Standards used in higher education for granting or denying faculty members tenure not applicable to faculty in a primary or secondary school

Standards used in higher education for granting or denying faculty members tenure not applicable to faculty members seeking tenure in a primary or secondary school
Donnelly v Greenburgh CSD #7, USCA, Second Circuit, Docket No. 11-2448-CV

Edward Donnelly, a probationary teacher employed by Greenburgh, challenged the school district’s decision denying him tenure.

One of the issues addressed by Second Circuit in adjudicating Donnelly’s appeal of the District Court’s granting the school district’s motion for summary judgment dismissing his petition concerned the magistrate judge’s conclusion that Donnelly he had not shown that he was qualified for tenure "under the standard ... applied to plaintiffs complaining of a discriminatory denial of tenure in the context of colleges and universities," as set out in Zahorik v. Cornell University, 729 F.2d 85.

The district court held that Donnelly had failed to demonstrate his qualification for tenure under Zahorik.  Considering that issue “dispositive,” the district court did not address Donnelly’s other arguable claims [see Donnelly, 2011 WL 1899713, at 1]. 

The Circuit Court noted that typically "a plaintiff-employee challenging an adverse employment action as discriminatory or retaliatory need not do much to establish his qualification for the position he holds or seeks." It then commented that it had previously ruled that "in the related context of employment discrimination, 'the qualification necessary to shift the burden to defendant for an explanation of the adverse job action is minimal; plaintiff must show only that he possesses the basic skills necessary for performance of the job.'" The district court, however, had held Donnelly, to a much higher standard.  

The district court, said the Circuit Court, concluded that, in order to show that “he was qualified for his position,” Donnelly must meet “the exacting standard [the Second Circuit has] applied in the context of allegations of discriminatory denial of tenure to university professors.”

Whatever the merits of that analysis in the university context, however, said the court, "neither we nor any other appellate court we have identified has ever applied the standards Zahorik pronounced to teachers denied tenure in elementary or secondary schools.  We decline to do so now." 

The Circuit Court ruled that while both university and high-school teachers may be awarded “tenured” positions that provide long-term employment and protections against arbitrary dismissal, “the two contexts have very little in common.” 

Although both high school teachers and scholars at universities and colleges are subject to individual performance evaluations at a predetermined stage of their careers that can lead either to the tenure or “to adverse employment events,” the Second Circuit said that “subjecting those two processes to the same analysis in the face of allegedly unlawful denial of promotion does not logically follow.” 

Concluding that Donnelly had presented “a genuine issue of material fact as to whether he worked enough hours to be eligible for FMLA leave; (2) the standard governing our review of allegedly unlawful university tenure denials is inapplicable to such denials in public high schools; and (3) [Donnelly] has adduced sufficient evidence of FMLA retaliation to survive a motion for summary judgment” the Circuit Court reversed the district court’s decision and remanded the matter for further consideration.

The decision is posted on the Internet at: