Tomlinson v. Ward

• Decision Date: 16 April 1985
• Parties: Leopold TOMLINSON, Petitioner-Appellant, v. Benjamin WARD, etc., et al., Respondents-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 779

487 N.Y.S.2d 779

110 A.D.2d 537

Leopold TOMLINSON, Petitioner-Appellant, v. Benjamin WARD, etc., et al., Respondents-Respondents.

Supreme Court, Appellate Division First Department.

April 16, 1985.

R.E. Kerno, New York City, for petitioner-appellant.

J.A. Witterschein, New York City, for respondents-respondents.

Before KUPFERMAN, J.P., and CARRO, FEIN and MILONAS, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County, entered January 4, 1984, granting respondents' motion to dismiss the petition seeking to annul a June 7, 1983 determination of the New York City Department of Correction terminating petitioner's employment with said Department without a hearing, affirmed, without costs.

Petitioner was appointed a corrections officer on June 1, 1982, on which date his probationary period of one year commenced pursuant to Personnel Rules and Regulations 5.2.1(a). He was terminated without an evidentiary hearing on June 7, 1983. This CPLR Article 78 proceeding was brought to challenge the outright dismissal upon the ground that as petitioner was hired on June 1, 1982, his probationary period ended May 31, 1983. Petitioner alleged that he had not consented to any extension of the one-year period pursuant to Personnel Rules and Regulations 5.2.8. Accordingly, he asserts that by June 7, 1983, he had attained the status of a permanent Civil Service employee who could not be removed without a hearing pursuant to Civil Service Law § 75.

Respondents' motion to dismiss, pursuant to CPLR 7804(f), was premised upon the ground that the probationary period is to be extended by the number of days on pay status that the probationer was not performing the duties of the position (Department of Personnel's Policy and Procedure No. 615-77a, p A.5).

It is undisputed that petitioner was on jury duty for at least 23 days during the probationary period, and thus did not perform his duties. The 23 days may be added to the expiration of the probationary term, as provided in the Classified Service Rules of the Department of Civil Service (4 N.Y.C.R.R. 4.5[f] ). Since petitioner was not performing his duties, the probationary period extended 23 days beyond May 31, 1983, so that the June 7 termination occurred while petitioner was still on probation. He therefore could be terminated without a specification of reasons and without a hearing. There is no evidence that the termination was in bad faith.

The purpose of excluding from the probationary term periods during which a probationer is not at work performing his or her duties is not punitive, but rather is the same as that underlying a probationary term in the first instance. It is designed to enable the appointing officer to ascertain the fitness of the probationer and to give the probationer a reasonable opportunity to demonstrate the ability to perform the duties of the office (Matter of Fischer v. Hongisto, 75 A.D.2d 973, 428 N.Y.S.2d 532, app. dsmd. 53 N.Y.2d 703; Matter of Going v. Kennedy, 5 A.D.2d 173, 170 N.Y.S.2d 234, affd. 5 N.Y.2d 900, 183 N.Y.S.2d 81, 156 N.E.2d 711). The period should be measured by the number of days a probationer is actually working at the job (Matter of Woltjen v. Burke, 52 A.D.2d 679, 382 N.Y.S.2d 140). This is made clear by New York City Department of Correction rule 3.20.15, as amended by General Order No. 7, promulgated September 14, 1982:

"The period of probationary service for each newly appointed employee shall be extended by the number of days the employee does not perform the duties of the position because of sick leave, annual leave, compensatory time, medically monitored duty, absence without leave or suspension from duty without pay."

While the present petitioner was on jury duty he was not "on the job" (Personnel Department rule No. 5.2.2[b] ) and was not "actually working" (Woltjen, supra, p. 680). It follows that the period he was on jury duty should not be included as part of the probationary period.

On June 7, 1983, when the notice of termination was served, petitioner was still a probationary employee who could be dismissed without a specification of the reasons therefor and without a hearing (Matter of Talamo v....