Terminating a probationer while he or she is on a leave of absence

Terminating a probationer while he or she is on a leave of absence
Johnston v City of New York, 281 AD2d 322

Elaine Johnston, a probationary employee, challenged her termination from her position as a Caseworker with the New York City Administration for Children's Services [ACS].

According to the decision, Johnston suffered a job-related injury while she was serving as a provisional Caseworker.

ACS permanently appointed Johnston to the position of Caseworker while she was on leave. Her permanent appointment was subject to her satisfactory completion of a one-year probationary period. While still on leave, Johnston was terminated from her position before completing her probationary period.

The Appellate Division upheld Johnston's termination, rejecting her allegation that she was terminated in retaliation for a complaint she had made while a provisional about her supervisors' communication skills.

The court said that there was “ample evidence of [Johnston's] unacceptable work performance as a provisional that her supervisors began to document before she made her complaint about them.”

However, there are some troublesome aspects to this case.

According to the ruling, Johnston never actually performed any services as a Caseworker while a probationer -- she was absent on an authorized leave prior to and following her permanent appointment. ACS, said the court, relied on her “performance as a provisional in making its decision to terminate her permanent appointment.

Typically, a probationary period is extended if the individual is absent during his or her probationary period.

As to actually being evaluated on his or her performance while a probationer in contrast to his or her performance while serving in some other capacity -- i.e, as a temporary or provisional employee -- in Garcia v Bratton, 90 N.Y.2d 991, the court ruled that a probationary employee may not be dismissed until he or she has been given an opportunity to demonstrate his or her capacity to satisfactorily perform the duties of the position.

Finally, in York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule concerning the dismissal of probationary employees as follows:

After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or made in bad faith.

The York decision is viewed as authority for requiring that a probationary employee be given administrative due process in the form of providing the employee with “notice and hearing” if the appointing authority decides to terminate the individual during his or her minimum period of probation.