Yes, You Can Be Fired For What You Do/Say Outside of Your Workplace

Can an employee be fired for activities outside the workplace?

In the social media age, the line between personal and professional lives has all but disappeared

In the wake of recent protests and subsequent violence in Charlottesville, a Twitter account with the handle @YesYoureARacist announced its intent to reveal the identities of those who marched in favor of white nationalism in order to, in the short-term, get them fired from their jobs.

Naturally, that got a lot of employers (and employment lawyers) thinking about how they might respond if one of their employees was shown to be one of those participants.

They might have even wondered, can those employees be fired? According to a blog post by Jon Hyman, partner at Meyers Roman Friedberg and Lewis, they certainly can. Hyman's post focused on the firing of a man who was exposed by @YesYoureARacist for participating in the demonstrations in Charlottesville. Hyman's point: There’s perfectly good legal precedence for firing an employee for certain disruptive behaviors, even if done during off-work hours.

 There was a time when employers could decide how to manage employeebehavior based solely on what happened in the workplace without worrying about the specter of social media blowback. But what was once considered private is now part of a personally curated public broadcast that all, including employers, can see. In an era in which most people share scores of details about themselves publicly every day, the line between what employers can and should look at and what they can ignore has all but disappeared.

If anything, the employer anxiety that rose post-Charlottesville represents a generational shift in the understanding of social media, of privacy and of what behavior is acceptable both inside and outside of work.

HR Dive spoke with Hyman about that transformation and the new context within which employers must consider employee behavior. The conversation below has been edited for style and length.

HR Dive: Obviously we’ve seen a lot of opinions in the days since the events in Charlottesville. I’m curious if anyone asked you any questions or sent any comments about your piece arguing participants in the white nationalist demonstrations could be fired?

Jon Hyman: I’ve gotten feedback on both sides of the issue. I’ve had people saying thanks for saying this, I couldn’t agree with you more. But I have some people that have said private time isn’t an employer’s business, and that this employer — speaking specifically of the one in the blog — has no proof this guy was a neo-Nazi, they just saw a photo of him marching at this rally. Who is this employer to fire him for what he did on his personal time?

It’s so interesting because we all have these Facebook accounts and Instagram accounts and Twitter accounts and we all have these incredibly powerful cameras or phones in our pockets or purses that has turned every person on the planet into a photo and video journalist.

There’s a guy, Jason Seiden, I saw him speak at an HR conference, and he used the term 'profersonal,' which I think he coined. So I have since used that word with attribution to him to explain what I feel, which is that there is no longer the existence of a personal persona and a professional persona because social media has so intertwined everything. Back ten years ago, you punch the time clock, you go home and no one knows what you did at home ... now everyone knows what you do 24/7 because you broadcast it.

It’s frankly not enough to say you are only broadcasting it to your 200 friends on Facebook and it’s a closed network and I have my privacy settings set appropriately so my employer can’t see it. But when you are Facebook friends with someone you work with — even if you are not friends with your boss — once they print that post out, then everything is fair game.

When you post a comment on someone’s post, you are not having a private conversation. All of your connections are seeing it.

HR Dive: Social media obviously played a role in revealing who these people were this weekend, which just highlights some of the weird situations employers are exposed to now that they might not have been 20 or even 10 years ago. Now employees might not understand they can post something and easily lose control of a situation.

Hyman: Right, you’ve lost control. Nothing you do is private. And that includes as you walk down the street.

There are cameras everywhere. We are, for better or for worse, being monitored or seen just about 24/7. And most of it is self-inflicted, because we are out there posting. Everyone’s diaries are no longer locked books in their nightstand next to their bed. They are all there for the world to see.

So for these white supremacist marchers to say, “This is my private time, that’s not fair that I’m being held accountable by my employer for my private time,” well, you were in about as highly visible a place as you could be. You have to assume risk that you will be photographed and your face seen everywhere. And you risk that your employer sees it and says that’s not who I want working for me.

HR Dive: Has this rise of social media changed company policy at all? Or has it just made explicit what was kind of unspoken?

