May 13, 2021

Court finds dismissal of a teacher during her probationary period supported by documentary evidence, performance evaluations and the existence of attendance issues

Supreme Court denied the CPLR Article 78 petition filed by a New York City probationary teacher [Plaintiff] seeking a court order annulling a determination of the New York City Board of Education and others [Respondents] that resulted in the termination Plaintiff's employment as a teacher.

Plaintiff appealed the Supreme Court's ruling. The Appellate Division unanimously affirmed the lower court's decision.

Citing Matter of Che Lin Tsao v Kelly, 28 AD3d 320 and other decisions, the Appellate Division held that Supreme Court "properly concluded that [Plaintiff] failed to meet her burden of demonstrating, by competent proof, that a substantial issue of bad faith existed warranting a hearing."

The Appellate Division noted that "documentary evidence, performance evaluations and Plaintiff's attendance issues" supported the lower court's determination that the Respondents' discontinuance of Plaintiff's employment during her probationary period was not made in bad faith

Further, said the Appellate Division, Supreme Court "properly determined" that to the extent the Plaintiff's Article 78 petition sought to challenge Respondents' denial of Plaintiff's request to withdraw her prior resignation, such challenge was untimely. Accordingly, the Appellate Division did not consider Plaintiff's claim that the New York City Board of Education Chancellor's Regulation C-205, which addresses the "general requirements for licensure and provisions relative to the termination and restoration of licenses," was improperly applied in her case.

Regulation C-205.28 provides, in pertinent part, that "a pedagogical employee who has resigned may, at the discretion of the Executive Director of the Division of Human Resources, be permitted to withdraw such resignation for the purpose of reinstatement to service, regardless of whether the person was tenured or not on the date of his or her resignation."

Click HEREto access the Appellate Division's decision.


 

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