The Plaintiff in this CPLR Article 78 action contended that he was entitled to a Civil Service Law §75 pretermination hearing as a condition precedent to his being terminated from his position, Title A. Plaintiff alleged that he had attained tenure in Title A by reason of his having been appointed to a higher level position "in the line of promotion," Title B, while serving as a probationary employee in Title A.
Plaintiff had been appointed to Position B as a temporary employee about 9 weeks after completing the designated minimum period of probation but before the end of his Title A maximum probationary period. Plaintiff was subsequently appointed to the Title B position as a provisional employee. Some 16 months later Plaintiff was advised that he was being terminated from Title B, reinstated to Title A and, on the same day, further advised that [1] he would be terminated from the Title A and [2] was placed on "administrative leave" until the effective date of his dismissal from his Title A position.
The appointing authority had determined that on the effective date of Plaintiff's termination there were 25 days remaining until the end of Plaintiff's maximum period of probation and thus he had not yet attained tenure in Title A. Accordingly, argued the appointing authority, Plaintiff was not entitled to a pretermination hearing pursuant to Civil Service Law §75 or any applicable collective bargaining agreement.
Supreme Court dismissed the petition, finding that Plaintiff was in fact a probationary employee at the time of his discharge and that he failed to make a prima facie showing that the decision to terminate him from his employment in Title A was retaliatory or made in bad faith. Plaintiff appealed the Supreme Court's ruling to the Appellate Division.
As to Plaintiff's status in Title A as a "probationary employee," the Appellate Division said that "A probationary employee's appointment becomes [a tenured appointment] either after the completion of the probationer's maximum period of [probationary] service or upon earlier written notice following the completion of the minimum period of probation."
Noting that "in the discretion of the appointing authority," Plaintiff's service in Title B could be considered as satisfactory probationary service in Title A "and may be counted as such in determining the satisfactory completion of such probationary term," 4 NYCRR 4.5[i] provides that "[a]t any time after the expiration of the minimum period of the probationary term, or the entire probationary term if it be one of fixed duration, the appointing authority shall, on request of such probationer, furnish his [or her] decision in writing as to whether or not service in such higher level position shall be considered as satisfactory probationary service."
Here the court found that the record established that the appointing authority determined, in its discretion, that Plaintiff's temporary and, or, provisional service in Title B would not count toward his completion of his probationary term for the Title A position. Further, said the Appellate Division, "it is undisputed that, after the expiration of his maximum probationary term ... [Plaintiff] ... did not request a determination as to whether his temporary or provisional service would be counted toward his probationary term [in Title A] and, therefore, he did not trigger [the appointing authority's] regulatory obligation to issue a written determination as to how it would exercise its discretion."
Further, opined the court, the appointing authority was not required to advise Plaintiff prior to his discharge that his service in the higher title would not be counted toward the completion of his Title A maximum probationary term.*
Accordingly, although the Appellate Division commented that it was troubled that Plaintiff was terminated after nearly 2½ years of service, the court said that "we are constrained to agree with Supreme Court that, at the time of his termination, [Plaintiff] was still a probationary employee." In the words of the Appellate Division, Plaintiff "was a probationary employee at the time of his termination from employment and ... failed to satisfy [his] burden of showing that [he] was dismissed in bad faith or for an improper or impermissible reason [thus] Supreme Court properly dismissed [his] petition."
As a general rule, an individual appointed to a position on a "permanent basis" attains "permanent status" in the position on the effective date of his or her permanent appointment but does not attain tenure in the title until [1] he or she satisfactorily completes his or her maximum period of probation or [2] acquires tenure by estoppel** or [3] as the result of the appointing authority's lawfully truncating the individual's maximum period of probation. In addition, tenure may be acquired in consideration of certain military service performed during a probationary period or by other lawful process.
In York v McGuire, 63 NY2d 760, the Court 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.” This reflects the view that the individual should be provided with a minimum period of time to demonstrate his or her ability to satisfactorily perform the duties of the position. Should the appointing authority elect to dismiss a probationary employee before he or she has completed the required minimum period of probation, the individual is entitled to "notice and hearing" otherwise accorded a "tenured employee."
Another element that may be relevant with respect to determining the effective date of a probationary employee attaining tenure in the position is the requirement that, in addition to satisfactorily completing a probationary period, the individual successfully complete a required "traineeship." Distinguishing between ""probationary status" and "traineeship status" was a factor in Sergeants v Brooklyn Developmental Center, 56 NY2d 628.
