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Monday, October 20, 2014

Appellate Division Second Department Decision in Capece v Schultz: Lisa Capece Still Wins

Chapter Leaders are given the burden of providing information to principals who do not want it, making them (the Chapter Leaders) open for abuse, discontinuance, or 3020-a.

Lisa Capece lost her probationary position, fought in Court, and won. Now we hope that she will continue to fight until she gets her tenure.

Fight on, Lisa!!

Here are my previous posts:

 Chapter Leaders and Freedom of Speech in NYC Public Schools

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

Betsy Combier
Supreme Court, Appellate Division, Second Department, New York.

IN RE: Lisa Capece, etc., respondent, v. Margaret Schultz, etc., et al., appellants.

2012–03257 (Index No. 80361/08)

Decided: May 28, 2014

THOMAS A. DICKERSON, J.P. JOHN M. LEVENTHAL L. PRISCILLA HALL PLUMMER E. LOTT, JJ. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Adam Coyller of counsel), for appellants. The Behrins Law Firm, PLLC, Staten Island, N.Y. (Jonathan B. Behrins of counsel), for respondent.
Argued—March 31, 2014
In a proceeding pursuant to CPLR article 78 to review a determination of Margaret Schultz, in her capacity as Community Superintendent of School District 31, and the New York City Department of Education, which discontinued the petitioner's probationary employment as a teacher at Public School 1, Margaret Schultz, Community School District 31, and the New York City Department of Education appeal from a judgment of the Supreme Court, Richmond County (Dollard, J.), dated February 10, 2012, which granted the petition, annulled the determination discontinuing the petitioner's probationary employment, and reinstated the petitioner to her position as a teacher at Public School 1, with retroactive seniority, back pay, benefits, and tenure effective as of January 25, 2009.
ORDERED that the judgment is modified, on the law, by deleting the provision thereof granting the petitioner tenure as of January 25, 2009;  as so modified, the judgment is affirmed, without costs or disbursements.
A probationary employee may be discharged without a hearing and without a statement of reasons in the absence of a demonstration that the termination was in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law (see Matter of Swinton v. Safir, 93 N.Y.2d 758, 762–763;  Matter of York v. McGuire, 63 N.Y.2d 760, 761;  Matter of Johnson v New York City Dept. of Educ., 73 AD3d 927, 927–928;  Matter of Sztabnik v. City of New York, 31 AD3d 456, 456;  Matter of Rivera v Department of Educ. City of N.Y., 25 AD3d 559, 559).   The petitioner bears the burden of presenting competent proof of the alleged bad faith, the violation of statutory or decisional law, or the constitutionally impermissible or illegal purpose (see Matter of Deitch v. City of New York, 90 AD3d 924, 925).   Here, the petitioner met her burden of demonstrating that the discontinuation of her probationary employment was made in bad faith, showing that the discontinuation followed a letter she wrote to the principal, in her capacity as a union chapter leader, requesting to make up her missed preparation periods.   Although, generally, evidence of unsatisfactory performance rebuts a showing of bad faith (see Matter of Johnson v. Katz, 68 N.Y.2d 649, 650;  Matter of Fichter v. Egan, 223 A.D.2d 516), in response to the petitioner's showing, the appellants failed to establish that the discontinuance of the petitioner's probationary employment was the result of poor performance.   The record demonstrates that the petitioner began to receive “Unsatisfactory” ratings only after she asked the principal to make up her missed preparation periods, and it was at that point that the evaluations of the petitioner's performance began to precipitously decline.   Accordingly, the Supreme Court properly annulled the determination and reinstated the petitioner to her former position, with retroactive seniority, backpay, and benefits (see Matter of Johnson v. City of New York, 34 AD3d 484).
However, the appellants correctly contend that the Supreme Court exceeded its authority by granting the petitioner tenure effective as of January 25, 2009.   “ ‘While the court is empowered to determine whether the administrative body acted arbitrarily, it may not usurp the administrative function by directing the agency to proceed in a specific manner, which is within the jurisdiction and discretion of the administrative body in the first instance’ ” (Lipsman v. New York City Bd. of Educ., 133 A.D.2d 810, 811, quoting Burke's Auto Body v. Ameruso, 113 A.D.2d 198, 200–201).   The grant of tenure is determined by a majority vote of the board of education following a probationary period of three years (see Education Law § 3012[1] ).   The probationary term must be completed before the employee can be considered for tenure (see Matter of Hazard v Board of Educ., Horseheads Cent. School Dist. No. 1, 16 A.D.2d 481).   Since the petitioner's probationary term had not expired when her probationary employment was discontinued as of July 25, 2008, she was not yet eligible for tenure at the time of her termination, and she did not seek such relief in her petition.   Accordingly, the Supreme Court erred in granting the petitioner tenure as of January 25, 2009.
The appellants' remaining contentions are either academic in light of our determination or without merit.
Aprilanne Agostino
Clerk of the Court
- See more at:

See my 2012 post on this blog:

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

Orders Her Reinstated With TenureJudge: S.I. Principal Fired Teacher for Union Activity

