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Distinguishing between a ?traineeship? and a ?probationary period?

By Harvey Randall, Esq.

Distinguishing between a ?traineeship? and a ?probationary period?
Manneh v Staten Island Developmental Disabilities Office, Supreme Court, New York County, Decided , Judge Eileen A. Rakower, Index #400476/07

Applying the provisions of 4 NYCRR 4.5(c) ?Trainee appointment or promotion,? requires an understanding of the interplay of the ?training appointment? and ?probationary period.?

Section 45(c) provides:

The probationary term for a trainee appointment or trainee promotion shall coincide with the term of training service, except where an appointment from an open-competitive list can be made to either the trainee or journey level position; in that case, the probationary period for the trainee appointment will be from 26 to 52 weeks or the length of the training period, whichever is greater. If the conduct or performance of the probationer is not satisfactory, his employment may be terminated at any time after the completion of a specified minimum period of service and on or before the completion of the term of training service. Such specified minimum period of service, unless otherwise prescribed in the announcement of examination, shall be eight weeks.

Lafayette Manneh was employed as a Developmental Aide at the Staten Island Developmental Disabilities Service Office (SIDDSO) by State of New York Office

of Mental Retardation and Developmental Disabilities (OMRDD), effective January 5, 2006.

Manneh was required to serve a probationary period upon his permanent appointment to the position. When he was terminated on January 10, 2007, he sued, contending that he was tenured and thus he was entitled to pre-termination ?A Notice of Discipline and a due process hearing.?

SIDDSO responded that it had advised Manneh that it was extending his probationary period by a letter dated December 29, 2006 following its investigation into an incident that had occurred August 2006. Based on this investigation, SIDDSO elected to extend Manneh?s training period to fifteen months. Accordingly, SIDDSO argued, Manneh had been terminated while still serving his probationary period and thus he was not entitled to a pre-termination hearing.

According to Judge Rakower, the letter of appointment SIDDSO sent to Manneh stated that ?The appointment will be permanent pending Civil Service approval and you will serve a traineeship the length of which is usually one year.? The decision also indicates that Manneh signed a document entitled ?Memorandum of Understanding,? which set forth the duration of his traineeship. The Memorandum stated, in relevant part, that the traineeship would be:

Twelve months (for trainees who complete all traineeship requirements with satisfactory training and job performance); or Fifteen months (primarily for trainees who require additional time to master the more academic components of the traineeship.

Holding that a reviewing court may not substitute its judgment for that of the agency?s determination but must decide if the agency?s decision is supported on any reasonable basis, based on the record as a whole, Judge Rakower dismissed Manneh?s petition. The court said that there was a reasonable basis for SIDDSO?s determination to terminate Manneh and ?it cannot be said that such decision was arbitrary, capricious, an abuse of discretion or founded on an error of law.?

Other factors might be relevant in cases of probationary employment - traineeship requirements as illustrated by the following decisions.

In Franks v South Beach Psychiatric Center, Supreme Court, Richmond County, [not officially reported], the interrelationship between temporary service, permanent appointment, trainee status and probation was considered.

Franks had been appointed as a Mental Hygiene Therapy Aide Trainee. This appointment involved the satisfactory completion of a one-year training period.

Because of outstanding preferred lists, Franks was initially appointed to his position as a temporary employee pending canvass of the preferred lists and he commenced his ?traineeship? in the position. On January 21, 1984, some three months later, Franks was ?permanently appointed? to the position, subject to the successful completion of a 52-week probationary period.

On January 2, 1985 Franks was terminated from his position without any hearing because of his alleged failure to satisfactorily complete the probationary period.

Franks claimed that his period of probation had to coincide with his training period and since he had completed his training period in October 1984, he was not a probationary employee at the time of his termination. Accordingly, he argued, he could not be discharged without notice and hearing.

The court ruled that there was no merit to Franks? argument. Why? Because, explained the court, under the controlling probationary rules, the probationary period for a trainee is from 26 to 52 weeks or the length of the training period, which ever is longer. As Frank?s permanent appointment did not become effective until January 21, 1984, (at which time he was still a trainee) his 52-week probationary period would not end until January 20, 1985. Accordingly, his termination without any hearing on January 2, 1985, was made while he was still a probationary employee and was therefore lawful.

The Franks decision supports the proposition that a traineeship and the probationary period are two different conditions of employment For example, a trainee may be serving as a provisional employee, complete the traineeship, and later take and pass the required examination and subsequently be appointed on a permanent basis.

His or her required probationary period pursuant to Section 63 of the Civil Service Law would commence upon the individual?s permanent appointment to the position, notwithstanding the fact that he or she may have already successfully completed the required traineeship.

By the same token, if a traineeship extends beyond the probationary period, the individual may be subject to termination without notice and hearing if he or she fails to satisfactorily complete the traineeship as demonstrated in the Manneh decision.

Another case that distinguishes between probationary status and traineeship status is 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.

The decision also indicated that the only issue for review was whether the appointing officer acted in good faith in terminating the employee.

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 for a permanent appointee 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.

Full post as published by New York Public Personnel Law on April 18, 2008 (boomark / email).