Tyson v. Hess , 109 A.D.2d 1068 ( 1985 )

— Judgment reversed, on the law, without costs, and petition dismissed, in accordance with the following memorandum: Petitioner has been employed by the East Syracuse-Minoa Central School District (School District) as a school bus driver since 1972. She held a part-time noninstructional, noncompetitive, unclassified civil service position. The School District had become dissatisfied with petitioner’s work performance. On November 16,1983 petitioner, during the course of her assigned run, dropped a four-year-old prekindergarten student approximately two miles away from the designated drop-off point. Several days later she received a certified letter notifying her that she was being terminated because of her “inability to maintain discipline with students on school bus assigned routes * * * [her] gross negligence in the transporting and safe delivery of young students, and inability to effectively deal with parents of student riders”.

Petitioner commenced a CPLR article 78 proceeding seeking reinstatement with back pay and a due process hearing on her termination. Respondent moved to dismiss, asserting that petitioner was an at-will employee who could be terminated without cause and without the necessity for a hearing. Petitioner maintained that she had a contract of employment for a definite term. Special Term found that reference to a 10-month time period in conjunction with a salary calculated on the basis of employment for the full school year was sufficient to create a definite term of employment. We disagree.

It is well established that “where an employment is for an indefinite term it is presumed to be a hiring at will which may be freely terminated by either party at any time for any reason or even for no reason (see, Martin v New York Life Ins. Co., 148 NY 117; Parker v Borock, 5 NY2d 156).” (Murphy v American Home Prods. Corp., 58 NY2d 293, 300-301.) The annual salary notice which specified a 10-month period of employment and the letter from the School District continuing her services as a bus driver “for the 1983-84 academic year” do not create a contract of employment for a definite term. The fact that compensation is measured by a specific period of time does not render the employment a hiring for a specific term (Watson v Gugino, 204 NY 535; Martin v New York Life Ins. Co., 148 NY 117; Chase v United Hosp., 60 AD2d 558, 559; Cartwright v Golub Corp., 51 AD2d 407, 409). An employer, public or private, has the unqualified right, to terminate an at-will employee without any kind of hearing, absent a constitutionally impermissible purpose, a statutory proscription, or an express limitation in the individual contract of employment (Murphy v American Home Prods. Corp., supra, p 305; Weiner v McGraw-Hill, Inc., 57 NY2d 458; Matter of Bergamini v Manhattan & Bronx Surface Tr. Operating Auth., 62 NY2d 897, 899; Matter of Ause v Regan, 59 AD2d 317, 323), none of which is present here. As an unclassified civil service employee, petitioner had no right to a pretermination hearing (Matter of Ause v Regan, supra). Petitioner has failed to establish that termination of her employment violated any constitutional, statutory or contractual provision (Matter of Bergamini v Manhattan & Bronx Surface Tr. Operating Auth., supra, p 899).

Public employees in the noncompetitive class, such as petitioner, are protected from bad-faith discharge but they remain “at-will” employees subject to dismissal upon a proper exercise of the appointing authority’s discretion (see, Matter of Voorhis v Warwick Val. Cent. School Dist., 92 AD2d 571, 572). “The Legislature, by enacting section 75 of the Civil Service Law, which sets forth in detail those public employees who may not be discharged without just cause, has declined to extend such protection to employees in petitioner’s position” (Matter of Voorhis v Warwick Val. Cent. School Dist., supra, p 572).

All concur, except Hancock, Jr., J. P., and Boomer, J., who dissent and vote to affirm in the following memorandum.