Terminating a teacher during his or her probationary period

Terminating a teacher during his or her probationary period

Zarinfar v Board of Educ. of the City Sch. Dist. of the City of N.Y., 2016 NY Slip Op 07269, Appellate Division, First Department

As the Court of Appeals held in Gould v Board of Educ. of Sewanhaka Cent. High School Dist., 81 NY2d 446, a probationary teacher is subject to remvcal from his or her position at any time for any reason, or for no reason, without a hearing. Further, a terminated probationary teacher challenging his or her termination has the burden of showing that the termination was in violation of law or for a discriminatory reason or purpose.

Majid Zarinfar, a probationary teacher, was terminated from his position with the New York City Board of Education. Zarinfar, alleging that had attained tenure by estoppel based on his service in the same subject area at a different school under a different license,* filed an Article 78 petition seeking a court order annulling the Board of Education’s decision to terminated his probationary employment and declaring that he had attained tenure by estoppel by reason of his service in another New York City school.

Supreme Court denied his petition, finding that Zarinfar was not entitled “tenure by estoppel” because:

1. Zarinfar’s probationary service under his technology license was found unsatisfactory and was terminated from that position; and

2. Zarinfar had commenced a new probationary period under his mathematics license after his service as a probationary teacher was terminated under his technology license.

The Appellate Division affirmed the lower court’s ruling, noting that “[as Zarinfar] never received tenure, he was subject to termination at any time for any reason without a [pretermination] hearing.”

In York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule concerning the dismissal of probationary employees as follows: “After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.”

With respect to positions in the Classified Service, where the probationary period is set terms of completing a minimum or a maximum period of probation, should an appointing authority elect to terminate a probationary employee prior to the individual completing his or her minimum probationary period, the employee must be afforded “notice and hearing” in accordance with the terms of the controlling law or the relevant disciplinary procedure set out in a collective bargaining agreement, As the Court of Appeals held in York v McGuire, if the probationer has not yet completed his or her minimum period probation, he or she is entitled to “notice and hearing” as a condition precedent to termination on the theory that the individual "is entitled to a minimum period of service to demonstrate his or her ability to satisfactorily perform the duties of the position" 

N.B. Education Law §3031(a) addresses procedures to be followed when  tenure will  not be  granted to a teacher at conclusion of the  probationary period. The procedure requires that a probationary teacher receive notice of the recommendation that his or her services are to be discontinued at least 30 days prior to the board meeting at which that recommendation is to be considered and further provides that the teacher may request in writing, not later than 21 days prior to the board meeting, that he or she be provided with a written statement giving the reasons for such recommendation. The teacher may file a written response to the statement of reasons with the district clerk not later than seven days prior to the date of the board meeting. In some instances a probationary teacher may be offered an "extension of employment as a probationary teacher" in lieu of termination.

* See Education Law §2573[1][a], which, in pertinent part, provides … in the case of a teacher who has been appointed on tenure in another school district within the state, the school district where currently employed, or a board of cooperative educational services, and who was not dismissed from such district or board as a result of charges brought pursuant to subdivision one of section three thousand twenty-a or section three thousand twenty-b of this chapter, the probationary period shall not exceed two years;

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_07269.htm

 

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Suing an employee organization for an alleged breach of its duty of fair representation

Suing an employee organization for an alleged breach of its duty of fair representation

Morton v Mulgrew, 2016 NY Slip Op 07270, Appellate Division, First Department

Dianna Morton, et al. [Plaintiffs] alleged that the New York United Federation of Teachers, Local 2, AFT, AFL-CIO, [Federation] breached the duty of fair representation to individuals in the collective bargaining unit who resigned from their positions after October 31, 2009 and prior to June 3, 2014 as a result of its negotiating and ratifying a collective bargaining agreement that provided for wage increases retroactive to the date the previous agreement expired, October 31, 2009 which including members who had retired, but not those who resigned, after October 31, 2009 and prior to June 3, June 3, 2014.

Supreme Court granted the Federation’s motion to dismiss Plaintiffs’ petition and the Plaintiffs appealed. The Appellate Division affirmed the lower court’s ruling.

The Appellate Division said that Plaintiffs had noted “the obstacle” to their cause of action in view of the Court of Appeals’ decision in Martin v Curran, 303 NY 276,* but contended the so-called Martin rule was abrogated by the enactment of the Taylor Law in 1967** or by its 1990 amendment codifying the so-called Triboro Doctrine.

In Palladino v CNY Centro, Inc., 23 NY3d 140, explained the Appellate Division, the Court of Appeals noted “this Court held in Martinthat a voluntary unincorporated association ‘is neither a partnership nor a corporation. It is not an artificial person, and has no existence independent of its members’ [and] determined that ‘for better or worse, wisely or otherwise, the Legislature has limited … suits against association officers, whether for breaches of … agreements or for tortious wrongs, to cases where the individual liability of every single member can be alleged and proven.’ Although there were policy considerations that might suggest a different result, the Martin Court was ‘under the command of a plainly stated, plainly applicable statute, uniformly held by this court, for many years, to require pleading and proof of authorization or ratification by all the members of the group.’” 

