Will the DOE, seven years after an arbitration decision, be permitted to appeal the decision?

No. After an arbitration decision rendered in 2007 a teacher was found to have inappropriately touched female students and was suspended, without pay, for six months. The DOE’s feeble attempts to vacate the award to seek the teacher’s termination, alleging, among other things, the death of the originally assigned Justice, was finally determined by the Appellate Division, First Department, which denied the application.

Board of Education of the City School District of the City of New York v Alexis Grullon

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Will the termination of a tenured ATR be upheld when he engaged in conversations with students about college and internships that did not offend these students?

No. A substitute teacher covering a double-period class for high school senior students, participated in conversation with a group of the students concerning their college choices and post-graduation internship plans. During the conversation, the teacher offered to serve as a contact point for a potential internship at a media company for a female student who had expressed an interest in film and media. The student testified at the arbitration hearing that she appreciated this and was not offended by the offer. When a male student then indicated that he did not want to do an internship or work during the summer after graduation, the teacher whispered to the female student something to the effect of “watch how they react to this,” and proceeded to tell the students about a valuable internship experience he had before he went to college. The female student also was not offended by this. When another male student expressed his interest in attending a college that was widely reported to be a “party school,” petitioner asked him something to the effect of, “so you’re the type to party with,” or “you want to go to school to party.” The student testified that he was “not offended in any way” by the comment. Rather, the several students who testified generally indicated that they enjoyed the class and found it to have been more interesting than expected from a substitute.

The teacher was terminated by the arbitrator and he appealed. Supreme Court Justice Margaret Chan denied the teacher’s petition finding that while the incident itself may not have been grounds for termination the teacher had a prior disciplinary history involving student teaching and thus taken as a whole the conduct merited termination.

The Appellate Division, First Department, reversed. The Court could not find any rule prohibiting the teacher from engaging in these conversations and thus his termination shocked the conscience and could not be sustained.

In re Jonathan Polayes, Petitioner-Appellant, v City of New York, at al., Respondents-Respondents, 12649, 156710/12, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2014 N.Y. App. Div. LEXIS 3905; 2014 NY Slip Op 3958, June 3, 2014

Will the Court uphold an arbitrator’s imposed fine for engaging in protected 1st Amendment free speech activity?

No. Richard Santer, a teacher employed by the East Meadow Union Free School District engaged, with other teachers, in a peaceful protest while negotiations for a new contract were underway. The protest involved picketing in front of a middle school which included parking their cars in front of the school and display their picket signs in their cars. This area was also used by the middle school’s students’ parents to drop off their children for school.

None of the teachers blocked either of two curb cuts in front of the school but according to the principal the protesting teachers’ parking caused traffic to become congested creating a safety concern for students being dropped off in the middle of the street.

No school official asked the teachers to move their cars during the protest, and no child was injured.

The school district brought disciplinary charges against several teachers under 3020-a and after an arbitration Santer was fined $500. His appeal was denied in Supreme Court.

On appeal to the Appellate Division Santer prevailed. The Appellate Division found that Santer’s free speech rights were violated and by bringing him up on disciplinary charges the school district, in effect, chilled free speech rights of all teachers concerning a matter of public concern.

N.B. In a case brought to the same Appellate Division, but a different panel, concerning the same incident but with a different teacher the Court held that the arbitrator was reasonable in upholding the discipline. In that case, Matter of Trupiano v Board of Educ. of E. Meadow Union Free School Dist., 89 AD3d 1030, 933 N.Y.S.2d 106) the teacher received a counseling memo. The Santer Court reasoned that Trupiano was not controlling since Trupiano did not raise a First Amendment claim in her petition.

Another teacher who was fined $1000 for the same incident was denied her appeal at the Supreme Court level. The Court there found that she engaged in an activity that endangered student safety. She did not appeal further. Barbara Lucia, Petitioner, against Board of Education of the East Meadow Union Free School District, Respondent. 32 Misc. 3d 1208A; 932 N.Y.S.2d 761; 2011 N.Y. Misc. LEXIS 3178; 2011 NY Slip Op 51210U (Nassau Sup.Ct., 2011)

In the Matter of Richard Santer, appellant, v Board of Education of East Meadow Union Free School District, respondent. (Index No. 1997/10), 2010-11006, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT, 2012 N.Y. App. Div. LEXIS 8698; 2012 NY Slip Op 8750, December 19, 2012, Decided.

