Court annuls employee's unsatisfactory performance rating after finding that the rating lacked a rational basis and was arbitrary and capricious

Court annuls employee's unsatisfactory performance rating after finding that the rating lacked a rational basis and was arbitrary and capricious

Mendez v New York City Dept. of Educ., 2015 NY Slip Op 07599, Appellate Division, First Department

A tenured common branches teacher [Teacher] employed by the New York City Department of Education [DOE] who had received satisfactory ratings since February 2010, forfeited her tenure as a common branches teacher in order to obtain a position as a special education teacher. Appointed as a probationary special education teacher at a high school subject to the satisfactory completion of a two-year probationary period ending in September 2012, Teacher was given a satisfactory rating on her Annual Professional Performance Review for the 2010-2011 school year.

During the summer of 2011, Teacher was an “unsatisfactory rating” [U-rating] and was suspended without pay for four days based on an incident where she was found to have engaged in a loud argument with another teacher in front of students. Teacher appealed and the Chancellor's Committee held a hearing. During the course of the hearing the Superintendent Representative conceded that the four-day suspension was "inappropriate" under the terms of the relevant collective bargaining agreement and it was reversed because of the error.

After receiving a second U-rating,* Teacher was terminated from the position.

A majority of the Appellate Division, Judge Sweeny dissented in part, addressing Teacher’s U-rating for the summer of 2011, held that the U-rating “lacked a rational basis and was arbitrary and capricious.” The court said that accepting the testimony that Teacher had engaged in a loud argument with another teacher about sharing a room, there is no rational basis to find Teacher's conduct was unprofessional, insubordinate or unbecoming.

The majority, noting that the subject of the argument concerned whether Teacher's students with disabilities should share space with students that composed the art cluster or obtain a larger classroom, said that there was no evidence presented that the content of conversation itself was unprofessional. In the words of the court, “The simple conduct of an argument without more elaboration on how the subject and language of the conversation was unprofessional is insufficient to provide a rational basis for professional misconduct.”

Further, said the court, Teacher’s failure to admit that the conversation rose to the level of an argument is not evidence of insubordination.”

Turning to DOE’s termination of Teacher’s employment, the Appellate Division, citing Brown v City of New York, 280 AD2d 368, observed that it is well established that a "probationary employee may be discharged for any or no reason at all in the absence of a showing that [the] dismissal was in bad faith, for a constitutionally impermissible purpose or in violation of law."

Here, however, the court determined that Teacher had established a deficiency in the review process that resulted in Teacher’s termination that was "not merely technical, but undermined the integrity and fairness of the process" considering the fact that the record demonstrated  that Teacher had received satisfactory ratings since February 2010, “which established her professional conduct but for the alleged incident of a loud argument.”

The Appellate Division annulled Teacher's termination and the summer 2011 U-rating and then remanded the  matter to DOE for completion of its final review of the second U-rating for the 2011-2012 school year.

* Teacher’s challenge to the second U-rating for the 2011-2012 school year was premature as she had not exhausted her administrative remedies and a determination of her appeal of that rating had not yet been made at the time the petition was brought.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07599.htm

An educator's claim of tenure by estoppel may be defeated if the educator agrees to an extension of his or her probationary period

An educator's claim of tenure by estoppel may be defeated if the educator agrees to an extension of his or her probationary period

Slutsky-Nava v Yonkers City School Dist. Bd. of Educ., 2015 NY Slip Op 07670, Appellate Division, Second Department

A teacher may attain tenure by estoppel* when a school board accepts the continued services of a teacher but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher's probationary term.

In this CPLR Article 78 action a teacher [Teacher] asked to court to review a determination of the Yonkers City School District Board of Education [Yonkers] terminating Teacher’s employment as an elementary school teacher. Supreme Court granted Yonkers’ motion to dismiss Teacher’s petition and Teacher appealed.

According to the decision, Teacher was appointed by Yonkers as an elementary school teacher subject to Teacher’s satisfactorily completing a three-year probationary period which was to run through September 2, 2011. Teacher, however, was laid off from her position, effective June 31, 2011. In August 2012, she was again offered a position as an elementary school teacher, starting September 1, 2012.**

Upon her reemployment Teacher was told that, as a result of having been laid off, her probationary period was being extended to November 4, 2012. She signed the offer of employment, which clearly stated that her "expected date of tenure [would] be on November 4, 2012." The petitioner's employment was terminated on October 17, 2012, after she received an unsatisfactory rating.

The Appellate Division said that Teacher’s “probationary period was properly extended to November 4, 2012 since she signed an offer of employment which specified that she would not become eligible for tenure until November 4, 2012.” As Yonkers terminated the Teacher’s employment prior to the expiration of her probationary period and she did not perform the duties of a teacher after November 4, 2012, Supreme Court properly determined that, even accepting the allegations in the Teacher’s petition as true, she could not have acquired tenure by estoppel.

