Can teacher discrimination cases reveal issues other than discrimination in our education system?

Yes. Editor’s note:  While federal cases are generally reported here many teacher discrimination cases brought in Federal Court are not since most are very fact dependent and provide little precedential value. This is not to diminish the importance of these cases. The following case is reported due the statement by the Judge, a respected Judge on senior status, Jack Weinstein in the Eastern District, in his introduction in dismissing the teacher’s discrimination case. The full case is linked at the bottom of this post.

Judge Weinstein

…Essentially this case — as do many of our teacher discrimination cases — reveals fundamental stresses in our public education system: a good faith attempt by an incoming principal to improve the quality of teaching in a poorly performing school, clashing with experienced, devoted teachers resenting criticism of their teaching methods and the increased discipline and changes sought to be imposed on them. Here, if there was any discrimination — and there appears to be none — it was not age-based, as alleged. The matter is resolved in favor of defendant on the basis of the relevant statute of limitations and the failure to take advantage of appropriate administrative remedies.

Plaintiff sues her former employer, the Board of Education of the City School District of the City of New York (“DOE”) for discrimination against her on the basis of her age, in violation of federal, state, and city law. She also asserts claims of negligent hiring and improper supervision by her principal.

Defendant moves for summary judgment on all claims. The motion is granted….

MARY HARRIS, Plaintiff, v. BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, a/k/a “The New York City Department of Education”, Defendant. No. 16-CV-3809. United States District Court, E.D. New York. February 2, 2017.

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Will a U-rating be sustained where the failure to follow the UFT contract for observation practices was never raised at the U-rating appeal?

Yes. Petitioner, a middle school tenured teacher in the Bronx, received a U-rating after an interim principal was appointed in his school. While he was able to transfer to another school he sought to reverse the U-rating and appealed the matter. At the U-rating appeal neither petitioner nor his UFT representative raised the issue that he was observed only once during the rating period.

On appeal to the Supreme Court Justice Doris Ling-Cohan annulled the U-rating and ordered that it be replace with an “S” rating. The City appealed and the Appellate Division, First Department reversed.

The Appellate Division wrote, “Petitioner failed to preserve the issue of whether the U-rating should have been annulled based on an alleged procedural deficiency or deviation from the collective bargaining agreement negotiated by his union regarding observation practices, since he never raised the issue at the administrative level.”

IN RE JEROME RAZOR, Petitioner-Respondent, v. CITY OF NEW YORK, ET AL., Respondents-Appellants. 3013, 101079/13.2017 NY Slip Op 00932 Appellate Division of the Supreme Court of New York, First Department. Decided February 7, 2017.

Will a probationary dismissal be sustained if the probationer fails to sustain her burden that bad faith exists or that the termination was for an improper reason?

Yes. Petitioner, a probationary teacher, was dismissed based upon an investigation finding that she had neglected her duties and falsified records. She brought an Article 78 proceeding and Justice Alice Schlesinger of the Supreme Court, New York County reinstated her.

The City appealed and argued that petitioner had failed to exhaust the grievance procedure and that there was a sufficient basis to dismiss the petitioner since probationers can be dismissed for “almost any reason, or for no reason at all,” as long as it is not “in bad faith or for an improper or impermissible reason.”

The Appellate Division, First Department agreed finding that “[T]he burden falls squarely on the petitioner to demonstrate, by competent proof, that a substantial issue of bad faith exists, or that the termination was for an improper or impermissible reason, and mere speculation, or bald, conclusory allegations are insufficient to shoulder this burden.”

While there was a delay in the issuance of the investigator’s report, the Court held that petitioner had been given timely notice of the allegations.

IN RE ANNA FINKELSTEIN, Petitioner-Respondent, v. BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, ET AL., Respondents-Appellants. 3959, 101540/14. 2017 NY Slip Op 03850 Appellate Division of the Supreme Court of New York, First Department. Decided May 11, 2017.

Can hearsay be the basis for a 3020-a finding that terminates a 28 year tenured teacher?

Yes. Petitioner, a 28 year special education teacher, was terminated after charges were brought against him for gross insubordination by yelling at, menacing and threatening his superiors, leaving students without supervision by a licensed teacher and other charges. Petitioner argued that the principal brought the charges solely in retaliation for petitioner’s reporting special education violations to the State and that there was no official policy against leaving students with a paraprofessional. He also claimed that the Hearing Officer’s decision was based entirely on hearsay and cannot support a determination that the charges against were sustained.

