Sunday, August 09, 2009

Terminated Probationary Teacher Wins First Step Getting Job Back

When Principal Diane Gordin and District 31 (Staten Island) Superintendent Margaret Schultz terminated Lisa Capece from her fifth grade probationary teaching position at P.S. 1 they knew they had a fighter on their hands. They also knew that having the Court order a probationer reinstated is very rare. They must have been surprised to learn that Justice Philip G. Minardo, on August 3rd, would order a hearing to determine if Capece's termination was proper.

Probationers, under our law, can be dismissed for any or no reason. In the DOE probationers are entitled, theoretically with an internal administrative method to challenge the termination. The first step, after a principal decides to terminate the probationer, is an "appeal" (more like a plea) to the Superintendent, who has the legal authority to terminate the probationer. Once the termination is accomplished the probationer has the right to an appeal where a three member panel hears the basis of the termination and issues a recommendation to the Chancellor for or against termination. This hearing is fairly informal and, in my experience, our Union does not take seriously.

Once the Chancellor has decided to affirm the termination there is little the terminated employee can do. In order to challenge the termination in Court the terminated employee must bring an Article 78 court proceeding within 120 days of the termination; not the Chancellor's decision. If he waits until the Chancellor's decision it will generally be beyond the 120 days so reinstatement is out of the question. (You can challenge the termination of the license but even if you win, which is unlikely, the Court cannot reinstate you). No one in the Union advises this and many terminated probationers lose their rights right out of the gate.

Now, getting back to Capece's case, it appears that she was scheduled to end her probation on January 28, 2008, but she agreed to an extension of probation in November 2007. Capece alleged that Superintendant Schultz coerced her into agreeing to the one year extension under the threat of immediate termination. The purported reason for this act of largesse apparently orchestrated by Principal Diane Gordin was to allow Capece to demonstrate improvement in her alleged areas of "difficulty", i.e., time management, differentiation in her manner of instruction, adapting her teaching lessons based upon the students' needs, and effectively assessing her students' level of comprehension and individual abilities.

During the extension Capece received two "U" observations, three LIF's and a "U" rating. She was terminated by Schultz and in a split decision, 2-1, the termination was upheld after a hearing by the Office of Appeals and Review.

Capece alleged that she was subjected to harassment and discriminatory treatment due, in part, to her union activities. She was the co-Chapter Leader and claims that she was targeted because she would not give up the position. Additionally she alleged that she was discriminated against due to her religious beliefs when she refused to go to a workshop on a Catholic holiday. She detailed her exemplary two year record prior to her being targeted in her last year of probation.

Justice Minardo, while mindful that the DOE can terminate a petitioner for almost any reason, observed that there were restrictions on the DOE's power to terminate. These include discrimination and union activity which, he wrote, were protected by the 1st Amendment and statutes.

Justice Minardo ordered that the allegations raised the need for a hearing which he scheduled for September 15th.

Capece was represented by private counsel. NYSUT lawyers will generally not take probation termination cases.

The decision is reported here.


Anonymous said...

Thanks for posting Jeff. Why would anyone support Unity? Here is more proof that they leave teachers on their own. This teacher had to get a private lawyer to defend her union activism. How ironic. Where is the UFT?

Anonymous said...

I was discontinued in my third year by a very infamous Leadership Academy Principal in Brooklyn, despite my previous two years of Satisfactory ratings.
I was represented at a hearing by a UFT representative, who basically, though representing me, felt that there was nothing that could be done to fight the decision, in spite of the fact that my A.P. was assigned to a "rubber room" for changing grades on Regents exams, and was obsviously following the orders of this Principal to give out "U" ratings to selected teachers, so that eventually, the school could be closed, and the property used for smaller schools.
Luckily, I was able to find work under another license that I hold, and should be receiving tenure at the end of August of this year.
Still, though there was clear evidence that I was NOT a terrible teacher, and the Principal would not comment on where the A.P. was at the hearing, the discontinuance was upheld. The UFT rep said that he could do no more for me.
Why should it be that we pay dues to a union that will NOT fight for its' members beyond the discontinuation procedures, and that during the kangaroo court itself, the most perfunctory defense of the teacher up for discontinuance is performed by the union rep?
Any wonder why I'm NOT a booster of the UFT? It's a farce.....

Anonymous said...

