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.

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.

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

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