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Thursday, March 31, 2011

Unions Are Good, Union Leadership Maybe Not

Why I Love Unions, But Not Always Their Leadership
by Liza Campbell

There is no shortage of fights to be fought on the education front here in New York and nationally. The Panel for Educational Policy continues to vote to close public schools and to colocate them with privately run education entities known as charter schools, whose backers often come from the business world. There is an intense national push for more teacher accountability, which translates for me and many of my fellow teachers into an increased focus on test scores, data, and merit pay. And there’s the attack on public worker unions, which provide one of the few venues in which workers can still have a collective say in governmental policies and in their working conditions, working hours, and job security.

While we teachers often find ourselves fighting against misguided reforms, there’s also a lot to fight for. As the largest local teachers union in the country, the United Federation Teachers here in New York has the ability to have an incredible impact on education and the direction of education reform. We could be building grassroots support for reforms that would transform education, including culturally responsive curriculum, smaller class sizes, parent and teacher empowerment, the alleviation of poverty-related factors that affect learning, and creating classroom environments that put critical thinking instead of test prep at the forefront.

Research and analysis have repeatedly demonstrated that the reforms listed in the first paragraph do not benefit students. It should seem obvious then, to most informed individuals, that teachers unions would be doing serious work on the ground to mobilize teachers in the fight against them. And of course they would be clearly presenting a positive alternative that could actually transform teaching and learning. This is why I love unions: They provide an opportunity for working people to have a significant voice in these matters, and they can organize their members in support of good policies and against bad ones.

And yet for some reason the Unity Caucus that leads the UFT, which has had practically unchallenged control over the union for decades, is not fighting in a way that so many people wish they would. They have chosen not to come out strongly against charter schools, which concerns me and and many others who are wary of the spread of charters as a privatizing tactic that has already begun to change the very nature of our public school system. On the contrary, they have started two of their own charter schools that occupy space in public school buildings. They have repeatedly undermined teacher protections and due process rights. The former president of the UFT and current president of the national AFT, Randi Weingarten, most recently said she would support the dismissal of tenured teachers without due process using a rating system that includes faulty test scores. Instead of capitulating to corporate-minded reformers who are pursuing these ill-advised changes, she should be arguing firmly that the focus on this small percentage of “bad teachers” is hugely misguided and a serious waste of resources that could be going into improving our schools.

Just as significantly, the UFT leadership has not adequately mobilized its members or galvanized school chapters to unite with parents and fight these misguided reforms. Instead, Unity continues to practice a failed method of preserving their seat at the table by capitulating, and of hoping that the Democrats whom they support with endorsements and finances will side with teachers and students. Too often the union relies solely on the legal system and the hope of a DOE error somewhere in order to try to stop the destruction of the public schools.

I’ve attended several Delegate Assembly meetings where members have brought up resolutions and essentially begged the leadership to do more to mobilize the base, to very little avail. The question I ask myself regularly is: Why are we, as a union, not fighting? Does the leadership not see mobilizing teachers and parents as a viable strategy? Does it not want to fight corporate reforms? Are UFT officials scared of losing control of the rank and file if the leadership makes a concerted effort to support us in organizing ourselves? I have been in far too many conversations, including two this past weekend at the NYCORE conference, where people have suggested their own theories about the true answer to the question, “why are they not really fighting?”

At the most recent meeting of the Grassroots Education Movement we were lucky enough to be joined by Rafael Feliciano, president of the teachers union of Puerto Rico. He shared some lessons from his union’s struggle against union-busting and privatization, and the lesson that resounded with me most profoundly was the need for continued and consistent organizing with teachers, students and parents at the very local, school-based level. He said that as the president of the teachers union he viewed the union’s role as supporting the individual actions of school communities to agitate around each school’s concerns. He said he would field calls from union leaders in an individual school who would say “we don’t have working toilets and parents are upset,” or, “we don’t have adequate books and the community wants to hold an action.” His response would be, “Do it! Organize it and we will support you and your parents in every way we can.”

The Unity Caucus leadership of the UFT doesn’t seem to take on a role that even closely resembles this kind of an organization. Their strategy focuses heavily on endorsing and depending on the support of politicians and while they pay lip service to fighting these corporate reforms they don’t seem to want to do the ground work to organize around the fights. This is particularly surprising considering the climate in education right now wherein so many teachers are simply itching to counter the attacks against them.

At a friend’s school the Unity-aligned chapter leader told her staff that they should not be involved in Fight Back Friday. The Fight Back Friday in my school, for the record, was amazing. Nearly every member of the staff participated, and at the end of the day we had over a quarter of our staff speaking to parents, students and community members at the nearby subway stop about why our schools need more teachers and resources, and about why teacher protections protect students. Nearly everyone we spoke to was supportive of teachers, and it led to some great conversations that never would have happened had teachers not taken it upon ourselves to educate, organize, and mobilize.

While the UFT leadership organized for a turnout against school closings at a Panel for Educational Policy meeting in January and then walked out of the meeting, it has done no sustained mobilization against the destructive school closings policy. Schools will close as planned unless something is done. I was one of the organizers of the large anti-school closings rally in January which UFT delegates voted to support, and yet Unity did nothing more than bury an announcement of the rally at the bottom of its weekly email update to chapter leaders.

Schools that are facing co-location of a charter school in their building that will take away resources and space for enrichment find little to no help from the UFT leadership. In fact, many of these schools reach out to GEM for support, and we have created a collection of resources to provide support and advice on fighting both school closings and co-locations.

GEM is a small (but growing!), unfunded group of dedicated educators, parents, and concerned citizens. Without question the union has significantly more resources at its disposal to organize, educate and mobilize around these issues. If the union would help schools fight these attacks by organizing something like Fight Back Friday across the city, imagine what kind of impact that could have. Instead of thirty schools, Fight Back Friday could be happening in hundreds of schools. Instead of talking to hundreds of parents and community members, in one day teachers could be talking to tens of thousands.

Unions, as a collective representation of working people, can be an incredibly powerful counter-force to corporate interests. Individual working people can have very little impact on policy because they do not have the financial prowess on their own to affect national policy the way those with a good deal of money at their disposal can. I am proud to be a member of a union, and I am very proud of my fellow UFT members. But when union leadership becomes too far-removed from the lived reality of their rank-and-file members and spends a significant amount of their time with the very people who are pushing the policies they should be fighting, they run the risk of losing sight of their mission. If the UFT had a leadership with a social justice orientation that viewed its role as strengthening educators’ ability to educate and mobilize against misguided reforms, then I would not only be proud of my union but proud of its leadership as well.

Wednesday, March 30, 2011

Court of Appeals Decision on Matson v NYCBOE, City of NY, and Richard Condon Describes The Legality of Suing The "Board"

I am posting the decision of the Court of Appeals for the 2nd Circuit below for everyone who is thinking about suing the NYC Board/Department of Education (now, who would do that?). i have written about the legal fraud of the Bloomberg administration for years, and one of the signposts that you can gage this deceit from, is the New York City Law Department (Corporation Counsel) insistance that no one can sue the NYC "Board" of Education. But, Bloomberg paid millions of dollars to change the name of the Board of Education on the stationery, not legally so that the NYC Department of Education became a separate agency.

Also, the case below presented, I think, an interesting argument on the right to privacy and the office of the secret police - oops, i mean Special Commissioner of Investigation, Richard Condon.

Betsy Combier


Dorrit MATSON, Plaintiff-Appellant, v. BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF NEW YORK, The City of New York, Richard J. Condon, Defendants-Appellees.

Docket No. 09-3773-cv.
Argued: Aug. 25, 2010. -- January 11, 2011

Before MINER, CABRANES, and STRAUB, Circuit Judges.

Barry D. Haberman, New City, NY, for Plaintiff-Appellant.Ronald E. Sternberg, (on behalf of Michael A. Cardozo, Corporation Counsel of the City of New York, Leonard Koerner, and Christopher A. Seacord, of counsel), New York, NY, for Defendants-Appellees.

Plaintiff-appellant Dorrit Matson appeals from a judgment entered in the United States District Court for the Southern District of New York (Crotty, J.), dismissing, pursuant to Federal Rule of Civil Procedure 12(b)(6), her civil rights action, brought under 42 U.S.C. § 1983, against defendants-appellees, the Board of Education of the City School District of New York (the “BOE”), the City of New York (the “City”), and Richard J. Condon (collectively, the “defendants”). In the action, Matson alleged that the BOE had publicly disclosed that she suffers from fibromyalgia, in violation of her constitutional right to privacy. The disclosure occurred when, in connection with an investigation of her purported use of sick leave, the BOE made available to the public on the website of the Special Commissioner of Investigation for the New York City School District (“SCI”) a report that included Matson's medical condition. On appeal, Matson claims: (1) the District Court erred in concluding that she failed to establish that the defendants' disclosure of her medical condition implicated a protected privacy interest; (2) the District Court incorrectly found the BOE to be an improper party; and (3) the District Judge should have recused himself, pursuant to 28 U.S.C. § 455.

For the reasons that follow, we affirm.


I. Matson as Teacher and Conductor

Matson was employed as a music teacher at Bayard Rustin Educational Complex (“Bayard Rustin”), a Manhattan public school. She also founded and served as director and conductor of the New York Scandia Symphony (the “Scandia Symphony”), an orchestra based at Trinity Church in lower Manhattan. Beginning in at least 2003 and continuing through February 2005, Matson began taking sick leave from her duties as a music teacher. Her multiple requests for sick days did not go unnoticed by Bayard Rustin's administration.

In November 2004, after Matson had requested three days of sick leave, Bayard Rustin's principal, John Angelet, reminded Matson by telephone that she was scheduled to direct a school orchestra concert that week. Matson nonetheless insisted that she needed the sick leave and that she would have to miss the school orchestra concert because she was ill. She subsequently took the sick leave that she had requested. After Matson returned to school, Angelet confronted her. He stated that he knew Matson had conducted the Scandia Symphony's concert while on sick leave because he had heard the performance broadcast on public radio. Matson, in response, “after a period of silence ․ asked the principal to deduct the days from her pay and then inquired whether Angelet ‘knew what it was like to conduct a concert ill.’ “

In January 2005, Matson was away from school on authorized medical leave for “continued therapy for recurrent bacteria infection.” During her absence, Angelet filed a complaint with the DOE's legal department, accusing her of “theft of services.” An assistant principal at Bayard Rustin also took action, informing Condon, the SCI, that he suspected that Matson was improperly claiming sick leave in order to work as a conductor of a symphony orchestra at Trinity Church. Condon subsequently began an investigation.

