An employee may not be terminated for a constitutionally impermissible reason, in violation of a statutory proscription or in bad faith

An employee may not be terminated for a constitutionally impermissible reason, in violation of a statutory proscription or in bad faith

Appeal of Aminah Lucio, Decisions of the Commissioner of Education, Decision No. 17,090

After addressing the issue of the timeliness of this appeal, which the Commissioner found to be timely, the Commissioner addressed the merits of Aminah Lucio's appeal.

Lucio contended that her U-rating should be annulled because "her due process rights were violated and she was never provided with a copy of the paperwork upon which her employer, the New York City Department of Education [DOE], relied for its determination in advance of the hearing and [it] failed to follow certain rules and regulations contained in Section IV of the Appeal Process in the Rating Manual."*

Lucio also argued that DOE's decision to rate her unsatisfactory and discontinue her probationary services "was arbitrary and capricious, an abuse of discretion, made in bad faith and discriminatory ... [and she was] discontinued due to retaliation and racial discrimination."

The Commissioner explained that standard of proof required to overturn a teacher rating is very high and in the absence of a showing of malice, prejudice, bad faith or gross error, the Commissioner will not substitute his or her judgment for that of the appointing authority and that in such situations the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which her or she seeks relief.

In this instance the Commissioner found that Lucio had demonstrated that DOE's determination to give her an unsatisfactory rating "was made in gross error." DOE, said the Commissioner  failed to provide Lucio with any supporting documentation regarding her rating before the hearing, thus preventing Lucio from having any way of knowing what documentation was used as the basis for the performance rating here being challenged.

The Commissioner also noted that the hearing officer found that "there were several other flaws in [DOE's] appeal procedures, commenting that  In Matter of Blaize v. Klein, 68 AD3d 759, the Appellate Division ruled that "a teacher’s failure to receive, before the hearing, the complete set of documents on which the rating was based deprived the teacher of a substantial right, thus rendering the rating made in violation of a lawful procedure and subject to reversal."  

Based on the deficiencies in the review process which undermined the integrity and fairness of the process and the lack of hearing testimony to substantiate DOE's rationale for Lucio's termination, the Commissioner found that its decision to terminate Lucio was made in bad faith. 

Although a board of education has the unfettered right to terminate a probationary teacher’s employment for any reason, such a decision will not be sustained where the petitioner establishes that he or she was terminated "or a constitutionally impermissible reason, in violation of a statutory proscription or in bad faith, and granted Lucio's appeal.

The Commissioner directed DOE to reinstate Lucio to the position "to which she is entitled in accordance with this decision, and provide her with back pay and benefits and seniority credit from August 20, 2010, less any compensation she may have earned in the interim." 

* Click here to Read a FREE excerpt from The Discipline Book concerning the due process rights of public employees in New York State.

N.B. Lucio served in a position in the Unclassified Service of the Civil Service. Providing for the payment of "back pay and benefits" is different in situations involving the reinstatement of an individual in the Classified Service of the Civil Service terminated from his or her position. In 1985 §77 of the Civil Service Law was amended eliminating the deduction for “compensation derived from other employment” upon reinstatement by court order. The same is true with respect to such a reinstatement directed by a civil service commission pursuant to §76 of the Civil Service Law.

The Commissioner's decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume56/d17090