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Dismissal during an employee?s disciplinary probationary period

Dismissal during an employee?s disciplinary probationary period
Matter of Bradford v New York City Dept. of Correction, 2006 NY Slip Op 30569(U), July 11, 2006, Supreme Court, New York County, Docket Number: 111044/05, Judge: Debra A. James [Not selected for official publication]

The general rule is that a probationary employee may be dismissed from his or her position at any time after completing the minimum period of probation and prior to the end of the probationary period so long as such dismissal is not for an unlawful reason or purpose. Prior to the completion of the probationer?s minimum period of probation he or she must be accorded notice and hearing as a condition precedent to such termination.

Stephanie Bradford was employed by the New York City Department of Corrections as a legal coordinator. In the course of a disciplinary action the parties entered into a negotiated settlement whereby Bradford would forfeited 28 vacation days, and serve a ?one (1) year's limited probation as attached limited to rules, regulations, directives, operation orders, institutional orders concerning: AWOLs, time and leave, sign in/out procedures, being on post and efficient performance."

The settlement agreed upon provided that "If this penalty is approved by the Commissioner of Correction, I accept said decision, and as a condition of accepting such decision of the Commissioner of Correction, and all rights granted to me under section 75 and 76 of the Civil Service Law and acknowledge that this acceptance is the same as finding of guilt after a hearing."

The agreement also stated that Bradford ?waived [my rights] as a tenured employee for this probationary period and subject myself to termination as any other probationary employee."

Bradford was terminated during her disciplinary probationary period and the union filed a grievance. Correction rejected the grievance, contending that Bradford had waived any rights to hearing in the settlement agreement when she consented to be treated as a probationary employee.

Supreme Court agreed with the union, citing Tankard v Abate (159 Misc2d 339, modified on other grounds, 213 AD2d 320).

Noting the ?apparent contradiction? between the provision in the settlement agreement that characterized Branford?s status as a ?limited probationary period? and that portion of the settlement agreement that provided that Bradford was subject ?to termination as any other probationary employee,? the court said that it was obligated to give effect ?to every portion of the agreement and no provision of a contract should be left without force and effect.?

Judge James said that ?It is reasonable to infer that this ?limited probation? may only result in discharge without charges or a hearing during the term of probation if [Bradford] violated the rules of the [Department] concerning absence without leave, lateness and sick leave," while the rights to discharge her "as any other probationary employee" requires no reason whatever.

Thus, said the court, under the limited probation defined in the negotiated plea agreement, there would be no right to discharge the employee because of unsatisfactory work performance without giving the employee notice of charges and a hearing while any other probationary employee "could be discharged for that or any other reason or for no reason at all.?

NYPPL comment: The classic case addressing this type of distinction is Taylor v Cass, 505 N.Y.S.2d 929.

Taylor, a Suffolk County employee, won reinstatement with full retroactive salary and contract benefits after the court found that he was improperly dismissed while serving a disciplinary probation.

Under the terms and conditions of the probation to which Taylor had agreed, the county could terminate him without any hearing if, in the opinion of his superior, his job performance was "adversely affected" by his "intoxication on the job" during the next six months.

Taylor, while subject to this probationary period, was terminated without a hearing for "failing to give a fair day's work" and "sleeping during scheduled working hours." He challenged his dismissal and won reinstatement with back salary. The Appellate Division decided that Taylor's dismissal was improper because Taylor was not terminated for the sole reason specified in the settlement: intoxication on the job.

In this instance it appears that Bradford's minimum period of probation is the same as the maximum period of probation as no minimum or maximum probationary term is specified with respect to her probationary status for other than the "limited probationary" conditions of her probationary period.

Accordingly, if follows that although Bradford could be summarily terminated for violating a term or condition of her "limited probationary period," she was entitled to administrative due process -- i.e., notice and hearing -- in the event the Department elected to terminate her prior to the end of her one-year "non-limited" probationary period.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2006/2006_30569.pdf

Full post as published by New York Public Personnel Law on July 22, 2009 (boomark / email).