Is the DOE vaccine mandate’s provision placing unvaccinated teachers on unpaid leave a form of disciplinary action requiring a hearing pursuant to 3020-a?

No. Christine O’Reilly, a tenured teacher, decided, after the DOE’s vaccine mandate in September 2021, not to provide proof of vaccination nor seek an accomodation. The DOE, pursuant to the arbitration between the UFT and the DOE placed O’Reilly on unpaid leave.

O’Reilly claimed that she was entitled to notice and a hearing pursuant to Education Law 3020-a as her placement on unpaid leave status was a disciplinary action requiring a hearing and that she was effectively terminated.

Justice Arlene Bluth of the New York County Supreme Court denied her petition and wrote that the DOE’s action merely provided a requirement for continued employment and was not disciplinary in nature. Additionally the justice ruled that O’Reilly needed to join the UFT as a necessary party to the proceeding as the arbitration which gave rise to the vaccine mandate involved the Union.

CHRISTINE O’REILLY, Petitioner,
v.
THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, COMMUNITY SCHOOL DISTRICT 24 OF THE BOARD OF EDUCATION OF THE CITY OF NEW YORK, Respondents.

Index No. 161040/2021, Supreme Court, New York County. January 20, 2022.

Will the termination of a 45 year veteran teacher, assigned to the Absent Teacher Reserve, be upheld where she was charged with forging a doctor’s note?

Yes. Cynthia Feaster, a 45 year veteran teacher most recently assigned to the absent teacher reserve, “sustained a slip and fall injury in 2014 which required her to undergo two surgeries that year and subjected her to ongoing pain and mobility issues.”

In 2018 Feaster was served with charges including making false entries in her time and attendance records including false or forged doctors’ notes. She was subsequently terminated, after being given a 3020-a hearing. She filed an Article 75 proceeding in New York County Supreme Court.

According to Justice Edmead, Feaster did not contest the finding of the forged notes but did contest her termination, which she argued was excessive.

The arbitrator had found that Feaster’s action were comparable to stealing and that her actions were so egregious that termination was indicated and no mitigating factor was present.

In affirming the termination, Justice Edmead found that the arbitrator had properly considered all of the factors required by law in making his decision.

CYNTHIA FEASTER, Plaintiff, v. THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK Defendant. Supreme Court, New York County. January 21, 2021.

Will the claim that a teacher had child care issues and her principal evidenced bias cause a probation termination to be reversed?

No. Although she had a prior satisfactory teaching history before she went off payroll, the appellant in this matter was placed on probation. While on probation she had observation and attendance issues. The teacher claimed that her own child care issues and her principal’s animus toward her, due to the child care issues, were the source of her poor observations. She also sought to withdraw her previous resignation which she found out before her termination that she did not need to be on probation.

The court below found that the court challenge to the teacher’s attempt to withdraw her previous resignation was untimely. Additionally the DOE’s termination was not based on any prejudice or bias and was not made in bad faith as the need of the orderly running of the school outweighed her child care issue.

The Appellate Division, First Department, affirmed.

This case must be seen in the context of the procedural position it occured. While discrimination can and is often the basis of bad faith in this instance the requirement that a teacher not be excessively absent will not be lessened, necessarily, due to child care issues. Had the teacher filed her proceeding challenging her prior resignation she might not have been terminated as she would have her tenure where termination is legally more difficult. Tenure restoration after resignation can generally be restored within 5 years. See Chancellor’s Regulation C-205.

In the Matter of Bababunmi Adelana, Appellant, v. New York City Department of Education et al., Respondents. 194 A.D.3d 463 (2021)143 N.Y.S.3d 5402021 NY Slip Op 02976, Appellate Division of the Supreme Court of New York, First Department. Decided May 11, 2021.

Are teachers, hired prior to 2015 and on probation, and completed 3 years of service in different schools, entitled to due process termination hearings?

