Opinion
No. 16739/10.
2011-02-1
In the Matter of the Application of Jennifer SALERNO, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Laws and Rules v. SEAFORD UNION FREE SCHOOL DISTRICT, Respondent.
Leeds Morelli & Brown, PC, Carle Place, for Petitioner. Ingerman Smith, LLP, Hauppauge, for Respondent.
Leeds Morelli & Brown, PC, Carle Place, for Petitioner. Ingerman Smith, LLP, Hauppauge, for Respondent.
UTE W. LALLY, J.
Upon the foregoing papers, it is ordered that this Petition for a judgment pursuant to Article 78 of the CPLR annulling the respondent Seaford Union Free School District's (“School District”) June 17, 2010 determination denying petitioner's application for tenure and terminating her employment is denied and this proceeding is dismissed.
The petitioner began employment in the Seaford Union Free School District as a special education teacher in September, 2007. Her probationary period was to run from September, 2007 through August, 2010, at which time she would become eligible for tenure. On June 17, 2010 the Seaford Union Free School District Board of Education denied her application for tenure and terminated her employment. This proceeding ensued.
“A probationary employee may be discharged without a hearing and without a statement of reasons in the absence of a demonstration that the termination was in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law.” (Johnson v. New York City Dept. of Educ., 73 AD3d 927, citing Swinton v. Safir, 93 N.Y.2d 758, 762;York v. McGuire, 63 N.Y.2d 760, 761;Sztabnik v. City of New York, 31 AD3d 456;Rivera v. Department of Educ., City of New York, 25 AD3d 559;Rossetti–Boerner v. Hampton Bays Union Free School Dist., 1 AD3d 367; see also, Frasier v. Board of Educ. of City School Dist. of New York, 71 N.Y.2d 763, 765, citing Venes v. Community School Bd. of Dist. 26, 43 N.Y.2d 520, 525;James v. Board of Education of Central School District No. 1 of the Towns of Orangetown & Clarkstown, 37 N.Y.2d 891, 892). Therefore, a Board of Education may deny a teacher tenure without giving a reason as long as the denial is not premised upon a constitutionally impermissible reason or in violation of statutory prescriptions. (Cohoes City School Dist. v. Cohoes Teachers Ass'n, 40 N.Y.2d 774, 777, citing Education Law §§ 2509, 2573, 3012, 3013, 6206 and James v. Board of Education Central School District No. 1 of the Towns of Orangetown and Clarkstown, supra; see also, Williams v. Franklin Square Union Free School Dist., 261 A.D.2d 628;Strax v. Rockland County Bd. of Co-op. Educational Services, 257 A.D.2d 578). A decision to deny tenure “must be upheld if there is a rational basis for the determination.” (Harrison v. Goldstein, 204 A.D.2d 451, app dism., 84 N.Y.2d 992, app den., 85 N.Y.2d 802, citing Yanoff v. Commissioner of Ed., 66 Ad2d 919, app den., 47 N.Y.2d 711).
However, despite a school district's obligation to taxpayers, teacher's salaries are to be negotiated via collective bargaining agreement, not tenure decisions. [Conetta v. Board of Educ. of Patchogue–Medford Union Free School Dist., 165 Misc.2d 329, 331 (Supreme Court Nassau County 1995) ]. Absent a free and knowing waiver by a teacher of their tenure rights prior to beginning their probation, a denial of tenure to an otherwise qualified teacher based on budgetary constraints is arbitrary and without basis in reason and without regard to the facts. ( Conetta v. Board of Educ. of Patchogue–Medford Union Free School Dist., supra, at p. 331–332).
Therefore, tenure at the end of a probationary period may not be withheld for fiscal reasons which are not related to the applicant's qualifications. ( Conetta v. Board of Educ. of Patchogue–Medford Union Free School Dist., supra, at p. 331–332). The petitioner in this proceeding maintains that she was denied tenure and terminated solely due to budgetary constraints and a concomitant need to reduce staff and not because of her qualifications. In her Petition, she cites numerous comments made by school administrators in assessing her performance over her nearly three years teaching at the School District which indicate that her teaching was exceptional, as follows:
In his October 2, 2007 report, the High School Principal, Mr. Ragon noted that her instruction was in accord with State standards; that she had positive student control as well as “classroom management skills;” and, that she had clarity of presentation.
