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This award recognizes exemplary employees of New York State serving in the Executive Branch.

Nominations must be submitted no later than December 15, 2017 and may be completed online.

For more information about the Empire Star Public Service Award, visit www.ny.gov/EmpireStarPublicService.

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Tuesday, August 23, 2016

Challenging the employer’s decision to terminate a probationary teacher


Challenging the employer’s decision to terminate a probationary teacher
Muller v New York City Dept. of Educ., 2016 NY Slip Op 05813, Appellate Division, Second Department

Andrea Muller was appointed by the New York City Department of Education [DOE] as an elementary school teacher subject to her satisfactory completion of a three-year probationary period commencing in August 2008.

During the 2010-2011 school year Muller received unsatisfactory ratings on several observation reports. At the end of the school year, she agreed to waive her rights to tenure and to continue as a probationary teacher for another year. At the end of the 2011-2012 school year Muller again agreed to waive her rights to tenure and to continue as a probationary teacher for another school year.

During the 2012-2013 school year, two of the Muller's three formal observations were rated unsatisfactory while one of her informal observations was rated unsatisfactory. Ultimately her performance was declared unsatisfactory for the school year. As a result, DOE did not give Muller [1] a certification of satisfactory completion of probation and [2] discontinued her probationary employment. DOE also recommended that Muller’s teaching license be terminated.

Muller then sought judicial review of DOE’s actions, contending that its determinations were illegal, arbitrary and capricious, were made in bad faith and were in violation of her constitutional, statutory, and contractual rights. In addition Muller alleged that she was “entitled to a hearing under Education Law §3020-a pursuant to the provisions of her union's collective bargaining agreement.”

DOE, on the other hand, asserted that the Muller had failed to file a grievance under the terms of the CBA to address her claim that she was entitled to a hearing under Education Law §3020-a, thereby failing to exhaust her administrative remedies under the CBA. DOE argued that this omission barred her from raising this contention in the Article 78 proceeding. Muller, in rebuttal, contended that DOE should be equitably estopped from raising the exhaustion of administrative remedies defense because it had misled her into believing that the only administrative process available to her for the review of DOE's action was an internal review procedure.

The Supreme Court denied Muller’s petition and dismissed the proceeding without a hearing. Muller appealed the Supreme Court’s decision.

The Appellate Division, in sustaining the Supreme Court’s ruling, said that “[i]t is a basic policy” that the responsibility for selecting probationary teachers and evaluating them for appointment on tenure [sic] should lie with the Board of Education upon appropriate recommendation of its professional administrators.”

Further, said the court, an educator "may be terminated during his or her probationary period for any reason, or no reason at all, and without a hearing, unless the teacher establishes that his or her employment was terminated for a constitutionally impermissible purpose, in violation of a statutory proscription, or in bad faith” and in such situations “[t]he petitioner bears the burden of establishing bad faith or illegal reasons by competent evidence."

Addressing Muller’s assertion that she was not given a chance to conduct discovery to acquire evidence to support her allegations with respect DOE’s alleged acts of unlawful discrimination, the Appellate Division said this claim was without merit as Muller did not move for leave to conduct discovery.

As to Muller’s theory that DOE should be equitably estopped from asserting that she did not exhaust her administrative remedies, the Appellate Division explained that estoppel is generally not available against a municipal defendant with respect to the exercise of its governmental functions or its correction of an administrative error.

Although the court noted that exceptions to this general rule were triggered where "wrongful or negligent conduct" of a governmental entity, or its "misleading nonfeasance … induces a party relying thereon to change his [or her] position to his [or her] detriment" resulting in "manifest injustice" was involved, the Appellate Division said that Muller failed to establish that DOE engaged in wrongful or negligent conduct or misleading nonfeasance that resulted in manifest injustice to her such that the doctrine of equitable estoppel should be invoked against it.

The Appellate Division concluded that the evidence in the record that Muller received unsatisfactory ratings on several observation reports supported both DOE’s decision to terminated Muller’s probationary employment and its recommendation that her license to teach be terminated and that such decisions were made in good faith, were rationally based and were not arbitrary and capricious.

Finally, the Appellate Division ruled that Supreme Court properly determined that Muller was not entitled to a hearing under Education Law §3020-a pursuant to the terms of the CBA because she failed to avail herself of the grievance procedure set forth in the CBA. The court observed that the CBA provides that “[A]n aggrieved union member whose employment is subject to the terms of a collective bargaining agreement entered into by his [or her] union and employer must first avail himself [or herself] of the grievance procedure set forth in the agreement before he [or she] can commence an action in court."

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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