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Saturday, November 1, 2014

Retaliation and Harassment by a Principal: Lisa Capece Case

I have posted Lisa Capece's long journey through the Courts of NY before (see below) and I am now posting another 2009 decision by Judge Minardo, 2009.

Probationary Teacher Lisa Capece Wins Her Case Against The NYC DOE, Wins Reinstatement and Backpay

Matter of Capece v Schultz
2009 NY Slip Op 51679(U) [24 Misc 3d 1230(A)]
Decided on August 3, 2009
Supreme Court, Richmond County
Minardo, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on August 3, 2009 

Supreme Court, Richmond County


In the Matter of the Application of Lisa Capece f/k/a LISA GRANDE, Petitioner, 


Margaret Schultz, Individually and in her capacity as Community Superintendent of Community School District 31, COMMUNITY SCHOOL DISTRICT 31, by its Trustees and/or Directors; and THE NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents.


Philip G. Minardo, J.


In this CPLR article 78 proceeding, petitioner seeks review of a determination dated January 9, 2009 by respondent Margaret Schultz, Community Superintendent of Community School District 31 of the New York City Department of Education discontinuing petitioner's probationary service as a public school teacher on Staten Island.

It is undisputed that petitioner commenced her probationary employment as a fifth grade teacher at P.S. 1 on Staten Island on January 26, 2005. Her probationary term was to end on January 25, 2008, however, in November of 2007 she entered into an "Extension of Probation Agreement" with the Community Superintendent Schultz in which she was allegedly coerced into agreeing to extend her probationary period for one additional year under threat of immediate termination. The purported reason for this act of largesse apparently orchestrated by Principal Diane Gordin (hereinafter "Principal Gordin") was to allow petitioner 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.

During this extraordinary extension period, petitioner received two unsatisfactory evaluations from Principal Gordin, i.e., a report dated May 16, 2008 based on a formal classroom observation of petitioner's performance [FN1], and an "Annual Professional Performance Review and Report"[FN2] (hereinafter "APPR") dated June 13, 2008. Petitioner [*2]was also required to attend several disciplinary meetings with Principal Gordin and a union representative pertaining to alleged instances of "professional misconduct", i.e., petitioner's 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.

Based in principal part upon the foregoing, respondent Community Superintendent Schultz notified petitioner by letter dated July 25, 2008 that her "probationary service" had been terminated. She appealed this determination to the Department of Education's Office of Appeals and Reviews, and on December 4, 2007, a hearing was held pursuant to the Chancellor's Regulation C-31 before a Committee designated by the Chancellor. The Committee rendered its "Report" in which two of its three members voted to concur with the recommendation to discontinue petitioner's probationary service. The lone dissenter recommended that the decision be "overturn[ed]". Based on this report, the District Superintendent re-affirmed her previous decision of July 25, 2008 discontinuing petitioner's probationary service. This proceeding ensued.

In her verified petition, petitioner alleges that she was subjected to harassment and discriminatory treatment at the hands of the administration of P.S. 1, in particular Principal Gordin and Assistant Principal Lisa Arcuri, at least in part in retaliation for her union activities. In support, petitioner reiterates that she received solely satisfactory evaluations, letters of praise, and commendations from the previous administration and her colleagues for the prior two and a half years of her probation, as evidenced by, inter alia, the six initial "Supervisor Observation Forms", and APPR's dated June 6, 2005, June 1, 2006 and June 18, 2007, some of which were authored by Principal Gordin, herself. According to petitioner, everything changed after March 15, 2007, "in [apparent] revenge" for her continuing activities as the UFT co-chapter leader. It is further alleged that "in order to create their false and fabricated file" of unsatisfactory performance, Principal Gordin and co-conspirator Assistant Principal Arcuri engaged in "an intense, guerilla campaign of intimidation, criticism and [unwarranted] attacks [upon her]...and a pattern of [issuing her] conflicting instructions and [engaging in] discriminatory treatment." By way of example, petitioner notes that in her final June 18, 2007 APPR, although she received an overall "satisfactory" rating, three of the twenty-three categories were rated "unsatisfactory" by Principal Gordin based upon her alleged manipulation of test score data using a "skewed" analysis to compare the performance of petitioner's students against other students. Allegedly, no other fifth grade teacher was evaluated in this way. In addition, petitioner claims that during the observations of her teaching performance by Principal Gordin on or after March 15, 2007, the latter engaged in a series of disruptive actions calculated to intimidate petitioner and disrupt her lessons from proceeding as planned. Illustrative of the foregoing, is the Principal's purported sorting through items on and inside petitioner's desk while the latter was trying to teach, examining folders that were irrelevant to the lesson, and interrupting petitioner during "guided reading" and "share time". Petitioner also claims to have been "denied continued enrollment" in a literacy workshop for teachers due to her observance of a Catholic holy day of obligation which happened to coincide with the first day of the workshop. It is claimed that none of her colleagues were similarly penalized. Her petition also includes other instances of alleged harassment and abuse on the part of Principal Gordin in support of the contention that her termination was unjust and that she was "singled-out by an administration that took revenge for [her] serving as an advocate for [unionized] colleagues." [*3]