In dismissing the petition the Court found that, indeed, a 3020-a hearing founded upon hearsay can be the basis of its determination. Petitioner’s claim that there was no policy against leaving students with a paraprofessional was unavailing since he was “well aware of the rule that it is against Department and school policy to leave children without supervision of a licensed teacher as he had been disciplined before for the same infraction.”

Finally the Court sustained the Hearing Officer’s determination of termination since, as the Hearing Officer concluded, petitioner “does not think he did anything wrong. Additional training or remediation is a waste of time.”

JEFFREY LOSAK, Petitioner, v. THE CITY OF NEW YORK; NEW YORK CITY DEPARTMENT OF EDUCATION; CARMEN FARINA, CHANCELLOR of NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents. To Vacate a Decision of a Hearing Officer Pursuant to Education law Section 3020-a and CPLR 7511. Docket No. 654452/2016, Motion Seq. No. 001. 2017 NY Slip Op 30964(U) Supreme Court, New York County. April 28, 2017. Filed May 1, 2017.

Can the DOE prevent a vendor from access to its schools without a full evidentiary hearing?

Yes. Petitioners, school photography vendors, sought reinstatement as a DOE vendor in FAMIS after they claimed that the DOE arbitrarily declared them to be a “non-responsible vendor.”

The president of the photography vendor admitted that, “he had continued to send a certain photographer to work in DOE schools after becoming aware that the photographer had been accused of touching a student’s breast five years earlier and had pleaded guilty to the charge of endangering the welfare of a child.”

The petitioners argued that the DOE did not provide them with a hearing or notice of its designation as a non-responsible vendor in violation of their due process rights.

The Court held that the DOE was not required to provide a full evidentiary hearing since the vendor had no property interest in any public contract. It also recognized the DOE’s obligations to provide a safe place for students when evaluating the responsibility of its vendors.

EDWARD M. THORNTON and THORNTON’S CLASSIC STUDIO, Petitioners/Plaintiffs, v. NEW YORK CITY DEPARTMENT OF EDUCATION, DAVID N. ROSS, and JAMILLA SIMMS, Respondents/Defendants.Docket No. 156571/2016, Motion Seq. No. 001. 2017 NY Slip Op 30971(U)Supreme Court, New York County.Motion May 9, 2017.Filed May 10, 2017.

Can a school district withhold FOIL email disclosure without an in camera review?

No. The Connetquot (Suffolk County) Teachers’ Association filed to Freedom of Information Law (FOIL) requests for two categories of emails between the District Superintendent and the STEM chairperson and an assistant superintendent concerning elementary science courses and under enrollment of the AP Chemistry course.

The district either refused to turn over certain records or supplied redacted records claiming the intra-agency exemption and federal student privacy concerns in the production of the records. Under the inter-agency exemption public entities are exempt from disclosure of records which reflect the deliberative process in policy making.

The Court, after finding that the District’s support of its position was not specific enough ordered the production of records, in camera (by the Court in its chambers), to determine if the records should be disclosed. The Court wrote, “this Court has been deprived [of] the relevant and material information to make a reasoned judgment on whether the material sought to be protected is truly inter-agency or intra-agency or otherwise pure personal information properly withheld under the FOIL statute. Without this information, this Court would only be speculating whether respondent has properly discharged its duty under FOIL.”

In the Matter of the Application of ANTHONY F. FELICIO, JR., as President of the Connetquot Teacher’s Association, Inc., Petitioner, For Relief Pursuant to Article 78 of the New York Civil Practice Law and Rules v. CONNETQUOT CENTRAL SCHOOL DISTRICT OF ISLIP, Respondent. Docket No. 08339-2016, Motion Seq. No. 001 Mot D. Supreme Court, Suffolk County. 2017 NY Slip Op 31052(U) Motion Submit June 1, 2016. May 3, 2017.

Will the termination of a tenured teacher who has a 13 year unblemished record be reversed after a finding that she escalated a student confrontation?

No. Petitioner was charged with escalating a confrontation with a student by yelling expletives and threatening him with violence. The student was removed and later that day petitioner threatened the student with having her husband, an armed police officer, kill him.

