Probationer terminated for failure to correct a report

Probationer terminated for failure to correct a report
Morgan v Safir, 281 A.D.2d 376

The failure to correct his incorrect report resulted in the termination of New York City probationary police officer Lealand A. Morgan.

Morgan challenged his dismissal but he was unable to persuade the court to direct his reinstatement to his former position.

According to the decision, Morgan conceded that he failed to correct his report concerning the loss of his shield and identification badge after learning that it was incorrect.

This, said the Appellate Division, “indicates legitimate reasons for questioning [Morgan's] honesty and candor. In view of this, Morgan failed to show that his termination was in bad faith.”

Reinstatement from a preferred list

Reinstatement from a preferred list
Harvey v State of New York, 281 A.D.2d 846

On July 12, 1995, Ronald S. Harvey was laid off from his civil service position with the Department of Environmental Conservation. His name was placed on preferred lists and reemployment rosters for certification for appointment to comparable titles by the Department of Civil Service [DCS].

A clerical error resulted in Harvey's name being removed from the preferred lists and reemployment rosters on August 25, 1995. DCS corrected the error and restored Harvey's name to the appropriate lists October 31, 1995.

However, on November 1 and 2, 1995, other State agencies made permanent appointments to two Salary Grade 18 positions for which Harvey would have had seniority if his name had remained on the lists. Ultimately Harvey was reinstated to a Salary Grade 23 in the Division of Budget effective September 30, 1996.

Harvey sued, seeking compensation for the damages he suffered as a result of the removal of his name from the lists.

As the State stipulated to the fact that Harvey's name was erroneously removed from the lists, the primary issue is the scope and calculation of damages resulting from that error. Harvey, said the Appellate Division, has the burden of proving lost wages with reasonable certainty.

As Harvey proved with reasonable certainty that the persons hired on November 1 and 2, 1995 would not have received their jobs if his name had been on the lists, he was entitled to compensation for the period November 1, 1995 to September 30, 1996, the date he was actually rehired, based on employment in a Salary Grade 18 position.

Harvey's damages: The salary of a Grade 18 employee for that period plus lost retirement contributions, his expenses for health insurance coverage and 11 months of service credit in the NYS Employees' Retirement System. After making an adjustment for unemployment insurance benefits and “outside earnings,” the Appellate Division concluded that Harvey was entitled to $37,690 as damages.

Another aspect of the case concerned Harvey's demand for disclosure of vacancy and reemployment records. The court said that such records would not be of any relevant assistance to him. Why? Because, said the court, “at best, they would have revealed additional job openings for which he would have been qualified,” but this may be misleading as “the hiring agencies would not have been required to fill” any such position.

Tenure by estoppel

Tenure by estoppel
Wamsley v East Ramapo Central School District, 281 AD2d 633

If a school board neglects to take timely action to discontinue the services of a probationary teacher or administrator, the individual will attain what is termed “tenure by estoppel.” The Court of Appeals addressed the issue of an individual obtaining “tenure by estoppel” in the Sewanhaka case [Gould v Sewanhaka Central High School District, 81 NY2d 446].

However, “tenure by estoppel” is not limited to individuals in the unclassified service such as teachers and school administrators -- employees in the classified service also may attain tenure by estoppel as the Wamsley case demonstrates.

On October 5, 1998, East Ramapo appointed George Wamsley to the position of school bus driver, a classified service position in the noncompetitive class. Wamsley's appointment was subject to his satisfactorily completing a 26-week probationary period.

On August 18, 1999 the school district's personnel officer wrote to Wamsley advising him that he was to be dismissed because his service during his probationary period had been deemed unsatisfactory by his supervisors. Wamsley was terminated from his position effective August 25, 1999.

Wamsley sued, contending that his probationary term had expired before he was discharged and he held a tenured appointment. He also claimed that he was entitled to a “pretermination hearing” because he was an “exempt volunteer firefighter.”

The Appellate Division agreed with Wamsley's argument that he was no longer a probationary employee at the time he was discharged. In the words of the court, Wamsley's “probationary term began on October 5, 1998, and ended 26 weeks later ... as permissibly extended by his days of absence.”*

Accordingly, Wamsley's 26-week period, not having otherwise been extended as permitted by the rules of the Rockland Civil Service Commission, “expired long before his employment was terminated.”

However, there were other elements to consider concerning Wamsley's claim of a right to a pretermination hearing.

The due process procedures set out in Section 75 of the Civil Service Law are not available to a noncompetitive class employee who has less than five years of continuous service unless the individual is a veteran who served in time of war or is an “exempt volunteer firefighter.”

According to the Appellate Division, Wamsley claimed, but never established, that he was entitled to the protections of Section 75 because he was an exempt volunteer firefighter.

The Appellate Division concluded that although clearly Wamsley was not a probationer at the time of is dismissal, he raised a triable issue of fact with respect to his claim of Section 75 rights based on his status as an exempt volunteer firefighter.

According, a hearing on this aspect of this complaint was required and the matter was returned to State Supreme Court “for resolution of that factual issue.”

Two technical elements concerning exempt volunteer firefighter status should be noted:

1. The individual claiming exempt volunteer firefighter status has the burden of demonstrating that he or she enjoys such status [People v Hayes, 135 AD 19]; and

2. Notice of the fact that the individual is an exempt volunteer firefighter must be given to the employer prior to the individual's effective date of termination [Badman v Falk, 4 AD2d 149].

* Although decision indicates that Wamsley “became permanent” after the expiration of his 26-week probationary term, “probationary employees” in fact hold permanent appointments as of the effective date of his or her appointment to the position and may enjoy limited tenure rights. For example, courts have ruled that probationers are entitled to notice and hearing if the appointing authority decides to dismiss the individual during his or her minimum period of probation. In contrast, a probationer may be dismissed without notice and hearing after completing his or her minimum period of probation and prior to the expiration of his or her maximum period of probation.