Opinion
February 7, 1977
In a proceeding pursuant to CPLR article 78 in which petitioner, inter alia, seeks reinstatement to her position as an intermediate clerk, the appeal is from a judgment of the Supreme Court, Westchester County, dated August 19, 1976, which, inter alia, (1) directed her reinstatement and (2) directed appellants to conduct a due process hearing. Judgment modified, on the law, by deleting the second and fourth decretal paragraphs thereof. As so modified, judgment affirmed, without costs or disbursements. Provisional employees who are granted pretermination hearings are not entitled to reinstatement and back pay pending the hearing (see Matter of Cohen v Department of Mental Hygiene of State of N.Y., 48 A.D.2d 697; Matter of Perry v Blair, 49 A.D.2d 309; Matter of Reeves v Golar, 45 A.D.2d 163). A provisional employee is entitled to a pretermination hearing upon proof of (1) stigmatization (see Matter of Reeves v Golar, supra; Matter of Civil Serv. Employees Assn. v Wallach, 48 A.D.2d 923; Matter of Jackson v Wallach, 48 A.D.2d 925; Matter of Perry v Blair, supra) and (2) loss of present job (cf. Paul v Davis, 424 U.S. 693). Where the discharge is not related to job performance, proof of publication to the prospective employer is unnecessary (cf. Bishop v Wood, 426 U.S. 341). The charge upon which petitioner claims she was discharged is a crime and this constitutes stigmatizing behavior entitling her to a hearing. Cohalan, Acting P.J., Rabin, Shapiro and O'Connor, JJ., concur.