AELE LAW LIBRARY OF CASE SUMMARIES:
Employment & Labor Law for Public Safety Agencies
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Probationary Employment
California
correctional officials' notice of rejection attempting to remove a man from the
position of correctional sergeant was invalid since the effective date of the
rejection was after the completion of the employee's probationary period. The
court further held that the proper calculation of a civil service probationary
period under California law includes the first day in the position, despite a
general rule to the contrary for calculating time limits in several state
statutes. CA Dept. of Corr. & Rehab. v. CA St. Personnel Bd., #F069100, 238
Cal. App. 4th 710, 2015 Cal. App. Lexis 608.
A
Milwaukee police recruit was in her probationary period and was required to
have 16 months of "actual active service" to become a full officer.
She was assigned to clerical duties, however, when she injured her knee during
training. She was placed in a new recruit class but before graduating, again
injured her knee. The city did not consider her clerical assignment
"actual active duty," even though she was considered a law
enforcement officer under state law. She was placed back in a clerical
assignment and it was not considered that her probation had ended. She sued,
but after the trial court rejected her lawsuit and while an appeal was pending,
accepted a settlement. The appeal was dismissed as moot, as the union lacked
standing to pursue the lawsuit on its own. Milwaukee Police Assoc. v. Bd. of
Fire & Police Comm'rs, #11-2314, 2013 U.S. App. Lexis 3884 (7th Cir.).
A probationary officer who can be summarily fired
lacks standing to raise due process claims in a §1983 action. White v. Hall,
#09-15072, 2010 U.S. App. Lexis 15874 (Unpub. 11th Cir.).
Overturning an arbitrator, the deputy sheriff was
lawfully removed during her probationary period and returned to her previous
job as a dispatcher. The bargaining agreement precluded her from filing a
grievance. Donini v. Frat. Order of Police, #08CA3251, 2009 Ohio 5810, 2009
Ohio App. Lexis 4889, 187 LRRM (BNA) 2572 (4th Dist.).
Third Circuit rejects a wrongful termination
lawsuit brought by an officer who had his probationary period extended because
of pending criminal charges. His placement on administrative leave interrupted
his successful completion of the probationary term and he was still a
probationary, at-will employee when he was fired. Bartal v. Borough of
Laureldale, #07-2951, 2008 U.S. App. Lexis 16024 (Unpub. 3rd Cir.), affirming
515 F.Supp.2d 556 (E.D. Pa., 2007).
Management did not violate the plaintiff's due
process and expressive association rights by terminating his employment as a
probationary officer. Under state law, a cadet can be dismissed for any reason
or none at all. Grabiak v. Penn. State Police, #06-4078, 2008 U.S. App. Lexis
9119 (Unpub. 3rd Cir.).
New York's highest court denies tenure to
"provisional" public employees that were hired outside the civil
service system; one had worked for the city for 19 years. A one-year tenure
provision in the bargaining agreement was unenforceable because they were never
legally hired. City of Long Beach v. Civil Serv. Emp. Assn., #54 (2007), 2007
N.Y. Lexis 893.
Ninth Circuit affirms the rule that a
probationary employee is not entitled to a name-clearing hearing if terminated
without a stated reason. The fact that an investigative report was sent the
prosecutor is not publication of stigmatizing allegations. Moreover, "an
employee has no need for a name-clearing hearing in connection with criminal
charges, because the criminal justice system adequately protects whatever
procedural rights are due him." Riverside Sheriff's Assn. v. Co. of
Riverside, #03-56007, 126 Fed. Appx. 840, 2005 U.S. App. Lexis 6304, 2005 WL
668648 (Unpub. 9th Cir. 2005). [2005 FP Jul]
Federal appeals court upholds public employer's
decision to re-impose a one-year probationary period for a rehired employee
after a 13-year break in service. Shelton v. Dept. of Air Force, #04-3136, 382
F.3d 1335; reh. den. 2004 U.S. App. Lexis 26376 (Fed. Cir. 2004). {N/R}
Federal air marshal, who was terminated for
tardiness and circumventing airport security procedures, lacked a right of
appeal because of his status as a probationary employee. Corbett v. Dept. of
Homeland Security, #NY-0752-03-0363-I-1, 2004 MSPB Lexis 1196 (MSPB 2004).
{N/R}
Federal court in Philadelphia concludes that a
probationary officer, who was fired after his arrest on a morals charge, is
entitled to a name-clearing hearing. His acquittal of all criminal charges did not
satisfy the hearing requirement. Graham v. Johnson, #02-7794, 2003 U.S. Dist.
Lexis 12146 (E.D. Pa. 2003). [2003 FP Oct]
California Supreme Court holds that a
probationary officer is protected by the Public Safety Officers Procedural Bill
of Rights, which prohibits putting secret and derogatory information in a
employee's personnel file; generally, those rights cannot be waived. A newly
appointed officer can, however, waive the right to inspect the contents of a
background investigation if the allegations relate to conduct before he was
hired, but not to conduct after he was employed. County of Riverside v. Super.