In his January, 2008 evaluation, Mr. Ragon again noted the petitioner's “knowledge of curriculum and subject matter;” and that she demonstrated “appropriate management skills.” He opined that the “students encounter an encouraging and inviting learning environment as illustrated by the positive relationship built between [the] students and [the petitioner],” and that the petitioner “ha[d] successfully assimilated herself into the Seaford community and work[ed] well with her colleagues.” As for her instructional skills, Mr. Ragon noted that she varied the delivery to meet the students' needs and to monitor their progress throughout the lesson” and that she “differentiate[d] instruction to address the students' specific IEP goals and curriculum needs.” He also noted that she was “receptive to suggestions.” Mr. Ragon also noted that the petitioner's “work ethic and professional attitude had enabled her to become a positive contributor to [the] faculty” and that “building administration appreciate[d] her efforts and looks forward to her continued professional growth.”
In his June, 2008 evaluation, Mr. Ragain summarized that the petitioner had “acclimated herself into the Seaford community and participated in a number of high school events” and that “she ha[d] a good work ethic and communicate[d] well with high school administration.”
In her December 2, 2008 observation report, Jane Dawkins, the Director of Special Services, noted that the petitioner's instruction aligned with State standards; that she motivates students to think; and, that she had clarity of presentation. Ms. Dawkins noted that although the students behavior was poor, it was not typical and was done to deter her as a perceived student teacher. She noted that the students' behavior was not a reflection of the petitioner and that she and the general education teacher handled the situation appropriately.
In his December 3, 2008 observation report, Mr. Ragon noted that she had “in-depth knowledge of [the] subject;” that her assignment related to [the] lesson;” and, again, that she “teach[es] to [the] individual differences of [the] students.” He further noted that “the students were engaged” and “assessed both formally and informally.”
In his January 3, 2009 observation report, Mr. Ragon noted that the petitioner had mastery of the subject area; maintained good discipline; and, used a variety of classroom activities. He noted that students were assessed formally and informally and that the petitioner had a good rapport with the students and created a positive learning atmosphere. He noted that she taught to meet the students “IEP needs” and that she collaborated well with the regular education teacher in both math and science. He also noted that she attended professional development conferences and was involved in the school's Best Buddy Program.
In the petitioner's September 23, 2009 observation report, Mr. Ragon again noted that she motivated the students and used varying instructional techniques and methods to meet the students' special learning problems and abilities. He also noted that there was good camaraderie between the teachers and that “students recognize when a teacher truly cares about teaching them the material.”
In his June, 2009 evaluation report, Mr. Ragon noted that the petitioner created an atmosphere of mutual respect; maintained good discipline; and, that the lessons were motivating and interesting. He noted that the petitioner's strengths were that she assessed the students via their writing and their oral responses and that she tried to keep them on task and have them contribute to the lesson. He noted that she was involved in SAT proctoring and Wilson training and was the SEPTA representative. He summarized her as “understand [ing] the importance of delivering good instruction in the classroom and relates topics to real life situations.” He noted that two classified students achieved a score of 65 or higher on the Geometry regents, which was of particular significance because it was the first year that this test was given.
In petitioner's January, 2010 evaluation report, Mr. Ragon noted that the petitioner had “established clear and well defined objectives;” had a “mastery of the subject area;” and “maintain[ed] good discipline.” Her noted strengths were that she made good use of instructional materials; assisted students on an individual basis; and, attended conferences and workshops. In summary, Mr. Ragon noted that the petitioner had attempted to acclimate herself to the school community and to improve daily instruction in the co-teacher setting.
The Assistant Superintendent, Brian Conboy, noted in his February 25, 2010 observation report that the petitioner's “instruction aligned with State standards;” that “she had an in-depth knowledge of the subject;” and, that she had “positive student control” and “clarity of presentation.” He noted that the teacher assessed the students' learning through their questioning and that the petitioner had “a professional demeanor .... which is always beneficial for the learners in a collaboratively taught class.”
In the petitioner's final observation report of March 23, 2010, Mr. Ragon once again noted that her instruction aligned with State standards and that there was evidence that the students understood what was being taught. He noted that her assignment related to the lesson; that the students were kept on task and engaged in discussion; and, that petitioner demonstrated her knowledge of the material. He also noted that petitioner had positive student control and that she complimented the students in an effort to support and encourage their participation in the lesson.
As evidence that she was denied tenure for budgetary reasons, the petitioner notes that the Board discussed a need for staff cuts including 4.9 secondary teaching positions at its March 11, 2010 School Board meeting and that at the March 25, 2010 School Board meeting, Mr. Conboy noted that this included a math teacher, a retirement, a foreign language teacher and other “partials.” In fact, she alleges that Mr. Ragon told her at a meeting on March 24, 2010 that her denial of tenure was not based on her performance. She also alleges that Jane Dawson, the Director of Special Education, had told her that the School Board indicated that her position was being “excessed.”
The School Board's reasons for denying the petitioner's tenure were in fact ultimately set forth by the Superintendent in a letter dated March 28, 2010. However, the petitioner alleges that these reasons were not founded on facts.
