Join the GOOGLE +Rubber Room Community

Tuesday, February 21, 2012

Probationary Teacher Lisa Capece Wins Her Case Against The NYC DOE, Wins Reinstatement and Backpay

Orders Her Reinstated With TenureJudge: S.I. Principal Fired Teacher for Union Activity

David Sims, The Chief, February 17, 2012


A Staten Island Principal discriminated against a Teacher and dismissed her because of her activity as a United Federation of Teachers chapter leader, a Staten Island Supreme Court Justice ruled Feb. 10, while ordering that she be reinstated with more than three years’ back pay.
Lisa Capece, who taught fifth grade at P.S. 1 in Staten Island from January 2005 to July 2008, sued the Department of Education over her dismissal, which occurred while she was still a probationary Teacher.
Found Union-Related Animus
Because probationary employees can be discharged at will, without a hearing, the burden was upon Ms. Capece to prove that the termination was made in bad faith. Justice Kim Dollard ruled that there was clear evidence that P.S. 1’s Principal, Diane Gordin, had a personal animus against Ms. Capece based on her union activity.
Ms. Capece was rated satisfactory over her first 2-1/2 years of teaching by the school’s former Principal, Teri Rosenberg, and Ms. Gordin, who was Assistant Principal until being promoted in the fall of 2006.
One evaluation from Ms. Gordin read, “You have a nice way with your students. You continuously praise them and make them feel very comfortable in contributing their ideas.”
But the tone of Ms. Capece’s evaluations shifted around March 2007, following her asking Ms. Gordin in writing when she would be paid for missed prep periods (free periods that are sometimes missed because of other teaching duties).
Principal Lost It
Ms. Capece had recently become co-chapter chair for the school along with a tenured Teacher, Diana Allen, and they made the request together. Ms. Gordin summoned the two of them to a hearing, Ms. Allen testified,  and “spoke to her in a nasty tone, put her hand up to her face and told her to shut up,” the judge noted. Ms. Capece also said she was yelled at and dismissed from the office.
From then on, Ms. Capece’s evaluations suffered, including “skewed analysis of student test scores” and a poor classroom evaluation. In November 2007, she consented to have her probationary period extended for another year after she was told to sign the agreement or risk termination.
“It would have been more difficult to recommend denial of tenure to Capece without additional negative ratings,” Justice Dollard wrote in her decision. “Therefore, the court is of  the opinion that Gordin viewed the extension of probation to be necessary to insure that there would be enough of a basis and record to get petitioner out of the school as of the end of the 2007-2008 school year.”
Clear Signs of Retaliation
Ms. Capece was always rated unsatisfactory after her probation was extended, even though her students’ test scores were on par with those in other fifth-grade classes. Ms. Gordin also engaged in several examples of retaliatory conduct, like accessing a personal computer file of Ms. Capece’s, and discussing personal information about her to parents.
Ms. Gordin testified that she initially gave satisfactory ratings because Ms. Capece was a new Teacher with little experience.
