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Teacher Improvement Plan not a disciplinary action and therefore no due process rights attach

Teacher Improvement Plan not a disciplinary action and therefore no due process rights attach
Source: Adjunct Law Prof Blog; Reproduced with permission. Copyright © 2008, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved http://lawprofessors.typepad.com:80/adjunctprofs/

Marino v. Shoreman-Wading River, ___F.Supp. 2d___(E.D.N.Y. Nov. 20, 2008), is an interesting decision. (registration required). A school district imposed a teacher improvement plan [TIP] on a tenured teacher. The teacher claimed that this was a form of discipline without due process. The court rejected this argument as well as an Equal Protection argument, reasoning in part:

Although the TIP infers that plaintiff's pedagogical competence and judgment were deficient in some areas and is critical of her performance, the purpose of the TIP was to call plaintiff's attention to those areas of her performance which needed improvement and to encourage her compliance with school policies and use of available resources in the future. In addition, since the TIP is only from Christensen, plaintiff's immediate supervisor, it represents only one administrator's view of plaintiff's performance, not a formal finding of misconduct. Moreover, the TIP does not identify any prior misconduct on the part of plaintiff or castigate her for any such misconduct. Therefore, the TIP is a critical administrative evaluation, not a disciplinary reprimand. See, e.g. Holt, 52 N.Y.2d 625, 439 N.Y.S.2d 839; O'Connor v. Sobol, 173 A.D.2d 74, 77, 577 N.Y.S.2d 716 (3rd Dept. 1991) (finding that a letter commenting on the petitioner's "poor judgment" in the classroom and directing future action on the part of the petitioner amounted to nothing more than an administrative evaluation and was properly included in the petitioner's personnel file without resort to the formal procedures set forth in Section 3020-a since it did not impose a punishment, but merely reminded the petitioner of school rules); Tebordo v. Cold Spring Harbor Central School District, 126 A.D.2d 542, 543, 510 N.Y.S.2d 665 (2d Dept. 1987) (finding that the letters of reprimand placed into the petitioner's personnel file fell within the permissible range of administrative evaluation and fell short of the formal reprimand contemplated by Section 3020-a) . . .

Mitchell H. Rubinstein

NYPPL comments: As the Court of Appeals said in Holt, performance evaluations and letters of criticism placed in the employee?s personnel file were not ?disciplinary penalties? and thus could be placed there without having to first hold a disciplinary proceeding. In other words, the appointing authority?s placing correspondence critical of the employee?s conduct or performance in his or her personnel file did not constitute discipline.

In contrast, alleged ?constructive criticism? may not be used to frustrate an employee?s right to due process as set out in Section 75 of the Civil Service Law, Section 3020-a of the Education Law or a contract disciplinary procedure. Fusco v Jefferson County School District, CEd 14,396, and Irving v Troy City School District, CEd 14,373, illustrate this concept.

In Fusco?s case, the Commissioner of Education said that contents of the memorandum did not fall within the parameters of a ?permissible evaluation? despite the school board?s claim that the memorandum was ?intended to encourage positive change? in Fusco?s performance.

In Irving?s case, a school principal was given a letter critical of her performance and the next day reassigned to another school where she was to serve as an assistant principal.

Full post as published by New York Public Personnel Law on December 08, 2008 (boomark / email).