Hyman: I don't think it's changed company policy. It’s just given employers so much more access to information about their employees' behaviors.

I saw it in my practice four years ago when Barack Obama won the second term. The morning after the election, I started getting phone calls saying “So-and-so just called into HR because his co-worker called Obama the N word on their Facebook page and they no longer feel safe working with someone who uses those words. What do I do?”

The workplace essentially now has extended beyond the walls of the workplace. I see it as no different than if a group of employees goes out for happy hour after work and a male employee gets handsy with a female employee and grabs her inappropriately. If the female employee goes to HR or a supervisor sees it and does nothing, the company’s got issues.

HR has an obligation to employees that work together, whether it is a work event or not, or within the workplace or out. Social media has just broken those walls down further and maybe brought the outside world further into the workplace.

HR Dive: Will we see any changes to policy or legal protections because of how much that extends now? Will there be consequences of the blending of personal and professional lives?

Hyman: Some states have off-duty conduct laws. There are 29 states that protect employees that engage in lawful, off duty conduct. Some people call them “smoker’s rights laws” or “gun owner’s rights laws.” It’s legal to smoke, it’s legal to own a gun assuming you have a permit, so it would be illegal for an employer to fire you for this legal off-duty conduct. But it would be the same if you peaceably marched in a permitted event. When that crosses the line to the violence seen in Charlottesville, it's a totally different ball game.

We’ve seen the NLRB in the Obama administration take a very liberal view of the definition of protected concerted activity under the NLRA and really went through some contorted machinations to pigeonhole facially neutral social media policies to find that either those policies were illegal as written or illegal as applied regarding employee communications. Those are two areas that come to mind.

I look at the issue almost generationally. I think we have very different concepts of what privacy means. My parents’ generation … they don’t fully understand that social media conversations are not private, or they think it is private — and it isn’t.

I’m smack in the middle of Gen X, so my view of privacy is a little different, and I look at my kids who are 9 and 11, and they have grown up in a social media world and they will not remember a time without iPhones and Facebook. They’ve grown up in a world where Mom and Dad share everything we do on Facebook, so they will inherently have a different concept of what privacy is — that most of what we do out in public is not private.

HR Dive: One angle I’ve noticed is one side saying “Maybe keep these employees on and teach them why their ways are hurtful to others.” What are your thoughts on that?

Hyman: Here’s the way I kind of frame the issue in my brain. If a client calls me and says, “It has come to our attention that so and so employee was marching at Charlottesville over the weekend. It has made some of our employees and customers uncomfortable ... what do we do?”

There’s really two issues here. There’s the internal employee issue and the external public relations piece. Where I come down on the issue is ... if an employer wants to try and rehabilitate someone, more power to you. I think you are probably fighting a losing battle, but if you think that is your role, more power to you.

If you choose to fire the individual — which if it was my business that is what I would do — I think it is important to take a stand and signal to your other employees that type of behavior is not who we are. We don’t tolerate that here.

To take a slight detour, I approach LGBT issues the same way. There’s no real national consensus on whether Title VII covers national LGBT rights in employment, but I tell employers that there’s no point in waiting to get that guidance we will at some point get. Why wait? Send a message to your employees that you are an employer of inclusion, not exclusion, and just put LGBT rights in your handbook. This is our policy. This is who we are.

And I look at this issue the same way. This is who we are — or, more to the point, who we aren’t. We aren’t an employer who tolerates, condones, accepts or whatever this behavior. Inside the workplace, outside the workplace, period. You can send that message of inclusion to the rest of your employees.

Whatever legal theories are out there that someone can sue an employer on — whether it is lawful off-duty conduct, or protected concerted activity under the NLRA, or if you are a government employer, or a private employer since some states specifically protect speech rights in the workplace, or religious expression under Title VII, or a race discrimination claim because of my whiteness or whatever claim an employee can concoct — you need to understand what risks are out there.