“However, one can presume that regardless of being a new Teacher, if the ability of a Teacher is seriously lacking, a satisfactory rating would be inappropriate despite the time of observation,” Justice Dollard said.
She pointed out that Ms. Gordin was so intimidating, Ms. Capece and Ms. Allen resigned from their positions as chapter leaders. She said she found their testimony about the meeting with Ms. Gordin much more credible.
“Diana Allen, as a tenured Teacher, was ‘safe’ in that had Gordin sought to fire her, it would have been quite difficult,” she said. “As an untenured Teacher, petitioner was a viable target; a virtual sitting duck.”
She ordered that Ms. Capece be reinstated at P.S. 1 with retroactive back pay and benefits, as well as tenure.
“She was terminated because she was a poor Teacher—not because of union activities,” said city attorney Adam Collyer in a statement. “The other UFT co-chapter leader at that school has consistently received satisfactory ratings and is still employed. We are disappointed with the decision and are considering our legal options.”
 Judge Orders Rehiring of Teacher
Feb. 15, 2012, 8:22 a.m.
A state judge has ordered the city to rehire a Staten Island teacher who lost her job about four years ago.
The unusual ruling, which the city could appeal, involves Lisa Capece, who taught at Public School 1 Tottenville on Staten Island from 2005 to 2008. When she didn’t get tenure she challenged the decision through the grievance system established in the city’s contract with the teachers’ union, the United Federal of Teachers. She lost her case.
Most teachers stop at that point, but Ms. Capece took her case to court.
“She viewed it as her career,” her lawyer, Jonathan Behrins, said. “This is what she loved to do.” Mr. Behrins said his client declined to speak with reporters but was very happy about the ruling.
Ms. Capece claimed that she got good ratings from her principal until she complained about losing scheduled “prep time.” A Staten Island judge, Kim Dollard, found that Ms. Capece had “sufficiently met her burden in demonstrating that her dismissal was done in bad faith,” and that it was “in violation of a constitutionally permissible purpose, her involvement in the U.F.T., as the co-chapter leader” of her school.
But the city’s Law Department disagreed with the ruling.
“She was terminated because she was a poor teacher — not because of union activities,” said a city lawyer, Adam Collyer.
“The other U.F.T. co-chapter leader at that school has consistently received satisfactory ratings and is still employed,” Mr. Collyer said. “We are disappointed with the decision and are considering our legal options.”
The Law Department also said the city was not required to rehire Ms. Capece during the appeals process.
Mr. Behrins pointed out that the other co-chapter leader Mr. Collyer referred to already had the protection of tenure. He also said the case showed the danger of relying too heavily upon principals to determine which teachers are most effective.
He estimated that his client’s legal fees would add up to a year’s salary. He said she made $51,000 in her last year as a full teacher, and would have received an increase upon making tenure.
Beth Fertig is a senior reporter at WNYC. Follow her on Twitter @bethfertig

