Glenn Storman Wins Back Pay + Interest In His Complaint Against The False Allegations That Destroyed His Career

edlawfaqs

Is there a remedy for a teacher who obtained a reversal of a U rating to have all back pay restored and references erased from his personnel file?

Yes. Glenn Storman started this proceeding in 2006. Storman, a teacher at the DOE for approximately 30 years, challenged an unsatisfactory rating he received resulting from allegations of sexual misconduct and corporal punishment made in retaliation for his verbally reprimanding a student in 2004. Storman's teaching career has been seriously impacted by these false allegations. In an Order dated October 26, 2007, Justice Marcy Friedman granted the petition and remanded the case to DOE for further findings of fact. After a second hearing, in a letter dated June 10, 2008, DOE upheld Storman's unsatisfactory rating. Storman then commenced a second Article 78 proceeding challenging the result of the second hearing. In an Order dated May 11, 2009, the Court granted Storman's petition because "it was irrational for the DOE to conclude that the alleged conduct amounted to corporal punishment" and "the penalty imposed was excessive and shocking to the conscience." This Court ordered that the unsatisfactory rating be annulled and that "this matter [be] remitted to [DOE] for further proceedings not inconsistent with the court's decision."

The purpose of remitting the case to DOE was for the DOE and the UFT, to take the appropriate steps to remedy the consequences of the underlying false allegations so that Storman would be properly compensated and his employment status restored. Upon remittal, the unsatisfactory rating was annulled, but no further steps were taken to compensate Storman or to remedy his employment situation. As a result, Storman moved to hold DOE in contempt. In an Order dated November 19, 2010, this Court held DOE in contempt for its willful and contumacious failure to comply with the Judgment.

The City appealed and in an Order dated May 31, 2012, the Appellate Division vacated the Contempt Order on the ground that the Judgment did not contain a "clear and unequivocal mandate." See Storman v NYC Dep't of Educ., 95 AD3d 776, 777, 945 N.Y.S.2d 281 (1st Dept 2012). Nevertheless, the Appellate Division granted Storman leave to clarify the Judgment to allow the Supreme Court the opportunity to clarify its order.

Justice Shirley Werner Kornreich, in a rare display of judicial anger, ruled that "By April 5, 2013, DOE shall do the following, pursuant to Article 21H of the CBA: (1) remove all references to the underlying false accusations from Storman's personnel file; and (2) restore back pay, with interest, that Storman did not receive on account of the underlying false accusations, including any seniority salary adjustments and lost pension benefits. If a dispute arises between the parties before such date, the parties are to promptly contact the Court, and if the parties cannot agree on the proper amount of back pay owed to Storman, Storman is granted leave to move to have such calculation referred to a Special Referee to hear and report. Finally, if DOE fails to comply with this Order in good faith, which, at a minimum, shall include an in-person meet and confer with Storman about back pay, Storman has leave to move for contempt, as DOE can no longer maintain that its mandate is not clear and unequivocal."

In the Matter of Glenn Storman, Petitioner, against New York City Department of Education, Respondent. 113652/2008, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2013 N.Y. Misc. LEXIS 12; 2013 NY Slip Op 50007U, January 3, 2013, Decided

Glenn Storman Wins in Supreme Court 

Storman's Complaint

Judge Kornreich's 2009 decision

How The New York City "Gotcha Squad" Gets Tenured Teachers Declared "Incompetent", and Placed in a Rubber Room by Betsy Combier

May 28, 2009

Teacher Resists a Charge of Corporal Punishment

By JAVIER C. HERNANDEZ, NYTIMES

LINK

When Glenn Storman, a guidance counselor at Public School 212 in Gravesend, Brooklyn, came across an unruly student cursing at a substitute teacher in 2004, he ordered the boy to “zip it” and brandished a rolled-up piece of paper, thinking that would be the last he heard of the encounter.

But five years later, Mr. Storman, 57, is embroiled in a legal dispute over allegations that he committed corporal punishment. A 27-year veteran of the school system, Mr. Storman denies hitting the student and is seeking to erase an unsatisfactory rating that a principal gave him. The Department of Education, however, has defended the rating, arguing that Mr. Storman did indeed touch the student, who was in the fifth grade.

The case shows the difficulties teachers can face in disputing the ratings they receive each year from principals. The ratings can determine whether they are eligible for lucrative teaching opportunities outside of the normal school year. The case also sheds light on the fine lines of interpretation surrounding the question of corporal punishment: Did Mr. Storman’s paper brush against the student? If so, was that intentional, and did it rise to the level of corporal punishment?

Teachers who receive unsatisfactory ratings are allowed to appeal to a court, and this month a judge in Manhattan ruled in Mr. Storman’s favor, saying she did not find evidence of corporal punishment. The unsatisfactory rating, wrote the judge, Acting Supreme Court Justice Shirley Werner Kornreich, “shocks the conscience, was arbitrary, capricious and an abuse of discretion.”

The Department of Education said last week that it was reviewing the decision and declined to comment further.

In October 2004, Mr. Storman entered a special education classroom at P.S. 212 after hearing a student yelling. When he stepped into the room, he saw the student on his knees on a chair cursing at the teacher. Holding the piece of paper in his hand, Mr. Storman recalled in an interview, he told the student to be quiet. The student moved forward as he reprimanded him, but Mr. Storman said he did not remember coming into contact with him.

Mr. Storman said he would not have hit the student because he had experience with special education students and did not believe force was the best way of resolving disputes.

“I don’t need to do anything more than to look at them and say, ‘Listen, you know to stop right now,’ ” he said.

Mr. Storman said he had been carrying the rolled-up paper while walking down the hallway. In previous statements to school officials he said he “may have touched” the student’s mouth with the paper, according to the court ruling. He says now that he does not believe that was so.

The boy’s father complained to the school’s principal, who asked for an inquiry, and in 2005, Mr. Storman, who is still a guidance counselor at P.S. 212, received an unsatisfactory rating in his annual review. He appealed, but the Department of Education stood by its determination that he had committed corporal punishment.

Mr. Storman appealed again in 2006, seeking $100,000 in compensation because, he said, the unsatisfactory rating prevented him from getting work as a summer school teacher and a tutor, work which he estimates had added about $25,000 a year to his income. He has also filed a lawsuit in federal court, which is still pending.

Mr. Storman was given another unsatisfactory rating in 2008 after his principal said he had inappropriately yelled at a student, according to Mr. Storman’s lawyer, John. C. Klotz. Mr. Storman is also appealing that rating.

An investigation by the Department of Education’s Office of Special Investigations ultimately substantiated the charges of corporal punishment. But in an apparent change of heart, the investigator who wrote that report, Dennis Boyles, testified during the appeal process that he did not believe Mr. Storman’s actions rose to the level of corporal punishment, according to the May 11 ruling.

Mr. Boyles testified in 2006 that the encounter constituted “inappropriate physical contact” but not corporal punishment, the court ruling said. Last year, Mr. Boyles reiterated his statement that he did not believe Mr. Storman’s actions amounted to corporal punishment, but added that Mr. Storman inappropriately touched the student with the paper, according to the ruling.

The Department of Education defines corporal punishment as “any act of physical force upon a pupil for the purpose of punishing that pupil.”

Mr. Boyles stated in his report that three students in the classroom at the time of the encounter could not recall seeing the paper hit the student’s face. But the fifth grader whom Mr. Storman had reprimanded told the investigator that Mr. Storman had brushed the paper against his lips and embarrassed him, though he added that he had not been physically injured.

The principal of P.S. 212 said at a hearing last year that she had recommended that Mr. Storman be given the unsatisfactory rating because of Mr. Boyles’s findings, which she believed substantiated the corporal punishment charges, according to the ruling.

Justice Kornreich called the Department of Education’s actions “irrational.”

“Nothing in the record supports the D.O.E.’s conclusion that Mr. Storman committed a substantiated act of corporal punishment,” she wrote, ordering that the unsatisfactory rating be annulled.

Mr. Storman said in an interview that the Department of Education had turned a “pebble” into a “mountain worth of wrongdoing.”

“This was a long hard, road,” he said, “and a costly one to me.”

Teacher Glenn Storman Wins in Court After Fighting the NYC BOE on False Corporal Punishment Charges

Congratulations Mr. Storman!

