The Petitioner, Alicia Ignacio, was employed by the Westchester County Health Care Corporation (hereinafter referred to as "WCHCC") as an Ultrasonography Technologist in the OBGYN Department from January 1, 2008 until her termination on October 16, 2009. This is a civil service position. Ms. Ignacio was terminated on October 16, 2009, without a disciplinary hearing. The Petitioner has now filed the instant Article 78 proceeding arguing that she served beyond the maximum probationary period commencing on January 1, 2008 and ending on December 31, 2008. The Petitioner claims that her civil service status thus became permanent on December 31, 2008, and therefore, she was entitled to the protections of Civil Service Law §75. The Petitioner claims that the Respondents acted in an arbitrary and capricious manner by unlawfully terminating the Petitioner from her employment and that she was terminated "suddenly" as retaliation for reporting certain actions of her immediate supervisor which violated proper consent procedures during an OBGYN ultrasound scan. The Petitioner seeks an order from this Court reinstating her as an Ultrasonography Technologist with full back pay, benefits and other resulting damages from the date of her termination. She also seeks a finding that the Respondents' termination of the Petitioner was arbitrary, capricious and made in bad faith without regard to the applicable facts.

The Respondents' position is that the Petitioner was not a permanent employee and, in fact, did not even begin her probationary period. This was due to the fact that her appointment to the noncompetitive position never became effective as she did not meet the requirements established for the position, nor was she approved by the Commissioner of Human Resources. As such, the Petitioner was not entitled to the due process protections of Section 75 of the New [*2]York State Civil Service Law. The Respondents argue that the Petitioner's evaluations were sub par and her termination was based upon her poor performance. Therefore, as the Petitioner did not meet the minimum requirements for her job or perform well, she should not have been hired, and therefore, her termination was not arbitrary, capricious or in violation of the law.

The crux of the instant application seems to be whether the Petitioner was a non-probationary permanent employee, and therefore, was entitled to a due process hearing before her termination of employment pursuant to New York State Civil Service Law §75.

Westchester County Civil Service Rules, Rule 11, Probationary Appointment states:

Rule 11.1(b) of the Westchester County Civil Service Rules states in pertinent part only that "[T]he probationary term for training positions, in which an appointee is required to serve a specified training term, shall not be less than twelve (12) weeks, nor more than fifty-two (52) weeks. . . ."

Rule 11.1(c) of the Westchester County Civil Service Rules provides, in pertinent part only, that "[A]n appointment shall become permanent upon the retention of the probationer after his/her completion of the maximum period of service. . . ."

Rule 11.1(d) of the Westchester County Civil Services Rules states in pertinent part only that "[I]f the conduct or performance of a probationer is not satisfactory, his/her employment may be terminated at any time after the completion of the minimum period of service, and on or before completion of the maximum period of service. A probationer whose services are to be terminated, shall receive written notice at least one week prior to such termination, and a copy of such notice shall be sent to the Commissioner of Human Resources."

The Court of Appeals has held that "an appointment becomes permanent upon completion of said minimum period unless the probationer is given written notice as prescribed that the probationary term will be continued.; that, if such notice is given, the probationer achieves permanent status upon completion of the maximum period of service or upon earlier notice after completion of the minimum period that the probationary term has been completed.; and that, if the probationer's conduct or performance is not satisfactory, his or her employment may be terminated at any time after completion of the minimum period and before the completion of the maximum period." [See Albano v. Kirby, 36 NY2d 526 (1975). The Court of Appeals held in that case that since the Petitioner had served the minimum period of probation without any notice of continuance as a probationer, that the appointment became permanent, and he was entitled to relief. [See also Marlow v. Tully, 100 AD2d 786 (1st Dept., 1984)].

In Higgins v. La Paglia, a probationary correction officer with a probationary term as being a minimum of eight weeks and a maximum of fifty-two weeks was terminated. The lower court held that no hearing was necessary since the record contained evidence of unsatisfactory job performance which alone may have provided a rational basis for termination. The Appellate Division, Third Department reversed, holding that the petitioner was entitled to a hearing due to the facts in the record. [See Higgins v. La Paglia, 281 AD2d 679 (3rd Dept., 2001)].