No. Probationary teacher, Ivy H. Lin, taught at New Utrecht High School during the 2012-13 school year. In January 2013 while monitoring the Regents Exam she witnessed and reported a teacher who was helping a student while the student was taking the exam. Lin was observed both prior to and after this incident and received unsatisfactory observations and two letters to her file. At the time of her three year probationary period Lin was terminated. She was given a hearing by a review panel which, by split decision, affirmed the termination. The Collective Bargaining Agreement, in effect at the time, provided for full due process hearings for teachers who served in a school for the three years. See Article 21 Section D(2).

This provision provided that “[t]eachers on probation who have completed at least three years of service on regular appointment in the school shall be entitled, with respect to the discontinuance of their probationary service, to the same review procedures as are established for tenured teachers under” Education Law § 3020-a.

Lin commenced a proceeding challenging her termination based upon retaliation as well as the denial of a hearing pursuant to the CBA. The Court found that her argument was unpersuasive. The four unsatisfactory observations and two letters of misconduct were sufficient to support the DOE’s position that her termination was not retaliatory. Also, since Lin had taught in two different schools during her three years of teaching the CBA provision did not apply since the CBA wording states “in the school,” which, according to the Court, meant the same school.

In the Matter of Ivy H. Lin, Appellant-Respondent, v. New York City Department of Education et al., Respondents-Appellants. 191 A.D.3d 431 (2021)Appellate Division of the Supreme Court of New York, First Department. February 4, 2021.

Can DOE employees seeking to enjoin the vaccine mandate obtain a temporary injunction pending the trial of their complaint?

No. On August 24, 2021 the DOE mandated that all employees obtain at least the first shot of the Covid-19 vaccine by September 27th.

On September 10 the UFT filed a Declaration of Impasse with the Public Employment Relations Board over the impact of the vaccine mandate. The matter was submitted to an arbitrator and an appeal mechanism was ordered which included a process to challenge a refusal to vaccine on religious and medical grounds and request accomodations requests. (see the decision, cited below, for a summary of the arbitration award and subsequent agreements which implemented the award.)

On November 19, 83 DOE employees filed an action in Federal District Court claiming that the DOE and the UFT conspired to deprive them of their procedural due process rights including being disciplined without going through the 3020-a hearing process.

In order to obtain a temporary injunction the Court wrote that the DOE employees must show a clear or substantial likelihood of success on the merits and that the employees cannot be made whole should they prevail in their action.

The Court found that the arbitration award, now part of the collective bargaining agreement contains procedural safeguards which include a review process. As far as the irreparable harm the court wrote, “the Court does not dispute that a loss of income is a hardship. The loss of one’s wages, particularly for those with financial commitments and dependents, is a real, tangible harm. In order to demonstrate an entitlement to injunctive relief, Plaintiffs may not simply identify a general loss. Instead, Plaintiffs must identify a harm for which available legal remedies and monetary damages would be inadequate.”

Nicole BROECKER, et al, Plaintiffs, v. New York City Department of Education, City of New York, Meisha Porter, in her official and individual capacities, United Federation of Teachers, Local 2, American Federation of Teachers, AFL-CIO, Michael Mulgrew, in his official and individual capacities, John Doe #1-10, in their official and individual capacities, and Jane Doe #1-10 in their official and individual capacities, Defendants. United States District Court, E.D. New York. November 24, 2021.

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Will an arbitrator’s decision to accept a letter from a charged teacher stating she will not seek employment as a teacher in the school district be accepted so that no 3020-a hearing will be held?

Yes. While a teacher’s charges were pending she submitted an “irrevocable Letter of Resignation for the purposes of retirement” and that she “[had] no plans to, nor [would she] apply to work [for petitioner] in the future.” She added that her retirement application had been accepted by the New York State Teacher’s Retirement System and that she “will not request or otherwise act in any manner to withdraw [her] resignation.”

The arbitrator accepted the letter and submitted an award dismissing the case, finding that a hearing was not required.