Finally, insofar as it may be pertinent to the instant matter, during her extension period (i.e., on or about January 23, 2008), petitioner filed a "special complaint" with the Chancellor of the Department of Education asserting that she was being subjected to a "course of harassment" at P.S. 1. Although deemed of sufficient merit to send to a Joint Investigating Committee to P.S. 1 to conduct interviews with certain witnesses, it may be worthy of note that the Committee was unable to come to any resolution. A Level 2 Special Complaint Hearing was therefore held on April 14, 2008 before a Hearing Officer assigned by the Chancellor. In the end, petitioner's complaint was denied due to the lack of sufficient evidence.

In opposition to the petition, respondents maintain that any claim asserted by Ms. Cacese is time-barred, and, in any event, she was afforded an extraordinary opportunity to show improvement of her teaching skills in order to avoid termination. Respondents further maintain that although a probationary employee can be terminated at will, the record before the Court is replete with evidence of petitioner's unsatisfactory work performance and misconduct. Therefore, it is argued that the decision to terminate petitioner's probation was not made in bad faith.

In support of dismissal, respondents maintain that notwithstanding three years of experience teaching the fifth grade, certain deficiencies in petitioner's teaching skills failed to improve. More particularly, it is alleged that she 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. Respondents further argue that even if this Court were to find that there is evidence in the record of a "personality conflict" between petitioner and Principal Gordin, it is well settled that mere animosity and personality conflicts do not rise to the level of unconstitutional or illegal conduct (see Forrest v Jewish Guild for the Blind, 3 NY3d 295, 309 [animosity on the job between people of different races held insufficient to support a claim of employment discrimination; unequal treatment based on racial animus is required]).

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" (Matter of Frasier v Board of Educ. of City School Dist. of City of NY, 71 NY2d 763, 765; see Matter of Johnson v Katz, 68 NY2d 649; Matter of York v McGuire, 63 NY2d 760, 761; Matter of Rossetti-Boerner v Hampton Bays Union Free School Dist., 1 AD3d 367, 368). Stated alternatively, judicial review of the discharge of probationary employee is limited to whether the determination was made in bad faith or for an improper or impermissible reason (see Matter of Swinton v Safir, 93 NY2d 758, 763;Matter of Johnson v Katz, 68 NY2d 649, 650). In such cases, it is the employee who "bears the burden of establishing such bad faith or illegal conduct by competent evidence rather than speculation " (Matter of Rossetti-Boerner v Hampton Bays Union Free School Dist., 1 AD3d at 368). Were it to be held otherwise, substantial evidence of, e.g., bad faith, would be required in every case of a probationer's dismissal, thereby standing the probationary process on its head (see Matter of Cipolla v Kelly, 26 AD3d 171). 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 petitioner's probationary employment was arbitrary and capricious (see Von Gizycki v Levy, 3 AD3d 572, 574).

Consonant with the foregoing, it is the Court's opinion that petitioner herein 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" [*4](Matter of Tischler v Board of Educ., Monroe Woodbury Cent. School Dist. No. 1, 37 AD2d 261, 263).

Here, 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. This is also the same period during which she filed the harassment grievance against Principal Gordin. In fact, 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." 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" (id. at 264).

Under these circumstances, since the retaliatory nature of petitioner's dismissal cannot be determined on the facts thus far adduced and the reasonable inferences that may be drawn therefrom, judicial review is mandated (see Matter of New York City Dept. of Envtl. Protection v New York City Civil Serv. Comm., 78 NY2d 318, 323), and the matter must proceed to trial (CPLR 7804[h];see Matter of Martinez v State Univ. of NY Coll. at Oswego, 13 AD3d 749,750-751; cf. Matter of Anonymous v Commissioner of Health, 21 AD3d 841, 844; but see Matter of Johnson v Katz, 68 NY2d at 650; Matter of Weintraub v Board of Educ. of City School Dist. of City of 

NY, 298 AD2d 595).

Accordingly, the petition is granted to the extent that the parties are to appear for a Preliminary Conference on September 15, 2009 at 9:30 A.M.

This constitutes the decision and order of the Court.

