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June 18, 2010

Absence during a probationary period

Absence during a probationary period
Matter of Garnes v Kelly, 2007 NY Slip Op 30262(U), Judge: Herman Cahn, [Not selected for publication in the Official Reports], Affirmed 51 A.D.3d 538

Garnes was appointed as a New York City police officer on July 1, 2003. His appointment was subject to a twenty-four month probationary period. Under normal circumstances Garnes would have completed his twenty-four month probationary period on June 30, 2005.

During his probationary period, however, Garnes was suspended for 30 days as a result of an off-duty incident and had other absences during this period. In addition, Judge Cahn noted that at the end of Garnes’ 30-day period of suspension, the NYPD placed him on modified duty.

Ultimately NYPD’s psychologist, Marisa Barra, M.A., determined that Garnes was “psychologically unsuitable to be a Police Officer and recommended that he be separated from the Department.’’ NYPD dismissed Garnes on May 4, 2006.

Garnes filed a petition pursuant to CPLR Article 78 seeking a court order annulling his termination from the NYPD, an order directing his reinstatement to his former position and an order compelling the Department to provide him with a name-clearing hearing.

The question to be resolved by the court: was Garnes’ probationary period extended as a result of his being suspended for suspended for 30 days on July 9, 2005 as a result of an off-duty incident and his other absences?

Rule 5.2.8(b) of the Personnel Rules and Regulations of the City of New York (“Personnel Rules”) provide that an employee’s probationary period is automatically extended by the number of days the employee does not perform the duties of the position. Under these Rules, a probationer is deemed not to be performing his duties when he is on annual leave, sick leave, assigned to limited duty or is suspended.

The NYPD contended that Garnes was not entitled to a pre-termination hearing because he was still on probation when he was terminated.

Judge Cahn ruled that: Because the Personnel Rules specify that an employee’s probationary period is extended by any amount of time that he is not performing his duties and are clear that a probationary employee may be terminated at any point during the extended period, at the time of his suspension, Garnes was still a probationary employee.

“Additionally,” said the court, “the extended probationary period continued beyond Garnes’ suspension, when the NYPD placed him on modified and restricted duty, pending the investigation of the off-duty incident.” Although modified duty is not listed in the Personnel Rules, Judge Chan said that the Court of Appeals has determined that it acts to extend the probationary period and the probationer does not have to be given notice of such an extension, citing Garcia v Bratton, 90 NY2d 991.*

As to Garnes’ demand for a name-clearing hearing, such a hearing is required when an employee can demonstrate that there is likelihood that false, “stigmatizing” material found in his personnel file will be disseminated by the employer, foreclosing future employment opportunities. Further, the sole purpose of such a hearing is to afford the employee an opportunity to prove that the material is false and should be expunged from his or her record -- it is not grounds for reinstatement should the individual prevail.

Judge Cahn ruled that Garnes was not entitled to a name-clearing hearing because even assuming all the facts in his Petition are true, he did not meet the standard for a name-clearing hearing set by the Court of Appeals in Swinton v Safir, 93 NY2d 758. Swinton requires that the material objected to must be “stigmatizing in the constitutional sense,” and not merely charges of “individual or isolated instances of bad judgment or incompetent performance of duties.” The Appellate Division agreed.

Further, said the court, dismissing Garnes’ petition in its entirety, it must be noted that Garnes has not put forth any allegations or evidence that there is a likelihood any of this alleged stigmatizing material would be disseminated. In contrast, in Swinton, Swinton contended that the police department would disclose his personnel record to agencies with which he was seeking employment. Garnes, however, did not advance allegations that the NYPD will give his personnel file to potential employers.

* In the event an employee injured on the job is given a “light-duty assignment,” the courts have ruled that the appointing authority was not required to count the employee's “light-duty service” for probationary purposes [see Boyle v Koch, 114 AD2 78, leave to appeal denied, 68 NY2d 601]. In such situations, the employee may not claim to have performed the duties of the position to which he or she has been appointed as a probationer on the basis of his or her satisfactory performance of “light-duty.”

Judge Cahn's decision is posted on the Internet at:

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