Is an allegation that the PIP+ program always leads to teacher termination sufficient for a judge to hear an appeal on the merits of a 3020-a hearing?

No. The PIP+ program, a creature of the UFT last collective bargaining agreement, provides allegedly incompetent teachers with a way to deal with these allegations. While designed to help teachers the program, as charged by Christopher Lobo, a twenty year tenured Earth Science teacher from Forest Hills High School, was a sham resulting in an almost certain termination recommendation.

PIP+, purportedly patterned after the union’s peer intervention program, provides for non-DOE evaluators to give assistance to allegedly incompetent teachers. A major difference between the union peer intervention program and PIP+ is that the PIP+ lacks confidentiality. All aspects of the allegedly incompetent teacher’s participation or lack thereof is admissible in a subsequent 3020-a hearing.

Lobo went through the PIP+ program but claimed it was rigged against him and asserted that no one had successfully completed the program. He also claimed that the DOE offered him no help and the observations that supported his U-ratings were flawed because they were completed by supervisors who were not familiar with his subject area.

Arbitrator Lawrence Henderson, in a 103 page decision, found that the observations were proper and he was provided support during the PIP+ period when “in addition [to] having access to staff development days, petitioner was provided with assistance before and after each of Principal Gootnick’s and A.P. Hoffman’s observations, and peer review by RMC Research Corporation, “a private vendor selected by the Department and the UFT” from April 2, 2009 to June 2, 2009. “

Upon appeal to State Supreme Court Justice Joan B. Lobis granted the City’s motion to dismiss finding that Lobo’s claims were insufficient to reverse Henderson’s termination finding.

Lobis wrote, “In light of Hearing Officer Henderson’s findings that petitioner was underperforming as an educator for two straight years, even after being offered resources to improve, petitioner cannot argue that the penalty of termination was unwarranted.”

CHRISTOPHER LOBO, Petitioner, -against- CITY OF NEW YORK; and NEW YORK CITY DEPARTMENT OF EDUCATION; JOEL KLEIN, CHANCELLOR of NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents, Index No. 116548/10, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 31902U; 2011 N.Y. Misc. LEXIS 3426, July 7, 2011, Decided

Can a coach, suspended from his per session coaching activity, obtain reinstatement from the Courts before he has exhausted the grievance procedure?

No. Stephen Mendl, an experienced and well-decorated baseball coach for George Washington High School, was accused of being involved in the recruitment of a baseball player from Lehman High School. After an investigation by an investigator from the PSAL Mendl’s principal determined he was improperly involved and suspended Mendl from his coaching duties, a per session activity, for one year.

Mendl brought a Step I grievance claiming various violations of the contract and the Education Law including the denial of a hearing and the refusal to follow  3020-a procedural safeguards.

The Step I grievance was denied and before the Step II decision was issued Mendl brought a proceeding in  New York Supreme Court seeking a temporary restraining order to reinstate Mendl in his per session activity.

The Step II decision, which upheld his one year suspension, was rendered before Justice Shlomo S. Hagler issued his opinion denying Mendl’s application.

Hagler wrote that Mendl’s failure to  exhaust his administrative remedies, i.e., take the matter through arbitration, required him to deny the prayer for relief. Hagler added that there are four exceptions to the exhaustion requirement,  (1) the agency action is unconstitutional, (2) the agency action is wholly beyond its grant of power, (3) an exhaustion of remedies would be futile, or (4) the agency action would cause irreparable injury.

Mendl argued that his reputation would be irreparably injured but Hagler rejected his argument. The petition was dismissed.

Stephen Mandl, Petitioner, against Board of Education of the City School District of the City of New York, PUBLIC SCHOOLS ATHLETIC LEAGUE, and CATHLEEN P. BLACK, in her official capacity as CHANCELLOR of the CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, Respondents. 104036/2011, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 50923U; 2011 N.Y. Misc. LEXIS 2462, May 18, 2011, Decided

Can a 3020-a decision be reversed as too lenient?

