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.

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.

Can a teacher in the Leadership Academy who has a disabled child in the NYC Public School system maintain an ADA claim when she alleges she was terminated from her position due to her advocacy for her child?

Yes. Mandy Ehrlich, a New York City public school teacher since 1996 was accepted into the aspiring principals program of the New York City Leadership Academy in 2011. The Leadership Academy trains teachers to become administrators through a year long program in which they receive administrator pay, attend a summer program, and are “shadow-trained” by experienced administrators for 10 months. These mentor principals rate the aspiring teacher on a Leadership Academy matrix as pass or fail.

Ms. Ehrlich has a daughter who, due to her physical disabilities, received special education services. During the time that Ehrlich was attending the Leadership Academy two therapists, assigned to her daughter, were replaced. Ehrlich was not satisfied with the services her daughter was receiving and began to make inquiry about how to obtain a Related Service Arrangement (R.S.A.) which would allow for services to be paid by the DOE for outside, usually private, service providers.

A colleague from Ehrlich’s Leadership Academy class was assigned to her daughter’s school and after consulting with the school’s principal was directed to discuss the matter with her Leadership Academy colleague. After being referred to the district administrator for special education services the RSA was denied and Ehrlich was dismissed from her position at the Leadership Academy after an investigation revealed that her advocacy for her child had “crossed a line between the professional and personal.”

Ehrlich commenced an action in the Federal Court, Southern District of New York, claiming she was denied her position at the Leadership Academy in violation of the Americans with Disabilities Act for her actions as an advocate for her child. The DOE moves to dismiss the matter and Judge Alvin Hellerstein denied the application who found that a reasonable jury could find a violation of the ADA.

Ehrlich v New York City Leadership Academy

 

 

 

Is a claim for hostile work environment cognizable when it is based on student to teacher hostility?

Yes. Eva Berger-Rothberg, a special education teacher with over 18 years’ experience, was assigned to MS 226Q in the 2005-2006 school year. Her class assignment can only be described as a “class from hell.”

From her complaint Berger-Rothberg was subjected to an escalating pattern of abuse from her students based on her gender and religion. Some students would refer to her as a “fucking Jew,” “Jew bastard,” and “white Jewish bitch.” Her pleas for help were generally ignored and after an incident in which one of her students rubbed his penis against her and another put his tongue in her ear she used her cell phone and called police. The principal put a letter in her file threatening her with termination if she continued to use her cell phone in class which was against school policy.

Berger-Rothberrg received a “U”-rating for the school year despite the fact that she had been only observed once. She reluctantly retired and file a discrimination suit.

Federal District Court Judge Roslynn R. Mauskopf, in rejecting the DOE’s attempt to dismiss Berger-Rothberg’s claims found sufficient evidence of workplace hostility to go forward to trial. While the Judge could find no specific case dealing with student to teacher hostility, the alleged refusal of MS 226Q administration officials to deal with the situation and indirectly enabling it made Berger-Rothberg’s claims ripe for a jury trial.

Judge Mauskopf found that “In order to establish a retaliatory hostile work environment, a plaintiff must satisfy the same standard used to evaluate conventional hostile work environment claims by showing that the incidents of harassment following complaints were sufficiently continuous and severe to have altered the conditions of employment.” Berger-Rothberg, at least at this stage, has established such a case.

EVA BERGER-ROTHBERG, Plaintiff, – against – CITY OF NEW YORK, and NEW YORK CITY DEPARTMENT OF EDUCATION, Defendants, 07-CV-1878, UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK, 2011 U.S. Dist. LEXIS 29922, March 22, 2011.