The petitioner selectively omits any mention of her many short-comings which were in fact outlined in her various observation/evaluation reports, which, combined, establish that she was denied tenure based not upon budgetary limitations, but her abilities. In fact, the reasons provided to the petitioner in justification of the School Board's denial of tenure are all based on solid historical ground, as follows:
In his October 21, 2007 evaluation, Mr. Ragon instructed the petitioner to “differentiate the instruction and assign challenging examples” to students who work faster than others. This need was echoed in petitioner's January 2008 evaluation in which the petitioner was instructed to develop and implement “student centered activity outcomes that differentiate student outcomes and meet the individual needs of the students.” Similarly, with tenure decisions close at hand, Assistant Superintendent Conboy advised that the petitioner needed to add “high level questions into each of [her] lessons” to meet the needs of students who were capable of functioning at higher levels of questioning taxonomy and to improve others' abilities as well.
In his March 23, 2010 evaluation, Dr. Ragon noted that the students had difficulty understanding the lesson and he recommended that handouts be provided to assist visual learners.
In fact, five of eight observation reports indicated that the petitioner “was not meeting the needs of students with special interests, abilities and learning problems” and teaching to individual student differences. In six of eight observation reports, it was found that the petitioner was not using varying instructional techniques and methods.
As for classroom management, Mr. Ragon advised petitioner in January 2008 to implement classroom behavior strategies which rewarded students for their positive decision making and on December 7, 2009, Jane Dawkins noted that the system implemented—homework passes and extra quiz points—was in fact not motivating several students.
On December 2, 2008, Ms. Dawkins found that petitioner's students “had a great deal of difficulty following directions” and in her June, 2009 evaluation, petitioner was advised to consider methods and techniques to handle students' misbehavior because as a special education teacher, she must be more sensitive to her students' needs and the manner and need of resolving disciplinary problems. Similarly, Ms. Dawkins noted in her evaluation of December 7, 2009 that several students were acting out throughout the lesson and petitioner was advised in her January, 2010 evaluation to continue to assist students who do not model appropriate behavior and explore advice of colleagues and administration to resolve this problem. In fact, in eight out of eight observation reports, it was never found that the petitioner was successful in handling classroom incidents or emergencies efficiently.
The petitioner was repeatedly found to fail to adequately motivate students' participation and learning. In his observation report of October 2, 2007, Mr. Ragon noted she had failed to motivate students to think and that she should “implement a mechanism to ensure the students understand the homework and have the correct answers.” In her June, 2008 performance evaluation, the petitioner was advised to “implement positive reinforcement strategies in the classroom to encourage class participation.” And, in his September, 2008 observation of petitioner's performance, Mr. Ragon advised petitioner that “it is important to have the students actively engaged in the learning experience so the teacher has time to observe and assess student comprehension.” Nevertheless, in January, 2010, Mr. Ragon again advised petitioner that “she select various students to demonstrate their knowledge in different formats such as writing answers on the board.” And again, on the March 23, 2010 observation of the petitioner, Mr. Ragon found that the students had difficulty understanding the petitioner's lesson and were minimally responsive, which indicated a lack of understanding.
Petitioner was also repeatedly admonished to provide lesson summaries to assess the students' knowledge and comprehension in her January, 2009 evaluation and again in her June, 2009 evaluation. Nevertheless, even the petitioner's March 23, 2010 lesson ended without a summary. She was once again admonished that a “summary should be used to conclude the lesson and more importantly, to highlight the relevant and important information discussed in class. The summary can be used as another source to assess student knowledge and indicate to the teacher any material that should be reviewed in future classes.” In fact, in five out of eight observations, petitioner was found to have failed to properly conclude the lesson which indicated a failure to heed advice and warnings.
In addition, in the eight observations, it was never once observed that petitioner demonstrated “adaptability” or “flexibility” in her teaching and in her June, 2009 and January, 2010 evaluations, she did not achieve a satisfactory rating for “responds well to constructive criticism.” And, in her January, 2010 evaluation, she received below satisfactory ratings for “provides atmosphere of mutual respect” and “considerate and cooperative.”
In his affidavit in opposition to the Petition, Mr. Ragon denies ever telling the petitioner her denial of tenure wouldn't be based upon her performance. Similarly, Ms. Dawkins has denied in her affidavit in opposition to the Petition ever telling the petitioner that her position was being excessed.In fact, when petitioner was denied tenure, six high school probationary teachers were granted tenure, which mitigates against a finding that the petitioner was denied tenure for budgetary reasons. And, any excessing of positions was to be done based on seniority and would not have affected the petitioner.
The respondent School District has established that its denial of tenure to the petitioner and her termination was properly based on appropriate criteria and not on account of budgetary constraints. Accordingly, the Petition is denied and this proceeding is dismissed.
Settle Judgment on notice.