We now know how the NYC Board of Education works to get rid of teachers "they" dont want: write TAC memos which'prove' an allegation (see my articles on the Teacher Performance Unit and the TPU, and "Investigating the Investigators")that may or may not be true. What is striking about the case of Mr. Storman is the fact that well-known "Gotcha Squad" OSI-former-police-detective Dennis Boyles is mentioned as changing his mind about what to charge Mr. Storman:
"An investigation by the Department of Education’s Office of Special Investigations ultimately substantiated the charges of corporal punishment. But in an apparent change of heart, the investigator who wrote that report, Dennis Boyles, testified during the appeal process that he did not believe Mr. Storman’s actions rose to the level of corporal punishment, according to the May 11 ruling."

See my article about Workplace Defamation Lawsuits and, if you see Mr. Condon or Mr. Boyles, give them the URL or a copy?

Congratulations also to New York State Supreme Court Judge Shirley Werner Kornreich for seeing that the investigators who accused Mr. Storman of corporal punishment after he waved a rolled up piece of paper in the air as "irrational"(read the entire decision below).

May 28, 2009
Teacher Resists a Charge of Corporal Punishment
By JAVIER C. HERNANDEZ, NY TIMES

When Glenn Storman, a guidance counselor at Public School 212 in Gravesend, Brooklyn, came across an unruly student cursing at a substitute teacher in 2004, he ordered the boy to “zip it” and brandished a rolled-up piece of paper, thinking that would be the last he heard of the encounter.

But five years later, Mr. Storman, 57, is embroiled in a legal dispute over allegations that he committed corporal punishment. A 27-year veteran of the school system, Mr. Storman denies hitting the student and is seeking to erase an unsatisfactory rating that a principal gave him. The Department of Education, however, has defended the rating, arguing that Mr. Storman did indeed touch the student, who was in the fifth grade.

The case shows the difficulties teachers can face in disputing the ratings they receive each year from principals. The ratings can determine whether they are eligible for lucrative teaching opportunities outside of the normal school year. The case also sheds light on the fine lines of interpretation surrounding the question of corporal punishment: Did Mr. Storman’s paper brush against the student? If so, was that intentional, and did it rise to the level of corporal punishment?

Teachers who receive unsatisfactory ratings are allowed to appeal to a court, and this month Acting Supreme Court Justice Shirley Werner Kornreich ruled in Mr. Storman’s favor, saying she did not find evidence of corporal punishment. The unsatisfactory rating, wrote the judge, (pictured at right) “shocks the conscience, was arbitrary, capricious and an abuse of discretion.”

The Department of Education said last week that it was reviewing the decision and declined to comment further.

In October 2004, Mr. Storman entered a special education classroom at P.S. 212 after hearing a student yelling. When he stepped into the room, he saw the student on his knees on a chair cursing at the teacher. Holding the piece of paper in his hand, Mr. Storman recalled in an interview, he told the student to be quiet. The student moved forward as he reprimanded him, but Mr. Storman said he did not remember coming into contact with him.

Mr. Storman said he would not have hit the student because he had experience with special education students and did not believe force was the best way of resolving disputes.

“I don’t need to do anything more than to look at them and say, ‘Listen, you know to stop right now,’ ” he said.

Mr. Storman said he had been carrying the rolled-up paper while walking down the hallway. In previous statements to school officials he said he “may have touched” the student’s mouth with the paper, according to the court ruling. He says now that he does not believe that was so.

The boy’s father complained to the school’s principal, who asked for an inquiry, and in 2005, Mr. Storman, who is still a guidance counselor at P.S. 212, received an unsatisfactory rating in his annual review. He appealed, but the Department of Education stood by its determination that he had committed corporal punishment.

Mr. Storman appealed again in 2006, seeking $100,000 in compensation because, he said, the unsatisfactory rating prevented him from getting work as a summer school teacher and a tutor, work which he estimates had added about $25,000 a year to his income. He has also filed a lawsuit in federal court, which is still pending.

Mr. Storman was given another unsatisfactory rating in 2008 after his principal said he had inappropriately yelled at a student, according to Mr. Storman’s lawyer, John. C. Klotz. Mr. Storman is also appealing that rating.

An investigation by the Department of Education’s Office of Special Investigations ultimately substantiated the charges of corporal punishment. But in an apparent change of heart, the investigator who wrote that report, Dennis Boyles, testified during the appeal process that he did not believe Mr. Storman’s actions rose to the level of corporal punishment, according to the May 11 ruling.

Mr. Boyles testified in 2006 that the encounter constituted “inappropriate physical contact” but not corporal punishment, the court ruling said. Last year, Mr. Boyles reiterated his statement that he did not believe Mr. Storman’s actions amounted to corporal punishment, but added that Mr. Storman inappropriately touched the student with the paper, according to the ruling.

The Department of Education defines corporal punishment as “any act of physical force upon a pupil for the purpose of punishing that pupil.”

Mr. Boyles stated in his report that three students in the classroom at the time of the encounter could not recall seeing the paper hit the student’s face. But the fifth grader whom Mr. Storman had reprimanded told the investigator that Mr. Storman had brushed the paper against his lips and embarrassed him, though he added that he had not been physically injured.

The principal of P.S. 212 said at a hearing last year that she had recommended that Mr. Storman be given the unsatisfactory rating because of Mr. Boyles’s findings, which she believed substantiated the corporal punishment charges, according to the ruling.

Justice Kornreich called the Department of Education’s actions “irrational.”

“Nothing in the record supports the D.O.E.’s conclusion that Mr. Storman committed a substantiated act of corporal punishment,” she wrote, ordering that the unsatisfactory rating be annulled.

Mr. Storman said in an interview that the Department of Education had turned a “pebble” into a “mountain worth of wrongdoing.”

“This was a long hard, road,” he said, “and a costly one to me.”

Judge: Brush With Paper Roll Wasn't Corporal Punishment
LINK

Back in 2005, Glenn Storman, a guidance counselor at P.S. 212 in Gravesend, entered a special education classroom in which a fifth-grader was kneeling on his chair cursing at the teacher. What happened next is a matter of debate: Storman says he happened to be holding a rolled up piece of paper when he told the boy to "zip it." But according to the Times, the student says Storman "brushed the paper against his lips and embarrassed him." After an investigation, Storman got an unsatisfactory rating in his annual review, which is a big deal because it prohibits him from getting extra work as a summer school teacher and a tutor. But after a long legal battle, it looks like the alleged paper punisher will be vindicated: A judge ruled earlier this month that Storman's actions did not constitute corporal punishment, and said the unsatisfactory rating "shocks the conscience, was arbitrary, capricious and an abuse of discretion." The Department of Education is reviewing the decision while defending another lawsuit brought by Storman in federal court. And it's unclear if the student has yet to recover from his brush with rolled up paper.

By John Del Signore in News on May 28, 2009 11:40 AM

Glenn Storman Prosecuted Again, Sues Josephine Marsella and Dennis Boyles

After reading the New York Times article on Glenn Storman (see my previous posting, "Teacher Glenn Storman Wins in Court After Fighting the NYC BOE on False Corporal Punishment Charges"), I realized that this could be a bigger story than what was printed there. It most certainly is. The remand back to the NYC BOE for another hearing was followed by new charges and another federal lawsuit, this time filed not only against the New York City BOE, but PS 212 Principal Josephine Marsella and OSI investigator Dennis Boyles.

The Storman case could change everything in terms of the "Gotcha Squad" and the "rubberization" process, defined as the process in which "The Chancellor's Committee" works with Principals and pretend investigators to destroy people who say anything about them, their school(s), or the harm going on perpetrated by administrators gone wild.

Former Deputy Chancellors Andres Alonso (pictured at right) and Marcia Lyles (pictured below) agreed with the "U" as they always do, to support whatever charge is made without witness testimony and/or evidence.

The best way to get an overview of where the case stands right now and the ridiculous antics of the Bloomberg/Klein bunch in the matter of Glenn Storman is to read the Report and Recommendation of District Court Judge Andrew Peck.

