In this appeal to the Commissioner of Education, an educator challenged actions taken
by a Board of Education with respect to educator's teaching
assignment and the placement of a counseling memorandum in educator's personnel file.
In consideration of the scope of this decision of the Commissioner of
Education, addressing numerous issues resulting from requiring the educator to submit proof of COVID-19 vaccination or to consent to period testing for COVID-19, these issues, and the Commissioner's analysis of these issues, the Commissioner's decision set out below.
Ultimately the Commissioner ruled that the educator's appeal must be sustained to the extent indicated in the decision.
Decisions of the Commissioner of
Education, Decision No. 18,364
ROSA., Commissioner.--Petitioner appeals from actions taken by
respondent Board of Education of the East Aurora Union Free School
District (“respondent”) regarding her teaching assignment and the
placement of a counseling memorandum in her personnel file. The appeal
must be sustained to the extent indicated.
Petitioner is employed as an elementary school teacher in
respondent's school district. Respondent granted her tenure in
2002. She has always received ratings of effective or highly effective
and has taught first, second, and fifth grade.
On September 2, 2021,
the New York State Department of Health (“NYSDOH”) promulgated regulations
authorizing “routine COVID-19 testing in certain settings” that included
schools. The regulation also allowed entities subject to routine testing
to “accept documentation demonstrating full vaccination in lieu of imposing
such testing requirements.” Petitioner was informed by respondent, on
numerous occasions, that she needed to submit proof of COVID-19 vaccination or
consent to periodic testing in accordance with this regulation.
Petitioner did not comply with these requirements; as a result, she was placed
on unpaid administrative leave on September
27, 2021.
The NYSDOH regulations at issue expired on June 1, 2022. Respondent did not
restore petitioner to her position at that time but resumed paying her salary.
On October 4, 2022,
petitioner met with respondent’s superintendent concerning her
employment. Petitioner asserts that the superintendent stated that he
“didn’t see” petitioner “com[ing] back and go[ing] into a first-grade classroom
like nothing happened,” predicting that it would “not ... be successful.”
The superintendent offered to accept petitioner’s resignation in lieu of
preferring charges under Education Law §3020-a.[1] Petitioner rejected the
superintendent’s offer.
On November 7, 2022,
respondent assigned petitioner to “research best practice curriculum map models
in elementary education, and to evaluate and align the District’s elementary
curriculum to those best practices.”
Over four months later, the superintendent issued a
counseling memorandum (the “memorandum”) to petitioner to “bring attention and
closure to the District’s concerns regarding [her] conduct related to the
COVID-19 testing requirements which were in effect during the 2021-2022 school
year.” The memorandum, discussed at greater length below, was placed in
her personnel file. This appeal ensued.
Petitioner argues that her assignment to a non-teaching
position was disciplinary or retaliatory in nature. She further contends
that the memorandum constitutes impermissible discipline that could only have
been issued following a hearing under Education Law §3020-a. She seeks
restoration to a teaching position and removal of the memorandum from her
personnel file.
Respondent argues that petitioner’s challenge to her
non-teaching assignment is untimely and without merit. Respondent
acknowledges that the memorandum was critical but argues that it fell within
the permissible scope of an administrative evaluation.
Petitioner’s challenge to her non-teaching assignment must
be dismissed as untimely. An appeal to the Commissioner must be commenced
within 30 days from the decision or act complained of, unless any delay is
excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of
Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457,
Decision No. 15,914). Petitioner asserts that she returned to employment
on November 7, 2022, at
which time she “was reassigned to perform ‘curriculum mapping’ tasks.”
This appeal was not commenced until April 2023, over five months later.
