Can a teacher, covered by a collective bargaining agreement maintain an action pursuant to Civil Service law 75-b, the Whistleblower’s Law?

No. Michele Ehrlich, an ESL teacher at PS 79 in Whitestone until her probationary termination in July 2011, complained to several DOE departments and some private advocacy groups about a violation of an IEP of one of her students. After her termination she claimed she was covered by the Whistleblower’s Law Section 75-b. (A federal claim concerning her free speech rights was dismissed in a federal action that had been removed to that court by the DOE).

Acting Justice Ellen M. Coin ruled that Ehrlich could not maintain her action under the Whistleblower’s law since she was covered by the UFT contract and was required to exhaust her remedies available under the grievance procedure before she could commence an action.

Ehrlich v. DOE (November 7, 2013, Decided)

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.)

Can a probationary teaching assistant utilize the state whistleblower law to defeat a school district’s motion to dismiss her petition for reinstatement?

Yes. Civil Service Law Section 75-b, the public sector component of the state’s whistleblower law, protects public employees from termination if they report a violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety or which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action. The provision applies to tenured employees only in so far as it may be raised as a defense in a disciplinary arbitration (where a contract calls for that) and applies to probationers if they seek reinstatement from court.

Maureen Sheil began her probation as a teaching assistant in the Merrick Union Free School District in 2009. One of her colleagues was removed from her school after he was charged with possession of child pornography. Sheil became concerned that another of her colleagues, who still kept ties with the removed teaching assistant, supported the removed teaching assistant in such a way that she believed he presented a danger to students at her school. Sheil reported her concerns to the school’s administration only to be later targeted for what Sheil charged was retaliation for her complaint. Sheil was eventually dismissed by the school district.

Sheil raised Civil Service Law Section 75-b to claim that the dismissal was taken in retaliation for her reporting the association of her colleague with the removed teaching assistant.

Justice Denise Sher of Nassau Supreme Court found that Sheil had made a a viable claim and ordered the school district to answer her petition.

In the Matter of the Application of MAUREEN SHEIL, Petitioner, for a Judgment pursuant to Article 78 of the Civil Practice Laws and Rules, – against – DR. RANIER W. MELUCCI, Superintendent of Schools, Merrick Union Free School District, BOARD OF EDUCATION OF MERRICK UNION FREE SCHOOL DISTRICT, and MERRICK UNION FREE SCHOOL DISTRICT, Respondents, SUPREME COURT OF NEW YORK, NASSAU COUNTY, 2011 NY Slip Op 31242U; 2011 N.Y. Misc. LEXIS 2208, April 28, 2011

 

Will failure to file a specific notice of claim defeat a school secretary’s workplace condition complaint?

Yes. Lynne Schnell, a school secretary at Aviation High School and her son, brought an action in Queens Supreme Court for working conditions against the City, school administrators and the Chapter Leader.

Schnell complained that her workspace had no windows, ventilation or adequate air and had reached a temperature of 120° F. She complained to the school’s administration, the UFT, the Department of Health and the DOE component of the Public Employee Safety and Health Board to no avail.

During the last two weeks of June 2006 she came to school seeking relocation and upon not being relocated she left. An S rating was changed to a U rating for excessive absences. Her claimed injuries included intentional infliction of emotional distress and the development of a  staph  infection.   Schnell  also  alleged  that  the  Chapter  Leader  “came  into her room [, room] 149F, blocked the door and proceeded to scream and curse at her and throw a chair at her for complaining.”

A 3020-a proceeding was brought against Schnell and was settled with a stipulation in which she agreed to withdraw all of her claims against the DOE except for a claim involving whistleblowing. This last claim was not included on her notice of claim.

Leaving the remaining claim off of her notice of claim proved fatal to her lawsuit and Justice Kevin J. Kerrigan summarily dismissed her claim.

Lynne Schnell and Luke Serkanic, Plaintiff, – against – The City of New York, New York City Department of Education, Ralph Santiago, Eileen Taylor, Joyce Seiden, Dino Charlalambous, Jerry Frohnhoefer, Soraya Cuervo-Digiorgio, and Mary Vigoa, Defendants, SUPREME COURT OF NEW YORK, QUEENS COUNTY, 2011 NY Slip Op 31220U; 2011 N.Y. Misc. LEXIS 2168, April 11, 2011