Glenn Storman, is a tenured teacher and Guidance Counselor who has worked for the NYC BOE for 28 years. He was accused of corporal punishment and found guilty by the Principal based upon an allegation of student A, who he reprimanded for cursing at his classroom teacher. Student A told classmates that he would "get" Mr. Storman for waving a rolled up piece of paper near his face and telling him to stop [cursing]. A few days later the father met with Principal Marsella and told her that Mr. Storman had "inserted a piece of paper into Student A's mouth for the purpose of obtaining sexual pleasure". When OSI investigator Dennis Boyles came to the school to "investigate", Student A was not at school that day and was not interviewed. Mr. Storman then sued the New York City Board of Education in federal court for giving him a "U" rating and accusing him of corporal punishment without proof.

Related story:

The "Gotcha Squad" and the New York City Rubber Rooms

Appellate Court Rules That ATR Status For A Tenured Teacher Does Not Violate Any "Clear and Unequivocal" Mandate

In re Diana Hrisinko, Petitioner-Appellant, v Board of Education of the City
School District of the City of New York, et al., Respondents-Respondents.
8752 110191/08

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST
DEPARTMENT
2012 N.Y. App. Div. LEXIS 8328; 2012 NY Slip Op 8431
December 6, 2012, Decided
December 6, 2012, Entered

COUNSEL: [*1] The White Rose Group, LLC, Jackson Heights (Jesse C. Rose of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Fay Ng of counsel), for respondents.
JUDGES: Tom, J.P., Mazzarelli, Moskowitz, Abdus-Salaam, Feinman, JJ.

OPINION
Appeal from order, Supreme Court, New York County (Joan B. Lobis, J.), entered August 19, 2011, which denied petitioner's motion for an order holding respondents in contempt of an order, same court (Marilyn G. Diamond, J.), entered March 3, 2010 (the prior order), unanimously dismissed, without costs.

The 2011 order is not appealable as of right, as it was "made in a proceeding against a body or officer pursuant to [CPLR] article 78" (CPLR 5701[b][1]; see Matter of Storman v New York City Dept. of Educ., 95 AD3d 776, 777 [1st Dept 2012], appeal dismissed 19 NY3d 1023 [2012]). We decline to grant petitioner leave to appeal from that order in the interest of justice.

Were we to review the 2011 order, we would find that the motion court providently exercised its discretion in holding that respondents should not be held in contempt (see Storman, 95 AD3d at 777; Richards v Estate of Kaskel, 169 AD2d 111, 122 [1st Dept 1991], lv dismissed in part, denied in part [*2] 78 NY2d 1042 [1991]). Although the prior order declared that petitioner had "been a tenured teacher of Commercial Art'" since September 2, 2005, it did not reference the "Commercial Art" position, or any other specific teaching assignment, in its mandate, instead directing only that
petitioner be reinstated "to her position as a tenured teacher." "Any ambiguity in the court's mandate should be resolved in favor of the would-be contemnor" (Kaskel, 169 AD2d at 122). Accordingly, we find that, in reinstating petitioner to the position of tenured teacher and assigning her to serve as an absent teacher reserve, respondents did not violate any "clear [**2] and unequivocal" mandate (Storman, 95 AD3d at 777 [internal quotation marks omitted]; see Matter of Department of Envtl. Protection of City of N.Y. v Department of Envtl. Conservation of State of N.Y., 70 NY2d 233, 240
[1987]).
Page 1
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION,
FIRST DEPARTMENT.
ENTERED: DECEMBER 6, 2012

HRISINKO v. NEW YORK CITY DEPARTMENT OF EDUCATION LINK  

Diana Hrisinko, Plaintiff-Appellant,Josefina Cruz, Andrea Shapiro, Diana Lee Friedline, Ismael Diaz, Anthony Ferraro, Elaine Jackson, Midge Maroni, David McMullen, Ram Narine, Geraldine Whittington, Gloria Chavez, Fitzroy Kington, Erica Weingast, Plaintiffs,v.New York City Department of Education, Graphic Communication Arts High School, Jerod Resnick, Dominic Cipollone, Edward Demeo, Jacqueline Kennedy Onassis High School, M.S. 219, Eric Brand, Judith Silverman, Defendants-Appellees.

No. 08-6071-cv.

United States Court of Appeals, Second Circuit.

March 11, 2010.

DIANA HRISINKO, pro se, New York, N.Y., for Appellant.

MICHAEL A. CARDOZO, Corporation Counsel of the City of New York, New York, N.Y., for Appellees.

Present: JOSEPH M. McLAUGHLIN, Circuit Judge, KIMBA M. WOOD,^* District Judge.^**

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SUMMARY ORDER

UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND DECREED that the judgment of the district court is AFFIRMED in part and VACATED and REMANDED in part.

Plaintiff-Appellant Diana Hrisinko, pro se, appeals from a judgment of the United States District Court for the Southern District of New York (Rakoff, J.), granting summary judgment to the Defendants-Appellees and dismissing Appellant's complaint brought pursuant to the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. § 621 et seq., and the Equal Protection Clause of the Fourteenth Amendment of the Constitution, actionable through 42 U.S.C. § 1983. We assume the parties' familiarity with the underlying facts and procedural history of the case.

We review orders granting summary judgment de novo and determine whether the district court properly concluded there was no genuine issue as to any material fact and the moving party was entitled to judgment as a matter of law. See Cronin v. Aetna Life Ins. Co.,46 F.3d 196, 202-03 (2d Cir. 1995).¹

As an initial matter, we note that Appellant has not challenged the dismissal of her § 1983 claim against the New York City Department of Education on the ground that her principal did not have final policymaking authority. Thus, we affirm this dismissal. See Losacco v. City of Middletown,71 F.3d 88, 92 (2d Cir. 1995).

The ADEA prohibits employers from refusing to hire, discharging, or otherwise discriminating against an employee with regard to compensation, terms, conditions, or privileges of employment because of age.²See 29 U.S.C. § 623(a)(1). Historically, this Court has applied the burden-shifting framework of McDonnell-Douglas to ADEA claims. See, e.g., D'Cunha v. Genovese/Eckerd Corp.,479 F.3d 193, 194-95 (2d Cir. 2007) (per curiam). The Supreme Court recently held that under the plain language of the ADEA, an employee bringing a disparate treatment claim must prove by a preponderance of the evidence that age was the "but-for" cause behind the employer's adverse decision, and not merely one of the motivating factors. Gross v. FBL Fin. Servs., Inc.,129 S.Ct. 2343 (2009). The Supreme Court noted that it had "not definitively decided whether the evidentiary framework of [McDonnell Douglas], utilized in Title VII cases is appropriate in the ADEA context," id. at 2349 n.2, and did not apply its burden-shifting framework in holding that the ADEA does not authorize a "mixed-motives age discrimination claim," id. at 2350-52. In a recent opinion, this Court held that, although Gross changed the latter part of the McDonnell Douglas formulation "by eliminating the mixed-motive analysis that circuit courts had brought into the ADEA from Title VII cases," this Court remained bound by the burden-shifting framework previously employed in this Circuit. See Gorzynski v. Jetblue Airways Corp., ___ F.3d ___, 2010 WL 569367, at *11 (2d Cir. Feb. 19, 2010).

If a plaintiff alleges a prima facie case of discrimination and the employer demonstrates a legitimate, non-retaliatory reason for the challenged employment decision, the plaintiff must present evidence that would be sufficient to permit a rational jury to conclude that the employer's explanation is merely a pretext for impermissible discrimination. Id. at *10. In order to establish a prima facie case of discrimination, a plaintiff must show that: (1) she was within the protected age group; (2) she was qualified for the position; (3) she experienced an adverse employment action; and (4) such action occurred under circumstances giving rise to an inference of discrimination. See Carlton v. Mystic Transp., Inc.,202 F.3d 129, 134 (2d Cir. 2000).

Appellant challenges the district court's conclusion that she failed to establish an adverse employment action under the ADEA. An adverse employment action occurs when there is a "materially adverse change" in the terms and conditions of employment. A materially adverse change must be "`more disruptive than a mere inconvenience or an alteration of job responsibilities,'" and can include "`termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices... unique to a particular situation.'" See Galabya v. New York City Bd. of Educ.,202 F.3d 636, 641 (2d Cir. 2000) (quoting Crady v. Liberty Nat'l Bank & Trust Co. of Indiana,993 F.2d 132, 136 (7th Cir. 1993)). In Galabya,an excessed teacher was transferred to a different high school and was assigned a position teaching mainstream keyboarding, despite the fact that his previous teaching experience had been in special education. Id. at 638-39. This Court found that the transfer did not constitute an adverse employment action because he could not demonstrate that the change in responsibilities was a "setback to his career." Id. at 641.

