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Sunday, May 31, 2009

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

Saturday, May 30, 2009

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 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, (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

Friday, May 29, 2009

Supreme Court and Ledbetter Fair Pay Act

Supreme Court Decides in AT&T Corp. v. Hulteen in Favor of Employer and Addresses Lilly Ledbetter Fair Pay Act for First Time
Contributor: Littler Mendelson



SUMMARY: On May 18, 2009, the Supreme Court announced its decision in AT&T Corp. v. Hulteen. In a 7-2 decision authored by Justice Souter (with Justice Ginsberg and Justice Breyer dissenting), the Court held that an employer does not necessarily violate the Pregnancy Discrimination Act (PDA) when it pays pension benefits calculated in part based on an accrual rule – in use prior to the PDA's enactment – that gives less retirement credit for pregnancy than for short-term disability leave. The Court held that the employer's method of calculating benefits was insulated from a Title VII challenge because it was part of a bona fide seniority system. The decision is also the first Supreme Court ruling to address the recently enacted Lilly Ledbetter Fair Pay Act (Ledbetter Act), and it limits to a degree the Ledbetter Act's reach in the narrow circumstance where disparities in benefits are based on past, completed actions which were legal when taken.

See Open Congress

Washington D.C. Employment Law Update
Posted at 3:11 PM on May 18, 2009 by Jay Sumner
Supreme Court Issues Decision in AT&T Corp. v. Hulteen
LINK

The U.S. Supreme Court has held that an employer does not necessarily violate the Pregnancy Discrimination Act (PDA) when it pays pension benefits calculated in part under an accrual rule – applied prior to the PDA’s enactment – that gave less retirement credit for pregnancy than for medical leave generally. The Court in AT&T v. Hulteen (pdf) further held that the benefit calculation rule used by the employer in this case was part of a bona fide seniority system that insulated it from a Title VII challenge.

AT&T Corporation and its affiliates, the petitioner in this case, had calculated an employee’s pension and other benefits based on a seniority system that subtracted uncredited leave time from the employee’s length of service. Employees on disability leave were given full service credit for time off, while those on “personal” leave did not. Prior to 1977, pregnancy leave was considered personal, not disability leave. In 1977, AT&T changed this policy to provide employees who took time off for pregnancy with six weeks of disability benefits and service credit. Any time off taken beyond the allotted six weeks was deemed personal, and no service credit was provided. Following the enactment of the PDA in 1978, which amended Title VII of the Civil Rights Act and made it unlawful to treat pregnancy-related conditions less favorably than other medical conditions, AT&T changed its policy to put pregnancy leave on equal footing with other disability leave for service credit purposes, but did not make service credit calculations retroactive. Therefore, the original plaintiffs in this matter were women who had taken pregnancy leave prior to the policy change, and whose retirement benefits have or would be affected. The plaintiffs’ case was eventually heard by the U.S. Court of Appeals for the Ninth Circuit, which – adhering to precedent – found that applying pre-PDA accrual rules that differentiated on the basis of pregnancy to post-PDA retirement eligibility violated Title VII.

The Supreme Court reversed the judgment of the Ninth Circuit – which conflicted with holdings by the Sixth and Seventh Circuits – noting that there was no doubt that the payment of the pension benefits in this case was the function of a bona fide seniority system, and that such systems are given a certain degree of immunity from Title VII claims. Specifically, section 703(h) stipulates that “it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority . . system . . provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin.. . .” Thus, the Court reasoned, benefit differentials produced by a bona fide seniority-based pension plan are permitted unless they are the results of an intent to discriminate. The Court explained that “[b]ona fide seniority systems allow, among other things, for predictable financial consequences, both for the employer who pays the bill and for the employee who gets the benefit. . . .[a]s § 703(h) demonstrates, Congress recognized the salience of these reliance interests and, where not based upon or resulting from an intention to discriminate, gave them protection.” The Court noted that the company’s seniority system was neither adopted with the intent to discriminate on the basis of sex, nor was it unlawful when adopted.

The respondents, however, argued that the recently-enacted Lilly Ledbetter Fair Pay Act – which states, in relevant part, that “an unlawful employment practice occurs, with respect to discrimination in compensation . . . when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice” – supports their position that the benefits calculation is discriminatory. The Court disagreed, finding that since the company’s pre-PDA decision not to award the employee service credit for pregnancy leave was not discriminatory, the respondents were not therefore “affected by the application of a discriminatory compensation decision or other practice.”

Justice Souter delivered this opinion, which was decided by a vote of 7-2, with Justices Ginsburg and Breyer dissenting.

Supreme Court Decides in AT&T Corp. v. Hulteen in Favor of Employer and Addresses Lilly Ledbetter Fair Pay Act for First Time
By:Sue M. Douglas, May 2009

On May 18, 2009, the Supreme Court announced its decision in AT&T Corp. v. Hulteen. In a 7-2 decision authored by Justice Souter (with Justice Ginsberg and Justice Breyer dissenting), the Court held that an employer does not necessarily violate the Pregnancy Discrimination Act (PDA) when it pays pension benefits calculated in part based on an accrual rule - in use prior to the PDA's enactment - that gives less retirement credit for pregnancy than for short-term disability leave. The Court held that the employer's method of calculating benefits was insulated from a Title VII challenge because it was part of a bona fide seniority system. The decision is also the first Supreme Court ruling to address the recently enacted Lilly Ledbetter Fair Pay Act (Ledbetter Act), and it limits to a degree the Ledbetter Act's reach in
the narrow circumstance where disparities in benefits are based on past, completed actions which were legal when taken.

For additional information regarding the Lilly Ledbetter Fair Pay Act, see Littler's
Paycheck Rule Revived for Pay Discrimination Claims with Signing of the Lily Ledbetter Fair Pay Act. (See the full report).

Ledbetter v. Goodyear and the Ledbetter Act

On January 29, 2009, President Obama signed into law the Ledbetter Act, which expressly overturned the U.S. Supreme Court's 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007). In that case, the U.S. Supreme Court expressly rejected the "paycheck rule" advanced by the plaintiff - i.e., that each time a paycheck evidencing disparate compensation was issued, a separate act of discrimination arose. The effect of the Court's decision was to limit the timeframe in which employees could bring pay discrimination claims. To maintain a timely claim of pay discrimination under Title VII, the Ledbetter Court held, an employee was required to file his or her claim with the U.S. Equal
Employment Opportunity Commission (EEOC) within 180 days of the original discriminatory pay-setting decision, even if the violation continued to affect the employee's compensation long after the 180-day period expired.
In overturning the Supreme Court's decision, the Ledbetter Act has broadened the occurrences that are considered unlawful actions for purposes of triggering a pay discrimination claim.

