Appeal of P.B. from action of the New York City Department of Education regarding a medical examination.

Decision No. 18,401

(April 25, 2024)

Robin Roach, General Counsel District Council 37, AFSCME, AFL-CIO, attorneys for petitioner, Terry Buck, Esq., of counsel

Hon. Sylvia O. Hinds-Radix, Corporation Counsel, attorney for respondent, Christopher G. Arko, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals from actions related to a directive of the New York City Department of Education (“respondent” or “DOE”) that he submit to a medical examination pursuant to Education Law § 2568.  The appeal must be dismissed.

Petitioner has been employed by respondent since April 2018.  By letter dated May 1, 2023, respondent directed petitioner to report for a medical examination to determine his mental and/or physical capacity to perform his job duties pursuant to Education Law § 2568, citing nine reasons therefor.  Respondent reiterated this directive in an email dated June 27, 2023.  Petitioner submitted to the examination on July 12, 2023. 

On August 10, 2023, a human resources employee emailed petitioner and stated:  “[a]fter review of the medical documentation by the DOE doctor, restoration of health leave has been advised.”[1]

On August 22, 2023, respondent informed petitioner that the medical examination found him unfit for work; as such, he needed to apply for “restoration of health leave” effective August 10, 2023 if he sought to “maintain [his] healthcare coverage.”  Petitioner applied for this leave on August 30, 2023.  This appeal ensued.

Petitioner argues that respondent erred in requiring him to undergo a medical examination pursuant to Education Law § 2568.  He asserts that Civil Service Law § 72 applies to his circumstances, which only permits a medical examination where an “employee is unable to perform the duties of his or her position by reason of disability.”  Petitioner also asserts that respondent violated Civil Service Law § 72 by failing to give him “[w]ritten notice of the facts” underlying the recommendation that he undergo the medical examination.[2]  He seeks declarations that respondent acted unlawfully, reinstatement to his position, and backpay.

Respondent contends that the appeal is untimely.  Respondent further asserts that the Commissioner lacks subject matter jurisdiction over the Civil Service Law issues in this appeal.  On the merits, respondent argues that it acted lawfully and had ample reason to require petitioner to submit to a medical examination.

Petitioner’s claims must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  Petitioner commenced this appeal on September 27, 2023, more than 30 days after respondent’s two directives to appear for a medical examination and the examination itself.  I am not persuaded by petitioner’s claim that respondent’s actions relating to the medical examination constitute a continuing wrong (see Nykorchuck v Henriques, 78 NY2d 255, 259 [1991]).  Accordingly, the portion of the appeal challenging respondent’s medical examination directive must be dismissed as untimely (Appeal of A.D., 46 Ed Dept Rep 236, Decision No. 15,492).

Petitioner’s claims pursuant to Civil Service Law § 72 must also be dismissed as untimely.   Petitioner alleges that this statute entitled him to “[w]ritten notice of the facts providing the basis for the judgment” that he was “not fit to perform the duties of his ... position” (Civil Service Law § 72 [1]).  Assuming without deciding that this provision applies, the written notice of facts “shall be provided to [an] employee ... prior to the conduct of the medical examination” (id.).  Thus, petitioner knew that this information had not been provided on the day of his examination, which was more than two months prior to the commencement of this appeal.  As such, this claim must also be dismissed as untimely.

For the benefit of the parties, I note that petitioner has not proven the applicability of Civil Service Law § 72 to this appeal.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

The record demonstrates that respondent directed petitioner to undergo a medical examination pursuant to Education Law § 2568, which applies to “any person employed” by the City School District of the City of New York (see Appeal of Grossberg, 33 Ed Dept Rep 5, Decision No. 12,956).  This provision, and not Civil Service Law § 72, applies under the circumstances because a more general statute generally must yield to a more specific statute (Matter of Zelazny Family Enters., LLC v Town of Shelby, 180 AD3d 45, 48 [4th Dept 2019]; McKinney’s Cons Laws of NY, Book 1, Statutes § 397).  Indeed, a case involving one of respondent’s employees arising after enactment of Civil Service Law § 72 (1) considered and applied Education Law § 2568 without reference to the Civil Service Law (Newman v Board of Educ. of City Sch. Dist. of City of N.Y., 594 F2d 299 [2d Cir 1979]; see also Appeal of Grossberg, 33 Ed Dept Rep 5, Decision No. 12,956).

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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