A written administrative employee evaluation that is not disciplinary in nature may be placed in an employees personnel file by the employer

A written administrative employee evaluation that is not disciplinary in nature may be placed in an employees personnel file by the employer
2014 NY Slip Op 07360, Appellate Division, Second Department

A tenured teacher [Teacher] filed a CPLR Article 78 petition seeking a court order directing the school district to remove a certain letter from Teacher's personnel file. Supreme Court dismissed Teacher’s petition and on appeal the Appellate Division sustained the lower court’s action.

The Appellate Division explained that the letter Teacher sought to have removed from his personnel file "[fell] within [the] permissible range of administrative evaluation," and the school district did not act unlawfully in making it part of Teacher's personnel file without first complying with the disciplinary procedural requirements set out in Education Law §3020-a. Although in New York a tenured teacher may not be "disciplined" without he or she being afforded the protections set out in Education Law §3020-a, a critical "administrative evaluation" may properly be included in a teacher's personnel file without the appointing authority first having to comply with the administrative due process requirements set out in §3020-a.

As to what falls within the ambit of “the permissible range of administrative evaluation," in Holt v Board of Education, 52 NY2d 625, the Court of Appeals ruled that performance evaluations and letters of criticism placed in the employee’s personnel file were not “disciplinary penalties” and thus could be placed there without having to first hold a disciplinary proceeding.

The basic rule set out in Holt is that a statutory disciplinary provision such as §75 of the Civil Service Law does not require that an employee be given a hearing or permitted to grieve every comment or statement by his or her employer that he or she may consider a criticism.

In contrast, in D'Angelo v Scoppetta, 19 NY3d 663, the Court of Appeals found that a letter placed in an employee's file indicating “serious misconduct” that could negatively impact his or her eligibility for a future promotion goes beyond “constructive criticism.” In other words, a writing claimed to constitute “constructive criticism” may not be used to frustrate an employee’s right to due process as set out in §75 of the Civil Service Law, §3020-a of the Education Law or a contract disciplinary procedure.

What distinguishes lawful “constructive criticism” of an individual’s performance by a supervisor and supervisory actions addressing an individual’s performance that are disciplinary in nature? Comments critical of employee performance do not, without more, constitute disciplinary action. On the other hand, counseling letters may not be used as a subterfuge for avoiding initiating formal disciplinary action against a tenured individual.The decisions of the Commissioner of Education in Fusco v Jefferson County School District, CEd, 14,396, and Irving v Troy City School District, CEd 14,373, are instructive in this regard.

In both the Fusco and Irving cases the Commissioner of Education found that the alleged “critical comment” filed in the respective personnel file of these employees exceeded the parameters circumscribing “lawful instruction” seeking to correct unacceptable performance.

In Fusco’s case, the Commissioner said that the “contents of the memorandum” did not fall within the parameters of a “permissible evaluation” despite the school board’s claim that the memorandum was “intended to encourage positive change” in Fusco’s performance. The Commissioner noted that the memorandum "contains no constructive criticism or a single suggestion for improvement." Rather, said the Commissioner, the memorandum focused on “castigating [Fusco] for prior alleged misconduct."

In Irving’s case, a school principal was given a letter critical of her performance and the next day reassigned to another school where she was to serve as an assistant principal. The Commissioner ruled that these two actions, when considered as a single event, constituted disciplinary action within the meaning of §3020-a of the Education Law."

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The Teacher decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07360.htm

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