Home -> Law Blog Directory -> Labor & Employment Law Blogs -> New York Public Personnel Law

Labor & Employment Law

: New York Public Personnel Law

Appointing authority?s decision to dismiss a probationary employee found to have violated Department rules sustained

Appointing authority?s decision to dismiss a probationary employee found to have violated Department rules sustained
Abreu v Doherty, 63 AD3d 490

The New York City Department of Sanitation terminated Cristobal Abreu before he had completed his maximum period of probation. Abreu sued in an effort to be reinstated to his former position. Supreme Court annulled the Department?s action and remanded the matter to the Department ?for consideration of a lesser penalty.?

The Appellate Division unanimously reversed the lower court?s ruling and dismissed Abreu?s petition.The court held that Abreu failed to demonstrate that the Department?s determination to terminate his probationary employment was made in bad faith.

The Appellate Division noted that the record showed that on two occasions Abreu failed to timely notify the Department that he would be either late or absent due to illness as required by Department rules governing probationary employees. Further, said the court, nothing in the record suggests that Department?s rejection of his explanations for these failures to comply with its rules was irrational.

In York v McGuire, 63 NY2d 760, the Court of Appeals indicated that "it is well settled that a probationary employee may be discharged without a hearing and without a statement of reasons" where the decision is made in good faith and not for a constitutionally impermissible purpose or reason.*

The general rule is that a probationer can be discharge at any time after the completion of his or her minimum period of probation and before the end of the maximum period of probation.**

However, the courts have held that in the event the appointing authority decides to terminate a probationary appointee during his or her minimum probationary period, the individual is entitled to ?notice and hearing? in the nature of a disciplinary proceeding.

Unless otherwise provided by a Taylor Law agreement, once the probationary employee has completed the minimum probationary period, probationary terminations may be made without "notice and hearing" and without the appointing authority having to give the probationer any reason for the termination. As noted above, the only judicial limitations place on the appointing authority in such cases is that the termination not be arbitrary or capricious or based on unlawful considerations.***

The Scherbyn case [Scherbyn v Wayne-Finger Lakes BOCES, 77 NY2d 753] illustrates a significant exception to this general rule, however.

In Scherbyn the Court of Appeals held that where the rules of a civil service commission specifically set out the reasons for which a probationary employee may be dismissed, the appointing authority's broad discretion with respect to terminating the services of probationers is subject to the limitations imposed by those standards.

In Scherbyn the relevant probationary rules provided that a probationer could be terminated during his or her probationary period only for "incompetency or misconduct" or if the "performance of the probationer is not satisfactory" [Civil Service Rules of Ontario County].

The record indicated that the sole reason given by the appointing authority for its dismissing Scherbyn during her probationary period was that "she vacated the position ? when she accept a Leave of Absence [to accept another appointment] because it was impossible for an employee to encumber two positions," the Court said that "dismissal for this reason was arbitrary and capricious."

In so ruling, the Court of Appeals specifically noted that there is "no provision in either the Civil Service Law or the Ontario County Civil Service Rules prohibiting simultaneous leaves of absence from two positions."

This suggests that the Court did not have any trouble with a public employee holding a permanent appointment in two different positions at the same time. The BOCES was ordered to reinstate Scherbyn to her former position and the matter remanded to the trial court for a determination as to the payment of back salary and other benefits.

Typically a tenured employee who is given a leave of absence to accept a temporary or provisional appointment or permanent appointment to another position from a promotion list is entitled to a leave of absence for the duration of the provisional appointment or until the individual satisfactorily completes the required probationary period associated with his or her new permanent appointment. See, for example, the Rules of the State Civil Service Commission at 4 NYCRR 4.5(d). Many local civil service commissions and personnel officers have adopted a similar rule for their respective jurisdictions.

* Such a leave is necessary in order to preserve the individual's right [1] to return to his or her original position should he or she so desire or [2] if his or her provisional appointment ends or [3] in the event that he or she does not satisfactorily complete the probationary period in the higher title.

** §3012(a) of the Education Law provides that the services of a probationary teacher may be discontinued at any time during the teacher's probationary term. Absent a provision in a collective bargaining agreement to the contrary, such a dismissal will not be overturned unless the teacher can demonstrate that the board's action was for a constitutionally impermissible reason or purpose.

*** Under certain circumstances an individual dismissed during his or her probationary period may be entitled to a ?name-clearing hearing.?

Full post as published by New York Public Personnel Law on March 16, 2010 (boomark / email).