Probationary employee terminated for alleged misuse of sick leave

Probationary employee terminated for alleged misuse of sick leave
Curcio v New York City Dept. of Education, 55 AD3d 438

The New York City Department of Education dismissed a probationary physical education teacher, Louis Curcio, from his position and simultaneously reemployed him as a tenured teacher under his common branch license.

In response to Curcio’s petition seeking reinstatement as a probationer in his former physical education teacher position Supreme Court, New York County Justice Shirley Werner Kornreich, denied the Department of Education’s motion to dismiss so much of the petition as sought review of the termination of Curcio's probationary employment under his physical education license. Justice Kornreich also reinstated petitioner's physical education license nunc pro tunc*  to May 15, 2006.

The Department appealed. The Appellate Division “unanimously reversed” Justice Kornreich’s reinstating Curcio’s physical education license and dismissed Curcio’s petition challenging his termination.

Curcio had sued the Department for terminating his probationary employment under his physical education license. The Department had dismissed him because of Curcio’s alleged premeditated misuse of sick leave. The Appellate Division said that Curcio petition challenging his dismissal from his probationary employment should have been dismissed as he failed to establish that his termination "was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith."

On a related issue, the Appellate Division noted the record shows that Curcio was not given the requisite 60-day statutory notice that his probationary employment was being terminated by the Department.

Typically such a lack of notice would have entitled Curcio to one day's pay for each day the notice was late. Here, however, the court determined that Curcio was not entitled to such payment because after being terminated from his probationary employment, he immediately resumed his duties at the same school and at the same rate of pay under his common branch license under which he was fully tenured.

Nunc pro tunc [Latin for "now for then"] refers setting an earlier date for the effective date of an order or judgment, giving it a “retroactive” legal effect.

The decision is posted on the Internet at: