Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Wednesday, February 25, 2009

Dismissed employee precluded from litigating her termination because of her failure to exhaust her administrative remedies

Matter of Yan Ping Xu v New York City Dept. of Health, 2009 NY Slip Op 50147(U), Decided on January 23, 2009, Supreme Court, New York County [Not officially published]

Yan Ping Xu, a New York City Research Scientist Level I, a position in the non-competitive class, was terminated from her position. She filed a petition pursuant to Article 78 of the Civil Practice Law and Rules seeking an order directing her former employer, the New York City Department of Health, rescind an unsatisfactory performance rating and reinstate to her former position with back pay and money damages and costs.

Yan contended that the Department acted in an arbitrary and capricious manner, in violation of lawful procedure, and in abuse of its discretion. She also contended that she received a copy of her "unsatisfactory" evaluation the day after she was terminated and that she was not provided with the pre-termination due process hearing to which, as a permanent employee, she was entitled.

Significantly, Yan’s appointment status is unclear.

Although Yan alleged that she was a permanent employee with tenure, the evaluation form presented to the court indicated that Yan was a full-time, provisional employee.*

In any event, Justice Paul G. Feinman, apparently accepted her representation that she was a permanent employee for the purpose of adjudicating her complaint.

Justice Feinman concluded that for the purposes of resolving this lawsuit, whether Yan, at the time of her dismissal, a permanent employee serving a probationary period or, in the alternative, having satisfactorily completed her probationary period, a permanent employee with tenure, was irrelevant.

Justice Feinman, for the purpose of deciding the issues raised by Yan, noted that “Article 78 proceeding against a public body may be commenced only when a matter has been finally determined” and an agency determination is deemed final "when the petitioner is aggrieved by the determination."

As a general rule a probationary employees may be terminated at any time,** without a hearing, provided that the dismissal was not for a constitutionally impermissible purpose or in violation of statutory or decisional law. In contrast a tenured employee is typically entitled to due process in the form of a pre-termination hearing.

In this instance it did not matter as Justice Feinman ruled that regardless of whether Yan was a probationary or a tenured employee,*** she failed to follow the proper administrative procedure relevant to her status in challenging her termination. In other words, the court concluded that Yan failed to exhaust the administrative remedies applicable to a probationary employee or a tenured employee, as the case may be.

As Yan contended that she is a tenured employee, Justice Feinman decided evaluate the legal issues involved on that basis.

Justice Feinman indicated that assuming, without deciding, Yan was, in fact, a tenured employee, she was entitled to file a disciplinary grievance challenging her termination in accordance with the terms of a collective bargaining agreement or demand notice and hearing in accordance with Section 75 of the Civil Service Law, as the case may be. Here, however, Yan did not seek a hearing before an arbitrator or a Section 75 disciplinary hearing but filed a lawsuit instead. This, said the court, was “premature” as she had not exhausted her administrative remedy.

As to Yan challenging her performance rating, the court noted that pursuant to “Rule 7.5.5 (a) and (b) of the Personnel Rules and Regulations, a permanent sub-managerial employee is to appeal her performance evaluation to the appeals board set up by each agency, and then appeal if necessary the determination of the appeals board to the head of the agency.” This, said the court, Yan did not do, again failing to exhaust her administrative remedy.

The full text of the decision is posted on the Internet at:

* A provisional employee may be removed from his or her position without notice or hearing for any reason, other than an unlawful or unconstitutional reason, or for no reason at all.

** Typically State and municipal civil service commission personnel rules, and case law, provide that employees in the competitive class and the non-competitive class serving probationary periods have due process rights only if they have not yet completed the minimum period of probation set for their appointment.

For example, 4 NYCRR 4.5(b)(5)(ii), in relevant part, provides that “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.”
In contrast, a probationary employee who has completed the minimum period of his or her probationary period may be terminated at any time prior to the end of his or her maximum period of probation without notice and hearing [see Gray v Bronx Developmental Center, 65 NY2d 904].

In order to dismiss a probationary employee before he or she has completed his or her minimum period of probation, the courts have held that the employer must serve the individual with disciplinary charges; find the individual guilty of such charges and imposes the penalty of dismissal as appropriate under the circumstances on the theory that an individual is entitled to a minimum period during which he or she can attempt to demonstrate the ability to satisfactorily perform the duties of the position.

*** A probationary employee holds a permanent appointment, or in some cases a contingent permanent appointment, but does not acquire tenure in the position until he or she satisfactorily completes the required probationary period.

Reprinted with permission from New York Public Personnel

Mitchell H. Rubinstein

Public Sector Employment Law | Permalink

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Very interesting article. The judge took a very stern view.

Posted by: new york city terminated employee rights | Jul 17, 2009 11:18:41 AM

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