.
NEW YORK STATE DEPARTMENT OF TRANSPORTATION ET AL., RESPONDENTS.
IN THE MATTER OF MICHELLE BIRNBAUM, APPELLANT,
v.
NEW YORK STATE DEPARTMENT OF LABOR ET AL., RESPONDENTS.



The opinion of the court was delivered by: Pigott, J.:

This opinion is uncorrected and subject to revision before publication in the New York Reports.

Case Nos. 195 and 196:

The issue presented on both of these appeals is whether Civil Service Law § 72, which provides certain procedural safeguards to a public employee when placed on an involuntary leave of absence, applies to employees who are prevented from returning to work following a voluntary absence. We hold that it does.

I.

Petitioner Thomas Sheeran was a Civil Engineer in the New York State Department of Transportation (DOT); petitioner Michelle Birnbaum was employed by the New York State Department of Labor (DOL). Both petitioners took voluntary leave due to illness and eventually sought to return to work. Each submitted the necessary certification from a treating physician attesting that he or she was fit to return to duty. DOT and DOL exercised their right pursuant to 4 NYCRR 21.3 (e) to have petitioners medically examined by a State-affiliated physician prior to returning to work. In each case, the physicians found the petitioner unfit to return to duty. As a result, petitioners were placed on involuntary leave. Petitioners sought a hearing pursuant to Civil Service Law § 72. The employers denied the requests, asserting that the provisions of 4 NYCRR 21.3 and article 30 of the collective bargaining agreement (CBA) between the union and the employers were applicable to them and that section 72 was not, as it only applied to employees being removed from the work site. Petitioners were eventually terminated from employment pursuant to Civil Service Law § 73, which permits an employer to terminate employment when the employee is continuously absent from work for one year and unable to perform the duties of the position.

II.

Petitioners brought these Article 78 proceedings, to challenge, among other things, their placement on involuntary leave without having been provided a hearing pursuant to Civil Service Law § 72.

In separate decisions, Supreme Court granted the petitions, to the extent of annulling the determinations of DOL and DOT that denied a section 72 hearing and remanded the matters to the employers for compliance with the statute. The Appellate Division reversed and dismissed the petitions (see Matter of Sheeran v New York State Dept. of Transp., 68 AD3d 1199 [3d Dept 2009]; Matter of Birnbaum v New York State Dept. of Labor, 75 AD3d 707 [3d Dept 2010]). The appellate court reasoned that section 72, by its plain language, applies only to employees placed on involuntary leave, whereas the CBA and 11 NYCRR 21.3 apply to employees who have taken voluntary leave (Sheeran, 63 AD3d at 1203). Thus, the court concluded, the determinations of the DOT and DOL to place each of the petitioners on an involuntary leave of absence without a hearing under section 72 was "not arbitrary, capricious, irrational or contrary to law" (id.).

III.

Civil Service Law § 72 (1) provides that when an employer determines that "an employee is unable to perform the duties of his or her position by reason of a disability," the employer may require the employee to undergo a medical examination. If, after such examination, the employee is found unfit to perform the duties of the job, the employee may be placed on an involuntary leave of absence (id.). The statute requires that the employer provide the employee with written notice. The employee may, within certain time limits, object to the proposed leave and request a hearing (id.). It further provides that in the event that the employee requests a hearing, imposition of the proposed leave of absence is held in abeyance pending final determination, unless the employee's continued presence on the job creates a potential danger (see § 72 [5]).

Starting with the language of the statute, we find no indication that the Legislature intended to make a distinction between an employee who is placed on involuntary sick leave from the job site and one that is placed on such leave from a voluntary absence. The statute simply provides that an employee "placed on leave of absence" is entitled to its procedural protections. DOL and DOT contend that the statute's repeated reference to the involuntary leave as a "proposed" leave of absence, as well as the language requiring notice of the "proposed date on which such leave is to commence" assume that the employee is currently working. Those terms, however, simply refer to the prospective nature of the involuntary leave and nothing more.

Subsection five of the statute, which permits the employer to immediately place the employee on involuntary leave when the employee poses potential danger to the work site, applies equally whether the employee is actively working or about to return. In both situations, the statute allows the employer to protect the work place. While DOT and DOL point to Rule 21.3 (e) and Article 30 of the CBA as applying to the petitioners' circumstances, neither of those provisions affords an immediate opportunity to be heard once a determination is made to place the employee on involuntary leave status. They provide an opportunity to be reexamined at a later date, and as such do not provide the procedural protections of section 72.

IV.

The legislative history of the statute is in full accord with this interpretation. A Department of Civil Service memorandum in support of this legislation noted: "One of the most knotty personnel problems which plagues department and agency heads is the problem of what to do about an employee who has been absent and disabled from the performance of his duties for a prolonged period of time" (Memorandum of New York State Department of Civil Service, Bill Jacket, L. 1983, ch. 561). Notably, there is no distinction ...


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