Will the claim that a teacher had child care issues and her principal evidenced bias cause a probation termination to be reversed?

No. Although she had a prior satisfactory teaching history before she went off payroll, the appellant in this matter was placed on probation. While on probation she had observation and attendance issues. The teacher claimed that her own child care issues and her principal’s animus toward her, due to the child care issues, were the source of her poor observations. She also sought to withdraw her previous resignation which she found out before her termination that she did not need to be on probation.

The court below found that the court challenge to the teacher’s attempt to withdraw her previous resignation was untimely. Additionally the DOE’s termination was not based on any prejudice or bias and was not made in bad faith as the need of the orderly running of the school outweighed her child care issue.

The Appellate Division, First Department, affirmed.

This case must be seen in the context of the procedural position it occured. While discrimination can and is often the basis of bad faith in this instance the requirement that a teacher not be excessively absent will not be lessened, necessarily, due to child care issues. Had the teacher filed her proceeding challenging her prior resignation she might not have been terminated as she would have her tenure where termination is legally more difficult. Tenure restoration after resignation can generally be restored within 5 years. See Chancellor’s Regulation C-205.

In the Matter of Bababunmi Adelana, Appellant, v. New York City Department of Education et al., Respondents. 194 A.D.3d 463 (2021)143 N.Y.S.3d 5402021 NY Slip Op 02976, Appellate Division of the Supreme Court of New York, First Department. Decided May 11, 2021.

Can a paraprofessional accused and terminated for an alleged inappropriate involvement with a twenty year old special education student seek reinstatement when he appealed to court almost two years after his last day of work despite the UFT refusal to take his case to arbitration?

No. James Barnes, Jr., a paraprofessional at P 754X was accused of an inappropriate relationship with a 20-year-old female special education student on February 24, 2010. He was reassigned pending an SCI investigation. On October 7, 2010, a due consideration conference was held to give petitioner a chance to respond to the SCI report with his UFT representative present. Petitioner was formally terminated and placed on the “Ineligible Inquiry List” in a letter dated October 19, 2010. On October 21, 2010, petitioner filed his initial grievance appeal and a Step 2 grievance appeal conference was held on January 7, 2011. On January 21, 2011, the Chancellor’s Representative issued a grievance decision denying petitioner’s grievance, finding that “the grievant received due process and was properly terminated without contractual violations.” Petitioner appealed to the UFT union’s Ad Com Grievance Committee to take further action. In a letter dated June 8, 2010, the Committee denied the appeal and declined  to take any further action on petitioner’s behalf, stating “that the Union cannot overcome the Department of Education’s argument that you were terminated for good and sufficient reason and received due consideration.”

Barnes started his Article 78 petition on August 31, 2012.

The statute of limitations for Article 78 proceedings is 4 months and in termination cases the time starts to run from the petitioner’s “last day of work.” Barnes argued that the Union’s delay in deciding to take the matter to arbitration tolled or extended this limitations period.

Justice Alexander W. Hunter, Jr. disagreed and ruled that Barnes’ petition was untimely and dismissed his petition.

Barnes had also argued that the SCI investigator admitted he falsified telephone records which were used to establish Barnes’ alleged inappropriate relationship. Justice Hunter ruled that under Labor Law Sections 537 and 623 evidence from unemployment hearings is inadmissible in subsequent court proceedings.

In the Matter of the Application of James Barnes, Jr., Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, -against- The Department of Education of the City of New York, Respondent, Index No.: 401944/12, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2013 N.Y. Misc. LEXIS 268; 2013 NY Slip Op 30091U, January 16, 2013.

Can a probationary teacher who submits a letter of resignation, effective immediately, rescind that letter once she was made aware of the 30 day notice requirement to prevent her from being placed on the ineligible/inquiry list?

No. Gina Sartori was a probationary social studies teacher at Dr. Susan McKinney High School when, in the middle of the year, she submitted a letter of resignation which was effective immediately. At the time, she claimed, that she was not advised by her Chapter Leader or the principal that her failure to provide 30 days’ notice would put her on the ineligible/inquiry list, barring her from future DOE employment. She claimed that the principal told her that resignation was the only way to “save” her license.