David Sims, The Chief, February 17, 2012


A Staten Island Principal discriminated against a Teacher and dismissed her because of her activity as a United Federation of Teachers chapter leader, a Staten Island Supreme Court Justice ruled Feb. 10, while ordering that she be reinstated with more than three years’ back pay.
Lisa Capece, who taught fifth grade at P.S. 1 in Staten Island from January 2005 to July 2008, sued the Department of Education over her dismissal, which occurred while she was still a probationary Teacher.
Found Union-Related Animus
Because probationary employees can be discharged at will, without a hearing, the burden was upon Ms. Capece to prove that the termination was made in bad faith. Justice Kim Dollard ruled that there was clear evidence that P.S. 1’s Principal, Diane Gordin, had a personal animus against Ms. Capece based on her union activity.
Ms. Capece was rated satisfactory over her first 2-1/2 years of teaching by the school’s former Principal, Teri Rosenberg, and Ms. Gordin, who was Assistant Principal until being promoted in the fall of 2006.
One evaluation from Ms. Gordin read, “You have a nice way with your students. You continuously praise them and make them feel very comfortable in contributing their ideas.”
But the tone of Ms. Capece’s evaluations shifted around March 2007, following her asking Ms. Gordin in writing when she would be paid for missed prep periods (free periods that are sometimes missed because of other teaching duties).
Principal Lost It
Ms. Capece had recently become co-chapter chair for the school along with a tenured Teacher, Diana Allen, and they made the request together. Ms. Gordin summoned the two of them to a hearing, Ms. Allen testified,  and “spoke to her in a nasty tone, put her hand up to her face and told her to shut up,” the judge noted. Ms. Capece also said she was yelled at and dismissed from the office.
From then on, Ms. Capece’s evaluations suffered, including “skewed analysis of student test scores” and a poor classroom evaluation. In November 2007, she consented to have her probationary period extended for another year after she was told to sign the agreement or risk termination.
“It would have been more difficult to recommend denial of tenure to Capece without additional negative ratings,” Justice Dollard wrote in her decision. “Therefore, the court is of  the opinion that Gordin viewed the extension of probation to be necessary to insure that there would be enough of a basis and record to get petitioner out of the school as of the end of the 2007-2008 school year.”
Clear Signs of Retaliation
Ms. Capece was always rated unsatisfactory after her probation was extended, even though her students’ test scores were on par with those in other fifth-grade classes. Ms. Gordin also engaged in several examples of retaliatory conduct, like accessing a personal computer file of Ms. Capece’s, and discussing personal information about her to parents.
Ms. Gordin testified that she initially gave satisfactory ratings because Ms. Capece was a new Teacher with little experience.
“However, one can presume that regardless of being a new Teacher, if the ability of a Teacher is seriously lacking, a satisfactory rating would be inappropriate despite the time of observation,” Justice Dollard said.
She pointed out that Ms. Gordin was so intimidating, Ms. Capece and Ms. Allen resigned from their positions as chapter leaders. She said she found their testimony about the meeting with Ms. Gordin much more credible.
“Diana Allen, as a tenured Teacher, was ‘safe’ in that had Gordin sought to fire her, it would have been quite difficult,” she said. “As an untenured Teacher, petitioner was a viable target; a virtual sitting duck.”
She ordered that Ms. Capece be reinstated at P.S. 1 with retroactive back pay and benefits, as well as tenure.
“She was terminated because she was a poor Teacher—not because of union activities,” said city attorney Adam Collyer in a statement. “The other UFT co-chapter leader at that school has consistently received satisfactory ratings and is still employed. We are disappointed with the decision and are considering our legal options.”
 Judge Orders Rehiring of Teacher
Feb. 15, 2012, 8:22 a.m.
A state judge has ordered the city to rehire a Staten Island teacher who lost her job about four years ago.
The unusual ruling, which the city could appeal, involves Lisa Capece, who taught at Public School 1 Tottenville on Staten Island from 2005 to 2008. When she didn’t get tenure she challenged the decision through the grievance system established in the city’s contract with the teachers’ union, the United Federal of Teachers. She lost her case.
Most teachers stop at that point, but Ms. Capece took her case to court.
“She viewed it as her career,” her lawyer, Jonathan Behrins, said. “This is what she loved to do.” Mr. Behrins said his client declined to speak with reporters but was very happy about the ruling.
Ms. Capece claimed that she got good ratings from her principal until she complained about losing scheduled “prep time.” A Staten Island judge, Kim Dollard, found that Ms. Capece had “sufficiently met her burden in demonstrating that her dismissal was done in bad faith,” and that it was “in violation of a constitutionally permissible purpose, her involvement in the U.F.T., as the co-chapter leader” of her school.
But the city’s Law Department disagreed with the ruling.
“She was terminated because she was a poor teacher — not because of union activities,” said a city lawyer, Adam Collyer.
“The other U.F.T. co-chapter leader at that school has consistently received satisfactory ratings and is still employed,” Mr. Collyer said. “We are disappointed with the decision and are considering our legal options.”
The Law Department also said the city was not required to rehire Ms. Capece during the appeals process.
Mr. Behrins pointed out that the other co-chapter leader Mr. Collyer referred to already had the protection of tenure. He also said the case showed the danger of relying too heavily upon principals to determine which teachers are most effective.
He estimated that his client’s legal fees would add up to a year’s salary. He said she made $51,000 in her last year as a full teacher, and would have received an increase upon making tenure.
Beth Fertig is a senior reporter at WNYC. Follow her on Twitter @bethfertig

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