In the case at bar, the Petitioner was hired on January 1, 2008 and not terminated until October 16, 2009, approximately twenty-one months later. Thus, she clearly completed her [*3]probationary term.As there is no evidence in the record as to a continuation of her probationary period, her position became permanent, and the Petitioner could no longer be summarily terminated as she was a permanent civil service employee with due process rights and tenure protection pursuant to Section 75 of the New York State Civil Service Law. The Petitioner in this matter was illegally and summarily terminated without any of the aforementioned protections or a hearing, notwithstanding that there were at least two doctors' complaints regarding the Petitioner's work performance in June and July of 2009. While the Court realizes that the Petitioner's work performance may have been poor or below average and perhaps termination may have been warranted (see Petitioner's evaluation dated August 8, 2008 - Exhibit A, Respondent's Verified Answer; Dr. Smith's memorandum dated June 30, 2009 - Exhibit C, Respondent's Verified Answer, and Dr. Otkay's e-mail dated July 31, 2009 - Exhibit D, Respondent's Verified Answer), to terminate the Petitioner, WCHCC should have gone through the proper channels and procedures necessary under the circumstances.

As to the Petitioner's allegations that she was fired in retaliation for complaining about her direct supervisor's improper patient care, this Court finds that there was insufficient evidence in the record to support this position. One of the doctor's complaints was in June of 2009, and the Petitioner was not terminated until four months later. Additionally, the Court reviewed the evaluation of the Petitioner from August of 2008, showing that her performance was just below average. These factors alone do not convince this Court that the Petitioner was, in fact, terminated in retaliation for making a formal complaint against her direct supervisor.

Additionally, the Court notes that in the Petitioner's Employee Performance Evaluation Form (see Exhibit A, Respondent's Verified Answer) in the "objectives and additional comments" box, it states that the Petitioner has some goals to work on to improve over the next six months, but there was improvement and "[I] anticipate a higher rating at next evaluation." This shows that as of the Petitioner's evaluation, which was approximately eight months after she was initially hired, she was expected to continue to work there and to improve as of August 8, 2008.

The Court also notes that the "Local Jurisdictions Personnel Transaction Form," attached to the Petitioner's Notice of Verified Petition, states that the Petitioner is "PERM" in the box that says "Civil Service Status," even though the Respondents claim that it was merely a mistake. [See Exhibit B, Verified Notice of Petition].

Furthermore, the fact that the Respondents indicate that the Petitioner was never qualified for the position of an Ultrasonography Technologist, they, in fact, hired her anyway! In fact, the Petitioner worked there for twenty-one or so months! The Respondents attached an Affidavit from Ms. Alice McClusky, a Senior Personnel Staff Assistant, who stated that in 2007, a decision was made to hire Ms. Ignacio and "it became apparent that she did not meet the minimum qualifications of the position contained in the job specifications for Ultrasonography Technologist. Nonetheless she was hired. . . ." [See Respondent's Verified Answer, McClusky Aff'd]. Additionally, the Court has examined the letter attached from Paula Redd Zeman, Commissioner of Human Resources (Exhibit B, Respondent's Verified Answer by Gregory S. Spicer) that stated that the Petitioner was never actually approved for the job because she did not meet the minimum requirements. Why would the Petitioner be allowed to perform ultrasounds on patients, if she never met the minimum requirements for the position and when the [*4]Respondents became aware that the Petitioner did not become certified by the Commissioner of Human Resources? To now say that the Petitioner was not ever a "probationary" employee because she was unqualified for the job she was hired for, in the opinion of the Court, is bad faith. Her termination was, in fact, arbitrary and capricious. The record shows that the Petitioner was evaluated within the fifty-two weeks of her maximum probationary period, and if the Respondents had just cause, they could have terminated the Petitioner within the appropriate time frame as a temporary, probationary employee.

Therefore, the Petitioner is reinstated retroactively to the date of termination with benefits and compensation. Should the Respondents wish to proceed with a termination hearing, the Petitioner must be given proper notice of the charges and of the disciplinary hearing date with the hearing to be held immediately.

The foregoing constitutes the decision, order and judgment of the Court.

Dated:White Plains, New York

June 3, 2010

ALBERT LORENZO

ACTING SUPREME COURT JUSTICE