Labor & Employment Law

Denial of tenure because of union activity

By Harvey Randall, Esq.

Denial of tenure because of union activity
Kunjbehari v. Wyandanch Union Free School District, Supreme Court, Justice Costello, [not officially reported]

Kunjbehari challenged the District's decision to deny him tenure and sought a court order directing his reinstatement as District Administrator, retroactive to July 1, 2000, together with all back pay and other benefits.

Kunjbehari held tenure with the Wyandanch as an Attendance Teacher. In July 1996, he was appointed to the position of Assistant Director of Student Services, a new position in which he was required to serve a three year probationary period. In July 1997, Kunjbehari was appointed Director of Testing, Evaluation and Attendance. In April 1999, the then Superintendent of School, Dr. James Lotheridge, recommended that Kunjbehari be granted tenure. The Board of Education rejected that recommendation, but approved Kunjbehari's request that he be permitted to serve another year of probation for the period of July 1, 1999 to June 30, 2000.

In March 2000, Kunjbehari was told by Dr. Brian DeSorbe, the Acting Superintendent, that he was recommending that the Board of Education not grant him tenure. Dr. DeSorbe provided Kunjbehari a written statement setting out the fifteen reasons which formed the basis for Dr. DeSorbe's recommendation he be denied tenure. Kunjbehari submitted a written response to Dr. DeSorbe's statement which was forwarded to the Board of Education. The Board denied Kunjbehari tenure.

Justice Costello said that "[i]t is uncontroverted that the Board of Education lacks the authority to reject the Superintendent's recommendation that tenure be denied,? citing Anderson v. Board of Education, 46 AD2d 360, affirmed 38 NY2d 897.

Kunjbehari sued, contending that the Superintendent's decision not to recommend him for tenure "was arbitrary and capricious and in bad faith motivated by Dr. DeSorbe's desire to retaliate against petitioner for his union activity." He alleged that "underlying Dr. DeSorbe's decision to deny [him] tenure was the fact that [he] served as the President of the Wyandanch Administrators' Association and, in that capacity, that he filed and pursued grievances on behalf of himself and three other district administrators against the School District during the 1998-1999 school year arising out the School District's denial of merit pay increases to these administrators.

The court said that while "a board of education has an unfettered right to terminate the employment of a teacher or administrator during his or her probationary period, without a hearing," it may not do so for "a constitutionally impermissible purpose or in violation of a statutory proscription." Further, Justice Costello said that "[a]s broad as the board's discretion may be, however, it is also the rule that a school board may not deny tenure to retaliate for a teacher's or administrator's exercise of his or her constitutional rights of free speech and association."

In addition, Justice Costello commented that "it is the clear public policy of this State, as set forth in the Taylor Law (Article 14 of the Civil Service Law), that a school board may not discriminate against teachers or administrators for exercising their right to belong to or participate in an employees' union." However, an individuals' union activity will not provide a shelter for a teacher or administrator whom the school district decides not to retain for bona fide legitimate reasons.

Finding that Kunjbehari stated a "good cause of action," the court said that a trial is required at which Kunjbehari will be given an opportunity to prove his allegations that the decision to deny him tenure was in fact based upon his exercise of his constitutionally protected rights. At the trial, Kunjbehari has the burden of proving that (1) he engaged in constitutionally protected behavior and (2) that such behavior played a substantial part in the tenure decision.

If he satisfies this burden, the District will have to come forward to show that it would have reached the same determination even in the absence of the exercise by Kunjbehari's of constitutionally protected conduct.

Ruling that the issue must go to trial, Justice Costello commented that the trial court, or a jury if a jury trial is demanded, will have to decide whether to (1) give credence to Kunjbehari's claim that he was denied tenure because of his union activities or (2) whether Kunjbehari was denied tenure for legitimate reasons.

Full post as published by New York Public Personnel Law on March 28, 2008 (boomark / email).