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Cacavas ruled that the DOE had violated the act and ordered that the disciplinary letter and unsatisfactory rating be rescinded.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

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Will the failure to note a previously observed deficiency in a subsequent observation annul a U-rating?

Yes. Aisha Brown, a long time paraprofessional turned teacher was still on probation when she received a U-rating for the 2009-2010 school year. While her petition for reinstatement was denied due to its being untimely the part of her petition seeking to annul her U-rating was timely.

The Appellate Division, First Department found that following Brown’s first year as a probationary special education teacher in 2008-09, she  received a satisfactory rating and also received a satisfactory review for her teaching during the summer 2009 session. Brown was not assigned a coach until the third month of the 2009-2010 school year, and the principal informally observed her teaching for the first time at the end of January 2010, the day after she had asked for help and complained that her literacy coach was ineffective. Pursuant to the principal’s January 28, 2010 observation of her literacy class, Brown received a written evaluation generally criticizing her for failing to have a daily lesson plan. The principal formally observed petitioner’s literacy lesson on March 2, 2010, and again rated it unsatisfactory, but, she was not provided with the post-observation written evaluation until June 7, 2010. The report listed a litany of criticisms, none of which centered on the deficiencies noted in the informal observation. Brown was again formally observed by the assistant principal on June 16, 2010, and the written evaluation, provided to her on June 24th, noted many of the same deficiencies indicated in the June 7th report.
The principal issued the 2009-10 annual professional performance review on June 22, 2010, rating petitioner unsatisfactory for the year, and recommending discontinuance of her probationary employment.

Brown’s initial application for reinstatement and reversal of her U-rating was denied by New York County Supreme Court Justice Alexander W. Hunter, Jr. The Appellate Division reversed her U-rating finding that Brown initial deficiencies were not noted in subsequent observations and her final observation was not received until more that 3 months had elapsed making “the deficiencies in the rating of petitioner were not merely technical, but undermined the integrity and fairness of the entire review process.”

In re Aisha Brown (11/7/2013)

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)

Will a sexual misconduct complaint justify a 20 year tenured teacher’s termination?

Yes. Luis Villada, a tenured teacher assigned to Multicultural High School was the Chapter Leader at his school when he was charged with sexual misconduct upon a fellow teacher and interfering with an OSI investigation. The arbitrator, Haydee Rosario found that the allegations of hugging and kissing a fellow teacher on her mouth were substantiated. After applying the Pell v. Board of Education standard to the DOE’s request to terminate Vilada, the arbitrator found that while Vilada’s record was unblemished after over 20 years the harm that his sexual misconduct caused his colleague warranted his termination.

Justice Margaret Chan affirmed. She found that the penalty of termination did not shock the conscience or was arbitrary and capricious.

Luis Vilada v. City of New York

Will failure to serve the DOE in an Article 75 proceeding within the proscribed period require that the petition be dismissed?

No. Under CPLR 306-b where the statute of limitations is less than 4 months  the action or proceeding must be served within 15 days of the expiration of the statute of limitations. There is no dispute that the petition in Portnoy v. NYCDOE was served well beyond the fifteen day period and the DOE moved to dismiss the proceeding. In denying that part of the DOE’s application Justice Wooten wrote that the application to dismiss would be denied in the interests of justice and in the interest of deciding the matter on its merit.

Portnoy had been charged with multiple specifications which resulted in his termination by Arbitrator Rosario. Justice Wooten affirmed the termination finding no basis that Arbitrator Rosario’s opinion and award violated public policy or Portnoy’s due process rights.

Portnoy v. NYCDOE

Will the failure to appear at a U rating appeals proceeding, without explanation, of an immediate supervisor, defeat the DOE’s motion to dismiss a petition to reverse a U rating?

Yes. Paul Bridgwood, a 34 year veteran mathematics teacher with the GED PLUS program at the Jamaica Learning Center site in Queens, New York, brought a petition to reverse a U-rating for the 2010-2011 school year.

During this school year he was assigned to teaching for which he had no certification. He was observed by Assistant Principal Dannette Miller and was given 4 observations, each rated unsatisfactory. Bridgwood was also provided with a professional development plan which included inter-classroom visitation, regular meetings with the Assistant Principal, and a coach.

At the end of the school year Bridgwood was rated unsatisfactory and he appealed. At the hearing the Assistant Principal did not appear. Principal Robert Zweig appeared and testified about Bridgwood’s performance but could not testify to any personal knowledge he had about the observations.

Justice Donna M. Mills found that while the DOE’s by-laws provide for the summoning of witnesses to the hearing and for the hearing to proceed without such witness, if necessary, no explanation was given as to why  Miller did not appear. Mills wrote that it was too early to determine if Miller’s testimony was required and ordered the DOE to answer Bridgwood’s petition.

