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.

Can DOE employees seeking to enjoin the vaccine mandate obtain a temporary injunction pending the trial of their complaint?

No. On August 24, 2021 the DOE mandated that all employees obtain at least the first shot of the Covid-19 vaccine by September 27th.

On September 10 the UFT filed a Declaration of Impasse with the Public Employment Relations Board over the impact of the vaccine mandate. The matter was submitted to an arbitrator and an appeal mechanism was ordered which included a process to challenge a refusal to vaccine on religious and medical grounds and request accomodations requests. (see the decision, cited below, for a summary of the arbitration award and subsequent agreements which implemented the award.)

On November 19, 83 DOE employees filed an action in Federal District Court claiming that the DOE and the UFT conspired to deprive them of their procedural due process rights including being disciplined without going through the 3020-a hearing process.

In order to obtain a temporary injunction the Court wrote that the DOE employees must show a clear or substantial likelihood of success on the merits and that the employees cannot be made whole should they prevail in their action.

The Court found that the arbitration award, now part of the collective bargaining agreement contains procedural safeguards which include a review process. As far as the irreparable harm the court wrote, “the Court does not dispute that a loss of income is a hardship. The loss of one’s wages, particularly for those with financial commitments and dependents, is a real, tangible harm. In order to demonstrate an entitlement to injunctive relief, Plaintiffs may not simply identify a general loss. Instead, Plaintiffs must identify a harm for which available legal remedies and monetary damages would be inadequate.”

Nicole BROECKER, et al, Plaintiffs, v. New York City Department of Education, City of New York, Meisha Porter, in her official and individual capacities, United Federation of Teachers, Local 2, American Federation of Teachers, AFL-CIO, Michael Mulgrew, in his official and individual capacities, John Doe #1-10, in their official and individual capacities, and Jane Doe #1-10 in their official and individual capacities, Defendants. United States District Court, E.D. New York. November 24, 2021.

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Does the DOE’s failure to follow its own handbook for rating teachers render a U-rating invalid?

Yes. Carmen Applewhite, a special education teacher sought to annul her 2007 to 2008 U rating which she claimed was based on six unsigned disciplinary letters to her file. The DOE, without following its own procedures, affirmed her U-rating and Applewhite appealed. Justice Joan B. Lobis of the New York County Supreme Court dismissed the petition finding that a violation of the Ratings Handbook was not the equivalent of a violation of an agency’s own rules. Applewhite appealed and the First Department reversed finding that the DOE’s determination to sustain Applewhite’s U-rating was not rationally based on administrative findings.

Matter of Applewhite v. Board of Education, 2014 NY Slip Op 01501, 1st Dept., March 6, 2014.

Will the failure to note a previously observed deficiency in a subsequent observation annul a U-rating?

Yes. Aisha Brown, a long time paraprofessional turned teacher was still on probation when she received a U-rating for the 2009-2010 school year. While her petition for reinstatement was denied due to its being untimely the part of her petition seeking to annul her U-rating was timely.

The Appellate Division, First Department found that following Brown’s first year as a probationary special education teacher in 2008-09, she  received a satisfactory rating and also received a satisfactory review for her teaching during the summer 2009 session. Brown was not assigned a coach until the third month of the 2009-2010 school year, and the principal informally observed her teaching for the first time at the end of January 2010, the day after she had asked for help and complained that her literacy coach was ineffective. Pursuant to the principal’s January 28, 2010 observation of her literacy class, Brown received a written evaluation generally criticizing her for failing to have a daily lesson plan. The principal formally observed petitioner’s literacy lesson on March 2, 2010, and again rated it unsatisfactory, but, she was not provided with the post-observation written evaluation until June 7, 2010. The report listed a litany of criticisms, none of which centered on the deficiencies noted in the informal observation. Brown was again formally observed by the assistant principal on June 16, 2010, and the written evaluation, provided to her on June 24th, noted many of the same deficiencies indicated in the June 7th report.
The principal issued the 2009-10 annual professional performance review on June 22, 2010, rating petitioner unsatisfactory for the year, and recommending discontinuance of her probationary employment.

