Unkind Cut Heals As Probie Fired Over Surgery is Rehired
By Mark Toor
February 18, 2011 – The city has agreed to give a Probationary Correction Officer her job back after she was fired for absenteeism because she took 13 days of sick leave for gall-bladder surgery.
The officer, Christina Maldonado, was hired Feb. 28, 2008 and was almost at the end of her probation on Jan. 20, 2010 when her gallstones were removed. Ms. Maldonado was paid for the sick leave; the Department of Correction has an unlimited-sick-leave policy like that of the NYPD.
Both her doctor and the agency’s Health Management Division agreed she could return to work with medical restrictions on Feb. 8, 2010. The DOC said she could work without restrictions starting Feb. 26.
About a month later, DOC gave Ms. Maldonado a “chronic absent” designation because of the surgery-related absences, and on April 16 she was terminated. According to court papers, the decision was based only on her sick-leave usage, and her job performance was not taken into account.
After her termination, she believed that her education in criminal justice would be rendered worthless, said her attorney, Mercedes M. Maldonado (no relation) of Isaacs, Devasia, Castro & Wien LLP. But even more stressful was the fact that her 5-year-old son was hospitalized for asthma at a time when she had no health insurance, attorney Maldonado said.
Uphill Battle
“Any probationary-termination case is an uphill battle,” she said. But because the case involved a city department, Mercedes Maldonado was able to bring suit in Manhattan Supreme Court under the city’s Human-Rights Law, which she said was far more liberal than state or Federal law. The city’s definition of disability is more expansive, she said, and it puts a greater burden on the employer in a dispute over reasonable accommodation of a disabled employee.
Under the settlement, Christina Maldonado was rehired effective Feb. 7 with back pay and allowances. She must serve a final three months of probation. The city does not admit any wrongdoing.
“We believe the settlement is in the best interest of all parties,” said a spokeswoman for the city Law Department.