In February 2005, Matson submitted an Application for Leave Without Pay for Restoration of Health (the “Application”), which was marked as confidential. Her Application was granted for a period from February 5, 2005, through June 30, 2005, and “was approved by the principal based on the physician's certification section completed by an unnamed doctor with an illegible signature.” According to the physician's certification, Matson suffered from fibromyalgia, which involves “neck, shoulders, and upper and lower back pain.”1

After Matson submitted her Application, SCI investigators visited the office of the physician whose address was listed on the certification and spoke with the office manager for Dr. Tsai Chung Chao, who had completed the physician's certification for Matson's request for leave. Chao verified that the signature on the physician's certification was his. Chao later spoke to one of Condon's investigators by telephone and explained that Matson suffered from fibromyalgia, a condition brought on by physical or emotional stress. He added that Matson had complained that her professional relationship with school administrators was strained and caused her stress. Chao informed the investigator that Matson needed time off from her DOE position but explained that she could be able to conduct an orchestra-even though she was suffering from fibromyalgia-because she would be away from the environment which caused the stress that resulted in the onset of her condition.

Following his investigation, Condon issued a letter report on August 16, 2005, (the “Report”) to then New York City School District Chancellor Joel I. Klein confirming that Matson had repeatedly taken paid sick leave on days when she conducted the New York Scandia Symphony at Trinity Church. The Report verified Angelet's claim that Matson conducted the Scandia Symphony on November 18, 2004, while away from school on sick leave and detailed a number of other occasions over a period of two years from 2003 to 2005 where Matson claimed paid sick leave on days when she either rehearsed or conducted the Scandia Symphony. It also noted that according to the Operations Manager for Trinity Concerts, Matson “never missed a rehearsal or a performance” of the Scandia Symphony.

The specific references in the Report to fibromyalgia included the following:

Dr. Chao explained that Matson suffered from chronic fatigue syndrome, known as fibromyalsia [sic]. He added that the teacher's condition was brought on by physical or emotional stress and that Matson had complained that her professional relationship with school administrators was strained and caused her stress. The physician informed the investigator that Matson needed time off from her DOE position and that the pain caused by fibromyalsia [sic] could take months to subside. According to Dr. Chao, Matson could be able to conduct an orchestra with fibromyalsia [sic] because she would be away from the environment which caused her the stress that resulted in the onset of the condition.

Based on Condon's investigation, the Report concluded that Matson abused the DOE's sick leave policy. Accordingly, it recommended that Matson's employment be terminated and that she be directed to repay any salary to which she was not entitled. Disciplinary charges later were lodged against Matson.

The SCI publicly issued its report, in accordance with its specific authority to issue reports of investigations where it would be in the best interest of the school district. See The Special Comm'r of Investigation for the New York City Sch. Dist., Exec. Order No. 11 (June 28, 1990), available at http:// 20Order.pdf (giving the Deputy Commissioner authority to “issue such reports regarding corruption or other criminal activity, unethical conduct, conflicts of interest, and misconduct, that he or she deems to be in the best interest of the school district”). The Report was made available to the public on the SCI's internet website in August 2005, and the investigation and the Report were covered by the local press.2

On August 22, 2005, while disciplinary charges were pending, Matson was involved in a car accident, suffering a cervical sprain and injuries to her back and shoulders. Apparently, she continued on unpaid medical leave after her accident, following a January 10, 2006 determination by the DOE that she was “not fit” to return to work. In March 2006, Matson applied for disability retirement. With her application, she submitted a medical report of Dr. Daniel J. Powsner, who concluded that Matson is suffering from psychiatric illness, post-traumatic stress disorder, which is likely to remain chronic․ Recovery from this illness is not to be expected in the foreseeable future. This illness has rendered her unable to pursue her occupation as a teacher. I do not believe that any type of accommodations that could be made at her place of employment would improve her ability to work. She is totally and permanently disabled from her occupation as a teacher.

Powsner's ultimate diagnosis was “Post-Traumatic Stress Disorder.”

The record before us does not reveal how Matson's employment with the school district ultimately came to an end. Apparently a disciplinary hearing had been scheduled but was terminated as indicated by an October 18, 2006 intra-departmental memorandum, which stated: “Please be advised that the Dorrit Matson disciplinary hearing has been resolved. As a result the DOE is withdrawing the charges previously preferred against Ms. Matson. Please adjust your records accordingly.” There is no indication from the parties or the record as to the disposition of Matson's disability retirement application following Powsner's report or as to why, according to DOE attorney Susan Jalowski, Matson's “disciplinary hearing ha[d] been resolved.”

II. Proceedings in the District Court

On August 14, 2008, Matson commenced this action by filing a complaint against the defendants in the United States District Court for the Southern District of New York. In her complaint, she asserted a claim under 42 U.S.C. § 1983 and alleged that her constitutional privacy rights had been violated. Matson contended that her medical condition of fibromyalgia improperly was disclosed to the public through the Report, published on the SCI's website, and later reported in New York City area newspapers. However, she neither challenged the SCI's finding that she abused sick leave nor its recommendation that she be terminated. Nor did she suggest that her medical condition was a disability that would need to be accommodated. Matson sought $2 million for damages plus attorney's fees.

On January 16, 2008, the defendants filed a motion to dismiss Matson's complaint for failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). Matson submitted two affidavits in opposition to the defendants' motion to dismiss. In her affidavit, she alleged that the disclosure of her medical information has affected my ability to seek other employment, as potential employers, when “googling” my name learn that I suffer from various ailments․ It has led to a belief that I am “unreliable” or “undependable”, that I would be absent, without adequate notice, thereby effecting [sic] the ability of an orchestra to perform up to expectations.

Matson v. Bd. of Educ. of the City School District of the City of N.Y., No. 08 Civ. 7232(PAC), 2009 WL 2462513, at *2 n. 4 (S.D.N .Y. Aug. 7, 2009) (internal quotation marks omitted). An additional affidavit submitted by Andrew Ackers, a colleague of Matson's in the music industry, claimed that “[t]he public dissemination of [Matson's] medical condition has a severe impact upon [Matson] and the perception of the music world regarding [Matson] and possible employment․ The perception is that [Matson], suffering from fibromyalgia and/or chronic fatigue syndrome would be unreliable and undependable․” Id. (internal quotation marks omitted).

In a Memorandum Order dated August 7, 2009, the District Court granted the defendants' motion to dismiss the complaint. Id. at *4. The court also rejected the affidavits submitted by Matson and Ackers, finding that each contained new factual allegations that were not set forth in the complaint and, thus, were not properly before the court for its consideration. It stated that in any event the “factual allegations [were] wholly conclusory and speculative.” Id. at *2 n. 4. Moreover, the court found that to the extent the Report might lead potential future employers to view Matson as unreliable or undependable, this would not be due to Matson's fibromyalgia-instead, it would be because the Report concludes that Matson shirked her work responsibilities at her full-time job by claiming sick leave in order to do work she preferred.

The complaint's reference to the Condon Report enabled the court to consider the Report's contents. Id. at *1 n. 2 (“The facts contained in this Memorandum Order are drawn not only from the Complaint but also from the Report, which is integral to the Complaint and upon which the Complaint relies.” (citing Subaru Distribs. Corp. v. Subaru of Am., Inc., 425 F.3d 119, 122 (2d Cir.2005) (“[On a motion to dismiss], the court may consider any written instrument attached to the complaint as an exhibit or incorporated in the complaint by reference, as well as documents upon which the complaint relies and which are integral to the complaint.”))).
The court ultimately concluded that neither fibromyalgia nor a bacterial infection is a condition that gives rise to a constitutionally-protected privacy right. Unlike the serious medical conditions that courts have recognized as giving rise to a privacy right, the District Court found that “[b]oth of Matson's disclosed conditions are a far cry from the level of seriousness associated with HIV/AIDS [and] transsexualism․” Id. at *3. With regard to any purported exposure to discrimination resulting from the publication of Matson's medical condition, the District Court found that “Matson cannot point to any history of discrimination against individuals with fibromyalgia that would lead the [c]ourt to conclude that she is likely to face discrimination, hostility, or intolerance because of her condition.” Id. In addition, the court found that Matson had not alleged that the public disclosure of her medical conditions exposed her to “discrimination, hostility, or intolerance.”3 Id. Judgment was entered on September 25, 2009, and this timely appeal followed.

On appeal, Matson argues that the District Court erred in dismissing her complaint for failing to establish that the defendants' disclosure of her medical condition implicated a constitutionally-protected privacy interest. Specifically, Matson claims that her situation is different from that of individuals who have diminished levels of privacy, such as prisoners and those whose medical information was necessarily disclosed during a judicial hearing or as part of a public record. Instead, she argues that she has set forth a viable cause of action because private medical information was disseminated, without her permission, and that that information has exposed her to unfair discrimination.

Matson also argues that the District Court improperly dismissed the BOE as a defendant in this action when it concluded that the “BOE ceased to be the agency responsible for New York City's public schools before the incidents giving rise to the Complaint occurred.” Matson, 2009 WL 2462513, at * 1 n. 1. She contends that recent state case law holds that the BOE remains a separate entity-though now renamed the Department of Education-that must be sued in its own name and apart from the City.4 Matson also argues on appeal, for the first time, that the District Judge was required, sua sponte, to recuse himself from this case. Matson argues that recusal was appropriate because the Judge was previously associated with the defendants in his capacity as the Commissioner of several New York City agencies and as Corporation Counsel for the City of New York. Matson also claims that the employment of the District Judge's niece by the defendants requires the Judge's recusal pursuant to 28 U.S.C. § 455.5


I. Standard of Review

“We review de novo a district court's grant of a motion to dismiss pursuant to Rule 12(b)(6), accepting all factual allegations in the complaint as true and drawing all inferences in the plaintiff's favor.” Legnani v. Alitalia Linee Aeree Italiane, S.P .A., 274 F.3d 683, 685 (2d Cir.2001). We will “affirm only if it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief.” Id. (internal citations omitted). “Where the complaint involves a civil rights violation, as it does here, the standard is to be applied with particular strictness.” Doe v. City of New York, 15 F.3d 264, 266 (2d Cir.1994) (internal quotation marks omitted).

“For the purpose of such review, this Court must accept as true all allegations in the complaint and draw all reasonable inferences in favor of the non-moving party.” Connecticut v. Am. Elec. Power Co., 582 F.3d 309, 320 (2d Cir.2009) (internal quotation marks omitted). The plaintiff's complaint must, however, “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ “ Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp.v. Twombly, 550 U.S. 544, 570 (2007)); accord Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 59 (2d Cir.2010). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949. While a complaint need not contain “detailed factual allegations,” it requires “more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Id. (internal quotation marks omitted); accord DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.2010).

