Reinstated teacher must follow regulations to retain tenure

Petitioner was a teacher of catering who resigned to take a chef’s position. Petitioner returned to a different school and was given a “U” rating and terminated. Petitioner filed an Article 78 petition without filing a grievance claiming that his termination was arbitrary and capricious, an abuse of discretion and violated his right to have a hearing pursuant to Education Law 3020(a). The Court of Appeals upheld the denial of the Article 78 petition ruling that the Petition was required to submit a written request to withdraw his resignation and submit to a medical exam at the direction of the school chancellor.
Read about this Teacher civil service tenure and termination case here.


Terminated Probationary teacher seeking back pay in Article 78 must file Notice of Claim in 90 days

The New York State Court of Appeals held that a probationary teacher who sues for back pay in an Article 78 would have had to have filed a Notice of Claim within 90 after the claim arose.

The Court affirmed the Appellate Division, Second Department decision in that when back pay was requested a Notice of Claim would have been required.  It stated when only equitable relief or, in other words, reinstated is sought there is no Notice of Claim requirement. see Matter of Sheil v Melucci, 94 AD3d 766

The Notice of Claim requirement is contatined in Education Law 3813 (1).  When more than equitable relief is sought in this type of Article 78 proceeding the filing of a Notice of Claim is a condition precedent to maintaining the proceeding.

Read about this probationary teacher termination case here.

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Article 78 to appeal U rating successful

Petitioner appeal a U rating for the 2010-2011 school year. Judge Hunter upheld the U rating but the Appellate Division, First Department reversed the ruling holding the the BOE, currently DOE did not follow the proper Performance Review Process.  The principal did do an observation of the Petitioner but failed to: file a post observation report; converse with Petitioner after the observation or post comments to Petitioner’s file. Therefore, it was found that Petitioner may not have known that the was considered to be performing unsatisfactiorly.  Read about this Article 78 U rating appeal case there.

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Teacher’s Article 78 to reverse U rating denied by Appellate Court

Petitioner was a probationary teacher with the New York City Department of Education and received a “U” rating. He appealed his “U” or unsatisfactory rating to the Chancllor’s committed and they denied his appeal.  In his Article 78 filing he appealed the composition of the Chancellor’s committee but had failed to preserve his appeal by first bringing up his contentions at the Committee hearing. Accordingly, his first raising this issue in his Article 78 suit was found to be improper and this contention was denied.

The Chancellor Committee decision to uphold the “U” rating was unanomous against the Petitioner.  On appeal the Appellate Division, Second Department held that the Petitioner failed to prove bad faith on the part of the Respondent DOE nor did he prove that they had acted for some unconstitutional purpose or in violation of law.

Additionally, Petitioner’s “U” rating was not issued in an “arbitrary or capricous” manner nor was it irrational.  Read this Article 78 to reverse a “U” rating here.

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Teacher’s U rating reversed after Article 78

Teacher received an “U” rating due to a number of factors including attendance and lateness for the 2010-2011 school year. She received unsatisfactory ratings in seven categories in her Annual Professinal Performance Review (APPR). Her principal wrote to her stating that improperly prepared paperwork would be considered and unsatisfactory rating.

As was her right the petitioner requested and received a Chancellor’s Committee hearing.  After the hearing the Chancellor’s committee affirmed the principal’s decision to give the petitioner a “U” rating stating that petitoner had excessive absences before and after weekends and holiday and “a lack of impact on student growth.”

Teacher filed an Article 78 Petition in Supreme Court appealing the Chancellor’s Committee decision.

Special Circular 45 a memorandum issued by respondents in response to the mandate in the Commissioner of Education regulations (8 NYCRR) sect 100.2(o) outlines the methods required for rating personnel.

The Court held that only one observation was insufficient and the fact that the teacher did not have an in-discipline supervisor to critique her work.

Read about this Article 78 reversing a teacher’s U rating here.

Probationary Assistant Principal’s Article 78 Appealing U Rating denied.

