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An individual serving an extension of his or her probationary period may be summarily dismissed from the position

An individual serving an extension of his or her probationary period may be summarily dismissed from the position
Matter of Ward v Metropolitan Transp. Auth., 2009 NY Slip Op 05973, decided on July 21, 2009, Appellate Division, Second Department

The New York City Transit Authority terminated Steward Ward from his position. Ward while serving his 12-month probationary period as a bus operator was involved in three accidents and was counseled three times as a result.

Prior to the end of his initial 12-month probationary term, Ward?s probationary status was extended for an additional 6-month period.*

While serving in this extended probationary period, Ward was involved in two incidents involving customer complaints and was counseled after the first incident. As a result of Ward?s involvement in a second incident shortly thereafter, however, the Authority summarily terminated his probationary employment.

Ward challenged his dismissal on the grounds that he was not given a ?pre-termination hearing.? Supreme Court denied his Article 78 petition seeking to annul the Authority;s decision to terminate his employment without first giving him "notice and a hearing."

When the Appellate Division considered the matter, it affirmed the Supreme Court?s decision.

The Court noted that a judicial review of a determination to terminate the employment of a probationary employee is "limited to consideration of whether the dismissal was in bad faith, in violation of statutory or decisional law, or for unconstitutional or illegal reasons.?

Accordingly, said the court, absent a material issue of fact being raised as to one or more of these conditions, ?a probationary employee may be terminated without a hearing or a statement of reasons.?

Further, said the court, Ward had the burden of raising a material issue as to bad faith or illegal reasons, and ?conclusory allegations of misconduct or unlawfulness are insufficient to meet this burden."

The Appellate Division concluded that since Ward ?failed to carry his burden of raising a material issue of fact as to bad faith or any other impermissible reason for his dismissal, and his allegations to the contrary are either conclusory or speculative in nature,? the Supreme Court properly denied his petition, effectively dismissing the proceeding.

* 4 NYCRR (b)(3)(ii), which applies with respect to employees of the State as an employer, provides:

If the conduct or performance of a probationer is not satisfactory, his or her employment may be terminated at any time after eight weeks and before completion of the maximum period of service. The appointing officer may, however, in his discretion, offer such probationer an opportunity to serve a second probationary term of not less than 12 nor more than 26 weeks in a different assignment, in which case the appointment may be made permanent at any time after completion of 12 weeks of service, or the employment terminated at any time after the completion of 8 weeks of service and on or before the completion of 26 weeks of service [emphasis supplied].

Many local civil service commissions have adopted a similar provision.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_05973.htm

Full post as published by New York Public Personnel Law on July 28, 2009 (boomark / email).