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.

School district directed to resume reimbursing its retirees' Medicare Part B surcharges

Pursuant to collective bargaining agreements [CBAs] between the School District [District] and the Congress of Teacher [Congress], an association representing district employees, the District agreed to provide health care benefits for active and retired employees and their spouses and dependents. 

Retired employees over age 65, however, were required to enroll in a Medicare Part B program [Part B] and the district reimbursed retirees the cost of Part B coverage.

Some retirees, based upon their household income, were subject to a surcharge in addition to the standard Part B premium. This surcharge was an income-related monthly adjustment amount and referred to as the "IRMAA". Prior to August 2018, the district reimbursed retirees for IRMAA surcharges in addition to their standard Medicare premium payments.

In response to the District's informing retirees that it would no longer reimburse them for IRMAA surcharges, certain retirees [Plaintiffs] commenced a CPLR article 78 proceeding seeking [1] a court order annulling the District's decision, contending that the District's discontinuing such reimbursements violated Chapter 729 of the Laws of 1994 (as amended by Chapter 22 of the Laws of 2007), the State's Retiree Health Insurance Moratorium Act [Act]* and [2] a court order reinstating the reimbursements.

The Supreme Court agreed that the District's discontinuation of its reimbursements of IRMAA surcharges violated the Act, granted the Plaintiff's petition, and directed the District to reinstate providing the reimbursement, plus making appropriate retroactive reimbursements. The District appealed.

Explaining that Act sets "a minimum baseline or 'floor' for retiree health benefits" which is "measured by the health benefits being received by active employees," the Appellate Division sustained the lower court's ruling. In other words, the Act does not permit an employer to whom the statute applies to provide its retirees with lesser health insurance benefits than it provides its active employees.

Citing Matter of Baker v Board of Educ., 29 AD3d 574, the Appellate Division opined that a school district may not diminish retirees' health insurance benefits unless it makes "a corresponding diminution in the health insurance benefits or contributions of active employees." 

In the words of the court, the purpose of the Act was to protect the rights of retirees who "are not represented in the collective bargaining process, [and] are powerless to stop unilateral depreciation or even elimination of health insurance benefits once the contract under which they retired has expired"**

It was undisputed both that the CBAs between the District and the Association did not address Part B or IRMAA reimbursements and that the district provided such reimbursements, even if, as it claims, it made such reimbursements inconsistently. 

The parties, said the court, conceded that the reimbursements were "retiree health insurance benefits that were voluntarily conferred as a matter of school district policy." Accordingly, the Appellate Division held that Supreme Court "correctly concluded that the discontinuation of IRMAA reimbursements was a matter subject to the moratorium statute."

Additionally, the Appellate Division noted reimbursing retirees for Medicare Part B premiums is not an improper gift of public funds in violation of Article VIII, §1, of the New York State Constitution," citing Baker v Board of Education, 29 AD3d 574.

The Appellate Division sustained the Supreme Court ruling, finding it to have correctly determined that the District's discontinuation of IRMAA reimbursements violated the Act and thus had properly granted the Plaintiffs' petition.

* The purpose of the moratorium statute was to tie retiree benefits to active employee benefits so that retirees could benefit from the collective bargaining power of the active employees.

** See Matter of Bryant v Board of Educ., Chenango Forks Cent. School Dist., 21 AD3d 1134, quoting Assembly Memorandum in Support of Bill, 1996 McKinney's Session Laws of New York at 2050.

Click HERE to access the Appellate Division's decision.

Terminating an employee serving a disciplinary probationer period

Citing Matter of Verma v Department of Educ. of the City of N.Y., 192 AD3d 616, the Appellate Division observed that "a probationary employee may be terminated without a hearing for any reason or no reason at all, as long as the dismissal was not unlawful or in bad faith."*

In this action the Appellate Division opined that this standard applies where, as here, a police officer has been placed "on dismissal probation in accordance with a negotiated resolution of disciplinary charges", citing Matter of Cipolla v Kelly, 26 AD3d 171.

Noting that the Petitioner in this action failed to demonstrate bad faith because [1] the record contains uncontroverted evidence of Petitioner's admitted misconduct, which resulted in his being put on dismissal probation and [2] new disciplinary charges that were brought during his disciplinary probationary period.

In the words of the court, [1] the fact hat some of the new charges concerned alleged misconduct predating the period of dismissal probation is of no moment and [2] the fact that Petitioner's application for disability retirement, which he submitted before pleading guilty to the initial disciplinary charges, was later recommended for approval, "does not demonstrate his termination was in bad faith."

As to issue of the appropriateness of the penalty under the circumstances, the court concluded even assuming that the "shock the conscience" standard applies to probationary terminations, "the termination here does not shock the conscience."

Addressing Petitioner's argument that equitable estoppel barred his termination, the Appellate Division disagreed, ruling "equitable estoppel does not apply here, as the negotiated settlement placed him on notice that he could be dismissed at any time during the probationary period."

Accordingly, the court unanimously affirmed Supreme Court's granting the appointing authority's summarily terminating Petitioner from the police force during his dismissal probation period, without costs.

* 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.”

Click HERE to access the Appellate Division's decision.