Can a teacher who left the DOE before the date set in the UFT contract to obtain retroactive pay maintain a class action against the union based on the union’s failure to represent this group of teachers fairly?

No. Under the terms of the Memorandum of Agreement (the Collective Bargaining Agreement) entered into between the UFT and the DOE provisions were made for retirees and currently employed teachers to obtain retroactive pay for the period between the last day of the previous contract in 2009 and the new agreement. No provision was made for teachers who resigned during this period and were not actively employed on the contract date.

Four teachers who neither retired nor were terminated but resigned their positions during this period sought to maintain a class action against the union for its breach of its duty of fair representation.

Donna Mills, Justice of the New York Supreme Court, found that the teachers had no legal basis to maintain the case in State court but rather the teachers had a right to maintain an improper practice charge, under the Taylor Law, before PERB.

N.B. Given PERB’s short statute of limitations it is doubtful whether the teachers could maintain such a proceeding in PERB.

2015 NY Slip Op 31363(U),DIANNA MORTON, GRANT TEDALDI, CARLY MASSEY, and JOY BEIDER, Plaintiffs, v. MICHAEL MULGREW, as President of THE NEW YORK UNITED FEDERATION OF TEACHERS, LOCAL 2, AFT, AFL-CIO, Defendant. Docket No. 652211/2014, Motion Sequence No. 1. Supreme Court, New  York County. April 21, 2015.

Will the Court permit a probationary termination where the deficiencies in the performance review process were not merely technical but undermined the integrity and fairness of the process?

No. Petitioner was hired as a probationary special education teacher. During the first two years of her three ­year probationary period, she had an exemplary record, receiving satisfactory ratings and several letters of commendation. In her third year, on November 20, 2012, petitioner participated in an annual review meeting concerning a special education student in her fourth ­grade class. At the meeting, petitioner opposed the position taken by the school’s special education coordinator and sided with the student’s mother, who had asked that her son be removed from the “Alternate Assessment” program favored by Principal Jennifer Jones ­Rogers .

The very next day, November 21, 2012, the principal conducted the first formal observation of petitioner for the 2012­-2013 school year. On November 26, 2012, after a post-­observation conference, the principal issued an observation report that found petitioner’s math lesson unsatisfactory because: (1) “[she] did not model for children what [she] expected them to do”; (2) “[her] lesson did not address the problem [she] presented for students to solve”; (3) “[she] did not incorporate rigor in [her] lesson effectively”; and (4) “[she] did not include accountable talk structures in [her] lesson.” The report advised petitioner that a “log of support” would be put in place for her “to grow [her] practice and move toward attaining satisfactory performance.” Petitioner submitted a written rebuttal in which she stated that she had conducted the lesson in the exact manner that the principal had outlined in their pre-­observation conference and that the post-­observation conference focused more on the principal’s dissatisfaction with the position petitioner had taken at the Annual Review than on the math lesson in question.

On February 21, 2013, Assistant Principal (AP) Scott Wolfson conducted a formal observation of another of petitioner’s math lessons . The post­-observation conference was not held until April 16, 2013, at which time petitioner was given an observation report that rated the lesson unsatisfactory because: (1) “[w]hile the children within your group were able to solve the problems that [she] presented to them, it was evident that their solutions indicated algorithmic solution strategies rather than a deeper conceptual understanding of the problems”; (2) “[s he] failed to provide opportunities for [her] students to discuss their mathematical thinking with each other”; and (3) the questions that she posed “[did] not serve to develop children’s conceptual understanding of mathematics, which should be our goal.” The report advised petitioner that “[a]s a result of this lesson, we will continue to implement a log of assistance in order to support you in our mutual goal of attaining a satisfactory rating.”

Petitioner submitted a rebuttal stating that “[t]he fact that m y [special education] students were able to solve the word problem s with algorithmic solution was a huge accomplishment for my students who entered the fourth grade far below grade level” and that “Mr. Wolfson wanted to concentrate on the fact [that] the students struggled with conceptualizing their understanding of mathematics , which was not the goal for my lesson plan for that day.” Petitioner added that “Mr. Wolfson and I also planned my lesson together two days before and [he] never mentioned that he wanted to observe how the students conceptualize math.”