Does dismissal of a teacher found to have sexually harassed and verbally abused one student for one single incident shock the conscience of the Court?

No. Reinaldo Palencia, a twenty-two year veteran teacher, most recently from Martin Van Buren High School, was found by arbitrator Arthur Riegel to have, on one occasion, touched the shoulder of a female student and whisper in her ear words to the effect that if he were the student’s age he would fuck her.

Palencia raised several issues but the Court focused on whether Palencia’s good disciplinary history warranted his termination for what was basically a single incident of verbal abuse.

The Court quoted Riegel’s decision and agreed that Palencia’s action constitute[d] “classical sexual harassment” and “extreme verbal abuse.”

The Court continued, “Although termination is a severe penalty, it is
proportionate to the egregious, highly inappropriate nature of petitioner’s behavior, notwithstanding petitioners history with DOE.”

Reinaldo Palencia, Petitioner, against The New York City Board/Department of Education, Respondent. 112557/10, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 50905U; 2011 N.Y. Misc. LEXIS 2381, May 13, 2011, Decided

Will a one year suspension for verbal abuse to fellow staff members, parents and students be upheld?

Yes. Leslie Drucker is a tenured special education teacher at Unity High School with previous employment as an OSI investigator. She was served 3020-a charges for various verbal abuse allegation as well as “knowingly and inappropriately inject[ing] herself into a confidential investigation by the Commissioner of Special Investigations.

The arbitrator found against Drucker on 4 of the 5 charges and suspended her, without pay, for one year after taking into consideration her satisfactory employment history and evidence that she had voluntarily helped students.

Although Drucker raised issues concerning the failure of the DOE to vote for probable cause and the alleged bias of the arbitrator, Justice Barbara Jaffe found no due process violations and found her one year suspension did not shock the conscience of the Court. The petition was dismissed.

In the Matter of the Application of LESLIE DRUCKER, Petitioner, for a judgment pursuant to Article 75 of the C.P.L.R. -against- THE NEW YORK CITY BOARD/DEPARTMENT OF EDUCATION, Respondent. 112638/10 SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 31313U; 2011 N.Y. Misc. LEXIS 2366, May 13, 2011, Decided

Will the failure of the DOE to follow the UFT contract’s requirement to reduce OSI investigations to writing within 6 months prevent a teacher from being disciplined under 3020-a?

Article 21, C(4) of the UFT contract provides that when an investigation of a teacher is conducted any report must be reduced in writing, given to the teacher with an opportunity to respond in writing within 6 months of the date of the incident investigated or the date that the DOE should have discovered it.

Phyllis Nuchman, a 29 year veteran special education teacher was charged with 3 specification dealing with her responsibilities with maintaining special education records and IEP conferences. The charges resulted from an SCI/OSI investigation which took longer than six months to complete. It was undisputed that neither Nuchman or her UFT rep were given written copies of the investigation or given a chance to respond before charges were lodged against her.

Arbitrator Jay Siegel denied Nuchman’s motion to dismiss the charges based on the DOE’s failure to comply with the UFT contract. After a hearing Nuchman was suspended for 4 months.

On appeal to State Supreme Court Nuchman reargued the motion to dismiss claiming that the provisions of the contract required that the investigation be completed within 6 months. Justice Cynthia Kern found that there was nothing in the contract which specifically prevented the DOE from bringing charges that were not reduced to writing within six months. Justice Kern found that the arbitrator correctly weighed Nuchman’s 29 years of service and rejected the DOE’s attempt to terminate her. Justice Kern found that the 4 month suspension was reasonable.

Observation: The contract language is pretty strong. It provides that “The writing may not be incorporated into the employee’s personnel file or record, unless this procedure is followed, and any such writing will be removed when an employee’s claim that it is inaccurate or unfair is sustained.” Given this strong language it is hard to imagine how charges can be sustained if is not part of an employees file.
In the Matter of the Application of PHYLLIS NUCHMAN, Petitioner, -against- JOEL I. KLEIN, CHANCELLOR, NEW YORK CITY DEPARTMENT OF EDUCATION, and THE NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents, To Vacate a Decision of a Hearing Officer Pursuant to Education Law Section 3020-a and CPLR Section 7511. Index No. 111217/10, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 30694U; 2011 N.Y. Misc. LEXIS 1215, March 10, 2011