Petitioner nevertheless argues that her challenge to this
assignment is timely as it constitutes a continuing wrong. Pursuant to
the continuing wrong doctrine, the 30-day time limitation does not bar an
appeal from an ongoing action that results in a continuous violation of law,
such as the unlawful employment of an unqualified individual (Appeal of Kippen,
48 Ed Dept Rep 469, Decision No. 15,919); an unlawful appointment to a
district’s shared decision-making team (Appeal of Sadue-Sokolow, 39 Ed Dept Rep
6, Decision No. 14,155); an improperly constituted professional development
team (Appeal of Copenhagen Teachers’ Association, et al., 45 Ed Dept Rep 459,
Decision No. 15,381); or ongoing spending under an allegedly improper austerity
budget (Appeal of Aarseth, 32 Ed Dept Rep 506, Decision No. 12,901). The
doctrine does not apply where a petitioner challenges a single discrete action,
inaction, or decision and the resulting effects, even if continuous, are not
intrinsically unlawful (Application of Ayers, 48 Ed Dept Rep 350, Decision No.
15,883; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821,
art 78 dismissed Matter of Reyes v Mills [Sup Ct, Albany County 2009, Zwack,
J.]).
I agree with respondent that petitioner’s reassignment was a
discrete act triggering the 30-day time limitation (see Langella v. Mahopac
Cent. Sch. Dist., US Dist Ct, SD NY, 1:18 civ 10023, Román, J., 2022 [high
school coach’s complaints about discrete acts, including his suspension with
pay, were “plainly ‘discrete acts’ that [could not] be covered by the
continuing violation doctrine”]). Appeal of McEvoy is distinguishable, as
the petitioner in that appeal alleged that she was required to perform work
outside of her tenure area without her consent, which is inherently unlawful
(57 Ed Dept Rep, Decision No. 17,198). Here, the instructional support
services duties to which petitioner was assigned are specifically authorized by
Part 80 of the Regulations of the Commissioner (8 NYCRR 80-5.21).
Therefore, petitioner’s challenge to her non-teaching assignment must be
dismissed as untimely.[2]
Turning to petitioner’s remaining claim, in an appeal to the
Commissioner, a petitioner has the burden of demonstrating a clear legal right
to the relief requested and establishing the facts upon which he or she seeks
relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No.
17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48
id. 354, Decision No. 15,884).
Petitioner has met her burden of proving that the counseling
memorandum was disciplinary in nature. Tenured teachers may only be
disciplined following a hearing under Education Law § 3020-a. In Holt v.
Bd. of Educ., Webatuck Cent. Sch. Dist., et al.,[3] the Court of Appeals articulated a
distinction between “admonitions to a teacher [that] are critical of
performance” and “disciplinary determinations of a punitive nature.” The
former, intended to address “relatively minor breach[es] of school policy,” may
be imposed by management in its discretion while the latter may only be imposed
following a hearing. In Matter of Richardson,[4] the Commissioner applied the Court’s
analysis in Holt and sustained the appeal of a tenured teacher who had served
as the school nurse. The decision identified multiple factors to be
considered in determining whether written criticism constitutes an
impermissible reprimand, primarily whether: (1) the letter is directed
towards an improvement in performance or a reprimand for prior misconduct;[5] and (2) the severity of the misconduct
and the admonition-reprimand.[6]
Here, both factors support a finding that the memorandum was
disciplinary in nature. With respect to the first factor, the majority of
the memorandum criticizes petitioner for prior conduct. The first page
and one-half of the three-page memorandum recount the events leading to
petitioner’s leave. This chronology is punctuated with critical
assessments, such as “[y]our actions demonstrated a serious lack of concern for
your students, parents and colleagues” and “your lack of proactive
communication and lack of acknowledgment [were] troubling.” The second
half of page two, entitled “Summary of Concerns,” contains four paragraphs that
directly criticize petitioner’s actions. The following excerpt from the
second paragraphs is representative:
Your deliberate insubordination of State-imposed
requirements and the District’s repeated directives ... not only impacted the
District’s operations, but ... resulted in an abandonment of our
students. Your conduct was unprofessional and showed a lack of
integrity. Additionally, your complete disregard for how your actions
might affect others demonstrated a lack of concern for students, families, your
colleagues, and District administration ... Moreover, your failure to comply
with applicable rules and expectations for teachers undermines your credibility
as a teacher responsible for enforcing classroom/school/District rules and
expectations for students.
