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)

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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

Is a teacher’s complaint about cheating on the Regents examination protected by the free speech provisions of the First Amendment?

No. An Earth Science teacher observed that a fellow teacher’s students achieved perfect score on the lab portions of the Earth Science Regents and suspected cheating. He complained to his immediate supervisors and when they failed to act he notified the State about the suspected cheating.

After this report the teacher claims he was rated unsatisfactory and was removed as chairman of the the Math and Science Department in his school.

He commenced an action in Federal District Court that he was retaliated for making the complaint and that the complaint was speech protected by the First Amendment. The District Court dismissed his First Amendment claimed and he appealed to the Second Circuit.

The Second Circuit affirmed the District Court’s decision finding, “Only certain types of speech made by government employees are protected by the First Amendment” and that since the complaint was made pursuant to his duties as a teacher he was acting as an employee, not as a citizen, and was thus not protected by the First Amendment.

The Court went further, chilling even citizen speech, by holding, “Even if private citizens can complain to state educational authorities in the same way [the teacher] did, it would not change our conclusion that [the teacher’s] speech was made pursuant to his official duties, and therefore unprotected by the First Amendment.”

PETER COHN, Plaintiff-Appellant, v. THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, THE BOARD OF EDUCATION OF THE CITY OF NEW YORK, ERIC STRAUSS, individually, and JAMES JOHNSON, individually, Defendants-Appellees. No. 17-517-cv. United States Court of Appeals, Second Circuit. September 20, 2017.

Can an unemployment insurance claimant receive benefits after resigning while charges are pending?

Yes. Normally when a claimant is terminated for cause they are disqualified from receiving Unemployment Insurance benefits. Additionally, a claimant who voluntarily leaves their employment without good cause cannot claim benefits.

In a case involving a paralegal working for the City the claimant, while charged with disciplinary infractions entered into a stipulation which waived her right to a hearing, found no wrong doing on her part and was able to obtain a neutral letter of recommendation, resigned her position.

The Unemployment Insurance Appeal Board granted benefits and the Appellate Division, Third Department, affirmed. The Court held, “[a] claimant who voluntarily leaves his or her position in the face of disciplinary charges may qualify for unemployment benefits if the actions did not amount to misconduct” (Matter of Jimenez [New York County Dist. Attorney’s Off.—Commissioner of Labor], 20 AD3d 843, 843 [2005] [internal quotation marks and citation omitted].

The claimant claimed that she was subjected to bullying and harassment and the determination that this was credible would not be disturbed on appeal.

In the Matter of the Claim of YOLANDA COHEN, Respondent. NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES, Appellant. COMMISSIONER OF LABOR, Respondent. Appellate Division of the Supreme Court of New York, Third Department. Decided July 27, 2017. 2017 NY Slip Op 05885

Has a teacher violated City Conflicts of Interest rules when, as she was preparing to leave the City system, she removes items she obtained through Donors Choose for use in another school?

Yes. As a teacher at P.S. 9 in Manhattan respondent obtained computer and other equipment from Donors Choose, an organization that solicited the equipment from public donations.

“As she was preparing to leave DOE for a new teaching position in Westchester County, despite being told by her DOE Principal that the donated equipment was the property of DOE and not hers to take, she removed approximately $10,000 worth of the donated DOE equipment, including multiple iPads, iPods, MacBook laptops, printers, robots, and Nook e-readers, to use at her new job.”

Respondent returned the items and since she was going to use the items for an educational purpose in a school in Westchester the COIB agreed to impose a fine of $6,000. Respondent agreed to fine.

IN THE MATTER OF ALISON KAN, NEW YORK CITY CONFLICTS OF INTEREST BOARD, COIB CASE NO. 2016-846, JULY 19, 2017