Meanwhile, on April 10, 2013, petitioner received a “Summons to Disciplinary Conference” from Principal Jones ­Rogers . On April 18, 2013, after a conference was held, the principal and the AP issued a letter advising petitioner that: (1) “[s he] failed to suggest appropriate modifications to [her] students ‘IEP’s to support their academic needs “; (2) “[i]n the case of [E.G.], [she] failed to provide [E’s ] parents with a promotion in doubt letter”; and (3) “[she was ] negligent in [her] attention to the records and reports required of [her] in [her] capacity as special education teacher.”

On April 22, 2013, petitioner received an overall U­ Rating for the 2012-­2013 school year, even though her performance was rated satisfactory in 14 of the 22 categories considered. The rating form contained a signature by the principal, dated January 19, 2013, recommending “[petitioner’s ] dis continuance of probationary service.” It also contained a signature by the district superintendent, dated January 22, 2013, adopting the recommendation. On April 24, 2013, petitioner received a revised U­ Rating that changed the date of the principal’s and district superintendent’s signatures to April 22, 2013.

The Department of Education discontinued petitioner’s probationary employment as of May 29, 2013, a month before the school year ended. In June 2013, petitioner sought to review her personnel file and discovered that all of her satisfactory written formal and informal observations from the 2010-­11 and 2011-­12 school years were missing. On October 8, 2013, Principal Jones ­ Rogers resigned.

The Appellate Division, First Department found petitioner’s termination and U-rating highly suspicious. The assertion that, after the first observation, the petitioner and the principal discussed the petitioner’s IEP opinion was not refuted at the review hearing. Additionally, petitioner was given no time to “improve her performance” after a long delay in receiving feedback about her performance.

The Appellate Division also noted, in a footnote that “Two months before her resignation, parents, teachers, students and a state senator had held a rally to protest Principal Jones-Rogers’ policies, which allegedly included retaliating against teachers who disagreed with her and cramming students into special education classes without parental consent”

The petition was granted and the matter sent back to the DOE for further proceedings.

2016 NY Slip Op 03454. IN RE LESLIE TAYLOR, Petitioner-Appellant, v. CITY OF NEW YORK, ET AL., Respondents-Respondents. 718, 100383/14. Appellate Division of the Supreme Court of New York, First Department. Decided May 3, 2016.

Can a court order the production of the results of an investigation of teachers without reviewing the document first?

No. A tenured teacher from a Greenburgh, NY high school complained to her administration that she was being harassed and bullied by two colleagues at her school. After an initial investigation the Director of Human Resources hired an outside attorney to fully investigate and report on the matter.

The outside counsel found that while there was a problem in the department no harassment or bullying was present and recommended to the Board that sensitivity training be ordered.

The petitioner brought an Article 78 proceeding to challenge the decision of the Board and to cause the report to be disclosed to her.

The Supreme Court, Westchester County found that the Board of Education had waived its attorney-client privilege, ordered the production of the report but denied the petitioner’s application to reverse the Board’s decision determining that harassment and bullying had not taken place.

The Appellate Division reversed finding that it was error for the Supreme Court to make any determination about the report or whether it was protected by the attorney-client privilege without holding an in camera (in Court chambers) review of the document.

2016 NY Slip Op 04422, IN THE MATTER OF KRISTY RELLA, Appellant-­Respondent, v.
BOARD OF EDUCATION OF GREENBURGH CENTRAL SCHOOL DISTRICT, ET AL.,  Respondents­ Appellants, ET AL., Respondents. 2015­04121, Index No. 2408/14. Appellate Division of the Supreme Court of New York, Second Department. Decided June 8, 2016.

Is a tenured teacher who resigns from teaching and then subsequently applies and is hired to teach at another school automatically entitled to tenure in the new position?

