Probationaryemployee terminated for alleged misuse of sick leave
Curcio v NewYork City Dept. of Education, 55AD3d 438
The New York City Department of Education dismissed a probationary physicaleducation teacher, Louis Curcio, from his position and simultaneouslyreemployed him as a tenured teacher under his common branch license.
In response to Curcio’s petition seeking reinstatement as a probationer in hisformer physical education teacher position Supreme Court, New York CountyJustice Shirley Werner Kornreich, denied the Department of Education’s motionto dismiss so much of the petition as sought review of the termination ofCurcio's probationary employment under his physical education license. JusticeKornreich also reinstated petitioner's physical education license nunc protunc* to May 15, 2006.
The Department appealed. The Appellate Division “unanimously reversed” JusticeKornreich’s reinstating Curcio’s physical education license and dismissedCurcio’s petition challenging his termination.
Curcio had sued the Department for terminating his probationary employmentunder his physical education license. The Department had dismissed him becauseof Curcio’s alleged premeditated misuse of sick leave. The Appellate Divisionsaid that Curcio petition challenging his dismissal from his probationaryemployment should have been dismissed as he failed to establish that histermination "was for a constitutionally impermissible purpose, violativeof a statute, or done in bad faith."
On a related issue, the Appellate Division noted the record shows that Curciowas not given the requisite 60-day statutory notice that his probationaryemployment was being terminated by the Department.
Typically such a lack of notice would have entitled Curcio to one day's pay foreach day the notice was late. Here, however, the court determined that Curciowas not entitled to such payment because after being terminated from hisprobationary employment, he immediately resumed his duties at the same schooland at the same rate of pay under his common branch license under which he was fullytenured.
* Nunc pro tunc [Latin for "now forthen"] refers setting an earlier date for the effective date of an order or judgment, givingit a “retroactive” legal effect.
Thedecision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_08020.htm
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