April 26, 2019

A probationary educator may be summarily terminated during his or her probationary period provided it is not unlawful or made in bad faith

When the New York City Department of Education [DOE] terminated an individual [Educator] serving in a civil service position in the Unclassified Service* during his probationary period, Educator file a petition pursuant to CPLR Article 78 seeking a court order annulling his dismissal from his position and directing DOE to reinstate him to his former position.

Supreme Court dismissed Educator's petition and the Appellate Division unanimously affirmed the lower court's ruling, explaining that, as the Court of Appeals held in Duncan v Kelly, 9 NY3d 1024, that Duncan, a probationary police officer, could be terminated without "notice and hearing" for any reason or no reason at all, as long as the dismissal was not unlawful or made in bad faith.**

Educator, said the Appellate Division, "alleges no facts to show that his termination was for an illegal or an improper reason" and his characterization of his termination as having been made in bad faith was "purely speculative." In contrast, the court observed that the record indicated that Educator was terminated for misconduct and for violating certain relevant regulations.  

Addressing Educator's contention that DOE's Office of Special Investigations "failed to interview one particular student" and failed to provide him with certain "investigatory materials," the Appellate Division opined that those "alleged irregularities in the process ... without more, do not constitute bad faith or a deprivation of a substantial right."

* See §35 of the Civil Service Law. §2573 of the Education Law, addressing the appointment of assistant, district or other superintendents, teachers and certain other employees, provides, in pertinent part, that "[t]he service of a person appointed to any of such positions may be discontinued at any time during [his or her] probationary period, on the recommendation of the superintendent of schools, by a majority vote of the board of education."

** "Police officer" is a position in the Classified Service of the Civil Service. Case law indicates that a probationary employee serving a position in the Classified Service may be summarily terminated at any time after completing his or her minimum period of probation prior to completing his or her maximum period of probation without notice and hearing unless otherwise provided by the terms of 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 his or her 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. 

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2019/2019_03141.htm