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April 09, 2018

Some due process consideration in the event an employee is terminated from his or her probationary period


Some due process consideration in the event an employee is terminated from his or her probationary period
Marshall v Simon, 2018 NY Slip Op 02327, Appellate Division, Second Department

Terminated from his probationary employment as a correction officer, Evan Marshall, [Petitioner] challenged his dismissal, alleging, among other things, that his probationary period had ended prior to his termination and that he was therefore entitled to certain protections under the Civil Service Law as a "tenured" employee. In effect, Petitioner was contending that he had attained tenure by "tenure by estoppel,* sometimes referred to as "tenure by acquiescence" by operation of law.* 

Supreme Court denied Petitioner's claims and dismissed the proceeding. The Appellate Division affirmed, explaining "A probationary employee may 'be dismissed for almost any reason, or for no reason at all' [and] 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."

It appears that Petitioner's probationary term was extended by the number of days that Petitioner had not perform the duties of the position due to absence from work. Citing Tomlinson v Ward, 110 AD2d 537, affirmed 66 NY2d 771, the Appellate Division observed that a probationary period "... is designed to enable the appointing officer to ascertain the fitness of the probationer and to give the probationer a reasonable opportunity to demonstrate the ability to perform the duties of the office [and] [t]he period should be measured by the number of days a probationer is actually working at the job".

For example, 4 NYCRR 4.5, which applies to Classified Service employees of the State as the employer, requires such an extension although it also permits an appointing authority to exercise discretion and consider a portion of such absence as probationary service. Although an appointing authority may be permitted to count part of such absences as time served in the probationary period, this is discretionary. In contrast, the State’s Military Law provides that a probationer who enters military service during his or her probationary period will be deemed to have satisfactorily completed his or her probationary period if honorably discharged from the service and timely returns to his or her position.

Finding that Petitioner's probationary period was properly extended for 25 days to reflect his absences from work, the court ruled that Petitioner's "termination therefore occurred while he was a probationary employee." Noting, further, that Petitioner did not demonstrate, or even adequately allege, that he was terminated in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law. the Appellate Division held that Supreme Court properly denied Marshall's petition and dismissed the proceeding.

* As the Court of Appeals ruled in McManus v Hempstead Union Free School District, 87 NY2d 183, a probationary employee may attain tenure by estoppel [sometimes referred to as “tenure by acquiescence”] when the appointing authority accepts the continued services of the individual, but fails to take the action required by law, rule or regulation to either grant or deny the individual tenure prior to the expiration of the employee’s maximum period of probation. One significant exception to this rule, in Mendez v Valenti, 101 AD2d 612, the Appellate Division held that in the event a probationary employee is continued on the payroll for a brief period after the expiration of his or her probationary period for administrative convenience, such as to coincide with the end of a payroll period, such continuation on the payroll does not automatically result in the individual attaining tenure by estoppel.

** After completing his or her minimum period of probation, a probationary employees may be discharged at any time without charges preferred, a statement of reasons given or a hearing held. A probationary employee so terminated, however, may be entitled to a "name-clearing" hearing where the basis for dismissal is of a "stigmatizing nature" as the individual so terminated is entitled to some due process to permit him or her to clear his or her name [see Matter of Stanziale, 55 NY2d 735]. In any event, absent a violation of a constitutional or statutory provision of law, reinstatement to his or her former position is not a remedy available to the individual should he or she prevail at his or her name-clearing hearing.

The decision is posted on the Internet at:

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