Summary
holding that Weeks rule did not apply to employment statute because statutory regulation requiring probationary work period to begin "on the date of ... appointment" "render[ed] inapplicable our usual rule" that date of precipitating act is not counted
Summary of this case from Rutter v. JanisOpinion
State civil service commission regulation 1.4, promulgated pursuant to statute, provided that a six-month working test period for an appointee to a noncompetitive position in the classified service "shall begin" on the date of original appointment. Therefore the working test period for the plaintiff began on July 5, 1965, the day she was told she was hired as a licensed practical nurse in a state hospital, rather than on the day she reported to work, July 6. The rule for computing a period of time expressed in months, stated. Under this rule, the plaintiff's six-month working test period expired at the end of January 4, 1966. Regulation 1.41 provided that an employee "shall attain permanent status . . . upon satisfactory completion of a working test period". Under regulation 1.42, if a service rating report indicated that the employee did not merit permanent appointment, the employee's services were to be terminated. The plaintiff was given an unsatisfactory service rating in a report executed during her working test period. On January 5, one day after the expiration of the working test period, she was informed of her rating and dismissed from her employment. She claimed that the delay of one day ipso facto conferred upon her the status of a permanent employee. Such a delay, however, could not transform her unsatisfactory rating into the satisfactory completion of the working test period which was a prerequisite to permanent status as a state employee. Held that the plaintiff was not entitled to be reinstated in her position with full retroactive pay. By statute (5-43), the personnel director was to be notified of the plaintiff's unfitness for permanent appointment "[w]ithin ten days preceding the termination of the working test period". A short delay in the notification would not raise the plaintiff to a permanent status in the face of regulations 1.41 and 1.42.
Argued October 10, 1968
Decided October 29, 1968
Action in the nature of mandamus to require the defendants to reinstate the plaintiff in her former position as a state employee, with full retroactive pay, brought to the Superior Court in Hartford County and tried to the court, Covello, J.; judgment for the defendants and appeal by the plaintiff. No error.
Kalmen London, with whom, on the brief, were David Brown and Robert A. Michalik, for the appellant (plaintiff).
Robert L. Hirtle, Jr., assistant attorney general, with whom were F. Michael Ahern, assistant attorney general, and, on the brief, Robert K. Killian, attorney general, for the appellees (defendants).
The plaintiff, Patricia Krajniak, applied for a position as a licensed practical nurse at the Uncas-on-Thames Hospital, which is owned and operated by the state of Connecticut. Dr. George C. Wilson, one of the defendants, was the superintendent of Uncas-on-Thames and admittedly the "appointing authority" under 5-43 of the General Statutes. In the afternoon of July 5, 1965, the plaintiff was interviewed and underwent a physical examination. Thereupon, she was told that she was hired and was asked to report for work on the afternoon of the next day and actually commenced work then at 3 p.m.
The plaintiff's work was satisfactory during the first three months of a six-month working test period which had been established for her job by the state personnel director under General Statutes 5-43. Thereafter, by constant complaint about the volume of work and her inability to keep up with it, she manifested a lack of capacity to do the work, and her service rating report, prepared by the nurse in charge and approved by the nurse supervisor and by the director of nursing, set forth the plaintiff's shortcomings in considerable detail and reached the conclusion that the plaintiff was not capable of satisfactorily performing the duties required by her job. Dr. Wilson talked with the nurse supervisor and had her confirm the service rating report before he himself signed it on January 4, 1966.
On January 5, Dr. Wilson telephoned the plaintiff asking her to come to his office, which she did at 4 o'clock in the afternoon. At that time, Dr. Wilson handed her a letter which he had written informing her of her unsatisfactory service rating and closing with the statement that "you are dropped from the State service during your probationary period and effective this date".
The plaintiff's main contention is that Dr. Wilson's power to drop her from her employment if she was unable or unwilling satisfactorily to perform the duties of her job existed only during the working test period; that it was not exercised within that period; and that for that reason she ipso facto acquired a permanent status as an employee under the State Employment Act (General Statutes, c. 63), entitling her, under General Statutes 5-56 and 5-60, to certain rights, including a hearing before the personnel appeal board, in the event of her dismissal from state service.
Actually, she did apply for a hearing before the personnel appeal board, which dismissed her appeal for lack of jurisdiction on the ground that her discharge on January 5, 1966, was within the "working test period", that consequently the plaintiff never attained a permanent status, and therefore that she was not entitled to an appeal.
Under the plaintiff's theory of the case, the first question is whether she was dropped by Dr. Wilson during the working test period or whether, as she claims, she was dropped after the expiration of the working test period.
Regulation 1.4, entitled "Working Test Period", provides: "Each appointee to a permanent position in the classified service shall serve a working test period of six months. . . . If the position is noncompetitive, the working test period shall begin on the date of original permanent appointment." Conn. Civil Service Commission Regs. (1961).
