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February 26, 2020

Procedures concerning serving a second probationary period as an alternative to termination from the position


A Teaching and Research Center Nurse [Plaintiff] was permanently appointed to his position subject to the satisfactory completion of a one year probationary period. Plaintiff's initial period of probationary "was extended for six months" but he was ultimately terminated from his employment. 

Plaintiff brought a proceeding pursuant to CPLR Article 78 challenging this action by the appointing authority contending: 

[a] the six-month extension of his initial probationary term was not authorized under 4 NYCRR 4.5(b)(5)(ii) and thus he had attained tenure in his position and thus 

[b] he was entitled to certain protections pursuant to §75 of the Civil Service Law which were not provided to him.

Supreme Court denied Plaintiff's petition and dismissed the proceeding whereupon Plaintiff appealed the Supreme Court's ruling to the Appellate Division.  The Appellate Division affirmed the lower court's ruling, explaining, as relevant in this action:

1. The appointing authority was authorized to impose an initial probationary period of no more than 52 weeks, citing 4 NYCRR 4.5[b][2]).

2. 4 NYCRR 4.5[b][5][ii] provides that "[i]f the conduct or performance of a probationer is not satisfactory, his or her employment may be terminated at any time after eight weeks and before completion of the maximum period of service" but the he appointing officer may, as a matter of discretion, offer the probationer an opportunity "to serve a second probationary term . . . in a different assignment," which second probationary term may not be "less than 12 nor more than 26 weeks."

The Appellate Division then noted that the Court of Appeals in its decision in Palmer v Merges, 37 NY2d 177, observed that the rule authorizing a second probationary term, "if properly executed, is largely beneficial to the employee" and "[i]n determining whether another probationary term is necessary as the only alternative to dismissal, the administrator should be given latitude in defining a different assignment for purposes of fresh evaluation."

In this action, said the Appellate Division, the record demonstrates that the Plaintiff's initial probationary period was extended by "a second probationary term . . . in a different assignment" and Plaintiff failed to demonstrate that he did not actually serve the second probationary term in a "different assignment" or that the appointing authority's definition of that term was contrary to law.

Thus, opined the Appellate Division, Plaintiff's termination occurred while he was "still a probationary employee" and a probation employee who has completed the minimum period of probation may 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."

As  Plaintiff failed to demonstrate that he was terminated in bad faith, for a constitutionally impermissible or illegal purpose, or in violation of statutory or decisional law, the Appellate Division said that "we agree with the Supreme Court's determination denying the petition and dismissing the proceeding."

The decision is posted on the Internet at:

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