Here, although Appellant's salary and benefits would have remained the same had she continued teaching at Graphic Communications Arts High School ("GCA"), she would have remained in the position of a substitute teacher — arguably a less distinguished title, involving diminished responsibilities — indefinitely, and there is no evidence that GCA would have attempted to find her a more permanent position. Thus, it appears that the only way Appellant could obtain a more permanent position was to seek employment elsewhere. In doing so, Appellant terminated her probationary period, causing her to lose the opportunity to receive tenure at GCA. Whether Appellant remained a substitute teacher or left to obtain a more permanent position, Appellant faced changes in the terms and conditions of her employment that rise to the level of an adverse employment action. See Back v. Hastings on Hudson Union Free Sch. Dist.,365 F.3d 107, 116-17 & n.3 (2d Cir. 2004) (assuming, without holding, that the termination of a probationary period was an adverse employment action in the employment discrimination context). Because, as the district court concluded, the plaintiffs in this case collectively introduced evidence sufficient to create an inference of discrimination, 561 F. Supp. 2d at 425, Appellant has set forth aprima facie case of age discrimination.

Defendants argue that they have articulated a legitimate, business reason for their decision to excess Appellant. They state that because of staff reductions due to a reduced student population there was no longer any demand for an instructor teaching under a Cold Type Composition license. Even assuming this is sufficient evidence on summary judgment to demonstrate a legitimate business reason for excessing Appellant, construing the facts in the light most favorable to Appellant, her assertion that several younger teachers had recently been hired at the time she was excessed could demonstrate that defendants' reasons were, in fact, pretextual.³ Thus, Appellant's ADEA and equal protection claims are remanded to the district court for further proceedings.

We have considered Appellant's remaining arguments and find them to be without merit. For the reasons stated above, the judgment of the district court is AFFIRMED in part and VACATED and REMANDED in part for further proceedings in accordance with this decision.

* Kimba M. Wood, Senior Judge of the United States District Court for the Southern District of New York, sitting by designation.

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** The Honorable Rosemary S. Pooler, originally a member of the panel, did not participate in consideration of this appeal. The two remaining members of the panel, who are in agreement, have determined the matter. See 28 U.S.C. § 46(d); 2d Cir. Internal Operating Procedure E; United States v. Desimone, 140 F.3d 457 (2d Cir. 1998).

---

1. Appellant's motions to add legal precedents and to file a supplemental reply brief are GRANTED. We consider only the evidence submitted by Appellant that was before the district court.

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2. The district court concluded that Appellant's equal protection claim brought pursuant to § 1983 is not preempted by the ADEA, and that her remaining § 1983 claim is properly analyzed under the same standards as a claim made pursuant to the ADEA. Shapiro v. New York City Dept. of Educ.,561 F.Supp.2d 413, 419-20, 422 n.2 (S.D.N.Y. 2008). The parties do not challenge either of these conclusions on appeal. Accordingly, our analysis of Appellant's ADEA claims, infra, also applies to Appellant's remaining § 1983 claim.

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3. We note that the district court, in finding summary judgment inappropriate as to a co-plaintiff's discrimination claim, appears to have credited the allegation that "defendants have sought only to select and promote employees with newer teaching licenses (Commercial Art rather than Cold Type Composition), and that this adversely affects older employees, because only individuals over age 40 are likely to possess a Cold Type License." 561 F. Supp. 2d at 426.

Brace for lawsuit if ‘demotion’ involves less prestige, fewer opportunities

by THE HR SPECIALIST: NEW YORK EMPLOYMENT LAW on JUNE 20, 2010 1:00AM
in DISCRIMINATION AND HARASSMENT,HIRING,HR MANAGEMENT,HUMAN RESOURCES

Employees who are transferred against their will often sue for discrimination—especially if the new job is less prestigious and makes the employee feel like she has to quit.

For example, in the following case, an older teacher claimed she suffered an adverse employment action when she was demoted to substitute teacher at the same time younger teachers were hired.

Recent case: Diana Hrisinko and other experienced New York City teachers with teaching certificates found out they were being moved into substitute teaching positions. The school system blamed the moves on declining student enrollment—and also said older teaching certificates were less desirable than new ones.

It said that’s why it hired the younger teachers.

Hrisinko sued, alleging age discrimination, and claimed she had no choice but to quit. She said that being a substitute teacher is less prestigious than having one’s own classroom and doesn’t offer the same opportunities for promotion and tenure.

The court agreed Hrisinko had endured an adverse employment action even if her pay and benefits were the same. The court also agreed that the system’s hiring of younger teachers might be evidence of age discrimination. The court reasoned that only older teachers held older certificates; thus they were the only teachers affected by the decision. The court sent the case to trial so a jury can decide whether discrimination occurred. (Hrisinko, et al., v. New York City Department of Education, No. 08-6071, 2nd Cir., 2010)

The Gotcha Squad and How the TPU Charges Teachers Without Any Factual Data (And NYSUT Lawyers Agree With This)

To the New York State legislature: 
please review and change the 3020-a/grievance/U-rating Appeal process! As it exists right now, this process is not fair, balanced, factual, rational or beneficial to children who need to have good teachers in their classrooms.

Thank you.

Betsy Combier

With the talk about evaluation and teacher performance coming to the deadline for getting $millions here in NYC, I am listing the documents which I have posted on my website (Parentadvocates.org) and this blog that are important to the argument that teachers have not been fairly assessed, and tenure rights have been generally ignored under the umbrella of a sham version of "due process".

The RMC Contracts and Training Manual for the PIP+, TAC memos, Performance Management document, and the Office of Labor Relations' Disciplining Teachers are all now available to anyone.

So is the package which is created to charge teachers.

These documents reveal that there is, actually, no data being used to assess teachers, and observations are simply a higher-up's opinion, or hearsay, and are not final determinations (Elentuck v Green). According to the case McPherson v NYC DOE this hearsay is not enough to prove that the process is arbitrary in a federal court, and I think that observations without data (such as test scores, student grades and IEPs, OORS and SOHO reports) are not enough to prove by any standard that a teacher is not effective.

A few guidelines: Do NOT, under any circumstances, sign up for PIP+. This program is designed to get you terminated. PIP+ is in the CBA as "approved". If you turn it down as I suggest (I am not a lawyer and cannot give legal advice) and you are brought to 3020-a, the DOE's argument will be that you turned it down because you will not recognize how bad you are as a teacher. Your argument is that the PIP+ process is designed to create the necessary documentation to terminate you, and you will not succumb to a set-up where the principal gets the observations and can change them before they are given to you. Or something along those lines. All the documents below are used by the Gotcha Squad to get rid of tenured teachers, who are already defined as "incompetent". Notice I say "defined" as opposed to "determined". The bizarre fact of the incompetency hearings are that if a principal says you are an "ineffective" teacher", this suddenly is transformed into a fact. 

Unfortunately, at 3020-a, NYSUT has not brought in any factual data that would help support another argument, and the teacher is terminated on the basis of hearsay. Ask your NYSUT attorney when you meet with him/her how many cases he/she has won. There are many reasons why NYSUT Attorneys do not win their cases (the arbitrator makes a difference as well - there are strong, fair arbitrators on the 3020-a panel, and weak unfair as well).

 When a principal finds Just Cause to terminate you, the NYC Department of Education takes this as not as hearsay/opinion, but "Fact". And here's the problem: UFT and NYSUT believe the opinion of a principal is a fact, too. 