NYC DOE Did Not Breach Employment Contract When Former AP Nancy Miller Was Demoted For Forcing Kids To Eat Off The Floor

Demotion for Making Students Eat on Floor Held Not to Violate Pact

PS 34 protest against Nancy Miller
New York Law Journal
Cite as: Miller v. Theodore-Tassy, 7593/08, NYLJ 1202542558456, at *1 (App. Div., 2nd, Decided February 7, 2012)
A former assistant vice principal who was demoted after she allegedly forced 13 bilingual students to eat on the floor with their hands has been rebuffed in her attempt to sue the teacher who reported the discipline to school officials.
A unanimous panel of the Appellate Division, Second Department, dismissed a claim of tortious interference with a contract filed by former assistant principal Nancy Miller against teacher Margaret Theodore-Tassy.
Ms. Theordore-Tassy made a prima facie showing that the New York City's Department of Education "did not breach a contract of employment" with Ms. Miller when Ms. Miller was discontinued from her probationary assistant principal's position, the court ruled on Feb. 7 in Miller v. Theodore-Tassy, 2010-10119.
Moreover, the Second Department found that Ms. Miller had failed to raise a triable issue of fact as to whether the education department breached a contract with her following the March 2005 incident, which attracted widespread negative publicity.
In dismissing the suit, the unanimous panel reversed a decision by Queens Supreme Court Justice Kevin J. Kerrigan (See Profile) that had permitted Ms. Miller's action against Ms. Theodore-Tassy to proceed.
Ms. Miller was on lunch duty at P.S. 34 in Queens when she apparently decided that Ms. Theodore-Tassy's Haitian students were misbehaving. According to the account that the teacher gave to school authorities and the subsequent investigation, Ms. Miller disciplined the students by forcing them to eat on the floor without utensils.
Ms. Theodore-Tassy later asked her students to write statements describing what happened, letters that were reviewed during the investigation by the Board of Education's Office of Special Investigations.
Following a hearing, Ms. Miller was found guilty of forcing the students to eat on the floor, not allowing them to use utensils, and bringing widespread negative publicity to the department, but she was found not guilty of calling them "animals" and making disparaging remarks about their country of origin. She was fined $10,000 and returned to her job as a teacher.
In April 2006, Ms. Miller filed a defamation action against Ms. Theodore-Tassy, school officials, the other teacher, the parent, and news media outlets. The claims all were thrown out. Ms. Miller then sued Ms. Theodore-Tassy, another teacher and a parent for tortious interference.
Her complaint claimed that Ms. Theodore-Tassy helped her students write false accounts of the incident, including unsubstantiated allegations that the vice principal told the children that "in Haiti they treat you like animals, and I treat you the same way here."
She also charged that the teacher, with the help of the codefendants, disseminated the students' letters to the New York Daily News and other media outlets.
Ms. Miller claimed Ms. Theodore-Tassy harbored a "deep and abiding contempt, distrust and dislike" for her and tried to destroy the vice principal's reputation out of fear of losing her job because enrollment was declining in the bilingual program.
Ms. Theodore-Tassy's actions, she said, interfered both with a collective bargaining agreement and a purported oral contract Ms. Miller had with P.S. 34 principal Pauline Shakespeare.
On Aug. 30, 2010, Justice Kerrigan denied Ms. Theodore-Tassy's motion for summary judgment, finding that Ms. Miller's complaint satisfied the elements for a tortious interference claim: the existence of a contract, a showing that the defendant knew about the agreement and that she intentionally induced the city to breach it, damaging Ms. Miller.
Justice Kerrigan questioned whether Ms. Theodore-Tassy's alleged actions, especially claims that she contacted the press, were within the scope of her duties as a teacher.
Moreover, the judge noted that Ms. Theodore-Tassy could not prove that either the collective bargaining agreement or oral contract did not exist.
On appeal, the city argued that Ms. Miller did not identify any specific contract provision of the principals' agreement that the education department had violated.
It also noted that Ms. Miller had not asserted the existence of an oral contract in her complaint, only mentioning it during a deposition. In any case, the city said that the claim was "inherently incredible and is flatly contradicted by documentary evidence."
The Second Department accepted the city's argument in an unsigned opinion joined by Justices Mark C. Dillon (See Profile), John M. Leventhal (See Profile), Ariel E. Belen (See Profile) and Plummer E. Lott (See Profile). The panel heard oral arguments on Jan. 17.
"We are pleased with the decision and believe that the demotion and fine were an appropriate disciplinary action," Tahirih Sadrieh, senior counsel at the New York City Law Department, said in a statement.
Marshall B. Bellovin of Ballon Stoll Bader & Nadler in Manhattan, who represents Ms. Miller, said that his client is considering an appeal.
"We agree with the trial court that the defendant failed to meet her burden and she failed to show that the oral and written contracts did not exist," Mr. Bellovin said in an interview.
He added that the teacher did not offer evidence contradicting Ms. Miller's claim that she told the students to write letters making false statements and instructed the other teacher to contact the media.
Rudy A. Dermesropian also advised Ms. Miller.
For Respondent: Ballon Stoll Bader & Nadler, P.C., New York, N.Y. (Marshall B. Bellovin and Rudy A. Dermesropian of counsel).
For Appellant: Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F. X. Hart and Tahirih M. Sadrieh of counsel).

