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February 25, 2023

Summarily terminating an individual serving a "disciplinary probation period"

In Ryan v City of New York, 2023 NY Slip Op 00966, decided on February 21, 2023, the Appellate Division's decision states that an individual in "dismissal probation" status may be terminated without a hearing for any reason, or no reason at all, absent a showing that the individual was dismissed in bad faith or for an improper or impermissible reason. At the time the charges resulting in Ryan's termination were brought, Ryan was on "dismissal probation" pursuant to a negotiated discipline settlement agreement which resolved earlier disciplinary charges brought against him.

Other decisions addressing summarily dismissing an individual serving a period of "disciplinary probation" include:

Taylor v Cass, 122 A.D.2d 885: A County employee won reinstatement with full back salary and contract benefits because the court determined that he was improperly dismissed while serving a disciplinary probation period. The terms of Taylor’s disciplinary probation provided that he could be terminated without any hearing if, in the opinion of his superior, his job performance was “adversely affected” by his “intoxication on the job” at any time during his disciplinary probationary period. Taylor was subsequently terminated without a hearing for “failing to give a fair day’s work” and “sleeping during scheduled working hours”; and

Wright v City of New York, 192 A.D.2d 411: The Appellate Division ruled that an employee who had agreed to a disciplinary probation in settlement of disciplinary charges filed against him that provided that his probation status would be the same as any other probationary employee was not entitled to a pre-termination hearing when he was dismissed because of subsequent incidents. In other words, under the terms of relevant disciplinary probation the individual was to be treated as a "new employee" and he could be summarily terminated for any lawful reason.

In York v McGuire, 63 NY2d 760, New York State's Court of Appeals set out the basic rule concerning the dismissal of probationary employees upon their appointment to a position in the Classified Service 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 reflects the view that the individual should be provided with 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 dismiss such a probationary employee before he or she has completed the individual's required minimum period of probation, the individual is entitled to "notice and hearing" otherwise accorded a "tenured employee." 

Another element to consider: New York State's Military Law §243(9) provides, in pertinent part, in the event a probationary employee deployed on military duty before the expiration of his or her maximum period of the individual's probationary, the time he or she is absent on such military duty is to be credited as satisfactory service during such probationary period.

Click HERE to access the Ryan decision posted on the Internet.

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New York Public Personnel Law Blog Editor 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.
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