II. The Constitutional Right to Privacy for Medical Conditions

Matson's privacy claim presents the question: does the Constitution protect Matson's right to maintain the confidentiality of her fibromyalgia? As a general matter, “there exists in the United States Constitution a right to privacy protecting ‘the individual interest in avoiding disclosure of personal matters.’ “ Doe, 15 F.3d at 267 (quoting Whalen v. Roe, 429 U.S. 589, 599 (1977)). “More precisely, this right to privacy can be characterized as a right to ‘confidentiality,’ “ which “includes the right to protection regarding information about the state of one's health.” Doe, 15 F.3d at 267; accord United States v. Westinghouse Elec. Corp., 638 F.2d 570, 577 (3d Cir.1980) (recognizing that “[i]nformation about one's body and state of health is matter which the individual is ordinarily entitled to retain within the private enclave where he may lead a private life.” (internal quotation marks omitted)). This constitutional right to privacy extends in a limited way to prisoners as well. See Powell v. Schriver, 175 F.3d 107, 112 (2d Cir.1999) ( “[I]nmates retain those constitutional rights that are not inconsistent with their status as prisoners or with the legitimate penological objectives of the corrections system.” (internal quotation marks and alterations omitted)).

Our case law makes clear, however, that “the interest in the privacy of medical information will vary with the condition.” Powell, 175 F.3d at 111; accord Doe, 15 F.3d at 267 (noting that a constitutional right to privacy for some diseases is greater than for others because while “there are few matters that are quite so personal as the status of one's health, and few matters the dissemination of which one would prefer to maintain greater control over,” this is “especially true with regard to those infected with HIV or living with AIDS” (emphasis added)). Confidential medical conditions are those that are “excruciatingly private and intimate [in] nature” such as those “likely to provoke ․ an intense desire to preserve one's medical confidentiality.” Powell, 175 F.3d at 111. We have concluded that such a privacy right exists with respect to a person's HIV status, Doe, 15 F.3d at 266-67, and transsexualism, Powell, 175 F.3d at 110-12.

In Doe, we explained that, as with any “serious medical condition,” “an individual's choice to inform others that she has contracted what is at this point invariably and sadly a fatal, incurable disease [ (HIV/AIDS) ] is one that she should normally be allowed to make for herself.” 15 F.3d at 267 (emphasis supplied).6 We reasoned that this is “especially true with regard to those infected with HIV or living with AIDS, considering the unfortunately unfeeling attitude among many in this society toward those coping with the disease.” Id. In particular, we considered that “[a]n individual revealing that she is HIV seropositive potentially exposes herself not to understanding or compassion but to discrimination and intolerance.” Id.

In Powell, we applied our rationale in Doe and determined that “[l]ike HIV status as described in Doe, transsexualism is [an] unusual condition that is likely to provoke both an intense desire to preserve one's medical confidentiality, as well as hostility and intolerance from others.” Powell, 175 F.3d at 111. We also found that “[t]he excruciatingly private and intimate nature of transexualism, for persons who wish to preserve privacy in the matter, is really beyond debate.” Id. In extending the constitutional right of privacy to cover transsexualism, we recognized the “narrow parameters” in which such a right exists. Id. at 112.

III. Fibromyalgia and Privacy

Matson contends that fibromyalgia is a “serious medical condition” that falls within the ambit of constitutionally-protected privacy. We do not doubt the medical seriousness of the condition. Indeed, we have held within the context of reviewing the denial of a social security disability application that “a growing number of courts, including our own, have recognized that fibromyalgia is a disabling impairment,” although “ ‘there are no objective tests which can conclusively confirm the disease.’ “ Green-Younger v. Barnhart, 335 F.3d 99, 108 (2d Cir.2003) (quoting Preston v. Sec'y of Health and Human Servs., 854 F.2d 815, 818 (6th Cir.1988)); see also Lisa v. Sec'y of Dep't of Health and Human Servs., 940 F.2d 40, 41 (2d Cir.1991) (ordering the district court to remand the case to the Secretary for consideration of new medical evidence regarding fibromyalgia). We have also recognized that, properly alleged, “claims [of CFS/fibromyalgia] are unquestionably sufficient to plead a disability for purposes of Section 504/ADA.” Weixel v. Bd. of Educ. of the City of N.Y., 287 F.3d 138, 147 (2d Cir.2002).

A general medical determination or acknowledgment that a disease is serious does not give rise ipso facto to a constitutionally-protected privacy right. In Doe, we explained that HIV is “sadly a fatal, incurable disease.” 15 F.3d at 267. Our reasoning in Powell with regard to transsexualism differed, as we approached the condition as a psychiatric disorder. There, we explained that transsexualism is a “gender identity disorder, the sufferers of which believe that they are ‘cruelly imprisoned within a body incompatible with their real gender identity,’ “ and we further recognized that transsexualism is a “profound psychiatric disorder.” Powell, 175 F.3d 107, 111 (citing Farmer v. Moritsugu, 163 F.3d 610, 611 (D.C.Cir.1998) (per curiam)) (quoting The Merck Manual of Med. Info. 418 (1997); Maggert v. Hanks, 131 F.3d 670, 671 (7th Cir.1997)). Fibromyalgia, however serious, is neither alleged to be fatal, as we recognized the HIV condition to be in Doe, nor is it a “profound psychiatric disorder” as we noted in Powell. While fibromyalgia is characterized by fatigue and muscular soreness and tenderness, we have noted that it can be debilitating only in certain instances. Green-Younger, 335 F.3d at 104.

Other courts in our Circuit have declined to extend the right of privacy to medical conditions other than those discussed in the cases noted above. See, e.g., Watson v. Wright, 2010 WL 55932, at * 1 (N.D.N.Y. Jan. 5, 2010) (“This [c]ourt finds no basis in Powell and its progeny for holding that, in a prison setting, plaintiff's Hepatitis C condition is the type of condition that gives rise to constitutional protection under Powell.”); Rush v. Artuz, 2004 WL 1770064 (S.D.N.Y. Aug. 6, 2004) (“First, plaintiff's wrist injury and his stomach problems cannot be classified as ‘personal matters of a sensitive nature’ and second, due to his use of a splint, plaintiff's wrist injury was clearly visible to all those around him.”).

Matson argues that our decision in O'Connor v. Pierson, 426 F .3d 187 (2d Cir.2005), announced a rule that would protect all medical conditions from disclosure. We reject Matson's reading of O'Connor. In O'Connor, the plaintiff school teacher was first placed on administrative leave pending an investigation of complaints against him by students and other teachers. Then, the teacher was placed on involuntary sick leave when he refused to submit to an independent psychiatric examination and refused to release his past medical records. Id. at 191, 193. The teacher took issue with the conditions required for returning to work and commenced an action arguing that the school board “violated his privacy rights by insisting that he sign a broad medical-records release form.” Id. at 201.

Citing Doe and Powell, we held in O'Connor that the plaintiff “had a protected privacy right in the medical records sought by the Board.” Id. We reasoned that “[m]edical information in general, and information about a person's psychiatric health and substance-abuse history in particular, is information of the most intimate kind.” Id. Also, this combination of medical conditions is one that is likely to bring about public opprobrium. See, e.g., Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971) (holding that a law permitting a list to be posted in retail liquor outlets of those individuals who become dangerous after drinking “may to some be merely the mark of illness, [but] to others it is a stigma, an official branding of a person”); Barbara A. Weiner, Confidentiality of Mental Health Records, 1 Health L. Prac. Guide § 17:30 (2010) (“Although people are much more open about discussing their medical problems than in the past, there is still a stigma attached to having a mental illness.”); cf. Rodriguez v. City of New York, 72 F.3d 1051, 1065 (2d Cir.1995) (noting that “an erroneous commitment [in a psychiatric hospital] may result not only in an unwarranted deprivation of liberty but also in the unwarranted stigma of being labelled mentally ill by the state” (internal quotation marks omitted)).

In addition, our determination that an individual need not disclose all of his medical records under the circumstances described in O'Connor does not suggest that a third party's disclosure of one particular medical condition in every case violates the right of privacy. Indeed, the “privacy of certain medical conditions” has been “constitutionalized” only “[w]ithin narrow parameters.” Powell, 426 F.3d at 112.

These narrow parameters have been defined, in large part, through the views of society. Historically, courts have considered on a case-by-case basis whether a disease was “contagious or attributed in any way to socially repugnant conduct” and whether it could be said that “society as a whole views [the disease] as directly associated with any disease which might conceivably be characterized as loathsome.” See Golub v. Enquirer/Star Group, Inc., 89 N.Y.2d 1074, 1077 (1997) (holding that cancer did not fit into the category of a loathsome disease) (internal quotation marks omitted). Such inquiry typically helped determine whether a party could be charged with slander per se for falsely accusing someone of having the disease. See, e.g., Cruz v. Latin News Impacto Newspaper, 627 N.Y.S.2d 388, 389 (1995) (stating that there is no authority for classifying [tuberculosis] among the diseases among which false imputations are defamatory”); Simpson v. Press Pub. Co., 67 N.Y.S. 401, 402 (N.Y.Sup.Ct.1990) (holding that “[t]o falsely say of one that he has leprosy is slander”).

In considering claims that a constitutional right of privacy attaches to various serious medical conditions, we also proceed on a case-by-case basis. In doing so, we examine all the relevant factors that cut both in favor of and against extending privacy protection to such medical conditions. This type of analysis necessarily will include certain medical conditions but will exclude others. Here, although fibromyalgia is a serious medical condition, it does not carry with it the sort of opprobrium that confers upon those who suffer from it a constitutional right of privacy as to that medical condition. Cf. Makas v. Miraglia, Nos. 05 Civ. 7180(DAB)(FM), 06 Civ. 14305(DAB)(FM), 2007 WL 724603, at * 17 (S.D.N.Y. Mar. 5, 2007), vacated in part on other grounds by Makas v. Miraglia, 300 F. App'x 9 (2d Cir.2008) (summary order) (“[W]hile a patient's cholesterol or thyroid level also constitutes personal medical information, its disclosure obviously does not carry with it the same potential for adverse effects as the disclosure of information about a sexually-transmitted disease or transsexualism.”).

In addition to a determination that a medical condition is “serious,” we have also focused our constitutional analysis on whether revealing one's condition would expose a person “not to understanding or compassion but to discrimination and intolerance.” See Doe, 15 F.3d at 267 (emphasis supplied). Thus in Doe, we determined that society has an “unfortunately unfeeling attitude ․ toward those coping with [HIV or living with AIDS].” Id. Likewise in Powell, we explained that “[i]ndividuals who have chosen to abandon one gender in favor of another understandably might desire to conduct their affairs as if such a transition was never necessary ․ [Transsexualism] is likely to provoke both an intense desire to preserve one's medical confidentiality, as well as hostility and intolerance from others.” Powell, 175 F.3d at 111.

