Can a teacher recover damages from the DOE for injuries sustained from a student assault?

No. Betty Brumer, a fourth grade teacher at a public school in Brooklyn, alleges that she was injured when she was assaulted by one of her students. According to the plaintiff, the student had been restrained by a school security guard after engaging in a fight with another boy during a fire drill.

Although the security guard escorted the student away from the  rest of the class, the student subsequently  returned to the  scene and began fighting again. The plaintiff alleges that during this second episode, the student hit her, causing her to fall to the ground and sustain injuries.

The Appellate Division, Second Department, found that while the DOE might owe a special relationship to students no such relationship is owed to teachers and administrators. The Court went further to explain that a special relationship can be formed in three ways: “`(1) when the  municipality violates a statutory  duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes  positive direction and control in the face of a known, blatant and dangerous safety  violation'”

None of these were present for Ms. Brumer.

BETTY BRUMER, Appellant, v. CITY OF NEW YORK et al., Respondents, et al., Defendant. 2014­00461, Index No. 32716/09. 132 A.D.3d 795 (2015) 18 N.Y.S.3d 149 2015 NY Slip Op 07611, Appellate Division of the Supreme Court of New York, Second Department. Decided October 21, 2015.


Does a teacher who complains about unclean classroom conditions have the right to maintain an action for retaliation when she complains about those conditions?

No. Yvonne Massaro, an art teacher at Edmond R Murrow High School, taught art in a shared classroom when she contracted scabies. She complained to the principal and others that her condition was caused by the unsanitary conditions of her classroom. She filed a comprehensive incident report claiming that mites from the classroom caused her condition and requested a room transfer. The principal refused to change her classroom and when the condition resurfaced later that year she was sent to the DOE’s medical division. She was immediately approved for full duty.

Within the next school years Massaro contended that her principal and assistant principal engaged in retaliatory conduct against her in response to her complaints about the condition of her classroom. She alleged that her classes were rescheduled to require her to walk up more stairs than before, that they placed too many special education students in her classes, assigned her to inconvenient “sweep” room monitoring duties and cancelled her TV production class and failed to provide adequate supplies for her classes.

The Second Circuit rejected her claims under the Garcetti standard which requires that public employee speech is protected only when the employee speaks on a matter of public concern and, if so, whether the public employer had an adequate justification for treating the employee differently.

Tthe Court reasoned that even though Marsallo was not under a duty to report the mite condition in her classroom, it was not the case where her public comments on a matter of public concern were delivered as a citizen, and not as an employee.

Yvonne T. MASSARO, Plaintiff–Appellant, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant–Appellee. No. 11–2721–cv., United States Court of Appeals, Second Circuit. May 31, 2012. 2012 WL 1948772 (C.A.2 (N.Y.)

Is a request for medical arbitration necessary before going to Court to challenge a Line of Duty Injury request?

Anna Carter, a teacher assigned to the Reassignment Center, claimed a line of duty injury. She claimed that the injury occurred when “My knees were giving me pain I stood to go to the bathroom, and I tripped over two chair legs that were  straddling one another. ”

She completed the necessary paperwork and took an extended time before she was able to return to work.

Her OP-198 was not properly signed by the Superintendent and she was unable to produce a proper approval. Nevertheless the matter was heard by the Medical Board where Line of Duty status was denied. Carter then received a bill for a payroll overpayment of almost $34,000. No demand for medical arbitration was ever made by Carter or by the Union on her behalf.

Carter brought a petition in Supreme Court seeking the Line of Duty Injury status and the cancellation of the DOE recoupment of the alleged overpayment.

Justice Stallman found that the Court was powerless to review Carter claim because the Union contract permitted only medical arbitration as the exclusive remedy to challenge the Medical Board’s denial of LODI status.
In the Matter of the Application of ANNA CARTER, Petitioner, – against – Board of Education/Leaves Admin./HR Connect, Respondents. Index No. 401498/10, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 31061U; 2011 N.Y. Misc. LEXIS 1941, April 22, 2011