But as long as you understand the risks, I would tell the employee, “This is not the workplace for you, and if you want to sue us, bring it on. I’d be happy to defend my decision in court that this is not the type of behavior inside or outside of work that helps define who we are as a company.” 

•  KARE 11 (NBC Minneapolis - St. Paul)Fargo man, 'pro-white activist' disowned by father speaks out
•  Ohio Employer's Law BlogWhen you discover that you employ a Nazi
•  HR DiveYour brand, your employees and their social media

Bad Faith (2012) and Employment at Will

When an individual is discontinued from his/her Department of Education job, an Appeal must prove bad faith.

What is "bad faith"? I have posted on this subject previously.

See what these sites say for some interesting reading, and to prepare a lawsuit or a defense in arbitration:
The At-Will Presumption and Exceptions to the Rule
 Employment at Will
Latest Word on At-Will Employment and Wrongful Termination Claims 
Does Your Employer’s Termination Decision “Radiate” Bad Faith?
Fifth Circuit Court of Appeals Recognizes Bad Faith Termination Claim Against Supervisor Under Mississippi Law                                                                                 
Employee Termination

and then there is Leo Casey's 2012 Statement on Edwize:

In Bad Faith

LINK
There is but one conclusion that can be drawn from the NYC Department of Education’s last minute walk out of negotiations over a teacher evaluation system for 33 schools placed in the Transformation and Restart models: it was always Tweed’s intention to refuse to enter into an agreement for teacher evaluations.

Part of the evidence for this conclusion comes from the conduct of NYC DOE officials during negotiations. Throughout the month of December, the UFT made intensive efforts to bring these negotiations to a successful conclusion before the NYS Education Department’s deadline of December 31. Yet while UFT officers and staff canceled vacation plans to work on a potential agreement, key actors on the DOE side, such as the lawyer who writes up contractual agreements, were outside of New York City on vacation as the clock ticked down.

To move the negotiations forward, two different UFT-DOE working committees were established, with UFT officers and staff on each committee. The first committee met often, did an extraordinary amount of work, established joint working groups to prepare local assessments and reached agreement in principle on every important issue before it. The second committee, which included two Deputy Chancellors on the DOE side, was an entirely different story. Despite the looming deadline, the Deputy Chancellor leading their side had to be contacted three times before he responded to a request to set up the first meeting of that committee. The DOE group would come strolling into every meeting of the committee at least 30 minutes late. Shortly after the first committee completed its work, the two Deputy Chancellors come to their committee, announced that they would not agree with any system of appeals that was not essentially the same as the status quo, and walked out, declaring the negotiations over despite statements from the UFT that they should continue. President Mulgrew called Chancellor Walcott with an offer to submit this issue to binding arbitration, which was immediately turned down. Within a matter of minutes of the walk out, Tweed release a prepared statement justifying its actions.

Equally telling was the issue over which Tweed broke up the negotiations: whether or not there would be a meaningful system of appeals for end year ratings of ineffective. The DOE has stonewalled UFT requests to provide numbers of appeals filed and sustained under the current U rating appeals system, forcing us to file a Freedom of Information request. The data that we do possess, coming from members who come to us to contest their ratings, suggests a reason why these numbers are treated as ‘state secrets’ at Tweed: of the last 2000 appeals on the UFT’s books, the DOE has sustained the teacher exactly 10 times. The rate at which Tweed’s hearing officers turn down appeals is thus 99.5%, a figure that would be more appropriate for Stalinist show trials than a legitimate due process procedure. That is the process that the DOE refuses to negotiate.

The U rating appeals of the NYC DOE were not always a kangaroo court. Prior to the Bloomberg administration, a meaningful number of appeals led to the overturning of a unsatisfactory rating, a sign that hearing officers actually examined the facts presented to them. But under Bloomberg, the hearing officers have been under marching orders to turn down all appeals. It is this change, combined with the burden of proof that the new state evaluation law places on a teacher receiving two ineffective ratings in a row, that has led the UFT to insist upon changes in the current appeals process.

