Will a court overturn two U-ratings of a 33 year veteran teacher who claims the ratings were a pretext and part of continuing harassment?

No. Margaret Poplinger was a 33 year veteran special education teacher when the administration of her school changed. Despite 33 years of satisfactory ratings and numerous complementary letters in her personnel file the new principal began to closely observe her. In a series of observations, both formal and informal, Poplinger was rated unsatisfactorily. After two years of what she claimed was consistent harassment and poor treatment due to her allegiance to the prior administration Poplinger retired and sought to have the ratings reversed by the court.

Justice Donna M. Mills found that although she sympathized with Poplinger great deference was required to be accorded the DOE. Mills wrote, “Petitioner has failed to show that the U-Ratings were arbitrary and capricious or made in bad faith. The detailed observation reports by the principal and assistant principals, describing petitioner’s poor performance in areas of lesson planning and classroom instruction, provided a rational basis for the ratings. Petitioner’s contention that the principal harassed her and was biased against her is speculative and insufficient to establish bad faith (see Matter of Che Lin Tsao v. Kelly, 28 A.D.3d 320, 812 N.Y.S.2d 522 [2006] ).

N.B. No mention in the moving papers or the decision of any action by the Rating Appeals Board.

In the Matter of the Application of MARGARET POPLINGER, Petitioner, for a Judgment pursuant to Article 78 of the Civil Practice Law and Rules, – against – NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent. INDEX NO. 102542/12, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2013 N.Y. Misc. LEXIS 111; 2013 NY Slip Op 30049(U), January 10, 2013

Can a paraprofessional accused and terminated for an alleged inappropriate involvement with a twenty year old special education student seek reinstatement when he appealed to court almost two years after his last day of work despite the UFT refusal to take his case to arbitration?

No. James Barnes, Jr., a paraprofessional at P 754X was accused of an inappropriate relationship with a 20-year-old female special education student on February 24, 2010. He was reassigned pending an SCI investigation. On October 7, 2010, a due consideration conference was held to give petitioner a chance to respond to the SCI report with his UFT representative present. Petitioner was formally terminated and placed on the “Ineligible Inquiry List” in a letter dated October 19, 2010. On October 21, 2010, petitioner filed his initial grievance appeal and a Step 2 grievance appeal conference was held on January 7, 2011. On January 21, 2011, the Chancellor’s Representative issued a grievance decision denying petitioner’s grievance, finding that “the grievant received due process and was properly terminated without contractual violations.” Petitioner appealed to the UFT union’s Ad Com Grievance Committee to take further action. In a letter dated June 8, 2010, the Committee denied the appeal and declined  to take any further action on petitioner’s behalf, stating “that the Union cannot overcome the Department of Education’s argument that you were terminated for good and sufficient reason and received due consideration.”

Barnes started his Article 78 petition on August 31, 2012.

The statute of limitations for Article 78 proceedings is 4 months and in termination cases the time starts to run from the petitioner’s “last day of work.” Barnes argued that the Union’s delay in deciding to take the matter to arbitration tolled or extended this limitations period.

Justice Alexander W. Hunter, Jr. disagreed and ruled that Barnes’ petition was untimely and dismissed his petition.

Barnes had also argued that the SCI investigator admitted he falsified telephone records which were used to establish Barnes’ alleged inappropriate relationship. Justice Hunter ruled that under Labor Law Sections 537 and 623 evidence from unemployment hearings is inadmissible in subsequent court proceedings.

In the Matter of the Application of James Barnes, Jr., Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, -against- The Department of Education of the City of New York, Respondent, Index No.: 401944/12, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2013 N.Y. Misc. LEXIS 268; 2013 NY Slip Op 30091U, January 16, 2013.

Can a probationary teacher who submits a letter of resignation, effective immediately, rescind that letter once she was made aware of the 30 day notice requirement to prevent her from being placed on the ineligible/inquiry list?

No. Gina Sartori was a probationary social studies teacher at Dr. Susan McKinney High School when, in the middle of the year, she submitted a letter of resignation which was effective immediately. At the time, she claimed, that she was not advised by her Chapter Leader or the principal that her failure to provide 30 days’ notice would put her on the ineligible/inquiry list, barring her from future DOE employment. She claimed that the principal told her that resignation was the only way to “save” her license.

Several weeks after submitting her letter of resignation she learned of the consequences of her failure to provide notice and sought to rescind her letter.

When the principal refused to allow her to rescind the letter she filed a grievance which was denied.