Under the Ledbetter Act, an unlawful employment practice occurs when: (1) a discriminatory compensation or other practice is adopted; (2) an individual becomes subject to the discriminatory decision or practice; or (3) an individual is affected by application of the discriminatory decision or practice, including each time
discriminatory compensation is paid. With the "paycheck rule" now in effect, employees may seek to reclaim lost compensation long after the initial discrimination took place, so long as the claim is filed with the EEOC within 180 days (or 300 days in some states) of the receipt of any compensation affected by
the initial pay decision. In addition, while the Ledbetter Act does not require employers to repay employees for decades of discriminatory pay differentials, employees can recover back pay up to two years prior to when the employee filed the discrimination claim.
Although combating gender-based pay discrimination was the impetus for the legislation, the Ledbetter Act prohibits pay discrimination based on all of the protected categories under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the
Rehabilitation Act, i.e., race, color, religion, national origin, age, and disability.

The statutory enactment of the paycheck rule allows employees to challenge pay-related decisions years after they have occurred. As a result, before the decision in AT&T v. Hulteen, it was uncertain whether pay decisions made long ago could be challenged as discriminatory when those decisions were
unquestionably legal under the state of the law at the time they were made.

Hulteen's Claims against AT&T

Prior to 1978, AT&T based its pension calculations on a seniority system that relied on years of service
minus uncredited leave time, giving less retirement credit for pregnancy absences than for medical leave generally. In 1978, Congress passed the PDA which amended Title VII of the Civil Rights Act of 1964 to make it "clear that it is discriminatory to treat pregnancy-related conditions less favorably than other
medical conditions." The PDA was enacted in response to the Supreme Court's decision in General Electric Co. v. Gilbert, 429 U.S. 125 (1976), which held that differential treatment of pregnancy leave was not sex-based discrimination prohibited by Title VII. With the passage of the PDA, AT&T adopted a new pension plan, which provided the same service credit for pregnancy leave as for other temporary disability leave. AT&T made these changes prospectively, such that no retroactive adjustments were made for the pre-PDA leave calculations.

Because Hulteen took pregnancy leave before AT&T changed its pension plan, she received less service credit for her leave than she would have received had she taken general disability leave. This resulted in a reduction in her total employment term and, consequently, a smaller AT&T pension. Hulteen, along with other affected coworkers and their union, filed EEOC charges alleging discrimination based on sex
and pregnancy in violation of Title VII. The EEOC issued a determination finding reasonable cause to believe AT&T had discriminated and provided Hulteen with a notice of right-to-sue. Hulteen filed suit in federal district court, which, based on Ninth Circuit precedent that was in conflict with Sixth and Seventh Circuit precedent, ruled in favor of Hulteen. On appeal, the Ninth Circuit Court of Appeals affirmed the district court's decision.

In response to AT&T's appeal to the Supreme Court, Hulteen argued that, even though AT&T's pre-PDA decision to give less retirement credit for pregnancy absences was legal at the time it was made, AT&T's post-PDA decision at the time of her retirement to calculate her pension on the basis of the credit she had accrued partly under the pre-PDA rules violated the PDA when that decision was made. After oral argument but before the Court issued its opinion, President Obama signed the Ledbetter Act into law. In supplemental briefing, Hulteen argued that the Ledbetter Act further supported her position.

According to Hulteen, whether AT&T's pre-PDA decision was legal when made was irrelevant under the Ledbetter Act. Instead, she argued that the calculation of her pension by AT&T post-PDA was made using a measure of company service that it knew afforded unequal credit for equal service to women who took pregnancy leave prior to 1978. Therefore, Hulteen argued, AT&T's calculation was an "unlawful employment
decision or practice" under the Ledbetter Act, one which affected her each time she received her pension payment.

The Supreme Court's Decision in AT&T v. Hulteen

In its decision in Hulteen, the Supreme Court overruled the Ninth Circuit, holding that an employer does not necessarily violate the PDA when it pays pension benefits calculated in part under an accrual rule that gave less retirement credit for pregnancy than for medical leave generally when that rule was applied only before the enactment of the PDA. In reaching its ruling, the Court noted that seniority
systems are afforded special treatment under Section 703(h) of Title VII, which provides: "[I]t shall not be an unlawful employment practice for an employer to apply different standards of compensation ... pursuant to a bona fide seniority ... system ... provided that such differences are not the result of an intention to discriminate because of ... sex." Citing Section 703(h), the Court explained that benefit differentials produced by a bona fide seniority-based pension plan are permitted unless they are the result of an intention to discriminate. The Court reasoned that, because AT&T's system must be viewed as bona fide, i.e., as a system having no discriminatory terms, Section 703(h) governed, and the key
determination was whether AT&T had intended to discriminate when it implemented its pre-PDA accrual rules.

As the Court noted, under Gilbert, the exclusion of disabilities related to pregnancy was not sex-based discrimination within the meaning of Title VII prior to 1978. Thus, AT&T's intent when it adopted the prePDA pregnancy leave rule at issue was to give differential treatment that, as a matter of law under Gilbert, was not gender-based discrimination. In other words, because AT&T's decision to utilize an
accrual rule limiting seniority credit for time taken for pregnancy leave was not discriminatory under Gilbert, it could not be the case that it was intentionally discriminatory. In addition, AT&T had adopted a new pension plan, which provided service credit for pregnancy leave on the same basis as leave taken for other temporary disabilities on the day the PDA took effect.

The Court next held that, even though AT&T could have chosen to give Hulteen post-PDA credit for her pre-PDA pregnancy leave when she retired, its failure to do so was not a discriminatory act. As the Court explained, if a choice to rely on a favorable statute turned every past legal differentiation into contemporary illegal discrimination, Section 703(h) would never apply. Finally, the Court rejected Hulteen's argument that AT&T's calculations were made unlawful under the Ledbetter Act because the payment of her pension benefits were in effect "the application of a
discriminatory compensation decision or other practice, including each time ... benefits [are] paid, resulting ... from such a decision." Following its reasoning above, the Court held that AT&T's pre-PDA decision not to award Hulteen service credit for pregnancy leave was not discriminatory at the time it was made, and, therefore, Hulteen had not been "affected by application of a discriminatory
compensation decision or other practice."

What Hulteen Means for Employers

Employers should understand that the holding in Hulteen is limited. In Brazemore v. Friday, 478 U.S.385 (1986), the Supreme Court held that a pattern or practice that was not illegal prior to Title VII but that would constitute a violation of Title VII did in fact became a violation upon Title VII's effective date. Thus, to the extent an employer continued to engage in that act or practice after the Act's effective date, the employer would be liable under Title VII. In Hulteen, the Court distinguished the facts before it from Brazemore on two grounds. First, the Court noted that Brazemore did not involve a seniority system, indicating that the holding in Hulteen may not extend beyond the context of bona fide seniority systems.
Indeed, at the end of its opinion, the Court emphasized the importance of the predictable financial consequences provided by bona fide seniority systems for both employers and employees.