Here, we discern no evidence in the record revealing societal discrimination and intolerance against those suffering from fibromyalgia. Matson cites to one case from the District of Massachusetts, which found that “many people diagnosed with fibromyalgia are unable to maintain gainful employment.” LaBrecque v. Sodexho USA, Inc., 287 F.Supp.2d 100, 103 (D.Mass.2003) (finding that the plaintiff's fibromyalgia rendered her physically impaired and holding that a reasonable jury could conclude that she properly made out a claim against her former employer for failing to accommodate her disability). But this case does not support the proposition, as contended by Matson, that one who is unable to maintain gainful employment because of fibromyalgia, is the subject of discrimination, hostility, or intolerance.7 We agree with the district court that concluded (albeit in a different context) that “there is no evidence in the record that a social stigma is attached to Plaintiff's medical conditions [including fibromyalgia] in the same manner that one is attached to other medical conditions, such as AIDS.” Rankin v. N.Y. Pub. Library, No. 98 Civ. 4821(RPP), 1999 WL 1084224, at *1 (S.D.N.Y. Dec. 2, 1999). Moreover, we note, as the District Court did in dicta, that “[f]ibromyalgia has a drug therapy, Lyrica, which is regularly advertised on television alongside drug advertisements for everyday medical conditions such as high cholesterol, frequent urination, osteoporosis, acid reflux, and many other similar conditions.” Matson, 2009 WL 2462513, at *3. We agree with the District Court that “[i]t is not possible to say that these commonly advertised conditions-publicly and regularly targeted by the drug companies-carry a social stigma equivalent to HIV/AIDS [or] transsexualism․” Id.

Matson has also failed to allege with specificity facts upon which to base a conclusion that she personally suffered discrimination or intolerance. The allegations of her rejected affidavit that “potential employers, when ‘googling’ [her] name learn that [she] suffer[s] from various ailments,” that she “has suffered a loss of income,” and that the “acts of the Defendants have caused [her] to suffer monetary and psychological damages” are absent from the complaint.

Matson also claims that the defendants disclosed her private medical information for the purpose of “embarrassing” and “humiliat[ing]” her.8 However, as noted above, the SCI has been given specific authority to issue reports of investigations where it would be in the best interest of the school district. Advising the public of the SCI's efforts to eradicate “fraud, misconduct, conflicts of interest, and other wrongdoing within the New York City school district” certainly is not outside of the Deputy Commissioner's authority. See The Special Comm'r of Investigation for the New York City Sch. Dist., (last visited Nov. 19, 2010). Moreover, it is the practice of the SCI to issue public reports of its investigations. In 2005, the year in which Matson's Report was issued, the SCI publicly released ten other reports based on its investigations. See Reports, The Special Comm'r of Investigation for the New York City Sch. Dist., (last visited Nov. 30, 2010). Among the reports also issued in 2005 was that of a teacher who was investigated for claiming sick time while, in fact, on a professional wrestling tour in Japan. The SCI separately published a report of a teacher who was investigated for claiming to be on military leave and deployed to New Orleans to provide Hurricane Katrina relief while, in fact, he had traveled to Brazil for personal reasons. Id. The SCI's frequent public release of its reports suggests that, rather than publishing Matson's report to embarrass or humiliate her, the SCI published the Report on its website as part of its policy to inform the public of its efforts to investigate instances of fraud within the New York City public school system. In any case, Matson has not alleged that she was, in fact, embarrassed or humiliated, nor has she challenged the SCI's findings and recommendations.

In an attempt to supplement the record, Matson submitted an affidavit (rejected by the District Court) of a music profession colleague stating that “public dissemination of the Plaintiff's medical condition has a severe impact upon the Plaintiff and the perception of the music world regarding the Plaintiff and possible employment,” and “[a] performing orchestra would shy away from hiring the Plaintiff because the performing orchestra fearing the perceived unreliability of the Plaintiff would loathe to put the Plaintiff in the position of the ‘face’ of said performing orchestra .” However, Matson's complaint contained no specific allegations in this regard, and the District Court properly rejected consideration of the affidavit. See Kopec v. Coughlin, 922 F.2d 152, 154-55 (2d Cir.1991) (explaining that “Rule 12(b) gives district courts two options when matters outside the pleadings are presented in response to a 12(b)(6) motion: the court may exclude the additional material and decide the motion on the complaint alone or it may convert the motion to one for summary judgment”). Moreover, there is not the slightest suggestion in the record that Matson's fibromyalgia has had any adverse impact on her employment as an orchestra conductor. In fact, the website for the Scandia Symphony boasts that “[i]n the highly competitive world of symphonic conducting, few can claim the success or unique accomplishments of Dorrit Matson, now in her seventeenth season as music director of the Scandia Symphony.” New York Scandia Symphony, (last visited Nov. 19, 2010). The reviews posted on the website give rave reviews of Matson's work. Reviews, New York Scandia Symphony, http:// (last visited Nov. 19, 2010). Matson is, indeed, the “face” of the Scandia Symphony. In sum, because Matson's complaint offered no allegations of societal or actual discrimination, hostility, or intolerance against her based upon her diagnosis, we affirm the judgment of the District Court.


Because we determine that Matson's medical condition does not enjoy a constitutionally-protected right to privacy, we need not reach her other claim, that the District Court erred in finding that the BOE was not a proper party. In accordance with the foregoing, the judgment is affirmed.

In finding that Matson has failed to state a viable claim of infringement of her privacy rights, the majority today gives the government substantial reign to publicly disseminate a person's intimate medical information without any justification. While it is of course not the case that every bit of medical information is encompassed within the right to privacy, in my view, the majority has forged an unduly narrow understanding of what is protected. Because I believe that Matson's allegations concerning defendants' publication of her diagnosis of chronic fatigue syndrome (“CFS”) and/or fibromyalgia1 suffice to state a privacy violation, I would reverse the decision of the District Court. Accordingly, I respectfully dissent. Given that I would reinstate Matson's claim, I also briefly address Matson's argument that defendant Board of Education of the City School District of New York (“BOE”) is a proper party to this suit and find that it is. I concur only in the majority's conclusion that Matson has failed to identify any conflict disqualifying the District Judge.

I. Right to Privacy

Grounded in substantive due process, it is well established that the Constitution protects a person's privacy, including “the individual interest in avoiding disclosure of personal matters.” Whalen v. Roe, 429 U.S. 589, 599 (1977). In recognition of the fact that “[m]edical information in general ․ is information of the most intimate kind,” O'Connor v. Pierson, 426 F.3d 187, 201 (2d Cir.2005), as part of the right to privacy, we have already “accorded constitutional stature to the right to maintain the confidentiality of previously undisclosed medical information,” Powell ex rel. Devilla v. Schriver, 175 F.3d 107, 112 (2d Cir.1999). Doe v. City of New York established that “the right to confidentiality includes the right to protection regarding information about the state of one's health.” 15 F.3d 264, 267 (2d Cir.1994). “Extension of the right to confidentiality to personal medical information recognizes that there are few matters that are quite so personal as the status of one's health, and few matters the dissemination of which one would prefer to maintain greater control over.” Id. Doe recognized that “[t]his would be true for any serious medical condition,” and that it certainly was true in the case of a person's HIV status given that the disease is fatal and incurable and that those affected are often discriminated against. Id. Doe clearly did not set a baseline for the level of severity that a condition must reach for it to fall within the ambit of protected confidential information. Rather, as we subsequently explained, Doe “held that ‘individuals who are infected with the HIV virus clearly possess a constitutional right to privacy regarding their condition’ because, as a more general matter, ‘the right to confidentiality includes the right to protection regarding information about the state of one's health.’ “ O'Connor, 426 F.3d at 201 (internal brackets omitted) (quoting Doe, 15 F.3d at 267). “[T]hat the interest is at its zenith in the context (presented in Doe) of a person's HIV status,” Powell, 175 F .3d at 111, does not imply that information regarding less serious conditions is unprotected; indeed, such a result would be directly contrary to Doe's indication that privacy protection should extend to information concerning “any serious medical condition” that one might ordinarily like to keep private, Doe, 15 F.3d at 267. As a district court in this circuit has recognized in finding that the right to privacy encompasses information that a person has sickle cell anemia, [w]ithout establishing a minimum standard that individuals must meet who seek to invoke the right to privacy in medical information, Doe indicates that the constitutional right to privacy in one's health protects information about “serious medical conditions,” especially those that are likely to provoke “not ․ understanding or compassion but ․ discrimination and intolerance.”

Fleming v. State Univ. of New York, 502 F.Supp.2d 324, 342 (E.D.N.Y.2007) (internal citation and brackets omitted).

Later decisions do not raise the bar. In Powell we recognized a right to confidentiality in transsexualism, a condition which we believed to be, akin to HIV, “the unusual condition that is likely to provoke both an intense desire to preserve one's medical confidentiality, as well as hostility and intolerance from others.” 175 F.3d at 111. As such, we found that the “interest in privacy” concerning one's transsexualism, “like the privacy interest of persons who are HIV positive, is particularly compelling .” Id. Powell thus suggests that one's transsexualism is a matter-like HIV infection-in which the privacy interest is at or near its “zenith.” Id. Based on Whalen, Doe, and Powell, we “easily” found a protected privacy interest in medical records containing “information about a person's psychiatric health and substance-abuse history.” O'Connor, 426 F.3d at 201.

These cases make clear that a medical condition need not be as serious as HIV or transsexualism in order to be included in the scope of privacy protection.2 That does not, of course, mean that the privacy right in the medical context is unbounded and I agree with the majority that a case-by-case analysis is necessary when determining whether a disease rises to the level where information concerning it is constitutionally protected; as we have previously stated, when dealing with dissemination of information concerning specific health issues, the “interest in the privacy of medical information will vary with the condition.” Powell, 175 F.3d at 111. The relevant inquiry is simply whether the information concerns a serious medical condition that is highly personal. See O'Connor, 426 F.3d at 201; Powell, 175 F.3d at 111; Doe, 15 F.3d at 267. Where those criteria are met, a person “should normally be allowed” to decide “for herself” whether or not to inform others that she is so afflicted. Doe, 15 F.3d at 267.

