Matter of Barandes v New York City Dept. of Educ.

[*1] Matter of Barandes v New York City Dept. of Educ. 2009 NY Slip Op 50326(U) [22 Misc 3d 1129(A)] Decided on February 18, 2009 Supreme Court, New York County Shafer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 18, 2009
Supreme Court, New York County

In the Matter of Mitchell Barandes, Petitioner,

against

New York City Department of Education, Respondent.



108792/08

Marilyn Shafer, J.

In this Article 78 proceeding, petitioner Mitchell Barandes moves for an order, inter alia: (1) enjoining the New York City Department of Education (respondent) from enforcing its determination discontinuing petitioner's employment, (2) a declaration that he has acquired tenure by estoppel, and (3) a disciplinary hearing, pursuant to Education Law § 3020-a, or alternatively, a name-clearing hearing.

On September 19, 2005, petitioner was appointed to I.S. 228, the David A. Brody School, as a probationary library science teacher. By letter dated 6/16/08, he was informed that his "Certification of Completion of Probation" with respondent was being denied, and that his services would be terminated "as of the close of business (60 DAY FROM THE DATE OF THIS LETTER BUT NO LATER THAN THE COMPLETION OF PROBATION DATE)" (Petitioner's Exhibit 1, correspondence dated 6/10/08 to petitioner from DOE). (the Determination)

Petitioner now seeks to enjoin respondents from enforcing the Determination, arguing that he was not a probationary employee at the time of the Determination, but rather had acquired tenure by estoppel by earning Jarema credit for his employment in the Spring of 2005 as a substitute teacher. He, thus, contends that he completed his three-year probationary period in the Spring of 2008, and not the Fall of 2008, as claimed by respondent, and accordingly, as a tenured employee is entitled to a formal disciplinary hearing, pursuant to Education Law §§ 3020 and 3020-a, prior to his termination.

In its answer, respondent maintains that petitioner cannot be deemed to have acquired tenure by estoppel by the time of the [*2]Determination, since petitioner had not satisfied the necessary requirements for earning sufficient Jarema credits to reduce his probationary period. Accordingly, respondent maintains that petitioner was a probationary employee, and was not entitled to a hearing, pursuant to Education Law § 3020-a, as required for tenured teachers.

The Education Law requires that teachers complete a probationary period of three years before achieving tenure (Education Law § 2573 [1] [a]; see also Matter of Speichler v Board of Coop. Educ. Servs., Second Supervisory Dist., 90 NY2d 110 [1997]). Probationary teachers can be terminated at any time during the probationary period for any reason and without a hearing (Education Law § 2573 [1] [a]; see also Matter of Speichler v Board of Coop. Educ. Servs., Second Supervisory Dist., 90 NY2d 110, supra). However, tenured teachers can hold their positions during good behavior and competent services, and are subject to dismissal only after formal disciplinary proceedings (see Education Law §§ 3014 [2], 3020-a; see also Matter of Remus v Board of Educ. for Tonawanda City School Dist., 96 NY2d 271, [2001]; Matter of Gould v Board of Educ. of Sewanhaka Cent. High School Dist., 81 NY2d 446 [1993]).

"Tenure by estoppel results when a school board accepts the continued services of a teacher or administrator, 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" (Matter of Speichler v Board of Coop. Educ. Servs., Second Supervisory Dist., 90 NY2d at 114, quoting Matter of McManus v Board of Educ., 87 NY2d 183, 187 [1995]). Thus, it is the mere fact of the continued employment beyond the three-year period which entitles a teacher to tenure by estoppel (Matter of Gould v Board of Educ. of Sewanhaka Cent. High School Dist., 81 NY2d 446, supra).

The three-year probation period can be reduced when a probationary teacher qualifies for Jarema credit (Education Law § 2573 (1) (a); see also Matter of Triana v Board of Educ. of the City School Dist. of the City of NY, 47 AD3d 554, 558 [1st Dept 2008]). Pursuant to Education Law § 2573 (1) (a):

[t]eachers and all other members of the teaching staff ... shall be appointed ... for a probationary period of three years, except that in the case of a teacher who has rendered satisfactory service as a regular substitute for a period of two years ... the probationary period shall be limited to one year ... . [*3]

It has been held that regular substitute service must be performed before the probationary appointment begins, and it must be continuous for at least one school term (Matter of Triana v Board of Educ. of the City School Dist. of the City of NY, 47 AD3d 554, supra; see also Matter of Speichler v Board of Coop. Educ. Servs., Second Supervisory Dist., 90 NY2d 110, supra).

