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Filing letters critical of an employee in the employee?s personnel file

Filing letters critical of an employee in the employee?s personnel file
Gutman v Board of Educ. of the City School Dist. of the City of N.Y., 18 Misc.3d 609, Cahn, J.

Daphna Gutman and Evelyn Carrillo, tenured teachers employed by the Board of Education of the City School District of the City of New York sued the Board seeking a court order to compel the Board ?expunge letters that were placed in each of their personnel files.?

The letters they sought to have removed had been signed by their school principal and issued in response to the Office of the Special Commissioner of Investigation?s (SCI) recommendation ?that appropriate disciplinary action be taken against . . . Carrillo . . . and Gutman.? In addition, the SCI report concerning these teachers was placed in their respective personnel files. Judge Cahn also noted that the SCI forwarded a copy of the report to the Office of Legal Services and to the State Education Department ?for whatever action it deems appropriate.?

According to Judge Cahn?s decision, the principal?s letters stated that she agreed with the SCI?s findings that Gutman and Carrillo ?showed a willful disregard for the welfare of children? by their failure to report any instances of inappropriate conduct that occurred between another teacher and any students.

In addition, said the court, the letters solely focused on the claimed past misconduct of the two teachers and castigated them for their actions, or lack thereof.

Finally, the court said that ?There is no indication that the letters were intended to encourage Carrillo and Gutman to improve their performance or that they were meant to instruct them as to future matters, as there were no suggestions regarding improvement nor any statements that the purpose of the letters was evaluative rather than disciplinary.?

The decision also notes that the inclusion of the SCI report in each teacher?s personnel file further castigated them by detailing their alleged misconduct beyond the principal?s more general description. It stated: ?[T]he statements of the educators interviewed indicated a disregard for the welfare of the children. These teachers completely ignored, overlooked, or minimized behavior on the part of [a third teacher], which should have been reported.? Such language, said Judge Cahn, makes it clear that the teachers were being reprimanded for their claimed failure to take appropriate actions.

Here, said the court, both the principal?s and the SCI?s accusations that the teachers endangered the welfare of children by failing to report alleged inappropriate touching could not only be detrimental to their careers but could also expose them to criminal and civil liability.

Citing Matter of the Civil Service Employees Association, 204 AD2d at 446 [letter that alleged sexual harassment without Education Law Section 3020-a protections must be expunged], Judge Cahn said that ?Such serious allegations require that petitioners be afforded the due process protections available under Education Law Section 3020-a?

Finding that the principal?s December 22, 2006 letters constitute a disciplinary measure taken without providing the teachers with administrative due process in violation of Education Law Section 3020-a, Judge Cahn directed the Board to expunge the offending materials from their respective personnel files.

In Holt v Board of Education, 52 NY2d 625, the Court of Appeals ruled that 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.

The basic rule set out in Holt is that a statutory disciplinary provision such as Section 75 of the Civil Service Law does not require that an employee be given a hearing or permitted to grieve every comment or statement by his or her employer that he or she may consider a criticism.

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.

As the Commissioner of Education indicated in Fusco v Jefferson County School District, CEd 14,396, and Irving v Troy City School District, CEd 14,373:

Comments critical of employee performance do not, without more, constitute disciplinary action. On the other hand, counseling letters may not be used as a subterfuge for avoiding initiating formal disciplinary action against a tenured individual.

In Fusco?s case, the Commissioner 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.

The Commissioner noted that the memorandum ?contains no constructive criticism or a single suggestion for improvement.? Rather, said the Commissioner, the memorandum focused on ?castigating [Fusco] for prior alleged misconduct.?

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.

Sometimes an individual alleges that he or she has been subjected to ?double jeopardy? because a ?counseling memorandum? placed in the individual?s personnel file is later disciplinary charges involving the same event(s) are served upon the individual. Does including or incorporating the events set out in the counseling memorandum as charges constitute ?double jeopardy??

No, according to the Court of Appeal?s ruling in Patterson v Smith, 53 NY2d 98. In Patterson the court said that including charges concerning performance that were addressed in a counseling memorandum was not ?double jeopardy.?

Full post as published by New York Public Personnel Law on May 16, 2008 (boomark / email).