The Syracuse school district sought to have the arbitrator’s award vacated. The Appellate Division, Fourth Department, confirmed the award and accepted the resignation without a disciplinary hearing.

Rationale: While there were some procedural wrinkles in this case, there is ample precedent for accepting an irrevocable letter of resignation. Clearly the school district wanted to go to hearing to allow the State to bar the teacher from ever teaching again. The Court, while specifically finding that this was not necessary, was satisfied that there are adequate safeguards against this from happening.

SYRACUSE CITY SCHOOL DISTRICT, Petitioner-Appellant, and
ROCHELLE GILBERT (RAY), Respondent-Respondent.

Appellate Division of the Supreme Court of New York, Fourth Department.Decided March 26, 2021

May an action alleging that the State’s teacher disciplinary rules and layoff provisions deprive students of a quality education survive motions to dismiss and be permitted to go to trial?

Yes. The Appellate Division, Second Department, on an appeal from a ruling from the Staten Island Supreme Court, has determined that an action can go forward that may test the constitutionality of the State’s disciplinary system and layoff provisions for teachers.

Mymoena Davids aka Mona Davids supported by groups opposed to teacher tenure laws brought an action against the State alleging that ineffective teachers could not be properly dismissed and layoff provisions protected ineffective teachers causing irreversible harm to her children. (A similar action was brought in Albany County and joined with Ms. Davids case in Richmond County.)

Justice Philip Minardo of the Richmond County Supreme Court ruled that, on a motion to dismiss, the plaintiffs case could go forward despite a motion to dismiss based upon the changed statutory scheme and other arguments.

The Appellate Division affirmed. The appellate justices ruled, without much argument, that it was too early to dismiss the case as the plaintiffs’ concerns could, if proven, make out a case that their constitutionally protected right of a sound basic education was jeopardized by the current statutory scheme. While not determining the ultimate issue that Appellate Court found that a trial court could determine that the tenure and layoff provisions for teachers interfered with this constitutional right.

Davids v. State, __AD3d__, (2d Dept., March 28, 2018)

Can a per diem teacher maintain a pregnancy-related discrimination action when she alleges that the DOE did not assign her substitute teaching positions for being pregnant?

Yes. In March 2008, plaintiff obtained her substitute teacher’s certificate from the DOE. From September 2008 through December 2008, she worked as a substitute teacher in various schools in Queens. In January 2009, plaintiff interviewed at a different school and at the end of the interview, the principal informed her that she would be used as a substitute teacher at P.S. 25. In February 2009, plaintiff received her first substitute teaching assignment at P.S. 25. While at P.S. 25, plaintiff and other substitute teachers there received substitute teaching assignments in one of three ways: (1) through a fully automated platform called SubCentral, (2) by Wilson directly asking a substitute teacher to fill in, and (3) by a full-time teacher asking a substitute teacher to fill in.

From February 2009 to June 2010, plaintiff worked as a substitute teacher at P.S. 25 on 171 days. In June 2010, she discovered that she was pregnant. and in July 2010, her pregnancy began to “show.” (After summer break in July and August 2010, school started again in September 2010.

On September 16, 2010, Cameron emailed the principal to inform him that she had renewed her substitute teaching license. By October 26, 2010, however, plaintiff still had not been contacted for any substitute teaching assignments at P.S. 25. On that day, plaintiff visited P.S. 25 in-person and went to the principal’s office to speak directly with him. According to the plaintiff, the principal informed her at that time that he  had heard she was pregnant, and had not contacted her for teaching assignments because the school did not want to be liable for any injury to plaintiff.

The next day, October 27, Cameron received an email from Wilson asking Cameron to serve as a substitute teacher on October 28, 2010. On October 28 and 29, 2010, Cameron in fact served as a substitute teacher at P.S. 25.