Second, the Court explained that the employer in Brazemore failed to eliminate the discriminatory practice at issue in that case, even though the newly enacted Title VII had turned what was once legally permissible into something unlawful. In contrast, AT&T had adopted a new pension plan on the effective date of the PDA that complied with the PDA, and therefore AT&T's calculation of Hulteen's pension
payments was based on past, completed events that were not illegally discriminatory when they occurred. Thus, Hulteen appears to limit the reach of the Ledbetter Act only in those circumstances where the allegedly discriminatory compensation at issue is based on past, completed decisions that were lawful when they were made.
Keeping in mind these limitations, the Hulteen decision clearly strengthens the protection afforded under Section 703(h) to bona fide seniority systems, even in light of the enactment of the Ledbetter Act. The Ledbetter Act does not define "discriminatory compensation decision or other practice," leaving this
important phrase subject to varying interpretations. Had the Court agreed with Hulteen's interpretation, employers could have been liable for decisions made years ago relating to their seniority-based compensation systems, even though the decision itself was not illegally discriminatory when made and even though the seniority system was brought into compliance, each time a discrimination law was enacted or amended.

Under Hulteen, however, if a decision regarding the bona fide seniority system at
issue was not illegally discriminatory at the time it was made and the seniority system itself complies with the law going forward, then Section 703(h) applies to protect the seniority system at issue. Thus, although employers must regularly evaluate their seniority systems to determine whether those systems comply with current laws (including newly enacted and amended laws), Hulteen serves to protect bona fide seniority systems that were not adopted for a purpose that was illegally discriminatory.

Conclusion

The Hulteen decision curtails liability in those circumstances where employers are faced with claims alleging pay discrimination arising out of compensation decisions involving bona fide seniority systems that were legal when made. The decision is also the first to provide some guidance on the limits of the Ledbetter Act. The holding, however, is very narrow, and how the Supreme Court continues to interpret the Ledbetter Act remains to be seen.

Sue M. Douglas is a Shareholder in Littler Mendelson's Cleveland office. Blake Andrews is an Associate in Littler Mendelson's Atlanta office. If you would like further information, please contact your Littler attorney at 1.888.Littler, info@littler.com, Ms. Douglas at sdouglas@littler.com, or Mr. Andrews at
bandrews@littler.com.




The Impact of Ledbetter v. Goodyear on the Effective Enforcement of Civil Rights Laws
Testimony of Wade Henderson, President and CEO
Leadership Conference on Civil Rights

June 28, 2007
LINK

House Judiciary Committee

Categories: Women's Rights

Good Morning. My name is Wade Henderson and I am the President of the Leadership Conference on Civil Rights. The Leadership Conference is the nation’s premier civil and human rights coalition, and has coordinated the national legislative campaigns on behalf of every major civil rights law since 1957. The Leadership Conference’s nearly 200 member organizations represent persons of color, women, children, organized labor, individuals with disabilities, older Americans, major religious groups, gays and lesbians and civil liberties and human rights groups. It’s a privilege to represent the civil rights community in addressing the Committee today.

Distinguished members of the Committee, I am here this afternoon to call on Congress to act. To restore the ability of victims of pay discrimination to obtain effective remedies, and to end the inequality of remedies across classes of victims.

Lilly Ledbetter, a supervisor at Goodyear Tire & Rubber in Gadsden, Alabama, sued her employer for paying her less than its male supervisors and a jury found that Goodyear intentionally paid Ms. Ledbetter less than her male counterparts for more than 15 years, in violation of Title VII of the Civil Rights Act of 1964. Week after week, year after year, she was paid less. Significantly less. And this disparity was because of her sex. The jury also found Goodyear’s conduct to be bad enough to warrant an award of compensatory and punitive damages totaling $3 million.

On its face, it looked like Ms. Ledbetter had won. That she had finally received compensation for the years of discrimination, including the impact on her pension and retirement benefits. But that was before the Title VII damages cap and the Supreme Court intervened.

After the jury awarded Ms. Ledbetter her $3 million, the court was required by law to reduce her award to $300,000. Why? In 1991, Congress set damages caps in Title VII, which apply to gender, age and disability claims only, at $300,000. That amounts to ten percent of what the jury believed Ms. Ledbetter should receive, and a drop in the bucket to a corporation like Goodyear.

Two weeks ago, the second shoe dropped. The Supreme Court issued an opinion in Ledbetter v. Goodyear Tire & Rubber1 which prevented Ms. Ledbetter from recovering anything to remedy the discrimination that she endured. According to the Court’s new rule, Ms. Ledbetter filed her discrimination complaint too late. A 5-4 Court held that Title VII’s requirement that employees file their complaints within 180 days of “the alleged unlawful employment practice,”2 means that the complaint must be filed within 180 days from the day Goodyear first started to pay Ms. Ledbetter differently, rather than – as many courts had previously held -- from the day she received her last discriminatory paycheck.

The Court’s ruling on the statute of limitations in Ledbetter is fundamentally unfair to victims of pay discrimination. First, by immunizing employers from accountability for their discrimination once 180 days have passed from the initial pay decision, the Supreme Court has taken away victims’ recourse against continuing discrimination.

Moreover, the Court’s decision in Ledbetter ignores the realities of the workplace. Employees typically don’t know much about what their co-workers earn, or how pay decisions are made, making it difficult to satisfy the Court’s new rule.

As Justice Ginsberg pointedly emphasized in her dissent, pay discrimination is a hidden discrimination that is particularly dangerous due to the silence surrounding salary information in the United States. It is common practice for many employers to withhold comparative pay information from employees. One-third of private sector employers have adopted specific rules prohibiting employees from discussing their wages with co-workers, and a significant number of other employers have more informal expectations that employees do not discuss their salaries. Only one in ten employers has adopted a pay openness policy.3

Workers know immediately when they are fired, refused employment, or denied a promotion or transfer, but norms of secrecy and confidentiality prevent employees from obtaining compensation information. As Justice Ginsberg’s dissent points out, it is not unusual for businesses to decline to publish employee pay levels, or for employees to keep private their own salaries.

The reality is that every time an employee receives a paycheck that is lessened by discrimination, it is an act of discrimination by the employer. The harm is ongoing; the remedy should be too.

In addition, the impact of the Title VII caps on Ms. Ledbetter clearly illustrates the need to eliminate this arbitrary provision from the law.

Under current law, individuals who prove that they have been the victims of intentional discrimination based on sex, disability or religion are only able to recover compensatory and punitive damages up to a cap of $300,000. This is true no matter how egregious the conduct of the discriminator, nor how long the discrimination continued. The caps create an artificial ceiling on damages awards that does not exist for individuals whose discrimination was based on race or national origin. If a person who was discriminated against on the basis of sex suffers the same adverse employment consequences as a person discriminated against on the basis of race or national origin, why should one be eligible to receive more damages than another?

Moreover, often it is the most severe cases of discrimination that are affected by the damages caps. Damages caps, effectively, protect the worst offenders while denying relief to those who were harmed the most.