No. Chancellor’s Regulation C­205 provides that a tenured teacher who resigns “remain[s ] tenured,” but requires the teacher to first submit a written request to withdraw his or her resignation, subject to a medical examination and the approval of the Chancellor.

The petitioner, a culinary arts teacher attained tenure in his license area and then resigned from the DOE to pursue a professional culinary career. Within 5 years he applied for and obtained a position in the same license area at a different school.

His principal advised him that he did not have tenure and upon further inquiry and consultation with a UFT representative filed a formal written request to withdraw his resignation. After the DOE insisted that he still did not have tenure because he never filed a timely request to withdraw his resignation, he brought a proceeding in Court.

The matter was appealed to the Court of Appeals, our highest state court and his appeal was dismissed.

The Court of Appeals held that a tenured teacher who resigns , and later seeks to return as a tenured teacher, must strictly comply with the regulation and submit a written request to withdraw his or her prior resignation.

2016 NY Slip Op 02553. IN THE MATTER OF GRANT SPRINGER, Appellant, v. BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, ET AL.,               Respondents.  No. 41. Court of Appeals of New York. Decided April 5, 2016.

Is a “peer observer,” hired to validate a teacher’s ineffective rating, an employee for unemployment insurance purposes?

N.B. While this case is technically outside the coverage of EdLawFaqs it is included for the rare look into employment practices of ineffective rating validators.

“RMC Research Corporation, an educational research firm, contracted with the New York City Department of Education to provide teaching consultants , known as “peer observers,” for the purpose of evaluating teachers who had received unsatisfactory ratings by school administrators . RMC retained former teachers, including claimant, to act as peer observers at various schools within the Department’s jurisdiction. After entering into a “consultant agreement” with RMC and receiving a case assignment, claimant was required to make 10 site visits to the school where the unsatisfactory teacher was assigned, six for observation, three for consultation and one for final assessment. In addition, he was required to prepare specific documentation—including observation reports, an individualized professional development plan and a final assessment letter—in connection with his assignment, and to complete it within 10 weeks . Ultimately, claimant’s evaluation and those of the other peer observers were used to assist school administrators in determining whether a disciplinary proceeding should be brought to remove the teacher under review.

“The sole issue presented here is whether substantial evidence supports the Unemployment Insurance Appeal Board’s finding that claim ant, and other similarly situated peer observers, were employees of RMC.

“Claimant was required as part of RMC’s hiring process to submit an application, undergo an interview and provide references . Once hired and after signing the consultant agreement, he received six hours of training, was paid a hourly rate set by RMC, was expected to work three to four hours per week for a total of 36 weeks during the 10­ week assignment and submitted a voucher provided by RMC on the 15th of each month to receive payment for hours worked. Notably, claimant was paid for services rendered regardless of whether RMC received payment from the client. Moreover, RMC’s name appeared at the top of the documents that claimant was required to prepare and it determined their format. Furthermore, during the course of his assignment, claimant interacted with RMC’s project director who reviewed his observation reports for comprehensiveness , clarity, spelling and grammar. Any complaints about claimant’s performance or that of the other peer observers were directed to RMC, and it arranged for a replacement if an assignment could not be completed. The foregoing illustrates that there is substantial evidence that RMC retained overall control over important aspects of claimant’s work to establish the existence of an employment relationship.”

135 A.D.3d 1268 (2016), 23 N.Y.S.3d 736, 2016 NY Slip Op 00561, In the Matter of the Claim of MICHAEL D. STRAUSS, Respondent. RMC RESEARCH CORPORATION, Appellant; COMMISSIONER OF LABOR, Respondent. 520636. Appellate Division of the Supreme Court of New York, Third Department. Decided January 28, 2016.

Will a challenge to a teacher’s termination be sustained when the DOE utilized its “streamlined procedures” to dismiss a teacher after two consecutive ineffective ratings?

No.  Since becoming a NYC DOE teacher in 2001 petitioner received satisfactory ratings until 2009. Thereafter she received unsatisfactory rating and when the HEDI system was implemented received two ineffective ratings in a row.

