Appeal of JON S. LEAKE, from action of the Board of Education of the Garden City Union Free School District, Eileen Vota as Principal, Nicole Hunn as Assistant Principal, Dawn Cerrone as Athletic Director, Dr. Robert Feirsen as Superintendent, and James Cotter as President of the Garden City Teachers’ Association, regarding a personnel action.

Decision No. 17,236

(October 27, 2017)

Guercio & Guercio LLP, attorneys for respondents, Lisa L. Hutchinson, Esq., of counsel

Richard E. Casagrande, New York State United Teachers, attorneys for respondent James Cotter, Gregory M. Ainsley, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals from actions taken by Principal Eileen Vota, Assistant Principal Nicole Hunn, Athletic Director Dawn Cerrone, Superintendent Dr. Robert Feirsen and the Board of Education of the Garden City Union Free School District (collectively “respondents”), as well as the actions of the Garden City Teachers’ Association (“GCTA”) President James Cotter (“respondent Cotter”) regarding the placement of a counseling memorandum in his personnel file.  The appeal must be dismissed.

Petitioner is a tenured teacher of physical education who, prior to the events described in this appeal, was assigned to the district’s Stratford Elementary School (“Stratford”).  According to the record, Stratford employs two physical education teachers in its physical education classes in a collaborative model.

On December 1, 2016, another physical education teacher within the district (the “complainant”) filed a complaint against petitioner, alleging that, on November 30, 2016 he told her:

I have nothing to say to you.  I had my formal meeting with [superintendent and respondent] Dr. Feirsen and you were quoted six times.  Thanks for throwing me under the bus.  F*** you and you can kiss my a**.

The district’s assistant superintendent for personnel (“assistant superintendent”) proceeded to investigate the charges.  During her investigation, the assistant superintendent learned of a second interaction between petitioner and the complainant on November 10, 2016, where the complainant was decorating for a school circus event and petitioner told the complainant: “This is the problem with you....  I tell you not to do things and you go ahead and do them anyway.”

On December 16, 2016, the assistant principal interviewed petitioner as part of her investigation.  Petitioner stated that he “rarely” spoke to the complainant, “had not spoken to [her] for the past three weeks...” and did not plan to interact with her in the future.  Given petitioner’s statements, the assistant superintendent determined that petitioner and the complainant would be unable to effectively collaborate in teaching physical education.  Therefore, the assistant superintendent determined that the needs of Stratford would be best served if petitioner were reassigned to teach physical education at two of the district’s primary schools.

On January 4, 2017, the assistant principal met with petitioner, respondent Cerrone, and the vice president of petitioner’s union, the GCTA.  At this meeting, petitioner was informed of his reassignment.  Petitioner did not, as permitted by a collective bargaining agreement between the GCTA and respondent board of education, appeal this decision to the superintendent.

In a memorandum dated January 18, 2017, the principal informed petitioner that he possessed a key to the exterior door of Stratford and directed him to return it.  Petitioner signed this memorandum and added a handwritten notation indicating that he had already handed in “all” of his keys to the district.

On January 23, 2017, the assistant principal conveyed the results of her investigation to petitioner.  The assistant principal concluded that the evidence supported the complainant’s allegations concerning the November 10, 2016 incident, and that there was “sufficient evidence to support, at least in part,” the November 30, 2016 incident.  The assistant principal noted that despite petitioner’s statement on December 16, 2016 that he had not spoken to the complainant “in three weeks,” security footage portrayed petitioner and the complainant speaking on November 30, 2016.  The assistant principal further noted that her determination was based on evidence provided by “witnesses identified during the course of the investigation.” 

On February 7, 2017, the assistant superintendent met with petitioner to discuss the results of the principal’s investigation, petitioner’s continued failure to return the Stratford keys and his alleged dishonesty.

In a counseling memorandum dated March 8, 2017 (the “counseling memorandum”), the assistant superintendent summarized the February 7, 2017 meeting and provided direction and guidance to petitioner.  The counseling memorandum first stated that it was alleged that, on November 30, 2016, petitioner had made “rude, profanity [-] laden comments” to the complainant.  It then stated that, on November 10, 2016, petitioner had “publicly derided” the complainant regarding the use of decorations for the school circus.  In both instances, the counseling memorandum indicated that the complainant’s allegations had been substantiated by the principal.  The counseling memorandum also noted that petitioner had failed to return keys to Stratford upon request, commented upon petitioner’s lack of honesty regarding this issue and stated that his conduct could be considered insubordination.  The counseling memorandum additionally reminded petitioner of his “obligation to act professionally and appropriately at all times in [his] interactions with other staff members.”  The counseling memorandum directed petitioner to take the following three actions: (1) return the Stratford keys; (2) refrain from using inappropriate and unprofessional language, particularly profanity; and (3) “[b]e honest” when responding to a supervisor and comply with all supervisors’ directives. 