The following day petitioner brought her husband to school but the student was not present as he was suspended. The Hearing Officer, despite reviewing petitioner’s 13 year unblemished record found the incident so egregious since it “ conveyed a message to other students that she could not rely upon school authorities to control threats of violence against a teacher by a student.”

Justice Lynn Kotler and the Appellate Division, First Department agreed.

The Appellate Division added, in their unanimous opinion, that “Petitioner also showed no remorse nor appreciation for the seriousness of her conduct  to support a finding that she would not engage in similar conduct if faced with such circumstances in the future. Petitioner declined to take the stand, and thus, the hearing officer was permitted to draw the strongest inference against her permitted by the record.” [citations omitted]

IN RE SUZANNE VARRIALE, Petitioner-Appellant, v. CITY OF NEW YORK, ET AL., Respondents-Respondents. 3572, 652189/14., 2017 NY Slip Op 02513.  Appellate Division of the Supreme Court of New York, First Department. Decided March 30, 2017

 

Was a tenured teacher’s conduct so egregious that, despite his 28 year unblemished record, his termination will stand?

Yes. Petitioner, a tenured teacher assigned to a co-teaching position for special education pre-k students was charged with several specifications involving forcibly restraining students, rolling a student off of a cot, inappropriately grabbing a student, spoke out during a professional development session, threatened a student with calling the police to put him in jail and that he received 10 disciplinary letters to his file.

While petitioner disputed the allegations he argued that the penalty of termination was not indicated since he had a 28 year record without a disciplinary history. The Hearing Officer disagreed and terminated him.

Upon appeal Justice Lynn Kotler affirmed the termination. Justice Kotler wrote, “petitioner’s length of employment does not outweigh the egregious nature of his conduct which was not merely an isolated incident but rather, can fairly be characterized as a pattern of irresponsibility, disregard, and poor judgment.”

PETER COHEN, v. THE CITY OF NEW YORK et al. 2017 NY Slip Op 30323(U), Docket No. 651730/16, Mot. Seq. No. 001. Supreme Court, New York County. February 17, 2017.

Does a teacher’s conduct shock the conscience when the proven allegations amount to lax bookkeeping rather than a venial scheme?

No. Petitioner, a special education teacher assigned to home instruction in Far Rockaway was terminated, after a 3020-a hearing, for submitting inaccurate timesheets for sessions she did not conduct in wake of Hurricane Sandy. Petitioner admitted to submitting inaccurate timesheets but explained she had prefilled the timesheet with a student whose home was destroyed and taught a different student.

The Appellate Division, First Department held that termination “ is disproportionate to the level of petitioner’s misconduct and exceeds the standards that society requires to be applied to this offense.” The Court further observed that petitioner received no benefit for her inaccuracies and that the DOE offered no clear protocol to deal with home instructed students who were negatively impacted by the hurricane.

Justice Andrias wrote a dissent in which he opined that there was more than enough evidence of petitioner’s fraudulent intent especially since petitioner had failed to notify her supervisor of the child’s move to Brooklyn. Additionally Justice Andrias observed that this was not a single lapse of judgment but showed that for over two months petitioner failed to provide the affected student with needed services.

IN RE AMIRA BEATTY, Petitioner-Appellant, v. CITY OF NEW YORK, ET AL., Respondents-Respondents. 3043, 652103/14. 2017 NY Slip Op 01628, Appellate Division of the Supreme Court of New York, First Department. Decided March 2, 2017.

Can a 3020-a hearing determination become the basis for the denial of unemployment insurance?

Yes. Claimant, an ATR who had been dismissed for engaging in misconduct, conduct unbecoming and/or prejudicial, insubordination and violating DOE rules filed for unemployment insurance. The Unemployment Insurance Appeal Board denied the claim and the Appellate Division, Third Department agreed.

The Court found that claimant was given a full and fair opportunity to defend herself at the 3020-a hearing and was represented by counsel. The Unemployment Board’s reliance on the facts of this hearing was proper and claimant was collaterally estopped from relitigating the matter.

In the Matter of the VERONICA TELEMAQUE, Appellant. COMMISSIONER OF LABOR, Respondent. 2017 NY Slip Op 02109 Appellate Division of the Supreme Court of New York, Third Department.  Decided March 23, 2017.