E N T E R, 

Dated: August 3, 2009/s/Philip G. Minardo



Footnote 1: A public school's performance review process for a probationary teacher entails a minimum of two formal classroom observations a year, i.e., one conducted by the principal and a second conducted by the teacher's supervisor, an assistant principal. The observations and comments of the prior administrators at P.S. 1 during petitioner's two and one-half years of probationary service had been uniformly positive. 

Footnote 2: This annual review was purportedly based on certain hearsay documents: an observation report dated September 25, 2007; three disciplinary letters dated October 5, 2007, January 16, 2008 and April 9, 2008; an observation report dated November 9, 2007; the final observation report referenced above; a time and attendance printout dated June 3, 2008; and the principal's critique dated June 13, 2009 of petitioner's report card comments. 
Judge rebukes Staten Island principal, reinstates PS 1 teacher
Frank Donnelly | By Frank Donnelly | Staten Island Advance
Email the author | Follow on Twitter
on February 14, 2012 at 4:16 PM, updated February 15, 2012 at 7:23 AM
Diane Gordon
Lisa Capece received positive performance evaluations during her first 30 months at PS 1, Tottenville.

But the glowing reports changed after the Westerleigh resident became involved with the teacher's union and had a dust-up with the principal over preparation periods.
Her reviews suddenly turned poor, she was required to extend her probationary period and was ultimately fired in the summer of 2008.
But after almost four years of legal battles, Ms. Capece, 31, has finally won her job back.
A Staten Island judge has ordered her reinstatement along with back pay, benefits, retroactive seniority and tenure. Justice Kim Dollard also blasted the principal who fired Ms. Capece, saying her sacking had been orchestrated and "done in bad faith."
"Lisa Capece possessed the attributes of an excellent teacher, and, but for arousing the displeasure of Principal Diane Gordin because of her union activity, she would have been granted tenure," Judge Dollard wrote in her recent decision. "It seems evident that it was never [Ms.] Gordin's intention for [Ms. Capece] to obtain tenure, and all of the actions throughout the 2007-08 school year were calculated toward [Ms.] Capece being let go in June 2008."
Ms. Capece's lawyer, Jonathan B. Behrins, said his client's dismissal hurt both her and PS 1 students.
"This is the kind of teacher a parent wants their children to have," said Behrins, a principal in the Bloomfield-based Behrins Law Firm. "We are happy that justice was served and Lisa is reinstated."
Ms. Capece declined comment on the decision, as did Ms. Gordin through a school secretary.
A spokeswoman for the city Department of Education referred all inquiries to the city Law Department.
Adam Collyer, a city lawyer expressed disappointment with the decision. He said the city is considering its legal options.
"She was terminated because she was a poor teacher -- not because of union activities," Collyer said in a statement. "The other UFT (United Federation of Teachers) co-chapter leader at that school has consistently received satisfactory ratings and is still employed."
According to court papers, Ms. Capece was hired, mid-year, in January 2005, to teach a fifth-grade class at PS 1. Ms. Gordin was then the assistant principal, later becoming principal in the fall of 2006.
Ms. Capece's performance ratings over the next two and a half years were all satisfactory, said court records. In addition, administrators, fellow teachers and parents praised her teaching ability.
In 2007, Ms. Capece, along with fellow fifth-grade teacher Diana Allan, became the school's UFT (United Federation of Teachers) co-chapter leaders. Ms. Allan was tenured.
In March of that year, the two women talked to Ms. Gordin about personal prep periods they had missed while proctoring state-mandated standardized tests. By contract, teachers are entitled, on a regularly scheduled basis, to the prep periods to help get ready for class. Missed prep periods are supposed to be made up, or, if not, teachers get paid for them, said court records.
Ms. Gordin told the women to put their request in writing and they did so, asking for a reply in four days (which included two weekend days).
Afterward, Ms. Gordin confronted them, and her attitude toward them changed, said court records. The two women later gave up their union positions.
Ms. Capece, who was not tenured, "was subjected to a course of abuse, harassment, discrimination and disciplinary action" by Ms. Gordin and the assistant principal, the judge wrote.
She "suddenly and unexpectedly" started receiving negative evaluations, despite her students' test scores being on par with other fifth-grade classes. However, those marks were evaluated in a manner designed to appear as though the students performed poorly, the judge wrote.
Ms. Capece, whose three-year probationary period was to end in January 2008, was "pressured" into signing a one- year extension through January 2009. She was threatened with firing if she didn't do so, said court papers.
Judge Dollard viewed the probation extension as a means for Ms. Gordin to create a paper trail and fire Ms. Capece.
"Lisa Capece was cast in a completely different light, almost as if she went from a respected, competent educator to an uncooperative, disorganized, pedagogical mess," wrote Judge Dollard. "As an untenured teacher, [she] was a viable target; a virtual sitting duck."

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