The petitioner received observations in the second year of the HEDI ratings by both her principal and an independent validator who both confirmed her overall ineffective rating even though petitioner was rated effective for her student performance measures.

An arbitrator, after a hearing of three witnesses, an assistant principal, the validator and the petitioner herself, found petitioner to be ineffective and ordered her to be terminated from DOE employment.

Petitioner appealed to the Supreme Court, New York County. Petitioner argued that the arbitrator’s use of the presumptions which shifted the burden in the new expedited termination cases based on two consecutive ineffective ratings was improperly applied in her case. The Court found that while the arbitrator was not exact in her statements about the new evaluation scheme, overall it could not be said that her decision was irrational or that it violated public and policy and lacked merit.

Justice Edmead found that the new evaluation scheme was proper and was properly applied in this case and affirmed the termination.

2016 NY Slip Op 26179, IN THE MATTER OF THE APPLICATION OF NELLINE DOUGLAS, Petitioner, v. THE NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent. Supreme Court, New York County. Decided June 6, 2016.

Can a teacher who was acquitted at a criminal trial use the sealing provisions of the Criminal Procedure Law to shield from evidence sought to be introduced at her DOE termination hearing?

No. Petitioner, a middle school teacher, was arrested and tried for an alleged sexual relationship she had with a 12 year old student. She was acquitted of all criminal charges and her criminal record was sealed, automatically, pursuant to the Criminal Procedure Law.

Shortly thereafter petitioner was served with DOE charges which mimicked the criminal prosecution. At the 3020-a hearing petitioner maintained that evidence which was obtained by the DA or otherwise used at her dismissed criminal trial could not be introduced because the sealing provisions of the Criminal Procedure Law shielded their use at the Departmental trial.

This material included bank records, telephone records (over 8,000 text messages between the two), motel records, a video of petitioner taken on the Student’s cell phone, DNA analysis (showing that the Student’s saliva were found on petitioner’s bedspread), the anticipated testimony of the prosecuting ADA (who was expected to testify as to admissions made by petitioner at the criminal trial), and the testimony of an NYPD Detective (who was expected to testify as to the chain of custody regarding the above evidence). Respondent opposed, arguing that the evidence it was seeking to introduce did not constitute “official records and papers” as defined under 160.50.

The arbitrator granted the motion to preclude as to the Detective’s testimony, finding such testimony unnecessary, but denied the remainder of the motion. She found the following as justifications for admitting the controversial evidence: the bank, phone and motel records were created by private institutions in the regular course of business; the cell phone video was not recorded by a law enforcement agent; and the DNA analysis was prepared by an agency separate from the NYPD or District Attorney’s Office. As to the ADA, the arbitrator permitted her to testify only as to admissions by the petitioner at the criminal trial (no testimony was permitted as to anything else regarding the criminal investigation or trial).

The arbitrator sustained the charges and terminated her. The Petitioner appealed to the Supreme Court, New York County.

Justice Alice Schlesinger found that there was enough evidence to sustain the arbitrator’s findings without the deciding the sealing issue. However, Justice Schlesinger found, “But even assuming that the controversial evidence constituted “official records and papers” and was sealed under CPL 160.50, and admittance constituted a violation of         this statute,the Court of Appeals has held that a violation of CPL 160.50, without more, does not require suppression of such evidence or implicate constitutional considerations such as due process, or warrant annulment of a respondent’s determination of termination despite a  prior acquittal of the same or similar charges in a criminal proceeding. See Charles Q. v. Constantine, 85 NY2d 571, 575 [1995] (state trooper’s termination for sexual misconduct upheld despite prior acquittal in criminal proceeding and improper consideration of records sealed under CPL 160.50 when “respondent’s determination is supported by substantial evidence in the record, including the complainant’s own testimony, and there is no indication that the admission of the erroneously unsealed evidence operated to   deprive petitioner of a fair hearing.”);


2016 NY Slip Op 50979(U). IN THE MATTER OF THE APPLICATION OF CLAUDIA TILLERY, Petitioner, v. THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, Respondent.651804/15. Supreme Court, New York County. Decided June 24, 2016.