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 1^st Amendment and statutes.

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

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

The decision is reported here.