Opinion
February 11, 1999
Appeal from the Supreme Court, New York County (Leland DeGrasse, J.).
Petitioner Earlene Bethel (petitioner) has been employed by the City of New York since the late 1970's. She held a variety of positions at the Community Development Agency (CDA) and its parent agency, the Human Resources Administration (HRA). Between July 1990 and June 1993, petitioner was employed by CDA as a budget analyst under the permanent civil service title of Contract Specialist II. In June 1993, she passed the competitive civil service examination for the title of Staff Analyst. In July 1994, she went on leave from her position as Contract Specialist II to accept a position as Staff Analyst, provisional. On April 17, 1995, after serving as a provisional Staff Analyst for 9 months, petitioner was appointed from the Civil Service list to the position of Staff Analyst. At the time of this appointment, petitioner was informed that her leave from the title of Contract Specialist II was canceled.
Petitioner was evaluated twice during her probationary period and received an overall evaluation of "very good" both times. However, on December 29, 1995, the staff in petitioner's department was engaged in a large agency mailing. Petitioner refused to participate in the mailing and became abusive to her supervisors. Petitioner also unsuccessfully attempted to meet with CDA Commissioner McGrath-McKechnie without an appointment, and continued her disruptive behavior after the Commissioner refused to meet with her. After CDA's General Counsel wrote a letter to HRA's discipline director, petitioner was summarily dismissed from her employment on January 11, 1996. Subsequently, petitioner wrote to CDA requesting reinstatement to her old position of Contract Specialist II, pursuant to Personnel Rules and Regulations of the City of New York (City Personnel Rules [55 RCNY Appendix A]), rule 6.2.7. Her request was denied.
Petitioner commenced the instant article 78 proceeding on May 8, 1996, seeking to annul her termination from City employment. She alleged that respondents' actions in dismissing her and refusing to reinstate her to her old position were arbitrary and capricious, that the refusal to reinstate her violated the City's own guidelines and that her termination without notice and a hearing violated Civil Service Law § 75 Civ. Serv. because she was a permanent employee.
In its decision and judgment entered September 2, 1997, the IAS Court rejected each of petitioner's arguments and dismissed the petition. It found that upon her appointment to the permanent title of Staff Analyst, petitioner was a probationary employee who was not entitled to notice and a hearing under Civil Service Law § 75 Civ. Serv. before she could be terminated. The court further, determined that her leave from her old position was properly canceled, and that she was not entitled to automatic reinstatement pursuant to Civil Service Law § 63 Civ. Serv. (1) and 55 RCNY (Appendix A) 5.2.3, since she was not promoted to her new position, but had voluntarily sought appointment to it.
On appeal, petitioner maintains that her termination by respondents while allegedly a probationary employee, and respondents' refusal to reinstate her to her former position, were arbitrary, capricious and an abuse of discretion. Although we agree with respondents that petitioner was a probationary Staff Analyst under the applicable statute and rules, we conclude that, under the unique circumstances presented, respondents' cancellation of petitioner's leave from her former position prior to the expiration of her probationary period was an abuse of discretion. Thus, as a permanent employee on leave, petitioner was entitled to a hearing pursuant to Civil Service Law § 75 Civ. Serv. (1) (a) on the questions of her termination and respondents' refusal, to reinstate her.
We reject, as did the IAS Court, petitioner's argument that she was not a probationary Staff Analyst at the time she was dismissed. Civil Service Law § 63 Civ. Serv. (1) provides that "[e]very original appointment to a position in the competitive class * * * shall be for a probationary term." Contrary to petitioner's suggestion, this provision does not apply only to entry-level positions, but to all "original appointments" irrespective of the appointee's prior civil service (see also, City Personnel Rules [55 RCNY Appendix A] 5.2.1 [a]).
Petitioner's stronger argument is that her former position should have been held open pending completion of her probationary period as a Staff Analyst. This argument finds support in both the Civil Service Law and the City Personnel Rules. Civil Service Law § 63 Civ. Serv. (1) 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 and shall not be filled, except on a temporary basis, pending completion of his probationary term." The same requirement is found in rule 5.2.3 of the City Personnel Rules. Petitioner argues that upon her appointment to probationary Staff Analyst, respondents should have kept her former position open until her probation expired pursuant to these provisions, and that cancellation of her leave was inconsistent therewith.
Respondents contend that these provisions apply only to employees who are promoted, and not to those who voluntarily seek another permanent position in the competitive class by appointment. In Matter of Engoren v. County of Nassau ( 163 A.D.2d 520, 524, lv denied 77 N.Y.2d 805), the Second Department ruled under similar circumstances that a dismissed probationary employee had no right to reinstatement to her former position under Civil Service Law § 63 Civ. Serv. (1) because she was not promoted, but rather had "voluntarily divested herself of permanent employment" by resigning to accept an original appointment as a Probation Officer Trainee. Respondents in this case argue that since petitioner did not take a promotional exam, and was not in a direct line of promotion, she was not "promoted." Therefore, according to respondents, the aforementioned provisions requiring agencies to hold open an employee's former position do not apply.