Appearing on his weekly radio show with John Gambling, Mayor Bloomberg explained why he opposed the UFT’s position that teachers should have the right to appeal negative unsatisfactory and ineffective ratings to an independent hearing officer, rather than a DOE employee.[1] “The principals’ job is to decide who’s good, who’s bad,” the mayor said. “It’s their judgment, that’s their job.” Subjective ratings are simply the way things work with bosses, and a mix of good and bad personnel decisions are “just part of the real world.”

Before we take the mayor at his word, it is worth recalling what he was saying about principal judgment on personnel matters nine months ago, when tenure decisions were being made. Conveniently ignoring the fact that tenure decisions are made at the end of a three year probationary process that involves the dismissal and voluntary resignation of ineffective novice teachers, such that approximately only 1 in every 2 new teachers achieved tenure, Bloomberg argued that the rate at which principals had been recommending tenure at the end of probation over the past few years, in the 90% range, was unacceptably high. In school after school, principals were ordered by superintendents to change positive recommendations for awarding tenure into deferrals. Clutching as a trophy the decline of awards of tenure to 58%, Bloomberg crowed that “we’ve turned what had been a joke interpretation of the state law, to make it something that you have to work hard, earn, and show that you are better than the average bear” to get.

So why is a 90% rate of principals recommending tenure, at the end of probation “a joke,” but a 99.5% rate of turning down U ratings appeal perfectly acceptable? Simply because the first is a positive evaluation of teachers, while the second is a negative evaluation. So long as principals are putting notches in Mayor Mike’s belt for fired teachers, their judgment should be treated as next to infallible, but when they offer positive evaluations, they will be overruled in a second. Nowhere was this clearer than in a U rating appeal decision the UFT recently had overturned in an Article 78 legal proceeding: on the record, the principal had explicitly said, again and again, that she was not contesting the teacher’s appeal, but the DOE hearing officer still upheld the unsatisfactory rating. It took a court to do the obviously right thing.

The bottom line here is that Tweed’s vision of a good teacher evaluation process is not one in which decisions are made on the basis of sound educational judgment, but one which delivers a requisite quota of dismissed teacher scalps. If you doubt it, consider the misleading comments a Deputy Chancellor began to make over the past summer, that 20% of all teachers had been rated ineffective in Tweed’s Talent Management pilot that has been practicing observations using the Danielson Framework for Teaching. For the last half year, at meeting after meeting, the UFT has been asking the DOE for the study that supports these claims, all to no avail.[2]We have concluded that the study has not been shared because it does not exist: the DOE has simply decided that 20% is a good target for the numbers of ineffective ratings, and so the claim continues to be made and to appear in DOE PowerPoint presentations.

At the end of the day, one conclusion is inescapable: Mayor Bloomberg decided that he had no intention of negotiating in good faith with the UFT over the subject of teacher evaluations. The plan was always to blow up the negotiations required by law, with a strategy of then trying to pressure Albany to change the teacher evaluation law and allow the DOE to continue its kangaroo court U rating appeal process. From the beginning of this process, he and his devotees at Tweed were acting in bad faith.

---

[1] In its public statements, the NYC DOE has claimed that the UFT wanted an independent hearing officer for both ineffective and developing ratings. This claim is, quite simply, a fabrication out of whole cloth. The UFT has asked for the independent hearing officer only for the ineffective rating, as it alone can lead to dismissal and the loss of livelihood.

[2] Where reputable, independent scholars have studied the use of Danielson framework for lesson observations, such as the study of the framework’s introduction in Chicago public schools by the University of Chicago’s Consortium On Chicago School Research, the rate of ineffective has varied from 3% to 6% annually.

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

 

DECISION & ORDER

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.

DICKERSON, J.P., LEVENTHAL, HALL and LOTT, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

- See more at: http://caselaw.findlaw.com/ny-supreme-court/1667848.html#sthash.d4f7X2rU.dpuf

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

LINK

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

 http://www.nytimes.com/schoolbook/2012/02/15/judge-orders-rehiring-of-teacher/

Feb. 15, 2012, 8:22 a.m.

By BETH FERTIG

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