January 13, 2021

Court finds a probationary employee terminated without explanation presented evidence sufficient to raise a triable issue of fact concerning his alleged deficient job performance

A probationary police officer [Plaintiff] terminated by the appointing authority [Town] filed a petition pursuant to CPLR Article 78 challenging his termination. Plaintiff contended that he performed his duties as a law enforcement officer "in an exemplary manner," as reflected by the numerous community policing awards for which he had been nominated during his 18-month probationary period. Plaintiff alleged that his employment "was nevertheless terminated by the Town Board four days before the expiration of his probationary period, without explanation."*

In the course of the proceeding Plaintiff filed a motion seeking to compel the disclosure of certain "in-car video recordings." The Town opposed the motion, calling it "a fishing expedition" and argued that it was unnecessary to disclose these videos because its Chief of Police had reviewed them and "determined that the vehicular stops were not being properly made."

The Supreme Court directed the Town to produce a copy of the videotapes that Plaintiff  had requested for his in camera review.** Supreme Court, after the in camera review,  denied Plaintiff's motion to compel the disclosure of the video recordings. The court said that the videos were not "relevant" and subsequently held that the record supported the Town's assertion that Plaintiff's employment had been terminated due to poor performance. 

Supreme Court also held that Plaintiff failed to sustain his burden of raising a triable issue of fact as to whether his employment was terminated in bad faith and summarily dismissed his Article 78 petition.

Plaintiff appealed the Supreme Court's decision. The Appellate Division, reversing the lower court's ruling explained:

1. "As relevant here, a probationary employee may "be dismissed for almost any reason, or for no reason at all." This broad discretion is not unlimited, however, and "[t]he employment of a probationary employee may not be terminated "in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law."

2. In a judicial review a determination to terminate a probationary employee's employment, "[t]he burden of presenting legal and competent evidence to show a deprivation of petitioner's rights or bad faith or other arbitrary action ... must be borne by petitioner."

3. In the event the court finds that the record presents triable issues of fact as to whether the employer was acting in good faith in terminating the probationary employee's employment, a trial must be held.

The Appellate Division, noting that the Town made the positive assertion in the course of the Article 78 action that Plaintiff's employment had been terminated due to his poor performance as a police officer, observed that the Town "did not present any contemporaneous documents or other evidence" to substantiate its claim that Plaintiff had performed his duties in a substandard manner.

Further, in a verified reply to the Town's "new" assertion that Plaintiff was dismissed "for poor performance," Plaintiff said that the Chief of Police "had never advised him that his arrests were improper or illegal during the probationary period" but that the Chief had told him that "the Town Board was unhappy" with a certain arrest Plaintiff had made.

With respect to the Town's failure to produce "any contemporaneous records to support its assertion that [Plaintiff] had performed poorly as a police officer," the Appellate Division's decision notes that "the evidence in the record showed that [Plaintiff] had been given at least nine tours of overtime duty, and had been honored at a regional awards ceremony and received a commendation for his performance as a law enforcement officer during his 18-month probationary term."

The decision also noted that the single written evaluation of Plaintiff's performance signed by the Chief of Police about two months before the termination of Plaintiff stated that Plaintiff's did not need improvement in any area, and that his overall performance was "above standards." Significantly, said the court, the evaluation specifically stated that Plaintiff "[m]akes good arrests," and that he had "grasped the job well" and was "an asset to the department."

Citing Higgins v La Paglia, 281 AD2d 679, the Appellate Division concluded that on this record, Plaintiff's "evidentiary submissions were sufficient to raise a triable issue of fact as to whether his job performance was satisfactory and whether the Town's proffered explanation of poor performance was pretextual."

Under the circumstances, said the Appellate Division, Supreme Court improvidently exercised its discretion in denying Plaintiff's motion to the extent that he sought disclosure of the video recordings that are referenced in the Town's answer and remanded the matter to the lower court for "an immediate trial."

* In York v McGuire, 63 NY2d 760, the Court of Appeals held that “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.”

** A "private review" of material sought by a party by the court, typically taking place in the private chambers of the judge, with the press and public excluded.

The decision is posted on the Internet at https://law.justia.com/cases/new-york/appellate-division-second-department/2020/2017-11383.html

 

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