Termination of a probationary employee during the individual's probationary period

The New York City Department of Correction (DOC) terminated an employee from her non-competitive class position without notice and hearing. DOC subsequently reinstated the employee but rejected her request for backpay, whereupon the employee sued DOC for the back pay she claimed was due her.

Although the parties disputed whether Petitioner had completed her probationary period by the date of her discharge, the Appellate Division said it need not resolve that dispute because, even if Petitioner had completed her probationary period, she would not have been entitled to a pretermination hearing under the Civil Service Law, which affords tenure protections to employees serving in non-competitive class titles only once they have completed at least five years of continuous service.

Citing Civil Service Law §77, the Appellate Division held that "Because petitioner was not discharged in violation of the Civil Service Law, there is no basis to order her reinstated with backpay." 

With respect to termination of a probationary employee prior end of his or her maximum period of probation in York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rules 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”. 

As a general rule, a "permanent" appointment to a position in the classified service takes effect on the date of the individual's appointment subject to the individual's successful completion of their required probationary but the individual does not attain tenure in the position until:

[a] he or she satisfactorily completes his or her maximum period of probation or 

[b] the appointing authority lawfully truncated the individual's maximum period of probation or 

[c] the individual is found to have attained tenure by estoppel. 

Further, in the event a probationer is absent due to “ordered military service,” his or her military service is to be credited “as satisfactory service” for the purpose of completing his or her probationary period if he or she is honorably discharged or released from active duty*. This means that an individual may satisfy his or her probationary period requirements while on serving ordered military duty. 

If the individual is appointed or promoted to a position while on military duty, his or her military service is also to be counted as “satisfactory service” for the purposes of probation upon honorable discharge or release from active duty.

* See §§242 and 243 of the New York State Military Law.

Click HERE to access the Appellate Division's decision in the instant matter posted on the Internet.