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July 05, 2017

The actions of an employee prior to his or her promotion may properly form the basis for terminating the individual prior to the completion of his or her probationary period


The actions of an employee prior to his or her promotion may properly form the basis for terminating the individual prior to the completion of his or her probationary period
2017 NY Slip Op 05145, Appellate Division, Third Department

An individual [Probationer]  serving with the  New York State Department of Corrections and Community Supervision was promoted to a higher grade position subject to his satisfactory completion of a 52-week probationary period. Shortly after Probationer had completed the minimum period of probation he was terminated from his probationary appointment and reinstated to his former, lower grade, position.

Probationer contending that the termination of his probationary period was made in bad faith as the appointing authority "waited to demote him to his former position until just after he completed the eighth week of his probationary period — the minimum probationary service period — to avoid having to establish under Civil Service Law §75 that the demotion was based on incompetence or misconduct," filed an Article 78 petition in Supreme Court seeking reinstatement to the higher grade position with back salary.

Supreme Court dismissed Probationer's petition and he appealed the court's ruling.

The Appellate Division affirmed the lower court's determination, explaining that "An employee's probationary appointment may be terminated without a hearing for any reason or no reason at all, so long as the termination was not "in bad faith or for an improper or impermissible reason."*

To warrant a hearing after completing his or her minimum period of probation, the employee bears the burden of raising a material issue of fact as to whether the termination was made in bad faith or for an impermissible reason; allegations of a conclusory or speculative nature are insufficient to meet this burden.

Here, said the Appellate Division, Probationer's submissions were insufficient to raise a material issue of fact as to whether his discharge from the higher grade position was made in bad faith or based on an improper or impermissible motive.

The court noted that in answering Probationer's petition, the appointing authority submitted, among other things, the affidavit of the Personnel Director "which established that the decision to terminate [Probationer's] probationary promotion was made in good faith." The affidavit of the Personnel Director cited an investigative report in which it was concluded that the most credible version of certain events that occurred prior to Probationer's promotion "pointed to [Probationer] having observed and/or participated in threatening [a] particular inmate and then denying such observation or participation."

In addition, "as found by Supreme Court," the Appellate Division said that Probationer's allegations of bad faith "were too conclusory and speculative to warrant a hearing on the matter" as there was no evidentiary support that the Director waited to demote him to his former position until just after he completed the minimum probationary period.

* "Probationary employees" typically hold permanent appointment in 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 seeks 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.

The decision is posted on the Internet at:


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July 03, 2017

As the Regulations of the Commissioner of Education's do not define full-time status for the purpose determining compensation, a collective bargaining agreement may control such a determination


As the Regulations of the Commissioner of Education's do not define full-time status for the purpose determining compensation, a collective bargaining agreement may control such a determination
Decisions of the Commissioner of Education, Decision No. 17,062

Susan Ford-Gambee Wilhelm filed a appeal with the Commissioner of Education challenging the action of the Board of Education of the Eden Central School District assigning her to teach five classes following a reduction in her position from a full-time position to a .83 full time equivalent [FTE] position. 

Wilhelm contended that she was a full-time teacher within the meaning of §100.2(i) of the Commissioner’s regulations "because she continued to teach five classes each day, which she contended is a 1.0 FTE." She claimed that Eden has improperly treated her position as a .83 FTE and compensated her on that basis, even though she contended that she was a full-time teacher.

The Commissioner said that the essence of Wilhelm's argument appeared to be that §100.2(i) defines a full-time teaching load as five classes and thus that she is entitled to compensation as a full-time teacher based on the classes she was assigned to teach by the school district.

§100.2(i), relating to teaching assignments, provides that, with respect to teaching staff in public schools, the number of daily periods of classroom instruction for a teacher should not exceed five. Further, said the Commissioner, pursuant to the regulation, "a school requiring of any teacher more than six teaching periods a day, or a daily teaching load of more than 150 pupils, should be able to justify the deviation from this policy."

The Commissioner said that a petitioner, here Wilhelm, has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he or she seeks relief.

Wilhelm, however, did not contend that her number of daily periods of classroom instruction exceeds five; admitted that she only taught five classes for the 2016-2017 school year; and did not claim that she was assigned a daily teaching load in excess of 150 students. Rather she argued that §100.2(i) defines a full-time teaching load as five classes and thus she was entitled to compensation as a full-time teacher. 

The Commissioner disagreed, explaining that §100.2(i) "merely establishes a policy that teachers should not be assigned more than five classes or a teaching load of 150 pupils and requires that a board of education be able to justify any such assignment, for the purpose of maintaining quality instruction for students." Further, said the Commissioner, the regulation does not define full-time status for purposes of compensation, noting that in Wilhelm's case, was governed by the applicable collective bargaining agreement.

The decision is posted on the Internet at:

Unemployment Insurance Appeals Board may apply the doctrine of collateral estoppel to a disciplinary determination made after a hearing in determining if an individual is disqualified for unemployment insurance benefits



Unemployment Insurance Appeals Board may apply the doctrine of collateral estoppel to a disciplinary determination made after a hearing in determining if an individual is disqualified for unemployment insurance benefits
Matter of Telemaque (Commissioner of Labor), 2017 NY Slip Op 02109, Appellate Division, Third Department

Veronica Telemaque appealed the decision of the Unemployment Insurance Appeals Board that she was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Telemaque had been found guilty and dismissed from her position after a hearing on disciplinary charges filed against her pursuant to Education Law §3020-a for allegedly engaging in misconduct, conduct unbecoming and/or prejudicial, insubordination and violating the employer's rules.

The Appellate Division said that Telemaque's primary challenge concerns the disciplinary Hearing Officer's factual and credibility determinations and alleged evidentiary errors were made at the disciplinary hearing. The Board noted that it did not appear that Telemaqueappealed that disciplinary determination and "her challenges to the merits of that determination may not be raised in this unemployment insurance proceeding."

As Telemaque had "a full and fair opportunity to litigate the charges of misconduct at [her §3020-a disciplinary] hearing, the Appellate Division said that the Board had "properly gave collateral estoppel effect to the Hearing Officer's factual determinations" in that proceeding and sustained the Board's determination.

The decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2017/2017_02109.htm 

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