The court also rejected Teacher’s claim that Education Law §2573(15),***which, among other things, describes certain factors to be considered in calculating service for the purposes of determining a teacher's probationary period, holding that §2573(15) did not apply to the facts of this case.

The Appellate Division then held that “[s]ince the allegations of the petition were insufficient to state a cause of action to review [Yonkers’] determination based on the theory of tenure by estoppel, the Supreme Court properly granted [its] motion to dismiss the petition and, in effect, dismissed the proceeding.” 

* Also sometimes referred to as tenure by acquisition, tenure by default or tenure by inaction.

** Presumably [1] Yonkers abolished a position in the elementary tenure area, [2] Teacher was the least senior employee in that tenure area and her name was placed on a preferred list and [3] Teacher was subsequently appointed from the preferred list.

*** §2573(15), which applies to city school districts of cities with one hundred twenty-five thousand inhabitants or more, provides as follows: “15. Notwithstanding any other provision of this section [2573] no period in any school year for which there is no required service and/or for which no compensation is provided shall in any event constitute a break or suspension of probationary period or continuity of tenure rights of any of the persons hereinabove described.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07670.htm

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Remanding a disciplinary penalty “to a new hearing officer” to determine a “lesser penalty”

Remanding a disciplinary penalty “to a new hearing officer” to determine a “lesser penalty”

Fox v New York City Dept. of Educ., 2015 NY Slip Op 07792, Appellate Division, First Department

The New York City Department of Education [DOE] appealed a decision by Supreme Court that [1] vacated the penalty of termination of a guidance counselor's employment imposed by DOE after a disciplinary hearing and [2] remanded the matter to DOE for a determination of a "lesser penalty” by a new hearing officer.  

The Appellate Division unanimously reversed the Supreme Court’s ruling “on the law” and reinstated the penalty imposed on the educator by DOE, dismissal from the position.

The Appellate Division explained that the guidance counselor had engaged in a course of conduct over two years demonstrating "insubordination, professional unfitness, inability to handle a crisis situation, disclosure of confidential information, and inadequate record keeping."

Under the circumstances, said the court, "The termination of [the guidance counselor's] employment is not so disproportionate to this pattern of misconduct as to shock our sense of fairness," citing Lackow v Department of Education, 51 AD3d 563.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07792.htm

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A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service. For more information click on http://booklocker.com/books/7401.html

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Grievances reasonably related to the general subject matter of the CBA typically involve matters of contract interpretation and application to be determined by an arbitrator

Grievances reasonably related to the general subject matter of a CBA typically involve matters of contract interpretation and application to be determined by an arbitrator

Village of Garden City v Local 1588, Professional Firefighters Assn., 2015 NY Slip Op 07672, Appellate Division, Second Department

Local 1588, Professional Firefighters Association [Association] filed a grievance after the Village of Garden City [Village] laid off of members of the bargaining unit members and assign bargaining unit work to nonbargaining unit volunteers.  In response to the Association’s demand to submit the grievance to arbitration, the Village sought a court order to permanently stay arbitration on the ground that it retained absolute management rights to lay off employees and assign work under the parties' Collective Bargaining Agreement [CBA]. The Association cross-moved compel arbitration, arguing that the CBA permitted arbitration of this dispute.

The Supreme Court denied the Village’s motion, finding that the parties had agreed in the CBA to arbitrate these issues, and that it was not against public policy to do so and granted the Association’s motion to compel arbitration. The Village appealed.

The Appellate Division sustained the Supreme Court’s ruling, explaining that the determination of whether a dispute between a public sector employer and employee is arbitrable is subject to a “two-prong test."

First the court must determine whether there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance. If there is no such prohibition, the court must then examine the CBA and determined if the parties did, in fact, agree to arbitrate the particular dispute.

Although the Village argued that the arbitration of layoffs of unit member firefighters is prohibited by public policy, the Appellate Division, citing NYC Transit Authority v Transportation Workers Union of America, 88 AD3d 887, said a dispute is not arbitrable if a court can conclude “without engaging in any extended factfinding or legal analysis” that a law "prohibit[s], in an absolute sense, [the] particular matters [to be] decided by arbitration.” Here, said the court, the Village failed to point to any law or public policy that would prohibit arbitration of the grievance.

As to the Association's claim that the Village had improperly assigned bargaining unit work to nonunion volunteers, the court observed that “the very issue as to arbitrability has already been decided” by it. The Appellate Division cited Professional Firefighters Association Local 1588 v Village of Garden City, 119 AD2d 803, explaining that by confirming an arbitration award which directed the Village “to cease and desist from assigning bargaining unit work to volunteers” it had implicitly acknowledged the arbitrability of that specific issue.

Finding that the grievances were reasonably related to the general subject matter of the CBA and, therefore, the Village’s management rights granted under Article XVII of the CBA and "the question of the scope of the substantive provisions of the CBA [are] a matter of contract interpretation and application reserved for the arbitrator."

