Will the termination of a tenured ATR be upheld when he engaged in conversations with students about college and internships that did not offend these students?

No. A substitute teacher covering a double-period class for high school senior students, participated in conversation with a group of the students concerning their college choices and post-graduation internship plans. During the conversation, the teacher offered to serve as a contact point for a potential internship at a media company for a female student who had expressed an interest in film and media. The student testified at the arbitration hearing that she appreciated this and was not offended by the offer. When a male student then indicated that he did not want to do an internship or work during the summer after graduation, the teacher whispered to the female student something to the effect of “watch how they react to this,” and proceeded to tell the students about a valuable internship experience he had before he went to college. The female student also was not offended by this. When another male student expressed his interest in attending a college that was widely reported to be a “party school,” petitioner asked him something to the effect of, “so you’re the type to party with,” or “you want to go to school to party.” The student testified that he was “not offended in any way” by the comment. Rather, the several students who testified generally indicated that they enjoyed the class and found it to have been more interesting than expected from a substitute.

The teacher was terminated by the arbitrator and he appealed. Supreme Court Justice Margaret Chan denied the teacher’s petition finding that while the incident itself may not have been grounds for termination the teacher had a prior disciplinary history involving student teaching and thus taken as a whole the conduct merited termination.

The Appellate Division, First Department, reversed. The Court could not find any rule prohibiting the teacher from engaging in these conversations and thus his termination shocked the conscience and could not be sustained.

In re Jonathan Polayes, Petitioner-Appellant, v City of New York, at al., Respondents-Respondents, 12649, 156710/12, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2014 N.Y. App. Div. LEXIS 3905; 2014 NY Slip Op 3958, June 3, 2014

Can a probationary teaching assistant utilize the state whistleblower law to defeat a school district’s motion to dismiss her petition for reinstatement?

Yes. Civil Service Law Section 75-b, the public sector component of the state’s whistleblower law, protects public employees from termination if they report a violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety or which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action. The provision applies to tenured employees only in so far as it may be raised as a defense in a disciplinary arbitration (where a contract calls for that) and applies to probationers if they seek reinstatement from court.

Maureen Sheil began her probation as a teaching assistant in the Merrick Union Free School District in 2009. One of her colleagues was removed from her school after he was charged with possession of child pornography. Sheil became concerned that another of her colleagues, who still kept ties with the removed teaching assistant, supported the removed teaching assistant in such a way that she believed he presented a danger to students at her school. Sheil reported her concerns to the school’s administration only to be later targeted for what Sheil charged was retaliation for her complaint. Sheil was eventually dismissed by the school district.

Sheil raised Civil Service Law Section 75-b to claim that the dismissal was taken in retaliation for her reporting the association of her colleague with the removed teaching assistant.

Justice Denise Sher of Nassau Supreme Court found that Sheil had made a a viable claim and ordered the school district to answer her petition.

In the Matter of the Application of MAUREEN SHEIL, Petitioner, for a Judgment pursuant to Article 78 of the Civil Practice Laws and Rules, – against – DR. RANIER W. MELUCCI, Superintendent of Schools, Merrick Union Free School District, BOARD OF EDUCATION OF MERRICK UNION FREE SCHOOL DISTRICT, and MERRICK UNION FREE SCHOOL DISTRICT, Respondents, SUPREME COURT OF NEW YORK, NASSAU COUNTY, 2011 NY Slip Op 31242U; 2011 N.Y. Misc. LEXIS 2208, April 28, 2011