The memorandum also addresses improvement in performance in
a section on page three under the heading “Directives for Future
Conduct.” However, these directives merely request that petitioner follow
the law and her supervisor’s instructions. For example, two of the
directives merely instruct petitioner to comply with “all applicable ... State
and federal laws ...” and the district’s code of conduct. Thus, on
balance, I find that the memorandum primarily constitutes a reprimand for prior
misconduct.
With respect to the second factor, petitioner’s alleged
misconduct was, as characterized by the superintendent, “significant.”
The memorandum states that petitioner’s conduct “forced [the district] to
scramble to find a substitute teacher for [petitioner’s] first-grade students
on almost no notice” and “caused significant and on-going repercussions.”
Most significantly, the memorandum asserts that petitioner’s deliberate
insubordination of State-imposed requirements and the District’s repeated
directives and communication of its expectations ... not only impacted the
District’s operations, but ... resulted in an abandonment of our students.
As such, petitioner’s conduct cannot be considered “a
relatively minor breach of school policy” (Holt, 52 NY2d at 633; see Appeal of
Fusco, 39 Ed Dept Rep 836, Decision No. 14,396). Minor breaches have
included, by contrast, failing to maintain order in a study hall, interrupting
a class, failing to stay at an assigned work location, using profanity,
disparaging a colleague’s efforts to decorate for a school event, and
neglecting to return school property.[7] Failing to abide by a condition of
employment and ignoring administrative directives thereto is, by comparison,
far more consequential.[8]
In sum, given its predominant focus on prior and serious
misconduct, I find that the March 2023 counseling letter constituted a
disciplinary action that could only be imposed following a hearing (Appeal of
Fusco, 39 Ed Dept Rep 836, Decision No. 14,396; Matter of Richardson, 24 id.
104, Decision No. 11,333). As such, respondent must remove it from
petitioner’s personnel file.
Finally, respondent requests certification that the
superintendent acted in good faith pursuant to Education Law § 3811 (1).
Such certification is solely for the purpose of authorizing a board of
education to indemnify a respondent for costs incurred in defending against a proceeding
arising out of the exercise of the respondent's powers or the performance of
the respondent's duties as a board member or other official listed in section
3811 (1). The Commissioner will issue such certification unless the record
establishes that the requesting respondent acted in bad faith (Application of
McCray, 57 Ed Dept Rep, Decision No. 17,240; Application of Valentin, 56 id.,
Decision No. 17,014; Application of Paladino, 53 id., Decision No.
16,594). There is no evidence that the superintendent acted in bad faith;
as such, he is entitled to the requested certification.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that respondent remove the March 30, 2023 memorandum from
petitioner’s personnel file.
[1] Respondent admits that the superintendent
offered to accept petitioner’s resignation but does not admit or deny the
statements attributed to him.
[2] Should respondent again assign petitioner to
a position that primarily or exclusively involves instructional support
services, this would constitute a new act that could be the subject of a grievance
or appeal to the Commissioner.
[3] 52 NY2d 625 (1984).
[4] 24 Ed Dept Rep 104, Decision No. 11,333.
[5] While identified separately, “[w]hether the
letter is in the nature of a performance evaluation or a castigation for
misconduct” appears to concern the same inquiry as the first factor above.
[6] The decision also considered it relevant if
a letter: (1) is from the teacher’s immediate supervisor or from the board of
education; (2) uses the word “reprimand”; or (3) “uses the accusatory language
of formal charges in describing the teacher’s conduct.” While these
factors may be considered, they relate less to the nature of the conduct/reprimand
and more to the care with which the letter was drafted.
[7] The first three incidents were the subject
of the consolidated appeals in Holt, 52 NY2d 625. The second three were
the subject of a counseling letter issued to a teacher in Appeal of Leake, 57
Ed Dept Rep, Decision No. 17,236.
[8] I further find, as evidenced by its
structure and tone of the memorandum, that respondent’s admonition of
petitioner was sufficiently severe to constitute discipline.
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