Gargiul v. Board of Ed. of Liverpool Central School Dist.

• Decision Date: 06 April 1979
• Citation: 416 N.Y.S.2d 119,69 A.D.2d 986
• Parties: In the Matter of the Application of Lorraine M. GARGIUL, Petitioner, v. BOARD OF EDUCATION OF the LIVERPOOL CENTRAL SCHOOL DISTRICT et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 119

416 N.Y.S.2d 119

69 A.D.2d 986

In the Matter of the Application of Lorraine M. GARGIUL, Petitioner,

v.

BOARD OF EDUCATION OF the LIVERPOOL CENTRAL SCHOOL DISTRICT

et al., Respondents.

Supreme Court, Appellate Division, Fourth Department.

April 6, 1979.

Bernard F. Ashe, Albany, for petitioner, arg by Richard E. Casagrande, albany.

O'Hara, O'Hara & Vars, Liverpool, for respondents, arg by Dennis G. O'Hara, Liverpool.

Before DILLON, P. J., and CARDAMONE, SIMONS, DOERR and MOULE, JJ.

MEMORANDUM:

In this article 78 proceeding petitioner seeks to annul the determination of the Board of Education of the Liverpool Central School District which found that she was insubordinate and incompetent and dismissed her from her employment retroactive to March 17, 1975.

The Board's finding that petitioner was incompetent is supported by substantial evidence and the punishment imposed is not so disproportionate "as to be shocking to one's sense of fairness" (Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 233, 356 N.Y.S.2d 833, 834, 313 N.E.2d 321).

We do not agree with petitioner's contention that she should be awarded back pay from March 17, 1975, the date on which she was suspended for refusing to submit to the physical examination directed by the Board, to the date of her dismissal. A Board of Education has a statutory right to order an employee to submit to a medical examination (Education Law, § 913) and may dismiss an employee who refuses to undergo such an examination (Matter of the Appeal of Frank Grasso, 4 E.D.R. 174). Further, petitioner appealed her suspension without pay for refusing to submit to a medical examination to the Commissioner of Education under section 310 of the Education Law (15 Ed Dept 360, applic. for reopening den. 15 Ed Dept Rep 520). The Commissioner dismissed the appeal, finding that the Board was authorized under section 913 of the Education Law to require such an examination and that the Board's action was neither arbitrary nor capricious. The Commissioner also rejected petitioner's claim that her desire to be attended only by a woman physician was protected by section 296 of the Executive Law and the Federal Constitution. Petitioner neither sought review of the Commissioner's determination nor joined the Commissioner as a party in this article 78 proceeding; accordingly, petitioner is bound by the determination of the Commissioner...