Caps also minimize the deterrent effect of Title VII. If the potential liability for sex discrimination is capped, it is manageable for corporations. More like a cost of doing business. However, uncapped damages, at a minimum, create more of an incentive for employers to ensure that their workplaces are free from discrimination. Compensatory damages are designed to make the victim whole. If the economic harms suffered by the victim of discrimination are greater than the statutory cap, it should not be the discrimination victim who is left with less.

Finally, in employment discrimination cases based on race or national origin – where there are no damages caps -- we have not seen runaway verdicts. This is, in part, due to the numerous existing limitations in the current law that guard against improperly high verdicts. Courts can use their remitter power to reduce or vacate excessive damage awards, and there are constitutional limitations on punitive damages.4

The impact of the Court’s decision in Ledbetter will be widespread, affecting pay discrimination cases under Title VII affecting women and racial and ethnic minorities, as well as cases under the Age Discrimination in Employment Act5 involving discrimination based on age and under the Americans with Disabilities Act6 involving discrimination against individuals with disabilities.

Here is an example. Imagine you have worked for a company for 30 years. You are a good worker. You do a good job. Unknown to you, the company puts workers who are 50 or older on a different salary track; lower than the younger workers who do the same work. At 60, you learn that for the last 10 years, you have been earning less – tens of thousands of dollars less than colleagues doing comparable work.

How do you feel?

Imagine you are this worker. How do you feel?

Even more, how do you feel when you learn that 180 days after you turned 50 – six months after you started getting paid less – you also lost your right to redress for the hundreds of discriminatory paychecks.

The decision in Ledbetter will have a broad real world impact. The following are just two examples of recent pay discrimination cases that would have come out very differently if the Court’s new rule had been in effect.

In Reese v. Ice Cream Specialties, Inc.7 the plaintiff, an African-American man, never received the raise he was promised after six months of work. He did not realize his raise had never been awarded until three and a half years later, when he requested a copy of his payroll records for an unrelated investigation.8 The employee filed a charge of race discrimination with the EEOC, and the court initially granted summary judgment to the employer. On appeal, the employee argued that his claim was timely under the continuing violation theory, and the court concluded that the relevant precedents compelled the conclusion that each paycheck constituted a fresh act of discrimination, and thus his suit was timely.9 If the rule in Ledbetter had been in effect, the plaintiff would not have been able to seek relief.

In Goodwin v. General Motors Corp.10, an African-American woman was promoted to a labor representative position, with a salary that was between $300 and $500 less than other similarly-situated white employees.11 Over time, Goodwin’s salary disparity grew larger until she was being paid $547 less per month than the next lowest paid representative, while at the same time pay disparities among the other three labor representatives shrank from over $200 per month to only $82.12 Due to GM’s confidentiality policy, Goodwin did not discover the disparity until a printout of the 1997 salaries “somehow appeared on Goodwin’s desk.”13 She then brought a race discrimination action against her employer under Title VII. The district court dismissed the action, but the Tenth Circuit reversed and remanded, holding that discriminatory salary payments constituted fresh violations of Title VII, and each action of pay-based discrimination was independent for purposes of statutory time limitations. Again, if the rule in Ledbetter had been in effect, the plaintiff would not have been able to obtain relief.

Pay discrimination is a type of hidden discrimination that continues to be an important issue in the United States. In the fiscal year 2006, individuals filed over 800 charges of unlawful, sex-based pay discrimination with the EEOC. Unfortunately, under the Ledbetter rationale, many meritorious claims will never be adjudicated.

While today we are focused on the immediate problem of the Ledbetter decision, it is also important to understand that this decision is part of the Court’s recent pattern of limiting both access to the courts and remedies available to victims of discrimination. The Court’s decisions have weakened the basic protections in ways that Congress never intended by Congress.

Under the Supreme Court’s recent rulings, older workers can no longer recover money damages for employment discrimination based on age if they are employed by the state14, state workers can no longer recover money damages if their employers violate minimum wage and overtime laws15; there is no private right of action to enforce the disparate impact regulations of Title VI of the Civil Rights Act of 196416; and workers can now be required to give up their right to sue in court for discrimination as a condition of employment.17 In many of these cases, as in Ledbetter, the Court is acting as a legislature, making its own policy while acting directly contrary to Congress’s intent.

For opponents of civil rights, there is no need to repeal Title VII. Instead you can substantially weaken its protections by chipping away at bedrock interpretations. Or, you can instead make it difficult or impossible for plaintiffs to bring and win employment discrimination cases. Or if you make the remedies meaningless.

As Justice Ginsburg pointed out in her dissent, Congress has stepped in on other occasions to correct the Court’s “cramped” interpretation of Title VII. The Civil Rights Act of 1991 overturned several Supreme Court decisions that eroded the power of Title VII, including Wards Cove Packing Co. v. Atonio18, which made it more difficult for employees to prove that an employer's personnel practices, neutral on their face, had an unlawful disparate impact on them, and Price Waterhouse v. Hopkins19, which held that once an employee had proved that an unlawful consideration had played a part in the employer's personnel decision, the burden shifted to the employer to prove that it would have made the same decision if it had not been motivated by that unlawful factor, but that such proof by the employer would constitute a complete defense. As Justice Ginsburg sees it, “[o]nce again, the ball is in Congress’ court.”

We agree.

We also reiterate the need to end the disparity in employment discrimination law by removing the damages caps that apply to women, individuals with disabilities and older Americans under current law. The caps undercut enforcement, are unnecessary, and reward the most egregious discriminators with a substantial limitation on liability for their intentional discriminatory acts.

The issues in this case are not academic. The fallout will have a real impact on the lives of people across America.

People like Lily Ledbetter.

Members of the Committee, today you begin the process of responding to Justice Ginsburg’s call. A process that will reaffirm that civil rights have legally enforceable remedies.

Thank you.

1 Slip op. No. 05-1074 (U.S. Supreme Court)

2 42 U.S.C. 2000e et seq.

3 Bierman & Gely, “Love, Sex and Politics? Sure. Salary? No Way”: Workplace Social Norms and the Law, 25 Berkeley J. Emp. & Lab. L. 167, 168, 171 (2004).

4 BMW of Northern America, Inc. v. Gore, 517 U.S. 559 (1996)

5 29 U.S.C. 621 et seq.

6 42 U.S.C. 12101 et seq.

7 347 F.3d 1007 (7th Cir. 2003)

8 Id. at 1007

9 Id. at 1013

10 275 F.3d 1005 (10th Cir. 2002)

11 Id. at 1008

12 Id.

13 Id. at 1008

14 Kimel v. Florida Board of Regents, 528 U.S. 62 (2000)

15 Alden v. Maine, 527 U.S. 706 (1999)

16 Alexander v. Sandoval, 532 U.S. 275 (2001)

17 Circuit City Stores v. Adams, 532 U.S. 105 (2001)

18 490 U.S. 642 (1989)19 490 U.S. 228 (1989)

Thursday, May 28, 2009

Mayor Mike Bloomberg Says That New York Observer Reporter Azi Paybarah is "a disgrace."



