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Wednesday, December 9, 2009

Whistleblower PE Teacher Daniel Smith Sues the NYC BOE in Federal Court For Putting Him in the "Rubber Room" For More Than Two Years

Contact: Alan J. Wax (631) 873-8044
(631) 574-4433
or Todd Shapiro (516) 312-6573


NEW YORK (Nov. 12, 2009) -- Daniel Smith, the outspoken former Dewitt Clinton High School girls softball coach and Bronx high school gym teacher, is suing the New York City Department of Education to get out of one of the city’s infamous “rubber rooms.” Smith claims he’s been assigned to the rubber room for speaking out against school officials.

“The New York City Department of Education, despite clear evidence that Dan Smith was not guilty of improper conduct assigned him to the rubber room and delayed proffering charges against him for an entire school year,” said his attorney, Lenard Leeds of the Carle Place law firm Leeds Morelli & Brown PC, specialists in employment law. “He’s been harassed and disciplined in retaliation for exercising free speech.”

The suit seeks an injunction against the school system, unspecified financial damages for lost income and punitive damages for the humiliation and physical and emotional damages that Smith alleges he has suffered. A jury trial has been requested.

“Dan was charged with the unfounded sexual harassment allegations levied against him by a student who was absent on the day she claims to have been harassed, with coaching a team on a day in which he utilized sick time for a doctor’s appointment, and for receiving an unsatisfactory rating from his supervisor,” Smith’s lawyers claim in the suit filed Nov. 6 in Manhattan federal court (Index No. 09 CV 9256). “These charges were pretext in retaliation for speaking out about a matter of public concern,” the complaint stated.

In the lawsuit, Smith claims he was placed in the rubber room, or reassignment center, in retaliation for talking out about racial and regional bias in the Public School Athletic League’s football program and because of his vocal efforts to get money for the under funded Clinton girls team. Until their cases are resolved, which can take years, teachers, who receive their full salaries, are required to spend the 181 days of the school year in the spartan rubber room.

Smith, who was assigned to the “rubber room’” or reassignment center in 2007 after he was accused of sexual harassment by a student, is one of hundreds of Department of Education employees who've been accused of wrongdoing -- ranging from buying a plant for a school against the principal's wishes to inappropriately touching a student -- and who do absolutely no work.

Also named in the suit, filed in U.S. District Court for the Southern District of New York are various school administrators at Clinton and Grace Dodge High School.

Smith, who has worked in the city schools since 1985, says in his suit he’s being punished for speaking out about racism and economic bias in the Public Schools Athletic League, and because of his attempts to get funding for his softball team, Smith formerly was also a football coach

Smith’s suit alleges that school officials have harassed him since 1999 and that the harassment peaked in 2001-2002, when he received an unsatisfactory rating for his teaching. The rating eventually was removed. The former coach says further retaliation was the result of publication in 2008 of a story in the New York Daily News about the budget disparities that he complained about.

In March 2007 a student made a false allegation of sexual harassment--on a day the student was absent from his class. An investigation, he claims was not launched until a month later, after an article entitled “Grudge Match” appeared in the Daily News mentioning Dan in his capacity as a softball coach for speaking out about the lack of equipment provided to the girls’ softball program at Clinton. Smith alleges that school officials made no effort to interview a faculty eyewitness to the alleged event. In August 2007, Smith learned he had been assigned to the “rubber room” as a result of the student’s allegations and because he coached on a day when he was absent from his teaching job. No other students among the almost 100 in the class at the time were interviewed, except for a friend of Smith’s accuser.

“Reassignment to the rubber room has left Dan ineligible to coach within the Department of Education system, in turn costing him income he regularly earned by coaching in years prior,” he claims in his suit. Formal charges against him were not filed until May 2008, a month after a second Daily News story was published.

Daniel Smith Complaint

The case has been assigned to Judge Denise L. Cote.

Teacher Sues DOE Over Molestation Charges

Teacher Accused of Sexual Misconduct Wants Out of Rubber Room
By John Del Signore in News on November 13, 2009 1:30 PM

For well over two years now, Bronx gym teacher and coach Dan Smith has been sidelined in one of the Department of Education's infamous "rubber rooms," thanks to an allegation of sexual misconduct in March 2007. But while other teachers (over 600 hundred of them!) use their rubber room time to play Sudoku and nap, Smith has been hatching a plan to get out.

