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October 25, 2022

Seeking a court order to annul discontinuation of educator's employment during the probationary period

Probationary educator's [Probationer] Article 78 challenging to the Department of Education of the City of New York [DOE] decision to discontinue her employment prior to the end of her probationary employment was dismissed  by Supreme Court. Probationer appealed but the Appellate Division affirmed the lower court's decision. The court explained that Probationer "failed to show that her termination was for a constitutionally impermissible purpose, in violation of a statute, or done in bad faith."

In contrast, opined the Appellate Division, there was ample evidence in the record indicated that the DOE's decision to discontinue Probationer's employment "was made in good faith, as her yearly Measures of Teacher Practice scores reflected a lack of consistent improvement, despite receiving significant professional support."

The court also rejected Probationer's argument that DOE's had failed to obtain her signature on every written assessment made of Probationer's performance in the course of the review process. In the words of the Appellate Division, the failure of DOE to do so simply "constitutes a mere deficiency in the review process that does not require annulment of the decision to discontinue her employment".

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. 

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."

Click HEREto access the text of the Appellate Division's ruling.

 

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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: publications@nycap.rr.com