Will the termination of special ed, tenured teacher be upheld when the teacher has been found to have twisted the arms of students?

No. A special education teacher with a long, unblemished record was charged with twisting the arms of several students in separate incidents. The 3020-a arbitrator found excessive corporal punishment and terminated the teacher. The Supreme Court, Justice Margaret Chan, reversed, finding that intent to inflict pain was missing from the incidents and found that the teacher’s actions did not merit termination. ERIC HAUBENSTOCK, Petitioner, -against- CITY OF NEW YORK; NEW YORK CITY DEPARTMENT OF EDUCATION; DENNIS WALCOTT, CHANCELLOR of NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents. Index Number: 651892/2013, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2014 N.Y. Misc. LEXIS 2691; 2014 NY Slip Op 31549(U), June 16, 2014

Will a discrimination complaint, drafted by an attorney on behalf of a paraprofessional, that a court finds to contain numerous errors and insufficiencies, be dismissed?

Yes. Barry Maynard, a paraprofessional at John F. Kennedy High School, commenced a discrimination action against the DOE and several named defendants including the principal, Lisa Luft. Maynard alleged, in his complaint, that after serving several years of satisfactory service “a female student told her guidance counselor that he had been harassing her and another student by asking the girls to spend time with him away from school.” During the investigation an OSI investigator allegedly told Maynard that “since Obama became President, you people think you can get away with anything.”

The investigation resulted in Maynard being dismissed.

The DOE and City moved to dismiss the complaint and the Court agreed.

The Court wrote, “Plaintiff’s complaint is no model of clarity. Plaintiff is represented by counsel, but I have received complaints from pro se plaintiffs that are more “professional.” For example, the Complaint in multiple instances describes Plaintiff–a male–with female pronouns. It refers to a gender discrimination claim, although Plaintiff only advances a race discrimination claim. I can read it clearly enough, however, to ascertain that it should be dismissed.”

The Court found numerous pleading errors and insufficiencies and dismissed the claim in its entirety.

Maynard v City of New York

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.