Yes. Douglas Coleman, a 25 year tenured Social Studies teacher employed by the Dundee Central School District was charged with various specifications characterized as conduct unbecoming a teacher and insubordination. Dundee alleged that Coleman had given an exam in one of his classes which, among other things, “contain[ed] inappropriate and suggestive vocabulary words including “yu dick”, “grandma dick” and “Mrs. Dick” …. The second group of charges is that one of the students in the aforementioned class was a student with a disability of high-functioning Asperger’s Syndrome, and on her test, Coleman had captioned two cartoon figures of aliens, with the student’s name by one figure and her personal tutor’s name by the other . The third group of charges is that in September of 2007, Coleman attempted to bypass the established District procedure with respect to the utilization of movies within his class” when he showed the movie, “Attica.”

Coleman had been given counseling memos when these incidents occurred and the hearing officer, having found that these incidents were not repeated, dismissed the charges since the school district had already decided how to deal with these infractions. The hearing officer, based on other charges then decided to suspend Coleman for 6 months but required that the District continue to pay for his medical insurance. The District appealed to State Supreme Court.

Justice W. Patrick Falvey of Yates County Supreme Court ruled that the suspension with medical insurance was not valid under 3020-a since the statute contemplated suspensions with no payments. Additionally it was wrong for the hearing officer to dismiss the charges as the District did not waive its right to serve charges where counseling memos were previously utilized.

Justice Falvey remitted the matter back to the District to reconsider the dismissed charges and penalty.

Upon remand the hearing officer dismissed many of the charges again but this time found Coleman guilty of a few of the formally dismissed charges. He imposed the same penalty.

Justice Falvey found that ” the Hearing Officer’s decision regarding penalty lacks a rational basis, due to his improper reliance on the premise that Dundee had to prove Coleman repeated the misconduct that gave rise to the counseling memoranda, before he would consider Dundee’s request for a penalty.”

Coleman 1, In the Matter of the Application of the Board of Education of the Dundee Central School District, Petitioner, against Douglas Coleman Respondent, 2010-0248,  SUPREME COURT OF NEW YORK, YATES COUNTY, 2010 NY Slip Op 51684U; 29 Misc. 3d 1204A; 2010 N.Y. Misc. LEXIS 4689

 

Coleman II, Board of Education of the Dundee Central School District, Petitioner, against Douglas Coleman, Respondent, 2011-0011, SUPREME COURT OF NEW YORK, YATES COUNTY, 2011 NY Slip Op 21157; 2011 N.Y. Misc. LEXIS 1999,  April 29, 2011, Decided

Is a claim for hostile work environment cognizable when it is based on student to teacher hostility?

Yes. Eva Berger-Rothberg, a special education teacher with over 18 years’ experience, was assigned to MS 226Q in the 2005-2006 school year. Her class assignment can only be described as a “class from hell.”

From her complaint Berger-Rothberg was subjected to an escalating pattern of abuse from her students based on her gender and religion. Some students would refer to her as a “fucking Jew,” “Jew bastard,” and “white Jewish bitch.” Her pleas for help were generally ignored and after an incident in which one of her students rubbed his penis against her and another put his tongue in her ear she used her cell phone and called police. The principal put a letter in her file threatening her with termination if she continued to use her cell phone in class which was against school policy.

Berger-Rothberrg received a “U”-rating for the school year despite the fact that she had been only observed once. She reluctantly retired and file a discrimination suit.

Federal District Court Judge Roslynn R. Mauskopf, in rejecting the DOE’s attempt to dismiss Berger-Rothberg’s claims found sufficient evidence of workplace hostility to go forward to trial. While the Judge could find no specific case dealing with student to teacher hostility, the alleged refusal of MS 226Q administration officials to deal with the situation and indirectly enabling it made Berger-Rothberg’s claims ripe for a jury trial.

Judge Mauskopf found that “In order to establish a retaliatory hostile work environment, a plaintiff must satisfy the same standard used to evaluate conventional hostile work environment claims by showing that the incidents of harassment following complaints were sufficiently continuous and severe to have altered the conditions of employment.” Berger-Rothberg, at least at this stage, has established such a case.

