Challenging a dismissal during the employee's probationary period

A probationary employee's [Petitioner] initiated a CPLR Article 78 proceeding in an effort to obtain a court order vacating the appointing authority's [Employer] decision to terminate her prior to the completion of her probationary employment. The Appellate Division unanimously affirmed the Employer's decision. 

The court explained that Petitioner "failed to meet her burden of showing that [Employer] discontinued her probationary employment in bad faith." Noting that the Employer's determination was supported by documentary evidence of Petitioner's misconduct and history of tardiness, the Appellate Division, citing Matter of Adelana v New York City Dept. of Educ., 194 AD3d 463, said that there was nothing in the record to support Petitioner's argument that the Employer made its determination in bad faith.

It should be noted that should the appointing authority elect to dismiss a probationary employee before the individual has completed his minimum period of probation it must serve disciplinary charges against the employee and conduct a disciplinary hearing as provided by law or pursuant to the terms and conditions of collective bargaining agreement.

In York v McGuire, 63 NY2d 760, the Court of Appeals set 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.”

Further, the appointing authority may seek to have a probationary employee disqualified for employment in the position to which he has been appointed by the responsible civil service department or personnel officer pursuant to §50.4 of the Civil Service Law.   

§50.4 in pertinent part, provides: Notwithstanding the provisions of this subdivision or any other law, the state civil service department or appropriate municipal commission may investigate the qualifications and background of an eligible after he has been appointed from the list, and upon finding facts which if known prior to appointment, would have warranted his disqualification, or upon a finding of illegality, irregularity or fraud of a substantial nature in his application, examination or appointment, may revoke such eligible's certification and appointment and direct that his employment be terminated, provided, however, that no such certification shall be revoked or appointment terminated more than three years after it is made, except in the case of fraud.

Click HERE to access the Appellate Division's decision.

Implementing the New York State Productivity Enhancement Program for 2022

The New York State Department of Civil Service has published Policy Bulletin 2021-03, Implementation of the Productivity Enhancement Program for 2022, applicable to departments and agencies subject to its jurisdiction. 

Click HEREto obtain the text of Policy Bulletin 2021-03.

Click HEREto download the Implementation of the Productivity Enhancement Program for 2022 in PDF format.

To view earlier Attendance and Leave bulletins issued by the New York Department of Civil Service, click HERE.

Posted by Public Employment Law Press at Friday, October 29, 2021 No comments:

Posted by Public Employment Law Press at Wednesday, October 27, 2021 No comments:

 

The statute of limitations to bring a timely action-at-law commences running when a final administration decision is made by the employer

The primary issue on appeal considered by the U.S. Circuit Court of Appeals, Second Circuit in this action was whether the district court erred in determining that the Petitioner’s ADEA claims were untimely.

For example, with respect to certain allegations of unlawful discrimination Petitioner's contended that "certain comments allegedly made by school officials about her before she retired ... establish a continuing violation of the ADEA and saves her claims from the statute of limitations."

Noting that in Delaware State College v. Ricks, 449 U.S. 250, the United States Supreme Court held "that the pendency of collateral review of an employment decision does not extend the time to file an EEOC charge under federal law." The Circuit Court opined that Ricks, which it viewed as "directly on point", held that the pendency of a grievance, or some other method of collateral review of an employment decision, does not toll the running of the limitations periods for the purposes of bringing a timely judicial complaint.*

In the words of the court, "The existence of careful procedures to assure fairness in the tenure decision should not obscure the principle that limitations periods normally commence when the employer’s decision is made." Further, said the court, the denial of an administrative appeal "did not restart the clock" for the aggrieved party to bring a timely EEOC charge. 

* N.B. As the Appellate Division held in Matter of Cappellino v Town of Somers, 83 AD3d 934, neither does a request for reconsideration of a final administrative decision toll the running of the relevant statute of limitations.

Click HEREto access the Circuit Court's ruling.