Termination of an employee during a probationary period or traineeship
Dasey v Anderson, CA1, 304 F.3d 148
Dasey v Anderson, CA1, 304 F.3d 148
What are the rules governing the dismissal of a person permanent appointed to his or her position during his or her probationary period?
Are the same principles applied in cases involving an individual who is required to satisfactorily complete a traineeship as a condition of employment?
The Dasey case provides an opportunity to consider these questions.
The individual was dismissed from his position as a probationary state trooper on the grounds that he made a material misstatement in his employment application.
According to the U.S. Circuit Court of Appeals' decision, the individual had satisfactorily completed his training at the Massachusetts State Police Academy and was enlisted as a probationary uniformed member of the Massachusetts State Police [MSP]. In the course of completing his employment application for State Trooper, the trooper stated that he did not use illegal drugs and, during the preceding five-year period, had not "used, possessed, supplied or manufactured any illegal drugs."
On September 14, 1999, while the trooper was still in probationary status, MSP's review of a videotape that had been seized by state troopers while executing a search warrant in an unrelated homicide investigation. The videotape "revealed Dasey and others apparently smoking marijuana." MSP deemed Dasey as having made a false material statement when he denied prior drug use during the application process and he was given a "general discharge" from the MSP effective close of business September 14, 1999.
Dasey sued MSP, claiming it had violated federal and state laws by failing to provide him with a pre-termination hearing. A federal district court judge granted MSP's motion for summary judgment dismissing Dasey's petition, explaining that while in probationary status Dasey had no reasonable expectation of continued employment and thus he had no constitutionally protected property interest in his job. The Circuit Court of Appeals affirmed the District Court's ruling.
Dasey also contended that he was entitled to a hearing was based on a provision in the collective bargaining agreement [CBA] negotiated by the MSP and the union. The CBA included a "bargained-for extension of the right to a pre-termination hearing" to all troopers. In response to this argument the Circuit Court of Appeals held that:
Because neither the collective bargaining agreement nor the MSP's customs and practices provided Dasey with a reasonable expectation of continued employment, he had no constitutionally protected property interest in his job. Absent such an interest, he had no right to a pre-termination hearing.
The general rule in New York State is that a permanent appointee whose employment is subject to the disciplinary provisions set out in Section 75 of the Civil Service Law is entitled to notice and hearing before he or she may be terminated for disciplinary reasons. While serving his or her probationary period, however, an individual permanently appointed to such a position may be dismissed without notice and hearing for any lawful reason after he or she has completed the minimum period of probation and prior to the end of his or her maximum period of probation.
In contrast, if the appointing authority wishes to dismiss a probationary employee before he or she has completed the minimum period of probation, the courts have held that the individual is entitled to notice and a pre-termination hearing.
Another factor might be relevant in cases of probationary employment - traineeship requirements.
In Franks v South Beach Psychiatric Center, Supreme Court, Richmond County, the interrelationship between temporary service, permanent appointment, trainee status and probation was considered.
Franks had been appointed as a Mental Hygiene Therapy Aide Trainee. This appointment involved the satisfactory completion of a one-year training period.
Because of outstanding preferred lists, Franks was initially appointed to his position as a temporary employee pending canvass of the preferred lists and he commenced his "traineeship" in the position. On January 21, 1984, some three months later, Franks was "permanently appointed" to the position, subject to the successful completion of a 52-week probationary period.
On January 2, 1985 Franks was terminated from his position without any hearing because of his alleged failure to satisfactorily complete the probationary period.
Franks claimed that his period of probation had to coincide with his training period and since he had completed his training period in October 1984, he was not a probationary employee at the time of his termination. Accordingly, he argued, he could not be discharged without notice and hearing.
The Appellate Division ruled that there was no merit to Franks' argument. Why? Because, explained the court, under the controlling probationary rules, the probationary period for a trainee is from 26 to 52 weeks or the length of the training period, which ever is longer. As Frank's permanent appointment did not become effective until January 21, 1984, (at which time he was still a trainee) his 52-week probationary period would not end until January 20, 1985. Accordingly, his termination without any hearing on January 2, 1985, was made while he was still a probationary employee and was therefore lawful.
The Franks decision supports the proposition that a traineeship and the probationary period are two different conditions of employment For example, a trainee may be serving as a provisional employee, complete the traineeship, and later take and pass the required examination and subsequently be appointed on a permanent basis.
His or her required probationary period pursuant to Section 63 of the Civil Service Law would commence upon the individual's permanent appointment to the position, notwithstanding the fact that he or she may have already successfully completed the required traineeship.
By the same token, if a traineeship extends beyond the probationary period, the individual may be subject to termination without notice and hearing if he or she fails to complete the traineeship satisfactorily.
Another case that distinguishes between probationary status and traineeship status is Sergeants v Brooklyn Developmental Center, 56 NY2d 628.
In Sergeants, a number of probationary employees were terminated at the end of their respective probationary periods. They sued for reinstatement contending that they had not been provided with the 200 hours of training required by department regulations.
Dismissing their appeal, the Court of Appeals first affirmed the principle that "... the employment of a probationary employee may be terminated at the end of the probationary term without a hearing and without specific reasons being stated."
The court then rejected Sergeants' "traineeship argument," commenting that the mandated training involved would not have addressed the particular demonstrations of poor performance leading to their respective terminations. The evidence in the record, said the court, indicated that the poor performance was related "to fitness for the position" rather than job performance elements that the training provided for by regulation could remedy.
Among the examples of poor performance cited by the court were sleeping on the job, habitual lateness, unscheduled absence, failure to perform overtime assignments and similar poor work habits.
The decision also indicated that the only issue for review was whether the appointing officer acted in good faith in terminating the employee.
The lesson here: Satisfactory completion of probation and satisfactory completion of a traineeship are two different requirements that must be met by the appointee and he or she must satisfy both in order for a permanent appointee to be continued in service.
Where the successful completion of a traineeship is required in order to be continued in service, however, that condition should be communicated to the individual in the examination announcement or in the offer of his or her appointment to the position.
As to the authority for requiring the completion of a traineeship, the rules of the State Civil Service Commission concerning traineeships are set out in 4 NYCRR 4.3 and provide as follows:
Section 4.3 Trainee appointments and promotions. The Civil Service Department may require that permanent appointments or promotions to designated positions shall be conditioned upon the satisfactory completion of a term of service as a trainee in such a position or in an appropriate, lower, training title or the completion of specified training or academic courses, or both. The period of such term of training service shall be prescribed by the department. Upon the satisfactory completion of such training term, and of specified courses if required, an appointee shall be entitled to full permanent status in the position for which appointment was made. Any appointment hereunder shall be subject to such probationary period as is prescribed in [Section 4.5 of] these rules. Also, the employment of such person may be discontinued at the end of the term of training service if his conduct, capacity or fitness is not satisfactory, or at any time if he fails to pursue or continue satisfactorily such training or academic courses as may be required.
Many municipal civil service commissions have adopted similar rules concerning traineeships.