Nominations sought for the Empire Star Public Service Award

This award recognizes exemplary employees of New York State serving in the Executive Branch.

Nominations must be submitted no later than December 15, 2017 and may be completed online.

For more information about the Empire Star Public Service Award, visit www.ny.gov/EmpireStarPublicService.


To search this database type in a word or phrase in the box in the upper left and any material containing the word or phrase will be displayed for your review.

Thursday, March 24, 2016

Probationer challenging dismissal from the position claims to have suffered extreme emotional distress

Probationer challenging dismissal from the position claims to have suffered extreme emotional distress
Petkewicz v Dutchess County Dept. of Community and Family Servs., 2016 NY Slip Op 01854 [Action I]
Petkewicz v Dutchess County Dept. of Community and Family Servs., 2016 NY Slip Op 01819 [Action II]

Susan Petkewicz filed two lawsuits against the Dutchess County Department of Community and Family Services in Supreme Court. In the first, Action I, Petkewicz asked Supreme Court to annul the termination of her employment during her probationary period. In the second,  Action II,  Petkewicz sued to recover damages, alleging the intentional infliction of extreme emotional distress arising out of the termination of her employment as a probationary employee with the Dutchess County Department of Community and Family Services.

Supreme Court dismissed both Action I and Action II. Petkewicz appealed both decisions but the Appellate Division affirmed both Supreme Court rulings.

Action I

Addressing Petkewicz’s appeal concerning the merits of her termination from her probationary employment, the Appellate Division said that Petkewicz had received three written appraisals of her performance, the last two of which rated her performance as unsatisfactory and ultimately she was terminated prior to the expiration of the 12-month probationary period.

Noting 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,"*the Appellate Division, citing Lane v City of New York, 92 AD3d 786,  said “Judicial review of the discharge of a probationary employee is limited to whether the determination was made in bad faith or for an improper or impermissible reason.” Further, said the court, the employee has "the burden of raising a material issue as to bad faith or illegal reasons, and conclusory allegations of misconduct or unlawfulness are insufficient to meet this burden."

The Appellate Division concluded that Petkewicz failed to meet her burden of raising a material issue as to bad faith or any other improper reason for her discharge, explaining that the record demonstrated her termination prior the satisfactory completion of her probationary period “had a rational basis, and that her allegations to the contrary were either conclusory or speculative in nature.”

Action II

In addressing Petkewicz’s appeal concerning the alleged “infliction of emotional distress the Appellate Division noted that in Klein v Metropolitan Child Services, Inc., 100 AD3d 708, that court held "The elements of intentional infliction of emotional distress are (1) extreme and outrageous conduct; (2) the intent to cause, or the disregard of a substantial likelihood of causing, severe emotional distress; (3) causation; and (4) severe emotional distress"

Petkewicz claimed that her supervisor, Diane Malone, “was overtly hostile, failed to provide her with meaningful mentoring and constructive feedback, and improperly prejudged her ability to perform her work duties, leading to her discharge.” Petkewicz also contended that the Department acquiesced in Malone's wrongful conduct, which was “extreme and outrageous,” and that such conduct was intended to and did cause her extreme emotional distress.

The Appellate Division, affirming the Supreme Court’s decision granting the Department’s motion to dismiss Petkewicz’s complaint, said that “Even accepting as true the allegations in the complaint regarding the defendants' conduct, and according the plaintiff the benefit of every possible favorable inference, the defendants' conduct was not so extreme or outrageous as to satisfy the first element of intentional infliction of emotional distress.”

Addressing another issue raised in Supreme Court by Petkewicz, the Appellate Division rejected Petkewicz’s argument that Supreme Court should have recuses itself, holding that “Supreme Court providently exercised its discretion in denying [Petkewicz’s] cross motion for recusal,” explaining that [1] Petkewicz failed to establish that there was a basis for recusal pursuant to Judiciary Law §14 and [2] failed to set forth any proof of bias or prejudice on the part of the Supreme Court Justice.

* Case law indicates that a probationary employee may be terminated at any time after the completion of his or her minimum period of probation and prior to his or her completion of the maximum period of probation 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 York v McGuire, 63 NY2d 760].

The decision in Action I is posted on the Internet at:

The decision in Action II is posted on the Internet at:

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/


Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.


Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that the publisher is not providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader should seek such advice from a competent professional.

Items published in NYPPL may not be used for commercial purposes without prior written permission to copy and distribute such material. Send your request via e-mail to publications@nycap.rr.com

Copyright© 1987 - 2017 by the Public Employment Law Press.


N.B. From time to time a political ad or endorsement may appear in the sidebar of this Blog. NYPPL does not have any control over such posting.