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
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This opinion is uncorrected and will not be published in the printed Official Reports.
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.
NY, 298 AD2d 595).
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.
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."
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."