Sartori filed an Article 78 to challenge the refusal to rescind her letter and for reinstatement. The DOE answered that Sartori was not forced to resign and that the DOE no longer maintains an ineligible/inquiry list. The DOE argued that while the list is no longer maintained a resignation without the 30 days’ notice “would be flagged for violating Chancellor’s  Regulation C-205(26)(b) for resigning without giving 30 days’ notice, triggering an investigation into her service history by the Office of Personnel Investigation” should the teacher seek employment with the DOE in the future.”

Justice Lobis dismissed Sartori’s petition after finding she was not coerced into submitting her immediate resignation and that the DOE did not act arbitrarily in denying her reinstatement or permitting her to rescind her resignation.

GINA SARTORI, Petitioner, -against- CITY OF NEW YORK; NEW YORK CITY, DEPARTMENT OF EDUCATION; DENNIS WALCOTT, CHANCELLOR of NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents, for an Order and Judgment Pursuant to Article 78 of the Civil Practice Law and Rules. Index No. 102614/12, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2013 N.Y. Misc. LEXIS 322; 2013 NY Slip Op 30163(U), January 25, 2013.

Is there a remedy for a teacher who obtained a reversal of a U rating to have all back pay restored and references erased from his personnel file?

Yes. Glenn Storman started this proceeding in 2006. Storman, a teacher at the DOE for approximately 30 years, challenged an unsatisfactory rating he received resulting from allegations of sexual misconduct and corporal punishment made in retaliation for his verbally reprimanding a student in 2004. Storman’s teaching career has been seriously impacted by these false allegations. In an Order dated October 26, 2007, Justice Marcy Friedman granted the petition and remanded the case to DOE for further findings of fact. After a second hearing, in a letter dated June 10, 2008, DOE upheld Storman’s unsatisfactory rating. Storman then commenced a second Article 78 proceeding challenging the result of the second hearing. In an Order dated May 11, 2009, the Court granted Storman’s petition because “it was irrational for the DOE to conclude that the alleged conduct amounted to corporal punishment” and “the penalty imposed was excessive and shocking to the conscience.” This Court ordered that the unsatisfactory rating be annulled and that “this matter [be] remitted to [DOE] for further proceedings not inconsistent with the court’s decision.”

The purpose of remitting the case to DOE was for the DOE and the UFT, to take the appropriate steps to remedy the consequences of the underlying false allegations so that Storman would be properly compensated and his employment status restored. Upon remittal, the unsatisfactory rating was annulled, but no further steps were taken to compensate Storman or to remedy his employment situation. As a result, Storman moved to hold DOE in contempt. In an Order dated November 19, 2010, this Court held DOE in contempt for its willful and contumacious failure to comply with the Judgment.

The City appealed and in an Order dated May 31, 2012, the Appellate Division vacated the Contempt Order on the ground that the Judgment did not contain a “clear and unequivocal mandate.” See Storman v NYC Dep’t of Educ., 95 AD3d 776, 777, 945 N.Y.S.2d 281 (1st Dept 2012). Nevertheless, the Appellate Division granted Storman leave to clarify the Judgment to allow the Supreme Court the opportunity to clarify its order.

Justice Shirley Werner Kornreich, in a rare display of judicial anger, ruled that “By April 5, 2013, DOE shall do the following, pursuant to Article 21H of the CBA: (1) remove all references to the underlying false accusations from Storman’s personnel file; and (2) restore back pay, with interest, that Storman did not receive on account of the underlying false accusations, including any seniority salary adjustments and lost pension benefits. If a dispute arises between the parties before such date, the parties are to promptly contact the Court, and if the parties cannot agree on the proper amount of back pay owed to Storman, Storman is granted leave to move to have such calculation referred to a Special Referee to hear and report. Finally, if DOE fails to comply with this Order in good faith, which, at a minimum, shall include an in-person meet and confer with Storman about back pay, Storman has leave to move for contempt, as DOE can no longer maintain that its mandate is not clear and unequivocal.”

In the Matter of Glenn Storman, Petitioner, against New York City Department of Education, Respondent. 113652/2008, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2013 N.Y. Misc. LEXIS 12; 2013 NY Slip Op 50007U, January 3, 2013, Decided

Will the Court uphold a U-rating even though no formal observations were in the file and no opportunity for a pre-observation conference was ever offered?

Yes. Mitchell Cohn appealed from the denial of his U-rating appeal on the basis that the 3 U rated lessons were insufficient to support the unsatisfactory rating. Cohn argued that the observations were not formal and were in effect unannounced walk-throughs for which he was never offered a chance for a pre-observation conference, something he alleged was guaranteed to him under both the UFT contract and the Ratings Manual for Pedagogues.

