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Decision No. 16,313

Appeal of H.C.A. from action of the New York City Department of Education relating to a medical examination.

Decision No. 16,313

(November 9, 2011)

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Pinar Ozgu, Esq., of counsel

KING, JR., Commissioner.--Petitioner challenges the authority of the New York City Department of Education (“respondent”) to require that she submit to a medical evaluation pursuant to Education Law §2568.  The appeal must be dismissed.

Petitioner is employed by respondent as an Intake/Enrollment Officer.  By letter dated June 7, 2011, petitioner’s supervisor requested approval from respondent’s Division of Human Resources to require a medical evaluation of petitioner pursuant to Education Law §2568.  By letter dated June 15, 2011, petitioner was directed to report for a medical examination on July 5, 2011.  This appeal ensued.  Petitioner’s request for interim relief was denied on July 8, 2011.

Petitioner contends, among other things, that the request for a medical examination constituted retaliation against petitioner for filing a complaint with the United States Equal Employment Opportunity Commission alleging sexual harassment and retaliation. 

Respondent submits, interalia, that the appeal is moot because the examination was canceled and the request for the examination was removed from petitioner’s personnel file.

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836). The only relief petitioner requested in her petition was interim relief and removal of the medical evaluation request from her personnel files.  The medical examination scheduled for July 5, 2011 was canceled. Respondent asserts in its answer that the request for a medical examination has been withdrawn and was removed from petitioner’s personnel file. Accordingly, the appeal is moot.

To the extent that petitioner argues that the appeal is not moot because respondent may pursue another examination in the future, I note that the Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of B.R. and M.R., 48 Ed Dept Rep 291, Decision No. 15,861; Appeal of Lachler, 47 id. 455, Decision No. 15,752).  Petitioner has the right to commence an appeal with a request for interim relief in the event respondent takes such action in the future.