The assistant superintendent wrote in the counseling memorandum that “a copy of this memorandum will be placed in your personnel file.”  Petitioner signed the counseling memorandum, but wrote that he did so “under protest” and that he “den[ied] all accusations herein as false, defamatory, and [r]etaliatory.”  Petitioner further wrote that “[t]his letter is ‘punishment’ disguised as a ‘[w]arning.’”  This appeal ensued.  Petitioner’s request for interim relief was denied on April 19, 2017.

Petitioner alleges that the counseling memorandum was a reprimand and was placed in his personnel file without the procedural protections of Education Law §3020-a.  Petitioner requests that it be “permanently expunged” from his personnel file.  Petitioner also complains that the GCTA improperly refuses to grieve disputes and accuses respondent Cotter of various acts of malfeasance.  Petitioner seeks class status and an order that any member of the GCTA who files an appeal pursuant to Education Law §310 receive “an expedited review ... as long as James Cotter remains president of the GCTA.”

Respondents deny petitioner’s assertions and contend that the counseling memorandum was an informal guidance memorandum, not a written reprimand.  Respondents further argue that, to the extent petitioner challenges his building reassignment, such claim is untimely.

Respondent Cotter seeks dismissal of the claims against him on the ground that unions and their representatives are not subject to the jurisdiction of the Commissioner in an appeal pursuant to Education Law §310.  Counsel for respondent Cotter further contends that, “upon information and belief,” respondent Cotter was not personally served with a copy of the petition.

Initially, I note that petitioner attempts to bring this appeal “on behalf of all other members of the [GCTA] bargaining unit, for whom [respondent] Cotter will not grieve or help in any way....”  An appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class (8 NYCRR §275.2; Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797).  A petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class (Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797).  Here, while petitioner generally identifies the proposed class as constituting “over 300 members ... who will not be protected,” he offers no explanation of how all questions of fact and law would be common to the class which he seeks to certify, other than his conclusory assertion to that effect.  Therefore, class status is denied (see e.g. Appeal of Clemons, et al., 55 Ed Dept Rep, Decision No. 16,827).

In any event, the appeal must be dismissed as against respondent Cotter for lack of jurisdiction.  While petitioner claims that he has only named respondent Cotter in order “to maintain a class appeal,” his claims in that regard relate to alleged actions and omissions which respondent Cotter did or did not perform as president of the GCTA.  It is well-settled that union organizations and their representatives are not subject to the jurisdiction of the Commissioner of Education under Education Law §310 (Appeal of Parker, 56 Ed Dept Rep, Decision No. 17,054; Appeal of Hoefer, 41 id. 203, Decision No. 14,664; Appeal of Christe, 40 id. 412, Decision No. 14,514; Appeal of Goldin, 38 id. 317, Decision No. 14,043).  Therefore, petitioner’s claims against respondent Cotter are dismissed.[1]

Turning to the merits, in Holt v. Bd. of Educ., Webutuck Cent. School Dist., et al. (52 NY2d 625), the Court of Appeals held that, although a disciplinary reprimand may not be issued to a teacher without a finding of misconduct pursuant to Education Law §3020-a, critical administrative evaluations need not be afforded such procedural protections.  In reviewing the letters placed in the teacher's file in Holt, the court found that the purpose of the communications was to call to the teacher's attention a relatively minor breach of school policy and to encourage compliance with that policy in the future.  The court held that critical written evaluations do not rise to the level of disciplinary reprimands when the purpose of such evaluations is to warn or instruct, but not to punish (Holt v. Bd. of Educ., Webutuck Cent. School Dist. et al., 52 NY2d 625).

In Matter of Richardson (24 Ed Dept Rep 104, Decision No. 11,333), the Commissioner observed that:

The Court of Appeals has [also] recognized a somewhat tenuous but nevertheless real distinction between admonitions to a teacher which are critical of performance and are in the nature of evaluations or administrative efforts to achieve improvement in performance, and disciplinary determinations of a punitive nature.  

In Richardson, the Commissioner applied the court’s analysis in Holt to sustain the appeal of a tenured teacher who had served as the school nurse and direct the removal of a critical letter from her personnel file.  In that case, the petitioner was removed from her position and administratively transferred to a different school.  The decision set forth the following factors to be considered in determining whether a letter constitutes an impermissible reprimand:

[W]hether the letter is from the teacher’s immediate supervisor or from the board of education; whether the letter is directed towards an improvement in performance or is a formal reprimand for prior misconduct; whether the letter is in the nature of a performance evaluation or a castigation for misconduct; and the severity of the misconduct and of the admonition or reprimand.  The language of the letter and the circumstances in which it was issued must be considered as a whole, and a determination made whether it is a corrective admonition or a disciplinary reprimand (citation omitted).

(Matter of Richardson, 24 Ed Dept Rep 104, Decision No. 11,333; see also Appeal of Fusco, 39 id. 836, Decision No. 14,396).

Applying these factors to the counseling memorandum, I find that the counseling memorandum, although critical of petitioner’s job performance, merely amounts to an administrative evaluation.  First, the counseling memorandum was issued by a single administrator and not the board of education.  In past decisions, the Commissioner has ruled that the issuance of such a memorandum directly from the board of education is a significant factor in determining whether a counseling memorandum constitutes an impermissible reprimand (see e.g. Appeal of Fusco, 39 Ed Dept Rep 836, Decision No. 14,396). 

