Will a probationary termination be upheld where a Chapter Leader, on probation, first started getting unsatisfactory reviews after she wrote a letter to the principal?

No. While it is a bit unusual that a probationer would accept the position of Chapter Leader such a decision was made by a Staten Island teacher. The teacher had performed and was rated satisfactorily up until she wrote a letter to the principal asking how she could make up prep periods. At that point the principal began rating her unsatisfactorily.

Both the Supreme Court and Appellate Division, Second Department found that the teacher’s probationary dismissal was in bad faith and reinstated her with back pay.

The Supreme Court had granted the teacher tenure which the Second Department found was something the Courts could not legally do and sent the matter back to the DOE for further proceedings.

 In the Matter of Lisa Capece, etc., respondent, v Margaret Schultz, etc., et al., appellants. (Index No. 80361/08), 2012-03257, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT, 2014 N.Y. App. Div. LEXIS 3775; 2014 NY Slip Op 3834, May 28, 2014



Does a subsequent removal of a chapter leader for a disciplinary hearing render an arbitration ordering the DOE to meet with him moot?

No. Francesco Portelos was elected as UFT Chapter Leader at IS 49 in Staten Island in July 2012. As Chapter Leader Portelos brought two grievances against the principal, Linda Hill, in which he alleged that she refused to meet with him as part of the UFT Consultation Committee to discuss budget allocations and refused to meet with him to discuss other matters pursuant to the collective bargaining agreement.

The two grievances were combined in an arbitration before Jeffrey B. Tener on May 16, 2013 who sustained the grievances. The DOE refused to comply with the award because, it claimed, that “On April 25, 2013, the office of Special Commissioner of Investigation issued a lengthy report that dealt with Portelos both as the subject and as the complainant {DOE-6) The report discussed various allegations against Portelos and stated that “The investigation confirmed most of the allegations reported here.”* (p. 2) The report did not specifically identify those allegations.”

At the time of the arbitration award Portelos was not the subject of charges and had not been removed from his school.

The DOE refused to comply with the arbitration award. The UFT commenced a proceeding to enforce the award.

In a decision dated November 14, 2013 Justice Joan B. Lobis decided that the DOE’s argument that subsequent charges filed against Portelos rendered the matter moot was not a proper grounds for refusal to confirm the award.