Appellate Court upholds NYCTA’s termination of probationary bus operator after multiple accidents

October 23, 2023 Robert Abruzzese
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A decision by the Appellate Division, Second Judicial Department, has affirmed a prior judgment by Supreme Court Justice Devin Cohen, effectively upholding the New York City Transit Authority’s (NYCTA) termination of Eisha Marks, a probationary bus operator. Marks had appealed Judge Cohen’s ruling, seeking reinstatement to her position.

Marks was initially appointed as a bus operator on March 6, 2016, and her employment was subject to a probationary period. That period was extended multiple times, most recently until Feb. 15, 2019, due in part to Marks’ absence from work. These extensions came with explicit warnings about the potential for termination should she be involved in another motor vehicle accident.

On Feb. 9, 2019, Marks was involved in her third motor vehicle accident while on duty. NYCTA terminated her employment on Feb. 28, 2019, citing this latest accident as grounds for dismissal. Marks then filed a legal proceeding against NYCTA under CPLR Article 78, which was originally denied by Judge Cohen and has now been affirmed by the appellate panel.

The court emphasized that probationary employees can be “dismissed for almost any reason, or for no reason at all,” so long as the termination is not in bad faith or for an illegal or impermissible purpose. The appellate division found that Marks failed to prove that NYCTA had acted in bad faith or in violation of law when terminating her.

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Regarding the timing of the termination, Marks contended that her probationary period had already expired. However, the court determined that the probationary period had been validly extended, endorsing NYCTA’s interpretation that such extensions should be calculated in working days rather than calendar days.

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