Accordingly, said the Appellate Division, the Supreme Court properly denied the petition to permanently stay arbitration and granted the Association's motion to compel arbitration.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07672.htm

Absent the employer’s demonstrating its actions were motivated by legitimate business reasons, such actions may constitute an unfair labor practice

Absent the employer’s demonstrating its actions were motivated by legitimate business reasons, such actions may constitute an unfair labor practice

Hudson Val. Community Coll. v New York State Pub. Empl. Relations Bd., 2015 NY Slip Op 07731, Appellate Division, Third Department

In this action the Appellate Division reviewed a challenge to the Public Employment Relations Board’s [PERB] finding that Hudson Valley Community College [Hudson Valley] committed an improper employer practice.

Hudson Valley Community College Non-Instructional Employees Union (NIEU) representing certain classified service staff members employed by Hudson Valley claimed that Hudson Valley agreed to pay overtime at a rate of time and a half for work performed by NIEU members in "second jobs" outside the scope of their regular employment duties.

A dispute arose as to a particular overtime payment and NIEU and Hudson Valley engaged in collective bargaining concerning overtime compensation for second jobs. Unable to reach agreement, Hudson Valley's director of human resources issued a memorandum announcing that Hudson Valley would no longer hire NIEU members for any second jobs and would instead retain non-NIEU members, such as faculty members and temporary staff, for such positions.

NIEU filed an improper practice charge against Hudson Valley with PERB and, following a hearing, an Administrative Law Judge determined that Hudson Valley's decision not to hire NIEU members for second jobs constituted retaliation against NIEU for its advocacy in the underlying dispute in violation of Civil Service Law §209-a(1)(a) and (c). 

Ultimately PERB affirmed the administrative law judge’s decision and directed Hudson Valley, among other things, to rescind the director of human resources’ memorandum, restore NIEU members to the second jobs they had previously held and pay them back wages with interest. Hudson Valley appealed.

The Appellate Division said that in order to prove its claim that Hudson Valley had engaged in an improper practice, NIEU was required to establish that:

[1] NIEU was engaged in activities protected by the Taylor Law;

[2] Hudson Valley knew of these activities; and

[3] Hudson Valley took the challenged action because of such activities.

Further, explained the court, if the charging party proves a prima facie case of improper motivation, the burden of persuasion shifts to the party charged with the unfair labor practice to establish that its actions were motivated by legitimate business reasons.

Here the parties agreed that NIEU's advocacy on the overtime issue was a protected activity and that Hudson Valley was aware of NIEU's advocacy. Thus the issue to be determined was whether Hudson Valley's decision to stop hiring NIEU members for second jobs was improperly motivated.

Hudson Valley's director of human resources had testified that the parties became "fairly entrenched" in their positions on this and other disputed overtime issues. As a result Hudson Valley decided "to eliminate the problem by not having [second] jobs available." The director of human resources circulated a memorandum stating that "[b]ecause of the intransigence of NIEU leadership, [Hudson Valley] can no longer hire current classified staff members for any secondary functions, no matter how brief or infrequent, as this results in a demand for 'overtime' payment for any work beyond normal schedule." 

In his testimony the director of human resources said that his use of the word "intransigence" was not “anti-union animus” but, instead, he was attempting to ensure that Hudson Valley's supervisory staff did not blame the administration for the conflict.

The Appellate Division ruled that memorandum and the director of human resources' testimony constitute substantial evidence supporting PERB's determination that Hudson Valley made its decision to stop hiring NIEU members for second jobs because of NIEU's advocacy, shifting the burden to Hudson Valley to establish that it had valid economic reasons for its actions.

Considering economic reasons identified to support Hudson Valley’s decision, the Appellate Division said that there were specific examples of higher overtime rates being paid to employ NIEU members for some services provided. However, said the court, there was also testimony that non-NIEU members who replaced NIEU members in certain second jobs — such as faculty members who were hired to proctor examinations — were paid at a higher hourly rate than the overtime compensation that would have been paid to NIEU members and that the director of human resources acknowledged that non-NIEU members were hired even in instances when doing so was more expensive. *

The Appellate Division ruled that substantial evidence in the record supported PERB's determination that Hudson Valley did not meet its burden to establish that its actions were motivated by valid economic concerns and found that Hudson Valley had stopped hiring NIEU members for second jobs in retaliation for NIEU's advocacy on the overtime issue.

In response to Hudson Valley’s claim that PERB’s order could not be reasonably applied because some of the second jobs in question no longer existed and some NIEU members who previously held second jobs were now retired or had left Hudson Valley's employment, the court said that it could not consider this aspect of Hudson Valley’s argument as this was not part of the administrative record before PERB when it crafted its remedial order.

Accordingly the Appellate Division remitted the matter to PERB for a determination as to which NIEU members, if any, [1] can be reinstated to second jobs that they previously held and, or, [2]  receive back pay.

* At least one NIEU member who had been employed in a second job was paid a flat annual stipend that was unaffected by overtime rates, but nevertheless lost the position as a result of Hudson Valley’s decision.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07731.htm