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 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 a 3020-a decision be reversed as too lenient?

Yes. Douglas Coleman, a 25 year tenured Social Studies teacher employed by the Dundee Central School District was charged with various specifications characterized as conduct unbecoming a teacher and insubordination. Dundee alleged that Coleman had given an exam in one of his classes which, among other things, “contain[ed] inappropriate and suggestive vocabulary words including “yu dick”, “grandma dick” and “Mrs. Dick” …. The second group of charges is that one of the students in the aforementioned class was a student with a disability of high-functioning Asperger’s Syndrome, and on her test, Coleman had captioned two cartoon figures of aliens, with the student’s name by one figure and her personal tutor’s name by the other . The third group of charges is that in September of 2007, Coleman attempted to bypass the established District procedure with respect to the utilization of movies within his class” when he showed the movie, “Attica.”

Coleman had been given counseling memos when these incidents occurred and the hearing officer, having found that these incidents were not repeated, dismissed the charges since the school district had already decided how to deal with these infractions. The hearing officer, based on other charges then decided to suspend Coleman for 6 months but required that the District continue to pay for his medical insurance. The District appealed to State Supreme Court.

Justice W. Patrick Falvey of Yates County Supreme Court ruled that the suspension with medical insurance was not valid under 3020-a since the statute contemplated suspensions with no payments. Additionally it was wrong for the hearing officer to dismiss the charges as the District did not waive its right to serve charges where counseling memos were previously utilized.

Justice Falvey remitted the matter back to the District to reconsider the dismissed charges and penalty.

Upon remand the hearing officer dismissed many of the charges again but this time found Coleman guilty of a few of the formally dismissed charges. He imposed the same penalty.

Justice Falvey found that ” the Hearing Officer’s decision regarding penalty lacks a rational basis, due to his improper reliance on the premise that Dundee had to prove Coleman repeated the misconduct that gave rise to the counseling memoranda, before he would consider Dundee’s request for a penalty.”

Coleman 1, In the Matter of the Application of the Board of Education of the Dundee Central School District, Petitioner, against Douglas Coleman Respondent, 2010-0248,  SUPREME COURT OF NEW YORK, YATES COUNTY, 2010 NY Slip Op 51684U; 29 Misc. 3d 1204A; 2010 N.Y. Misc. LEXIS 4689

 

Coleman II, Board of Education of the Dundee Central School District, Petitioner, against Douglas Coleman, Respondent, 2011-0011, SUPREME COURT OF NEW YORK, YATES COUNTY, 2011 NY Slip Op 21157; 2011 N.Y. Misc. LEXIS 1999,  April 29, 2011, Decided

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 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.

Will the failure of the DOE to follow the UFT contract’s requirement to reduce OSI investigations to writing within 6 months prevent a teacher from being disciplined under 3020-a?

Article 21, C(4) of the UFT contract provides that when an investigation of a teacher is conducted any report must be reduced in writing, given to the teacher with an opportunity to respond in writing within 6 months of the date of the incident investigated or the date that the DOE should have discovered it.

Phyllis Nuchman, a 29 year veteran special education teacher was charged with 3 specification dealing with her responsibilities with maintaining special education records and IEP conferences. The charges resulted from an SCI/OSI investigation which took longer than six months to complete. It was undisputed that neither Nuchman or her UFT rep were given written copies of the investigation or given a chance to respond before charges were lodged against her.

Arbitrator Jay Siegel denied Nuchman’s motion to dismiss the charges based on the DOE’s failure to comply with the UFT contract. After a hearing Nuchman was suspended for 4 months.

On appeal to State Supreme Court Nuchman reargued the motion to dismiss claiming that the provisions of the contract required that the investigation be completed within 6 months. Justice Cynthia Kern found that there was nothing in the contract which specifically prevented the DOE from bringing charges that were not reduced to writing within six months. Justice Kern found that the arbitrator correctly weighed Nuchman’s 29 years of service and rejected the DOE’s attempt to terminate her. Justice Kern found that the 4 month suspension was reasonable.

Observation: The contract language is pretty strong. It provides that “The writing may not be incorporated into the employee’s personnel file or record, unless this procedure is followed, and any such writing will be removed when an employee’s claim that it is inaccurate or unfair is sustained.” Given this strong language it is hard to imagine how charges can be sustained if is not part of an employees file.
In the Matter of the Application of PHYLLIS NUCHMAN, Petitioner, -against- JOEL I. KLEIN, CHANCELLOR, NEW YORK CITY DEPARTMENT OF EDUCATION, and THE NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents, To Vacate a Decision of a Hearing Officer Pursuant to Education Law Section 3020-a and CPLR Section 7511. Index No. 111217/10, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 30694U; 2011 N.Y. Misc. LEXIS 1215, March 10, 2011