Opinion
November 12, 1970
Appeal in a proceeding brought pursuant to CPLR article 78 from a judgment of the Supreme Court, Albany County, directing respondent's reinstatement in the employment of the State University of New York at Buffalo, with back pay, and directing an investigation by the Board of Trustees of the State University into the truthfulness of an affidavit submitted by the University's Director of Personnel in which he stated reasons why it had not been possible to reinstate respondent theretofore. On March 18, 1968 respondent was appointed from a list of eligible candidates to a position as assistant purchasing agent at the State University of New York at Buffalo. Toward the end of his probationary term respondent was notified that his performance was not considered satisfactory and his services would be terminated at the expiration of the probationary term. Respondent immediately upon the termination of his employment sought relief through the grievance procedure for State employees (4 N.Y.CRR 80). On April 14, 1969 the grievance appeals board rendered its decision which held the evidence indicated that respondent had not been given sufficient opportunity during the probationary period to learn the job and demonstrate his competence, and while recognizing that respondent had contributed to his own difficulties recommended that he be reinstated to a similar position in the State University, preferably at a new location. The appeals board expressly declined to recommend back pay for respondent. Efforts were thereupon made to reinstate respondent in an assistant purchasing agent title, first at locations other than Buffalo, and finally at Buffalo, allegedly without success. On or about June 3, 1969, the respondent commenced this proceeding pursuant to CPLR article 78, to compel his reinstatement, with back pay. Special Term granted the relief requested and further ordered the Trustees of the State University to investigate the allegations made in the affidavit of Harvey Randall, Personnel Director of the State University, as to the availability of positions as assistant purchasing agent at Buffalo, and the instant appeal ensued. It is well settled that the employment of a probationary appointee may be terminated at the end of the probationary term without a hearing and without specific reasons being stated ( People ex rel. Sweet v. Lyman, 157 N.Y. 368; Matter of Going v. Kennedy, 5 A.D.2d 173, affd. 5 N.Y.2d 900; Matter of Voll v. Helbing, 256 App. Div. 44). Review is thus limited to a review of the appointing officer's good faith in directing a termination ( Matter of Going v. Kennedy, supra; Matter of Gribbin v. Kennedy, 7 Misc.2d 479). On the instant record we find no basis to disturb the administrative determination to terminate respondent's employment. There is evidence as to respondent's performance being less than satisfactory, that his attitude was defensive when criticized or corrected and that he refused to follow prescribed procedures. We do not find that respondent was not given ample opportunity to show his ability to perform as an assistant purchasing agent. that bad faith on the part of the appellants' agents led to his dismissal or that respondent was discriminated against because he was not from western New York. And the decision of the grievance appeals board, which is merely advisory ( 4 NYCRR 80.5) is not controlling. Nor do we find any basis for Special Term's directive for an investigation of the truth of Mr. Randall's assertions. Judgment reversed, on the law and the facts, and petition dismissed, without costs. Herlihy, P.J., Reynolds, Staley, Jr., Greenblott and Sweeney, JJ., concur.