Extending the probationary period of an individual

Extending the probationary period of an individual

Appeal of Anne M. Christiano, Decisions of the Commissioner of Education, Commissioner’s decision No. 16,217

A “Juul Agreement” between an educator and his or her appointing authority extends the educator’s probationary period rather than terminate the educator at the end of his or her probationary period for not completing his or her probationary period satisfactorily. This is typically done in an effort to provide the educator with an opportunity to improve his or her performance and thereby become eligible for tenure in the position. Such an agreement, when “open, knowing and voluntary,” waives the educator’s right to claim tenure by estoppel.* At the end of the extended probationary period the school district may grant or deny tenure [see Juul v. Board of Educ. of Hempstead UFSD, 76 AD2d 837, affirmed, 55 N.Y.2d 648].**

Anne M. Christiano, then serving as a probationary principal, and the Johnstown City School District had entered into a Juul Agreement. At the end of the extended period of Christiano’s probation the superintendent recommended Christiano for tenure.  The school board, however, voted to reject the superintendent’s recommendation and denied Christiano tenure with the district.

Christiano, alleging that the board acted in bad faith and was arbitrary and capricious in denying her tenure, appealed to the Commissioner, asking that he overturn the school board’s tenure determination and that he remove those members of the board “who voted against granting her tenure.”

After addressing a number of procedural issues, the Commissioner said that with respect to the merits of Christiano’s claim regarding the denial of tenure, Education Law §3012(1)(b) provides that the service of a principal “may be discontinued at any time during the probationary period on the recommendation of the superintendent of schools, by a majority vote of the board of education.”  Further, said the Commissioner, “… a board of education has the unfettered right to terminate a probationary principal’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 any event, 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 petitioner seeks relief. In this instance the Commissioner ruled that while there were positive comments in the record about her administrative abilities, Christiano had not alleged or established that she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription.

Accordingly, the Commissioner found that Christiano has failed to meet her burden of proof.

As to Christiano’s petition to remove certain members of the school board, the Commissioner said that she had failed to establish facts sufficient to warrant removal of the individually named board members pursuant to Education Law §306.  The Commissioner pointed out that “A member of the board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education.”

Finding that Christiano had failed to establish that the individual members of the school board named in her appeal “intentionally acted with a wrongful purpose to disregard a lawful duty or violate a legal requirement,” the Commissioner ruled that she had failed to establish any ground for their removal under Education Law §306.

* A probationary employee may attain tenure by estoppel [sometimes referred to as “tenure by acquiescence”] when the appointing authority accepts the continued services of the individual, but fails to take the action required by law to either grant or deny the individual tenure prior to the expiration of the employee’s probationary term, [see McManus v Hempstead Union Free School District, 87 NY2d 183]. Continuation on the payroll for a brief period after the expiration of a probationary period for administrative convenience, such as to coincide with the end of a payroll period, does not automatically result in the individual attaining tenure by estoppel [Mendez v Valenti, 101 AD2d 612].

** A procedure is available to the appointing authority with respect to probationers in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, provides:. 4 NYCRR 4.5(b) (5)(ii), in pertinent part, permits an appointing authority to offer a probationer deemed not to have satisfactorily completed his or her probationary period an opportunity to serve a second probationary term “in which case the appointment may be made permanent at any time after completion of 12 weeks of service, or the employment [may be] terminated at any time after the completion of 8 weeks of service and on or before the completion of 26 weeks of service.” A similar rule has been adopted by many local civil service commissions.

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

http://www.counsel.nysed.gov/Decisions/volume50/d16217.htm

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Petitioner alleging disparate treatment in violation of his or her Title VII civil rights has the initial burden of setting out a prima facie case of unlawful discrimination

Petitioner alleging disparate treatment in violation of his or her Title VII civil rights has the initial burden of setting out a prima facie case of unlawful discrimination

Wharff v State Univ. of New York, USCA, Second Circuit, 09-4534-cv

Wilfred Wharff alleged that SUNY refused to promote him from Lab Technologist to Assistant Supervisor because of his gender.

The Circuit Court said that Wharff’s disparate treatment claim pursuant to Title VII [42 USC § 2000e et seq.] was to be analyzed under the tripartite burden shifting framework laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, whereby Wharff has the initial burden of establishing a prima facie case of unlawful discrimination.

Citing Malave v. Potter, 320 F.3d 321, the Circuit Court said that “To make out a prima facie case of disparate impact, a plaintiff must ‘(1) identify a policy or practice, (2) demonstrate that a disparity exists, and (3) establish a causal relationship between the two.’

If he is able to do so, the burden shifts to the employer "to articulate some legitimate, nondiscriminatory reason" for its actions.”

