Petitioner, a former permanent City Laborer with the DOE filed an Article 78 proceeding seeking reinstatement as he believed the DOE acted in bad faith concerning their refusal to reinstate him. 

          Petitioner started with DOE in January of 1985 and he was promoted in 2005.  He was demoted in December of 2008 due to unexcused absences and lateness.  Petitioner was injured at the workplace and went on worker’s compensation leave in July of 2009.  In June of 2010, he received a letter informing him of his termination because “he had not been able to perform his duties due to an occupational injury for more than one year.” Petitioner was terminated pursuant to Civil Service Law 72 in July 2010.  He was told that one year after the proposed termination Petitioner would be examined to determine his physical and mental ability to perform the duties of a City Laborer. 

          If a medical officer finds a civil servant to be mentally/physically fit to perform the duties of the position in civil service then “he or she shall be reinstated to the former position, if vacant … 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.”

          Therefore, the Court found that the DOE acted rationally when a medical officer found Petitioner fit to perform his duty they attempted to reinstate him.  Because they did not have any vacancies at the time they placed Petitioner on a list for reinstatement to his former position that was active for the following four years in compliance with Civil Service Law 71.