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Employee has the burden of proof that the decision that he or she did not satisfactorily complete a probationary period was made in bad faith

Employee has the burden of proof that the decision that he or she did not satisfactorily complete a probationary period was made in bad faith
Matter of Davids v City of New York, 2010 NY Slip Op 03247, Decided on April 22, 2010, Appellate Division, First Department

Joseph Davids was demoted* from the rank of probationary captain to his permanent title of lieutenant Davids filed a petition pursuant to CPLR Article 78 in which he asked the court to annul the City?s action.

The Appellate Division unanimously affirmed Supreme Court?s decision dismissing Davids? petition.

The court found that the record indicated that there was a rational basis for the City?s decision -- his job performance was unsatisfactory. Further, the Appellate Division said that Davids had not met his burden of establishing that the demotion was made in bad faith.

Although Davids contended that the City failed to follow the procedures for conducting and preparing his performance evaluations, the court decided that this was a ?technicality? and the delays complained of by Davids ?were undertaken in an attempt to provide [Davids] with time to bring his performance up to department standards and did not evidence ?bad faith? on the part of the appointing authority.

* Randall Comments: Although the Appellate Division characterized this personnel change as a demotion [in title and grade], in reality Davids was reinstated to his former position from which he was on leave pending the satisfactory completion of his probationary period upon his promotion to Captain.

Civil Service Law Section 63 provides, in pertinent part, ?When probationary service is required upon promotion, the position formerly held by the person promoted shall be held open for him [or her] and shall not be filled, except on a temporary basis, pending completion of his [or her] probationary term.?

Demotion as a personnel transaction is typically encountered in connection with a disciplinary action and is, for example, one of several penalties permitted to be imposed upon an employee found guilty of charges preferred against him or her pursuant to §75 of the Civil Service Law or as one of the penalties authorized in a contract disciplinary procedure.

Significantly, the courts have distinguished between promotion from a promotion list and an employee "advancement" in the public service via an open-competitive examination as illustrated by the decision in Engoren v County of Nassau, 163 AD2d 520, leave to appeal denied 77 NY2d 805. Here the court distinguished a promotion from a promotion list from a ?promotion? to a higher level position from an open competitive examination list.

Similarily, in Bethel v McGrath-McKechnie, 95 N.Y.2d 7, the Court of Appeals ruled that Bethel had not been promoted and thus Civil Service Law Section 63(1) did not apply to her situation. Citing Engoren v County of Nassau, 163 AD2d 520, leave to appeal denied 77 NY2d 805, the court said because Bethel accepted an original appointment to the position of Staff Analyst after passing the open competitive examination, she effectively resigned her permanent position as a Contract Specialist.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_03247.htm

Full post as published by New York Public Personnel Law on April 23, 2010 (boomark / email).