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May 11, 2011

Termination of a probationer

Termination of a probationer
Mennella v Uniondale UFSD, Comm. Ed. Decision 14245

The Uniondale Union Free School District appointed Vincenza Mennella as its Dean of Students effective September 1, 1998. The appointment was subject to a three-year probationary period.

In January 1999, Mennella was evaluated and rated unsatisfactory or “in need of improvement” in four categories. In March 1999, the superintendent advised Mennella that she would recommend that the board terminate Mennella’s employment. When asked for the reasons for this, the superintendent told Mennella that her recommendation was based on Mennella’s:

1. Working relationships with other administrators;

2. Failure to complete classroom evaluations of first year teachers in her department in a timely manner; and

3. “Resistance to District protocol.”

The board terminated Mennella effective June 30, 1999 and she appealed to the Commissioner contending that her dismissal was arbitrary and capricious. The district raised a number of procedural objections, the most significant one being that Mennella had filed two grievances concerning the matter with the district.

After addressing the “technical” procedural objections, the Commissioner considered the district’s “jurisdiction argument” -- i.e., the Commissioner lacked jurisdiction to consider the appeal because of the pending grievances filed by Mennella.

The Commissioner responded to the district’s challenge to his jurisdiction to consider the appeal by noting that “[i]t is well established that a school employee who elects to submit an issue for resolution through a contractual grievance procedure may not elect to bring an appeal to the Commissioner of Education for review of the same matter,” citing Commack Union Free School District v Ambach, 70 NY2d 501.

The Commissioner then decided that Mennella’s grievances had not raised the same issues she raised in her appeal. Accordingly, he concluded that he had jurisdiction to consider Mennella’s appeal.

This proved to be a Pyrrhic victory, however.

Considering the merits of Mennella’s appeal, the Commissioner first pointed out that a board of education has “an unfettered right to terminate the employment of a teacher or administrator during his or her probationary period....” Such a termination will not be set aside “unless the employee establishes that a board terminated service for a constitutionally impermissible reason or in violation of a statutory proscription.”

Pointing out the Mennella had the burden of proof in this instance, the Commissioner ruled that she failed to show the board’s action was for a constitutionally impermissible reason or in violation of a statutory proscription and thus failed to meet her burden. The Commissioner dismissed her appeal.

The decision notes that the superintendent had given Mennella timely notice of her proposed recommendation and her reasons for doing so, together with an opportunity to respond to this action, thus complying with the mandates set out in Section 3031 of the Education Law. Significantly, the Commissioner indicated that he had noted “numerous memoranda in the record” sent to Mennella that “amply demonstrate [the district’s] concern over [Mennella’s] relationships with her colleagues.”

This illustrates the importance of documenting the appointing authority’s efforts to advise an employee of its expectations, and how the employee may meet these expectations, when an individual is not performing to its satisfaction. Although this case involved a probationary employee, having the same type of documentation in the record will often prove important in a disciplinary action involving a tenured individual.

Sometimes a district’s decision to terminate a probationer will trigger claims that the probationer’s rights under a collective bargaining agreement have been violated. Typically, such provisions in the negotiated agreement set out the procedures to be followed with respect to the evaluation of probationary employees and the steps to be taken in terminating the services of a probationer.

In Hempstead UFSD v Hempstead Classroom Teachers Association, of behalf of James Lacey, decided by the Appellate Division, Second Department, 267 AD2d 309, the court commented that a motion by the district to stay arbitration in a “second grievance” involving the same parties was rendered moot because a Supreme Court earlier had confirmed an arbitrator’s award in a prior grievance arbitration proceeding directing the reinstatement Lacey, a probationary teacher.


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