Termination of a probationer

Termination of a probationer

Mennella v Uniondale UFSD, Comm. Ed. Decision 14245

The Uniondale Union Free School District appointed Vincenza Mennella as its Dean of Students effective September 1, 1998. The appointment was subject to a three-year probationary period.

In January 1999, Mennella was evaluated and rated unsatisfactory or “in need of improvement” in four categories. In March 1999, the superintendent advised Mennella that she would recommend that the board terminate Mennella’s employment. When asked for the reasons for this, the superintendent told Mennella that her recommendation was based on Mennella’s:

1. Working relationships with other administrators;

2. Failure to complete classroom evaluations of first year teachers in her department in a timely manner; and

3. “Resistance to District protocol.”

The board terminated Mennella effective June 30, 1999 and she appealed to the Commissioner contending that her dismissal was arbitrary and capricious. The district raised a number of procedural objections, the most significant one being that Mennella had filed two grievances concerning the matter with the district.

After addressing the “technical” procedural objections, the Commissioner considered the district’s “jurisdiction argument” -- i.e., the Commissioner lacked jurisdiction to consider the appeal because of the pending grievances filed by Mennella.

The Commissioner responded to the district’s challenge to his jurisdiction to consider the appeal by noting that “[i]t is well established that a school employee who elects to submit an issue for resolution through a contractual grievance procedure may not elect to bring an appeal to the Commissioner of Education for review of the same matter,” citing Commack Union Free School District v Ambach, 70 NY2d 501.

The Commissioner then decided that Mennella’s grievances had not raised the same issues she raised in her appeal. Accordingly, he concluded that he had jurisdiction to consider Mennella’s appeal.

This proved to be a Pyrrhic victory, however.

Considering the merits of Mennella’s appeal, the Commissioner first pointed out that a board of education has “an unfettered right to terminate the employment of a teacher or administrator during his or her probationary period....” Such a termination will not be set aside “unless the employee establishes that a board terminated service for a constitutionally impermissible reason or in violation of a statutory proscription.”

Pointing out the Mennella had the burden of proof in this instance, the Commissioner ruled that she failed to show the board’s action was for a constitutionally impermissible reason or in violation of a statutory proscription and thus failed to meet her burden. The Commissioner dismissed her appeal.

The decision notes that the superintendent had given Mennella timely notice of her proposed recommendation and her reasons for doing so, together with an opportunity to respond to this action, thus complying with the mandates set out in Section 3031 of the Education Law. Significantly, the Commissioner indicated that he had noted “numerous memoranda in the record” sent to Mennella that “amply demonstrate [the district’s] concern over [Mennella’s] relationships with her colleagues.”

This illustrates the importance of documenting the appointing authority’s efforts to advise an employee of its expectations, and how the employee may meet these expectations, when an individual is not performing to its satisfaction. Although this case involved a probationary employee, having the same type of documentation in the record will often prove important in a disciplinary action involving a tenured individual.

Sometimes a district’s decision to terminate a probationer will trigger claims that the probationer’s rights under a collective bargaining agreement have been violated. Typically, such provisions in the negotiated agreement set out the procedures to be followed with respect to the evaluation of probationary employees and the steps to be taken in terminating the services of a probationer.

In Hempstead UFSD v Hempstead Classroom Teachers Association, of behalf of James Lacey, decided by the Appellate Division, Second Department, 267 AD2d 309, the court commented that a motion by the district to stay arbitration in a “second grievance” involving the same parties was rendered moot because a Supreme Court earlier had confirmed an arbitrator’s award in a prior grievance arbitration proceeding directing the reinstatement Lacey, a probationary teacher.

Determining if a §3014-b “takeover of an education program” occurred

Determining if a §3014-b “takeover of an education program” occurred

In the Matter of Elizabeth G. Quattrone v NYS Department of Education, 37 A.D.3d 939

Elizabeth G. Quattrone, a tenured teacher employed by Erie 2 Chautauqua-Cattaraugus Board of Cooperative Educational Services (BOCES), was assigned to teach gifted and talented students at various component school districts.

