October 31, 2017

Dismissing an employee before he or she has completed his or her probationary period

Dismissing an employee before he or she has completed his or her probationary period 
153 AD3d 1201, Appellate Division, First Department

In York v McGuire, 63 NY2d 760, the Court of Appeals indicated that "it is well settled that a probationary employee may be discharged without a hearing and without a statement of reasons" where the decision is made in good faith and not for a constitutionally impermissible purpose or reason.   

With respect to employees in the classified service of a public employer, this general statement has been clarified and while a probationer in the classified service can be discharge at any time after the completion of his or her minimum period of probation and before the end of the maximum period of probation, the courts have further held that in the event the appointing authority decides to terminate a probationary appointee during his or her minimum probationary period, the individual is entitled to “notice and hearing” in the nature of a disciplinary proceeding as a condition precedent to such termination.*

The rule is somewhat different with respect public employees in the unclassified service.**

Here an educator [Petitioner] serving her probationary period, challenged the New York City Department of Education's decision discontinue her employment as a probationary teacher, a position in the unclassified service.  Petitioner challenged the Department's action, contending that it erred in concluding that her actions constituted prohibited corporal punishment. 

Supreme Court agreed and annulled the Department's action. The Department then appealed the Supreme Court's ruling. The Appellate Division, however, unanimously reversed the lower court's decision "on the law" and reinstated the Department's decision to dismiss Petitioner from her from her position.

Citing Mendez v New York City Dept. of Education, 28 NY3d 993, the Appellate Division explained that Petitioner failed to show that the Department's decision to discontinue her employment as a probationary teacher was done in bad faith, for a constitutionally impermissible purpose, or in violation of the law.

Further, said the court, Petitioner's claim that the Department had erred in concluding that Petitioner had subjected the student  to "prohibited corporal punishment" was insufficient to establish that the employer reached its conclusion in bad faith or for an impermissible reason. 

* See McKee v Jackson, 152 AD2d 54, holding that a probationer is entitled to a minimum period of time to demonstrate his or her ability to successfully perform the duties of the position, and Gray v Bronx Developmental Center, 65 NY2d 904, holding that a probationer may be dismissed without notice and hearing after completing his or her minimum period of probation and prior to the expiration of his or her maximum period of probation. 

**§3012(a) of the Education Law provides that the services of a probationary teacher may be discontinued at any time during the teacher's probationary period, which is typically set by law. Absent a provision in a collective bargaining agreement to the contrary, such a dismissal will not be overturned unless the teacher can demonstrate that the appointing authority's action was for a constitutionally impermissible reason or purpose.

The decision is posted on the Internet at: 


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