In my view, Matson has adequately alleged the unwarranted disclosure of just such information. As the majority acknowledges, fibromyalgia is a serious medical condition, which “a growing number of courts, including our own, have recognized ․ [a]s a disabling impairment.” Green-Younger v. Barnhart, 335 F.3d 99, 108 (2d Cir.2003) (internal citation omitted). Similarly, the Centers for Disease Control (“CDC”) explains that “CFS can be as disabling as multiple sclerosis, lupus, rheumatoid arthritis, heart disease, end-stage renal disease, chronic obstructive pulmonary disease (COPD) and similar chronic conditions.” Chronic Fatigue Syndrome: Symptoms, CDC, (last visited Dec. 22, 2010); see also David Tuller, Chronic Fatigue No Longer Seen as ‘Yuppie Flu,’ N.Y. Times, July 17, 2007, at F6 [hereinafter Yuppie Flu ] (quoting an expert at the CDC describing people with CFS to be “as sick and as functionally impaired as [those] with AIDS, with breast cancer, [or] with chronic obstructive pulmonary disease”). Defendants in fact concede that the Report of the Special Commissioner of Investigation for the NYC School District (“SCI”) disclosed a “serious medical condition” within the meaning of Doe, but focus on the fact that it did not disclose conditions that “have the potential to be fatal” (Defs.' Br. 9 (citing Doe, 15 F.3d at 217; Fleming, 502 F.Supp.2d at 342)), and the majority similarly suggests that the non-terminal nature of the conditions significantly undermines the claim to privacy protection, ante at [15]. But a physical ailment is quite obviously in no way required to be lethal in order to be a matter “so personal” that “one would prefer to maintain greater control” over whether, when, and how to disclose that one is afflicted with that condition. Doe, 15 F.3d at 267.

More germane to the inquiry of what type of information is entitled to privacy protection is the consideration, highlighted by Doe and Powell, of whether a medical condition has the potential to provoke discrimination, hostility, or intolerance. We have never strictly required this factor in order to find a protected interest, but it is nevertheless a useful consideration in discerning whether the information in question is sufficiently personal. In this regard, the majority faults Matson for failing to provide “evidence in the record revealing societal discrimination and intolerance against those suffering from fibromyalgia” and/or CFS. Ante at [18]. That requires too much of a complaint. Indeed, neither the Doe nor Powell complaints alleged the widespread societal discrimination and intolerance invoked in their respective opinions. (Am. Compl., Devilla v. Schriver, No. 92-cv-206 (W.D.N.Y. May 28, 1999); Compl., Doe v. City of New York, No. 92-cv-8044 (S.D.N.Y. Nov. 3, 1992).)3 O'Connor is illustrative: Though in that case we found a protected interest in medical records without addressing the potential for discrimination, 426 F.3d at 201, the majority in this case now adds its own observation that the “combination of medical conditions” that the records in Powell reflected “is one that is likely to bring about public opprobrium,” ante at [16].

The notice pleading standard of the Federal Rules of Civil Procedure “requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to give the defendant fair notice of what the ․ claim is and the ground upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Fed.R.Civ.P. 8(a)). The consequence of this standard is that once the complaint provides fair notice of the claim it “need not also allege specific facts establishing a prima facie case” or “include specific evidence,” Arista Records, LLC v. Doe 3, 604 F.3d 110, 119-20 (2d Cir.2010) (internal quotation marks omitted); in fact, “[t]he pleading of additional evidence, beyond what is required to enable the defendant to respond, is not only unnecessary but in contravention of proper pleading procedure,” Roth v. Jennings, 489 F.3d 499, 512 (2d Cir.2007). The corollary to Rule 8(a) is that a complaint attacked on a motion to dismiss pursuant to Rule 12(b)(6) will survive so long as the factual allegations-viewed in a light most favorable to the plaintiff and drawing all reasonable inferences in her favor-are sufficient to “raise a right to relief above the speculative level” and present a claim that is “plausible on its face.” Twombly, 550 U.S. at 555, 570. At this stage, “the issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims.” Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir.1998).

Matson's complaint alleges that on or about August 17, 2005, defendants publicly disclosed her private medical information via the Report that they published on various websites. This is more than sufficient to provide defendants with the required notice of the claim and defendants in fact had no difficulty identifying the allegedly offending Report. That Report recited Matson's diagnoses of CFS and/or fibromyalgia and that recitation, as integral to the complaint, is treated as part and parcel of it. See Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir.2006). Given the undisputedly serious nature of these conditions, and the slight inference required to appreciate that a person suffering from them may reasonably desire to keep that information private, I do not believe it can be said at this early stage that, as a matter of law, the conditions are insufficiently intimate to merit privacy protection. Cf. Chance, 143 F.3d at 702-03 (holding claim of Eighth Amendment violation in failure to provide adequate dental care to state sufficiently serious medical condition to survive motion to dismiss while recognizing that “not all claims regarding improper dental care will be constitutionally cognizable”). Moreover, Matson alleges that defendants disclosed her private medical information for the “purpose of embarrassing” and “humiliat[ing]” her. That is tantamount to alleging that the revelation that one is afflicted with CFS and/or fibromyalgia could be stigmatizing and is entirely plausible.

CFS is properly viewed as plausibly stigmatizing in at least two respects. Although the etiology of CFS is not well understood, various studies have linked it to one or more infectious diseases.4 See Yuppie Flu, supra. Given such reports, there is a distinct possibility that persons believed to have CFS may be stigmatized by others who would prefer not to expose themselves to this chronic, undesirable, and potentially contagious condition. At a minimum, this possibility would justify a CFS-sufferer's intense desire to keep his or her diagnosis private. On the flip side, for decades many have called the condition “yuppie flu” and “shirker syndrome,” reflecting the apparent belief that those who claim to suffer from it are whining and not to be taken seriously. See Yuppie Flu, supra. These circumstances also indicate that one with such a condition might prefer to keep that knowledge private rather than be viewed in such a negative light.

The majority's purported reasons for the contrary conclusion do not withstand scrutiny. Rebuffing Matson's citation to LaBrecque v.. Sodexho USA, Inc., 287 F.Supp.2d 100, 103 (D.Mass.2003), as not supporting her contention that persons suffering from fibromyalgia may be targeted for discrimination, the majority focuses on a single statement in that opinion that fibromyalgia may impair a person's ability to work. Ante at [18]. While that fact alone may not indicate anything about discrimination, in finding that the plaintiff's claim of discrimination under the Americans with Disabilities Act (“ADA”) survived defendants' motion for summary judgment, LaBrecque more broadly confirms the plausibility of the notion that fibromyalgia may engender discrimination. Additional cases reaching similar results with respect to CFS and/or fibromyalgia, including our own, suggest that LaBrecque is not an aberration and further underscore the plausibility of a more widespread phenomenon of discrimination related to these medical conditions. See, e.g., E.E.O.C. v. Chevron Phillips Chem. Co., 570 F.3d 606 (5th Cir.2009) (finding genuine issues of material fact as to whether employer discriminated against CFS sufferer in violation of the ADA); Weixel v. Bd. of Educ., 287 F.3d 138 (2d Cir.2002) (finding allegations of discrimination against person with CFS and fibromyalgia sufficient to state an ADA claim); Holt v. Olmstead Twp. Bd. of Trustees, 43 F.Supp.2d 812 (N.D.Ohio 1998) (denying motion for summary judgment to dismiss ADA claims of discrimination against CFS/fibromyalgia sufferer).

The statement in Rankin v. N.Y. Pub. Library, No. 98 Civ. 4821, 1999 WL 1084224 (S.D.N.Y. Dec. 2, 1999), finding no evidence in the record of that case of a social stigma attendant to fibromyalgia on par with that attendant to AIDS does not diminish this possibility. As the majority recognizes, that case arose in an entirely different context-that of a plaintiff seeking to proceed under a pseudonym. Id. at * 1. The District Court denied the request, finding the plaintiff's privacy interest to be “outweigh[ed][by] the long-standing policy of open judicial proceedings.” Id. One affirmatively coming into court is apt to lose a measurable degree of privacy and the considerations presented in that situation are undeniably different. Indeed, while Rankin suggests that the stigma attached to alcoholism is insufficient to allow a plaintiff to proceed anonymously, id. at *1 (citing Doe v. Frank, 951 F.2d 320, 324 (11th Cir.1992)), alcoholism appears to be precisely the type of condition which the majority finds to carry the requisite level of public opprobrium, see ante at [16 ] (noting that identification of individuals who become dangerous after drinking may constitute the “official branding of a person” (quoting Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971)). Even if the comparison to a plaintiff seeking anonymity were appropriate, Rankin's observation does not take us far. As already discussed, nothing in Doe or Powell set any minimum standards for the level of discrimination that a condition must provoke in order to be protected. Accordingly, it is of no moment that the discrimination faced by one with fibromyalgia and/or CFS may be less severe than that which a person with HIV and/or AIDS may face.

The majority's reference to the fibromyalgia drug Lyrica (noted first by the District Court) is also puzzling. Neither the majority nor the District Court explain how the fact of televised advertisements for a drug treatment bears on the issue of whether a condition is highly personal or carries social stigma.5 Even if advertisement of drug therapy were somehow relevant, there is no similar treatment available (let alone advertised) for CFS. See Chronic Fatigue Syndrome: Treatment for CFS, CDC, http:// (last visited Dec. 22, 2010) (“There is no cure, [and] no prescription drugs have been developed specifically for CFS.”).

In short, the lack of any express allegation of past societal discrimination against those with CFS and/or fibromyalgia does not doom Matson's complaint.

The majority also treats as significant the lack of any proper allegation that Matson herself was discriminated against following disclosure. However, while whether the plaintiff actually suffered discrimination or was otherwise harmed by such disclosure is relevant to the issue of damages should liability be found, it is not the proper focus in determining the scope of the privacy right. Instead, in using discrimination as a proxy for ascertaining whether information is sufficiently personal to be protected, the proper consideration is the ex ante likelihood of stigmatization from the unwanted disclosure. Cf. Powell, 175 F.3d at 111 (finding privacy right where disclosure of a serious medical condition is “likely” to provoke “hostility and intolerance”); Doe, 15 F.3d at 267 (finding same where disclosure “potentially” results in “discrimination and intolerance”). In this regard, actual discrimination, hostility, or intolerance towards Matson is relevant only insofar as it may bolster the notion that this is the type of information that is likely to generate such a response. As already recounted, however, the complaint adequately indicates the plausibility of this notion and no more is needed at this stage.

In light of the above, I believe that information concerning a person's diagnosis of CFS and/or fibromyalgia falls comfortably within the ambit of plausible constitutional privacy protection as established by Whalen, Doe, and their progeny. It is entirely plausible that the disclosed information is of the type that is highly personal and potentially embarrassing, such that one would and normally should be able to choose whether to inform others that she suffers from these serious conditions.