YouTube: Mayor Mike Bloomberg says that New York Observer reporter Azi Paybarah is "a disgrace".

Mayor Bloomberg calls reporter 'a disgrace' for questioning rationale for third term run
By Celeste Katz, DAILY NEWS CITY HALL BUREAU, Thursday, May 28th 2009, 5:58 PM
LINK

Ask Mayor Bloomberg about job creation statistics and you're fine.

Ask him about that pesky term limits thing and apparently, "you're a disgrace."

Bloomberg - who controversially got the City Council to lift the two-term limit so he could try for a third this year - went off on a reporter Thursday who questioned his rationale for running again.

At a Queens news conference to announce $31.7 million in job training funds, Bloomberg said there has been a change in the economic "psychology" of the city.

He mentioned improvements in the real estate market and a renewed willingness on the part of citygoers to spend at stores and restaurants.

At one point he said although the city still faces grave problems, "I'm reasonably optimistic that we've turned the corner."

But the mayor seemed downright provoked when a reporter asked if such improvements eliminated the need for a third Bloomberg term.

He had justified his desire for a third term, in part, by saying the city needed his management expertise in rough economic times.

"Why don't you just get serious questions here?" he interrupted New York Observer reporter Azi Paybarah.

"The rationale for extending term limits is the City Council voted it and the public's going to have a chance on Nov. 3 to say what they want," the mayor said, interrupting again.

"I don't think we have to keep coming back to that... If you have a serious question about the economy, I will be happy to answer it."

After asking if there were any further questions - there were none - Bloomberg thanked the attendees, closed the news conference, glared at Paybarah and said, quietly, "You're a disgrace."

Paybarah referred questions about the mayor's putdown to Observer Political Editor Josh Benson.

"It was a reasonable question," Benson said.

"We're comfortable leaving it to everyone else to judge the quality of the response."

ckatz@nydailynews.com

You're A Disgrace' (Updated)
May 28, 2009
LINK

To the annals of Mayor Bloomberg's mistreatment of the press add his testy exchange today with The Observer's Azi Paybarah, who dared to ask Hizzoner a question about term limits.

The mayor, having just finished explaining to the DN's Celeste Katz that he happens to be "very optimistic" about the city's economy and giving anecdotal examples of how things are turning around, did not take kindly to Azi's inquiry about how this might undercut Bloomberg's own rationale for extending term limits - not to mention running for re-election.

Here's the transcript:

Azi: "If the economy is turning around as you said, does that mean that the rationale for extending term limits, which is the fiscal challenge...

Bloomberg: "I don't know. Why don't you just get to serious questions here and we'll just..."

Azi: No, but the question is...

Bloomberg: "The rationale for extending term limits is the City Council voted it, and the public's going to have a chance on Nov. 3 to say what they want, and I don't think we have to keep coming back to that. When you have a serious question about the economy i'd be happy to answer it."

"Anything else? Thank you very much. Nothing else? Great. Thank you."

(Applause).

And then, as the mayor walks away from the podium, he looks at Azi and says, almost under his breath: "You're a disgrace." (Read his lips).

Ironically, Bloomberg once used that very word to describe...the City Council's effort to change term limits.

Actually, he said that was an "absolute disgrace." But why quibble?

Bloomberg, who happens to be a media mogul, has a long history of tense interactions with reporters. His most recent dust-up was with blogger Michael Harris, who uses a wheelchair, during Gov. David Paterson's gay marriage press conference.

There was also his rather infamous exchange with Newsday's Michael Frazier over the word "maintain," which took place almost exactly a year ago.

UPDATE: Azi referred questions to his boss, Political Editor Josh Benson, who said (via e-mail): "It was a reasonable question. We're comfortable leaving it to everyone else to judge the quality of the response."

UPDATE2: Bloomberg spokesman Stu Loeser e-mailed Katz to say: "The Mayor asked me to pass along his apologies to Azi for the comment after the press conference, which I did."

Meanwhile, Comptroller Bill Thompson's campaign manager, Anne Fenton, commented:

"What’s disgraceful is the Mayor’s refusal to answer the tough questions. Calling people names, having staff block cameras and bullying the press aren’t going to stop people from asking the mayor to explain his term limits bait and switch.”

8 Comments

Field Marshal Tania

May 28, 2009
5:37 PM

Why does nobody seem to recognize what a hideous troll Bloomberg is?

NYRBLUE74

May 28, 2009
6:05 PM

Wow! Liz, you and celeste, don't miss much.Nice work.The Mayor, looked, like, he was ready to turn over a table.The leader of the greatest city in the world needs to be cool and steady.But, that moment! Scary!..


" Not cool" there.

Buckadelic

May 28, 2009
6:12 PM

[Why does nobody seem to recognize what a hideous troll Bloomberg is?]

Maybe you have to be a hideous troll to be mayor of New York City?

Learning the Political Game

May 28, 2009
7:11 PM

Azi is my new hero......Great question. His last comment before walking off........priceless!!!!

topo gigio

May 28, 2009
7:42 PM

Emperor Bloomberg doesn't like to have his motives questioned.

Keep up the good work, Azi.

We know who the real disgrace is here. It's the dude who is buying himself a third term and all the pols who were so easily bought off.

ROSALIE907

May 28, 2009
10:05 PM

Good job Azi and keep it up. By the way, why couldn't Bloomberg call Azi himself to apologize or is it beneath him to tell a reporter that he, Mike Bloomberg, is a jerk.

REMEMBER TERM LIMITS ON NOV 3, 2009.

Don'tHateMeLoveMe

May 28, 2009
11:07 PM

Lizzie, looking out for Azi, yeah. If Bloomberg spoke that way to Lizzie then I would have punch him in his mouth.

jpyanks

May 28, 2009
11:12 PM

It seems that most of us posting notes dislike Napoleon Bloomberg. Besides voting for Bill Thompson, please talk to your friends and family in NYC to vote against him. This is the only way we're going to get rid of this egomaniac and save our city. Thompson is the City Comptroller and obviously knows how to handle a billion dollar budget and talk to the citizens of the city he grew up in politely and with dignity. VOTE BLOOMBERG OUT!!!

Read more: "The Daily Politics - NY Daily News" - http://www.nydailynews.com/blogs/dailypolitics/2009/05/youre-a-disgrace.html#ixzz0GrhcfX0V&A

Sunday, May 24, 2009

Federal Laws Prohibiting Job Discrimination



Do you feel that your employer is discriminating against you or others on the basis of race, color, religion, sex, national origin, age, family commitments, and/or disparate treatment? Then you should start reading up on the Federal Laws that may cover you, once you exhaust all your administrative remedies - i.e. you have tried all channels within your workplace to reach a solution to your alleged discrimination. (I am not an attorney and cannot give legal advice, so if you are in doubt about how these laws affect you, call an attorney).