Second, as described above, the assistant superintendent called petitioner’s attention to three specific instances of misconduct, reminded him of his obligation to act professionally and appropriately at all times in his interactions with staff members and to comply with school policy in the future.  Such directives are in the nature of administrative efforts to achieve improvement in petitioner’s performance (see Appeal of M.D., 47 Ed Dept Rep 51, Decision No. 15,623).

Third, despite petitioner’s characterization of his conduct, the misconduct involved, while inappropriate, is relatively minor: the use of profanity, disparaging a colleague’s efforts to decorate for a school circus and petitioner’s failure to return keys following his transfer to another school.

Fourth, petitioner has not alleged, and the record does not show, that respondents took any action against petitioner simultaneously with, or shortly after issuance of, the counseling memorandum.  As noted above, petitioner was reassigned to another school building prior to completion of the investigation of the incidents summarized in the counseling memorandum.  The assistant superintendent attests in an affidavit that she reassigned petitioner because petitioner had admitted that he was not communicating regularly with the complainant.  The assistant superintendent further attests that she decided to transfer petitioner in an effort to staff Stratford with two physical education teachers who could work collaboratively and that it was her understanding that petitioner preferred teaching in a school that did not require collaboration or a co-teaching model.  Under such circumstances, I cannot find that the counseling memorandum and prior transfer were part of a single process which was disciplinary in nature (cf. Appeal of Irving, 39 Ed Dept Rep 761, Decision No. 14,373 [counseling memorandum issued a day prior to an involuntary transfer found to be part of a single process which was disciplinary in nature]).  While petitioner suggests in his petition that his building reassignment was retaliatory in nature, petitioner clarifies in a reply that he is not challenging his building reassignment in this appeal.[2]  Therefore, petitioner’s circumstances are unlike those of the petitioner described in Matter of Richardson (24 Ed Dept Rep 104, Decision No. 11,333) discussed above.

Supervisory personnel of a school district have the right and duty to make such evaluations as an adjunct to their responsibility to supervise the faculty of the schools (Holt v. Bd. of Educ., Webutuck Cent. School Dist. et al., 52 NY2d 625).  While the language in the assistant superintendent’s letter is critical, the record supports a finding that the purpose of the memorandum was to call petitioner’s attention to breaches of school policy and encourage compliance with such policies in the future.  Therefore, I find that the assistant superintendent permissibly issued the counseling memorandum without resort to the procedural protections of Education Law §3020-a (Appeal of M.D., 47 Ed Dept Rep 51, Decision No. 15,623; Appeal of O’Connor, 29 id. 353, Decision No. 12,664, O’Connor v Sobol, et al.; Supreme Court, Albany County, Special Term; Cobb, J.; Judgment granted dismissing petition to review; July 20, 1990, n.o.r.; aff’d 173 AD2d 74; appeal dismissed 80 NY3d 897 [1992]).

Petitioner further argues that his situation is analogous to D'Angelo v. Scoppetta (19 NY3d 663).  In D’Angelo, following a finding that a firefighter directed a racial epithet at an emergency medical technician, the Fire Department of the City of New York (“department”) issued a letter to the firefighter which was placed in his personnel file.  The department also required the firefighter to participate in equal employment opportunity training, which the Court of Appeals deemed “a form of discipline” under the circumstances. 

D’Angelo is distinguishable from the instant appeal for several reasons.  First, the breach of the department’s racial discrimination policy in D’Angelo involved yelling a racial epithet at a co-worker, which is more serious than the conduct alleged here; namely, refusal to return district property, use of inappropriate and unprofessional language and failing to honestly respond to inquiries by supervisors about possession of school keys.  Second, unlike the firefighter in D’Angelo, petitioner was not required to take any actions in response to the counseling memorandum, such as the additional training in D’Angelo, which could be considered disciplinary in nature.  Third, while the principal conducted an investigation which led to the counseling memorandum, there is no evidence in the record that the assistant superintendent consulted with his superiors and received their approval prior to issuing the counseling memorandum, as was the case in D’Angelo.

Petitioner further contends that the counseling letter is internally inconsistent in that it indicates that its purpose was “to warn [petitioner] of the serious consequences of any future incident, and to instruct [him]...” but also states that it does not “rule out formal disciplinary action for this incident.”  While I recognize petitioner’s concerns, the counseling memorandum correctly recognizes that, so long as “a timely charge of misconduct is made and the procedural requirements of section 3020-a of the Education Law have been fulfilled,” a school district may make “formal disciplinary use” of counseling memoranda such as the memorandum at issue in this appeal (Holt v. Bd. of Ed. of Webutuck Cent. Sch. Dist., 52 NY2d 625).

I have considered petitioner’s remaining contentions and find them to be without merit.  Therefore, I need not address respondents’ remaining defenses and arguments.

THE APPEAL IS DISMISSED.

END OF FILE