Matter of Wilson v Department of Educ. of the City of N.Y.

Annotate this Case

Download PDF

Matter of Wilson v Department of Educ. of the City of N.Y. 2017 NY Slip Op 31273(U) June 12, 2017 Supreme Court, New York County Docket Number: 158592/2017 Judge: Arlene P. Bluth Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 06/14/2017 09:58 AM 1] NYSCEF DOC. NO. 40 INDEX NO. 158592/2016 RECEIVED NYSCEF: 06/14/2017 SUPREME COURT OF THE STA TE OF NEW YORK COUNTY OF NEW YORK :'PART32 . ---------.---------------~-~-'----~~-~~--~~.;;.;~~~-~~--'-::----~~~------~- x In the Matter of the Applicatiori .(Jf CHERYL ··WILSON Index No.158592/2017 Motiori Seq: OOJ · Petitioner, For a Judgment Pursuant to Artide 78 ofthe ·Civil Practice Law arid Rules, · DECISION, ORDER & JUDGMENT ARLENE P. BLUTH, JSC _ :, -against~ .· • THE DEPARTMENT OF EDUCATION OF CITY OF NEW YORK : . . . ~espondent. THE . ·----~------"---·-,---·--··-----~-~--.-~'----.• --·-----~-·-"'~~~----~.,-~-----X Petitioner's petitio~ to)rzieralia reinstate petitioner to a p~sition as a tenured teacher with back pay is granted in part andderiied in part. Background · Petitioner was atea'cherforresp_orid~nt.. Petiti.oner contends that her inost recent .· ·•. '.· . . . . . . •. assignment 'was as a special educi;ttiori teachi;:r from 2011 thioughJune 2016 as a probationary employee. Petitj~ner acknowledges'that _she was reassigned to a"rubber room" pending an . investigation in March 2.015:du¥ to an .foci dent involving a group of students; that investigation last~d about a year ..P~titiorier Claims that although some of the allegations against her were . . ' . . substantiated; she was placedback in·~ teaching position on:Match 7, 2016. Petitioner argues . . . .. . .. - . that she went on leave uiitH the end of the -~chool year in Ayril 2016 and was terminated from employment onJune 15, 2916. · Petitione.rinsists that her employm~nt probationary period was for three years and that the probationary_ period should have ended on or about September 2, 2014; but that she continued to. Page_l of 7 2 of 8 [*FILED: NEW YORK COUNTY CLERK 06/14/2017 09:58 AM 2] NYSCEF DOC. NO. 40 INDEX NO. 158592/2016 RECEIVED NYSCEF: 06/14/2017 - - - \ be employed until about July 15, 2016. Petitioner maintains that she was asked to signan extension of probatio_n, but does not believe the extension was accepted- petitioner observes that even if it was accepted, the.probationary period would have.expired on September 2, 2015 (while she was in the rubber room). Petitioner argues that she is entitled to tenure by estoppel and, the~efore, is entitled to a hearing before .she can be terminated. lh opposition, respondent observes that petitioner received in_effective ratings after supervisors conducted obse_rvations of her teaching abilities. Respondent also notes that petitioner violated school policies on March 18, 2015 when she allegedly failed to follow proper protocol during post-lunch student collection, superVision, and escort duty. Respondent claims· that as a result ofpetitioners' failure to collect students and to notify the office that the students were missing, some eighth grade students prompted first grade students to fight each other. On March ~O, 2015, respondent reassigned petitioner fromher teaching position to an administrative assignment (the rubberroom) where she did not perform any teaching duties. Respondent claims that petitioner is not entitled to tenure by estoppel. Respondent argues that petitioner's absence from het teaching duties from March 2015 through March 2016 tolls the completion of her probationary period. Respondent also relies on petitioner's medical leave from April 12, 2016 through the end of the year to reduce her probationary period. Respondent argues that petitioner was not performing teaching duties, so she cannot acquire tenure by esfoppel. Discussion In an article 78 proceeding, "the issue is whether the action taken had a rational basis and was not arbitr~ry and capricious" (Warav·City ofLong Beach, 20 NY3d 1042, 1043, 962 NYS2d 587[2013] [intem~l quotations and citation omitted]). Page 2 of 7 3 of 8 "An action is arbitrary and capri~ious [*FILED: NEW YORK COUNTY CLERK 06/14/2017 09:58 AM 3] NYSCEF DOC. NO. 40 INDEX NO. 158592/2016 RECEIVED