Monday, May 02, 2016

Challenging a decision to terminate a probationary teacher's employment


Challenging a decision to terminate a probationary teacher's employment
Decisions of the Commissioner of Education, Decision No. 16,894

William Floyd Union Free School District employed Matthew Nadolecki as a special education math teacher subject to his satisfactory completion of a three-year probationary period which was to run through September 28, 2013.  In April 2012 the superintendent advised Nadolecki that he would recommend that the board terminate Nadolecki’s services as a probationary teacher. 

Nadolecki requested a written statement of the reasons for the superintendent’s recommendation. The superintendent responded stated that his recommendation was based on Nadolecki’s failure to meet district expectations in the following areas: [1] ineffective and inadequate classroom teaching techniques; [2] ineffective implementation of lesson plans; [3] ineffective communication with parents; and [4] ineffective and sometimes inappropriate guidance for students. 

Via an April 18, 2012 email, Nadolecki initiated a Level 1 grievance pursuant to his collective bargaining agreement in which he stated that he was “grieving the efforts by the district to terminate [his] probationary appointment through dismissal.”  On April 23, 2012, the superintendent responded, repeating the reasons he had enumerated earlier and denied Nadolecki’s Level 1 grievance. Nadolecki then filed a Level 2 grievance, which grievance was denied on May 3, 2012.

At its May 22, 2012 meeting, the School Board considered the superintendent’s recommendation and voted to terminate Nadolecki’s probationary appointment, effective June 30, 2012. Nadolecki was advised of the board’s decision by letter dated May 24, 2012.

Nadolecki appealed the Board’s decision to the Commissioner of Education, contending that his termination was “in violation of the procedures set forth in the collective bargaining agreement, district policies and was otherwise retaliatory because of his alleged whistle-blowing activities.”  Nadolecki also argued that the Superintendent’s letter dated April 23, 2012 “did not comply with Education Law §3031.”

The School District maintained that it had complied with all applicable laws, including Education Law §3031, when it terminated Nadolecki and that Nadolecki’s petition failed to state a claim upon which relief may be granted.  In addition, the District said that [1] the Commissioner lacks jurisdiction over this appeal, [2] that petitioner lacks standing to bring this appeal and [3] that the appeal is untimely. In addition the District alleged that the April 23, 2012 notice complied with Education Law §3031.

Addressing a number of procedural issues, the Commissioner said that “It is well settled that a school employee who elects to submit an issue for resolution through a contractual grievance procedure may not bring an appeal to the Commissioner of Education for review of the same matter.”

Nadolecki had brought earlier filed a grievance at Level 1 in which he alleged that the district’s efforts to terminate him violated the collective bargaining agreement [CBA] between the School District and Nadolecki's employee organization; asserted that certain CBA provisions regarding evaluations and observations were not adhered to; asserted that he believes he was being terminated for not “staying under the radar;” and because of his participating in a “protected union activity”.

Unsuccessful at Level 1, Nadolecki next filed a Level 2 grievance and a final determination denying his Level 2 grievance was issued on May 3, 2012.* 

Succinctly, the Commissioner said the Nadolecki “claims that [the School District]  violated the provisions of the collective bargaining agreement, which were the subject of a prior grievance, must therefore be dismissed for lack of jurisdiction, citing Bd. of Educ., Commack UFSD v Ambach, 70 NY2d 501.

Nadolecki, in effort to persuade the Commissioner to assume jurisdiction in this appeal notwithstanding his initial election to seek a remedy as provided by the CBA, argued that because he commenced his grievance prior to his actual termination by the School District, the Commissioner should retain jurisdiction over this appeal.  However, said the Commissioner, Nadolecki was attempting to raise the same collective bargaining issues in this appeal as he raised in the grievance and the Commissioner rejected Nadolecki’s argument that because he only grieved School District’s “intention” to terminate his employment, he is entitled to commence an appeal on those same issues from his actual termination.

The Commissioner also observed that, in any event, Nadolecki claims would be dismissed under the doctrine of election of remedies.  The Commissioner explained that the commencement of an action or proceeding in another forum for the same or similar relief constitutes an election of remedies which precludes the initiation of a subsequent appeal to the Commissioner involving the same issues.

Turning to the merits of Nadolecki appeal, the Commissioner pointed out that “ A board of education has the unfettered right to terminate a probationary teacher or administrator’s employment for any reason unless the employee establishes that he or she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription.”

In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which the petitioner seeks relief. Nadolecki, said the Commissioner, failed to establish that he was terminated for a constitutionally impermissible reason, or in violation of a statutory proscription. 

While Nadolecki contended that he was terminated in retaliation for alleged "whistle-blowing", the Commissioner found that, on the record before her, he has not met his burden of establishing that his dismissal was in retaliation for whistle blowing. 

Although Nadolecki disagreed with the School District’s decision to terminate his services, the Commissioner ruled that he did not establish that the School District terminated his employment for a constitutionally impermissible reason or in violation of a statutory proscription, thus failing to meet his burden of proof.

Noting that Nadolecki alleged that the School District violated Education Law §3031 by failing to give him more than a general statement as to the reasons for his dismissal, the Commissioner rejected this claim, explaining that Nadolecki “has not established that [the School District] failed to comply with the requirements of Education Law §3031."

Further, said the Commissioner, “even if noncompliance were established, the remedy for a violation is not automatic reinstatement of a teacher to his former position, and equity does not require a board to provide a windfall to petitioner in the form of salary because he performed no services for the district after the termination date.”

The Commissioner then dismissed Nadolecki’s appeal in its entirety.

* Significantly, Nadolecki did not allege in this appeal that the union breached its duty of fair representation with respect to processing his grievance. 

The decision is posted on the Internet at:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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