Deeming an individual’s absence without permission a resignation from, or abandonment of, the position

Deeming an individual’s absence without permission a resignation from, or abandonment of, the position
New York State Off. of Mental Health v New York State Div. of Human Rights, 53 AD3d 887

Former Section 5.4(d) of the State Civil Service Commission's Rules for the Classified Service [4 NYCRR 5.4(d)] provided that an employee who was absent without permission and without explanation for ten or more days would be deemed to have resigned from his or her position effective the first day of such unauthorized absence. 4 NYCRR 5.4(d) was held to violate due process. [See, for example, Bernstein v Industrial Commissioner, 57 AD2 767] and was subsequently repealed.

However, this type of provision may survive in collective bargaining agreements, as demonstrated in this action.

An individual began working as a safety officer for the Office of Mental Health and subsequently entered an inpatient rehabilitation program for alcohol abuse. However the individual did not report back to work, but made several telephone calls to his supervisor, informing him that he would not be returning to work for various reasons, including an injury to his leg.

The personnel office then sent a letter to the employee stating that, pursuant to the collective bargaining agreement (CBA) between the State and Purse's union, the individual was deemed to be absent from duty without authorization and he would be terminated from the position by a specified date unless he provided a satisfactory explanation for his absence since his release from the program.

Ultimately the individual was removed from the payroll and he thereafter filed a verified complaint with the State Division of Human Rights (SDHR) charging OMH with an unlawful discriminatory practice based on his status as a recovering alcoholic. SDHR determined that it had jurisdiction and after a number of hearings before an Administrative Law Judge determined, that OMH had engaged in a discriminatory practice and awarded the complainant $5,000 for emotional distress and in addition awarded Purse $385,750 for back pay.

The Appellate Division commenced its analysis of the case by noting that it “accords considerable deference to the determinations of SDHR due to its expertise in evaluating discrimination claims, and we will uphold such if supported by substantial evidence.”

Further, said the court, "[a] determination may not be set aside 'merely because the opposite decision would have been reasonable and also sustainable” and upheld SDHR's determination that OMH engaged in an unlawful discriminatory practice.

Referring to the CBA, the Appellate Division noted that it, in relevant part, that "[a]ny employee absent from work without authorization for ten consecutive workdays shall be deemed to have resigned from his [or her] position if he [or she] has not provided a satisfactory explanation for such absence on or before the eleventh workday following the commencement of such unauthorized absence." 

Here, the court noted, the record demonstrates that, after failing to report to work, OMH was contacted by telephone and put on notice of the employee’s medically excused absence, followed with telephone calls, during the last of which OMH was advised that the individual would be absent for an indefinite period of time.

Further, said the court, OMH placed the individual in “a holding status” until he furnished the proper documentation, which he submitted in the form of medical reports substantiating his absence.

This, said the court, provides substantial evidence to support SDHR's determination that OMH's proffered reason for terminating the employee was a pretext; that OMH engaged in an unlawful discriminatory practice; and that employee was entitled to an award of $5,000 for emotional distress.

The Appellate Division, however, rejected SDHR's determination that the individual was entitled to an award for back pay.

The purpose of back pay, said the court, is to make a person whole and redress the economic injury that has resulted from unlawful employment discrimination. Thus, where losses in salary are attributable to disability and not the result of discrimination, as is here the case based on the individual’s own explanation of his absence, an award of back pay should not be made.

Further, said the court, the record demonstrates that the individual was removed from OMH’s payroll and, as the result of a retroactive award, began receiving disability benefits effective on that same day. Thus, said the court, “we find that SDHR erred in making the determination that the individual was entitled to a back pay award.”

The decision is posted on the Internet at: