Monday, October 27, 2014

A department policy does not trump the probationary period established by law or by a rule or regulations having the force and effect of law


A department policy does not trump the probationary period established by law or by a rule or regulations having the force and effect of law
Yan Ping Xu v New York City Dept. of Health & Mental Hygiene, 2014 NY Slip Op 07261, Appellate Division, First Department

One of the issues in this Article 78 action concerned the termination of Yan Ping Xu [YPX], a New York City employee serving as a "City Research Scientist I," a position in the noncompetitive class .

Under the controlling Personnel Rules and Regulations of the City of New York, persons appointed to a position in the noncompetitive class are subject to a probationary period of six months unless another period is set by the Commissioner of the Department of Citywide Administrative Services (DCAS).* 

YPX was terminated from her position without notice and hearing after this six-month probationary period had passed. HMH contended that YPX was subject to a probationary period of one year in accordance with the provisions of the governing collective bargaining agreement (CBA) and HMH’s own probationary termination policy.

The Appellate Division said that there was “no evidence that, during the period of [YPX’s] employment, the Commissioner of DCAS had altered the default six-month probationary period for the City Research Scientist I position.” Indeed, said the court, “the record contains a letter from DCAS expressly confirming that, ‘during the period June 30, 2007 to March 16, 2008, no . . . DCAS document existed’ that "provided for a civil service probationary period different than the one specified in [Personnel Rule and Regulation] 5.2.1."

As to HMH’s reliance on the provisions of the CBA with respect to YPX’s probationary period, the court pointed out that “[e]ven if the CBA could trump Personnel Rule 5.2.1(b), the CBA provision relied on by [HMH] does not in any way set forth a probationary period for noncompetitive employees.”**

Nor, said the Appellate Division, does HMH’s termination policy, which purport to provide for a probationary period of one year for City Research Scientists, serve to change the probationary period for City Research Scientist I positions as only the Commissioner of DCAS, and not the head of any other agency, may set probationary periods for employees appointed to positions in the noncompetitive class at something other than the period set by the Commissioner of DCAS.***

Accordingly, the court said it found YPX was subject to a probationary term of six months and upon the expiration of that six-month period she became a “tenured employee.”****

The Appellate Division remanded the matter to HMH “for further consideration of [YPX’s] claim of unlawful termination.”

* Such personnel regulations have the force and effect of law.

** See, for example, Gordon v Town of Queensbury, 256 AD2d 784. In Gordon the Appellate Division held that the probationary rules set out in a collective bargaining agreement trumped the probationary rules set in the regulations of the responsible civil service commission.

*** The court noted that HMH did not cite any provision of law that gives it the authority to establish a different probationary period for persons appointed to the title of City Research Scientist I. a position in the noncompetitive class of the classified service as defined in the Civil Service Law..

**** In its decision the court said that YPX became a “permanent” employee. However, an employee serving a probationary period is a permanent employee and attains tenure in the title upon his or her successful completion of the probationary period. Civil Service Law §63.1, in pertinent part, provides that a “… municipal civil service commissions may provide, by rule, for probationary service … upon appointment to positions in the exempt, non-competitive or labor classes….” and “shall, subject to the provisions of this section, provide by rule for the conditions and extent of probationary service” [see Civil Service Law §63.2].

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_07261.htm
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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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