The denial of rights started with this:
Letter to the U.S. Department of Justice from NYC Corporation Counsel Michael Cardozo

 Pages index -11
Pages 12-25
Pages 26-41
Pages 42-58
Pages 59-80

 Editorial: The New York City DOE is a Sham and Mike Bloomberg is the Flim-Flam Man

David Brodsky

David Brodsky on the Teacher Tenure Process

Letter from Florrie Chapin

79 pages of emails concerning the TPU and LSU  

"Privileged" documents (Corp. Counsel refuses to give the information to a Plaintiff)

Office of Labor Relations Frequently Asked Questions

Just Standard

  

New York State School Boards Association Quality Educators in Every School

The "Who Are You Kidding??" Award Goes To: Joel Klein, New York City Board of Education Pretender 

Education Law 2590-h (The NYC Chancellor MUST have a contract)

 Silencing Opposition: The Manual for Principals and The Monitoring Unit of the NYC DOE

  PIP+ Peer Observation and Evaluation

• RMC Contract Section 1
• RMC Contract Section 2
• RMC Contract Section 3 (incomplete)
• Training Manual Part 1 (Oct. 24, 2007)
• Training Manual Part 2 (Oct. 24, 2007)

Performance Management Part 1
Performance Management Part 2
Performance Management Part 3
Performance Management Part 4

 Disciplining Tenured Teachers

The Administrative Trials Unit (ATU) has hired a team of lawyers who work in a new ATU subgroup called "Teacher Performance Unit". Randi Weingarten, President of the United Federation of Teachers and American Federation of Teachers, calls them the "Gotcha Squad". The use of TAC (Technical Assistance Conference) memos in the preparation of charges to prefer against allegedly incompetent teachers is an outrageous process that I hope, with this exposure, will end.

In New York City, tenured teachers are being removed from their classrooms and positions by Principals and administrators suddenly and, in many cases, without probable and/or just cause. In fact, the entire structure of the New York City Department/Board of Education is intertwined with the General Counsel and the lawyers working in the Office of Legal Services. It's hard to separate the two, and this is one of the biggest problems with Mayoral control as it now stands in New York City. The New York City Board of Education ("NYC BOE") keeps all documents and information secret under the description "Attorney Client Privilege".

However, the BOE gladly gives journalists all the information he or she wants, to "prove" by a preponderance of the evidence that a teacher is guilty of something. Steve Brill's article in the New Yorker magazine is a great example of this.

A teacher may be accused of "verbal abuse" or "corporal punishment" in the same way as being charged with "incompetence" - see the story of Glenn Storman, his complaint in federal court, and the decision in New York State Supreme Court where Judge Kornreich said the OSI investigation and the New York City BOE were "irrational". But this did not stop the NYC BOE, PS 212 Principal Josephine Marsella, OSI investigator Dennis Boyles, and Deputy Chancellors Andres Alonso and Marcia Lyles, both of whom have left New York City. We might ask Joel Klein if Alonso and Lyles were forced out because of this case. Read the Report and Recommendation filed by Magistrate Judge Andrew Peck and you will get a very good summary of the "Gotcha Squad" at work.

Mr. Storman has filed objections to Magistrate Peck's Recommendations.

The Gotcha Squad is empowered by the absolute immunity given to NYC BOE managers and administrators, who are defended in court by the Corporation Counsel, the Law Department of the City of New York...nice free legal help. Additionally, the arbitrators and NYC BOE Attorneys in the 3020-a proceedings ignore the "Labor FAQs" of the collective bargaining agreement policies established between the NYC BOE nd the UFT, all the time. I know, because I have attended the open and public 3020-a hearings of tenured teachers since 2003.

It is obvious that the Mayor has total control over every part of the public school governance structure. A tenured teacher has no rights at all, and can be removed as easily as a non-tenured teacher or any employee. The tenured teachers have holding pens called temporary re-assignment centers or "rubber rooms". There are currently 7 such places located throughout New York City. A teacher may end up re-assigned because a principal may decide that he/she doesnt like him/her, must remove a him/her because he/she is talking about crimes being committed in the school, or must remove a him/her because he/she is earning a salary that is very high due to more than 20 years in the system, etc. The real reason may be that the teacher is too old, too fat, too short, wears red, doesn't wear red, and other such nonsense.

Then, after the Gotcha Squad at 51 Chambers Street in Manhattan have been informed that a teacher, let's say you, are the subject of an investigation, Director Theresa Europe may place you on her "Ineligible/inquiry List". This list is keyed into the computer under your social security and file number, and will prevent any prospective employer from hiring you any time in the future. Theresa Europe gets the last word. In the case of Philomena Brennan, she wanted Ms. Theresa Europe to take her off of the "no hire" list, and had to sue to get her name removed. Ms. Europe removed her name from the Ineligible List rather than have to submit to New York State Supreme Court Judge Alice Schlesinger why and how she keeps such a list, and the method she uses to remove names, as Schlesinger ordered.. Theresa Europe wants to remain in control of this career-ending list.

We all must defend our right to know who is saying what to whom. In New York City today, however, I believe that the NYC BOE's secret disciplinary process is unfair and I have posted this story to hopefully find another, more just way to deal with alleged "incompetent" teachers, whatever that term means. (See "Strategic Management of Human Capital")

The Teacher Performance Unit (“TPU”) is a unit comprised of experienced attorneys who litigate incompetence cases against ineffective tenured pedagogues. This unit provides counsel to principals and other school officials in connection with the preparation and litigation of 3020-a disciplinary charges involving allegations of incompetence. TPU’s goal is to help principals improve teacher quality in their schools by bringing and litigating these cases in a thorough, expeditious and effective manner.

The Labor Support Unit (“LSU”) is comprised of education consultants who work in partnership with TPU to provide direct support to principals who are confronted with ineffective tenured pedagogues. The goal of LSU is to work with the principal to help them design support plans for ineffective tenured pedagogues, to provide guidance and general assistance to the principal; to assist the principal in organizing the documentation; to conduct additional observations upon request of the principal; and to coordinate with the Peer Intervention-Plus (PIP+) Program and Teacher Performance Unit. (See Peer Intervention Program)

Marcia Lyles

The problem is, well...one of the problems is: what does "incompetence" mean? Who defines whether or not a teacher is, really, "incompetent"? The No Child Left Behind legislation requires that every classroom have a highly qualified teacher in every classroom. The problem with this is, what does the term “highly qualified” mean? Who is a “good” teacher and who is a “bad” teacher? We have no ‘American standard’ to help us define what it means to be a “good” teacher, other than to record the scores on standardized tests of students in each class. There are thousands of reports on how this happens, but in the end, defining a “good” performance is almost always a subjective judgment.

The parents of public school children and the teachers of the public schools in NYC know that Mayor Bloomberg and NYC BOE CEO Dennis Walcott dont want anyone to have any power over educational policy decisions except them, and their people. So they designed a process which I call the "rubberization" process to remove anyone from his or her job for any reason, at any time.

How The New York City "Gotcha Squad" Gets Tenured Teachers Declared "Incompetent", and Placed in a Rubber Room 
by Betsy Combier
LINK 

Winning Your 3020-A: the Investigation (Part 1)

The receptionist at the office of the Special Commissioner of Investigations, Richard Condon. Condon's staff takes up almost the entire 20th floor at 80 Maiden Lane in Manhattan.

Winning Your 3020-a: the Investigation (Part 1)

From the desk of Betsy Combier:

The information below is posted as part of a series on the 3020-a process collected by me over five years which I hope that teachers and school personnel who work in the New York City public school system will find helpful. I write to expose wrong-doing wherever it occurs in order to hold those people who harm others accountable for his/her actions. Why? To stop dishonesty, fraud, corruption, and deliberate and malicious acts that destroy innocent lives. To those who are guilty: you should accept reasonable punishment, then move on. You are the only person who knows all the facts.

As a teacher advocate I have a single goal: to help every person obtain a just/fair resolution to his/her case based upon the evidence and circumstances. Thus every case is unique, and finding justice involves putting many pieces together, such as: who said what to whom, when, where, and why; and what documentation is there that is relevant to the goal that is sought?

The most important part of any  investigation is the information gathered to prove/disprove the charge(s), how this information is retrieved, and who says what. If you are the charged person, get to work right now on your investigation/fact gathering for your defense. Call your UFT borough office and get your personnel file, copy what you dont have...because when you start your 3020-a, your commendations and "S" ratings may be missing.

It is simply not true that any OSI or SCI "investigator" is fair and independent. This is an urban myth. If you want to see an amazingly clear example of this, read my article on Glenn Storman, and especially the Report of District Magistrate Judge Andrew Peck. Another Judge who sees the bias in the NYC BOE 3020-a process is New York State Supreme Court Judge Alice Schlesinger, who wrote an interesting decision against Arbitrator Howard Edelman and in favor of teacher Teddy Smith.

