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Saturday, September 1, 2012

Probationary Teachers and Getting Their Jobs Back: Matter of Brown, Hazeltine

A more recent case than that of Golomb, however Aisha Brown was not successful at overturning her discontinuance either. Perhaps someone out there might want to read the decision and opinion of NYS Supreme Court Judge Alexander Hunter, who in my opinion has no time for tenured teachers.

Brown v City of New York
2012 NY Slip Op 31472(U)
June 1, 2012
Sup Ct, New York County
Docket Number: 114039/11
Judge: Alexander W. Hunter Jr

Republished from New York State Unified Court
System's E-Courts Service.
Search E-Courts ( for
any additional information on this case.
This opinion is uncorrected and not selected for official

But then there was the case of Chris Hazeltine, who won his Article 78:

NOVEMBER 29, 2011
Gonzalez, P.J., Sweeny, Moskowitz, Acosta, Manzanet-Daniels, JJ.
4915 In re Christopher Hazeltine, Index 115412/09
City of New York, et al.,
Glass Krakower LLP, New York (Bryan D. Glass of counsel), for
Michael A. Cardozo, Corporation Counsel, New York (Susan B.
Eisner of counsel), for respondents.
Order and judgment (one paper), Supreme Court, New York
County (Michael D. Stallman, J.), entered March 2, 2010, which
granted respondents’ cross motion to dismiss the petition
seeking, inter alia, to annul respondents’ determination
terminating petitioner’s probationary employment and the
underlying 2006-07 “unsatisfactory” rating (U-rating) and to
direct respondents to reinstate him to his former teaching
position with back pay, and dismissed the proceeding brought
pursuant to CPLR article 78, unanimously modified, on the law, to
the extent of granting the petition with respect to petitioner’s
2006-07 U-rating, and otherwise affirmed, without costs.

Petitioner’s probationary employment was terminated based on
an “unsatisfactory” rating on his year-end performance review of
his third year of probationary teaching.  To the extent that
petitioner challenges the termination, this claim is time-barred.

A petition to challenge the termination of probationary
employment must be brought within four months of the effective
date of termination.  Further, the time to commence a proceeding
challenging the termination of probationary employment is not
extended by the petitioner’s pursuit of administrative remedies
(see CPLR 217[1]; Matter of Frasier v Board of Educ. of City
School Dist. of City of N.Y., 71 NY2d 763, 767 [1988]; Matter of
Strong v New York City Dept. of Educ., 62 AD3d 592 [2009], lv
denied 14 NY3d 704 [2010]).  Here, the effective date of
petitioner’s termination was August 24, 2007, the date his name
was placed on the invalid/inquiry list, and his petition was not
filed until November 2, 2009, more than two years after his

However, and as conceded by respondents, the petition is not
time-barred to the extent that it seeks review of petitioner’s U-rating.  
 The determination that petitioner’s teaching performance
was unsatisfactory did not become final and binding until the
Chancellor denied his appeal sustaining the rating (see Matter of
Johnson v Board of Educ. of City of N.Y., 291 AD2d 450 [2002]).

We hold that the determination of the Chancellor that
petitioner merited a U-rating, based on two incidents taking
place in March and May 2007, lacked a rational basis and was
arbitrary and capricious.  During the March 2007 incident,
petitioner allegedly verbally berated a student and pulled her
chair while she was seated in it. 

 However, the school’s parent advocate, who witnessed the incident, 
testified at the hearing that the student was pushing her chair towards the 
door when petitioner asked her to leave the classroom.  When the student
reached the doorway, it appeared that she would tip over the door
saddle, whereupon petitioner grabbed the chair.  The parent
advocate further described the student and her mother as
“confrontational.”  The parent advocate testified that the
principal never asked her account of what transpired.  The
The U-rating was also allegedly based on a classroom
observation made on June 14, 2007.  However, petitioner denies
that any such evaluation took place and no documentation of the
evaluation was produced at the administrative hearing or in the
article 78 proceeding, and none appears in the record.  The only
observation report in the record is a satisfactory rating, dated
February 8, 2007, by the assistant principal, who testified on
petitioner’s behalf at the hearing.

The principal also refused to hear the accounts of other students
concerning the incident, contrary to the Chancellor’s regulations
and school procedure, which require interviews with and written
statements from all victims and witnesses as soon as practicable.
Despite petitioner’s concerns about this particular student, the
principal nonetheless asked, on a subsequent occasion, that
petitioner “cover” a class which included the student.  The
assistant principal, who witnessed the conversation between
petitioner and the principal, testified that the principal
refused to remove the student from the classroom, despite
petitioner’s concerns that she might make other accusations
against him.  The principal told the assistant principal that
“[h]e had nothing to worry about.”

The procedural irregularities in this case are troublesome.
The signed but undated report of investigation does not appear to
have been sent to the Office of Special Investigation until May
20, 2007, nearly two months after the incident.  Lines where the
preparer was to indicate the date the Office of Appeal and Review
was contacted, the termination date and the date the report was
prepared were left blank.

