Probationary Teacher Lisa Capece Wins Her Case Against The NYC DOE, Wins Reinstatement and Backpay
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Matter of Capece v Schultz
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2009 NY Slip Op 51679(U) [24 Misc
3d 1230(A)]
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Decided on August 3, 2009
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Supreme Court, Richmond County
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Minardo, J.
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Published by New
York State Law Reporting Bureau pursuant to Judiciary Law §
431.
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This opinion is
uncorrected and will not be published in the printed Official Reports.
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Decided on August 3, 2009
Supreme Court, Richmond
County
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In the Matter of the Application
of Lisa Capece f/k/a LISA GRANDE, Petitioner,
against 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. |
80361/08
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).
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
Dated: August 3, 2009/s/Philip G. Minardo
J.S.C.
Footnotes
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.
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| P.S.1 |
By Email the author | Follow on Twitter
on February 14, 2012 at 4:16 PM, updated February 15, 2012 at 7:23 AM
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| Diane Gordon |
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."
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