What is investigative journalism? On Wikipedia's site is posted the following"

Investigative journalism requires the scrutiny of details, fact-finding, and physical effort. An investigative journalist must have an analytical and incisive mind with strong self-motivation to carry on when all doors are closed, when facts are being covered up or falsified and so on. You must be able to think on your feet.

Some of the means reporters can use for their fact-finding:

*studying neglected sources, such as archives, phone records, address books, tax *records and license records
*talking to neighbors
*using subscription research sources such as LexisNexis, Westlaw (especially for PERB decisions)
*anonymous sources (for example whistleblowers)
*going undercover

Investigative journalism can be contrasted with analytical reporting. According to De Burgh (Investigative Journalism: Context and Practice, Hugo de Burgh (ed), Routledge, London and New York, 2000) analytical journalism takes the data available and reconfigures it, helping us to ask questions about the situation or statement or see it in a different way, whereas investigative journalists go further and also want to know whether the situation presented to us is the reality.

As you can imagine, this involves time and effort. The New York City Board of Education has neither the time nor the desire to put any effort into finding out [1] whether or not the removal of a person from his/her school is a threat to the budget, current political mandates or educational policies; [2] and/or the allegations of wrongdoing are actually based upon facts and reality. Most often the removal of a good or excellent teacher or school employee (not at the Assistant Principal or Principal level)is a result of a Principal wanting to "look good" to the Powers Higher Up, who in turn want Principals and APs to get rid of an outspoken person. This unfortunate soul may have a conscience and cannot stand by while some education/federal/state/city law is being violated in the school or, is simply not able to be "controlled" and may be a danger in the future to the continuation of secret wrongs being done by school administrators. Tenured teachers have everything to worry about in the current NYC BOE, because the subagencies of the BOE, namely Special Commissioner of Investigation and the Office of Investigations are not paid to do investigations, but are paid to prove a school employee guilty of whatever charges have been preferred by the Teacher Performance Unit (the TPU). If you are an "at will" non-tenured employee, your fate will be to be discontinued/terminated for trumped-up charges or for no reasons at all, and your options to fight this are few, due to New York State Employment Laws. Read my articles on "Investigating the Investigators" as well as on the Gotcha Squad to get an overall view of how the so-called "investigators" working for the NYC BOE have joined up with the ATU and the Corporation Counsel to retaliate against anyone who dares to fight them.

Since 2002 when Mike Bloomberg took office, the New York City Board of Education has violated the rights of teachers,counselors and staff to due process, fair hearings and just decisions in cases brought to 3020-A proceedings by alleging crimes of verbal or corporal punishment and/or incompetence without any investigation. One of the first witnesses brought in to testify against a tenured teacher at a 3020-a hearing is an "investigator" from either the Special Commissioner of Investigation (SCI office at 80 Maiden Lane in Manhattan, or from the Office of Special Investigations at 65 Court Street in Brooklyn. Sometimes the "investigator" is from another NYC BOE subagency, the Office of Equal Opportunity (OEO) now run under the ineffective leadership of Mecca Santana. Not one of these NYC BOE agencies are independent of the NYC BOE, and all the salaries of all employees in these agencies are 100% paid by the NYC Education Admin., just like Joel Klein, Michael Best, the Deputy Chancellors, etc. Go to my article ""News To Use", then click "SeeThroughNY", then "Payrolls", "City of New York"; keep the Branch/Major Category as "New York City", put into box two "Agency/Area, "Education Admin, Department", then in the boxes below type in the last name and the first name of the "investigator" who interviewed you. When you put in the name Condon, Richard this is what you get:

Last, First Agency Pay Basis Rate
Condon, Richard Education Admin, Department of Annual $179,168

Below are a few of the teachers who have been targetted by the NYC BOE "investigators" and have been successful in proving to their investigators that there is no investigation going on as defined above by wikipedia or in any other form. You should use this information at your 3020-a, if an OSI or SCI "investigator" is scheduled to testify against you. These "investigators" are part of the process of getting a teacher terminated, and sometimes testify to this. I call their attitude the "arrogance of immunity" - they have become arrogant about how often they have been successful at punishing the innocent or guilty, without doing any investigation and knowing or caring about the facts or evidence surrounding the matter. Below are some of the stories I have posted on my website about this process of finding a person guilty before he/she can prove his/her innocence:

Retaliation Against All Whistleblowers is the Name of the Illegal Game in New York City(7/24/2005)
David Pakter, a NYC Teacher and Whistleblower of the NYC Board of Education's Corrupt Practices, Sues in Federal Court
Editorial: The New York City Department of Education is a Sham and Mike Bloomberg is the Flim-Flam Man
Two Reports, "Investigating The Investigators", and 'The Gill Commission Report' (1990) Dont Improve New York City Public Schools
New York City Teacher Theodore "Teddy" Smith and the Perfect Storm of Injustice

There can be no just end to any procedure if there are no relevant and documented facts upon which to base the resolution reached.

When you are given the form letter with your "probable cause" that lists your crimes, this is your call to action. Remember that the probable cause letter is a form pulled off of a shelf at the Administrative Trials Unit by an Attorney assigned to find something bad about you in order to get you terminated at the 3020-a. The late-night letter sent by Darlene Miller, Principal of the Museum School, to Teddy Smith (the teacher who supposedly threatened to 'kill' his 3020-a arbitrator Jack Tillem)stating that she had found probable cause for the charges - of threatening the arbitrator - without ever speaking with him or asking him whether or not the charges were true. In fact, at Teddy's new 3020-a hearing a few days ago, SCI "investigator" Michael Humphries (who, I found out, is paid $55,000/year by the NYC BOE) testified that in the Condon report it said Teddy was not credible when he (Teddy) denied threatening Tillem, but no one ever asked Teddy whether or not this was true. Humphries added, "but we were going to ask him..." In the Condon report, p. 12 under Conclusion and Recommendations, it says that the Attorney's accounts of Smith's threats were "entirely credible" while "Smith's denials are the complete opposite". Yet no one, at any time, asked Teddy if he had said anything threatening to anyone.

Elizabeth Green wrote about hiding investigations and getting 600 pages pursuant to a FOIL request. What is interesting is that Elizabeth Green obviously has not looked into the difference between these two NYC BOE subagencies, (and will not ask me or anyone else she doesnt like, for this information). SCI is supposed to handle - but again, only those cases not politically connected - issues of sexual misconduct and financial misappropriations; OSI creates charges out of allegations of corporal punishment and discrimination. Michael Kondos of OSI told me that OSI never investigates verbal abuse of any kind.

The Principal, therefore, both writes the allegations of verbal abuse AND investigates the truth (or not) of the allegations which he/she originally charged. Neither agency looks at the evidence other than to "prove" the charges against the teacher, if the Principal makes the allegation to them.

If a parent makes a complaint about a Principal or AP, both agencies - and the OEO under Ms. Santana - will conclude that the allegations are 'unsubstantiated'. Then, documents are prepared to harm the mandated reporter or the reporter's child(ren) for making the allegation against an administrator. The victim will not know anything about this until he/she has been re-assigned, or his/her child had grades changed, failed a subject, etc. The BOE tries its best to sideline anyone's best efforts to stop the retaliation which always follows speaking out against an administrator or policy.

The missing SCI reports are notable for what they don’t include
by Elizabeth Green, Gotham Schools
LINK

I just picked up the 600 pages of reports on wrongdoing and misconduct by city school employees that got sent to Chancellor Joel Klein in 2007 and 2008, but never surfaced publicly. The Post highlighted some of the contents: a Stuyvesant librarian’s unauthorized field trips to a Quiz Bowl, a substitute teacher who showed students a movie in which he appeared with a semi-naked woman.

But the biggest story is what is not in this file: Any investigations into top or even mid-level Department of Education officials, or any evidence of educators fudging student performance data to make their school look better.

The absence is matched by a similar drought among those investigations that have been publicized. The development suggests one of two conclusions. On one hand, the new reports could disprove critics’ concerns that growing pressure to produce higher test scores and graduate more students has led some educators to cheat. They could also squash the speculation that the Special Commissioner of Investigations, Richard Condon, somehow managed to cover up looks into higher-profile targets. On the other hand, the cynical conclusion is that high-level misbehavior and cheating are happening with little intervention from an office whose purpose is to investigate schools for misconduct.