Exactly, a farce.

Anonymous said...

Thank you for posting this! AMAZING!!!‏

Anonymous said...

Jeff, thank you for again proving that Unity Caucus UFT is only out for its own interests and leaves the paying membership hanging. We pay probably the highest union dues of any city union and for what!!!

Anonymous said...

I have a very similar case.I was called into the principal's office on June last year to sign n extention of probation which he just downloaded from his computer. He told me to sign it right there. He threatened me and told me that if don't sign I will be given a U and terminate me. I called my rep. at UFT
and he told me that I do not have to sign anything because I am already tenured! I had 2 observations one April 18, May 6. I received the post observatioons JUNE 25 one day before the closing of the school for summer! The principal never observed me only the Interim Assistant Principal.

Anonymous said...

This stuff is scary. The UFT clearly needs change.

Anonymous said...

It helps in Staten Island to be Italian and it helps to be able to afford your own private lawyer. Those of us who don't have those advantages wouldn't even get a rescheduled hearing.

Anonymous said...

Sounds like the same "coincidence" that happened to me while I engaged in union activities. After working 170 days the year before,with a satisfactory rating in over 39 different schools, I became active with UFT officials the next September and in October asked the DOE for a "mailing list" to correspond with members. Three weeks later I was placed on the ineligible list without warning. To this day there are no adverse letters in my file, just some "notations" that were secretly distributed without my knowledge until I filed an improper paractice charge with PERB. Then I saw how bogus these allegations were. I am still awaiting a ruling.
Good new is that the UFT did restore my eligibility, but I was threatened with termination again right afterward, so that's why I filed the charge. I knew they were targeting me. Since then they have not touched me, although they try.
I received my renewal letter today. I work every day under the stress that they are watching me waiting fo another "opportunity". Soon I must go back to work. Oh, what a joy it is!

Anonymous said...

There are many teachers out there who have very similar cases like ours.
How can we fight for our rights ?
The UFT is not helping. They hold on to their chairs and their salaries. They don't even answer calls, especially in August. They answer with an e-mail "I am on vacation" Is there any group of lawyers who can represent us in ICE ?
Please respond.

James Eterno said...

Ice can guide you along. The best way to help us is to vote for ICE as we would make part of our campaign that we will fully represent all members, which means court cases all over the place as well as demonstrations and anything else if that's what it takes to make sure that all of our members are defended properly. Right now what you get is a union that basically goes through the motions.

Anonymous said...

Here she is, a fine teacher and active union leader and the UFT simply wrings its hands. This is the very sort of person UFT should and must assist. And this is the perfect case to publicize.
Instead of enabling teacher harassment why doesn't the UFT oppose it?
The UFT ought to take public action against this principal to preempt future and more and more brazen harassment of teachers.

Anonymous said...

I am a chapter leader (not part of any caucus). Every year I tell my members to NEVER sign anything unless I see it first, especially an extention of probation. We must spread the word, even bring it up at the DA.

You see, it's the MO of the Leadership Academy tyrants. They are brainwashed to do this, as well as harass veteran teachers and A.P.'s who don't follow them like lemmings.

Anonymous said...

Anon Wednesday, August 12, 2009 7:46:00 PM

Clearly you're an untrained chapter leader. Nobody should be signing an extension of probation without having sufficient time to have an attorney look at it. The UFT teaches that at the first CL training session and they'll make sure a NYSUT attorney looks at it.

Even Chancellor Klein wrote in one of last year's Principals Weekly that members must be given this opportunity.

Are you also a trained lawyer so you're compotent enough to provide this service by yourself? I'm guessing no. How unlucky for your chapter.

Anonymous said...

Anon 13 August 2009:


I suspect after he/she sees it they contact UFT for a NYSUT attorney.

At the same time one must remember that the probationary teacher is untenured and is probably and understandably ready to sign as to do otherwise will result in dismissal (or in DOE parlance "not invited to return")

This demonstrates one typical bullying tactic of the new principals: Preying on the vulnerable and untenured (as well as those who support the union and/or are veteran teachers with knowledge and backbone).

That is why the UFT must come down hard on those principals who practice this sort of harassment.

UFT is famous for providing little if any support to the untenured. This is not just an urban legend as I have seen it at work.

