Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Wednesday, September 9, 2009

Dismissed probationary teacher presents evidence sufficient to require judicial review of whether termination was made in bad faith

Lisa Capece f/k/a Lisa Grande v Schultz, 2009 NY Slip Op 51679(U), Decided on August 3, 2009, Supreme Court, Richmond County, Judge Philip G. Minardo, [Not selected for publication in the Official Reports.]

Lisa Capece was terminated from her position as a probationary public school teacher at P.S. 1 on Staten Island, New York.

The decision reports that Capece commenced her probationary employment as a fifth grade teacher on January 26, 2005 and her probationary term was to end on January 25, 2008. In November of 2007, however, Capece entered into an "Extension of Probation Agreement"* with the Community Superintendent Schultz, which agreement she alleged was the result of coercion: “threat of immediate termination.”

Capece received two unsatisfactory evaluations during this exptended probationary period: one by her Principal based on a formal classroom observation of her performance and a second: her "Annual Professional Performance Review and Report."

During this period Capece was also required to attend several disciplinary meetings with her Principal and a union representative concerning to alleged instances of "professional misconduct", i.e., her “violation of the school's telephone policy by calling a colleague during instructional time, and altering the program schedule without seeking the permission of an administrator.”

Capece challenged her termination through the several administrative review steps available to her. The ultimate result: the District Superintendent re-affirmed her previous decision “discontinuing [Capece’s] probationary service.”

Capece next filed a verified petition pursuant to CPLR Article 78 alleging that she was subjected to harassment and discriminatory treatment at the hands of the administration of P.S. 1, which at least in part she attributed to retaliation for her union activities. Capece also alleged that entries were made in her personnel file to create a “false and fabricated file" of unsatisfactory performance” in order to support the decision to terminate her.**

Judge Minardo set out the standard used by courts in evaluating cases involing the termination of a probationary employee as follows:

It is well settled that a probationary employee may be discharged "at any time and for any reason, unless the [probationer] establishes that the determination was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith.

Further, said the court, the probationary employee "bears the burden of establishing such bad faith or illegal conduct by competent evidence rather than speculation."

Thus, the law has developed that the appropriate standard of review to be applied in these types of cases is whether the determination to terminate an individual's probationary employment was arbitrary and capricious.

In this instance, said the court, Capece “has sustained her evidentiary burden by the production of sufficient evidence to raise a material issue of fact as to whether or not her discontinuance was made in bad faith, i.e., as a "retaliatory measure designed to punish her [at least in part] for her exercise of her constitutional right to engage in activities as a member of [the] local teachers' union."

Judge Minardo said that “the evidence before the Court indicates that the unsatisfactory performance evaluations and alleged incidents of professional misconduct occurred solely within the period that she was engaged in union activities.” Further, said the court, “This is also the same period during which [Capece] filed the harassment grievance against [her] Principal Gordin.”***

In the words of the court:

As all teachers have the right of free association and union membership as guaranteed by the First Amendment, and where the dismissal of a probationary teacher represents a substantial interference with his or her First Amendment rights, "such action cannot [be permitted to] stand unless it can be shown that...the conduct in question has a clear relationship to the maintenance of an efficient educational system, and the [dismissal] was motivated by a desire to benefit the system rather than to interfere with the exercise of [his or her] constitutional rights."****

Under these circumstances, since the retaliatory nature of [Capece’s] dismissal cannot be determined on the facts thus far adduced and the reasonable inferences that may be drawn therefrom, judicial review is mandated and the matter must proceed to trial.

* The reason for this was "to allow Capece to demonstrate improvement in her alleged areas of 'difficulty', i.e., time management, differentiation in her manner of instruction, adapting her teaching lessons based upon the students' needs, and effectively assessing her students' level of comprehension and individual abilities.

** In support of dismissal, Capece’s superiors contended that notwithstanding three years of experience teaching the fifth grade, certain deficiencies in her teaching skills failed to improve, i.e., Capece was unable to (1) assess the needs of students with differing learning abilities, (2) plan and adapt the lesson to meet the individual needs and capacities of the students, (3) demonstrate a comprehensive knowledge of the curriculum and (4) follow suggestions for improvement.

*** The decision notes that “even the recommendation of discontinuance by the majority of the members of the Chancellor's Committee was forced to concede that the onset of petitioner's "negative evaluations...[happen to] coincide with [her]...election as [the union's] co-chapter leader."

**** See also Civil Service Law §202 [The Taylor Law] wherein it is provided that "Public employees shall have the right to form, join and participate in, or to refrain from forming, joining, or participating in, any employee organization of their own choosing."

The decision is posted on the Internet at:

Public Sector Employment Law | Permalink

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