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

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Will a U-rating be upheld if the reviewing administrator violates a non-substantial right of a teacher when rating the teacher?

Yes. Mitchel Cohn is a tenured  teacher at Williamsburg Middle School Academy (MS 50K). In June 2006 he received a  U-rating. He received another U-rating in June 2007. The second U-rating was based, according to his rating sheet, on 5 informal observations taken place in March and May of 2007. Cohn appealed the rating and despite his argument that he was never given pre or post observation conferences required by the UFT contract his appeal was denied.

Cohn also argued that the failure to provide formal observations, since he was a previously designated U-rated teacher, required formal observations and these rights were outlined in the DOE’s rating manual and Special Circular 45.

On appeal to State Supreme Court Justice Alice Schlesinger held that only “substantial rights” violations would cause the Court to overrule the Chancellor’s final determination of a U-rating. While Justice Schlesinger noted that an Appellate Court had held that “the standard of review in such cases required reversal of an agency’s decision when the relevant agency does not comply with either a mandatory provision or one thas was :intended to be strictly enforced.”  Blaize v Klein, 68 AD3d 759, 761, 889 N.Y.S.2d 665 (2nd Dept., 2009).

So what constitutes a substantial right? Schlesinger held that “The review process that petitioner claims was violated is not found in a statute or regulation, but rather in the CBA and various handbooks. The document where the review process first appears is entitled “Guidelines” and reads as such. Further, that the pre-observation aspect of the Formal Observation model is described slightly differently in the various documents further reinforces the fact that the APPR is intended to act as a set of somewhat flexible guidelines rather than as a directive that must be strictly enforced and that guarantees a substantial right.”

To show a pre-observation conference was a mandatory provision Cohn would have had to show how those conferences deprived him of substantial rights, which the Court found he had not.

In the Matter of the Application of Mitchell Cohn, Petitioner, against Board of Education of the City School District of the City of New York; and JOEL I. KLEIN as Chancellor of the City School District of the City of New York, Respondents. 110409/10, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 51070U; 2011 N.Y. Misc. LEXIS 2829, June 7, 2011, Decided

Can the DOE withhold legal representation in a civil suit brought against a teacher while a disciplinary proceeding is pending?

Yes. While fortunately not a frequent occurrence, our students and others do sue teachers and other school staff members for injuries allegedly caused by school staff during the course of their employment. General Municipal Law Section 50-k and Education Law 3028 provide that city employees have the right to have the Corporation Counsel represent them and the city pick up any resulting judgment if the employee was acting within the “scope of his employment.”

The critical issue is what was in this “scope” as an employee, for example committing a criminal assault on student would not be covered under this law.

Kevin Martin is a tenured teacher and was assigned to Aspire Preparatory School, MS 322X. While teaching Martin tried to stop a student from disrupting the class. After each request by Martin to the student to stop disrupting the class the student verbally responded with profanity. Martin told the student to go the dean.

According to Martin’s petition, “As a disciplinary measure and the course and scope of Martin’s employment, Martin then removed the aforementioned student chair from beneath the feat of student S[…], whereupon Martin lost control of the chair which fell to the floor at student S[…]’s feet.”

The student and his mother started a civil suit against Martin and Martin requested legal representation which was denied due, in part to an OSI report which found Martin had thrown the chair.

Justice Alice Schlesinger of New York Supreme Court had no problem finding that Martin’s action was within the scope of his employment as disciplinary actions against students are clearly envisioned in the statute. The Court nonetheless after determining that the timeline was suspect (the incident occurred in 2008, the civil suit filed in 2009 and the OSI investigation and charges against Martin were done in 2010) found that there was nothing arbitrary or capricious in the denial of legal representation during the course of the disciplinary proceedings. The Court advised that Martin could commence his own civil action for attorney fees and resulting judgment in the future, if the facts warrant.

In the Matter of KEVIN MARTIN, Petitioner, -against- BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, JOEL J. KLEIN, as Chancellor of the City School District of the City of New York, and the CITY OF NEW York, Respondents, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 30983U; 2011 N.Y. Misc. LEXIS 1795, April 12, 2011