October 28, 2019

Dismissal during a probationary period


As a general rule, an individual appointed to a position on a permanent basis attains such status on the effective date of such "permanent appointment" but does not attain tenure in the position until [1] he or she satisfactorily completes his or her maximum period of probation or [2] by estoppel, acquisition, default, or otherwise by operation of law or [3] as the result of the appointing authority's lawfully truncating the individual's maximum period of probation. In addition, tenure may be acquired in consideration of certain military service performed during a probationary period or by other lawful process.

York v McGuire, 63 NY2d 760, sets out the basic rule concerning the dismissal of probationary employees as follows: “After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.”

This limitation on summarily dismissing a probationary employee during the minimum probationary period is to provide the individual a minimum period of time to demonstrate his or her ability to satisfactorily perform the duties of the position. In contrast, should the appointing authority elect to terminate a probationary employee before he or she has completed the required minimum period of probation, the individual is entitled to administrative due process, i.e., "notice and hearing," otherwise to be accorded a "tenured employee."

Supreme Court denied the petition the filed the Plaintiff seeking to annul her former employer's [Respondent] determination terminating her probationary employment for unsatisfactory performance of her duties effective June 27, 2016 and granted Respondents' cross motion to dismiss the proceeding brought pursuant to CPLR article 78. Plaintiff appealed the Supreme Court's decision.

Affirming the lower court's ruling, the Appellate Division explained that Plaintiff's Article 78 petition was untimely as she had been terminated effective June 27, 2016 and she had until  October 27, 2016 to challenge Respondents' determination, but did not commence her Article 78 proceeding until June 16, 2017.*

Citing Kahn v New York Dept. of Education, 18 NY3d 457, the Appellate Division rejected the Petitioner's argument that the statute of limitations applicable to initiating a CPLR Article 78 action "was tolled  until the criminal charges against her were dismissed" as unavailing. Further, opined the court, Petitioner's failure to timely notify her Employer of her arrest, a violation of Employer's regulations, constituted a good faith basis for terminating her employment.

* The Appellate Division noted that the record shows that Petitioner was dismissed due to an unsatisfactory performance rating and because of her failure to immediately notify her supervisor of her arrest rather than because of the arrest itself, as she claims.

The decision is posted on the Internet at:

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The Discipline Book 
A concise guide to disciplinary actions involving public officers and employees in New York State. For more information click on http://booklocker.com/books/5215.html
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