In a recent case, the New Mexico Court of Appeals upheld administrative hearing examiner and district court conclusions that a change to non-probationary status was effective the date issued, rather than the date purported to be effective.
In City of Albuquerque v. AFSCME Council 18, 2011-NMCA-021, cert not applied for, a Department Manager sent a memorandum to the Department Head on January 10, 2008 recommending a change from probationary to non-probationary status effective January 21, 2008, for an employee that began work on July 23, 2007. That same day, the Department Head approved the change of status, and the following day the Department Head publicly approached and congratulated the employee on the change of status.
Later that same day, however (January 11), the employee received a memorandum extending the original period of probation an additional 30 days, or until February 21. Then, the employee was terminated on February 5, in a notice that provided no further justification besides stating the employee was probationary so could be terminated for any or no reason.
As we can see from the timeline, it is true as the hearing examiner and courts concluded that positive action was taken on January 10 and 11. However, no one seems to have directly addressed the fact that contrary action was taken prior to the stated effective date of the positive action. The Court of Appeals notes that “a definitive and clear decision regarding Puccini’s status was made January 10, 2008.” The Court goes on to observe that the statements and actions “expressly and without doubts, reservation, or unclarity, manifested to Puccini that she was no longer a probationary employee effective January 21, 2008.”
The decision does not indicate whether or not a notice of effective “revocation” of the change of status, such as the January 11 memo extending probation until February 21, could have been effective if stated more clearly or if reasons for the change of position were given. Basically, the Court simply ignores the January 11, 2008 memo, and treats it as being of no effect whatsoever.
Therefore, the lesson appears to be that employers do not get a “do over,” and they must be prepared to abide by an initial decision to change an employee to non-probationary status decisions. It would not appear to behoove employers, under this decision, to issue change of status paperwork early, to ensure the change of status is recorded and acted by Human Resources on or near the effective date.
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