NYSCEF: 06/14/2017 when it is taken without. sound basis. in reason or: regard to the facts" (id.). "If the determination has a rati-0nal basis, it will be stistained, even if a· different result would' not be unreasonable" (id). "Arbitrary action is without sound basis in reason and is generally taken without regard to . . the facts" (Matter ofPell v Board ofEduc. of Union Free Sch. Dist. No. 1 of Towns ofScarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231, 356 NYS2d 833 (1974]). "A board of educatio4 has the right to terminate the employment of a probationar:y .. teacher or principal at any time and for any reason, unless the teacher or principal 'establishes · that the termination wa5 for a constitutionally impermissible purpose, violative of a statute, or done in bad faith"' (Palmore v·Bd. of Educ. of Hempstead Union Free Sch. Dist., 145 AD3d 1072, 1074, 44 NYS3d 509 (2d Dept 2016] quoting Matter of Frasier v Bd. of Educ. of City Sch. Dist. of City ofNY., 7i NY2d 763, 765 (1988]). "Tenure by estoppel results when~ school board accepts the continued services of a teacher or administrator, butfails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher's probationar:y term'' (Speich/er v Brd. ofCo-Op Educ. Servs., Second Supervisory Dist., 90 NY2d 110, 114, 659 NYS2d 199 (1997] [int-emal quotations and citation omitted]). . . . . ·The key issue in this proceeding is whether petitioner acquired tenure by estoppel. If petitioner was probationar:y, theJ1 respondent was entitled to fire respondent for nearly any reason. Therefore, the Court must first look to the extension of petitioner's probation. Although petitioner denies that her extension was accepted, both petitioner and respondent signed the extension (verified answer, exh 2). The extension states that petitioner's probationar:y period was extended for one additional year- to September 8, 2015 (td. ). Specifically, the extension \ Page 3 of 7 4 of 8 [*FILED: NEW YORK COUNTY CLERK 06/14/2017 09:58 AM 4] NYSCEF DOC. NO. 40 INDEX NO. 158592/2016 RECEIVED NYSCEF: 06/14/2017 provides that "The parties agree that the decision to either grant completion of probation, deny completion ofprobation,.or grant an additional extension of probation to Cheryl Wilson at a date no later than September 8, 2015" (id ii 3). It also provides that "This written agreement contains all the terms and conditions agreed upon by the parti~s hereto in regard to the extension ofprobation for Cheryl Wilson. No other agreement, oral or otherwise, regarding this matter shall be deemed to exist or to bind the parties hereto, or to vary any of the terms c_ontained herein" (id. ii 9). Respondent does not deny that no action was taken regarding the expiration of petitioner's probationary period. There. was no effort to further extend petitioner's probationary period another year (to September 2016) before the deadline or to deny (or grant) petitioner tenure. Instead, respondent attempts to gloss over this failure to act by focusing on petitioner's reassignment to the rubber room from March 2015 to March 2016. Respondent's argument i's that since petitioner was not performing teaching activities during this time period she cannot gain tenure by estoppel. This claim fails. The agreement extending petitioner's probationary period clearly states that respondent had to choose between three options before September 8, 2015- whether to keep her on, fire her, or grant another year of . '\ probation. This was not done. Instead, petitioner was pe.rmitted to resume her teaching duties and. was fired at the end of the 2016 school year. This may have been an oversight but the Court . cannot simply ignore the valid agreement entered into between petitioner and respondent. . The Court does not make this decision lightly. The allegations that led to petitioner's reassignment to non-teaching duties are serious and the Court has no interest in help a substandard teacher retain her position. But, for some reason, respondent did not fire petitioner for Page 4 of 7 5 of 8 [*FILED: NEW YORK COUNTY CLERK 06/14/2017 09:58 AM 5] NYSCEF DOC. NO. 40 INDEX NO. 158592/2016 RECEIVED NYSCEF: 06/14/2017 her alleged transgressions despite the fact that she was a probationary employee. Respondent could