by Betsy Combier, Editor, Parentadvocates.org/NYC Rubber Room Reporter
From Editor Betsy Combier, an opinion: Attorney Nick Penkovsky has been sued by his own law firm, sanctioned by the United States District Court, and has continuously failed to win at 3020-a arbitration hearings representing "rubber room" teachers. He replaced infamous now disbarred attorney Ed Fagan in the case cited here. However he tried again to win something and presented the issue of the "rubber rooms" in oral argument to a panel of two judges (a third judge, Susan Carney, recused herself) at the Court of Appeals on February 9, 2012. The decision: AFFIRM the lower Court.
|Disbarred Attorney Ed Fagan|
Mark Hamblett, New York Law Journal, February 10, 2012
The lawyer for New York City teachers who were placed in so-called "rubber rooms" for extended periods while awaiting possible disciplinary proceedings tried on Feb. 9 to convince a federal appeals court to reinstate their lawsuits.
Attorney Nicholas Penkovsky told Judges Robert Katzmann (See Profile) and Denny Chin (See Profile) of the U.S. Court of Appeals for the Second Circuit that a lower court was wrong to dismiss claims of employment discrimination, deprivation of a right to a prompt hearing and First Amendment retaliation for complaining about the actions of their supervisors.
The judges on the panel in Ebewo v. New York State Education Department, 10-4989-cv., also heard arguments from Assistant Corporation Counsel Ronald E. Sternberg, representing the city; Assistant Solicitor General Sudarsana Srinivasan for New York state; and, a pro se plaintiff in a consecutive case, Josefina Cruz.
Read briefs for the teachers, the city and the state.
Mr. Penkovsky represents five teachers who languished from two to five years in rubber rooms, nicknamed after the padded cells once used in mental hospitals.
In the rooms, officially called "temporary reassignment centers," as many as 600 teachers were placed at one time, according to media reports. There, the teachers spent their work weeks engaged in a variety of activities, including reading, sleeping, running small businesses and playing Scrabble.
The case was dismissed by Southern District Judge Victor Marrero (See Profile) on Nov. 15, 2011, on the report and recommendation of Magistrate Judge Andrew Peck (See Profile).
The magistrate judge also recommended sanctions of $7,000 against Mr. Penkovsky and $21,000 against Joy Hochstadt, Ms. Cruz's former lawyer, for filing "patently frivolous" claims in a Fourth Amended complaint.
The offending claims, Magistrate Judge Peck said, were that the rubber rooms violated the Thirteenth Amendment's prohibition against involuntary servitude and amounted to a hostile work environment.
The appeal of the sanctions ruling is before Juge Marrero.
At the Feb. 9 arguments, Judge Katzmann asked whether Mr. Penkovsky could cite a single case where a terminated teacher had been found to have a constitutionally cognizable property interest when they had been removed from the classroom but were still being paid full salary.
Mr. Penkovsky, a solo practitioner in Riverdale, said he could not. But he cited, Parrett v. City of Connersville, 737 F. 2d 690, where the Seventh Circuit found that a police detective who continued to be paid but was confined to a windowless office with no duties had effectively had his job taken away without due process of law.
And Parrett, Mr. Penkovsky said, was mentioned in a positive light by the Second Circuit in O'Connor v. Pierson, 426 F.3d 187 (2005), where the circuit, in dicta, kept open the possibility that a suspended, tenured employee who is being paid could raise a claim for violation of substantive due process.
Judge Katzmann asked whether, assuming the teachers were constructively discharged, "Why wouldn't state CPLR Article 78 provide them with adequate process?"
Mr. Penkovsky said that, first, federal courts properly have jurisdiction; second, there are questions about when a four-month statute of limitations for an Article 78 proceeding would start to run; and third, the violations are occurring "while waiting for the state to bring charges," so the launch of an Article 78 proceeding would be, in effect, "compelling" the state to bring charges,
The city announced in 2010 that it was terminating the rubber rooms, but Mr. Penkovsky said after oral arguments that the city has done no more than keep the teachers at district offices.
Ms. Cruz gamely told the circuit judges, "We were waiting in rubber rooms to defend ourselves." She added, "I was deprived of a constitutionally protected property interest," but, she said, the district court ignored her plea to certify a question of state law to the New York Court of Appeals on the procedural protections set forth in Education Law §3020, which she said were eliminated by New York City in 2006.
Arguing for the city, Mr. Sternberg said that "neither the briefs of the plaintiffs nor what I heard this afternoon calls into question" any of the reasoning employed by Magistrate Judge Peck or Judge Marrero.
Judge Chin asked Mr. Sternberg if the city held the position that "as long as they're paid, this can go on indefinitely?"
Mr. Sternberg answered no, but added that "under the circumstances" there are proceedings to challenge both the length of delay and the conditions, and both judges in the lower court "pointed out that Article 78 is available."
Judge Chin explored the claim that some of the teachers were constructively discharged.
"If you are relegated to a room day after day with nothing to do, isn't that constructive discharge?" he asked, raising the issue of the police detective in Parrett.
Mr. Sternberg said he did not have a "response" to Parrett but said the plaintiffs here not only continued to be paid, but they failed to allege constructive discharge in their complaint.
Ms. Srinivasan argued that New York state was not even a proper party to the litigation, because it is merely notified about the charges, which are handled by each school district in its own way. The state, she added, only provides a list of hearing officers and a small amount of the money for the hearings.
When Mr. Penkovsky returned to the lectern, he was again questioned by Judge Katzmann on why he did not bring an Article 78 proceedings.
"We have case law that says Article 78 proceedings are appropriate in this context," the judge said.
Mr. Penkovsky returned to his original point, saying that Article 78 cases only apply when a teacher has been terminated.
"However," he added, "where there is no hearing, there is a procedural due process" claim to be made.
A third judge, Susan Carney, recused herself.
Nick Penkovsky and Joy Hochstadt, Two Lawyers Who Took On NYC "Rubber Room" Cases, Are Reprimanded In Federal Court
Con Man and Snake Oil Salesman Ed Fagan Tries To Shut Down Parentadvocates.org., Lewenstein Serves Subpoena on Gizella Weisshaus