We’ll have to keep digging to figure out where the truth lies. There’s another office inside the Department of Education, the Office of Special Investigations, that has its own set of investigators. It’s possible that OSI, to which SCI sometimes forwards tips, is taking the bulk of these more salacious (and damning) allegations. What you can see in the SCI letters, which we obtained by a FOIL request, is a sense of what the office does investigate. Most of the cases report on school staff (usually not teachers) sleeping with students and staff finagling money from the school that they hadn’t earned. But there’s also an interesting report from May 2008, when investigators nabbed a Manhattan math teacher for sharing confidential student records with another teacher, without the consent of his principal.

The teacher, Carlos Grajales, said he was using the records to help assign students to a new algebra class, according to the report sent to Klein. “Grajales believed that if he conducted a comparison of the Math proficiency of the students, then he could properly identify the students who did not belong in the class,” the report says.

That means the worst-case scenario is that when teachers complain about principals and guidance counselors fudging results to make their school look better, no investigation happens. But when a teacher tries to use data to improve the educational situation for his/her students, he/she gets in trouble.

The investigation into a top school official that you never read
Posted By Elizabeth Green On December 5, 2008 @ 11:54 am

The big news of the day is this story in today’s Daily News [2] and Times [3], about Christopher Cerf, a deputy schools chancellor who is one of Joel Klein’s closest aides. The News reports that investigators last year concluded that Cerf had violated city law, by improperly using his position to extract a $60,000 donation from a company on contract with the city at the time, Edison Schools. The donation would have gone to a charity on whose board Cerf sat and which he told investigators he was trying to save. Ultimately, after being questioned by investigators, Cerf decided not to pursue the donation.

The violation is noteworthy, especially given the other conflict-of-interest imbroglio Cerf was wrapped up in at the time: After coming under fire for holding substantial stock in the same company, Edison, which he had been president of before coming to the department, Cerf released his holdings in the stock — but only 24 hours before being publicly questioned about it. [4]

But it will become even more noteworthy in the days ahead because of this: The report was never publicly released. It’s only surfacing now because of a Freedom of Information Law request originally filed by Leonie Haimson, the executive director of Class Size Matters (and no friend of the Department of Education’s, to be sure). And even this copy — which I have and am trying to upload for everyone else to see — is heavily redacted, as you can see above.

The result is not only resurrected questions about Cerf’s propriety, but bigger questions about how sufficiently the Department of Education is held accountable. The DOE claims its current structure has more accountability than ever before, since, if the public isn’t happy with the schools and their officials, they can vote out the mayor who runs them. But advocates charge that the current structure allows school officials to hide from scrutiny. This report provides them some new ammunition.

The DOE is arguing that the investigation is not relevant because, according to Cerf, it “exonerated” him. Here’s what Cerf told the Times:

“If you’re asking me do I have any regrets, I will tell you absolutely not,” Mr. Cerf said. “I did absolutely what I was supposed to do. I disclosed everything; the Conflicts of Interest Board gave it the back of its hand.”

“Raising money for a not for profit, tell me, what’s wrong with that?” he added.

“There is nothing here other than an investigation that exonerated me. The only real story here is that I was put through a rather tortuous experience.”

URLs in this post:

[1] Image: http://gothamschools.org/wp-content/uploads/2008/12/picture-6.png

[2] Daily News: http://www.nydailynews.com/ny_local/education/2008/12/04/2008-12-04_schools_big_eyed_by_conflict_board.html

[3] Times: http://www.nytimes.com/2008/12/05/education/05cerf.html?ref=nyregion

[4] Cerf released his holdings in the stock — but only 24 hours before being publicly questioned about it.: http://www.nytimes.com/2007/02/09/nyregion/09edison.html

Richard Condon: Unauthorized Psychoanalysis
By James C. McIntosh, M.D., Black Star News, September 19th, 2007
LINK



First of a seven-part series

You cannot understand the mind of Richard J. Condon, Special Commissioner of Investigation For The New York City Public Schools until, you firstly get past the inflated, euphemistic and extremely misleading title of his office and secondly, until you know who is his boss. Condon is not special and his mind is not a special mind. He is not really a commissioner and he does not think as a commissioner thinks. He is certainly neither for the New York City Schools nor is he a part of the Department of Education. He is not an educator. He is simply a Cop of the extremely ordinary variety. His mind is the mind of a cop of the extremely ordinary variety. He knows, even if you don’t, who is his boss and who is not. He knows, even if you do not, what his boss wants and doesn’t want. Lastly he knows how and which people to bop in the head to achieve what his boss wants and that’s all any cop, no matter what you call him, needs to know.

Yet by law, the un-special and extremely ordinary Condon has special even super powers. He can examine or remove any record in the public school system. He can investigate any complaint, rumor or suspicion of improper or unethical behavior in the NYC School System. He can even initiate investigations without probable cause. He can issue reports that are covered in the media as if they are judge’s decisions rather than simple cop reports. He can literally force the removal of any employee of the New York City School system from the Chancellor on down. Only in America could a little cop boy from Staten Island grow up to wield such power. Condon is clearly a beneficiary of the only Affirmative Action that survives in North America; the white kind.

Affirmative Action For A Trojan Horse

Condon’s Affirmative Action began with meeting and hanging out with the right people. According to former mayor, Edward I. Koch, as quoted by David Dunlap in the New York Times, October 24, 1989, Condon met Edward Koch in Greenwich Village in 1965 while Koch was walking with Allen Ginsberg the poet and Ginsberg’s companion, Peter Orlovsky. Koch is quoted to say that he was amazed to discover that Condon already “knew Ginsberg and he knew his poetry.” Koch is further quoted to say that he, then invited Condon “into a coffee shop” with him, Peter and Allen. Koch apparently remembered this extremely ordinary cop for a long time because in the very last nine weeks of Koch’s term of office, 24 years later, he appointed Condon as the New York City Commissioner of Police for what Condon hoped would be a five year term. Wisely, the next mayor, David Dinkins, wasted no time getting rid of, Koch’s “Trojan Horse” and in January 1990 replaced Condon with an educated Black man named Dr. Lee Brown.

Impersonating A Lawyer Again: Bloomberg Changes Rules.

Ironically, the post Condon now holds was created by the same Black man, who rejected and humiliated him, Mayor David Dinkins. Condon is immensely unqualified for this post, especially as it was originally designed. Dinkins’ Executive order 11 of June 28, 1990, which established this position, specifically states that the Deputy Commissioner (The title didn’t get inflated to Special Commissioner until 1992) should be an attorney “in good standing with the bar of the State of New York”.

It further states that this Special Commissioner should be independent of the Board of Education (Department of Education) but under the auspices of the Commissioner of The Department of Investigation. This oversight by the Commissioner of Investigation is still true today. In keeping with these standards, the first Special (Deputy) Commissioner that Dinkins Appointed, Dr. Ed Stancik was not only an attorney in good standing with the bar, but a scholar, a former prosecutor and former Managing Editor for the Law Review at Columbia University Law School.

It wasn’t until 12 years later, on June 18, 2002, that Michael Bloomberg issued his own Executive Order 15, which lowered the job’s standards by removing the requirement for admission to the bar. Bloomberg thereby also removed one of the safeguards against unethical behavior. Did he do this just so Condon could “assume” the position? It appears so.

For on the same day of the issuance of Executive order 15 lowering the requirements for the position, Bloomberg issued a press release announcing Condon’s appointment as Special Commissioner. Bloomberg’s executive order reshaped the position functionally from prosecutor to cop leaving “5 years of law enforcement experience” as the only pre-requisite for the job.

Technically, an experienced Kmart guard who had the good fortune to double date with the right couple at the right coffee shop would also now qualify for the job; that is, providing he or she has the temerity and lack of ethics to impersonate a lawyer.

Countering The Conspiracy To Un-employ White Men

With his career birthed by Koch, buried by Dinkins exhumed by Bloomberg, Richard J. Condon was with the stroke of a pen, empowered to bring New York City style policing to the Department of Education. To Date Condon has been a one man wrecking crew for educated Blacks of the type that deep sixed his career in 1990.

