Tuesday, June 14, 2011

Termination of a probationer


Termination of a probationer
Morgan v Kerik, 305 AD2d 288 [2003], lv denied 1 NY3d 507

The New York City Department of Corrections terminated Steven Morgan, a probationary correction officer, without a hearing. Morgan sued in an effort to annul his dismissal, contending that he was terminated in bad faith.

According to the record before the court, Morgan was discharged after having twice violated the department’s sick leave rules.

On one occasion, he failed to report for a scheduled appointment with its Health Management Division while on “medical monitored return status.” The second violation occurred when Morgan neglected “to log in” with the Health Management Division’s Sick Desk upon returning to his residence while on sick leave status.

These violations, said the Appellate Division, were sufficient to demonstrate that Morgan’s termination during his probationary period was not made in bad faith. The court sustained the lower court dismissal of his petition.

It well settled that a probationer may be discharged without a hearing after completing his or her minimum probationary period. The only limitations: such a dismissal cannot be made in bad faith or in violation of a law, rule or regulation.

A probationer who is dismissed after completing his or her minimum period of probation may be entitled to a “name clearing hearing” if he or she believes that the dismissal adversely affects his or her reputation in the community or his or her future employment opportunities. Prevailing in a name clearing hearing, however, does not give the individual any right to reinstatement to his or her former position or back salary.

In addition, a collective bargaining agreement may provide a probationer with “due process rights,” or set out pre-termination procedures to be followed prior to dismissing a probationer, not mandated by the Civil Service Law.

In any event, if an appointing authority wishes to dismiss a probationer before he or she has completed the minimum period of probation set for the appointment, case law indicates that the employee is entitled to due process and may not be discharged without first being given “notice and hearing” as though he or she held a tenured appointment.

A probationer may allege that he or she was disciplined or terminated in retaliation for “whistle blowing.” In such a situation, Section 75-b of the Civil Service Law requires that the individual be given a due process hearing and if he or she prevails, reinstated to his or her former position with back salary. Such a hearing is to be provided pursuant to Section 75 or, where appropriate, pursuant to the “disciplinary grievance procedure” set out in a collective bargaining agreement. 

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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