Will a U-rating stand when one of three negative incidents is based on a finding determined to be arbitrary and capricous?

No. David Deutsch, a highly respected physics teacher at Manhattan Center for Science and Mathematics received a U-rating from his supervisor based on 3 separate incidents. Two of the incidents involved cursing and aggressive behavior and failure to follow a directive when asked to go to a department meeting. The incident involved an allegation that Deutsch failed to follow school protocol for notice in requesting a personal day off.

While the Chancellor’s representative, Shael Polakow-Suransky, affirmed the principal’s U-rating he wrote that Deutsch has failed to show professional growth.

Deutsch appealed. Justice Michael D. Stillman found that the first two incidents were valid but that the third incident must be dismissed because it was arbitrary and capricious that Deutsch was to follow a protocol in requesting a personal day when, in fact, such policy was not shown to exist. Additionally when Polakow-Suansky affirmed the U-rating there was nothing in the record to demonstrate any opportunity for Deutsch to show professional growth nor were any opportunities offered. The U-rating was annulled.

Deutsch v. NYCDOE (11/7/13)

Can a paraprofessional accused and terminated for an alleged inappropriate involvement with a twenty year old special education student seek reinstatement when he appealed to court almost two years after his last day of work despite the UFT refusal to take his case to arbitration?

No. James Barnes, Jr., a paraprofessional at P 754X was accused of an inappropriate relationship with a 20-year-old female special education student on February 24, 2010. He was reassigned pending an SCI investigation. On October 7, 2010, a due consideration conference was held to give petitioner a chance to respond to the SCI report with his UFT representative present. Petitioner was formally terminated and placed on the “Ineligible Inquiry List” in a letter dated October 19, 2010. On October 21, 2010, petitioner filed his initial grievance appeal and a Step 2 grievance appeal conference was held on January 7, 2011. On January 21, 2011, the Chancellor’s Representative issued a grievance decision denying petitioner’s grievance, finding that “the grievant received due process and was properly terminated without contractual violations.” Petitioner appealed to the UFT union’s Ad Com Grievance Committee to take further action. In a letter dated June 8, 2010, the Committee denied the appeal and declined  to take any further action on petitioner’s behalf, stating “that the Union cannot overcome the Department of Education’s argument that you were terminated for good and sufficient reason and received due consideration.”

Barnes started his Article 78 petition on August 31, 2012.

The statute of limitations for Article 78 proceedings is 4 months and in termination cases the time starts to run from the petitioner’s “last day of work.” Barnes argued that the Union’s delay in deciding to take the matter to arbitration tolled or extended this limitations period.

Justice Alexander W. Hunter, Jr. disagreed and ruled that Barnes’ petition was untimely and dismissed his petition.

Barnes had also argued that the SCI investigator admitted he falsified telephone records which were used to establish Barnes’ alleged inappropriate relationship. Justice Hunter ruled that under Labor Law Sections 537 and 623 evidence from unemployment hearings is inadmissible in subsequent court proceedings.

In the Matter of the Application of James Barnes, Jr., Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, -against- The Department of Education of the City of New York, Respondent, Index No.: 401944/12, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2013 N.Y. Misc. LEXIS 268; 2013 NY Slip Op 30091U, January 16, 2013.

Will a “u”-rating be upheld when the rated teacher claims that her rating was based on retaliation for her grievance about an OEO finding against her?

Yes. In 1991 Tracey Elcock began working for the DOE as a para and was appointed as a special education teacher in 2001. From her appointment until an allegation about her uttering a racial slur and reported by a guidance counselor she received satisfactory ratings.

After an investigation the OEO found that Elcock had violated the Chancellor’s Regulations and recommended that a letter be placed in her personnel file.

Elcock grieved the letter and at the end of the school year received a “u”-rating. She claimed that her rating was in retaliation for her grievance.

The DOE argued that the rating was based on attendance and on a incident in which she allegedly belittled her special education students.

Justice Joan Lobis found that Elcock had not met her burden of demonstrating that the principal’s action was either arbitrary or capricious despite the fact that only two students complained about her alleged statements and that their statements were inconsistent. Justice Lobis observed that it was not the Court’s function to determine credibility.

In the Matter of an Article 78 Proceeding TRACEY ELCOCK, Petitioner, -against- JOEL KLEIN, as the Chancellor of the Department of Education of the City of New York, CITY OF NEW YON, and NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents. Index No., SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 30537U; 2011 N.Y. Misc. LEXIS 950, February 18, 2011

Is a request for medical arbitration necessary before going to Court to challenge a Line of Duty Injury request?

Anna Carter, a teacher assigned to the Reassignment Center, claimed a line of duty injury. She claimed that the injury occurred when “My knees were giving me pain I stood to go to the bathroom, and I tripped over two chair legs that were  straddling one another. ”

She completed the necessary paperwork and took an extended time before she was able to return to work.

Her OP-198 was not properly signed by the Superintendent and she was unable to produce a proper approval. Nevertheless the matter was heard by the Medical Board where Line of Duty status was denied. Carter then received a bill for a payroll overpayment of almost $34,000. No demand for medical arbitration was ever made by Carter or by the Union on her behalf.

Carter brought a petition in Supreme Court seeking the Line of Duty Injury status and the cancellation of the DOE recoupment of the alleged overpayment.

Justice Stallman found that the Court was powerless to review Carter claim because the Union contract permitted only medical arbitration as the exclusive remedy to challenge the Medical Board’s denial of LODI status.
In the Matter of the Application of ANNA CARTER, Petitioner, – against – Board of Education/Leaves Admin./HR Connect, Respondents. Index No. 401498/10, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 31061U; 2011 N.Y. Misc. LEXIS 1941, April 22, 2011