Betsy Combier

Federal Laws Prohibiting Job Discrimination:
Questions And Answers

EEOC

Federal Equal Employment Opportunity (EEO) Laws

I. What Are the Federal Laws Prohibiting Job Discrimination?

* Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex, or national origin;
* the Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination;
* the Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older;
* Title I and Title V of the Americans with Disabilities Act of 1990 (ADA), which prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments;
* Sections 501 and 505 of the Rehabilitation Act of 1973, which prohibit discrimination against qualified individuals with disabilities who work in the federal government; and
* the Civil Rights Act of 1991, which, among other things, provides monetary damages in cases of intentional employment discrimination.

EEOC Outreach Audiences For Education and Technical Assistance
The U.S. Equal Employment Opportunity Commission (EEOC) enforces all of these laws. EEOC also provides oversight and coordination of all federal equal employment opportunity regulations, practices, and policies.

Other federal laws, not enforced by EEOC, also prohibit discrimination and reprisal against federal employees and applicants. The Civil Service Reform Act of 1978 (CSRA) contains a number of prohibitions, known as prohibited personnel practices, which are designed to promote overall fairness in federal personnel actions. 5 U.S.C. 2302. [See also Whistleblower Retaliation - Editor] The CSRA prohibits any employee who has authority to take certain personnel actions from discriminating for or against employees or applicants for employment on the bases of race, color, national origin, religion, sex, age or disability. It also provides that certain personnel actions can not be based on attributes or conduct that do not adversely affect employee performance, such as marital status and political affiliation. The Office of Personnel Management (OPM) has interpreted the prohibition of discrimination based on conduct to include discrimination based on sexual orientation. The CSRA also prohibits reprisal against federal employees or applicants for whistle-blowing, or for exercising an appeal, complaint, or grievance right. The CSRA is enforced by both the Office of Special Counsel (OSC) and the Merit Systems Protection Board (MSPB).

Additional information about the enforcement of the CSRA:
the OPM web site at http://www.opm.gov/er/address2/guide01.htm; from OSC at (202) 653-7188 or at http://www.osc.gov; and from MSPB at (202) 653-6772 or at http://www.mspb.gov .

Discriminatory Practices

Forms

II. What Discriminatory Practices Are Prohibited by These Laws?

Under Title VII, the ADA, and the ADEA, it is illegal to discriminate in any aspect of employment, including:

* hiring and firing;
* compensation, assignment, or classification of employees;
* transfer, promotion, layoff, or recall;
* job advertisements;
* recruitment;
* testing;
* use of company facilities;
* training and apprenticeship programs;
* fringe benefits;
* pay, retirement plans, and disability leave; or
* other terms and conditions of employment.

Discriminatory practices under these laws also include:

* harassment on the basis of race, color, religion, sex, national origin, disability, or age;
* retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices;
* employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, race, age, religion, or ethnic group, or individuals with disabilities; and
* denying employment opportunities to a person because of marriage to, or association with, an individual of a particular race, religion, national origin, or an individual with a disability. Title VII also prohibits discrimination because of participation in schools or places of worship associated with a particular racial, ethnic, or religious group.

Employers are required to post notices to all employees advising them of their rights under the laws EEOC enforces and their right to be free from retaliation. Such notices must be accessible, as needed, to persons with visual or other disabilities that affect reading.

Note: Many states and municipalities also have enacted protections against discrimination and harassment based on sexual orientation, status as a parent, marital status and political affiliation. For information, please contact the EEOC District Office nearest you.

III. What Other Practices Are Discriminatory Under These Laws?

Title VII

Title VII prohibits not only intentional discrimination, but also practices that have the effect of discriminating against individuals because of their race, color, national origin, religion, or sex.
National Origin Discrimination

* It is illegal to discriminate against an individual because of birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group.
* A rule requiring that employees speak only English on the job may violate Title VII unless an employer shows that the requirement is necessary for conducting business. If the employer believes such a rule is necessary, employees must be informed when English is required and the consequences for violating the rule.

The Immigration Reform and Control Act (IRCA) of 1986 requires employers to assure that employees hired are legally authorized to work in the U.S. However, an employer who requests employment verification only for individuals of a particular national origin, or individuals who appear to be or sound foreign, may violate both Title VII and IRCA; verification must be obtained from all applicants and employees. Employers who impose citizenship requirements or give preferences to U.S. citizens in hiring or employment opportunities also may violate IRCA.

Additional information about IRCA may be obtained from the Office of Special Counsel for Immigration-Related Unfair Employment Practices at 1-800-255-7688 (voice), 1-800-237-2515 (TTY for employees/applicants) or 1-800-362-2735 (TTY for employers) or at http://www.usdoj.gov/crt/osc.

Religious Accommodation

* An employer is required to reasonably accommodate the religious belief of an employee or prospective employee, unless doing so would impose an undue hardship.

Sex Discrimination

Title VII's broad prohibitions against sex discrimination specifically cover:

* Sexual Harassment - This includes practices ranging from direct requests for sexual favors to workplace conditions that create a hostile environment for persons of either gender, including same sex harassment. (The "hostile environment" standard also applies to harassment on the bases of race, color, national origin, religion, age, and disability.)
* Pregnancy Based Discrimination - Pregnancy, childbirth, and related medical conditions must be treated in the same way as other temporary illnesses or conditions.

Additional rights are available to parents and others under the Family and Medical Leave Act (FMLA), which is enforced by the U.S. Department of Labor. For information on the FMLA, or to file an FMLA complaint, individuals should contact the nearest office of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor. The Wage and Hour Division is listed in most telephone directories under U.S. Government, Department of Labor or at http://www.dol.gov/esa/public/whd_org.htm.

Age Discrimination in Employment Act

The ADEA's broad ban against age discrimination also specifically prohibits:

* statements or specifications in job notices or advertisements of age preference and limitations. An age limit may only be specified in the rare circumstance where age has been proven to be a bona fide occupational qualification (BFOQ);
* discrimination on the basis of age by apprenticeship programs, including joint labor-management apprenticeship programs; and
* denial of benefits to older employees. An employer may reduce benefits based on age only if the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers.

Equal Pay Act

The EPA prohibits discrimination on the basis of sex in the payment of wages or benefits, where men and women perform work of similar skill, effort, and responsibility for the same employer under similar working conditions.

Note that:

* Employers may not reduce wages of either sex to equalize pay between men and women.
* A violation of the EPA may occur where a different wage was/is paid to a person who worked in the same job before or after an employee of the opposite sex.
* A violation may also occur where a labor union causes the employer to violate the law.