BRIDGWOOD

Is a probationary teacher who received a U-rating required to exhaust all administrative remedies before appealing to Court?

Yes. Leonette Belfield worked for over 10 years as a paraprofessional when she entered the DOE’s program, “Pathways to Teaching,” to become a teacher in 2006. She received 3 consecutive S-ratings and was given a U-rating for the 2009 to 2010 school year and terminated. (It is not clear why Belfield was still on probation during her fourth year teaching).

Deciding not to wait until her U-rating appeal was decided by the Chancellor, Belfield commenced a proceeding seeking reversal of her U-rating and reinstatement. It was undisputed that Belfield did not exhaust her administrative remedies.

Without deciding on the merits Justice Barbara Jaffee dismissed her application relying on Belfield’s failure to wait for the Chancellor’s decision in her U-rating appeal.

In the Matter of the Application of: LEONETTE BELFIELD, Petitioner, -against- JOEL KLEIN, as the Chancellor of the Department of Education of the City of New York, CITY OF NEW YORK, and NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents. For a Judgment pursuant to Article 78 of the Civil Practice Law and Rules. Index No. 114094/10, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 31862U; 2011 N.Y. Misc. LEXIS 3389, July 1, 2011, Decided

Observation: The decision and supporting documents do not reveal answers to some important questions about the case. Although the Court wrote, in its decision, that Belfield had requested reinstatement, this was not requested in her petition. It is not clear when Belfield was terminated but generally a proceeding to challenge a probationary termination has a four month statute of limitations measured from the effective date of termination. To challenge the U-rating and the subsequent placement on the DOE’s ineligible list requires filing the proceeding in Court within four months of the Chancellor’s decision in the U-rating appeal which did not occur at the time of the filing of Belfield’s petition.

Must a teacher, who was ordered to undergo a psychological assessment that he was free from addiction to internet pornography and not a danger to students, fully comply with the order before reinstatement?

Yes. Bruce Campbell was a 15 year, tenured teacher at Newtown High School the High School for Arts & Business. In September 2006, a school psychologist at Arts & Business High School, Simon Kopelnitsky, while searching for his documents on a computer shared by Arts & Business High School staff members in one of the guidance counseling offices noticed that “inappropriate” and “pornographic website links were listed under “recent documents,” indicating that the computer had been used to gain access to those internet sites.

He reported this finding to the assistant school principal, and in response the Office of Special Investigation began an investigation into whether there was pornographic material on the computer. OSI investigators removed the computer’s hard drive, and investigator/database programmer Giovanni Perez, after performing a forensic examination of it, found that there was inappropriate or pornographic material on it, which was “possibly downloaded under two user identifications, namely, Campbell’s, and that of school psychologist Stacy Epstein.

Under Campbell’s user id, Perez found that two pictures of a young Asian woman in a bikini bathing suit had been downloaded on June 1 and June 2, 2006. Under Epstein’s user id, more than 30 pictures of naked or partially clothed women, some engaged in sexual acts, were downloaded into temporary internet folders on March 24 and March 31, 2006.

OSI investigator Benjamin Francis interviewed Campbell in January 2007, and showed him the two pictures that Perez had located on the computer under his user id . Campbell acknowledged that he had seen those pictures and explained that he found them while doing research to find out whether, as he was informed by two male students at Newtown High School, two female students were advertising sexual services on a website.

He would not provide the names of the students to the investigator. After interviewing Campbell, and receiving statements from staff members present at the time that Kopelnitsky discovered the website links on the subject computer, Francis concluded that Campbell had violated the Board’s internet use policy “by accessing pornographic material” on the subject computer.

Following the OSI investigation, the Board commenced a disciplinary proceeding , pursuant to Education Law § 3020-a.

A hearing on the charges was held before Arbitrator James Darby.

After considering all the evidence, Darby found that the Board failed to demonstrate by a preponderance of the evidence that Campbell was guilty of the charges presented in Specifications 1 and 2, which included viewing and downloading pornographic photographs on March 24 and March 31, 2006.

In so finding, the hearing officer noted that the only evidence connecting Campbell to the allegations in Specifications 1 and 2 was that he was at the school on the dates in question. Evidence showed that the pictures had been accessed under Epstein’s id, and Campbell testified that he did not ever use her id and did not know what it was. Perez testified that those pictures were not downloaded, and possibly were pop-ups not intentionally viewed or accessed by the computer user. Evidence also showed that both March 24 and 31 were Fridays, when Campbell worked out of the principal’s office, and not in Room102B.