Court of Riverside Co. (Madrigal), #S094675, 27 Cal. 4th 793, 42 P.3d 1034,
2002 Cal. Lexis 1878 (Cal. 2002). [N/R]
California appellate court holds that placing an
officer, accused of rape, on inactive duty status, did not extend his
probationary period. Winter v. Los Angeles, B148898, 2002 Cal.App. Lexis 2557
(2002). [N/R]
An Ohio city and the police union can agree, in a
bargaining agreement, to extend the probationary period (from 6 to 9 months),
and if the agreement is otherwise valid, an officer with more than 6 but less
than 9 months service can be terminated without cause. Ste. Marie v. City of
Dayton, #C-3-99-513, 162 F.Supp.2d 766, 2001 U.S. Dist. Lexis 14624 (S.D. Ohio
2001). {N/R}
In Connecticut, a city can summarily terminate a
probationary employee for unsatisfactory service. A probationary employee
cannot appeal a dismissal or use the union grievance procedure to complain of
his termination. Farrish v. Town of E. Hartford, #00-7578, 2001 U.S. App. Lexis
745 (Unpub. 2nd Cir.). {N/R}
A city's collective bargaining agreement could
extend the period of probationary employment from six months, provided under
city charter, to one year. Somers v. Minneapolis, #00-1849, 245 F.3d 782, 2001
U.S. App. Lexis 5113 (8th Cir.). {N/R}
Terminated police officer was still in a
probationary status in spite his claim that his service as a police dispatcher
should be included in calculating his service, Dispatchers were in different
bargaining unit, which did not provide for transfers into other police units.
Trotwood (City of) and Ohio P.B.A., 115 LA (BNA) 1067 (Keenan 2001). {N/R}
Arbitrator rules that a city did not need “just
cause” to terminate a probationary police officer, even if the collective
bargaining agreement did not mention a probationary period. State Coll. Bor.
and St. Coll. Police Assn., FMCS Case #98/01418, 110 LA (BNA) 718
(Franckiewicz, 1998). [1999 FP 76]
Procedure and time limits for summarily
terminating recruits must be strictly complied with. Appellate court orders
reinstatement where superiors informed the officer, but not the police
commission, before the probationary period ended. Zeron v. Los Angeles, 67
Cal.App.4th 639, 79 Cal.Rptr.2d 130, 1998 Cal. App. Lexis 902. [1999 FP 27]
Federal court dismisses suit by terminated
probationer even though agency may have not followed its own IA procedures.
Lewis v. Harris, 965 F.Supp. 1179 (C.D. Ill. 1997). [1998 FP 105]
Appellate court allows a police dept. to extend
the probationary time of a person under investigation for misconduct, if that
officer is not assigned to his or her regular duties. Garcia v. Bratton, 649
N.Y.S.2d 703 (A.D. 1996). [1997 FP 59]
Probationary police officer could be discharged
without a hearing and without a statement of reasons, in the absence of a
showing the termination was for a constitutionally impermissible purpose.
Beacham v. Brown, 627 N.Y.S.2d 358 (A.D. 1995). {N/R}
Probationary police officer did not have a
"mutually explicit understanding of continued employment" because of
assurances allegedly made by a sergeant who is now the chief, the former chief,
and a village trustee, because each of these officials lacked the legal
authority to bind the village to an employment agreement. Only the village
president, acting with the consent of the village trustees, had the authority
to hire and fire police officers. Ericksen v. Vil. of Willow Springs, 876
F.Supp. 951 (N.D.Ill. 1995). {N/R}
Lieutenant who was demoted during the
probationary period, was not entitled to a hearing or appeal. Prosen v. Dimora,
79 Ohio App.3d 120, 606 N.E.2d 1050 (1992). [1993 FP 122-3]
Police Board could terminate a probationary
officer without a hearing, even though police dept. regulations provided for a
Board hearing to any member who wants to contest disciplinary action. A police
dept. regulation is not binding on a Board of Fire and Police Cmsnrs.. Faustrum
v. Bd. of Fire and Police Cmsnrs. of Wauconda, 608 N.E.2d 640 (Ill.App. 1993).
[1993 FP 155-6]
Uniform Employment Termination Act [final draft]
requires "good cause" for termination of covered employees. Enacting
states will decide whether to include untenured governmental employees. Uniform
Employment Termination Act, IER Manual (BNA) 540:21.
A pre-hearing suspension of an employee before
his probationary period ends, extends the period and postpones the recognition
of permanent employee status. DiFiglia v. Ward, 551 N.Y.S.2d 245 (A.D. 1990).
New York appellate courts continue to hold that a
probationary public employee may be dismissed without a stated reason, and
without a hearing. De Sapio v. Koehler, 551 N.Y.S.2d 1 (1990).
N.Y. appellate court rejects suit in behalf of
newly appointed police officer, filed after N.Y. City increased the
probationary period from 12 to 18 months. Caruso v. Ward, 546 N.Y.S.2d 853
(A.D. 1989).