Quattrone was told that her position was being “excessed due to lack of interest in the gifted and talented program” after the Chautauqua Lake Central School District and Dunkirk City School District cancelled their BOCES contracts for gifted and talented services. Quattrone’s name was placed on a preferred eligible list for reinstatement to appropriate vacancies at both Chautauqua Lake and Dunkirk but she was never thereafter contacted by either for employment.

Alleging that, in fact, both school districts “took-over” the functions formerly performed by her and assigned the work to other teachers without offering her such available employment, Quattrone appealed “her non-selection for the position” to the Commissioner of Education.

Quattrone contended that she had a legal right to employment with the school districts pursuant to Education Law §3014-b upon their “taking-over” the former BOCES program.

Finding that there was no “take-over” that would trigger the provisions of §3014-b, the Commissioner dismissed Quattrone’s appeal.

The Appellate Division sustained the Commissioner’s determination, stating “Upon our examination of these factors, we conclude that petitioner failed to establish that a takeover occurred by either Chautauqua Lake or Dunkirk City.” Among the reasons given for its decision, the Appellate Division noted that:

1. Chautauqua Lake, while it did develop an enrichment program following its discontinuance of the BOCES gifted and talented program, “the two programs were simply not equivalent.” Unlike the BOCES program, the enrichment program paralleled general classroom instruction and featured field trips and classroom presentation components.

2. Dunkirk City, following its discontinuance of the BOCES gifted and talented program, it had no program whatsoever earmarked for gifted and talented education but rather embedded such education into their general curriculum and within the regular classroom setting.

3. Neither school district hired a new teacher to replace petitioner following discontinuance of their BOCES contracts.

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2007/02/determining-if-takeover-of-education.html

=========================
The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.
 =========================

Zero tolerance drug policy

Zero tolerance drug policy

Dept. of Corrections v Robbins, OATH 2030/99

Many employers have initiated “zero tolerance” policies requiring the automatic dismissal of individuals found to have violated the policy. These “zero tolerance” policies address a number of situations that the employer views as disruptive or dangerous, the most common involving the use of drugs by employees, on or off the job.

The New York City Department of Corrections had established a “zero tolerance” drug policy providing for the termination of any employee, uniformed (i.e., correction officers), or civilian, who violated the policy. Its justification: the policy serves important functions by acting as a deterrent against drug traffic in its facilities and ensured that “the security of penal institutions is not breached.”

Was dismissal the appropriate penalty in a case involving a civilian employee -- a dietary aide -- found to have smoked one marijuana cigarette, off-duty, almost two years before being charged with violating the policy? The administrative law judge did not believe it was, concluding that there are instances, particularly where a civilian employee is involved, when the “automatic penalty” under the department’s zero tolerance drug policy should not be applied.

The employee, Anthony Robbins, admitted he was guilty of the charge of using marijuana while off-duty. Although the department wanted him terminated for violating its “zero tolerance” drug policy, the hearing officer recommended that a lesser penalty be imposed. The mitigating circumstances set out by the hearing officer justifying the deviation from the policy included the following:

1. Since the time of the incident, Robbins had been in counseling, had undergone drug testing, and laboratory reports indicated that he tested negative for drugs.

2. The employee has continued in counseling and still undergoes, as part of counseling, drug screening.

3. The risk of Robbins’ being involved in drug smuggling at the facility is so negligible as to be speculative and therefore cannot justify termination.

4. In previous cases involving violations of the “zero tolerance” policy by civilian workers, the individuals were not terminated and lesser penalties were imposed by the department.

5. The department did not subject civilian workers to random drug testing procedures although it required uniformed employees to submit to random drug tests.

6. In one instance the department “converted a penalty of termination into a lengthy suspension with random drug testing against a correction officer found to have tested positive for marijuana.”

The hearing officer concluded these “mitigating circumstances” justified a departure from the “zero tolerance” policy’s “automatic termination” provision.