A review of respondent's "Application for Reduction of Probationary Service" discloses the respondent's policy for awarding Jarema credit:

[n]o period of substitute service shall be counted as equivalent to probationary service unless it is under supervision and consists of not less than 80 school days of service in any 90 consecutive school days in the same school; and a credit of one year shall be based on not fewer than 100 days of actual service extending over a period of one year.

(Respondent's Exhibit D, Application for Reduction of Probationary Service). Other than his conclusory assertion that he is entitled to receive Jarema credit for his substitute service during the Spring of 2005, petitioner fails to present any evidence demonstrating that he complied with the governing law and respondent's policy regarding Jarema credit.

The records submitted by respondent, which are not disputed by petitioner, reflect that petitioner worked sixty days as a per diem substitute teacher, prior to his probationary appointment on September 19, 2005 (Respondent's Exhibit B and C, Timekeeping History Lists from 5/17/04 through 3/22/05,4/11/05-5/27/05, respectively). Thus, the petitioner fails to meet the required period of service for entitlement to Jarema credit (see Matter of Lifson v Board of Educ. of the Nanuet Pub. Schools, 109 AD2d 743 [2d Dept], affd 66 NY2d 896 [1985]; see also Matter of Speichler v Board of Coop. Educ. Servs., Second Supervisory Dist., 90 NY2d 110, supra), and could not have acquired tenure by estoppel at the time of his dismissal (see Matter of Melnick v Board of Educ. of the City School Dist. of the City of NY, 104 AD2d 943 [2d Dept 1984]). Accordingly, petitioner was a probationary teacher at the time he was dismissed, and was not entitled to a disciplinary hearing, pursuant to Education Law § 3020-a, required for tenured teachers (see Matter of Speichler v Board of Coop. Educ. Servs., Second Supervisory Dist., 90 NY2d 110, supra).

Petitioner further argues that, even assuming, arguendo, that he was not tenured, the respondent acted in an arbitrary and capricious fashion in that it, inter alia, did not comply with Education Law §§ 2509, 2573, 3012, 3019-a, 3031 or its own [*4]policies and procedures as set forth in the "Rating Pedagogical Staff Members" manual.

It is well settled that the termination of a probationary teacher may not be disturbed, unless the termination was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith (Matter of Frasier v Board of Educ. of the City School Dist. of the City of NY, 71 NY2d 763 [1988]; Matter of Thomas v Abate, 213 AD2d 251 [1st Dept 1995). Judicial review of such a determination is limited to an inquiry as to whether the termination was made in bad faith (Matter of Thomas v Abate, 213 AD2d 251, supra; see also Matter of Blum v Quinones, 139 AD2d 509 [2d Dept] appeal dismissed 72 NY2d 908 [1988]). Petitioner bears the burden of raising and proving such bad faith (Matter of Thomas v Abate, 213 AD2d 251, supra).

Petitioner's argument that respondent violated Education Law §§ 2509, 2573, 3012, 3019-a, 3031 is unsubstantiated. Education Law § 2509, relied on by petitioner, applies to city school districts of less than 125,000 inhabitants, and is inapplicable to the instant facts involving a New York City school district (Education Law § 2501).

With respect to Education Law § 2573 (1) (a), petitioner challenges the superintendent's authority to terminate him, arguing that this provision permits discontinuance of a probationary employee on the recommendation of the superintendent, with termination to be determined by a majority vote of the board of education. While Education Law § 2573 (1) (a), part of article 52-A applicable to the New York, Buffalo, Rochester, Syracuse and Yonkers city school districts (Education Law § 2550), requires a majority vote of the board of education for termination, a later-enacted Education Law § 2590-f (1) (c), part of article 52 only applicable to the New York City school district (Education Law § 2590), "specifically grants community superintendent authority to appoint and discharge all employees" (Matter of Munoz v Vega, 303 AD2d 253, 253-254 [1st Dept 2003]). Thus, contrary to petitioner's argument, the community superintendent may properly make determinations discontinuing probationary employees, without a majority vote of the board of education (see id.).

In view of the applicability of Education Law §§ 2573 (1) and 2590-f to the instant facts (Matter of Munoz v Vega, 303 AD2d at 253-254), contrary to petitioner's argument, respondent was not required to comply with Education Law § 3031 (Education Law § 3031 requires 30-day notice to a probationary teacher prior to [*5]the board of education's review of a recommendation discontinuing his/her service, and permits him or her to request the reasons for the recommendation, and an opportunity to respond to such reason prior to the board's meeting).