The existence of a privacy right is of course not alone sufficient to constitute a constitutional violation. Even where there is a protectable interest in the confidentiality of information, that right may be waived. Powell, 175 F.3d at 112 n. 1. Additionally, the “confidentiality interest is not absolute ․ and can be overcome by a sufficiently weighty government purpose.” Statharos v. N.Y. City Taxi & Limo. Comm'n, 198 F.3d 317, 323 (2d Cir.1999). There is no dispute that Matson has adequately alleged that defendants disclosed matters without her permission. There is nothing in the fact of Matson's provision of her medical information to the BOE in support of her application for a leave of absence that could be considered to authorize the public dissemination of that information and Matson asserts that “[a]t no time” did she authorize such release.

Matson has also alleged unwarranted disclosure. Defendants have not argued that, if Matson's medical information were protected, they would have been justified in releasing it. That the SCI has the authority to-and apparently regularly does-publicly issue investigative reports does not in itself supply an adequate justification for publicly disseminating Matson's medical information. There is no indication why the public dissemination of the Report would have been any less effective in achieving any legitimate purpose without identifying Matson's specific diagnosis; indeed, that the Report remains on the SCI's website with Matson's private medical information redacted suggests just the opposite.

Where a plaintiff challenges executive action, however, only “conduct that ‘shocks the conscience[ ]’ will subject the government to liability for a substantive due process violation.”6 O'Connor, 426 F.3d at 203. While “necessarily imprecise,” the shocks-the-conscience test “depends on the state of mind of the government actor and the context in which the action was taken.” Id. (citing Cnty. of Sacramento v. Lewis, 523 U.S. 833 (1998)). To the extent that Matson's allegation that defendants publicly broadcast her private information intending to embarrass and humiliate her is true, it would suffice. See id. (“[I]f the Board intended to injure or to spite O'Connor by insisting on a needlessly broad medical release as a condition of his reinstatement, that intent would plainly support liability in light of County of Sacramento.”).

Both the majority and the District Court pay excessive attention to the suggestion that Matson abused her sick-leave time during her employment with the BOE. Such actions, even if true, are wholly irrelevant to whether Matson's medical diagnoses are the type of information entitled to privacy protection and serve only to unnecessarily paint an unflattering picture of Matson. This is especially so given that the disciplinary charges against Matson have been withdrawn. What was not-and cannot be-withdrawn, however, is the public dissemination of Matson's intimate medical information.

For the foregoing reasons, I believe the District Court's decision should be reversed. A Whalen/Doe privacy claim in the medical context, while not unbounded, is not so narrowly limited to the extreme privacy violations at issue in our previous cases and is broad enough to cover Matson's privacy claim. Matson has alleged an unauthorized and unwarranted disclosure of potentially protected information sufficient to withstand a motion to dismiss. Accordingly, I respectfully dissent.

II. BOE As Defendant

In addition to dismissing Matson's complaint for failure to state a claim, the District Court concluded that even if the privacy claim were viable, the BOE would not be a proper defendant. The majority's disposition obviated its need to address Matson's argument that the dismissal of the BOE was erroneous; because I would reinstate Matson's privacy claim, I briefly address this issue.

In separately dismissing the BOE, the District Court first noted that in 2002 the BOE was stripped of its status as a semi-autonomous agency and renamed the New York City Department of Education (“DOE”). Matson v. Bd. of Educ., No. 08 Civ 7232, 2009 WL 2462513, at *1 n. 1 (S.D.N.Y. Aug. 7, 2009). The court then analyzed the DOE's amenability to suit and concluded that it was not amenable because, pursuant to the New York City Charter, as a city agency the DOE cannot be sued in its own name, and, in any event, because the SCI is independent of the DOE, Matson cannot allege any actions taken by the DOE that would subject it to liability. Id. There are several errors in this chain of logic.

First, while the District Court is largely correct that, following the 2002 amendments to the Education Law, the BOE is now frequently referred to as the DOE, e.g., D.D. ex rel. V.D. v. New York City Bd. of Educ., 465 F.3d 503, 506 n. 1 (2d Cir.2006), the two are not entirely synonymous. The BOE “is created by the Legislature of the State of New York and derives its powers from State law.” Bylaws of the Panel for Educational Policy of the Department of Education of the City School District of the City of New York, Preamble, available at onlyres/B432D059-6BFE-4198-8453-466FDE2B22D5/ 69835/PEPBylawsFinal91409.pdf [hereinafter BOE Bylaws]. By statute, the BOE remains in existence. See N.Y. Educ. Law § 2590-b(1)(a) ( “The board of education of the city school district of the city of New York is hereby continued.”). The DOE, by contrast, is a creation of the BOE through the BOE's bylaws and is comprised of the thirteen BOE members along with “the Chancellor, superintendents, community and citywide councils, principals, and school leadership teams.” BOE Bylaws, Preamble.

Matson has sued the BOE (as one of three defendants along with the City and the SCI) and nothing about the BOE's creation of an additional broader entity would appear to require suits against the DOE instead of the BOE.7 Cf. Nacipucha v. City of New York, 849 N.Y.S.2d 414, 419 (Sup.Ct.2009) (quoting an official notice in the November 12, 2002 edition of the New York Law Journal explaining how to serve process on either “the New York City Department or Board of Education”). Moreover, the New York City Charter does not preclude suits directly against the BOE. Section 396 of the Charter provides that “[a]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the city of New York and not in that of any agency, except where otherwise provided by law.” N.Y. City Charter § 396 (2009), available at http:// That provision “has been construed to mean that New York City departments, as distinct from the City itself, lack the capacity to be sued.” Ximines v. George Wingate High Sch., 516 F.3d 156, 160 (2d Cir.2008). The BOE, however, is neither a department nor agency of the City. Historically, the BOE “was created as a public corporate entity which is ․ separate and distinct from the City of New York.” Nacipucha, 849 N.Y. S.2d at 417. As such, the BOE could be-and indeed was required to be-separately sued for its alleged torts, as the City could not be held liable for the BOE's actions. Id. The Appellate Division of the New York Supreme Court has held that the 2002 restructuring of the BOE did not alter this system: “[T]he City and the Board remain separate legal entities[;]” “[t]he legislative changes do not abrogate the statutory scheme for bringing lawsuits arising out of torts allegedly committed by the Board and its employees, and the City cannot be held liable for those alleged torts.” Perez ex rel. Torres v. City of New York, 837 N.Y.S.2d 571, 572 (1st Dep't 2007), leave to appeal denied, 837 N.Y.S.2d 393 (2008). Recourse for alleged wrongs committed by the BOE thus remain redressable through suits against the BOE. See Nacipucha, 849 N.Y. S.2d at 419 (explaining how to serve process on the BOE or DOE, as distinct from the City); Lee S. Kreindler et al., New York Practice Series-New York Law of Torts § 17:56 (2010).

Notably, defendants do not now and did not below suggest otherwise, as one would certainly expect the BOE or the City to have done if there were a wholesale prohibition on suits against the BOE.8 In fact, seemingly to the contrary, defendants explained below that “it is well-settled that the Board of Education and the City of New York are separate and district entities.” (Br. in Support of Defs.' Mot. to Dismiss, at 3, Matson v. Bd. of Educ., No. 08-cv-7232 (S.D.N.Y. Jan. 16, 2009).) And for this reason defendants argued-and the District Court adopted this reasoning in the alternative-that the BOE should be dismissed since the SCI, which authored the offending Report, operates through the City and is thus a legal entity distinct from the BOE. However, even if the SCI's investigation cannot be attributed to the BOE, Matson alleges that the BOE participated in publicly releasing the SCI's Report, thus alleging wrongful actions directly by the BOE.

For these reasons, there is no additional barrier to Matson's suit against the BOE at this juncture and I would reverse the decision of the District Court in this regard as well.

III. Sua Sponte Recusal

Finally, though not raised below, Matson now claims that the District Judge erred in failing to sua sponte recuse himself from this matter. As there is no basis to find that the Judge's “impartiality might reasonably be questioned,” 28 U.S.C. § 455(a), I concur in the majority's conclusion that recusal was not required. I offer but two additional observations in direct response to Matson's claims that the Judge's previous employment with the City of New York and his niece's current employment with the DOE present disqualifying conflicts.

A judge's prior governmental service, even with the same entity appearing before the judge as a party, does not automatically require recusal. Rather, prior governmental service disqualifies a judge from presiding over a matter only if the judge directly participated in the matter in some capacity or expressed an opinion concerning the merits of the particular case. 28 U.S.C. § 455(b)(3); accord Code of Judicial Conduct for United States Judges Canon 3(C)(1)(e), available at [hereinafter CJC]. Matson does not contend-nor is there any indication-that the District Judge was in any way involved in this case prior to his assignment to the instant matter and, accordingly, his earlier service for the City does not require recusal.

Nor was the District Judge required to recuse himself on account of his niece's employment with the DOE. Matson contends that his niece is a “high level executive” of the BOE or the DOE. (Matson Br. 54.) Were that true, Matson's claim might have some bite. A judge shall disqualify himself if a “person within the third degree of relationship to” him-which includes one's niece-“[i]s a party to the proceeding, or an offer, director, or trustee of a party.” 28 U.S.C. § 455(b)(5)(i); accord CJC Canon 3(C)(1)(d)(i). But the document Matson cites in support of her assertion suggests no more than that the District Judge's niece is the head of a single subsidiary office within the DOE-the Office of Multiple Pathways to Graduation-wholly unconnected to Matson, her employment, or the issues presented in this case. The niece's capacity as such does not present any problems.


In sum, I believe that Matson has adequately stated a claim of a privacy violation and, accordingly, would reverse the District Court's grant of defendants' motion to dismiss and reinstate the claim with respect to all three defendants. Because the majority concludes otherwise, I respectfully dissent. I concur only in the rejection of Matson's claim that the District Judge should have sua sponte recused himself.


1. The National Institute of Arthritis and Musculoskeletal and Skin Diseases of the National Institutes of Health, United States Department of Health and Human Services, defines fibromyalgia as “a disorder that causes muscle pain and fatigue․ People with fibromyalgia have ‘tender points' on the body. Tender points are specific places on the neck, shoulders, back, hips, arms, and legs. These points hurt when pressure is put on them.” National Institute of Arthritis and Musculoskeletal and Skin Diseases, Fast Facts About Fibromyalgia (last updated July 2009), available at Chronic Fatigue Syndrome, or CFS, and fibromyalgia are often discussed interchangeably although they are distinct medical conditions.

2. The Report remains on the SCI's website and is available at: 20Matson% 20Dorrit% 20Ltr .pdf. References to fibromyalgia and to a recurrent bacterial infection, however, are now redacted from the Report.

