Rejection From Probation

appealing rejection from probationThe first thing that a probationary State employee has to be aware of when considering appealing a rejection from probation at any California agency is the legal standard that will be applied at the appeal hearing of that rejection:

Under the law, a person rejected during probation may be restored to his position under the following conditions: only if the board determines, after a hearing, that there is no substantial evidence to support the reason or reasons for rejection, or that the rejection was made in fraud or bad faith. At any such hearing, the rejected probationary employee shall have the burden of proof. Subject to rebuttal by the appealing employee, it shall be presumed that the rejection was free from fraud and bad faith, and that the statement of reasons in the notice of rejection is true. (Government Code section 19175(a).)

While the burden of proof in a disciplinary case is on the appointing power which must prove the charges for rejection by a preponderance of the evidence [Evidence Code § 500; Parker v. City of Fountain Valley (1981) 127 Cal.App.3d 99], the burden of proof in a rejection action is on the employee who must prove that there is no substantial evidence to support the charges or that the rejection was taken in fraud or bad faith [Government Code §19175(d)]. The Court of Appeal in Dona v. State Personnel Board (1951) 103 Cal.App.2d 49, set forth standards applicable to cases involving probationary state employees. The court pointed out, among other things, that in considering evidence, it must be remembered that appellant is a probationary employee…the purpose of a probationary appointment and the rights of the employee, are far different from those of a permanent employee.

In Wiles v. State Personnel Board 19 Cal.2d 344, 347, the purpose of a probationary period for employees was stated as follows: `The object and purpose of a probationary period is to supplement the work of the civil service examiners in passing on the qualifications and eligibility of the probationer. During such period, the appointing power is given the opportunity to observe the conduct and capacity of the probationary employee, and if, in the opinion of that power, that employee is not fitted to discharge the duties of the position, then he may be discharged by the summary method provided for in the Civil Service Act before he acquires permanent civil service status.’

As said by the court in Broyles v. State Personnel Board 42 Cal.App.2d 303, 307: The appointing power must necessarily be allowed to exercise discretion and personal judgment in determining whether a probationary
employee shall acquire permanent status. Further, the rejecting department does not have an obligation to take formal disciplinary action against a probationary employee before rejecting him from probation.

Despite the heavy burden on the employee-appellant at a hearing regarding rejection from probation, not all is bad news. For instance, a probationary employee should be given three reports of performance during his probationary period at approximate four-month intervals to identify any performance deficiencies and to keep him informed of his progress on the job (Cal. Code Regs., tit. 2, section 599.795). There are also strict formal requirements and timelines regarding issuing a notice of rejection.

As Nava case illustrates, one of the more effective ways to fight a rejection from probation in typical cases, alleging rejection from probation due to bad job performance, is to show bad faith on the part of the employer at a hearing. This can be done by demonstrating that an employee was not notified about his alleged performance issues till the last moment and/ or that the employer was deliberating hiding these performance issues by complimenting that employee and telling him he is doing a good job, while writing him up behind his back and without his knowledge. Bad faith can only be showing through any other evidence from which it can be inferred that in rejecting an employee from probation the employer acted for an improper reason, i.e. for personal reasons / grudges, retaliatory reasons, etc.

Of course, just like in most other types of employment cases, having “smoking gun” evidence that the true reason for rejection from probation is improper and different from the one stated in the notice of rejection can be a very powerful evidence in overturning that rejection. This type of evidence can include a document, e-mail, social media message, or even a text message containing information that in so many words shows that the decision makers were motivated by personal grudge or discriminatory / retaliatory reasons. And, of course, having a witness who heard the decision makers express their improper motive for rejecting the employee is also a powerful evidence that should be used to overturn the rejection.

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