Yesterday Smith filed a federal lawsuit against the DOE for an unspecified amount of money and for the right to get out of the rubber room and go back to work. His lawyer claims it took a year before the DOE filed charges against him, and says Smith has been told "he won't have his hearings for another two years, so four or five years [in the rubber room]."

Smith and his lawyer contend the misconduct allegation was "trumped up" by administrators at Dodge High School to retaliate against Smith for speaking to the Daily News about unequal funding for the girls' sports teams. Last year Smith told the News, "My attorney said (the Dept. of Education) is going to ask for me to retire or resign, but I don't intend to do that. I'm not guilty of this charge, and this should have been deemed unfounded. The only reason it's not is because they have a hidden agenda and ulterior motives. ... I'm not making any deals. I want my name restored."

A female student claims Smith told her to sit on his lap during gym class, but Smith tells WABC, "I have something I normally I say and that's 'take a lap and sit on your spot.' Students are normally assigned floor spots, and she said, 'I have to sit on your lap.' I said, 'No. You heard what I said." Smith claims his constitutional rights are being violated by the rubber room banishment, and adds, "I can't understand why the taxpayers of this city are not outraged by what's going on. You can't get your day in court. You can't even be heard."

Comments (8)
[1] | hotstepper

he's got a valid point. no accusation without trial. meanwhile we taxpayers pay salaries to those "accused" teachers stranded in the rubber palace because of this idiotic policy.
November 13, 2009 1:42 PM

[2] | HOTCUP

the DOE and UFT can both shove it.

and there needs to be a better way of dealing with accusations of sexual abuse in schools. decent people can be ruined at the whim of an adolescent, it's out of control.
November 13, 2009 1:45 PM

[3] | Splicer

If they had evidence, they would have plea bargained this thing out. It's obvious they've got nothing to go to trial with. No evidence, no case. The end.
November 13, 2009 1:48 PM

[4] | tom9d

Why would he tell a student to sit on his lap in front of the whole class? It makes zero sense, and if it really happened, one would think other students would back it up.
November 13, 2009 2:20 PM

[5] | ANGRYGOD11

The entire process to fire a tenured NYC teacher is 7 long steps. It costs a lot of time and money. Therefore, it might be cheaper to pay them to rot in the rubber room as some are near retirement and some will just quit.
November 13, 2009 2:41 PM

[6] hotstepper replied to comment from ANGRYGOD11

that's false economy, because as taxpayers we get no return on our investment from those rubber roomies. better to get to the bottom of the complaint expeditiously and fire them or, if deemed innocent, get them back to work ASAP. it's the long drawn out process that is the problem.
November 13, 2009 2:54 PM

[7] EricRoberts

The New Yorker had a really good article about the Rubber Rooms back in August:
November 13, 2009 2:47 PM

[8] | GalBklyn

We need to begin looking at what the Department of Education really does on a day to day basis. I see it as a bloated, ineffectual and callous black hole for teachers and parents that is destroying public education in NYC. Not to mention that nutty budget of theirs.

The problem is that creating logic and efficiency at Klein's DOE is not fit the Bloomberg paradigm of blame the teachers. It's going to take a few more stories like this - and a Lui audit - to make a difference.
November 13, 2009 4:01 PM

Clinton coach Dan Smith slams ban
BY Matt Gagne, Tuesday, April 22nd 2008, 12:17 PM

Suspended Clinton softball coach Dan Smith, a coach and phys ed teacher for 22 years, says sexual misconduct allegations stemming from March 2007 incident are unfounded.

Dan Smith has taught phys ed and coached softball and other sports for the last 22 years, but these days he spends his work hours reading, watching movies on a laptop and playing board games at a Dept. of Education reassignment center, where he is likely to remain through at least the remainder of the current school year.

Smith, who finished last season with a 215-47 career record at Clinton, was removed as coach of the softball team and from his teaching position at Grace Dodge HS in September, following allegations of sexual misconduct that prompted inquiries by Dodge principal Craig Shapiro and the office of Richard J. Condon, the special commissioner of investigation for the New York City school district.