In an action to recover damages for tortious interference with contract, the defendant Margaret Theodore-Tassy appeals from an order of the Supreme Court, Queens County (Kerrigan, J.), entered August 30, 2010, which denied her motion for summary judgment dismissing the complaint insofar as asserted against her or for leave to amend her answer to add certain affirmative defenses.
ORDERED that the order is reversed, on the law, with costs, that branch of the motion of the defendant Margaret Theodore-Tassy which was for summary judgment dismissing the complaint insofar as asserted against her is granted, and the motion is otherwise denied as academic.
In 2004 the plaintiff, a tenured teacher, was appointed as a probationary assistant principal at an elementary school in Queens by the school's principal, who acted pursuant to authority delegated to her by the Chancellor of the City of New York Department of Education (hereinafter the DOE). In March 2005, an investigation was initiated after allegations arose that the plaintiff, while supervising lunch in the cafeteria, disciplined a class of students taught by the defendant Margarette Tassy, sued herein as Margaret Theodore-Tassy, by forcing the students to eat their lunch on the floor, not allowing them to retrieve utensils and thereby forcing them to eat with their hands, referring to them as "animals," and making disparaging remarks about their country of origin. The allegations garnered considerable press coverage.
Following the investigation, the allegations that the plaintiff forced the students to eat lunch on the floor without utensils and referred to them as animals were substantiated, but the allegation that she made disparaging remarks about their country of origin was not substantiated. Thereafter, the plaintiff was discontinued as a probationary assistant principal, and the DOE preferred charges against her pursuant to Education Law §3020-a. Following a hearing, the plaintiff was found guilty of forcing the students to eat lunch onthe floor, not allowing them to retrieve utensils, and causing widespread negative publicity to the DOE by these actions, but she was found not guilty of referring to the students as animals. The hearing officer imposed a fine of $10,000, and the plaintiff resumed duties as a teacher.
The plaintiff commenced this action against, among others, Tassy to recover damages for tortious interference with contract, citing a contract of employment between her and the DOE whereby she was appointed to be a probationary assistant principal. The plaintiff alleged, inter alia, that Tassy instructed her students to write fabricated accounts of the cafeteria incident in which they accused the plaintiff of making derogatory remarks to them, helped the students write the accounts, reported the fabricated incident to school officials, and, in concert with others, disseminated the fabricated incident to the press, actions which procured a breach of her employment contract with the DOE. In the order appealed from, the Supreme Court, among other things, denied that branch of Tassy's motion which was for summary judgment dismissing the complaint insofar as asserted against her.
To prevail on a cause of action alleging tortious interference with contract, a plaintiff must establish "the existence of a valid contract between the plaintiff and a third party, defendant's knowledge of that contract, defendant's intentional procurement of the third-party's breach of the contract without justification, actual breach of the contract, and damages resulting therefrom" (Lama Holding Co. v. Smith Barney, 88 NY2d 413, 424; see NBT Bancorp v. Fleet/Norstar Fin. Group, 87 NY2d 614, 620-621; Monex Fin. Servs., Ltd. v. Dynamic Currency Conversion, Inc., 76 AD3d 515). Here, Tassy made a prima facie showing of her entitlement to judgment as a matter of law by submitting evidence demonstrating that the DOE did not breach a contract of employment with the plaintiff when she was discontinued from her probationary assistant principal position. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the DOE breached an employment contract with her (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324). Accordingly, the Supreme Court should have granted that branch of Tassy's motion which was for summary judgment dismissing the complaint insofar as asserted against her.
 In light of our determination, Tassy's remaining contentions have been rendered academic.
JG weighs in on the Abuse of Haitian kids at PS 34
April 13, 2005
"They Will Treat You Like Animals"
The Abuse of Haitian Kids at PS 34
By J.G.

Los Angeles, Cali.

savage (noun)
1. vicious or violent person somebody who enjoys treating other
people and animals in a cruel and violent way
2. offensive term an offensive term for a member of a people
considered inferior or not as advanced as your own group

Peace to Encarta the Linguists across North America thank you.

Either the administrators of New York City's Public School 34 aren't hip to semantics, or their most recent interpretation and application of the term "savage" is entirely incongruent to the discourse of White-patriarchal-privilege, and most specifically here, the hastening assault against the Haitian Global Community by a myriad selection of American society. For further elaboration, please see the following.

As a seasoned and rather proud cynic, there are few displays of barbarism that tweak the nerves, bring about a spat of fury, a vitriolic spasm, and what have you. Forget that last bit of deceit. In reality, all too often, I do succumb to the sexy red temptress of rage. The latest chapter of rancor and virulence proliferated by New York Public School 34's Assistant Principle Nancy Miller and Principle Pauline Shakespeare has my bowels in fits.

