Employee’s appointment from an open competitive list to a higher grade position deemed a promotion within the meaning of Civil Service Law §63(1) under a local civil service commission’s rules

Employee’s appointment from an open competitive list to a higher grade position deemed a promotion within the meaning of Civil Service Law §63(1) under a local civil service commission’s rules 

2013 NY Slip Op 08085, Appellate Division, Second Department

The school district initially appointed Employee as a cleaner and later appointed him to the position of “custodial worker.” Subsequently the school district permanently appointed Employee to a higher level position, senior custodian, from an open-competitive eligible list. This appointment was subject to Employee’s satisfactory completion of a 12-month probationary period.

Before Employee had completed the 12-month probationary period the school district had "reason to believe" that Employee had engaged in certain improper conduct and terminated him from its employ.

Employee sued the school district, contending that, among other things, his termination was unlawful and that he was entitled, pursuant to the provisions of Civil Service Law §63(1), to return to his previous position of "custodial worker."

The Supreme Court, among other things, granted that branch of Employer’s petition that restored him to his former position, custodial worker, with back pay and benefits.

The Appellate Division sustained the Supreme Court’s decision, stating that it had “properly determined that [Employee’s] appointment as "senior custodian" was a "promotion," despite its having been made from the "open competitive" list rather than from the "promotional list."*

The Appellate Division explained that although the Civil Service Law does not expressly define "promotion," Civil Service Rule 10.1 of the local commission having jurisdiction provides that "[a]ny advancement of an employee from a position in one title to a position in another title having either greater responsibilities or for which a higher maximum rate of pay is prescribed, shall be deemed a promotion, and shall be made only in accordance with the provisions of the Civil Service Law and these rules. All vacancies in the competitive class shall be filled by promotion[s] as far as is practicable"

As Employee’s advancement from the position of "custodial worker" to "senior custodian" involved both greater responsibilities and carried a higher maximum rate of pay, the Appellate Division ruled that the advancement constituted a "promotion" within the meaning of the [responsible commission’s rules].

Observing that Employee had not been removed from his probationary employment pursuant to Civil Service Law §75, the Appellate Division said that the district should have reinstated him to his prior permanent position of custodial worker.

Thus, said the court, Employee’s termination “was made in violation of lawful procedure.”

* Civil Service Law §63(1) mandates that "[w]hen probationary service is required upon promotion, the position formerly held by the person promoted shall be held open for him [or her] and shall not be filled, except on a temporary basis, pending completion of his [or her] probationary term” [emphasis supplied by the Appellate Division].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08085.htm
.

Appointing authority not required to offer a probationary employee a second extension of his or her probationary period

Appointing authority not required to offer a probationary employee a second extension of his or her probationary period

2013 NY Slip Op 07686, Appellate Division,

Supreme Court, New York County, annulled the New York City Department of Education’s decision to terminate a probationary principal, [Probationer] and directed the Department to reinstate her to her position, with back pay. The Appellate Division unanimously reversed the lower court’s decision, on the law.

The Appellate Division explained that Probationer had failed to meet her burden of establishing that she was terminated in bad faith or for an improper or impermissible reason.

The court said that the record indicated that the district superintendent had various concerns about Probationer’s performance with respect to “students' academic performance, school budgetary issues, and her leadership abilities” throughout Probationer’s probationary period.

As a result, Probationer was offered extensions of her probationary employment twice.

Although she had accepted the initial offer of extending her probationary period, Probationer did not willingly accept the Department’s offer to extend the probationary employment a second time, noting on the second probationary extension agreement that “she disagreed with numerous clauses and that she was signing the offer ‘under duress.’" The Department then terminated Probationer from the principal position.

In particular, the Appellate Division noted that “[The Department was] not required, simply because [it] had done so once, to extend [Probationer’s] probation a second time despite [its] concerns about her performance.”

Addressing other aspects of Probationer’s petition, the Appellate Division said that:

1. Probationer had failed establish a prima faciecase of unlawful discrimination or retaliation, based on her claim of an environmental disability, under the State and City Human Rights Laws; and

2. The facts in this case “undermine the allegation that [Probationer] was denied a reasonable accommodation by the Department of Education's Medical Bureau,” as she had been provided with an air purifier, and she did not complain again about her condition until after she was offered the second extension of probation, rather than tenure.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07686.htm
.

Adequate evidence in the record supported the arbitrator’s determination that the employee was guilty of disciplinary charges filed against him

Adequate evidence in the record supported the arbitrator’s determination that the employee was guilty of disciplinary charges filed against him

2013 NY Slip Op 08027, Appellate Division, First Department

Supreme Court granted the New York City Department of Education’s motion to confirm an arbitration award terminating Educator’s employment as a New York City schoolteacher.

The Appellate Division affirmed the Supreme Court’s ruling, indicating that there was adequate evidence in the record to support the arbitrator’s determination that Educator was guilty of disciplinary charges and specifications alleging insubordination, neglect of duty, conduct unbecoming his position, and using language that constituted verbal abuse of his students as prohibited by the regulations of the Department of Education.

Further, said the court there was no basis to disturb the Hearing Officer's decision to credit the testimony of multiple students and the assistant principal over that of Educator.

Addressing Educator’s claim that that the arbitration award “was not in accord with due process and was arbitrary and capricious,” the Appellate Division said that Educator was given notice of the charges against him, had the opportunity to defend himself at a hearing at which he testified and presented other evidence, and was able to cross-examine witnesses.

Although thee Hearing Officer acknowledged that there were flaws in the investigation leading to the filing of disciplinary charges against Educator, he noted that it was fair and objective.

With respect to Educator’s challenge to the penalty imposed, termination, the Appellate Dividing said that such a penalty did not shock one's sense of fairness and that the record showed that the Hearing Officer considered mitigating circumstances such as Educator’s lack of and prior disciplinary history during his 14-year career with the Department of Education and the likelihood that Educator would not correct his inappropriate behavior.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08027.htm
.