3. The District Court noted that while Matson alleged that her private medical information was published in New York City area newspapers, her complaint did not attach the newspaper articles or contain quotations from them. However, the court discussed an article about the Report that was published in The New York Times and concluded that the article “focused on Matson's abuse of the sick leave policy, not on the nature of her medical condition .” Matson, 2009 WL 2462513, at *2 n. 3.

4. Matson notes that the New York State Appellate Division has held that “the City and the Board remain separate legal entities․ The legislative changes do not abrogate the statutory scheme for bringing lawsuits arising out of torts allegedly committed by the Board and its employees, and the City cannot be held liable for those alleged torts.” Perez ex rel. Torres v. City of N.Y., 837 N.Y.S.2d 571, 572 (App.Div.2007) (citation omitted).

5. When a plaintiff does not specifically move for recusal, a judge is obliged to take such action only if circumstances indicate that his “impartiality might reasonably be questioned.” 28 U.S.C. § 455; see United States v. Bayless, 201 F.3d 116, 126-30 (2d Cir.2000) (considering whether a judge should have sua sponte recused himself). Our review in such cases is limited to plain error, see United States v. Carlton, 534 F.3d 97, 100 (2d Cir.2008), which we do not identify here. “Disqualification is not required on the basis of remote, contingent, indirect or speculative interests.” Diamondstone v. Macaluso, 148 F.3d 113, 121 (2d Cir.1998) (internal quotation marks omitted). That the experienced District Judge previously served as Corporation Counsel of the City of New York, and that his niece is employed by the Department of Education, does not constitute a basis for questioning his impartiality. Accordingly, we reject plaintiff's recusal claim.

6. We understand that, since our decision in Doe, the prognosis for a person infected with HIV or living with AIDS has improved, given a range of new drug treatments. Nevertheless, that symptoms of HIV and AIDS may now be managed by a variety of treatments does not call into question the seriousness of these medical conditions. The U.S. National Library of Medicine has explained that “[a]lmost all people infected with HIV, if not treated, will develop AIDS,” and that “there is no cure for AIDS. It is always fatal without treatment.” U.S. Nat'l Library of Med., AIDS: MedlinePlus Medical Encyclopedia (last updated May 25, 2010), http:// (emphasis supplied). Moreover, we adhere to our observation in Doe that a person infected with HIV may face an “unfortunately unfeeling attitude among many in this society” and “expose[ ] herself not to understanding or compassion but to discrimination and intolerance.” Doe, 15 F.3d at 267.

7. The dissent proposes that the “relevant inquiry” in determining whether a constitutional right to privacy exists as to a certain medical condition is “simply whether the information concerns a serious medical condition that is highly personal.” (Dissent at 4:9-11 (internal citations omitted)). We think that more germane to the inquiry is whether disclosure of one's medical condition would bring about public opprobrium and would expose a person to discrimination and intolerance, not simply whether the condition is “highly personal.”

The dissent highlights the “potentially embarrassing” nature of the “disclosed information” in concluding that fibromyalgia is the type of condition that gives rise to a constitutionallyprotected privacy right. (Dissent at 12:12-15) We believe that the “potential” for embarrassment is too subjective a standard to support such a conclusion. Indeed, embarrassment is a decidedly personal emotion. While Matson may have found disclosure of her condition to be a source of embarrassment, others in the same position instead may find the Report's disclosure of an abuse of the DOE's sick leave policy to be the source of embarrassment.

1. As an initial matter, contrary to the Report's disclosure that Matson suffers from “chronic fatigue syndrome, known as fibromyalsia [sic],” as the majority notes, see ante at [4 n. 1], the two conditions are in fact related but distinct. See Chronic Fatigue Syndrome: Alternative Medicine, Mayo Clinic, DSECTION=alternative-medicine (last visited Dec. 22, 2010) (describing fibromyalgia as “a disease that is considered similar to CFS”). Nevertheless, though the Report states that Matson has CFS, and though Matson complains about the public dissemination of her illnesses of “fibromyalgia and/or chronic fatigue syndrome” (e .g., Matson Br. 37, 38), the majority discusses only fibromyalgia, noting that the conditions are often discussed interchangeably. Because both the parties and the majority largely treat the two conditions as one, and because they are similar, I shall for the most part likewise not dwell on any differences between the conditions for purposes of this analysis.

2. In fact, though the majority emphasizes the narrow confines of the right to privacy, we do not appear to have ever rejected a privacy claim concerning medical information on the grounds that the information is not encompassed within the right to confidentiality. Indeed, even many of the lower court cases defendants cite in support of their argument that Matson's medical information is not entitled to protection find not that the information is not protected, but that disclosure of the information was justified. See infra at [12-13] for discussion of when protected information may be disclosed without infringing on the right to privacy.

3. And though Powell arose following a jury trial, there is no indication that any evidence of societal discrimination was even offered at trial. That said, both the Doe and Powell plaintiffs did allege actual discrimination against themselves following disclosure. Powell, 175 F.3d at 109; Doe, 15 F.3d at 265. Similarly, the deep history of discrimination against those with sickle cell anemia recited by the District Court in Fleming is nowhere found in that complaint, though the plaintiff alleged adverse action against him personally. (See Am. Compl., Fleming v. State Univ. of N.Y., No. 05-cv-5386 (E.D.N.Y. Jun. 23, 2006).)

4. Some studies link CFS to a virus from the same family as HIV. Denise Grady, Virus is Found in Many with Chronic Fatigue Syndrome, N.Y. Times, Oct. 9, 2002, at A14. These viruses “insert themselves into their hosts' genetic material and stay for life.” Id. While other studies challenge this correlation, at this point the American Red Cross will not accept blood donations from those with CFS, and the U.S. Food and Drug Administration is considering a similar ban. Simeon Bennett, Mouse Virus Link to Chronic Fatigue Syndrome is Challenged in Four Studies, Bloomberg, Dec. 21, 2010, mouse-virus-link-to-chronic-fatigue-syndrome-is-challenged-in-fourstudies.html (last visited Dec. 22, 2010).

5. Genital herpes-which would appear to meet the majority's definition of a condition entitled to privacy protection, see ante at [18] (suggesting that information about sexually transmitted diseases would carry sufficient opprobrium to be protected)-also has a drug therapy, Valtrex, commonly advertised on television. See, e.g., CBS News, TV Drug Ads Too Emotional, Study Shows, Jan. 29, 2007, es/2007/01/29/health/webmd/main2411011.shtml (last visited Dec. 22, 2010) (describing television advertisement for Valtrex). Moreover, although the majority acknowledges the existence of a variety of drugs to manage HIV, it does not go on to consider that drug makers frequently advertise these drugs too. See, e.g., Ron Leuty, FDA: Gilead Ad For Truvada ‘Misleading,’ S.F. Bus. Times, Apr. 9, 2010; Rebecca Ruiz, Ten Misleading Drug Ads,, Feb. 2, 2010, drug-advertising-lipitor-lif estyle-health-pharmaceuticals-safety.html (last visited Dec. 22, 2010) (mentioning Abbott Laboratories' advertisement for the HIV drug Kaletra); Jeanne Whalen, Glaxo's HIV-Drug Ads Draw Critics, Wall St. J., Aug. 25, 2008.

6. These rules are significantly loosened in the prison context. Prison officials impinge on an inmate's right to privacy “only to the extent that their actions are [not] reasonably related to legitimate penological interests.” Powell, 175 F.3d at 112 (internal quotation marks omitted).

7. Indeed, the BOE has repeatedly been sued in its own name for alleged wrongs committed after 2002 without discussion. E.g., Weintraub v. Bd. of Educ., 593 F.3d 196 (2d Cir.2010); Mulgrew v. Bd. of Educ., 906 N.Y. S.2d 9 (1st Dep't 2010).

8. Although in their brief below, defendants repeatedly referenced the “BOE,” on appeal they state that, following the District Court's lead, they will refer to the BOE as the DOE. (Defs.' Br. 3 n. 2.) Still, however, they do not argue that the DOE is not a proper party for the broad reason that the DOE cannot be sued in its own name. (In fact, on appeal, defendants do not in any way defend the District Court's separate dismissal of the BOE/DOE.)In any event, its name as the New York City Department of Education notwithstanding, the DOE does not appear to be a city department within the contemplation of the City Charter. As we have previously observed, “departments of the City of New York typically, perhaps uniformly, have been created by the City Charter, which does not create a New York City Department of Education.”Ximines, 516 F.3d at 159. In Ximines, after we remanded to the District Court to determine whether the DOE “is a subdivision of the Board as opposed to a department of the City” and whether it has “the capacity to be sued,” id., the parties stipulated that “the Defendant in the above action will be ‘The New York City Department of Education.’ “ (Stipulation, Ximines v. New York City Dep't of Educ., No. 05-cv-1214 (E.D.N.Y. Mar. 21, 2008).) While this stipulation is of course not dispositive, it does suggest that the City Charter does not preclude suits against the DOE. As Matson has sued the BOE, and not the DOE, however, this is a matter I need not definitively resolve.

STRAUB, Circuit Judge, filed opinion concurring in part and dissenting in part.

NYC Educator Blog Must Read: Bronx Cobra Tells All

Kudos To NYC Educator for the best, most accurate translation of all events that have occurred since 2002 in education since Mayor Bloomberg was elected! I love the article below, and here it is, from the blog NYC Educator:

Wednesday, March 30, 2011

Bronx Cobra Tells All

Look, don't believe all this nonsense about me on Twitter. Really, have you ever heard of a snake who could tweet? It's absurd. I yam what I yam, like Popeye, and you won't see me writing cutesy nonsense on some iPhone gadget.

The truth is the Mayor came by, and who would've thought he was a Parselmouth? But there it was, and once he explained his problems, I could see he'd been misled. I mean, here's this guy trying to fire teachers who make too much money so he could have the newbies take their place, and he's saying it's a budget thing, that if he gets so much he has to fire so many, yadda yadda yadda, and other such unbelievable nonsense.

I told him this was not the way to go. He complained that his Department of Education was being run by some clueless lush, and that he didn't know what to do. I told him I'd take care of things for him if he could supply me with rodents, and he said Tweed was full of nothing but. I told him I'd be happy to eat, or at least bite anyone he couldn't fire, and we set off arm in no arm. I knew I was what he'd been looking for. He said he used to have someone just like me but he'd set off to make more money.

He mentioned how everyone complained how his programs didn't work and I told him it was not about whether they worked or not. It's about getting what you want. So now we have an agreement. I will visit every school in the city, get rid of every teacher making over 50K, and spare all others until they, too, reach 50K. This will not only allow millions to be freed up for preposterously expensive no-bid computer programs, but will also eliminate the need for future costly pension programs.

I'm really looking forward to my new gig, but Rupert Murdoch came by this morning and offered me something political, which really appeals to me. But the mayor says if I stick with him through his fourth term he'll make it worthwhile.