Titles I and V of the Americans with Disabilities Act

The ADA prohibits discrimination on the basis of disability in all employment practices. It is necessary to understand several important ADA definitions to know who is protected by the law and what constitutes illegal discrimination:

Individual with a Disability

An individual with a disability under the ADA is a person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. Major life activities are activities that an average person can perform with little or no difficulty such as walking, breathing, seeing, hearing, speaking, learning, and working.

Qualified Individual with a Disability

A qualified employee or applicant with a disability is someone who satisfies skill, experience, education, and other job-related requirements of the position held or desired, and who, with or without reasonable accommodation, can perform the essential functions of that position.

Reasonable Accommodation

Reasonable accommodation may include, but is not limited to, making existing facilities used by employees readily accessible to and usable by persons with disabilities; job restructuring; modification of work schedules; providing additional unpaid leave; reassignment to a vacant position; acquiring or modifying equipment or devices; adjusting or modifying examinations, training materials, or policies; and providing qualified readers or interpreters. Reasonable accommodation may be necessary to apply for a job, to perform job functions, or to enjoy the benefits and privileges of employment that are enjoyed by people without disabilities. An employer is not required to lower production standards to make an accommodation. An employer generally is not obligated to provide personal use items such as eyeglasses or hearing aids.

Undue Hardship

An employer is required to make a reasonable accommodation to a qualified individual with a disability unless doing so would impose an undue hardship on the operation of the employer's business. Undue hardship means an action that requires significant difficulty or expense when considered in relation to factors such as a business' size, financial resources, and the nature and structure of its operation.

Prohibited Inquiries and Examinations

Before making an offer of employment, an employer may not ask job applicants about the existence, nature, or severity of a disability. Applicants may be asked about their ability to perform job functions. A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in the same job category. Medical examinations of employees must be job-related and consistent with business necessity.

Drug and Alcohol Use

Employees and applicants currently engaging in the illegal use of drugs are not protected by the ADA when an employer acts on the basis of such use. Tests for illegal use of drugs are not considered medical examinations and, therefore, are not subject to the ADA's restrictions on medical examinations. Employers may hold individuals who are illegally using drugs and individuals with alcoholism to the same standards of performance as other employees.

The Civil Rights Act of 1991

The Civil Rights Act of 1991 made major changes in the federal laws against employment discrimination enforced by EEOC. Enacted in part to reverse several Supreme Court decisions that limited the rights of persons protected by these laws, the Act also provides additional protections. The Act authorizes compensatory and punitive damages in cases of intentional discrimination, and provides for obtaining attorneys' fees and the possibility of jury trials. It also directs the EEOC to expand its technical assistance and outreach activities.

Employers And Other Entities Covered By EEO Laws

IV. Which Employers and Other Entities Are Covered by These Laws?


Title VII and the ADA cover all private employers, state and local governments, and education institutions that employ 15 or more individuals. These laws also cover private and public employment agencies, labor organizations, and joint labor management committees controlling apprenticeship and training.

The ADEA covers all private employers with 20 or more employees, state and local governments (including school districts), employment agencies and labor organizations.

The EPA covers all employers who are covered by the Federal Wage and Hour Law (the Fair Labor Standards Act). Virtually all employers are subject to the provisions of this Act.

Title VII, the ADEA, and the EPA also cover the federal government. In addition, the federal government is covered by Sections 501 and 505 of the Rehabilitation Act of 1973, as amended, which incorporate the requirements of the ADA. However, different procedures are used for processing complaints of federal discrimination. For more information on how to file a complaint of federal discrimination, contact the EEO office of the federal agency where the alleged discrimination occurred.

The CSRA (not enforced by EEOC) covers most federal agency employees except employees of a government corporation, the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Security Agency, and as determined by the President, any executive agency or unit thereof, the principal function of which is the conduct of foreign intelligence or counterintelligence activities, or the General Accounting Office.

The EEOC'S Charge Processing Procedures

Federal employees or applicants for employment should see the fact sheet about Federal Sector Equal Employment Opportunity Complaint Processing.

V. Who Can File a Charge of Discrimination?

* Any individual who believes that his or her employment rights have been violated may file a charge of discrimination with EEOC.
* In addition, an individual, organization, or agency may file a charge on behalf of another person in order to protect the aggrieved person's identity.

VI. How Is a Charge of Discrimination Filed?

* A charge may be filed by mail or in person at the nearest EEOC office. Individuals may consult their local telephone directory (U.S. Government listing) or call 1-800-669-4000 (voice) or 1-800-669-6820 (TTY) to contact the nearest EEOC office for more information on specific procedures for filing a charge.
* Individuals who need an accommodation in order to file a charge (e.g., sign language interpreter, print materials in an accessible format) should inform the EEOC field office so appropriate arrangements can be made.
* Federal employees or applicants for employment should see the fact sheet about Federal Sector Equal Employment Opportunity Complaint Processing. See Performance AuditVII. What Information Must Be Provided to File a Charge?

* The complaining party's name, address, and telephone number;
* The name, address, and telephone number of the respondent employer, employment agency, or union that is alleged to have discriminated, and number of employees (or union members), if known;
* A short description of the alleged violation (the event that caused the complaining party to believe that his or her rights were violated); and
* The date(s) of the alleged violation(s).
* Federal employees or applicants for employment should see the fact sheet about Federal Sector Equal Employment Opportunity Complaint Processing.

VIII. What Are the Time Limits for Filing a Charge of Discrimination?

All laws enforced by EEOC, except the Equal Pay Act, require filing a charge with EEOC before a private lawsuit may be filed in court. There are strict time limits within which charges must be filed:

* A charge must be filed with EEOC within 180 days from the date of the alleged violation, in order to protect the charging party's rights.
* This 180-day filing deadline is extended to 300 days if the charge also is covered by a state or local anti-discrimination law. For ADEA charges, only state laws extend the filing limit to 300 days.
* These time limits do not apply to claims under the Equal Pay Act, because under that Act persons do not have to first file a charge with EEOC in order to have the right to go to court. However, since many EPA claims also raise Title VII sex discrimination issues, it may be advisable to file charges under both laws within the time limits indicated.
* To protect legal rights, it is always best to contact EEOC promptly when discrimination is suspected.
* Federal employees or applicants for employment should see the fact sheet about Federal Sector Equal Employment Opportunity Complaint Processing.

IX. What Agency Handles a Charge that is also Covered by State or Local Law?

Many states and localities have anti-discrimination laws and agencies responsible for enforcing those laws. EEOC refers to these agencies as "Fair Employment Practices Agencies (FEPAs)." Through the use of "work sharing agreements," EEOC and the FEPAs avoid duplication of effort while at the same time ensuring that a charging party's rights are protected under both federal and state law.

* If a charge is filed with a FEPA and is also covered by federal law, the FEPA "dual files" the charge with EEOC to protect federal rights. The charge usually will be retained by the FEPA for handling.
* If a charge is filed with EEOC and also is covered by state or local law, EEOC "dual files" the charge with the state or local FEPA, but ordinarily retains the charge for handling.

