Jones v. N.Y.C. Transit Auth.

178 A.D.3d 826

115 N.Y.S.3d 95

In the Matter of Rawl A. JONES, respondent,

v.NEW YORK CITY TRANSIT AUTHORITY, appellant.

2017-06870

Index No. 3234/16

Supreme Court, Appellate Division, Second Department, New York.

Argued - June 18, 2019

December 11, 2019

David I. Farber, Brooklyn, N.Y. (Kristen M. Nolan of counsel), for appellant.

Leighton M. Jackson, New York, NY, for respondent.

MARK C. DILLON, J.P., JEFFREY A. COHEN, BETSY BARROS, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

ORDERED that the order and judgment is reversed insofar as appealed from, on the law, without costs or disbursements, the petition is denied, and the proceeding is dismissed on the merits.

On September 28, 2015, the New York City Transit Authority (hereinafter NYCTA) hired the petitioner as a conductor from the open competitive civil service list, subject to a probationary period of employment. The petitioner failed both a final examination on November 17, 2015, and a "retest" on November 18, 2015. After the petitioner failed those exams and was notified that his probationary employment was subject to termination, he submitted to the NYCTA an "Application for Leave of Absence Due to Illness," which contained a physician's certification signed on November 18, 2015, stating that the petitioner suffered from a "cough, headache, runny nose, [and] upper respiratory infection" from November 17, 2015, to November 18, 2015, and could return to work on November 19, 2015. In a letter dated November 25, 2015, the petitioner requested that the NYCTA grant him a third opportunity to retake the final examination, indicating that he "would have passed it if [he] was not sick." He also indicated that on the date of the retest, he had asked to use the bathroom "about five minutes after the test began but permission was refused."

By letter dated November 25, 2015, the NYCTA notified the petitioner that his employment was terminated effective November 26, 2015, "due to an unsatisfactory probationary period." The petitioner subsequently commenced this CPLR article 78 proceeding against the NYCTA to annul that determination and reinstate his probationary employment. The Supreme Court, inter alia, granted the petition, in effect, annulled the determination, and directed the NYCTA to reinstate the petitioner's probationary employment as a conductor. The NYCTA appeals.

" ‘The employment of a probationary employee may be terminated without a hearing and without a statement of reasons in the absence of a demonstration that the termination was in bad faith, for a constitutionally impermissible or illegal purpose, or in violation of statutory or decisional law’ " ( Matter of Gagedeen v. Ponte, 170 A.D.3d 1013, 1014, 96 N.Y.S.3d 349, quoting Matter of Lane v. City of New York, 92 A.D.3d 786, 786, 938 N.Y.S.2d 597 ; see Matter of Ward v. Metropolitan Transp. Auth., 64 A.D.3d 719, 720, 883 N.Y.S.2d 282 ; Matter of Bourne v. New York City Tr. Auth., 274 A.D.2d 581, 581, 712 N.Y.S.2d 396 ). " ‘The [employee] bears the burden of establishing such bad faith or illegal conduct by competent evidence rather than speculation’ " ( Walsh v. New York State Thruway Auth., 24 A.D.3d 755, 757, 808 N.Y.S.2d 710, quoting Matter of Rossetti–Boerner v. Hampton Bays Union Free School Dist., 1 A.D.3d 367, 368, 766 N.Y.S.2d 597 ).

The Civil Service Commission requires that, for all permanent appointments, the employee must complete "a probationary term which shall include a minimum and a maximum period of probation" ( 4 NYCRR 4.5 [a] ). "Obviously, the reason for requiring a minimum period of probationary service is to assure a probationer a reasonable chance to demonstrate his or her ability" ( Matter of Albano v. Kirby, 36 N.Y.2d 526, 532, 369 N.Y.S.2d 655, 330 N.E.2d 615 ). Pursuant to paragraph 5.2.7(c)(1) of the Personnel Rules and Regulations of the City of New York (55 RCNY Appendix A), the minimum probationary period for "every appointment to a position in the competitive or labor class" is two months. Paragraph 5.2.7(b) provides that "whenever any agency has with the approval of the commissioner of citywide administrative services established a prescribed formal course of study or training for all probationary employees in a given title or titles, the agency head may, at the close of such course of study or training,...