The Matter of Eileen Jordan v. New York City Housing Authority ( 2019 )

State of New York OPINION
Court of Appeals This opinion is uncorrected and subject to revision
before publication in the New York Reports.
No. 40
In the Matter of Eileen Jordan et al.,
Respondents,
v.
New York City Housing Authority,
Appellant,
Department of Citywide Administrative
Services,
Respondent.
Jane E. Lippman, for appellant.
Joshua J. Ellison, for respondents.
City of New York, amicus curiae.
GARCIA, J.:
The narrow question on this appeal is whether petitioner Eileen Jordan falls within
the ambit of Civil Service Law § 71, a provision governing reinstatement of public sector
employees injured on the job. For the reasons set forth below, we hold that she does not.
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I.
Jordan was a Caretaker for respondent New York City Housing Authority
(NYCHA) for roughly twelve years before she suffered a workplace injury in 2011.
Jordan’s position fell within the “labor class”—one of four possible classifications under
New York’s Civil Service Law—which includes “all unskilled laborers in the service of
the state” (Civil Service Law § 43 [1]).
Jordan’s injury led her to miss more than one year of work and, as a result, NYCHA
terminated her effective August 1, 2012. At the time of Jordan’s dismissal, NYCHA noted
that “[w]ithin one year after the termination of [her] disability, [Jordan] may request
reinstatement to [her] Caretaker title.” To do so, NYCHA instructed Jordan to “submit a
written request to . . . NYC Department of Citywide Administrative Services (DCAS).”
Jordan eventually did so, requesting reinstatement in April 2014. Nevertheless, a month
later NYCHA informed Jordan that, because she was “terminated from a labor [c]lass
Caretaker” position, she was “not eligible to be reinstated.” Jordan, and her union, then
commenced this CPLR article 78 proceeding in Supreme Court.
Jordan sought a judgment that, primarily, would find NYCHA violated section 71
of the Civil Service Law. That provision, as noted above, allows “an employee” who “has
been separated from the [civil] service by reason of a disability resulting from occupational
injury or disease” to request reinstatement (Civil Service Law § 71). NYCHA cross-
moved, among other things, to dismiss the petition, arguing that section 71 did not apply
to labor class employees. Supreme Court, as relevant here, granted the petition as against
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NYCHA, denied NYCHA’s cross motion, and remitted the matter to NYCHA “for
compliance with [section 71]” because it held the plain language of that section did not
exclude labor class employees.
The Appellate Division affirmed, holding “NYCHA’s argument that [section 71]
does not apply to labor class employees [to be] contradicted by the plain language of the
statute” (154 AD3d 618, 619 [1st Dept 2017]). It also rejected two procedural arguments
that NYCHA raised. That court determined Supreme Court did not err by (1) denying
NYCHA the opportunity to answer Jordan’s petition once NYCHA’s cross motion was
denied and (2) rejecting NYCHA’s argument that Jordan failed to join a necessary party,
DCAS (id. at 619-620).
We granted leave to appeal and now reverse.
II.
Section 71 of the Civil Service Law provides that when “an employee has been
separated from . . . service by reason of a disability resulting from occupational injury or
disease . . . , he or she shall be entitled to leave of absence for at least one year.” The statute
goes on to state:
“Such employee may, within one year after the termination of such disability,
make application to the civil service department or municipal commission
having jurisdiction over the position last held by such employee for a medical
examination to be conducted by a medical officer selected for that purpose
by such department or commission. If, upon such medical examination, such
medical officer shall certify that such person is physically and mentally fit to
perform the duties of his or her former position, he or she shall be reinstated
to his or her former position, if vacant, or to a vacancy in a similar position
or a position in a lower grade in the same occupational field, or to a vacant
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position for which he or she was eligible for transfer. If no appropriate
vacancy shall exist to which reinstatement may be made, or if the work load
does not warrant the filling of such vacancy, the name of such person shall
be placed upon a preferred list for his or her former position, and he or she
shall be eligible for reinstatement from such preferred list for a period of four
years. In the event that such person is reinstated to a position in a grade lower
than that of his or her former position, his or her name shall be placed on the
preferred eligible list for his or her former position or any similar position”
(Civil Service Law § 71). Petitioners argue, as they did below, that “employee” is
unqualified in the statute and so we should apply that term broadly, consistent with its plain
meaning. NYCHA counters that, although “employee” is undefined in the Civil Service
Law, section 71 uses terms of art normally not associated with the labor class, including
“preferred eligible list” and “grade.” Both are fair points, and therefore to resolve any
ambiguity, we turn to the history and the purpose of the statute in resolving this issue.
Our task here is made easier by the fact that we have already articulated section 71’s
purpose. Twenty-five years ago, in Allen v Howe, we said that section 71 “w[as] adopted
to address the difficult situation created by the prolonged absence of a civil service
employee” due to injury (84 NY2d 665, 671 [1994]). Under Civil Service Law § 75,
delineated groups of employees “shall not be removed . . . except for incompetency or
misconduct after a hearing.” This section left a governmental employer unable to fill a
vacancy created by an extended absence due to injury without a “resignation” or the
“institut[ion] of disciplinary hearings” (id.). Section 71 was designed to remove the
procedural hurdle imposed by section 75 by allowing a “State governmental employer” to
terminate an employee without “resort to a disciplinary proceeding” and providing the
injured employee a mechanism for later reinstatement (id.).
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Including Jordan within the coverage of section 71 would not serve that legislative
purpose. As a labor class employee, Jordan was not entitled to a disciplinary hearing before
she was terminated and NYCHA did not face the dilemma that led to passage of section
71. Moreover, even if NYCHA was forced to rehire Jordan, she could have been lawfully
terminated the next day—“an absurd result that would frustrate the statutory purpose”
(Long v Adirondack Park Agency, 76 NY2d 416, 420 [1990]). Therefore, we hold that
NYCHA did not violate Section 71 when it refused to reinstate Jordan.
We observe, however, that the Legislature amended section 75, well after Jordan
was terminated, to provide pre-termination hearings for labor class employees with “at
least five years of continuous service” (Civil Service Law § 75 [c]). We express no opinion
on whether employees covered under section 75 at the time of their termination—or
employers of those covered employees—may avail themselves of section 71. Of course,
the reach of section 71, and its relationship to section 75, “is a matter which might be
resolved most readily by legislative clarification of the statute” (Forte v Supreme Court of
State of NY, 48 NY2d 179, 182 n 1 [1979]).
Because we conclude Jordan is not covered by section 71, we do not address
NYCHA’s alternative grounds for reversal. Accordingly, the order insofar as appealed
from should be reversed, with costs, and the petition dismissed in its entirety.
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* * * * * * * * * * * * * * * * *
Order insofar as appealed from reversed, with costs, and petition dismissed in its entirety.
Opinion by Judge Garcia. Chief Judge DiFiore and Judges Rivera, Stein, Fahey, Wilson
and Feinman concur.
Decided June 13, 2019
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