"While all my city is heavy I drop elephant shit
Smeared the face of the fascist priest's pulpit"
______________Zach De La Rocha


New York's cultural cabal stays heavy, dropping fecal matter from the fuselage of pig despotism, late-night blackface, mayoral-Mussolinism and the like; Stuka war eagles razing the Black, Brown and Migrant communities like the Ho Chi Minh trail. For the Haitian Community, Operation Phoenix leapt through McNamara's porthole of kill-tha-gook and embedded itself within the psyche of city-commandants. 'Nou tout Viet Cong' We are all Viet Cong. Savages, in short.

Thirteen fourth grade students on public trial. The jury PS34 populace. The courtroom school cafeteria. The crime being Haitian. 

In response to a classroom conflict involving two students, educational hack Nancy Miller, as white-cloaked-judge in de facto robe, sentenced the youths to public humiliation and ethnic degradation. As punishment for acting in the universal vein of childhood, she sat the children on the cafeteria floor before the student-jury, forced them to eat their lunch of rice and chicken with bare hands, subjecting them to a primary-educational-stoning, equipped with demeaning glances and ridicule per their peers. 

According to the "guilty" parties, Miller's articulation was as such: "In Haiti, they treat you like animals, and I will treat you the same way here." Yes Ms. Miller, in Haiti, they, 'Blancs yo' (Whites / foreigners / outsiders, aka UN, U$, France, Canada, USAID, OAS, CIA, 184, Haitian Elite) do treat us as inferior peoples, acting as only savages can. We expect no less from you, you studious apprentice. Only through the lens of a dysfunctional clique of negrophobes could such a valiant people be "considered inferior." If time travel were possible, now would be an excellent time to send message to General Le Clerc and Napoleon Bonaparte. The query: How humiliating was the serving, guerilla style in 1804?

The plot thickens. Principle Pauline Shakespeare, a sister no less- pause for dramatic effect - a 'fucking' sister exemplified the role of house-hand, Sanbo, McWhorter, Watts, Powell, Condoskeeza, Cosby, Blackwell; attempted a cover up, in doing so, efforting to bribe the gesticulating "savages," rather "animals," with ice cream. 
Shit, you know tha ghetto's got sweet teeth. Miller and Shakespeare promoted the stereotype to the wrong community. In Haiti, we sharpen sugar cane stalks to pierce United Nations APV's.

Mucho Kudos to Juan Gonzalez of the 'New York Daily News' for breaking a story, previously solely known to the listener ship of New York and East Coast Haitian Radio. I'll go on the offensive here.

Those who are morally outraged and shocked require a crash-course in Jim Crow history. For extra credit, do rent Jerry Bruckheimer's amateurish, over-budgeted, over-hyped, vituperative, virulent Hollywood concoction, Bad Boys II, from your neighborhood dope dealer (Hollyhood Video the pointy cap, sorcerer type of hood of "lynch a nigga by his toe", as opposed to "Boys in tha Hood"). Will Smith's gloves are as white as bleach, lips as red as Porsche during the many scenes in which Haitian's are demeaned, vilified, dehumanized and slandered with a belligerence not bettered by Jesse Helms. Or, find a copy of Rockstar's video-gaming filth, Vice City. 

Deconstruct the argumentation of genocide: "I hate those Haitians. We'll take them out, we'll take these Haitians down," uncannily similar logic permeating the above shoot-em-up pornography (that's how Bruckheimer does it, PS2's fo real!). Arsenio and Whoopi cooning to Middle America circa 1990's with limericks about AIDS and Haitians; Abner Louima, toilet plunger, need I say more? And the savages are? That the latest colonization, pillage and genocide of the Haitian People (presidential kidnapping and coup d'etat, February 29th 2004, 10,000+ murdered since, countless internally and externally exiled, Apartheid on the rise) be ample ammunition to spark the carbines of dissent is understood. Yeah, the PS34 investigation ensues, bureaucratic double-speak tight-lipped replies to independent media intrigues. This drama was authored centuries past by an ancestor by way of slave-ownership of school Principal Ms. Pauline, The Shakespeare, William precisely. Moral outrage is the director's cue.