A New York City High School teacher resigned in 2008 for personal reasons.  He was brought back as a probationary assistant principal.  While assistant principal he was charged for two incidents of misconduct.  He was given a “U” rating and terminated while on probation.  He filed an Article 78 which was denied and his case was dismissed.

The Petitioner alleged racial bias in his termination but Judge Kern ruled that the investigating agencies were not alleged to have been biased in their investigation therefore the bias claim was denied.

Petitioner did not gain tenune be estoppel because he resigned from his teacher position in 2008.

Finally Petitioner was not entitled to discover in this special proceeding because he did not show the need for such.

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Principal denied reinstatement

In this whole many County case the petitioner was terminated after 3028 hearing found some guilty of corporal punishment. Principal appealed successful but was not instated plus a certificate of credit patient has a fire.
Principal then found an article 72 VTL expiration of his certificate. Judge to resealable court found that respondents interpret I was only regulated down there for competition was not entitled to his own position was a certificate had expired respondent’s denial letter was not arbitrary or was it increases or was it irrational. Therefore the petition was designed the night in the proceeding was dismissed

Teacher’s Contract Protest Protected by 1st Amendment Free Speech

East Meadow school district fined Richard Santer $500 after he parked his car at the curb and placed his contract protest sign in the car window on a rainy day.  On other days the teachers protesting for a better contract walked on the sidewalk in front of the school.  East Meadow School District filed charges pursuant to Education Law Section 3020a.

The Second Department held that review under Section 75 is broad and requires: 1) the arbitrator’s determination display good faith under the law and in the record and 2) the determination must not be arbitrary and capricious.

The arbitrator found that Santer “intentionally created a health and safety risk by purposely situating his vehicle alongside the curb of Westwood Drive prevented the school buses from dropping the kids off at curbside.  The arbitrator sided with the school district and found Santer culpable.  The Supreme Court, Nassau County confirmed the determination after Santer filed a CPLR Section 75 appeal.

The Appellate Division, Second Department reversed and held that Santer had a protected First Amendment right to protest because contract rights are a “matter of public concern.”

Read about this 3020-a and CPLR 75 case here.

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Terminated Probationary Teachers must file Article 78 within 4 months

Court of Appeals: Terminated Probationary Teachers have 4 months to file Article 78

Terminated probationary teachers had been faced with a dilemma-should I file an Article 78 within four months of my termination and have the respondent’s move to dismiss my petition for “failing to exhaust my administrative remedies” or wait for the decision of an internal appeal and have Respondent’s move to dismiss their Petition as untimely having been filed more than 4 months after the termination date.

New York State’s highest court apparently resolved this conflict and decided on February 14, 2012 that probationary teachers have four months to file an Article 78 to appeal their termination.  The 4 months time limit runs from the final day of service.

Leslie Khan and Doreen Nash did not file Article 78 petitions within 4 months of their terminations.  Leslie Khan was terminated “… as of the close of business January 25, 2008”  She filed a DOE appeal of her probationary termination on January 3, 2008.   Despite the committee’s non-concurrence with the termination on May 9, 2008 the superintendent informed Khan that she “reaffirmed the previous action dated January 25, 2008.  On September 9, 2008 Khan initiated an Article 78.

Doreen Nash started working for the DOE on September 3, 2002.  In 2005 she received a “U” for the 2004-2005 school year. On June 16, 2005 Nash filed a DOE appeal.  Nash’s employment was terminated July 15, 2005.  The Chancellor’s Committee held a meeting on May 10, 2006 and recommended “non-concurrence”.  Nevertheless, the superintendent of Brooklyn High Schools reaffirmed Nash’s discontinuance as of “close of business July 18, 2005″ Nash filed an Article 78 on September 10, 2008.

The Court held that both Khan and Nash had 4 months to appeal their termination.  Their filing internal Chancellor Committee appeals did not extend the limitation of time to file an appeal.

The Court explained: ” Because a determination pursuant to Education Law 2573(1)(a) to discontinue a probationary employee’s service becomes final and binding on that employee on his or her last day at work-as Frasier holds-CPLR 217 (1) dictates that any suit to challenge the determination must be commenced within four months after that date.

You can read the Probationary teacher Khan case here.