Several weeks after submitting her letter of resignation she learned of the consequences of her failure to provide notice and sought to rescind her letter.

When the principal refused to allow her to rescind the letter she filed a grievance which was denied.

Sartori filed an Article 78 to challenge the refusal to rescind her letter and for reinstatement. The DOE answered that Sartori was not forced to resign and that the DOE no longer maintains an ineligible/inquiry list. The DOE argued that while the list is no longer maintained a resignation without the 30 days’ notice “would be flagged for violating Chancellor’s  Regulation C-205(26)(b) for resigning without giving 30 days’ notice, triggering an investigation into her service history by the Office of Personnel Investigation” should the teacher seek employment with the DOE in the future.”

Justice Lobis dismissed Sartori’s petition after finding she was not coerced into submitting her immediate resignation and that the DOE did not act arbitrarily in denying her reinstatement or permitting her to rescind her resignation.

GINA SARTORI, Petitioner, -against- CITY OF NEW YORK; NEW YORK CITY, DEPARTMENT OF EDUCATION; DENNIS WALCOTT, CHANCELLOR of NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents, for an Order and Judgment Pursuant to Article 78 of the Civil Practice Law and Rules. Index No. 102614/12, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2013 N.Y. Misc. LEXIS 322; 2013 NY Slip Op 30163(U), January 25, 2013.

Can a New York City Teaching Fellow be terminated solely for failure to complete a pre-service training period?

Yes. Steve Loren was accepted into the Teaching Fellows program in April 2012 and was terminated just two weeks prior to his obtaining his transitional B Certificate on July 31, 2012. The Teaching Fellows program provides an alternative path to a teaching credential and Loren, based on the program literature, believed he could only be terminated for attendance or some egregious conduct while training. He maintained that unsatisfactory field performance was an insufficient ground for his termination.

The DOE countered that Loren was involved in a questionable activity of video-taping a class he was teaching with his cellphone and besides as long as the DOE was not arbitrary it could dismiss a pre-service Teaching Fellow in the same way it could remove a probationer. The DOE claimed that its reasons for Lorens’ termination were not arbitrary and moved to dismiss Lorens’ petition.

Justice Joan B Lobis agreed with the DOE. The Court ruled that the NYCTF Field Guide and other manuals did not creat a contractual right and did not establish that the DOE’s determination was made in bad faith.

In the Matter of the Application of STEVE LOREN, Petitioner, For a Judgment  Pursuant to Article 78 of the Civil Practice Laws and Rules, -againstTHE NEW YORK CITY DEPARTMENT OF EDUCATION, and DENNIS WALCOTT, As CHANCELLOR OF THE NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents. Index No. 401945/12 SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2012 N.Y. Misc. LEXIS 5936; 2012 NY Slip Op 33093U, December 20, 2012, Decided

Can a teacher, wrongfully terminated, insist that she be placed back to her former school rather than into the Absent Teacher Reserve?

No. The Appellate Division, First Department, has ruled that a Diana Hrisinko, a former Commercial Art Teacher at the High School of Art and Design had no right to placed back into her school after the Court found that she had been wrongfully terminated.

The DOE dismissed Hrisinko, without a hearing, maintaining she was still on probation. Hrisinko appealed to the New York State Supreme Court and won. Justice Marilyn Diamond found that she had obtained tenure by estoppel and was entitled to a hearing before termination. Justice Diamond awarded Hrisinko over 3 years back pay and reinstatement.

Upon reinstatement the DOE assigned Hrisinko as an ATR and refused to place her back in Art and Design. Hrisinko appealed to Court for contempt. Jusitce Joan Lobis ruled that her reinstatement order did not include a specific direction to the DOE to place her back in her original position. This was affirmed by the Appellate Division.

Observation. It is interesting to note that Justice Diamond had retired before Hrisinko’s contempt application. Also no reference to the CBA or grievance procedure was made.

In re Diana Hrisinko, Petitioner-Appellant, v Board of Education of the City School District of the City of New York, et al., Respondents-Respondents. 8752 110191/08, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2012 N.Y. App. Div. LEXIS 8328; 2012 NY Slip Op 8431, December 6, 2012, Decided, December 6, 2012, Entered