Appealing to the collective conscience of that class history has proven have none, is no more than propagating a lineage of perfunctory reforms increasingly insulting to the victims of injustice. 'Revolution or Reform? Revolution in the Revolution'? My
peoples Rosa and Regis, where tha hell you at?


JG is of the best-known and most recognizable Independent Hip Hop artists nationally. His music deals exclusively with the plight of disenfranchised communities, most specifically, that of the Haitian Global Village. His most recent release, Boomerang Politick, which protests the most recent occupation of Haiti, is available for purchase at his website: and at IMIX Bookstore in Los Angeles California.





Chancellor Joel Klein: Tel: 212-374-0200, Fax: 212 374 5588, 

Regional Superintendent Judith Chin: Tel: 718-281-7528, Email: and

* Robert Small - Head of Special Investigation into this PS-34 abuse case
* Jennifer Graham - Head of the Response Team for Chancellor Joel Klein on this PS-34 matter at 212-374-5156
* Local Instructional Superintendent Janet Won at 718-281-3407, and
* PS-34 at 718 465 6818
Your local congressional representative in New York, the media and the mayor’s office to spread the word and fax this sheet to all Press contacts.

The Haitian community will not tolerate human rights abuses in the U.S.

We have suffered ENOUGH!!! Our children will be vindicated only with a full and public apology, the firing of both Miller and Shakespeare and the school providing counseling and trauma care to these 8 and 9 year old innocents.

For more Information:
Call 718-464-6068 or email:
April 12, 2005 

Forwarded by the Haitian Lawyers' Leadership Network

A Look At The Los Angeles Rubber Rooms

It’s called the "rubber room" -- a popular name for a reassignment center many say is emblematic of what is wrong with public education.
The rubber room is where teachers accused of everything from drug abuse to sexual harassment are sent to do nothing, but still collect a salary, benefits and accrue time toward pensions.
"Several of the people I know in rubber rooms have been there two years, some people as long as five years," said Leonard Isenberg, a disciplined LAUSD teacher. "You don’t just sit there. You can’t do anything. Think of Abu Ghraib or Guantanamo, with a paycheck."
The Los Angeles Unified School District has 161 teachers assigned to various offices throughout the district. It’s a policy LAUSD Superintendent John Deasy is trying to change – as in the case with former Miramonte Elementary School teacher and accused child molester, Mark Berndt.
"Traditionally what the district has done is to say we put you in an office, we pay you, and we wait for all the stuff to happen," Deasy said. "I am not acting that way."
There are plenty of teachers who support efforts to get rid of reassignment centers, but for different reasons.
Leonard Isenberg, who taught in the district for 25 years, said he ended up in one after repeatedly complaining that his school, Central Continuation High School, was graduating students with second-grade reading levels.
He said that angered the principal, and that led to accusations of him yelling at students and watching pornography in class.
Isenberg used his time in the rubber room to create a web site,, which looks critically at the district, reassignment centers and its discipline procedure.
He was ultimately fired by the district, but still has an appeal hearing later this year. Isenberg said the district’s procedures make teachers guilty until proven innocent and fearful of false accusations.
"The students know they can get teachers in trouble by just saying anything," Isenberg said.
Retired teacher and California Teachers Empowerment Network president Larry Sand said rubber rooms are necessary and are not going away anytime soon.
"There’s arbitration and hearings and all sorts of things that have to take place before a teacher would actually lose his job," Sand said. "If he’s not in the classroom, they have to put him somewhere."
Follow NBCLA for the latest LA news, events and entertainment: Twitter: @NBCLA // Facebook:NBCLA