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Decision No. 15,885

Appeal of D.R. from action of the Board of Education of the South Orangetown Central School District regarding a personnel matter.

Decision No. 15,885

(March 2, 2009)

Feerick Lynch MacCartney, PLLC, attorneys for petitioner, Mary E. Marzolla, Esq., of counsel

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Steven M. Latino, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals a directive of the Board of Education of the South Orangetown Central School District (“respondent”) to appear for a medical examination.  The appeal must be dismissed.

At the time this appeal arose, petitioner was employed as a secretarial assistant in respondent’s technology department.  On July 27, 2007, petitioner’s physician advised her not to return to work due to severe depression and stated that petitioner was “not fit to assume her job duties at [that] time.”  Petitioner notified her supervisor.  By letter dated October 16, 2007, the superintendent, notified petitioner that respondent adopted a resolution authorizing its president to direct petitioner to undergo a comprehensive medical examination and evaluation pursuant to Education Law §913.  Petitioner called the designated medical facility but was not able to comply with the scheduled appointment on short notice.  On October 30, 2007, respondent requested that she contact the medical facility by November 2, 2007.  This appeal ensued.   Petitioner’s request for interim relief was denied on November 15, 2007.

Petitioner asserts the express and sole purpose of Education Law §913 is to safeguard the health of students, which would not be furthered or served by her medical examination.  She argues that she has not been on school grounds since August 2007, that her position does not place her in contact with students, and that she has received favorable past performance evaluations.  She requests a determination that respondent’s directive is arbitrary and capricious.

Respondent asserts that Education Law §913 provides it with the authority to direct a medical examination of any employee, not only those with direct student contact.  Respondent maintains that the statute gives districts the discretion to determine when such examinations are needed.  Respondent justifies the directive due to petitioner’s diagnosis of severe depression and asserts that past performance evaluations cannot predict current mental status. 

Education Law §913 provides, in pertinent part:

In order to safeguard the health of children attending the public schools, the board of education or trustees of any school district or a board of cooperative educational services shall be empowered to require any person employed by the board of education or trustees or board of cooperative educational services to submit to a medical examination by a physician or other health care provider of his or her choice or the director of school health services of the board of education or trustees or board of cooperative educational services, in order to determine the physical or mental capacity of such person to perform his or her duties. 

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477). 

Petitioner has failed to meet her burden.  A board of education has a statutory right to order an employee to submit to a medical examination pursuant to Education Law §913 (Appeal of McCall, 33 Ed Dept Rep 148, Decision No. 13,005; Appeal of El-Araby, 28 id. 524, Decision No. 12,188).  By its express terms, the medical examination provisions of §913 apply to teachers and “other employees” and the purpose of such examination is “to determine the physical or mental capacity of ... [a] person to perform his or her duties.”  The statute does not limit examinations to certain types of employees or duties, and has been applied to non-teaching personnel. (Gardnerv. Niskayuna Cent.School Dist., 42 AD 3d 633; Brodsky v. Board of Educ., Brentwood Union Free School Dist., 64 AD 611).  Also, petitioner’s favorable performance evaluations, while laudable, are not an indicator of petitioner’s current physical and mental health or her present capacity to perform her duties.  Thus, on the record before me I cannot conclude that respondent’s demand for such examination was an abuse of authority or was arbitrary or capricious.