Petitioner also claims that he did not receive the written notice required under Education Law §§ 2573 (1) (a), which requires that "each person who is not to be recommended for appointment on tenure shall be so notified by the superintendent of schools in writing not later than sixty days immediately preceding the expiration of his probationary period" (see Matter of Frasier v Board of Educ. of the City School Dist. of the City of NY, 71 NY2d 763, supra). Here, it is undisputed that the petitioner received the Determination dated June 16, 2008, more than 60 days preceding the expiration of his probationary period on September 19, 2008, as it is annexed to his petition dated June 25, 2008, as Exhibit 1. Therefore, petitioner received the requisite 60-day notice under Education Law §§ 2573 (1) (a) (see Curcio v New York City Dept. of Educ., 55 AD3d 438 [1st Dept 2008]).

Education Law §§ 3012 (1) & (2), and 3012-b are also inapplicable to the instant facts. Education Law § 3012 (1) applies to "common school districts and/or school districts employing fewer than eight teachers, other than city school districts", while Education Law § 3012 (2) applies to "union free school district(s), common school district(s) and/or school district(s) employing fewer than eight teachers." Further, Education Law § 3012-b concerns tenure determination for teachers "whose probationary period commences on or after July first, two thousand eight," which is inapplicable to the instant facts, in that petitioner's probationary appointment indisputably began in September 2005.

Additionally, petitioner argues that respondent did not comply with the 30-day written notice required by Education Law § 3019-a. It is well settled that "whenever a probationary teacher's services are discontinued, whether by denial of tenure at the end of the probationary period or by termination of services before the end of the probationary period, the teacher has a right to 30-or 60-day notice" (Matter of Tucker v Board of Educ., Community School Dist. No. 10, 82 NY2d 274, 277 [1993]), as provided by Education Law §§ 2573 (1) (a) or 3019-a, respectively. Since here the petitioner's services were terminated by denial of tenure at the end of his probationary period, petitioner was entitled to the 60-day written notice, [*6]which as previously discussed, was received by petitioner. Thus, respondent properly complied with the applicable Education Law provisions.

Petitioner also attempts to demonstrate bad faith on respondent's part by arguing that respondent acted arbitrarily by failing to follow its own policies and procedures as set forth in the "Rating Pedagogical Staff Members" manual, or provide him with adequate remedial efforts. Petitioner, however, fails to to provide any credible evidence to substantiate his conclusory allegation. Here, as noted by respondents, petitioner was on notice that his teaching performance was unsatisfactory, as early as December 2007, when a supervisory observation of his performance was conducted by Assistant Principal Eric Ierardi (AP Ierardi), his lesson was rated "unsatisfactory", and he was given recommendations for improvement, including the use of the "higher order thinking questioning" technique (Respondent's Exhibit M, Supervisory Form dated 12/11/07). While the next observation resulted in a "satisfactory" rating, AP Ierardi again recommended that petitioner use the "high order thinking questioning" technique (Respondent's Exhibit N, Supervisory Form dated 3/26/08). The following informal observation resulted in an "unsatisfactory" rating, and AP Ierardi's notation that, inter alia, petitioner did not have a lesson plan (Respondent's Exhibit O, Supervisory Observation Form dated 4/14/08). Petitioner's final observation for the 2007-2008 school year was conducted by Assistant Principal Scott Herman (AP Herman), who rated the lesson as unsatisfactory, recommending that petitioner, inter alia, improve his lesson planning, and further develop classroom management skills (Respondent's Exhibit P, Observation Form dated 6/11/08). Each of these observations were documented in respondent's forms, and signed by the observer and the petitioner after each observation.

The record also contains a letter reflecting a conference between petitioner, a union representative and Principal Dominick D'Angelo, wherein it states that petitioner acknowledged incorrectly marking a student present, and signing the ATS Daily Attendance Form reflecting such inaccuracy (Respondent's Exhibit X, letter to petitioner dated 3/18/08) (3/18/08 Letter). Petitioner acknowledged receipt of the 3/18/08 Letter by executing it at the bottom (see id.). Subsequently, based on the three unsatisfactory observations and the aforementioned incident of professional misconduct, as set forth in the 3/18/08 Letter, Principal Dominick D'Angelo rated petitioner's overall [*7]performance as unsatisfactory for the 2007-2008 school year, and recommended the discontinuance of petitioner's probationary service (Respondent's Exhibit Q, Annual Professional Performance Review and Report on Probationary Service of Pedagogical Employee dated 6/16/08). Superintendent of Community School District 21 also recommended the discontinuance of petitioner's probationary service therein (id.). This form was signed by the principal, superintendent and petitioner.

Thus, the record reflects that petitioner received several formal observations by his supervisors, in addition to pre-observation and post-observation conferences, and written reports of each observation, which contained, inter alia, recommendations for improvements (see respondent's exhibits M, N and P, Supervisory Observation Forms dated 12/11/07, 3/26/08, 6/11/08, respectively), and that, between the April 2008 and petitioner's final observation, Principal D'Angelo scheduled a conference with petitioner and a union representative to discuss ways to improve petitioner's instruction (Respondent's Exhibit X, correspondence to petitioner from Principal D'Angelo dated 5/15/08 & 5/21/08).