Darby then concluded that Campbell was guilty of the charges presented in Specifications 3 and 4, that is, viewing and downloading two “inappropriate” photographs onto the school computer on June 1 and 2, 2006. Campbell does not deny that he viewed and downloaded two pictures, and viewed hundreds of other similar pictures, as part of his own investigation into allegations that female students were selling sexual services on the internet. Although Campbell claimed that he was doing this to help students, the hearing officer found his explanation that he was conducting his own investigation unconvincing.

In determining what punishment was appropriate , the hearing officer considered, among other things, Campbell’s 15-year tenure without any prior discipline, that only two of the four charges were sustained, and the lack of information about the likelihood of a reoccurrence , and concluded that Campbell “shall be suspended without pay for the remainder of the 2008-2009 school year, or 90 days, whichever is longer;” that Campbell’s internet use shall be monitored by the Board during the 2009-2010 school year, and any substantiated allegations that he violated the Internet Use Policy will result in his termination, subject to his CPLR § 3020-a rights; and that Campbell’s return to work shall be conditioned upon his submitting to the Department’s Office of Legal Services a written assessment from a licensed therapist.

The assessment shall indicate that the therapist has read this Opinion and Award, has evaluated Campbell, and that he or she concludes that Campbell is not addicted to Internet pornography and that his viewing of Internet pornography, as described herein, will not adversely affect his ability to teach and will not place students at risk.

The DOE, seeking Campbell’s termination and not contesting Darby’s finding, appealed the 3020-a penalty and argued that it exceeded the arbitrator’s authority.

Justice Joan Madden disagreed and confirmed the award in April 2010.

Campbell attempted to comply with Darby’s order and sought reinstatement after he obtained a therapist’s evaluation. The DOE rejected the evaluation since, it claimed the evaluation only stated that in his report that he could not determine whether Campbell was addicted to pornography, characterizing such determination as “nearly impossible,” and that he was only able to state that there “is no evidence that Campbell has an internet addiction.” In addition, the therapist’s conclusion that viewing internet pornography would not put students at risk or affect his ability to teach appears to be based solely on Campbell’s lack of recorded history of prior inappropriate behavior (a fact that was known by Darby) and the “lack of information” indicating that Campbell has an impairment that would interfere with his ability to teach.

Campbell sought reinstatement from Court. Justice Madden, agreeing with the DOE’s interpretation of the therapist’s evaluation, denied Campbell’s application.

In the Matter of the Application of THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, and JOEL KLEIN, as Chancellor of the Board of Education of the City of New York, Petitioners, -against – BRUCE CAMPBELL, Respondent. Index No. 400780/09, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 32018U; 2011 N.Y. Misc. LEXIS 3604, July 13, 2011, Decided July 19, 2011, Filed.

Observation: It appears that Campbell is caught in a classic bind. The order that he be determined not to be addicted to internet pornography and that he is not a danger to children is a tall order for a therapist to opine since the basis of any therapist’s opinion would be the self-reporting of the patient. While Madden has confirmed Campbell’s order denying his termination she has made reinstatement an extremely difficult hurdle.

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

Does the definition of “student” include a person a teacher has had sexual relations with even though he did not attend school?

Yes. Back in 2008 Gina Salamino, a tenured 2nd grade teacher at P.S. 121Q, was terminated after a 3020-a hearing for having sexual relations with a 17 year old. The case created some publicity. Salamino did not contest her affair but challenged the DOE’s definition of “student” to include the boy who spent the entire school year on the register of his high school but did not attend one day of school due to modeling commitments.

Salamino claimed that she met the 17 year old through a friend of her family and had no reason to believe he was a student. Additionally, she claimed, the boy should have been discharged from Bryant High School’s register but remained there due to a clerical error.

Amazingly there is no clear definition of “student” which would help determine whether the boy was a student for purposes of the Collective Bargaining Agreement, which mandates dismissal for sexual misconduct of students, or 3020-a.

The arbitrator construed Chancellor’s Regulation A-101 to define student and terminated Salimino. On appeal Justice Shirley Werner Kornreich found that since the boy was under 18 pursuant to New York State law he was a minor and affirmed that Salamino’s termination was proper.

Salamino appealed to the Appellate Division who affirmed Justice Kornreich’s decision. The Court held, “We need not determine whether petitioner is correct that the meaning of the term  “student” should be so determined. Even if she is correct, we cannot conclude that the arbitrator acted arbitrarily and capriciously in using Regulation A-101 to determine its meaning.” [citation omitted]

Gina Salamino, Petitioner-Appellant, v Board of Education of the City School District of the City of New York, et al., Respondents-Respondents, 3649, 109166/08, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2011 NY Slip Op 5408; 2011 N.Y. App. Div. LEXIS 5276, June 23, 2011, Decided