have fired petitioner, by all accounts a probationary·employee, at any time before . ·. . . September 8, 2015 - it could have fired her due to lousy evaluations, it could have fired her due to the iricident which caused her to be sent to the rubber room, it could have fired her during her time in the rubber room. Instead, respondent ~ontinued to keep petitioner on, paying her, and then, after-the investigation concluded (after a year in the rubber room), respondent saw fit to return her to the classroom. Obviously, her missteps could not have been as serious as respondent now contends because respondent allowed petitioner to start teaching again. Respondent had multiple opportunities to terminate petitioner for a variety of permissible reasons includ1ng, but not limited to, her poor observation reports throughout the 2014- 2015 school year and her ineffective APPR in 2014-2015 and her dereliction of duty regarding the. failure to pick up the students. Not only did resp<?ndent fail to fire petitioner, it put her back in the clciSsroom. Respondent's actions make its current argument that she was so terrible ring hollow. · Besides, the argument that petitioner's pedagogy failed to meet the minimum standards forobtaining a tenure recommendation misses the point. Respondent entered into an agreement where a specific date was set for a tenure determination for petitioner and respondent did nothing. Petitioner consented to another year of probation in exchange for a determination about hertenure. Respondent failed to fire her during that year (although it had ample opportunity and reasons to do so) and therefore she obtained tenure by estoppel.. Accordingly, respondent's decision to terminate petitioner without a hearing (the procedure afforded to a tenured teacher) was arbitrary and capricious. Page 5 of 7 6 of 8 [*FILED: NEW YORK COUNTY CLERK 06/14/2017 09:58 AM 6] INDEX NO. 158592/2016 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 06/14/2017 Attorneys' Fees The Court find~ that petitioner is not entitled to attorneys' fees because respondent has . . . . . d~monstrated that it~ position ~as substaiitially justified.(see CPLR ,860 I [a]). "The phrase . . . substantially justified has . b~en interpreted by the [US.] Supreme Court as meaning justified to a degree· that could satisfy areasonable person, or having a reas-onable basis in both law and fact. .. The test of~hether:or nota governin~ht,actionis substantially j\lstified is essentially one of reasonabl~ness, V/here the go:Ver~entcan show that its case had a reasonable basis _both in law . and fact, no award will be m:ade" (N~w York.State Clinical Lab. Assn.,lnc. y Kaladjian, 85 NY2d 346, 356, 625· NYS2d· 463 [1995] [interrial quotations and citations omitted]). Although it may seem that_because this -Court has granted petitioner's application to get . her job back, with tenure, respondent's argument c~nrtot be substaritially justifled. Here, . however, the recor9 before·respondentprior-to this·proceedirig.d~monstrated that petitioner did not immediateiy contend that she was e~titled to tenure after she was fired. Aithough she later rais~d the tenure by estoppel argument, respondent reas.onably opposed the instant petition on the ground thatpetiti~ner was aprob.ationaiyerriployee who could be fired for any permissibl~ . . .·.. . . reason. So even:though peti·tioner wins this proceeding, the Court finds that respondent's position W3$ reasonable. ·under the circumstances. Summary Petitioner is entitled to a positio~ as a termred teacher- and to back pay starting from the date of her tei:mihation (July 1.5, 2016). Accordingly, it is hereby Page 6 of 7 7 of 8 [*FILED: NEW YORK COUNTY CLERK 06/14/2017 09:58 AM 7] NYSCEF DOC. NO. 40 INDEX NO. 158592/2016 RECEIVED NYSCEF: 06/14/2017 \._ . ORDERED and ADJUDGED that the petition is granted to the extent that petitioner Cheryl Wilson is entitled to a position as a tenured teacher and to back pay starting from JUiy 15, ?O 16 to the present; and it is- further . _ ORDERED and ADJUDGED that petitioner is notentitled to attorneys' fees. This is the Decision, Order and Judgment of the Court. Dated: June 12, 2017 New York, New York I Page7 of 7 . 8 of 8

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.