Brown’s initial application for reinstatement and reversal of her U-rating was denied by New York County Supreme Court Justice Alexander W. Hunter, Jr. The Appellate Division reversed her U-rating finding that Brown initial deficiencies were not noted in subsequent observations and her final observation was not received until more that 3 months had elapsed making “the deficiencies in the rating of petitioner were not merely technical, but undermined the integrity and fairness of the entire review process.”

In re Aisha Brown (11/7/2013)

Will the failure to appear at a U rating appeals proceeding, without explanation, of an immediate supervisor, defeat the DOE’s motion to dismiss a petition to reverse a U rating?

Yes. Paul Bridgwood, a 34 year veteran mathematics teacher with the GED PLUS program at the Jamaica Learning Center site in Queens, New York, brought a petition to reverse a U-rating for the 2010-2011 school year.

During this school year he was assigned to teaching for which he had no certification. He was observed by Assistant Principal Dannette Miller and was given 4 observations, each rated unsatisfactory. Bridgwood was also provided with a professional development plan which included inter-classroom visitation, regular meetings with the Assistant Principal, and a coach.

At the end of the school year Bridgwood was rated unsatisfactory and he appealed. At the hearing the Assistant Principal did not appear. Principal Robert Zweig appeared and testified about Bridgwood’s performance but could not testify to any personal knowledge he had about the observations.

Justice Donna M. Mills found that while the DOE’s by-laws provide for the summoning of witnesses to the hearing and for the hearing to proceed without such witness, if necessary, no explanation was given as to why  Miller did not appear. Mills wrote that it was too early to determine if Miller’s testimony was required and ordered the DOE to answer Bridgwood’s petition.

BRIDGWOOD

Does the Special Commissioner of Investigation have the right to obtain sworn testimony from a tenured teacher?

No. Patricia Sabater, a tenured assistant principal and teacher at an elementary school in Brooklyn was asked to provide sworn testimony about sexual harassment and unlawful touching among students by Special Commissioner of Investigation Richard Condon’s office. SCI wanted to determine whether Sabater had failed to act on and report complaints about these allegations.

Sabater and her attorney refused to answer questions under oath asserting the right, under Education Law 3020-a, not be forced to give sworn testimony in a disciplinary hearing. They argued that a pre-hearing sworn statement was barred.

The SCI sought a court ordered subpoena to force Sabater’s sworn testimony. Justice Carol E. Huff of New York County Supreme Court denied the application. While it is true that Condon’s office has broad powers to investigate and prosecute cases in the DOE a subpoena cannot be used as a way around the protections of Education Law 3020-a. Huff also rejected Condon’s argument that as an assistant principal Sabater could not use the 3020-a protections holding that the statute did not distinguish among those with tenure.

In the Matter of RICHARD J. CONDON, in his official capacity as Special Commissioner of Investigation for the New York City School District, Petitioner, – against – PATRICIA SABATER, Respondent. Index No. 401175/12, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2012 N.Y. Misc. LEXIS 5503; 2012 NY Slip Op 32889U, November 30, 2012, Decided

Was a teacher certification exam given to potential NYC teachers discriminatory against African-Americans and Latinos?

Yes. Gulino v. Board of Education, a Federal Court case filed in 1996 sought class certification, back pay and a declaration that the LAST teacher certification exam was discriminatory. The matter came before Judge Constance Baker Motley and a trial was held in which the complaint was dismissed in 2003. Judge Motley found no legal discrimination despite the fact that the test was not properly validated for discriminatory impact. The matter was appealed to both the 2^nd Circuit Court of Appeals and the United States Supreme Court with the 2^nd Circuit reversing Motley’s decision and remitting the matter back to the District Court and the United States Supreme Court refusing to hear the matter.

On December 5, 2012 Judge Kimba Wood found that the test had discriminated against the plaintiffs but ruled that the class action was not warranted. Aggrieved plaintiffs are entitled to damages but must present their claims individually. Additionally a monitor was ordered to ensure that future teacher certification exams do not discriminate.

The Center for Constitutional Rights who advised the plaintiffs since their original complaints has provided a more detailed chronology of the action.

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.)