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.

Mission Accomplished Transition Services to present The Power of Mentorship featuring Coach Carmen and others.

Special Assistant for Intergovernmental & Community Affairs at the NYS Department of Public Service, Ezra P. Scott Jr, is hosting the next Albany Professionals Under 40 and Friends' [APF 40] networking event which will focus on the importance of mentorship. The meeting will be held on:

Friday, March 27, 2026, 6:00 PM – 9:00 PM 

at a new location

The Country Inn & Suites by Radisson 

300 Broadway, 

Albany, N.Y. 12207.

Please note that “And Friends” means the space is open to both those under 40 and those 40 and over, so feel free to invite others in your network. 

Feel free to share this announcement with those in your circle.

RSVP: https://www.tickettailor.com/events/albanyprofessionalsunder40/2071900

Looking forward to seeing you there!

Evaluating a discrimination or hostile work environment claim

Supreme Court, granted the Employer's motions to dismiss certain causes of advanced in  Petitioner's employment discrimination complaint. The Appellate Division unanimously reversed the Supreme Court's ruling, on the law, without costs, denied the Defendant's motions at issue and reinstated those causes of action.

The Appellate Division noted the Supreme Court had correctly observed that employment discrimination cases are generally reviewed under notice pleading standards and that a "plaintiff alleging employment discrimination need not plead specific facts establishing a prima facie case of discrimination but need only give fair notice of the nature of the claim and its grounds". 

Citing Petit v Department of Educ. of City of N.Y., 177 AD3d 402, the Appellate Division explained that "In an action brought under the New York City Human Rights Law (NYCHRL) and the New York State Human Rights Law (NYSHRL), "[f]air notice is all that is required to survive at the pleading stage" and noted that NYSHRL was amended in 2019 to "put in place a more lenient standard of liability that has been likened to that of the NYCHRL".

In the words of the Appellate Division: "Although a 'single, isolated comment' or 'stray remark' will not always suffice to sustain a discrimination or hostile work environment claim ... 'a single comment that objectifies women being made in circumstances where that comment would, for example, signal views about the role of women in the workplace' could be actionable ... Here, where [Petitioner] alleged that her supervisor implied that she only received high evaluation scores because she was engaging in sexual relations with higher-ups, the alleged remarks and attendant hostile conduct were more than 'petty slights and trivial inconveniences'".

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