EVA BERGER-ROTHBERG, Plaintiff, – against – CITY OF NEW YORK, and NEW YORK CITY DEPARTMENT OF EDUCATION, Defendants, 07-CV-1878, UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK, 2011 U.S. Dist. LEXIS 29922, March 22, 2011.

Can a written communication from a school administrator to a tenured teacher which criticizes the teacher be made a part of the teacher’s personnel file without affording the teacher an opportunity for a due process hearing?

Yes, according to a June 2, 2011 decision of the Court of Appeals, our state’s highest court. And you can thank our crack negotiating team for supplying the legal justification.

Back in June 2005 a fact-finding panel concluded that a teacher’s right to grieve letters in the file should be given up in exchange for the right of the teacher to append a response to the letter and have the letter removed from their file if no disciplinary charges were preferred after 3 years.

The UFT contract negotiators extolled the value of giving up this important right and it was incorporated into the contract for 2003 to 2007. There was (and still is) no right to deal with inaccurate letters, including those concluding teacher misconduct, unless and until there was a disciplinary hearing.

A small crack seemed to open in several cases brought about in response to letters that concluded there was teacher misconduct and the teacher given no ability to confront the allegations except with a written, attached response. On its face this seemed to fly in the face of the due process requirements of 3020-a and several lower court judges agreed.

The case of Rachel Cohn is illustrative. Cohn, a tenured Kindergarten teacher at P.S. 7Q, got into a discussion about paraprofessionals with her principal, Sara Tucci. During the discussion Cohn allegedly said that Tucci should watch “her Latin temper.”

Tucci took offense at the remark and commenced an OEO investigation. At the conclusion of the OEO investigation, the OEO found a probable violation of Chancellor’s Regulation A-830 and referred the matter back to Tucci for possible corrective action. Tucci placed a letter in Cohn’s file substantiating her own complaint and warning that the matter could lead to charges and ultimate termination.

Helen Hickey is a tenured physical education teacher at P.S. 41R with almost 30 years’ experience. When a field day was scheduled for the end of the school year the principal gave her certain instructions. When the day arrived there was inclement weather and a change in plans was required to move the field day indoors. The field day started 20 minutes late and the principal took no time to place a letter in Hickey’s file. The letter stated that Hickey was incompetent and may be subject to disciplinary charges.

Both Hickey and Cohn brought proceedings in Supreme Court and following other lower court precedent the Court’s ordered both letters expunged from their files. The lower court found that characterizing the alleged improper action made the letter subject to the due process requirements of 3020-a and were no longer instructive or cautionary in nature but rather disciplinary to which each teacher had a right to a hearing to contest.

The DOE appealed and the Appellate Division, First Department found that when the contract was changed to prevent letters in file grievances the parties waived any right to expunge the letters whether they were characterized as disciplinary or not.

Hickey and Cohn appealed to the Court of Appeals which decided, unanimously, that the UFT had bargained away their right to a hearing.

The Court of Appeals wrote:

“Article 21A is a broad provision that clearly encompasses written reprimands and the disciplinary letters at issue here fell within the purview of Article 21A. Comparison of the statute and the CBA provision reveals that the procedure in Article 21A is significantly different than, and incompatible with, the procedure in Education Law § 3020-a, meaning that the parties to the contract could not have intended both procedures to simultaneously apply. Their history of collective bargaining indicates, with respect to the placement of written materials in tenured teacher’s files, petitioners’ union was well aware that, by adopting Article 21A, it was agreeing to substitute that procedure for other due process procedures that had previously been in place. Therefore, there is ample basis to conclude that the union knowingly waived the procedural rights granted in Education Law § 3020-a in this limited arena. Because the letters at issue are not subject to 3020-a procedures, petitioners are not entitled to have them expunged.”

In the Matter of Helen Hickey, Appellant, v. New York City Department of Education, Respondent. In the Matter of Rachel Cohn, Appellant, v. Board of Education of the City School District of the City of New York, et al., Respondents., No. 101, No.102, COURT OF APPEALS OF NEW YORK, 2011 NY Slip Op 4541; 2011 N.Y. LEXIS 1339, June 2, 2011

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