Let's see if they (UFT) NOW provide support to this fine teacher or if they continue to be upstaged by her non-NYSUT attorney. Or are they too prideful to recognize the wonderful precedent this represents for their untenured (and dues-paying) membership.

Unfortunately for the Unity caucus, this teacher's experience is proof positive that an untenured person does have rights and those rights can and should be successfully defended. That dripping sound you hear is the egg sliding off of the face of UFT leadership.

Time for UFT to step up to the plate to assist this harassed teacher by providing co-counsel to her attorney and reimbursing her for that attorney's costs.

Anonymous said...

Where can you find a NYSUT attorney who will review anything any teacher will sign? Unheard of. Only time, i know of, a teacher is assigned to a NYSUT attorney is when she or he is facing 3020a charges. It is very delicate situation, you want to protect yourself, but you also have to be very careful not to be over aggressive with your boss. In majority of the cases, the outcome will be same no matter what you do, you are screwed. It is like playing tennis, you do want hit short in the net, but what good will come out it when your ball flies to the fence.

From someone who has been there and seen it.

Anonymous said...

To respond to you guys, yes, I do tell them to show it to me. Then I fax a copy to the DR., who takes it to Legal. I tell them to show to me first because most of these teachers are newbies and will sign anything the principal tells them to.

Of course, some Teaching Fellows, who are brainwashed to be anti-union will do whatever the principal say, will sign the extension of probation and get screwed.

Anonymous said...

Showing this document to a NYSUT attorney will generally do nothing. Do you think the principal will change the wording on an extension of probation? What is needed is a full understanding of the situation that the probationer is in so that an informed decision can be made as to whether to extend or resign to save the license. NYSUT does not counsel this. They only look over the form used. Additionally an advocate can negotiate with a transfer or some other way to try to save the probationer's job. If this fails then an effort to start preparing a case must be made. Was the termination discriminatory. NYSUT will tell you, "Your paperwork looks good. Sign it. Don't bother coming back because there is nothing more we can do for you except get the 60 days pay that you may be entitled to if you were not given 60 days termination notice."

Anonymous said...

The last four comments come from folks in the real world and sum up the issue.

Now it is time for the UFT and their vast resources - accumulated via the collection of dues from the tenured and the untenured ranks - to step up to the plate.

Anonymous said...

Whatever resource UFT has is about 1 percent of DoE has, actually UFT collect a little less than one percent of our salaries, and teachers salaries consist less 70 percent of the DoE budget which is more than 15,000,000,000 dollars. forget about nontenured teachers, most of our tenured teachers end up with minimal presentation at their 3020a hearings

Anonymous said...

The sad truth is that untenured teachers pay dues and are abandoned by the UFT.

Anonymous said...

Anonymous: Thursday, August 13, 2009 3:45:00 PM

UFT has vast resources available to commit to the protection of good teachers - tenured and untenured. The fact that DOE or NYC or USA has a larger overall budget is a separate matter.

What is a more important union function than spending UFT resources on the protection of quality teachers - tenured and untenured?

It is also true that UFT seemingly begrudges legal representation for 3020a respondents. And by urging otherworldly 'pay to play' cash settlements upon respondents reinforces this begrudging appearance.

Now is a wonderful time to reverse the membership perceptions of an unconcerned and out-of-touch leadership. Support this fine and untenured teacher and join her fight against a harassing principal!! Send a message to the other harrassers: false evaluations and false dicipline come at a price! Public shaming is coming your way!

new york city discrimination lawsuit said...

"Justice Minardo, while mindful that the DOE can terminate a petitioner for almost any reason, observed that there were restrictions on the DOE's power to terminate. These include discrimination and union activity which, he wrote, were protected by the 1st Amendment and statutes."

Great post, i am glad you wrote about this case. I am interested to see what everyone thinks about the results.

Randall said...

Is there any recourse for a probationer who did not file an appeal within 120 days of the notice of termination? It has taken 7 years to recover from the ongoing abuse by various administrators -- at different schools, under different licenses over the course of several years; the continuously inadequate support by union reps; and the subsequent unemployment of a mid-life career changer suddenly caught in a global economic crisis. Not to mention that the letter of termination came as a complete surprise -- following Satisfactory ratings during the previous semester (despite still having bouts of fatigue from an earlier illness); and coming with far less than the required 60 days of notice! Any lawyers out there?

Randall said...
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Randall said...
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