Matter of Lisa Capece v Margaret Schultz, as Community Superintendent of Community School District 31

Petitioner brought about this Article 78 proceeding to review a determination of Margaret Schultz, Community Superintendent of Community School District 31 of the New York City Department of Education terminating petitioner from her position as a probationary public school teacher. Petitioner began teaching in 2005. Her probationary term was supposed to end in 2008 but she was allegedly coerced into an “Extension of Probation Agreement” in 2007 which extended her probationary period by one year to allow petitioner to demonstrate improvement in her alleged areas of difficulty. During the extended probationary period, petitioner received two unsatisfactory evaluations. She was also required to attend several disciplinary meetings due to alleged instances of misconduct for violating the school’s telephone policy and altering the program schedule without prior permission. Due to these incidences, the Superintendent notified petitioner of her termination. Petitioner then appealed this decision to the Department of Education’s Office of Appeals and Reviews. A hearing was held and the recommendation to discontinue petitioner’s probationary service was upheld. The Superintendent re-affirmed her decision and petitioner commenced this Article 78 appeal.

Petitioner alleged in her petition that she was the victim of harassment and discriminatory treatment in retaliation for her union activities. She argued that she had received only satisfactory reviews until she became involved in activities as the union co-chapter leader. Petitioner even filed a complaint with the Chancellor of the Department of Education asserting that she was being subjected to harassment but the complaint was denied due to lack of evidence. Respondents maintain that a probationary employee can be terminated at will and since petitioner’s record show unsatisfactory work performance and misconduct, the termination was not made in bad faith.

The Court feels that petitioner met her evidentiary burden of producing sufficient evidence to raise a material issue of fact regarding whether or not her termination was made in bad faith as a retaliatory measure to punish her for her activities in the local teachers’ union. The evidence shows that the unsatisfactory performance evaluations and alleged incidences of professional misconduct occurred only while petitioner was engaged in union activities and therefore the retaliatory nature of petitioner’s termination cannot be determined on the facts so far provided. The Court feels that judicial review is mandated and the matter must proceed to trial.

Accordingly, the Court granted the petition to the extent that the parties must appear for a preliminary conference. The trial date for this case is still pending.

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