Violating the terms and conditions of a disciplinary probationary period

Davis v Division of Military and Naval Affairs, 291 AD2d 778

Disciplinary action was initiated against Randall Davis by his employer, the New York State Division of Military Affairs and Naval Affairs [DMNA], based on allegations that Davis was guilty of violating DMNA's Internet policy by using DMNA computers to visit inappropriate websites, including pornographic websites, and by using a State-owned computer for "personal business."

The disciplinary action was "settled" and the Division and Davis entered into an agreement that, in relevant part, placed Davis on disciplinary probation for one year and prohibited him from using State-owned computer equipment for personal reasons, including placing personal information on disks or other storage devices owned by the State. The agreement expressly provided that in the event Davis violated any of its terms, he would be subject to "automatic dismissal".

Davis returned to work and shortly thereafter created a file folder in his computer entitled "Rd" and stored various information, including personal information, in that folder. According to the decision, Davis created this folder after normal work hours and placed it in a location on his DMNA computer that was considered to be unusual for this type of file. As a result he was summarily terminated from his position on the grounds that he had violated the terms of his disciplinary probation agreement.

Davis appealed, claiming that his termination was arbitrary and capricious and that the decision to terminate him was made in bad faith. However, noted the Appellate Division, Davis neither challenged the fact that he created the file DMNA said offended the terms of the disciplinary settlement agreement on his state-owned computer nor that he moved nonwork-related website addresses into it.

The Appellate Division observed that Davis "voluntarily entered into the [disciplinary] settlement agreement which placed him in the status of a probationary employee subject to automatic termination if he violated any of its provisions."

Citing Swinton v Safir, 93 NY2d 758, the court said it had to apply a "stringent standard of review" in considering termination cases of probationary employees. It said that "a probationary employee has no right to challenge the termination by way of a hearing or otherwise, absent a showing that he was dismissed in bad faith or for an improper or impermissible reason."

The courts, however, have construed the terms and conditions of disciplinary probationary periods narrowly. For example, in Taylor v Cass, 505 NYS2d 929, a Suffolk County employee won reinstatement with full retroactive salary and Taylor Law contract benefits when the court determined that he had been improperly dismissed while serving a disciplinary probation.

Taylor’s disciplinary probation provided that he could be terminated without any hearing if, in the opinion of his superior, his job performance was “adversely affected” by his “intoxication on the job.”

Taylor, however, was subsequently terminated without a hearing for “failing to give a fair day’s work” and “sleeping during scheduled working hours.”

The Appellate Division said the dismissal was improper because Taylor was not terminated for the sole reason specified in the underlying settlement agreement: intoxication on the job.

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