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 claim that administrators are firing experienced teachers in order to replace them with younger and less expensive ones overcome a termination based on ineffective ratings?

No. Petitioner, a teacher at a transfer school was rated developing for 2013-14 and 2014-15 and ineffective for 2015-16. After a hearing pursuant to Education Law Section 3020-a the hearing officer found that the teacher “was unable to implement recommendations or otherwise improve his pedagogy” and that “there is no likelihood that further remediation efforts would improve the [petitioner’s] competency.”

Petitioner argued that the hearing officer’s findings were not supported by the evidence adduced at the hearing. He claimed that observations were not returned on time for him to implement suggested changes, that there was a vendetta against him (to which fellow teachers testified on his behalf) and that the nature of his school, a transfer school for students who had been given a second chance to graduate high school after leaving other high schools made the termination decision improper.

The Court upheld the termination finding that its powers to reverse the determination were severely limited. The judge wrote “the Court can only determine whether the Hearing Officer’s decision was arbitrary or capricious and whether the penalty shocks a sense of fairness. The Court cannot conduct a fact-finding hearing to evaluate witness credibility or to assess, as raised before the Hearing Officer here, whether administrators are simply firing experienced teachers in order to replace them with younger (and cheaper) instructors. Those are determinations to be made by the Hearing Officer. Petitioner was provided with an opportunity to contest his evaluations and to offer theories regarding why his administrators should not be viewed as credible.”

DONALD VANTERPOOL, Petitioner, v. CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF EDUCATION, CARMEN FARINA, Respondents. Docket No. 655701/2016, Mot. Seq. 1. Supreme Court, New York County. August 7, 2017

Will the suspension of teacher for speaking with the subject student of a corporeal punishment matter be upheld where the teacher was directed not to have contact with the student however the student was not immediately removed from the class?

No. The petitioner, a tenured teacher in the Roosevelt Union Free School District, was charged with misconduct for allegedly inappropriately putting his hands on a student, inappropriately attempting to grab candy away from the student, and ignoring a directive from the school principal not to discuss the allegations against him with the student, and directing the student to sign a prepared statement recanting the allegations. The charges proceeded to arbitration, resulting in a determination which suspended the teacher.

After the suspension was upheld by the Supreme Court, Nassau County, the teacher appealed to the Appellate Division, Second Department. The Appellate Division found adequate evidence in the record that the teacher inappropriately attempted to grab candy from the student and that he committed conduct unbecoming a teacher and was insubordinate when he directed the student to sign a prepared letter.

However, the Appellate Division found that there was no evidence to support the allegation that the teacher inappropriately put his hands on the student nor that he was insubordinate by discussing the incident with the student because the student was not immediately removed the class.

The matter was remitted to the arbitrator “for reconsideration of the penalty imposed.”

In the Matter of DOUGLAS S. WHITE, Appellant, v. ROOSEVELT UNION FREE SCHOOL DISTRICT BOARD OF EDUCATION, Respondent, NO. 8128/13, 2014-04134, Appellate Division of the Supreme Court of New York, Second Department. Decided February 22, 2017.

Can the argument that a tenured teacher was targeted by her administration for being absent for 43 days due to a documented medical condition be the basis to overturn an arbitrator’s decision to terminate her employment?

No. Petitioner, a first grade and kindergarten teacher at an elementary school in Brooklyn was charged with failing to properly and effectively plan her lessons, that she failed to pick up her students in a timely fashion on a particular day, that she was excessively absent and that she failed to implement help that her supervisors provided to her.

A hearing was conducted before an arbitrator who found “that petitioner was incompetent without reasonable expectation of rehabilitation, [and] determined that the appropriate penalty would be termination of the petitioner’s employment.

On appeal petitioner claimed that, among other points, she was targeted for termination by her administration because she had a documented medical condition and hospitalization that caused her to lose 43 days of work.

Judge Arthur F. Engoron of the Supreme Court, New York County found her argument and that her termination “shocked the conscience” to be unavailing.

Judge Engoron wrote, “This court finds that the penalty of termination was not disproportionate with the misconduct and cannot be said to shock the conscious or any senses of fairness. Thus, the court is constrained to find that the petitioners dismissal, while severe, cannot be vacated or remanded as a matter of law. [citation omitted].

JEAN-BAPTISTE, MARJORIE, Petitioner, v. THE DEPARTMENT OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, Respondent. Docket No. 652683/2016, Sequence No. 001. Supreme Court, New York County. July 21, 2017. Filed: July 25, 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.

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.

Can a hearing officer’s finding in a termination proceeding be upheld where it partially relied upon a teacher’s excessive absences with no proof that it limited the effectiveness of the teacher’s performance?

No. Evan Mirenberg, an elementary school teacher was terminated after a 3020-a hearing for submitting forged physician’s notes and being excessive absent. Mirenberg offered psychological evidence that he suffered from panic attacks and an anxiety disorder and it affected his judgment in deciding to forge the physician’s notes.

The DOE moved to dismiss the proceeding.

Justice Lucy Billings denied the motion and ordered that the DOE respond to the petition. In her opinion Justice Billings found that without a complete transcript of the proceeding it was not possible to determine if, pursuant to Chancellor’s  Regulation C-601 Mirenberg’s absences were “so numerous as to limit the effectiveness of service” since only such a finding could support disciplinary action.

Additionally Billings could not determine whether the penalty of termination could be supported solely upon a finding of Mirenberg’s dishonestly since the hearing officer made no such determination.

In the Matter of the Application of EVAN MIRENBERG, Petitioner, For a Judgment Pursuant to Article 75 of the C.P.L.R. v. NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent. Docket No. 653846/2015. Supreme Court, New York County. March 30, 2017.