A female police cadet who was terminated from the
academy for a failure to meet the department's physical standards, had no
property interest in her job for the first 12 months of employment. Richardson
v. City of Albuquerque, 857 F.2d 727 (10th Cir. 1988). {N/R}
City could not extend probationary period by
promoting employee to a different classification; she was entitled to be
reinstated in her former tenured position. McGraw v. City of Huntington Beach,
882 F.2d 384 (9th Cir. 1989).
Appellate court in Texas reaffirms rule that a
probationary employee is not entitled to a termination hearing. Other courts
may differ; a hearing may void litigation liability. Garcia v. Garcia, 751
S.W.2d 274 (Tex.App. 1988).
Appellate Court sustains termination of
probationary firefighter without grounds for removal or need for pretermination
hearing. Trivoli v. Multnomah Co. Rural Fire Prot. Dist. 10, 703 P.2d 285 (Ore.
App. 1985).
Absent statute or personnel rules, public
employees can be terminated at will; no expectation of continued employment.
Duncan v. City of Oneida, Tenn., 735 F.2d 998 (6th Cir. 1984).
Civil service authority may delegate power to
terminate probationary employees to the chief without statutory authority.
Cheek v. Dye, 439 N.E.2d 523 (Ill.App. 1982).
Hearing not required in case of probationary
employee. Borger v. Borough of Stone Harbor, 178 N.J. Super. 296, 428 A.2d 958
(1981); State ex rel. Rieke v. Hausrod, 67 Ohio St. 2d 337, 423 N.E.2d 870
(Ohio 1981).
Wisconsin denies probationary employee a
statement of charges or hearing on termination. Kaiser v. Bd. of Police and
Fire Cmsnrs. of Wauwatosa, 311 N.W.2d 646 (Wis. 1981).
Burden is on probationary employee to demonstrate
that required exam was not "practical" and did not properly test his
abilities. Sullivan v. Bd. of Fire and Police Cmsnrs. of Lisle, 430 N.E.2d 636
(Ill.App. 1981).
Probationary period starts to run from first day
on job, not date of appointment or retroactive pay date. Major v. DeFrench, 286
S.E.2d 688 (W. Va. 1982); Rizzo v. Schmanek, 439 A.2d 1296 (Pa. Cmwlth. 1981).
Florida appellate court rules that probationary
employees are not entitled to pretermination hearing; Florida Bill of Rights
was inapplicable; New York and Missouri courts concur with respect to non-civil
service employees. Bembanaste v. City of Hollywood, 394 So.2d 1053 (Fla. App.
1981); see also: Carter v. Murphy, 437 N.Y.S.2d 344 (A.D. 1981); McNichols v.
City of Wellston, 613 S.W.2d 2d 215 (Mo.App. 1981).
Dismissal of a probationary officer without
hearing upheld in Illinois; probationary period could be extended during a
period of pending disciplinary investigation. Scheeler v. Fire & Police
Cmsn. of Chillicothe, 407 N.E.2d 219 (Ill.App. 1980); see also Moran v. City of
Knoxville, 600 S.W.2d 725 (Tenn. App. 1979).
Kentucky upholds termination of probationary
employees without civil service protections. Rottinhaus v. Bd. of Cmsnrs. of
Covington, 603 S.W.2d 487 (Ky. App.).
Department under no duty to "promote" a
cadet to officer; no hearing incident to termination is required. Arsenault v.
Mayor of Taylor, 296 N.W.2d 351 (Mich. App. 1980).
Probationary employee not entitled to
name-clearing pretermination hearing unless he denies charges against him.
State ex rel. Swarout v. Civil Serv. Cmsn. of Spokane, 605 P.2d 796 (Wash. App.
1980).
Pretermination hearing not required: Gonzales v.
Police Cmsnr. of Boston, 375 N.E.2d 342 (Mass. App. 1978).
Probationary period of six to twelve months is
ambiguous; a certainty of probationary period required by the Alaska Supreme
Court. Duncan v. City of Fairbanks, 567 P.2d 311 (Alaska 1977).
Probationary officer's dismissal affirmed; single
instance of off-duty intoxication shown. Kestler v. City of Los Angeles, 146
Cal.Rptr. 61 (App. 1978).
Under Connecticut law, a “probationary employee
is not entitled to the protective procedure accorded a career or permanent
employee.” Millard v. Conn. Persnl. App. Bd., 170 Conn. 541, 368 A.2d 121
(1976). {N/R}
Right of management to terminate a probationer
without a hearing upheld: Romanik v. Board of Fire & Police Cmsnrs. of East
St. Louis, 338 N.E.2d 397 (Ill. 1975); Civil Serv. Emp. Assn. v. Wallach, 369
N.Y.S.2d 510 (A.D. 1975).
Arbitrator holds that the contract determines
hearing rights of probationary employees. City of Nashua, N.H. and IAFF L-789,
(Purcell, 1976).
Probationary employee’s right to termination
hearing discussed: Smith v. Pima Co., 548 P.2d 1151 (Ariz. 1976).
See also: Disciplinary Hearings; Reductions in Force.