Finding that Wharff offered no evidence that SUNY applied its promotion procedures unfairly, that the collective bargaining agreement's sanctioning of the alternate hiring process was negotiated as a pretext for sex discrimination, or that the selection of alternatives was intentionally manipulated to accomplish such discrimination, the Court dismissed his appeal.

Further, said the court, “Even assuming that this establishes a prima facie case of discrimination, SUNY has offered a legitimate, nondiscriminatory reason for its promotion decisions that Wharff has failed to rebut.”

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/8255044e-0961-4619-a312-4a2d3aa9000d/1/doc/
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Denying employee sick leave bank benefits results in charges of unlawful discrimination

Denying employee sick leave bank benefits results in charges of unlawful discrimination

Cheektowaga CSD v Graziadei, 267 AD2d 985, motion for leave to appeal denied, 95 NY2d 756

A sick leave bank was created by the Cheektowaga Central School District as required by the collective bargaining agreement between district and the Teachers’ Association. Under the terms of the agreement, sick leave bank time was available only to employees incapacitated by severe sickness or injury.

Kathryn A. O. Graziadei, a guidance counselor, had used up all of her sick leave credits after being absent for four weeks and two days following the birth of her child.

Graziadei requested approval to draw three days of sick leave from the sick leave bank. Her request was disapproved by the district because it found that Graziadei did not demonstrate that she was incapacitated by a severe sickness or injury.

Graziadei filed a complaint with the New York State Division of Human Rights alleging that the district had unlawfully discriminated against her because of her gender and a pregnancy-related disability. The district appealed the Division’s ruling that it had unlawfully discriminated against Graziadei.

In reviewing the district’s appeal, the Appellate Division found that Graziadei was entitled to take advantage of the sick leave bank to the same extent as employees who are incapacitated by a medical condition other than pregnancy and recovery from childbirth.

According to the decision, Graziadei failed to present any proof that she was incapacitated by severe sickness or injury, or that her request for leave bank time was treated in a manner less liberal than those applications from employees with conditions unrelated to pregnancy and recovery from childbirth. This omission proved fatal to the Division’s determination.

The Appellate Division annulled the Division’s determination that the district had unlawfully discriminated against Graziadei on the basis of sex and a pregnancy-related disability, holding that the Division’s decision was not supported by substantial evidence.

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Penalties imposed on police officers founds guilty of charges alleging wrongful arrest

Penalties imposed on police officers founds guilty of charges alleging wrongful arrest

Police Department v Popovic, NYC Office of Admin. Trials and Hearings, OATH Index No. 544/00

Administrative disciplinary charges may be filed against a police officer alleging that he or she made an arrest in bad faith. The Popovic decision lists some of the penalties recommended by New York City’s Office of Administrative Trials and Hearings where a police officer is found guilty of such charges.

Penalties for bad faith or retaliatory arrests range from 10 to 30 days, depending upon the degree of infringement of the civilian’s rights. Some examples follow:

1. Loss of 25 vacation days for bad faith arrest in retaliation for complainant’s vulgar retorts to the officers’ provocative behavior;

2. 30 days’ suspension and disciplinary probation for bad faith arrest and strip-search of a civilian;

3. Loss of 10 vacation days for bad faith arrest in retaliation for past incident of arrogance to officers and displaying a falsified license;

4. Loss of 15 vacation days for bad faith arrest following argument about a police report;

5. Loss of 13 vacation days for bad faith arrest after civilian attempted to record the police officer’s badge number.
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A school board member seeking the removal of another member must demonstrate willful misconduct or neglect of duty of the part of the member

A school board member seeking the removal of another member must demonstrate willful misconduct or neglect of duty of the part of the member

Matter of Powell and Elliott, Decisions of the Commissioner of Education, Decision 16,216

Willa Powell, a member of the Board of Education of the Rochester City School District asked the Commissioner to remove another member of the board, Cynthia Elliott, alleging that Elliott had “willful and substantive disclosure of confidential information” acquired in the course of her official duties to a newspaper.

The Commissioner denied Powell’s application.

The Commissioner explained that a member of the board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education.

To be considered willful, the actions of the individual must have been intentional and with a wrongful purpose.

Here, said the Commissioner, Powell had not met her burden of proving that Elliott had engaged in behavior constituting a willful violation or neglect of duty requiring her removal from office to his satisfaction. As to the evidence advanced by Powell, the Commissioner ruled that the fact that the draft report released to the media “contains a code linked back to the copy intended for [Elliott], does not in itself prove that [Elliott] released it, much less that she intentionally released it.”

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume50/d16216.htm