Does the DOE’s failure to follow its own handbook for rating teachers render a U-rating invalid?

Yes. Carmen Applewhite, a special education teacher sought to annul her 2007 to 2008 U rating which she claimed was based on six unsigned disciplinary letters to her file. The DOE, without following its own procedures, affirmed her U-rating and Applewhite appealed. Justice Joan B. Lobis of the New York County Supreme Court dismissed the petition finding that a violation of the Ratings Handbook was not the equivalent of a violation of an agency’s own rules. Applewhite appealed and the First Department reversed finding that the DOE’s determination to sustain Applewhite’s U-rating was not rationally based on administrative findings.

Matter of Applewhite v. Board of Education, 2014 NY Slip Op 01501, 1st Dept., March 6, 2014.

Does the termination of a tenured teacher for continually refusing to accept teaching assignments “shock the conscience?”

No. Lillie Leon, 80, has been a DOE employee for 34 years and has taught at P.S. 117 in the Bronx since 2001.Leon claimed that a Medical Bureau approved disability prevented her from “bathrooming” her students. The Court found, without much discussion, her constant refusal to accept teaching assignments rendered her actions as insubordination and the finding of the arbitrator to terminate her was supported by the hearing record. Justice Huff dismissed her petition and the Appellate Division, 1st Department agreed.

Matter of Leon v. Department of Education, 2014 NY Slip Op 01505 (1st Dept, March 6, 2014)

Must a teacher after receiving a U-rating exhaust the grievance procedure before commencing a proceeding in Court?

No. Corine Liverpool, a tenured middle school science teacher at J.H.S. 78 in Brooklyn was U-rated for the 2011-2012 academic year. Liverpool challenged the U-rating and was granted a hearing from which she appealed. Her appeal was denied.

Liverpool commenced an Article 78 proceeding in Supreme Court to challenge her U-rating and the DOE moved to dismiss because she did not utilize the grievance procedure as outlined in the Teachers’ Contract. Justice Doris Ling-Cohan of the New York County Supreme Court found that Article 8(J) of the Contract specifically permits a teacher to appeal a U-rating without filing a grievance and denied the DOE’s motion to dismiss. The DOE was ordered to answer the petition after which a decision on the merits of the petition will be made.

Corine Liverpool v. Board of Education, (Sup.Ct., Ling-Cohan, J.) March 6, 2014

Can a teacher, fined after hearing for $7500, maintain a proceeding to show that the behavior complained of has no bearing on his being a teacher?

Yes. Edgar Ortiz, a tenured teacher, was fined $7500 after arbitrator, Joshua M. Javits, found two specifications against him for his failure to notify the DOE about his arrest for solicitation of a prostitute and for committing the offense. Ortiz had been arrested for “paying another person money and/or compensation in exchange for a sexual act.”  He pleaded guilty to disorderly conduct in the criminal case.

Ortiz claimed that the fine shocked the conscience and that the arrest took place on a Sunday morning near no school and thus lacked the connectedness to his role as a teacher to be disciplined.

The DOE moved to dismiss Ortiz’s petition and Justice Carol E. Huff of the New York Supreme Court denied their request and ordered the DOE to answer Ortiz’s petition. Huff found that Ortiz has established a claim that the arbitrator’s ruling in connection with the facts of the arrest lacked a rational basis in law and was arbitrary and capricious.

Ortiz v. DOE (Sup.Ct., NY) January 6, 2014

Will a discrimination complaint, drafted by an attorney on behalf of a paraprofessional, that a court finds to contain numerous errors and insufficiencies, be dismissed?

Yes. Barry Maynard, a paraprofessional at John F. Kennedy High School, commenced a discrimination action against the DOE and several named defendants including the principal, Lisa Luft. Maynard alleged, in his complaint, that after serving several years of satisfactory service “a female student told her guidance counselor that he had been harassing her and another student by asking the girls to spend time with him away from school.” During the investigation an OSI investigator allegedly told Maynard that “since Obama became President, you people think you can get away with anything.”

The investigation resulted in Maynard being dismissed.

The DOE and City moved to dismiss the complaint and the Court agreed.

The Court wrote, “Plaintiff’s complaint is no model of clarity. Plaintiff is represented by counsel, but I have received complaints from pro se plaintiffs that are more “professional.” For example, the Complaint in multiple instances describes Plaintiff–a male–with female pronouns. It refers to a gender discrimination claim, although Plaintiff only advances a race discrimination claim. I can read it clearly enough, however, to ascertain that it should be dismissed.”

The Court found numerous pleading errors and insufficiencies and dismissed the claim in its entirety.

Maynard v City of New York

Update : Does the Appellate Division agree with the lower court that the Special Commissioner of Investigation has no power to force a tenured teacher to testify about a matter covered by 3020-a?

Yes. In a post one year ago Supreme Court Justice Carol Huff denied the Special Commissioner of Investigation’s application to force a tenured teacher to give testimony in a matter covered under the protections of 3020-a, the teacher’s right to an adversarial hearing. The Appellate Division has now affirmed. Since testifying before the SCI would be admissable at a 3020-a hearing, ” forcing a tenured teacher or assistant principal to testify in an SCI proceeding is tantamount to forcing that employee to testify in a DOE disciplinary proceeding, which directly conflicts with state law, Education Law 3020(3)(c)(i).”

Condon v. Sabater (App. Div., 1st Dept.)

Will an arbitrator’s finding that a teacher’s statement to a student such as “hey, baby,” “how you doing baby?,” and “you good, baby?,” violated Chancellor’s Regulations A-421 be upheld?

Yes. Stanley Feldman, a physical education teacher and coach for over 30 years was referred for disciplinary charges by the principal of Boys and Girls High School for allegedly using the word “baby” when referring to a female student in the gym and for showing a student a picture on his cell phone that upset her and was considered sexual harassment.

After a hearing the Arbitrator Richard C. Gwin dismissed the sexual harassment charges but found that Feldman had referred to some of his female students as “baby.” A $1500 fine was imposed.

Feldman appealed. Justice Robert E. Torres found that the award was not arbitrary and capricious. The Appellate Division, First Department agreed. The Appellate Court wrote, “Under the circumstances here, we conclude that the penalty is not so excessive and disproportionate to the offense as to be shocking to one’s sense of fairness.”

Feldman v. DOE (Decided 11.21.13)