Is a teacher, whose probationary term expired while sitting in the rubber room, entitled to a 3020-a hearing before being terminated?

Yes. Petitioner, a special education teacher from 2011 through June 2016  was reassigned to a “rubber room” pending an investigation in March 2015. She claims that although some of the allegations against her were substantiated, she was placed back in a teaching position on March 7, 2016 and went on leave until the end of the school year in April 2016. She was terminated from employment, without a hearing, on June 15, 2016.

The DOE argued that although her extension of probation had lapsed she was still on probation since she was not preforming teaching duties in the rubber room.

The Court rejected the DOE’s argument holding that tenure by estoppel applied and the petitioner could not be dismissed without a 3020-a hearing. While the Court ordered that the petitioner be restored to her position with back pay it noted that there were serious allegations against the petitioner and her ruling should not be misinterpreted to be seen as protecting an allegedly incompetent teacher.

In the Matter of the Application of CHERYL WILSON, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, v. THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, Respondent. Docket No. 158592/2017, Motion Seq. No. 001.2017 NY Slip Op 31273(U), Supreme Court, New York County. June 12, 2017.

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Will a probationary dismissal be sustained if the probationer fails to sustain her burden that bad faith exists or that the termination was for an improper reason?

Yes. Petitioner, a probationary teacher, was dismissed based upon an investigation finding that she had neglected her duties and falsified records. She brought an Article 78 proceeding and Justice Alice Schlesinger of the Supreme Court, New York County reinstated her.

The City appealed and argued that petitioner had failed to exhaust the grievance procedure and that there was a sufficient basis to dismiss the petitioner since probationers can be dismissed for “almost any reason, or for no reason at all,” as long as it is not “in bad faith or for an improper or impermissible reason.”

The Appellate Division, First Department agreed finding that “[T]he burden falls squarely on the petitioner to demonstrate, by competent proof, that a substantial issue of bad faith exists, or that the termination was for an improper or impermissible reason, and mere speculation, or bald, conclusory allegations are insufficient to shoulder this burden.”

While there was a delay in the issuance of the investigator’s report, the Court held that petitioner had been given timely notice of the allegations.

IN RE ANNA FINKELSTEIN, Petitioner-Respondent, v. BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, ET AL., Respondents-Appellants. 3959, 101540/14. 2017 NY Slip Op 03850 Appellate Division of the Supreme Court of New York, First Department. Decided May 11, 2017.

Can the DOE consider a problem code in future hiring decisions which was placed in a teacher’s file from a prior probationary termination when the U-rating from that termination was reversed on appeal?

Yes. Petitioner, a probationary assistant principal,  received a U-rating after findings of misconduct were made against him. At the time a problem code was placed on his file. On appeal the misconduct findings were reversed and the Court, in 2011, ordered that U-rating and the problem code be removed from his file “to the extent that it was supported by the unsubstantiated conduct.”

In 2014 the petitioner brought a second proceeding challenging the DOE’s maintaining the problem code and claimed that it made him ineligible for promotion.

The DOE argued that the 2011 decision only removed the problem code in so far as it was based on the unsubstantiated misconduct but otherwise had a right to maintain the code.

The Appellate Division, First Department agreed with the DOE holding that petitioner’s discontinuance of probation, which was upheld in the prior proceeding, could be maintained in his file since it was not based on unsubstantiated conduct and was never challenged by petitioner after it was affirmed by the prior court.

The Court wrote, “Even if his job prospects are more limited, petitioner is not prohibited from seeking a position that does not require a certificate of eligibility, i.e., a non-supervisory position; nor is he prohibited from applying to employers outside respondent’s authority.”

IN RE MILCIADES PEPIN, Petitioner-Appellant, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent-Respondent. 3336, 100727/14. Appellate Division of the Supreme Court of New York, First Department. Decided March 7, 2017.

Will the failure to file a notice of claim in an Article 78 challenge to a probationary termination doom the proceeding?

Yes. While not required for most Article 78 proceedings a notice of claim is required when a petitioner seeks to annul the determination of a school district terminating her services as a teacher. The Court of Appeals found that it did not matter that the teacher’s claim for back pay was incidental to her petition to reverse the school district’s determination. Education Law Section 3813 (1) does not distinguish between equitable and positive law claims for the notice of claim requirement for Article 78 proceedings to reverse a probationary termination.
In the Matter of ELIZABETH MCGOVERN, Appellant, v. MOUNT PLEASANT CENTRAL SCHOOL DISTRICT, Respondent. No. 74., 25 N.Y.3d 1051 (2015) 33 N.E.3d 1280 12 N.Y.S.3d 11, 2015 NY Slip Op 04675,  Court of Appeals of New York. Argued April 28, 2015.
Decided June 4, 2015.

Will the Court permit a probationary termination where the deficiencies in the performance review process were not merely technical but undermined the integrity and fairness of the process?

