Know Your Rights: Provisionals and the Law

Know Your Rights

Provisionals and the Law

By JAMES A. BROWN

The manner by which provisional employees are hired and retained within the City of New York represents one of the great failures of the civil service. For example, the city regularly violates Civil Service Law 65(2), which prohibits provisional employment beyond nine months. The city also contravenes Section 65(3) by continuing provisional employment for more than two months (or four months under certain circumstances) after a civil service eligibility list for that title is established.

Enforcing the laws restricting provisional employment is a difficult undertaking for reasons which will be explored in a future column. Today, I examine a recent Federal court decision in which the Health and Hospitals Corporation actually used the Section 65(3) "two-month rule" (which mandates termination of provisional employment) to "shield" itself against a charge of employment discrimination.

Race Claim

In Springer v. City of New York, a case decided last month, the plaintiff was a carpenter employed by HHC. The plaintiff had passed a civil service exam; however, he was not appointed from the list and was subsequently hired as a provisional carpenter. After approximately seven years, plaintiff's employment was terminated.

He then commenced his lawsuit alleging, in part, that HHC discriminated against him based on age and race. While the plaintiff's Title VII claims were dismissed as untimely, the court did consider the plaintiff's racial discrimination claim under 42 U.S.C. 1981 (a post-Civil War anti-discrimination statute which has a three-year statute of limitations).

In weighing the plaintiff's Section 1981 claim, the court applied the same "burden-shifting" test used in the more frequently invoked Title VII claims. Accordingly, the plaintiff was first required to demonstrate a "prima facie" case for discrimination by showing that he: (a) belonged to a "protected class" (based on race); (b) was performing his job duties in a satisfactory manner; (c) was adversely treated; and (d) under circumstances giving rise to an inference of discrimination. The court in Springer found that the plaintiff satisfied these fairly easy "prima facie" requirements.

Burden-Shifting Test

Under this burden-shifting analysis, HHC was then required to offer a legitimate, nondiscriminatory reason for terminating plaintiff. Here, HHC relied on the very same civil service law too often disregarded by public employers. HHC cited Section 63(3)'s "two-month rule" and argued that it terminated the plaintiff (who had failed a second civil service exam) because his name was not on the new civil service list.

At this stage of the analysis, the plaintiff was required to demonstrate that HHC's purported "legitimate, nondiscriminatory" basis for his termination was merely a "pretext" (or a "lie") for unlawful discrimination. Ultimately, the court found that the plaintiff failed to show that HHC's reliance on the "two-month rule" was a mere "pretext" and thus dismissed the plaintiff's wrongful termination claim before it reached a jury.

Spotty Compliance

We can only wonder whether HHC could have prevailed with its "two-month rule" defense if the record had reflected just how often public employers violate the civil service laws governing provisional employment. In other words, a public employer states that it terminated a provisional employee not for discriminatory reasons but because it was compelled to comply with this "two-month rule." What if it could be demonstrated that compliance with the civil service law governing provisional employment was an infrequent event and never a high priority for that public employer?

Needless to say, we want full compliance with the laws governing provisional employment. However, we should also be wary when a public employer terminates an employee for discriminatory reasons and then justifies its actions based on the employee's provisional status.

The bottom line is that we need full compliance, and not selective compliance, with the civil service laws governing provisional employment. Better compliance and enforcement of those laws would clearly benefit those who play by the rules and pass civil service exams. We also need to ensure that public employers become "honest" employers in full compliance with the law governing provisional employment.

James A. Brown is a partner in the law firm Brown & Gropper, LLP. He can be reached at (212) 366-4600 and at jabrownlaw@aol.com.