This case is distinguishable from Engoren because the petitioner in this case never resigned from her position as Contract Specialist II. Rather, she sought appointment to a better position, served therein on a provisional basis, and respondents unilaterally canceled her leave from her old one. Although petitioner did not object to the cancellation, it seems unlikely that petitioner was aware that such action would result in a forfeiture of the civil service protections afforded by her status as permanent employee. As petitioner did not "voluntary divest" herself of her permanent position, her expectations of maintaining civil service employment were markedly different from that of the petitioner in Engoren.
Moreover, with respect to the right to reinstatement, respondents offer no persuasive argument as to why the petitioner should be treated any differently than a permanent employee who seeks advancement through a direct line of promotion. Indeed, as the dissenting opinion in Engoren noted, the term "promotion" is not given a precise definition in the Civil Service Law and the successful completion of a competitive examination and subsequent appointment to a permanent position, with its increased salary, prestige and responsibility, clearly "operate[s] as a promotion" (supra, at 526 [Harwood, J., dissenting in part]). Conversely, respondents' narrow interpretation of the term "promotion" would clearly function as a disincentive to civil service employees in permanent positions to seek advancement through competitive examinations. The Legislature could not have intended such a result.
Further support exists in respondents' own guidelines, which demonstrate that petitioner did not forfeit her earned entitlement to civil service protection. The City Personnel Director provided petitioner with a document entitled Updated Personnel Document (UPD-B) Applicant Guidelines (Applicant Guidelines), which discusses the requirement that permanent employees must obtain a leave of absence from a permanent position in order to hold it open while seeking appointment to another. The Applicant Guidelines also state: "Normally leave in the above-mentioned situations is granted automatically when the employee does not change agencies" (emphasis added). The IAS Court, based on an earlier passage in the Applicant Guidelines, concluded that "the above-mentioned situations" referred only to an employee on leave who is appointed to a nonpermanent position, whereas the petitioner in this case sought a permanent position. We disagree, and find that the Applicant Guidelines support petitioner's argument that permanent employees seeking another position in the same agency are routinely, or "automatically", granted leave from their previous position. Thus, in canceling petitioner's leave from her old position in the same agency, thereby divesting her of her permanent employee status, respondents acted contrary to their own guidelines. This was an abuse of discretion.
The clear purpose of the provisions requiring agencies to hold open a promoted employee's former position pending completion of a probationary period (Civil Service Law § 63 Civ. Serv. [1]; 55 RCNY [Appendix A] 5.2.3), and those establishing an automatic extension of leave (Applicant Guidelines), is to provide some measure of job security to a permanent employee seeking higher civil service positions. This salutary purpose is certainly not advanced by relying on respondent's narrow interpretation of the term "promotion" to divest a long-standing employee of the protections afforded by the Civil Service Law due to a single, unfortunate incident. Notably, petitioner does not seriously dispute the inappropriateness of her behavior. While respondent's right to discipline petitioner is unquestioned, the issue here is whether petitioner was entitled to the procedural protections afforded by the Civil Service Law that are due permanent employees. We conclude that she was.
Respondents argue that petitioner's leave was properly canceled because it is inefficient to allow one employee to hold two permanent positions, thereby preventing them from filling vacancies. However, this position is squarely rebutted by rule 5.2.3, which requires City agencies to hold open a promoted employee's former position pending completion of a probationary period, and is further undermined by rule 6.2.7, which gives agencies the discretion to reinstate appointed or promoted employees to their former position. It is hardly uncommon, therefore, for City agencies to hold positions open for employees seeking advancement to higher positions, especially for a limited probationary period.
That is not to say that petitioner is entitled to reinstatement. City Personnel Rules (55 RCNY Appendix A) 6.2.7 states that permanent employees who are appointed or promoted to another position, and who have served continuously, "shall be eligible" for reinstatement to their former position or a similar one. This provision endows City agencies with discretion to reinstate permanent employees, and it is up to CDA to make this determination regarding petitioner. While CDA has already declined to reinstate petitioner to her former position, it did so summarily without affording petitioner the right to respond. Since we conclude that petitioner's leave was improperly canceled, and therefore she remained a permanent employee on leave from her former position, CDA's summary dismissal and refusal to reinstate petitioner without notice and hearing was in violation of Civil Service Law § 75 Civ. Serv. (1).
Concur — Ellerin, J. P., Williams, Mazzarelli and Saxe, JJ.