Of Course, there was, and could be, no "permanent" appointment in the sense of an appointment which could confer upon the plaintiff a permanent status at the outset of her employment. Neither side places any reliance on the use of the word "permanent", and we can ignore it as an inadvertent ambiguity in draftmanship, irrelevant to the present controversy.
The plaintiff claims that, since her position was admittedly noncompetitive, the working test period began on the date of her original appointment. The defendants seem to agree that the date of the original appointment must mean the date of actual hiring, and there is no dispute that a fraction of a day is to be considered as a whole day. Sands v. Lyon, 18 Conn. 18, 26. Thus, the working test period commenced on July 5, 1965, and the effect of the regulation was clearly to render inapplicable our usual rule "that the day of the date, or the day of the act from which a future time is to be ascertained, is to be excluded from the calculation". Austin, Nichols Co. v. Gilman, 100 Conn. 81, 83, 123 A. 32.
There is no question that the working test period of six months means a period of six calendar months. General Statutes 1-1; Strong v. Birchard, 5 Conn. 357, 360. Obviously, six calendar months refers to a period of time and not to specific months as named in the calendar.
A period of time of one calendar month, if the first day of that period is the first day of the calendar month, would terminate at the end of the last day of that calendar month rather than at the end of the first day of the next succeeding calendar month. Correspondingly, if the first day of the period is other than the first day of the month, such as July 5 in the present case, the period of one month would terminate at the end of August 4 rather than at the end of August 5. The same rule applies where the period, as here, consists of several months. Thus, in the instant case, since the period of six months began on July 5, 1965, it expired at the end of January 4, 1966. Brown v. Omaha, 179 Neb. 224, 226, 137 N.W.2d 814; In re Lynch's Estate, 123 Utah 57, 58, 254 P.2d 454; 86 C.J.S. 840, 841, Time, 10.
Because of the quoted regulation fixing the first day of her working test period as July 5, the plaintiff is correct in her claim that her working test period terminated on January 4, 1966. Quite properly, she makes no point of the fact that January 3 and 4 were days off for her. This was immaterial in the computation of the period as were intervening, nonterminal Sundays or legal holidays. See Lamberti v. Stamford, 131 Conn. 396, 401, 40 A.2d 190.
The letter handed to her by Dr. Wilson on January 5, and which bore that date, stated that she was "dropped from the State service . . . effective this date". Thus, the date of dismissal was January 5, which was the day next following the day at the end of which the working test period expired.
The next question is what, if any, effect this delay in dropping the plaintiff had upon her status as an employee. She claims that the delay ipso facto conferred upon her a permanent status in the classified service. But regulation 1.41 provides that "[a]n employee shall attain permanent status in the class upon satisfactory completion of a working test period". Although the plaintiff completed her working test period, it was in such an unsatisfactory manner that Dr. Wilson dropped her.
Regulation 1.42 provided that, if the service rating report, which clearly was fully executed during the working test period, indicated that the plaintiff did "not merit permanent appointment, . . . [her] services shall be terminated". Thus, Dr. Wilson was required to terminate the plaintiff's services, which was what he did.
The provision in General Statutes 5-43 permitting Dr. Wilson to drop the plaintiff "during the working test period" cannot be distorted into a prohibition against dropping her one day after the expiration of the working test period. Although the decision as to fitness for advancement to permanent status should be made, and communicated to the employee, within a reasonable time, and preferably before the expiration of the working test period, we cannot hold, as the plaintiff claims, that a one-day delay transforms unsatisfactory work and an inability to perform the duties of her job into satisfactory work and an ability to perform the duties of her job so as to qualify her under regulations 1.41 and 1.42 for a permanent status.
Of course, as the testimony shows, Dr. Wilson supposed that the plaintiff's working test period commenced on July 6, which was the day she started work. But the regulation clearly fixed the first day of the working test period as the fortuitous date of actual hiring. See General Statutes 5-42; Conn. Civil Service Commission Regs., No. 1.4 (1961). While it is difficult to understand why such a regulation should have been promulgated, the fact remains that the regulation controls, and the plaintiff is entitled to take advantage of it.
It is true that the provisions of General Statutes 5-43 indicate that Dr. Wilson should have notified the personnel director of the plaintiff's unfitness for permanent appointment "[w]ithin ten days preceding the termination of the working test period." It is not clear from the record that the director was so notified until January 6. But there is nothing in the statute or elsewhere to indicate that such a short delay on Dr. Wilson's part in notifying the personnel director, even if there was such a delay, would ipso facto raise the plaintiff to a permanent status in the face of regulations 1.41 and 1.42.
We conclude that the plaintiff never attained a permanent status and, so, is entitled to none of the relief which she seeks in this action.