No. Petitioner was hired as a probationary special education teacher. During the first two years of her three ­year probationary period, she had an exemplary record, receiving satisfactory ratings and several letters of commendation. In her third year, on November 20, 2012, petitioner participated in an annual review meeting concerning a special education student in her fourth ­grade class. At the meeting, petitioner opposed the position taken by the school’s special education coordinator and sided with the student’s mother, who had asked that her son be removed from the “Alternate Assessment” program favored by Principal Jennifer Jones ­Rogers .

The very next day, November 21, 2012, the principal conducted the first formal observation of petitioner for the 2012­-2013 school year. On November 26, 2012, after a post-­observation conference, the principal issued an observation report that found petitioner’s math lesson unsatisfactory because: (1) “[she] did not model for children what [she] expected them to do”; (2) “[her] lesson did not address the problem [she] presented for students to solve”; (3) “[she] did not incorporate rigor in [her] lesson effectively”; and (4) “[she] did not include accountable talk structures in [her] lesson.” The report advised petitioner that a “log of support” would be put in place for her “to grow [her] practice and move toward attaining satisfactory performance.” Petitioner submitted a written rebuttal in which she stated that she had conducted the lesson in the exact manner that the principal had outlined in their pre-­observation conference and that the post-­observation conference focused more on the principal’s dissatisfaction with the position petitioner had taken at the Annual Review than on the math lesson in question.

On February 21, 2013, Assistant Principal (AP) Scott Wolfson conducted a formal observation of another of petitioner’s math lessons . The post­-observation conference was not held until April 16, 2013, at which time petitioner was given an observation report that rated the lesson unsatisfactory because: (1) “[w]hile the children within your group were able to solve the problems that [she] presented to them, it was evident that their solutions indicated algorithmic solution strategies rather than a deeper conceptual understanding of the problems”; (2) “[s he] failed to provide opportunities for [her] students to discuss their mathematical thinking with each other”; and (3) the questions that she posed “[did] not serve to develop children’s conceptual understanding of mathematics, which should be our goal.” The report advised petitioner that “[a]s a result of this lesson, we will continue to implement a log of assistance in order to support you in our mutual goal of attaining a satisfactory rating.”

Petitioner submitted a rebuttal stating that “[t]he fact that m y [special education] students were able to solve the word problem s with algorithmic solution was a huge accomplishment for my students who entered the fourth grade far below grade level” and that “Mr. Wolfson wanted to concentrate on the fact [that] the students struggled with conceptualizing their understanding of mathematics , which was not the goal for my lesson plan for that day.” Petitioner added that “Mr. Wolfson and I also planned my lesson together two days before and [he] never mentioned that he wanted to observe how the students conceptualize math.”

Meanwhile, on April 10, 2013, petitioner received a “Summons to Disciplinary Conference” from Principal Jones ­Rogers . On April 18, 2013, after a conference was held, the principal and the AP issued a letter advising petitioner that: (1) “[s he] failed to suggest appropriate modifications to [her] students ‘IEP’s to support their academic needs “; (2) “[i]n the case of [E.G.], [she] failed to provide [E’s ] parents with a promotion in doubt letter”; and (3) “[she was ] negligent in [her] attention to the records and reports required of [her] in [her] capacity as special education teacher.”

On April 22, 2013, petitioner received an overall U­ Rating for the 2012-­2013 school year, even though her performance was rated satisfactory in 14 of the 22 categories considered. The rating form contained a signature by the principal, dated January 19, 2013, recommending “[petitioner’s ] dis continuance of probationary service.” It also contained a signature by the district superintendent, dated January 22, 2013, adopting the recommendation. On April 24, 2013, petitioner received a revised U­ Rating that changed the date of the principal’s and district superintendent’s signatures to April 22, 2013.

The Department of Education discontinued petitioner’s probationary employment as of May 29, 2013, a month before the school year ended. In June 2013, petitioner sought to review her personnel file and discovered that all of her satisfactory written formal and informal observations from the 2010-­11 and 2011-­12 school years were missing. On October 8, 2013, Principal Jones ­ Rogers resigned.

The Appellate Division, First Department found petitioner’s termination and U-rating highly suspicious. The assertion that, after the first observation, the petitioner and the principal discussed the petitioner’s IEP opinion was not refuted at the review hearing. Additionally, petitioner was given no time to “improve her performance” after a long delay in receiving feedback about her performance.

The Appellate Division also noted, in a footnote that “Two months before her resignation, parents, teachers, students and a state senator had held a rally to protest Principal Jones-Rogers’ policies, which allegedly included retaliating against teachers who disagreed with her and cramming students into special education classes without parental consent”

The petition was granted and the matter sent back to the DOE for further proceedings.

2016 NY Slip Op 03454. IN RE LESLIE TAYLOR, Petitioner-Appellant, v. CITY OF NEW YORK, ET AL., Respondents-Respondents. 718, 100383/14. Appellate Division of the Supreme Court of New York, First Department. Decided May 3, 2016.

Will the failure to provide mandated pre-observation conferences require that a U-rating be reversed?

No. While there have been some lower courts which have held that the DOE’s own Manual of Pedagogical Observations acts as a rule or regulation which must be followed, the Appellate Division, First Department has held that observations, which normally require pre-observation conferences, are not required for a U-rating to be sustained.

In re Kameisa Richards

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