Matter of Smith v. O’Shea, 55 N.Y.2d 774 (1981)

An employee continuously absent from and unable to perform their duties for one year or more due to a disability may be terminated under Civil Service Law § 73 without a pre-termination hearing unless there is a factual dispute impacting the employer’s right to discharge.

Summary

The New York Court of Appeals affirmed the Appellate Division’s order, holding that the petitioner’s termination under Civil Service Law § 73 was valid. The petitioner, an employee continuously disabled for over a year, was terminated without a hearing. The Court found that the petitioner failed to raise the veteran status argument in lower courts and that § 73 is constitutional. The Court reasoned that a hearing is only required when there is a factual dispute impacting the employer’s right to discharge, and the petitioner’s own statements and those of his physicians obviated any such dispute. The Court also held that the petitioner’s application for reinstatement was insufficient to mandate reinstatement on his preferred date.

Facts

The petitioner was an employee who was continuously absent from his position for more than one year due to a disability. The Department terminated his employment pursuant to Civil Service Law § 73. The Department called to his attention in its termination letter of his right to reinstatement depended on making application for a medical examination by a doctor selected by the department. The petitioner sent letters to the department on January 28, 1978 and May 22, 1978.

Procedural History

The petitioner challenged his termination, arguing that he was entitled to a hearing before termination and that he was entitled to be reinstated on June 6, 1978 rather than August 1, 1978. The lower courts rejected his arguments. The Court of Appeals affirmed the Appellate Division’s order upholding the termination.

Issue(s)

1. Whether the petitioner, as a veteran, was protected by Civil Service Law § 75 from termination without a hearing.

2. Whether Civil Service Law § 73 is unconstitutional because it permits termination without a hearing of an employee continuously absent from and unable to perform the duties of his position for one year or more by reason of a disability.

3. Whether the petitioner was entitled to be reinstated on June 6, 1978, rather than August 1, 1978.

Holding

1. No, because the argument regarding veteran status was not raised in the lower courts and the record lacked evidence to support it.

2. No, because a hearing is only required under § 73 when there is a factual dispute impacting the employer’s right to discharge, and in this case, the petitioner’s own statements and those of his physicians obviated any such dispute.

3. No, because the petitioner’s application for a medical examination was insufficient to require reinstatement on June 6, 1978; the statute did not give the petitioner the right to fix the date of the examination.

Court’s Reasoning

The Court found that the petitioner’s argument regarding veteran status was not properly before the court because it was not raised in the lower courts. Regarding the constitutionality of § 73, the Court relied on its prior decision in Matter of Economico v. Village of Pelham, stating that “only when there is ‘some factual dispute impacting upon the employer’s right to discharge’ is a hearing required by that section and that hearing may, in the absence of demonstrated serious hardship, be held posttermination.” The Court determined that no such factual dispute existed in this case, as the petitioner’s own statements and those of his physicians established his continuous disability. The court also found that “by the many written statements by petitioner and his physicians filed with the department petitioner has obviated any question that he was continuously disabled for the requisite period.”

Regarding the reinstatement date, the Court found that the petitioner’s letters were insufficient to constitute a proper application for a medical examination, as required by § 73. The first letter assumed the right to continued sick leave and the second simply stated his availability for an examination on a specific date. The Court emphasized that “[t]he statute did not give petitioner the right to fix the date of the examination.” Because of this, the petitioner failed to show what caused the department’s failure to reinstate him prior to August 1, 1978, or whether or when he was in fact examined by a department doctor.