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Decision No. 18,364

Appeal of AMY ROGERS from action of the Board of Education of the East Aurora Union Free School District regarding a personnel action.

Decision No. 18,364

(December 18, 2023)

Robert T. Reilly, Esq., New York State United Teachers, attorneys for petitioner, Matthew Bergeron, Esq., of counsel

Webster Szanyi, LLP, attorneys for respondent, Marnie Smith, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals from actions taken by respondent Board of Education of the East Aurora Union Free School District (“respondent”) regarding her teaching assignment and the placement of a counseling memorandum in her personnel file.  The appeal must be sustained to the extent indicated.

Petitioner is employed as an elementary school teacher in respondent's school district.  Respondent granted her tenure in 2002.  She has always received ratings of effective or highly effective and has taught first, second, and fifth grade.

On September 2, 2021, the New York State Department of Health (“NYSDOH”) promulgated regulations authorizing “routine COVID-19 testing in certain settings” that included schools.  The regulation also allowed entities subject to routine testing to “accept documentation demonstrating full vaccination in lieu of imposing such testing requirements.”  Petitioner was informed by respondent, on numerous occasions, that she needed to submit proof of COVID-19 vaccination or consent to periodic testing in accordance with this regulation.  Petitioner did not comply with these requirements; as a result, she was placed on unpaid administrative leave on September 27, 2021.

The NYSDOH regulations at issue expired on June 1, 2022.  Respondent did not restore petitioner to her position at that time but resumed paying her salary.

On October 4, 2022, petitioner met with respondent’s superintendent concerning her employment.  Petitioner asserts that the superintendent stated that he “didn’t see” petitioner “com[ing] back and go[ing] into a first-grade classroom like nothing happened,” predicting that it would “not ... be successful.”  The superintendent offered to accept petitioner’s resignation in lieu of preferring charges under Education Law § 3020-a.[1]  Petitioner rejected the superintendent’s offer.

On November 7, 2022, respondent assigned petitioner to “research best practice curriculum map models in elementary education, and to evaluate and align the District’s elementary curriculum to those best practices.”

Over four months later, the superintendent issued a counseling memorandum (the “memorandum”) to petitioner to “bring attention and closure to the District’s concerns regarding [her] conduct related to the COVID-19 testing requirements which were in effect during the 2021-2022 school year.”  The memorandum, discussed at greater length below, was placed in her personnel file.  This appeal ensued.

Petitioner argues that her assignment to a non-teaching position was disciplinary or retaliatory in nature.  She further contends that the memorandum constitutes impermissible discipline that could only have been issued following a hearing under Education Law § 3020-a.  She seeks restoration to a teaching position and removal of the memorandum from her personnel file.

Respondent argues that petitioner’s challenge to her non-teaching assignment is untimely and without merit.  Respondent acknowledges that the memorandum was critical but argues that it fell within the permissible scope of an administrative evaluation.

Petitioner’s challenge to her non-teaching assignment must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  Petitioner asserts that she returned to employment on November 7, 2022, at which time she “was reassigned to perform ‘curriculum mapping’ tasks.”  This appeal was not commenced until April 2023, over five months later.

Petitioner nevertheless argues that her challenge to this assignment is timely as it constitutes a continuing wrong.  Pursuant to the continuing wrong doctrine, the 30-day time limitation does not bar an appeal from an ongoing action that results in a continuous violation of law, such as the unlawful employment of an unqualified individual (Appeal of Kippen, 48 Ed Dept Rep 469, Decision No. 15,919); an unlawful appointment to a district’s shared decision-making team (Appeal of Sadue-Sokolow, 39 Ed Dept Rep 6, Decision No. 14,155); an improperly constituted professional development team (Appeal of Copenhagen Teachers’ Association, et al., 45 Ed Dept Rep 459, Decision No. 15,381); or ongoing spending under an allegedly improper austerity budget (Appeal of Aarseth, 32 Ed Dept Rep 506, Decision No. 12,901).  The doctrine does not apply where a petitioner challenges a single discrete action, inaction, or decision and the resulting effects, even if continuous, are not intrinsically unlawful (Application of Ayers, 48 Ed Dept Rep 350, Decision No. 15,883; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821, art 78 dismissed Matter of Reyes v Mills [Sup Ct, Albany County 2009, Zwack, J.]). 

I agree with respondent that petitioner’s reassignment was a discrete act triggering the 30-day time limitation (see Langella v. Mahopac Cent. Sch. Dist., US Dist Ct, SD NY, 1:18 civ 10023, Román, J., 2022 [high school coach’s complaints about discrete acts, including his suspension with pay, were “plainly ‘discrete acts’ that [could not] be covered by the continuing violation doctrine”]).  Appeal of McEvoy is distinguishable, as the petitioner in that appeal alleged that she was required to perform work outside of her tenure area without her consent, which is inherently unlawful (57 Ed Dept Rep, Decision No. 17,198).  Here, the instructional support services duties to which petitioner was assigned are specifically authorized by Part 80 of the Regulations of the Commissioner (8 NYCRR 80-5.21).  Therefore, petitioner’s challenge to her non-teaching assignment must be dismissed as untimely.[2]

