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August 08, 2014

Discontinuing the services of a probationary employee


Discontinuing the services of a probationary employee
2014 NY Slip Op 05440, Appellate Division, Second Department

A New York City Department of Education probationary employee [PE] serving a position in the Unclassified Service was terminated during her probationary period. PE sued and Supreme Court directed the Department not discontinue PE’s employment as a probationer but, rather, to take some alternative action in that regard.

The Department appealed and the Appellate Division reversed the lower court’s ruling “on the law and the facts.”

The Appellate Division explained that contrary to PE’s claim, and Supreme Court’s determination, the Department “merely discontinued [PE’s] probationary service” and did not terminate her employment with the New York City Department of Education. Presumably PE had been on leave from another position with the Department and was reinstated to her former position when her services as a probationer were discontinued..

Finding that there was “a valid basis for the [Department’s] determination that the [PE’s] probationary service was unsatisfactory,” the Appellate Division ruled that “Supreme Court erred by, in effect, directing the [Department] to take some alternative ameliorative measure other than the discontinuation of her probationary service.

In contrast, were PE serving as a probationary employee but was not on leave from a position in which she had tenure, she would have been terminated from her employment with the Department as a result of her having satisfactorily completing her probationary period.

For example, with respect to employees in the Classified Service, Civil Service Law §63, in pertinent part, provides “When probationary service is required upon promotion, the position formerly held by the person promoted shall be held open for him [or her] and shall not be filled, except on a temporary basis, pending completion of his [or her] probationary term.
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