Wilson v City of New York, 2012 NY Slip Op 07570,Appellate Division, First Department
Supreme Court, New York County, Justice Alice Schlesinger granted a probationary New York City correction officer’s petition to vacate and annul the appointing authority's' decision to terminate him from his position and reinstated himto his former position without back pay.
The Appellate Division unanimously reversed JusticeSchlesinger’s ruling “on the law” and affirmed the City’s determination terminating the correction officer from his position.
The court explained that “A probationary employee may bedismissed for almost any reason, or for no reason at all, and the employee hasno right to challenge the termination in a hearing or otherwise, absent ashowing that he or she was dismissed in bad faith or for an improper orimpermissible reason,” citing Swinton v Safir, 93 NY2d 758.
Further, the Appellate Division said that the burden falls onthe petitioner to demonstrate by competent proof that a substantial issue ofbad faith exists, or that the termination was for an improper or impermissiblereason.*
There is one exception to this generalproposition, however. A probationary employee appointed to a position in the ClassifiedService to be terminated prior to the end of his or her minimum period ofprobation is entitled to a hearing pursuant to §75 of the Civil Service Law orits equivalent as such probationary employees hold permanent appointment andenjoy limited tenure rights.
Courts have ruled that probationers are entitled to noticeand hearing if the appointing authority seeks to dismiss the individual duringhis or her minimum period of probation. The rationale for this was noted inMcKee v. Jackson, 152 AD2d 54. Here the court said that the probationer isentitled to a minimum period of time to demonstrate his or her ability to successfullyperform the duties of the position.
In contrast, as the Court of Appeals held in Gray v BronxDevelopmental Center, 65 NY2d 904, a probationer may be dismissed withoutnotice and hearing after completing his or her minimum period of probation andprior to the expiration of his or her maximum period of probation.
* The Appellate Division saidthat the record demonstrated that the corrections officer was terminated during hisprobationary period for absenteeism, violation of the appointing authority's rulesby failing to report to his post on one occasion, and by being arrested forobstruction of governmental administration while off-duty and that he "failed to sustain his burden of showing bad faith or an improper motive."
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07570.htm
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