The Supreme Court disagreed. Justice Alice Schlesinger ruled that the technical violation did not support the Court’s involvement in reversing a matter better left to the discretion of the Department of Education. The Appellate Division affirmed the decision and wrote, “While petitioner complains that he did not receive pre-observation conferences prior to every classroom observation, he has not demonstrated that the U-rating was made in violation of lawful procedure or any substantial right.”

Matter of Cohn v Board of Educ. of the City Sch. Dist. of the City of N.Y. 2013 NY Slip Op 00418 Decided on January 29, 2013 Appellate Division, First Department.

MITCHELL COHN, Petitioner, Index No. 110409/10 -against- BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK; and District of the City of New York, JOEL I, KLEIN as Chancellor of the City School, Respondents,

Can a New York City Teaching Fellow be terminated solely for failure to complete a pre-service training period?

Yes. Steve Loren was accepted into the Teaching Fellows program in April 2012 and was terminated just two weeks prior to his obtaining his transitional B Certificate on July 31, 2012. The Teaching Fellows program provides an alternative path to a teaching credential and Loren, based on the program literature, believed he could only be terminated for attendance or some egregious conduct while training. He maintained that unsatisfactory field performance was an insufficient ground for his termination.

The DOE countered that Loren was involved in a questionable activity of video-taping a class he was teaching with his cellphone and besides as long as the DOE was not arbitrary it could dismiss a pre-service Teaching Fellow in the same way it could remove a probationer. The DOE claimed that its reasons for Lorens’ termination were not arbitrary and moved to dismiss Lorens’ petition.

Justice Joan B Lobis agreed with the DOE. The Court ruled that the NYCTF Field Guide and other manuals did not creat a contractual right and did not establish that the DOE’s determination was made in bad faith.

In the Matter of the Application of STEVE LOREN, Petitioner, For a Judgment  Pursuant to Article 78 of the Civil Practice Laws and Rules, -againstTHE NEW YORK CITY DEPARTMENT OF EDUCATION, and DENNIS WALCOTT, As CHANCELLOR OF THE NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents. Index No. 401945/12 SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2012 N.Y. Misc. LEXIS 5936; 2012 NY Slip Op 33093U, December 20, 2012, Decided

Will the Court uphold an arbitrator’s imposed fine for engaging in protected 1st Amendment free speech activity?

No. Richard Santer, a teacher employed by the East Meadow Union Free School District engaged, with other teachers, in a peaceful protest while negotiations for a new contract were underway. The protest involved picketing in front of a middle school which included parking their cars in front of the school and display their picket signs in their cars. This area was also used by the middle school’s students’ parents to drop off their children for school.

None of the teachers blocked either of two curb cuts in front of the school but according to the principal the protesting teachers’ parking caused traffic to become congested creating a safety concern for students being dropped off in the middle of the street.

No school official asked the teachers to move their cars during the protest, and no child was injured.

The school district brought disciplinary charges against several teachers under 3020-a and after an arbitration Santer was fined $500. His appeal was denied in Supreme Court.

On appeal to the Appellate Division Santer prevailed. The Appellate Division found that Santer’s free speech rights were violated and by bringing him up on disciplinary charges the school district, in effect, chilled free speech rights of all teachers concerning a matter of public concern.

N.B. In a case brought to the same Appellate Division, but a different panel, concerning the same incident but with a different teacher the Court held that the arbitrator was reasonable in upholding the discipline. In that case, Matter of Trupiano v Board of Educ. of E. Meadow Union Free School Dist., 89 AD3d 1030, 933 N.Y.S.2d 106) the teacher received a counseling memo. The Santer Court reasoned that Trupiano was not controlling since Trupiano did not raise a First Amendment claim in her petition.

Another teacher who was fined $1000 for the same incident was denied her appeal at the Supreme Court level. The Court there found that she engaged in an activity that endangered student safety. She did not appeal further. Barbara Lucia, Petitioner, against Board of Education of the East Meadow Union Free School District, Respondent. 32 Misc. 3d 1208A; 932 N.Y.S.2d 761; 2011 N.Y. Misc. LEXIS 3178; 2011 NY Slip Op 51210U (Nassau Sup.Ct., 2011)

In the Matter of Richard Santer, appellant, v Board of Education of East Meadow Union Free School District, respondent. (Index No. 1997/10), 2010-11006, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT, 2012 N.Y. App. Div. LEXIS 8698; 2012 NY Slip Op 8750, December 19, 2012, Decided.