X. What Happens after a Charge is Filed with EEOC?

The employer is notified that the charge has been filed. From this point there are a number of ways a charge may be handled:

* A charge may be assigned for priority investigation if the initial facts appear to support a violation of law. When the evidence is less strong, the charge may be assigned for follow up investigation to determine whether it is likely that a violation has occurred.
* EEOC can seek to settle a charge at any stage of the investigation if the charging party and the employer express an interest in doing so. If settlement efforts are not successful, the investigation continues.
* In investigating a charge, EEOC may make written requests for information, interview people, review documents, and, as needed, visit the facility where the alleged discrimination occurred. When the investigation is complete, EEOC will discuss the evidence with the charging party or employer, as appropriate.
* The charge may be selected for EEOC's mediation program if both the charging party and the employer express an interest in this option. Mediation is offered as an alternative to a lengthy investigation. Participation in the mediation program is confidential, voluntary, and requires consent from both charging party and employer. If mediation is unsuccessful, the charge is returned for investigation.
* A charge may be dismissed at any point if, in the agency's best judgment, further investigation will not establish a violation of the law. A charge may be dismissed at the time it is filed, if an initial in-depth interview does not produce evidence to support the claim. When a charge is dismissed, a notice is issued in accordance with the law which gives the charging party 90 days in which to file a lawsuit on his or her own behalf.
* Federal employees or applicants for employment should see the fact sheet about Federal Sector Equal Employment Opportunity Complaint Processing.

XI. How Does EEOC Resolve Discrimination Charges?

* If the evidence obtained in an investigation does not establish that discrimination occurred, this will be explained to the charging party. A required notice is then issued, closing the case and giving the charging party 90 days in which to file a lawsuit on his or her own behalf.
* If the evidence establishes that discrimination has occurred, the employer and the charging party will be informed of this in a letter of determination that explains the finding. EEOC will then attempt conciliation with the employer to develop a remedy for the discrimination.
* If the case is successfully conciliated, or if a case has earlier been successfully mediated or settled, neither EEOC nor the charging party may go to court unless the conciliation, mediation, or settlement agreement is not honored.
* If EEOC is unable to successfully conciliate the case, the agency will decide whether to bring suit in federal court. If EEOC decides not to sue, it will issue a notice closing the case and giving the charging party 90 days in which to file a lawsuit on his or her own behalf. In Title VII and ADA cases against state or local governments, the Department of Justice takes these actions.
* Federal employees or applicants for employment should see the fact sheet about Federal Sector Equal Employment Opportunity Complaint Processing.

XII. When Can an Individual File an Employment Discrimination Lawsuit in Court?

A charging party may file a lawsuit within 90 days after receiving a notice of a "right to sue" from EEOC, as stated above. Under Title VII and the ADA, a charging party also can request a notice of "right to sue" from EEOC 180 days after the charge was first filed with the Commission, and may then bring suit within 90 days after receiving this notice. Under the ADEA, a suit may be filed at any time 60 days after filing a charge with EEOC, but not later than 90 days after EEOC gives notice that it has completed action on the charge.

Under the EPA, a lawsuit must be filed within two years (three years for willful violations) of the discriminatory act, which in most cases is payment of a discriminatory lower wage.

Federal employees or applicants for employment should see the fact sheet about Federal Sector Equal Employment Opportunity Complaint Processing.

XIII. What Remedies Are Available When Discrimination Is Found?

The "relief" or remedies available for employment discrimination, whether caused by intentional acts or by practices that have a discriminatory effect, may include:

* back pay,
* hiring,
* promotion,
* reinstatement,
* front pay,
* reasonable accommodation, or
* other actions that will make an individual "whole" (in the condition s/he would have been but for the discrimination).

Remedies also may include payment of:

* attorneys' fees,
* expert witness fees, and
* court costs.

Under most EEOC-enforced laws, compensatory and punitive damages also may be available where intentional discrimination is found. Damages may be available to compensate for actual monetary losses, for future monetary losses, and for mental anguish and inconvenience. Punitive damages also may be available if an employer acted with malice or reckless indifference. Punitive damages are not available against the federal, state or local governments.

In cases concerning reasonable accommodation under the ADA, compensatory or punitive damages may not be awarded to the charging party if an employer can demonstrate that "good faith" efforts were made to provide reasonable accommodation.

An employer may be required to post notices to all employees addressing the violations of a specific charge and advising them of their rights under the laws EEOC enforces and their right to be free from retaliation. Such notices must be accessible, as needed, to persons with visual or other disabilities that affect reading.

The employer also may be required to take corrective or preventive actions to cure the source of the identified discrimination and minimize the chance of its recurrence, as well as discontinue the specific discriminatory practices involved in the case.

The Commission

XIV. What Is EEOC and How Does It Operate?

EEOC is an independent federal agency originally created by Congress in 1964 to enforce Title VII of the Civil Rights Act of 1964. The Commission is composed of five Commissioners and a General Counsel appointed by the President and confirmed by the Senate. Commissioners are appointed for five-year staggered terms; the General Counsel's term is four years. The President designates a Chair and a Vice-Chair. The Chair is the chief executive officer of the Commission. The Commission has authority to establish equal employment policy and to approve litigation. The General Counsel is responsible for conducting litigation.

EEOC carries out its enforcement, education and technical assistance activities through 50 field offices serving every part of the nation.

The nearest EEOC field office may be contacted by calling: 1-800-669-4000 (voice) or 1-800-669-6820 (TTY).

Information And Assistance Available From EEOC

XV. What Information and Other Assistance Is Available from EEOC?


EEOC provides a range of informational materials and assistance to individuals and entities with rights and responsibilities under EEOC-enforced laws. Most materials and assistance are provided to the public at no cost. Additional specialized training and technical assistance are provided on a fee basis under the auspices of the EEOC Education, Technical Assistance, and Training Revolving Fund Act of 1992. For information on educational and other assistance available, contact the nearest EEOC office by calling: 1-800-669-4000 (voice) or 1-800-669-6820 (TTY).

Publications available at no cost include posters advising employees of their EEO rights, and pamphlets, manuals, fact sheets, and enforcement guidance on laws enforced by the Commission. For a list of EEOC publications, or to order publications, write, call, or fax:

U.S. Equal Employment Opportunity Commission
Publications Distribution Center
P.O. Box 12549
Cincinnati, Ohio 45212-0549
1-800-669-3362 (voice)
1-800-800-3302 (TTY)
513-489-8692 (fax)

Telephone operators are available to take orders (in English or Spanish) from 8:30 a.m. to 5:00 p.m. (EST), Monday through Friday. Orders generally are mailed within 48 hours after receipt.

This pamphlet is available in braille, large print, audiotape, and electronic file on computer disk. Other EEOC publications are available in accessible formats on request. Requests to obtain accessible formats should be directed to the Publications Distribution Center.

Saturday, May 23, 2009

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