In Sergeants, a number of probationary employees were terminated at the end of their respective probationary periods. They sued for reinstatement contending that they had not been provided with the 200 hours of training required by department regulations.
Dismissing their appeal, the Court of Appeals first affirmed the principle that "... the employment of a probationary employee may be terminated at the end of the probationary term without a hearing and without specific reasons being stated."
The court then rejected Sergeants' "traineeship argument," commenting that the mandated training involved would not have addressed the particular demonstrations of poor performance leading to their respective terminations. The evidence in the record, said the court, indicated that the poor performance was related "to fitness for the position" rather than job performance elements that the training provided for by regulation could remedy. Among the examples of poor performance cited by the court were sleeping on the job, habitual lateness, unscheduled absence, failure to perform overtime assignments and similar poor work habits. The decision also indicated that the only issue for review was whether the appointing officer acted in good faith in terminating the employee.
As the Appellate Division ruled in Matter of Loren v New York City Dept. of Educ., 126 AD3d 419, an individual appointed subject to the satisfactory completion of a training period has no greater rights than those of a probationary employee.
In Loren, the appointee [Trainee] had been accepted into a seven-week pre-service training period. When Trainee was terminated in the midst of this seven-week pre-service training period he filed an Article 78 petition seeking a court order annulling the appointing authority’s determination to dismiss him from the traineeship. Supreme Court granted the appointing authority’s motion to dismiss Trainee’s petition and Trainee appealed.
Sustaining the Supreme Court’s decision, the Appellate Division said that Trainee had no greater rights than those of probationary employees, and a probationary employee, consistent with the limitation set out by the Court of Appeals in York v McGuire, 63 NY2d 760, "may be discharged for any or no reason at all in the absence of a showing that [the] dismissal was in bad faith, for a constitutionally impermissible purpose or in violation of law."
The court explained that the record demonstrates that trainee did not have a cause of action as the evidence submitted with the petition and cross motion established that during Trainee’s “pre-service training period, several complaints had been made about [Trainee’s] performance, resulting in the issuance of a performance concern letter.” The Appellate Division noted that Trainee “had been admonished multiple times for using his cell phone in the classroom and improperly leaving the classroom when students were present” and, in addition, Trainee was also directed by a supervisor to refrain from contacting another teacher who had expressed concerns about how he had previously spoken to her. Under these circumstances, said the court, where there is evidence of multiple instances of unsatisfactory performance during a short seven-week period, the discharge was made in good faith.
The lesson here: Satisfactory completion of probation and satisfactory completion of a traineeship are two different requirements that must be met by the appointee and he or she must satisfy both in order to be continued in service. Where the successful completion of a traineeship is required in order to be continued in service, however, that condition should be communicated to the individual in the examination announcement or in the offer of his or her appointment to the position.
As to the authority for requiring the completion of a traineeship, the rules of the State Civil Service Commission concerning traineeships are set out in 4 NYCRR 4.3 and provide as follows:
Section 4.3 Trainee appointments and promotions. The Civil Service Department may require that permanent appointments or promotions to designated positions shall be conditioned upon the satisfactory completion of a term of service as a trainee in such a position or in an appropriate, lower, training title or the completion of specified training or academic courses, or both. The period of such term of training service shall be prescribed by the department. Upon the satisfactory completion of such training term, and of specified courses if required, an appointee shall be entitled to full permanent status in the position for which appointment was made. Any appointment hereunder shall be subject to such probationary period as is prescribed in [Section 4.5 of] these rules. Also, the employment of such person may be discontinued at the end of the term of training service if his conduct, capacity or fitness is not satisfactory, or at any time if he fails to pursue or continue satisfactorily such training or academic courses as may be required.
Many municipal civil service commissions have adopted similar rules concerning traineeships.
* The Appellate Division noted that "although the Department of Civil Service State Personnel Management Manual places an affirmative duty on [the appointing authority] to inform an employee whether temporary or provisional service in another position will be counted toward his or her probationary term (see State Personnel Management Manual, 2010 Probation, §234[C][1]), such requirement is inconsistent with the governing regulation and, thus, under the Manual's own provisions, the regulation takes precedence (see State Personnel Management Manual, Introduction, §142)."
** See https://publicpersonnellaw.blogspot.com/2013/07/tenure-by-estoppel-tenure-by.html
The decision is posted on the Internet at: