Must the DOE return a vindicated teacher to her original school after all disciplinary charges were dismissed?

Yes. Judith Merenstein, a tenured elementary school teacher for almost 20 years was served with charges that included a U-rated observation by the LIS. The arbitrator who heard the case found the LIS and others not credible and part of a campaign to discredit and terminate Merenstein. All charges were dismissed.

Subscribing to the theory that no good deed goes unpunished the DOE reinstated her to a different school. She promptly filed a proceeding in Court claiming that the State Education Law provided that she was to return to her original school and limited the power of the DOE to reassign her. The DOE moved to dismiss Merenstein’s petition and Justice Lucy Billings denied the motion and ordered the DOE to respond to her petition.

Billings found that the DOE had the right to reassign Merenstein to a different workplace (the rubber room) while charges were pending but State Law was clear that she had to be reinstated to the same school if charges were dismissed.

Observation: The decision does not deal with the impact of the CBA and exhaustion of the grievance procedure.

In the Matter of the Application of JUDITH MERENSTEIN, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules – against – BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, and DENNIS M. WALCOTT, in his official capacity as CHANCELLOR of the CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, Respondents, Index No. 111208/2011, SUPREME COURT OF NEW YORK, NEW YORK COUNTY 2012 N.Y. Misc. LEXIS 5468; 2012 NY Slip Op 32844U October 18, 2012, Decided. November 13, 2012, Filed.

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