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Sunday, March 11, 2012

Probationary Teachers Terminated By The Department, and Filing An Article 78 Appeal

Many probationary teachers are being discontinued unfairly. I know of a case where the teacher was given "satisfactory" for all his observations by one principal for 2 1/2 years, then all "S" from the principal who replaced the first principal, except for a "U" on his rating sheet his third year, given to him on the last day of school in June 2011. On the rating sheet the comment as to why he received a "U" was "refused to sign the Extension of Probation Agreement".

Why did he refuse to sign the Extension of Probation Agreement? Basically, he did not want to waive his rights to sue the Department for the retaliation and harassment he had received, and a clause said that by signing the agreement he would be waiving his legal rights to sue; secondly, he did not want to work at this school for another year, knowing that he would be observed and given "U" ratings no matter what he did. He had received only one "U" in his teaching career, and this was given to him by an Assistant Principal who was angry at him for reporting problems in the school. This AP did a 20-minute walk-though in november, which, according to UFT rules, could not be included in the end of year rating. Rules don't matter, as we know. The other teachers in the school as well as his UFT representative testified that he was a "gem" in the classroom.

I am an advocate for following the rules but fighting for justice until you simply cannot anymore, and then fighting some more. Teachers are now filing timely Notices of Claim which will allow them to sue the Department, and some do win. See the case of Lisa Capece).

One of the standard arguments of the New York Law Department when they write Cross Motions To Dismiss the Article 78s filed in the NYS Supreme Court by probationary teachers is, that the timing of the filing of the Article 78 is wrong, and the petition must be dismissed. What's the real story?

Here is what the Court of Appeals says:

Posted on February 15, 2012 by Kevin Sheerin

Court of Appeals: Terminated Probationary Teachers have 4 months to file Article 78

Terminated probationary teachers had been faced with a dilemma-should I file an Article 78 within four months of my termination and have the respondent's move to dismiss my petition for "failing to exhaust my administrative remedies" or wait for the decision of an internal appeal and have Respondent's move to dismiss their Petition as untimely having been filed more than 4 months after the termination date.
New York State's highest court apparently resolved this conflict and decided on February 14, 2012 that probationary teachers have four months to file an Article 78 to appeal their termination.  The 4 months time limit runs from the final day of service.
Leslie Khan and Doreen Nash did not file Article 78 petitions within 4 months of their terminations.  Leslie Khan was terminated "... as of the close of business January 25, 2008"  She filed a DOE appeal of her probationary termination on January 3, 2008.   Despite the committee's non-concurrence with the termination on May 9, 2008 the superintendent informed Khan that she "reaffirmed the previous action dated January 25, 2008.  On September 9, 2008 Khan initiated an Article 78.
Doreen Nash started working for the DOE on September 3, 2002.  In 2005 she received a "U" for the 2004-2005 school year. On June 16, 2005 Nash filed a DOE appeal.  Nash's employment was terminated July 15, 2005.  The Chancellor's Committee held a meeting on May 10, 2006 and recommended "non-concurrence".  Nevertheless, the superintendent of Brooklyn High Schools reaffirmed Nash's discontinuance as of "close of business July 18, 2005" Nash filed an Article 78 on September 10, 2008.
The Court held that both Khan and Nash had 4 months to appeal their termination.  Their filing internal Chancellor Committee appeals did not extend the limitation of time to file an appeal.
The Court explained: " Because a determination pursuant to Education Law 2573(1)(a) to discontinue a probationary employee's service becomes final and binding on that employee on his or her last day at work-as Frasier holds-CPLR 217 (1) dictates that any suit to challenge the determination must be commenced within four months after that date.
You can read the Probationary teacher Khan case here.
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