In an orgy of undoing, selective perception and selective prosecution, Condon has gotten rid of the very best Black educators, especially the few Black men educators in the system. His victims have included Dr. Lee McCaskill the principal of Brooklyn Tech who was getting record numbers of Black males to successfully complete Advanced Placement courses and who was getting 95 percent of the Black boys at his school to graduate, Dr. Walter Turnbull, the Founder of internationally acclaimed Boys Choir of Harlem and Director of Academy associated with it, and most recently Mr. Shango Blake the Middle school principal of Junior High School 109 in District 29 of Queens, who had taken his school from the lowest performing in the district to the highest performing in the District during his four year tenure.

Ex Post Fictional - Who To Be Unkind To

The kind of folks upon whom Condon’s boss has unleashed him, are the very kind of people with whom Condon has a score to settle—educated Black men of achievement especially any that might have the first name Lee.

When each of these educated Black men of achievement was bopped in the head by Condon, predictably, many people complained. However, they typically directed their complaints to Joel Klein, the Chancellor of the NYC Department of Education, under the mistaken idea that Klein is Condon’s boss.

Condon is not an educator; he is a cop. If Black People don’t know he is a cop, for them he is an undercover cop. So who is his boss? Klein is demonstrably not Condon’s boss. Condon could literally tell Klein or any of Klein’s subordinates to go stand in the corner and he or she would have to do it.

Executive Order 11 makes obstruction of the Special Commissioner grounds for removal from the system. Klein, on the other hand, can’t touch Condon’s subordinates. When Condon’s Deputy Regina Loughran came under harsh criticism for allegedly mishandling, prior to Condon’s arrival, a number of child molestation cases, Klein’s opinion was not a factor. One of Condon’s first demonstrations of his power was protecting her from all critics. Conversely, against Klein’s wishes, Condon bopped the head of Klein’s handpicked Deputy, Diana Lam as soon as she got into office.

Condon charged that she had used her position to help her husband to get a job. (Her husband presumably gets his java from a different shop than Condon and Koch.) Klein could not protect her or her husband. To insure that Klein never forgets the power dynamic, Condon serves periodic reminders as to who is not boss.

Most recently Condon reversed a disciplinary matter handled totally within Klein’s department regarding school administrators in Brooklyn’s Cobble Hill School. The administrators had been accused of helping students cheat.

So You Want To Play Hardball; I’ll Revoke Your Whistle Blower Status

Although this case was handled by Klein and his subordinates two years ago, Condon, for reasons only he has to know, reviewed and reversed the findings. Condon then blasted Klein’s investigator and wrote a scathing report that attempts to discredit the alleged eyewitness, a teacher named Philip Nobile that had supported Klein’s investigator’s decision. In Condon's report he boldly placed a harbinger of things to come for Mr. Nobile who refused to change his story for Condon.

Condon warns in his report, referring to Nobile, “We have determined that he did not meet the statutory requirements to obtain whistleblower status. Nobile did not report his allegations of cheating and of a cover-up to one of the enumerated agencies in the whistleblower law.” Translation: “Technically, Mr. Klein, this witness blew the wrong whistle to the wrong tune to the wrong people so you, any of your subordinates or I can retaliate against this witness with impunity and I recommend that we do so.”

Predictably an altogether new investigation charging corporal punishment has been initiated against Nobile, the pesky eyewitness. Corporal punishment is Condon’s standby charge to levy against opponents when the findings in a case haven’t gone his way.

In the Shango Blake Case when his investigation of financial misappropriation revealed no actual stealing, Condon attached an allegation of corporal punishment to his findings on the financial matters. Even though all the eyewitnesses to the alleged punishment said no such corporal punishment occurred, Condon wrote that it occurred and recommended punishment for them--the witnesses.

Cop Heaven

The eyewitnesses in the cases Condon encounters are particularly vulnerable to intimidation by Condon because they typically work for the Department of Education.

Executive order 11 allows Condon to investigate anyone working for the Department of Education for virtually any suspicion, including Condon’s own self initiated suspicions, presumably as many times as he becomes suspicious.

Should a member of the Department of Education disagree with Condon, Condon needs only to work himself up into a suspicion of that person. He then can investigate until he finds some more things about which to become suspicious.

He can repeat that process over and over until ultimately he can bop that person in the head. He doesn’t need probable cause to go in. He doesn’t have to worry about disbarment because he is only impersonating a lawyer.

He doesn’t have to worry about the cost of his cases since the Department of Investigation does not have to foot the bill. Executive Order 11 specifies that the Department of Education has to pay for his investigations, no matter how costly and presumably no matter how frivolous or unwarranted the charge. Condon has deep pockets and a full arsenal of Cop tricks learned over the course of a 50 year Cop career and people don’t even know he’s a cop. Condon is in Cop Heaven. If he is in Cop Heaven, then who is his boss? Be Careful; this is a trick question.

Sunday, March 22, 2009
Allegations of assault upon a student have been levied on Derrick Townsend, assistant principal of PS 154 in the Bronx
LINK

Nothing better illustrates the double standard of how teachers and administrators are treated when it comes to charges of either physical or verbal abuse than the PS 154x story where people have been trying to tell the DOE about the actions of the school administration.

This story is very ironic in the light of my old teaching buddy Kathy Blythe about to "celebrate" her 2nd anniversay in the rubber room for sitting a child who tried to run out of the room in her seat (see (Tales From the Rubber Room: The Kathy Blythe Story,
Principal Parrots Leadership Academy Lingo...)

The principal incited the parent to call the cops and 5 showed up to arrest Kathy who was taken in hand cuffs from the school after 22 years of teaching there. Later, the cop in charge said it was all clearly bullshit. The backdrop was that kathy had run for chapter leader and lost by 1 vote, so this was clearly retaliation for union activity. The union did nothing, of course.

So compare what happened to Kathy and how AP Derrick Townshend has been treated. An Ed Notes stringer reports from the scene of the crime:

A 9 year old female student has charged that on February 13, 2009, Derrick Townsend had dragged her by the arm and leg for up to ten minutes leaving bruises and scratches on her arm. This came after the girl reported to Mr Townsend that a boy had roughed her up during recess. Originally Mr Townsend had called the girl a "drama queen" in front of the girl's third grade class and when the girl became upset Mr Townsend yanked her out of her chair, and a struggle ensued in the classroom and the hallway. Two teachers and up to fifty students witnessed the assault.

This assault was reported immediately to the Office of Special Investigation and Ms Irizarry, but since Ms Irizarry was in Florida at the time, Mr Townsend initially headed the investigation and collected all witness statements.

Linda Amill-Irizarry conducted a full investigation upon her return and found the assault upon the 9 year old girl unsubstantiated after an interview with witnesses. Later this was found to be incorrect since Ms Irizarry never interviewed any witnesses. Ms Irizarry later claimed that all witness statement appear to have been misplaced and that no further review is warranted.

This is not the first time this school year on in Mr Townsend's tenure as assistant principal at PS 154 that Mr Townsend has had allegations of assault at PS 154. It has been alleged that Mr Townsend dragged an 11 year old student approximately 150 feet and tore the boy's shirt in the process; dragged a special needs kindergarten student 40 feet in the hallway; pulled another boy by the arm when he refused to heed Mr Townsend's commands that he come with him, twisting the boy's arm in the process; and dragging another student in the school yard. As of the date when the girl was dragged OSI was still "looking into" these matters.

After FOX 5 News, Telemundo 47 News, News12 Bronx, and the New York Post reported the assault on the 9 year old girl, Mr Townsend is still assigned to PS 154.

The mother of the 9 year old girl was repeatedly rebuffed in her efforts to meet with Ms Irizarry and now has made a decision that criminal charges will be filed against Mr Townsend. These are expected to be filed early this week.

http://news12.com/BX/topstories/article?id=227651

http://www.telemundo47.com/noticias/18978799/detail.html
Posted by Norm @ ed notes online at 12:43 PM
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1:25 PM, March 22, 2009
Anonymous said...

Maria Cavallo-Best, AP of PS 3 Staten Island, dragged a student from the his class. When father called and complained that his son was hurt. Best tried to lay the blame on two classroom teachers who did not have any physical contact with the student. Eventually Best owned up to her action. Want to know what happened to her? Nothing was done by the administration and OSI.

Next: The arbitrators