The 46-year-old Smith, a tenured teacher who describes himself as one who doesn't "bow down to people," recounts a longstanding record of "friction" between himself and numerous supervisors. He says that the sexual misconduct charges are politically motivated and part of a calculated effort to remove him from his coaching and teaching positions as payback for speaking openly with the Daily News last spring about what he characterized as the unfair treatment of himself and his softball team by Clinton officials.

"My attorney said (the Dept. of Education) is going to ask for me to retire or resign, but I don't intend to do that," Smith said. "I'm not guilty of this charge, and this should have been deemed unfounded. The only reason it's not is because they have a hidden agenda and ulterior motives. ... I'm not making any deals. I want my name restored."

Nobody from the SCI, the Department of Education, Clinton or Dodge High Schools would comment on Smith's case. Department of Education spokeswoman Margie Feinberg said only that the department was following the proper disciplinary and adjudication procedures contained in the current teachers contract, and that details of the schools' case against Smith would not be discussed until the hearing begins.

There has been no date set for the hearing.

The allegations stem from an incident in the Dodge gymnasium on March 12, 2007 in which Smith is alleged to have approached two female students as they sat on mats in the gym and told one of the girls that "I want you to sit on top of me, on my lap."

Representatives from the teachers union stopped short of calling the charges a conspiracy, but said there were holes in the reports made by Shapiro and the SCI that served as the basis for Smith's removal.

Dodge phys ed teacher Chris Fink, who shared a classroom with Smith and was witness to the incident, maintains that the incident unfolded differently than investigators reported.

"There's an open gym, and I know what I saw and heard," Fink said. "He said (to the girl), 'Long time no see,' and 'You're going to have a hard time passing.' And she said, 'What? Do I have to sit on your lap? . . . He said, 'No, take a lap and go to your spot.' "

Fink was not interviewed by SCI investigators, and although he was interviewed by Shapiro, his account was not included in the Dodge principal's report. Fink said he confronted Shapiro and provided a written statement in an effort to have his
account included, but it is unclear whether it was added to the report.

"I've only known (Smith) for two years. I have no reason to protect him," Fink said. "The truth is the truth when it comes to something as serious as what they've accused Danny of. If I'm there and I'm a witness, I have to live with myself."

Smith raises other questions about the investigation's timing in making his case that Clinton and Dodge officials worked in tandem to put him in "a state of purgatory to get me out of coaching." Smith says that parents of softball players at Clinton learned of his removal before an offical announcement was made. He adds that Dodge has subsequently scrutinized his time slips and charged him with coaching at Clinton on days he was absent from his teaching job at Dodge, a violation of Department of Education regulations. Students also were not removed from taking phys ed classes in the same gymnasium where Smith was teaching after the charge was filed last March, also stipulated by DOE policy.

Smith concedes that he has a lengthy record of less-than-cordial relations with supervisors. Following an altercation between Smith and a referee in 1999, Clinton principal Geraldine Ambrosio fired Smith from his post as the school's assistant football coach. The incident was resolved in arbitration, but Smith says that it led to an icy relationship that's never thawed between himself and Ambrosio.

Despite the current controversy, Smith's former team has continued its winning ways this season. Clinton is 9-1 in Bronx 'A'.

Richard Eaton, who took over varsity coaching duties on March 1 after being the JV coach the past three years, said he was told the arrangement was temporary. "The school says if (Smith) is cleared of everything, then it's his job to get back," Eaton added.

Senior Jazcelyn Pagan and other players on the team told the Daily News that Smith coached them without incident. "He was professional. He respected everybody, and we respected him," said Pagan, a four-year player. "We had fun, and nothing wrong ever happened on the team with him."

For now, the Lady Governors will continue their pursuit of a second straight division crown while Smith continues to await the hearing that could exonorate him or leave him jobless and facing criminal charges.

Lynne Winderbaum, the Bronx district represenative of the United Federation of Teachers, says it's not unusual for the Department of Education to wait a year or more to schedule a hearing after charges against an employee have been formally filed. In the meantime, Smith continues to report to the reassignment center, one of the so-called "rubber rooms" where more than 700 DOE employees report daily while awaiting the adjudication of their cases.

"It's not a taxing day other than the duress of these allegations," Smith said. "You've been thrown in the Tower of London, and you're not going to see the light of day.

"My way of thinking is, if they're going to cut my throat, I want it to be out in the light of day."