Turning to petitioner’s remaining claim, in an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Petitioner has met her burden of proving that the counseling memorandum was disciplinary in nature.  Tenured teachers may only be disciplined following a hearing under Education Law § 3020-a.  In Holt v. Bd. of Educ., Webatuck Cent. Sch. Dist., et al.,[3] the Court of Appeals articulated a distinction between “admonitions to a teacher [that] are critical of performance” and “disciplinary determinations of a punitive nature.”  The former, intended to address “relatively minor breach[es] of school policy,” may be imposed by management in its discretion while the latter may only be imposed following a hearing.  In Matter of Richardson,[4] the Commissioner applied the Court’s analysis in Holt and sustained the appeal of a tenured teacher who had served as the school nurse.  The decision identified multiple factors to be considered in determining whether written criticism constitutes an impermissible reprimand, primarily whether:  (1) the letter is directed towards an improvement in performance or a reprimand for prior misconduct;[5] and (2) the severity of the misconduct and the admonition/reprimand.[6] 

Here, both factors support a finding that the memorandum was disciplinary in nature.  With respect to the first factor, the majority of the memorandum criticizes petitioner for prior conduct.  The first page and one-half of the three-page memorandum recount the events leading to petitioner’s leave.  This chronology is punctuated with critical assessments, such as “[y]our actions demonstrated a serious lack of concern for your students, parents and colleagues” and “your lack of proactive communication and lack of acknowledgment [were] troubling.”  The second half of page two, entitled “Summary of Concerns,” contains four paragraphs that directly criticize petitioner’s actions.  The following excerpt from the second paragraphs is representative:

Your deliberate insubordination of State-imposed requirements and the District’s repeated directives ... not only impacted the District’s operations, but ... resulted in an abandonment of our students.  Your conduct was unprofessional and showed a lack of integrity.  Additionally, your complete disregard for how your actions might affect others demonstrated a lack of concern for students, families, your colleagues, and District administration ... Moreover, your failure to comply with applicable rules and expectations for teachers undermines your credibility as a teacher responsible for enforcing classroom/school/District rules and expectations for students.

The memorandum also addresses improvement in performance in a section on page three under the heading “Directives for Future Conduct.”  However, these directives merely request that petitioner follow the law and her supervisor’s instructions.  For example, two of the directives merely instruct petitioner to comply with “all applicable ... State and federal laws ...” and the district’s code of conduct.  Thus, on balance, I find that the memorandum primarily constitutes a reprimand for prior misconduct.

With respect to the second factor, petitioner’s alleged misconduct was, as characterized by the superintendent, “significant.”  The memorandum states that petitioner’s conduct “forced [the district] to scramble to find a substitute teacher for [petitioner’s] first-grade students on almost no notice” and “caused significant and on-going repercussions.”  Most significantly, the memorandum asserts that petitioner’s

deliberate insubordination of State-imposed requirements and the District’s repeated directives and communication of its expectations ... not only impacted the District’s operations, but ... resulted in an abandonment of our students.

As such, petitioner’s conduct cannot be considered “a relatively minor breach of school policy” (Holt, 52 NY2d at 633; see Appeal of Fusco, 39 Ed Dept Rep 836, Decision No. 14,396).  Minor breaches have included, by contrast, failing to maintain order in a study hall, interrupting a class, failing to stay at an assigned work location, using profanity, disparaging a colleague’s efforts to decorate for a school event, and neglecting to return school property.[7]  Failing to abide by a condition of employment and ignoring administrative directives thereto is, by comparison, far more consequential.[8]

In sum, given its predominant focus on prior and serious misconduct, I find that the March 2023 counseling letter constituted a disciplinary action that could only be imposed following a hearing (Appeal of Fusco, 39 Ed Dept Rep 836, Decision No. 14,396; Matter of Richardson, 24 id. 104, Decision No. 11,333).  As such, respondent must remove it from petitioner’s personnel file.

Finally, respondent requests certification that the superintendent acted in good faith pursuant to Education Law § 3811 (1).  Such certification is solely for the purpose of authorizing a board of education to indemnify a respondent for costs incurred in defending against a proceeding arising out of the exercise of the respondent's powers or the performance of the respondent's duties as a board member or other official listed in section 3811 (1). The Commissioner will issue such certification unless the record establishes that the requesting respondent acted in bad faith (Application of McCray, 57 Ed Dept Rep, Decision No. 17,240; Application of Valentin, 56 id., Decision No. 17,014; Application of Paladino, 53 id., Decision No. 16,594).  There is no evidence that the superintendent acted in bad faith; as such, he is entitled to the requested certification.


IT IS ORDERED that respondent remove the March 30, 2023 memorandum from petitioner’s personnel file.



[1] Respondent admits that the superintendent offered to accept petitioner’s resignation but does not admit or deny the statements attributed to him.


[2] Should respondent again assign petitioner to a position that primarily or exclusively involves instructional support services, this would constitute a new act that could be the subject of a grievance or appeal to the Commissioner.


[3] 52 NY2d 625 (1984).


[4] 24 Ed Dept Rep 104, Decision No. 11,333.


[5] While identified separately, “[w]hether the letter is in the nature of a performance evaluation or a castigation for misconduct” appears to concern the same inquiry as the first factor above.


[6] The decision also considered it relevant if a letter: (1) is from the teacher’s immediate supervisor or from the board of education; (2) uses the word “reprimand”; or (3) “uses the accusatory language of formal charges in describing the teacher’s conduct.”  While these factors may be considered, they relate less to the nature of the conduct/reprimand and more to the care with which the letter was drafted.


[7] The first three incidents were the subject of the consolidated appeals in Holt, 52 NY2d 625.  The second three were the subject of a counseling letter issued to a teacher in Appeal of Leake, 57 Ed Dept Rep, Decision No. 17,236.


[8] I further find, as evidenced by its structure and tone of the memorandum, that respondent’s admonition of petitioner was sufficiently severe to constitute discipline.