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Cacavas ruled that the DOE had violated the act and ordered that the disciplinary letter and unsatisfactory rating be rescinded.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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Does dismissal of a teacher found to have sexually harassed and verbally abused one student for one single incident shock the conscience of the Court?

No. Reinaldo Palencia, a twenty-two year veteran teacher, most recently from Martin Van Buren High School, was found by arbitrator Arthur Riegel to have, on one occasion, touched the shoulder of a female student and whisper in her ear words to the effect that if he were the student’s age he would fuck her.

Palencia raised several issues but the Court focused on whether Palencia’s good disciplinary history warranted his termination for what was basically a single incident of verbal abuse.

The Court quoted Riegel’s decision and agreed that Palencia’s action constitute[d] “classical sexual harassment” and “extreme verbal abuse.”

The Court continued, “Although termination is a severe penalty, it is
proportionate to the egregious, highly inappropriate nature of petitioner’s behavior, notwithstanding petitioners history with DOE.”

Reinaldo Palencia, Petitioner, against The New York City Board/Department of Education, Respondent. 112557/10, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 50905U; 2011 N.Y. Misc. LEXIS 2381, May 13, 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

Will the court sustain a 3020-a award when it is based on an allegation of an English translation of a Spanish word?

A court’s review of a 3020-a award is very limited. The statute provides that the court may only review issues that go to the fundamental foundation of the award such as whether there was fraud or corruption or whether the arbitrator exceeded her lawful authority. Given the limit of review it is rare that 3020-a award will be modified or reversed.

Carlos Garcia taught at the High School of International Business and Finance. During the 2008 – 2009 school year he was accused, by the principal, of using inappropriate language with his students. The gravamen of the petition was that arbitrator Martin Schienman inappropriately utilized an interpreter as an expert witness to define the Spanish word, “coňo,” a word he allegedly directly at his students. Garcia argued that the meaning of the word ranged from an expletive to a familiar greeting depending upon the particular Spanish country or culture as well as the context it was used.

Sheinman, although rejected the DOE lawyer’s demand for Garcia’s termination found a violation of Chancellor’s Regulation 421-a and fined Garcia $15,000. Garcia appealed to the Supreme Court.

In analyzing Garcia’s argument Justice Jaffe utilized the Article 78 standard of arbitrary and capricious and was unpersuaded. She did find the fine to be excessive and lowered it $1,000.

3020-a hearing appeals are guided by Article 75 of the Civil Practice Law and Rules and not by Article 78. Had Jaffe used Article 75 instead of the less restrictive standard of Article 78 it is unclear whether she would have the authority to reduce the fine. There is currently no record of any appeal.

CARLOS GARCIA vs. THE NEW YORK CITY DEPARTMENT OF EDUCATION, 2011 NY Slip Op 31045U; 2011 N.Y. Misc. LEXIS 1908, Index No. 113595/10, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, April 20, 2011