Termination Of Promotional Probationary Period Does Not Necessarily Mean Termination From Job

Christine Pesta began work as a career service employee with Florida’s Department of Corrections (DOC) in 1996, and was promoted to Correctional Officer Captain in July 2008. On May 12, 2009, while she was still on probationary status as captain, DOC issued an “Extraordinary Dismissal Letter” terminating her employment at DOC that day. DOC alleged that she had “engaged in inappropriate and unlawful conduct by participating in the unnecessary use of force” on an inmate by allowing him to be sprayed with chemical agents “even though he was not creating a disturbance at the time.” The letter further alleged that Ms. Pesta falsely maintained in an incident report that the chemical agents were applied to quell a disturbance, and provided false testimony about the incident during an interview with the Inspector General’s Office.

Pesta challenged her discharge with Florida’s Public Employment Relations Commission (PERC). Pesta was also charged criminally, and while battery and perjury charges were tried, proceedings at PERC were stayed. After her acquittal on both criminal charges, DOC filed a motion to dismiss Pesta’s PERC appeal.

DOC’s argument was that a career service employee may appeal her dismissal to PERC only if she has been in her current position for at least a year. Since Pesta had been in her promoted position less than a year, DOC contended, she had no right to challenge her termination. When PERC agreed with DOC and dismissed the appeal, Pesta challenged the decision in the Florida Court of Appeals.

The Court reinstated Pesta’s challenge to her discharge. The Court cited a Florida statute to the effect that “a career service employee who is serving a probationary period in a position to which he or she has been promoted may be removed from that promotional position at any time during the probationary period but must be returned to his or her former position, or a comparable position, if such a position is vacant.”

While the statute gives no rights to employees who are terminated for cause, Pesta argued that there was no cause for her discharge. The Court found that unless appeal rights existed for employees such as Pesta who were terminated while on promotional probationary status, an employer could simply evade the “for cause” requirement:

“Where, as here, an employee serving a probationary period in a promotional position disputes that she was terminated from DOC for cause, and asserts that there was a position available to which she should have been returned (or transferred) as required by the statute, the employee is entitled to a hearing at which the question of whether the agency had cause for the termination can be decided. Otherwise an employing agency could strip all permanent career service employees of PERC hearing rights by the simple expedient of promoting them from one career service position to another on one day and firing them from the agency the next.”

Pesta v. Department of Corrections, 2011 WL 1414039 (Fla. App. 1 Dist. 2011).

This article appears in the June 2011 Issue