March 02, 2015

Terminating the services of a probationary employee

A probationary employee is not entitled to a statement of the reason for his or her termination of his or her probationary employment
Johnson v County of Orange, 2016 NY Slip Op 02821, Appellate Division, Second Department

Supreme Court granted the Orange County Sheriff’s motion to dismiss Janine Johnson Article 78 petition challenging her termination from her position while she was still serving her probationary period “for failure to state a cause of action.” Johnson filed a “notice of appeal” that the Appellate Division deemed to be an application for leave to appeal, granted the “application” and then affirmed the Supreme Court’s ruling with costs.

The Appellate Division explained that a probationary employee “may be terminated without a hearing and without a statement of reasons in the absence of a demonstration that the termination was in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law."

Case law, however, indicates that a probationary employee may be terminated at any time after the completing his or her minimum period of probation prior to completing his or her maximum period of probation [see Gray v Bronx Developmental Center, 65 NY2d 904] unless otherwise provided by a collective bargaining agreement negotiated pursuant to the Taylor Law [Civil Service Law Article 14]. In contrast, if the probationer has not yet completed his or her minimum period probation, he or she is entitled to “notice and hearing” as a condition precedent to termination on the theory that the individual is entitled to a minimum period of service to demonstrate his or her ability to satisfactorily perform the duties of the position [see McKee v. Jackson, 152 AD2d 54]. 

It should be noted that Rules promulgated by a civil service commission may set out procedures and standards that control the termination of a probationary employee. See, for example, 4 NYCRR 4.5(b) of the Rules of the State Civil Service Commission. Many local civil service commissions have adopted similar rules. 
In Scherbyn v Wayne-Finger Lakes BOCES, 77 NY2d 753, the Court of Appeals held that where the rules of a civil service commission specifically set out the reasons for which a probationary employee may be dismissed, the appointing authority's broad discretion with respect to terminating the services of probationers is subject to the limitations imposed by those standards. Further, 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].

In this instance the Appellate Division found that the allegations in Johnson’s petition were insufficient to state a cause of action that her employment was terminated “in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law.”

The Appellate Division also held that:

1. Johnson’s claim that the Orange County Sheriff's Office tolerated other relationships such as the one in which she was involved and did not have a formal anti-fraternization policy were inadequate to state a cause of action alleging that she was terminated in bad faith; and

2. Johnson was not entitled to a statement of the reason for the termination of her probationary employment, citing York v McGuire, 63 NY2d 760.

Accordingly, said the court, Supreme Court properly granted the appointing authority’s motion to dismiss Johnson’s petition.

The decision is posted on the Internet at: