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Monday, November 26, 2012

Challenging the employee's dismissal during his or her probationary period

Challenging the employee's dismissal during his or her probationary period

Supreme Court dismissed a former probationary employee’s petition seeking to annul his termination from his position, the revocation of his New York City Department of Education [DOE] teaching certification, his placement of his name on the DOE's Ineligible/Inquiry list,* and his overall unsatisfactory rating for the 2010-2011 school year.

The Appellate Division sustained the lower court’s actions, explaining that the probationer had failed to establish that his termination, the revocation of his teaching certificate and his placement on the DOE's ineligible/inquiry list, was done in bad faith.

Addressing the individual’s allegation of bad faith, the court noted the record contained evidence of good faith on DOE’s part. For example, said the Appellate Division, the school principal’s "intention was not to terminate [the] petitioner's employment but to extend his probation for an additional year."

In addition, said the court, the record contained evidence of deficiencies in individual's performance during the probationary period.

As to the individual’s challenge to the revocation of his teaching certification and the placement of his name on the ineligible/inquiry list, the Appellate Division ruled that those challenges were not untimely but that Supreme Court had correctly sustained those administrative determinations.

Finally the Appellate Division pointed out that the lower court had correctly dismissed the individual’s challenge to his “U-rating” as it was premature because he had not yet exhausted his administrative remedies.

* Placing an individual’s name on the "Ineligible/Inquiry" list maintained by the New York Department of Education bars that individual from employment at any DOE school while his or her name remains on such list [McPherson v. New York City Dep't of Education, 457 F.3d 211].

The decision is posted on the Internet at:


Handbooks focusing on New York State and Municipal Public Personnel Law:

The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

The Disability Benefits E-book: - This e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://booklocker.com/3916.html

A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

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