March 15, 2018

Terminating a "long-time" provisional employee

Terminating a "long-time" provisional employee
Pena-Barrero v. City of New York, USCA Second Circuit, Docket #17-1286

Luis Pena-Barrero was employed in a variety of positions by the City of New York between 1994 and 2012. Although Pena-Barrero was eligible to take the appropriate required civil service exam on multiple occasions during his time as an employee of the City, he never did so and therefore remained a “pure provisional” employee.

§65(1) of the New York State Civil Service Law provides that "[n]o provisional appointment shall continue for a period in excess of nine months," and "in no case shall the employment of any such provisional appointee be continued longer than four months following the establishment of [an] eligible list" of candidates for the position."*

In 2008 Pena-Barrero's then employer, Department of Citywide Administrative Services [DCAS], implemented a plan to come into substantial compliance with §65 and issued a Notice of Examination in 2009 for the position provisionally held by Pena-Barrero, with the examination to take place in February 2010. Pena-Barrero did not apply to take the February 2010 examination. Subsequently an eligible list for the position in which Pena-Barrero was then serving was promulgated but, nevertheless, he remained provisionally employed by DCAS "long after the civil service list for his position was established"

On or about October 5, 2012 Pena-Barrero was informed that he would be terminated from his position, whereupon he initiated the CPLR Article 78 action contending that he was "impermissibly discriminated against, retaliated against, and subject to a hostile work environment, in violation of the federal Civil Rights Act and Family and Medical Leave Act [FMLA], the New York State Human Rights Law [NYSHRL], and the New York City Human Rights Law [NYCHRL]"

The Circuit Court of Appeals held that Pena-Barrero’s claims for race, national origin, and disability discrimination suffer from fundamental flaws in light of his failure to pass the civil service examination for his position. Accordingly, he could not demonstrate a prima facie case of discrimination because he was unable to show that he was qualified for appointment to the position. Further, opined the court, "Even assuming arguendo that Pena-Barrero could establish prima facie discrimination," his discrimination claims would nevertheless fail because he cannot establish that DCAS's proffered reason for his termination “is in fact pretext for unlawful discrimination.”

The court held that the record is clear that Pena-Barrero was terminated by action taken by DCAS’s Provisional Reduction Analysis Team and "there is simply no evidence" that his race, national origin, or disability played any role in his termination. In the words of the Circuit Court of Appeals, "As we have repeatedly explained ... there is no evidence that Pena-Barrero was terminated for any reason other than the fact that he was not qualified to remain employed by DCAS under the New York Civil Service Law.

* It is well settled that a provisional or temporary appointment cannot mature into a permanent one unless the incumbent satisfies the requirements set out in the Civil Service Law for permanent appointment to the position. See, for example, Matter of Gaiser, 15 AD2d 793; Russell v Hodges, CA2, 470 F2d 212. In contrast, decisions addressing the continuation in service of a provisional employee who becomes eligible for permanent appointment to the position include Matter of Roulette, 40 AD2d 611, Haynes v Chautauqua County, 55 NY2d 814, Becker v New York State Civil Service Commission, 61 NY2d 252 and La Sota v Green, 53 NY2d 491.

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