According to plaintiff, on October 29, 2010, a first grade teacher at P.S. 25 asked plaintiff to substitute for her on November 1, 2010. Although plaintiff accepted the assignment, the teacher called plaintiff the next day and canceled. According to plaintiff, the teacher explained during that call that the principal had told her not to use plaintiff as a substitute because she was pregnant.

The DOE moved for summary judgment. Judge Kimba Wood from the Federal District Court, Southern District, denied the motion holding that a reasonable jury could find that the DOE unlawfully discriminated against plaintiff for denying her substitute teaching assignments for being pregnant. The trial is tentatively scheduled for May 7, 2018.

YOLLIA CAMERON, Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION, ANITA M. COLEY, in her official capacity and individually, and ESTHER WALKER WILSON, in her official capacity and individually, Defendants.
No. 15-CV-9900 (KMW). United States District Court, S.D. New York. February 21, 2018.

Can the DOE use the finding in a 3020-a hearing to preclude a teacher’s discrimination claim?

No. Jeffrey Giove, a speech teacher at the Marsh Avenue Expeditionary School in Staten Island, who identifies as gay, claimed he was subject to a hostile work environment when co-workers used abusive language regarding his sexual orientation. When he complained to the school’s administration he was given negative evaluations and served with disciplinary charges.

The Hearing Officer found Giove guilty, after the hearing, and fined him $3,000.

Prior to the 3020-a hearing Giove filed a discrimination claim in Federal District Court. In a motion brought by the DOE just seven weeks prior to the scheduled trial the defendants sought to amend their answer to include a claim for collateral estoppel which, they hoped, would cause the dismissal of Giove’s discrimination claims.

Under the legal doctrine of collateral estoppel litigants are barred from relitigating issues where the issues were previously decided or could have been raised in a prior proceeding. The DOE claimed that Giove’s discrimination and retaliation claims were actually litigated and decided in the 3020-a hearing.

Judge Pamela Chen of the Eastern District Federal Court decided that the DOE’s argument was without merit. Judge Chen found that the 3020-a hearing issues were dissimilar and a passing reference made by the Hearing Officer in his finding did not collaterally estop Giove from maintaining his discrimination lawsuit.

The Court ruled that the case go to trial without the defense of collateral estoppel.

JEFFREY GIOVE, Plaintiff, v. THE CITY OF NEW YORK, et. al., Defendants.
No. 15-CV-02998 (PKC) (VMS). United States District Court, E.D. New York. February 5, 2018.

Will the termination of a probationary teacher, accused of corporal punishment for pulling an autistic student back into her classroom, be upheld?

Yes. Petitioner, a probationary special education teacher, while teaching her class, observed an autistic student leave the room. When she tried to verbally instruct him to return and he refused she went into the hall and physically brought him back into the classroom. The incident was witnessed by two teachers and caught on video.

The principal reported the incident to OSI who referred the matter back for investigation by the principal. After her investigation the principal found that the petitioner had used excessive corporal punishment. Petitioner was subsequently terminated from her teaching position.

Upon appeal to the Supreme Court, New York County, found that petitioner’s actions were not violative of the Chancellor’s Regulations as the physical force used was only used as a last resort and was not punitive. The Court reversed the DOE’s termination and ordered her back to her position.

The DOE appealed to the First Department. The First Department reversed the lower court’s reinstatement order and affirmed the DOE’s decision to terminate the petitioner. The First Department found that, “Petitioner contends that respondent erred in concluding that her actions — taking hold of the arm of a non-verbal, special-needs student as he lay on the floor writhing and physically dragging him approximately eight feet across the hall to the classroom he had exited without permission — constituted prohibited corporal punishment. This contention is insufficient to establish that respondent reached its conclusion in bad faith or for an impermissible reason [citations omitted].”

IN RE STEPHANIE KRILOFF, Petitioner-Respondent, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent-Appellant. 4523, 101344/15. Appellate Division of the Supreme Court of New York, First Department. Decided September 28, 2017. 2017 NY Slip Op 06713