Can a U-rating be reversed when a teacher is disciplined for protected activity?

Yes. The Public Employees’ Fair Employment Act codifies public employee labor relations in New York State. The statutory framework provides for a Board to oversee the public employee labor relations and has certain powers to protect public employees engaged in Union activity termed protected activity.

Rodriguez taught at P.S. 173 and for 32 years “had an unblemished record.” He was also the Chapter Leader at the school and had never filed a grievance on his behalf. In April 2010 he submitted a preference sheet and was not assigned his preference. He filed a grievance.

Rodriguez alleged that, as a result of his grievance, he was subjected to an excessive number of classroom visits and observations including 58 unannounced “pop-in” visits. After the filing of a second grievance regarding lesson plans Rodriguez was subjected to still further scrutiny.

Additional animus was evident from the filing of a disciplinary letter to Rodriguez file and rating him with a U-rating.

Rodriguez appealed to PERB where he demonstrated the anti-union activity bias. AlJ Elena Cacavas ruled that the DOE had violated the act and ordered that the disciplinary letter and unsatisfactory rating be rescinded.

Rodriguez v. DOE

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.