Supreme Court granted Plaintiff's petition seeking to annul the decision of the New York City Department of Correction [DOC] to remove Plaintiff from his Assistant Deputy Warden position to which he had been provisionally appointed and restore him to his former employment status of permanent Captain.
DOC appealed and the Appellate Division "unanimously reversed the Supreme Court's ruling "on the law," denied Plaintiff's petition and dismissed Plaintiff's action brought pursuant to CPLR Article 78.
Explaining that Supreme Court should have denied Plaintiff's petition seeking to annul DOC's decision to discontinue his employment from his provisional appointment as Assistant Deputy Warden to his former position in which he held permanent appointment as a Captain, the Appellate Division noted that provisional appointments made pursuant to Civil Service Law §65 "carry no expectation nor right of tenure" and provisionally appointed incumbents are not entitled to the protections in the position afforded permanent employees pursuant to Civil Service Law §75.
Citing Mahinda v Board of Collective Bargaining, 91 AD3d 564, the Appellate Division's decision notes that an employee serving in a position as a provisional employee may "be terminated at any time, without a hearing, for almost any reason, or for no reason at all," so long as the termination does not violate any constitutional or statutory provision and is not arbitrary and capricious or done in bad faith."
In addition, the Appellate Division pointed out that Plaintiff's provisional appointment did not ripen into a permanent one after a one-year probationary period as [such] appointments are mere stop-gaps" and may be succeeded by a permanent appointment only as a result of an examination and eligibility in accordance with New York State's Civil Service Law.
The Appellate Division's decision also pointed out that the fact that Plaintiff was served with disciplinary charges and specifications and notice him of his right to a hearing "does not suggest that his appointment as assistant deputy warden was permanent as Petitioner's underlying permanent appointment to the position of captain entitled him to such charges and a hearing before being removed from his Captain's position or subjected to an other disciplinary penalty such as a loss of vacation days in contrast to Plaintiff's being subject to removal from his provisional appointment as assistant deputy warden at any time without charges preferred, a statement of reasons being given or a hearing being held.
Turning to other arguments advanced by Plaintiff, the Appellate Division found that Plaintiff's race, gender, and disability discrimination claims pursuant to State and City Human Rights Laws failed because the record contained no evidence giving rise to an inference of unlawful discrimination and Plaintiff presented no evidence that DOC's decision to restore him to his permanent position of Captain following Plaintiff's violating a number of DOC's rules and regulations was arbitrary and capricious or done in bad faith.
Click HERE to access the Appellate Division's decision posted on the Internet.