The Palladinocourt also noted that New York is said to be "in the company of a small minority of states that cling to the common-law requirement that the complaint allege that all of the individual members of the union authorized or ratified the conduct at issue,” citing Mitchell H. Rubenstein, Union Immunity from Suit in New York, 2 NYU JL & Bus 641, 649 [summer 2006]. 

* Civil Service Law §200 et seq.

** Martin v Curran did not involve a union member suing his union but was a libel action in which the president of one union sued another union for libeling him in its newspaper.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_07270.htm

Some factors that a public employer wishing to obtain the services of a retired public employee should consider

Some factors that a public employer wishing to obtain the services of a retired public employee should consider

Meehan v County of Suffolk, 2016 NY Slip Op 07163, Appellate Division, Second Department, [Roslyn I], consolidated with

Meehan v County of Suffolk, 2016 NY Slip Op 07164, Appellate Division, Second Department, [Roslyn II]

These two decisions address questions that resulted when an individual was engaged to perform certain services by a public entity following his of her retirement from that entity.

Roslyn I

Status of the individual – employee or independent contractor?

Roslyn Birnbaum, while driving a car owned by Harvey Birnbaum, was involved in an accident with a vehicle operated by Michelle Meehan in the course of performing certain duties on behalf of Suffolk County and Suffolk’s Child Protective Services [County]. Meehansued the County and the Birnbaums to recover damages, contending that the County was vicariously liable for Roslyn's negligence under the doctrine of “respondeat superior.”*

Contending that Roslyn was an independent contractor rather than its employee,** Supreme Court dismissed Meehan’s complaint insofar as asserted against it and Meehan appealed.

In contrast to an entity being a respondeat superior, the Appellate Division said that the general rule with respect to “an independent contractor” performing services for an entity is that “an employer who hires an independent contractor is not liable for the independent contractor's negligent acts." The court then held that the County had demonstrated a prima facie entitlement to judgment as a matter of law by submitting evidence showing that Roslyn was an independent contractor.

Meehan had the burden of showing that Roslyn was an employee of the County rather than an independent contractor. The court said that Meehan failed to raise a triable issue of fact with respect to her claim that Roslyn was an employee of the County as the only evidence she offered “revealed only minimal or incidental control” over Roslyn by the County and this was insufficient to demonstrate that Roslyn was an employee of the County at the time of the accident.

Significantly, the Appellate Division said that “the fact that some of the duties Roslyn performed as an independent contractor were identical to those she had previously performed as the County employee prior to her retirement from its employ did not convert the relationship between the County and Roslyn into one of employer-employee.

Roslyn II

The Independent Contractor Agreement and insurance

After the accident had occurred, Roslyn and the County executed a "Consultant/Personal Services Contract" [Agreement] for the period January 1, 2010, through December 31, 2010 that included a provision requiring the County to provide insurance coverage for Roslyn.

After the County's motion for summary judgment dismissing the complaint insofar as asserted against it was granted, the Birnbaums commenced a third-party action against the County for a judgment declaring that the County had breached a contractual obligation to procure insurance on behalf of Roslyn. The County asserted that since the consultant agreement was executed after the accident, they were not obligated to provide liability coverage for Roslyn. Ultimately Supreme Court directed that State Farm Insurance Company [State Farm], with which the Birnbaums had automobile and umbrella insurance policies, be joined.

The Appellate Division said that the County, in support of motion, had submitted the consultant agreement. The court said that the insurance procurement provision at issue is incomplete and ambiguous and that “the consultant agreement itself is ambiguous because it contains inconsistent language throughout.”

The court then explained that:

1. “[W]here two seemingly conflicting contract provisions reasonably can be reconciled, a court is required to do so and to give both effect";

2. “[T]he failure to execute the consultant agreement until after the accident does not constitute an "absolute bar" to Roslyn's third-party claims’ and  

Finding that the County’s submissions did not demonstrate, as a matter of law, that it did not breach the terms of the consultant agreement, the Appellate Division held that Supreme Court properly denied that branch of the County’s motion to dismiss the third-party complaint insofar as asserted by Roslyn.

Further, contrary to the Birnbaums' contentions, the Appellate Division ruled that Supreme Court did not err in directing the joinder of State Farm, as State Farm may be inequitably affected by a judgment on Roslyn's third-party claims against the County. In addition, the court noted that Supreme Court “providently exercised its discretion in directing the severance of Roslyn's third-party claims ‘to ensure that no mention of insurance coverage is made during the trial of the main action.’"

* The doctrine of respondeat superior provides that the employer or principal is legally responsible for the wrongful acts of an employee or agent if such acts occur within the scope of the employment or agency of the employee or agent.

** The decision is silent with respect to any consideration being given to Civil Service Law §150 and, or, Article 7 of the Retirement and Social Security Law, which address the suspension of pension and annuity of a retiree during public employment. 

The decision in Roslyn I is posted on the Internet at:

 http://www.nycourts.gov/reporter/3dseries/2016/2016_07163.htm

The decision in Roslyn II is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_07164.htm