Since evidence supporting the conclusion that a probationary employee's job performance was unsatisfactory is sufficient to demonstrate that the discharge was made in good faith (Matter of John v Katz, 68 NY2d 649 [1986]), the instant record demonstrates that the discontinuance of petitioner's probationary service was made in good faith. Therefore, in the absence of competent proof by petitioner that his termination was made in bad faith or in violation of statutory or decisional law (see Matter of Rivera v Department of Educ., City of NY, 25 AD3d 559 [2d Dept 2006]; see also Matter of Sapadin v Board of Educ. of the City of NY, 246 AD2d 359 [1stDept 1998]), respondent's decision to discontinue petitioner's probationary service was neither arbitrary nor capricious (see Matter of Thomas v Abate, 213 AD2d 251, supra).

Additionally, petitioner argues that, "by

misusing the statutorily mandated notice and opportunity processes" in the Education Law, respondent violated the constitutional due process due to him (Petition, ¶ 168). However, as previously discussed, the provisions of the Education Law, relating to notice and opportunity to be heard prior to the vote of the board of education for termination, are inapplicable to respondent, since Education Law § 2590-f (1) (c) grants community superintendents the authority to discharge probationary employees without a vote of the board of education (Matter of Munoz v Vega, 303 AD2d 253, supra). Thus, petitioner's argument [*8]that respondent's non-compliance with the notice and opportunity provisions of the Education Law violated his due process rights is without merit.

However, petitioner was informed by respondent of his right to review the Determination, which right comes neither from the constitution nor any statute, but is contained in the collective bargaining agreement (the CBA) and the respondent's Bylaws of the Panel for Educational Policy (the Bylaws) (Matter of Von Gizycki v Levy, 3 AD3d 572 [2d Dept 2004]; Matter of Swartz v Board of Educ. of the City School Dist. of the City of NY, 146 AD2d 576 [2d Dept 1989). A review of respondent's decision to terminate a probationary's employment may be requested in accordance with Article 4, Section 4.3.2 of the Bylaws, in lieu of the board's review (see Matter of Frasier v Board of Educ. of the City School Dist. of the City of NY, 71 NY2d 763, supra; see also Matter of Von Gizycki v Levy, 3 AD3d 572, supra; Respondent's Exhibit S & T, The Bylaws, Article 4, Section 4.3.2, the CBA, Article 21 [D] [1], respectively). Thus, accordingly to the CBA and By-laws, there is a review procedure available to probationary teachers in the City of New York, where they have the opportunity to challenge their terminations.

Here, petitioner acknowledges that respondent informed petitioner of these rights in the Determination, and that he filed an appeal of his discontinuance with respondent's Office of Appeals and Reviews. Thus, petitioner received the due process to which he was entitled, and his argument that the Determination was procedurally defective, or unconstitutional is without merit.

Petitioner also requests a name-clearing hearing. "The sole purpose of a name-clearing hearing is to afford the employee an opportunity to prove that the stigmatizing material in the personnel file is false" (Matter of Swinton v Safir, 93 NY2d 758, 763n [1999]). Findings "of criminality, and immoral and dishonest conduct are stigmatizing in the constitutional sense because of their inevitable effect, if revealed, of foreclosing employment opportunities" (id. at 763).

Petitioner does not demonstrate that the materials contained in his personnel file are stigmatizing. He conclusorily alleges, in his petition, that the letters in the file: (1) "attribute student unruliness" to him (Petition, ¶ 23); (2) "all but accuse petitioner of endangering the welfare of minors under his charge" (id., ¶ 25); and state that student chaos' could escalate' into something more serious' (id., ¶ 26). The information regarding petitioner's unsatisfactory observations, poor classroom [*9]management and misconduct relating to his failure to properly take attendance is not "stigmatizing in the constitutional sense," but instead constitutes instances of "bad judgment or incompetent performance of duties" (Matter of Swinton v Safir, 93 NY2d at 763; Matter of Garnes v Kelly, 51 AD3d 538 [1st Dept 2008]). Therefore, petitioner's request for a name-clearing hearing is denied.

In view of the foregoing, petitioner's application for an order enjoining respondent from enforcing its determination discontinuing petitioner's probationary service, and granting the various relief sought in his petition is denied.

Accordingly, it is

ORDERED that petitioner's motion for an order enjoining respondent from enforcing its determination discontinuing petitioner's probationary service is denied; and it is further

ADJUDGED that the petition is denied, and the proceeding is dismissed.

The foregoing constitutes the decision and judgment of this court.

Dated:

ENTER:

_______________________

J. S. C.