During the May 2007 incident, petitioner was allegedly
unable to control a class that he escorted to the cafeteria.
4However, the assistant principal, who shared lunchroom duties
with petitioner that day and was his direct supervisor, testified
that she too could not control the students at the time of the
incident and that she specifically directed petitioner to seek
assistance from the principal for the safety of the children.
She described petitioner as “very effective” in his role as
lunchroom monitor.  Since the determination that petitioner’s
performance merited a U-rating lacked a rational basis, we hereby
grant the petition to the extent it seeks to annul that


Probationary Teachers and Getting Their Jobs Back After Given Discontinuance: Matter of Golomb

The Department of Education is currently discontinuing probationary teachers so that it seems like far fewer people - good or bad in his or her teaching abilities - get tenure. Statistically speaking, this is true. It's very infuriating when I hear that a great teacher has been discontinued on the very day that, had he or she worked, tenure would have been automatic. 

What can a person do? That will be looked at continuously this year by me, along with others, but I might as well start with Mira Golomb. Ms. Golomb was discontinued from her probationary position in September 1977, but then the Chancellor overturned the discontinuance, (this almost never happens today) and she got her job back in September 1978. She then filed an Article 78 to get her back pay, and lo and behold, 

"At the time that the petitioner received the Chancellor's letter, the policy in effect at the board of education was to pay back salary to pedagogical employees who had been discontinued or denied tenure and who were subsequently restored. In October of 1978, this policy was reversed without notice to the teachers' union or to employees who were awaiting back pay."

Who knew? Why did the policy change without the UFT screaming and yelling about restoration to "make whole"?

Not fair.

Betsy Combier

106 Misc.2d 264 (1980)
In the Matter of Mira Golomb, Petitioner,
Board of Education of the City School District et al., Respondents.
Supreme Court, Special Term, Kings County.
August 15, 1980
James R. Sander for petitioner. Allen G. Schwartz, Corporation Counsel, for respondents.

In this CPLR article 78 proceeding, petitioner, a probationary teacher, seeks back pay for the period of her discontinuance from September 6, 1977 to June 22, 1978, when she was reinstated by the Chancellor.

On September 6, 1977, petitioner returned to Bryant High School and was orally informed by the principal that her services were terminated. Hearings were conducted the following January. On June 22, 1978 the Chancellor informed petitioner that he did not agree with the recommendation to terminate. In September of 1978, petitioner returned to work.
At the time that the petitioner received the Chancellor's letter, the policy in effect at the board of education was to pay back salary to pedagogical employees who had been discontinued or denied tenure and who were subsequently
[ 106 Misc.2d 265 ]

restored. In October of 1978, this policy was reversed without notice to the teachers' union or to employees who were awaiting back pay. Petitioner did not become aware of the change in policy until October, 1979. A notice of claim against the board of education was executed on November 24, 1979 and received by the board of education on December 5, 1979.
The petitioner claims that the board of education's determination not to award petitioner back pay is illegal, arbitrary, and capricious. The respondent contends that since the petitioner was a probationary employee she had no right to permanent employment and that the respondents acted completely within their discretionary authority when they discontinued petitioner's probationary services and then offered her reinstatement.
Section 2573 of the Education Law grants a school board the authority to dismiss a probationary teacher at any time. "Such an employee has no property rights * * * and may be dismissed for almost any reason, or for no reason at all". (Matter of Venes v Community School Bd.43 N.Y.2d 520, 525.) Petitioner, as a probationary employee, has no independent constitutional right to permanent employment or due process to termination (Board of Regents v Roth408 U.S. 564Longarzo v Anker578 F.2d 469). Therefore, the only rights to which petitioner can claim entitlement are those termination reviews afforded her through the collective bargaining agreement and set forth in section 5.3.4 of the board of education by-laws.
The by-laws provide only for a post-termination administrative review proceeding to assist the Chancellor in determining the reasonableness of the recommendation that probationary services be terminated. The review proceeding is conducted by a Chancellor's committee and results in an advisory recommendation to the Chancellor. The Chancellor is free to accept or reject the recommendation as he sees fit. He need not set forth findings or reasons for its determination (Matter of McAulay v Board of Educ.61 A.D.2d 1048). Absent a showing of "stigma" or other constitutionally impermissible action by the board (Bishop v Wood426 U.S. 341) (none is alleged herein) the only basis
[ 106 Misc.2d 266 ]

under which the final determination of the Chancellor can be overturned is if under State law, it is determined to be "arbitrary and capricious". (Matter of Kaufman v Anker42 N.Y.2d 835, 836.)

Petitioner has introduced no evidence which indicates that her February 16, 1979 discontinuance or termination reviews were wrongful, illegal or improper. It is undisputed that respondents acted completely within their discretionary authority when they discontinued petitioner's probationary employment. Respondents' later reinstatement of petitioner was also within their discretionary authority. It was not an admission of wrongdoing or an adjudication on the merits of petitioner's earlier discontinuance.
Petitioner has no basis for her claim to entitlement of back pay upon her reinstatement. Neither the Constitution nor New York State law recognizes the right of a reinstated probationer to an award of back pay. An employee who has not worked has not delivered consideration for the payment of wages. Thus, in the absence of a statute requiring the payment of back pay upon reinstatement, a public body is not required to pay back wages since such a payment would be an unconstitutional gift of funds (Matter of Mullane v McKenzie, 269 N.Y. 369, 373; see NY Const, art VIII, § 1; Matter of Boyd v Collins11 N.Y.2d 228, 234).
Accordingly, the petition is dismissed.