Anyone know the name of a good agent?

March 29, 2011, 5:30 PM ET

Evening Relaxation: Missing Cobra Found on Twitter
by Jennifer Valentino-DeVries


At about 2:30 Tuesday afternoon, the cobra missing from the Bronx Zoo was on top of the Empire State Building — at least according to the cobra’s Twitter feed.

The tongue-in-cheek account, which is run by an as-yet-unnamed Twitter user, follows the cobra around the city, through exploits such as a trip to the snake exhibit at the Museum of Natural History (“This is gonna be hilarious!”) and Wall Street (“These guys make my skin crawl.”)

The venomous Egyptian cobra escaped its enclosure Friday and was still at large on Wednesday. The Twitter account BronxZoosCobra sprang up on Monday with the message “I want to thank those animals from the movie ‘Madagascar.’ They were a real inspiration.”

As of Tuesday afternoon, the cobra had more than 60,000 followers on Twitter.

Twitter is full of accounts like BronxZoosCobra’s — run by people who take on a persona for comic effect. Your Digits blogger’s favorites include the Ferris Bueller feed, which retold the popular film through Twitter, and the BPGlobalPR account, which used humor to draw attention to the oil company’s efforts after the Gulf oil spill.

BronxZoosCobra has a definite New York flair — as the cobra pointed out Monday, Big Apples and snakes “have gone together since the beginning.” It carried on conversations with the social-media folks at luxury icon Bergdorf Goodman and sampled cupcakes at the famed Magnolia Bakery. Its adventures were covered Tuesday by the New York Times City Room blog, and it exchanged tweets with Peter Alexander of NBC News.

In an email to Digits, the cobra didn’t provide a name, explaining that no one ever bothered to provide one. “But they always name the cute baby pandas, don’t they? Simple reptile intolerance,” it said.

It also said it has no plans to leave the city just yet but is “an adventurous snake.”

“If Snooki can write a novel so can I,” it wrote.

Sunday, March 27, 2011

Do The Presidents of NYSUT and the UFT Truly Respect Members?

UFT members must be, by now, aware that their rights have been bargained away by the very same people who party on their dime. Sooner or later the question of why Mike Mulgrew, currently President of the UFT, and Ema Comacho Mendez were moved from William Grady High School in Brooklyn to the UFT in 2004. Evidently no investigator ever looked into the circumstances.

If you are a UFT member and havent asked the question below, may I ask, what's the delay?

What am I paying my dues money for?

You may say, "I'm paying for the right to grieve"

Answer - most grievances are written to oppose a "U"- rating that is unfair. You win less than 1% of these, because the BOE andUFT agreed, in violation of well-founded arbitration rules, to have a Principal never appear in person and thus the Principal/AP/Dean can testify only by telephone. Call the American Arbitration Association up, and find out how valid a hearing is when only one side (BOE) wants witnesses to call in. While you're at it, could you ask how valid an oath is under these  circumstances when someone states that he/she will tell the truth through a telephone line?

In 2005, the UFT signed a contract from "down under" (and I dont mean Australia) which stated that no one could henceforth grieve a letter in his/her file, no matter how false the content was.

Alternatively, you could say "I'm paying for the services of NYSUT"  when, or if, I get taken to 3020-a (assuming you have tenure).So, you feel better knowing that sooner or later, you may need to have NYSUT represent you, so you pay for the psychic well-being that comes from knowing that you have legal help.

What if you dont? What if your legal help is not helpful? What happens when your Union does not provide the services that they promise you it will?

See below.

Betsy Combier

As budget cuts loom, state's largest teachers union has burned through millions of dollars
BY Douglas Feiden, DAILY NEWS STAFF WRITER, March 27th 2011, 4:00 AM

As Gov. Cuomo moves to slash $1.5 billion in school aid, the state's largest teachers union has burned through millions of dollars on junkets, feasts and parties at resorts across New York.

New York State United Teachers hosts more than 150 conferences a year at some 50 rustic retreats, lakefront lodges and oceanfront hotels - even though it has a conference center near its Albany headquarters.

That means union members and brass average three powwows a week as they wine and dine from Montauk to Niagara Falls, a Daily News review of union spending found.

Funded by its 575,000 members' dues, the teachers union dropped $3.8 million on conferences last year - plus $225,000 more for catering and $231,000 for 14 photographers who snapped pictures of the parleys, documents show.

All told, the union has shelled out nearly $17 million since 2005, with their two favorite spots being Gurney's Inn Resort & Spa in Montauk ($2.1 million) and the Otesaga Resort Hotel near the Baseball Hall of Fame in Cooperstown ($2.4 million).

For entertainment, it paid $9,500 for the Capitol Steps comedy troupe and $25,505 for the Okie Dokie Nightclub, both in Washington.

To get to upstate hot spots, union employees can take advantage of the union's $1.8 million fleet of more than 155 vehicles. Rank-and-file members can bill their locals for tolls and mileage.

Extravagant union spending has continued even as Mayor Bloomberg threatens to ax 4,700 city teachers and union lobbyists fight to salvage "last in, first out," which bases firing on seniority.

Last month The News revealed how the city's United Federation of Teachers, the state union's largest local affiliate, blew $1.4 million on a 50th anniversary gala.

"NYSUT talks about shared sacrifice, but the taxpayer makes the sacrifice and foots the bills for its frivolous spending," said Jason Brooks of the Foundation for Education Reform & Accountability, a charter school advocacy group and union critic.

"School taxes pay the salaries of teachers, who are required to pay union dues, which go to fund junkets at five-star resorts."

Dick Iannuzzi, NYSUT's $294,313-a-year president, declined comment, but spokesman Carl Korn insisted the trips were training sessions, not junkets.

Carl Korn

Conferences offer invaluable training on standards, testing, teacher evaluation and all aspects of the job, he said.

"It's absolutely essential," said Korn. "It provides the skills they need to advocate for members and fight for what students and schools need to succeed."

Korn said the union has 16 regional offices and each holds a summer, fall and winter conference, as well as policy and health conferences and others.

He noted that the union's conference center in upstate Latham hosts hundreds of meetings a year, but its 150-seat auditorium is too small for many workshops.

With few upstate union facilities able to handle some 300 people, NYSUT seeks venues near its members and books off-season to get big discounts, Korn said.

"Our financial operations are transparent - and our members get every penny's worth in the representation they receive from NYSUT," he said

About $86,000 worth of those pennies paid for a "summer leadership conference" at Skytop Lodge in the Poconos, which offers archery and lawn bowling. The conference featured workshops on benefits, bargaining - and investment tips.

Union dissidents also provided The News with some locals' newsletters openly boasting of the perks at conferences:

"The accommodations were top shelf," wrote Al Cotoia, vice president of NYSUT Local 15-175, after a $268,732 conference at the Wyndham Princeton Forrestal Hotel in New Jersey. "There was unlimited access to refreshments and food."

Until it closed in 2009, the storied Rainbow Room was a union hangout and scene of a $118,875 party held after a "presidents conference" at the New York Hilton.

NYSUT Local 3882, which represents staffers at NYU, recounted a postconference party like this: "After a day packed with workshops, local presidents were treated to an evening of dining and dancing at New York's legendary Rainbow Room. Your president had a wonderful time."

NYSUT's reports to the U.S. Labor Department also show the parent union splurging at:

* Otesaga Resort Hotel, with its private tours of the Baseball Hall of Fame and 700 feet of Lake Otsego shorefront. Tab for conferences in 2010: $488,110.

* Gurney's Inn, which features karaoke, stand-up comedy and a seawater spa. Regional workshop tab: $235,602.

* Seneca Niagara Casino & Hotel in Niagara Falls, where 4,200 slot machines await. Regional conference cost: $69,643.
And then there's the age discrimination lawsuit that was filed at the EEOC, but went nowhere, and I can vouch for the fact that most of the teachers thrown into the "rubber room" were over 40-50 years of age:
EEOC to the Rescue
Forty years ago, I was able to get the EEOC to investigate the patterns and practices of discrimination against women in the Tampa Police Department. I also filed charges with the Justice Department to take away the sheriff's government grants because he would not employ women as deputies.

My charging party was a young black woman supporting two children on a nurse's aide salary. She had applied several times to the city of Tampa for a police job. Marshall Jessee, the employment thug, kept "losing" her application. Thelma needed the job to care for her two children.The police job paid a generous salary in comparison the the aide job. I have forgotten Thelma's last name.

I had convened Tampa NOW at that time, and Thelma read in the paper that we helped women who were discriminated against. She got in touch with us, and I took her case because I was the employment discrimination chair.

Don't assume the EEOC will run to the rescue with one appeal. You have to keep at it and nag the agency until it investigates your charge to shut you up. I also moved things along by asking my congressman and the two Florida senators to check the status of my charge from time to time and to inform me of its status. This is what elected officials' staff is paid to do: constituent services. Inquiries from congresspeople or senators have a big impact on such government agencies as the EEOC.

The EEOC finally threw in the towel and investigated the case. It found the expected patterns and practices of discrimination against women and required the police depart to open up to women. Thelma was one of the first women hired. My husband and I went to her graduation from the Police Academy. The sheriff opened up to women when the Justice Department threatened to lift its grants. Sheriff Beard hates me so much to this day that he will not stay in a room if I enter it. I call that power.

When I see women police officers and sheriff's deputies on the streets, I feel proud; I feel like they are my children. I gave them the boost they needed to break down a door of prejudice.

The New York Teachers' Union is a strong outfit. CTA looks like a mouse beside it. I have good feelings about the NY union's being able to stop this horrific treatment of older teachers. I am betting on it.

No matter how bad things look locally, there are good things happening in other places.

I am revving up to file child-abuse charges against five administrators from the situation of abuse revealed in Goader's manufactured charge of child abuse. lee


I, RANDI WEINGARTEN, being duly sworn, declare under penalty of perjury the following:

• I am the President of the United Federation of Teachers, a position I have held since 1998. The United Federation of Teachers (“the UFT”) is the sole collective bargaining representative for teachers and other non-supervisory employees of the New York City Department of Education. Of the UFT's more than 140,000 members, approximately 91,000 are teachers or other tenured or tenurable staff members (school secretaries, guidance counselors, psychologists, social workers, etc.). The UFT's and my principal place of business is 52 Broadway, New York, New York 10004.

• The New York City Board of Education (“the Board”) is the governing body of the public school system in New York City, and has as its principal place of business the Tweed Courthouse, 52 Chambers Street, New York, New York 10007. The Board possesses the powers and responsibilities as delineated in the Education Law, including the power to employ, supervise, discipline, and terminate employees. The Board employs more than five hundred (500) people.

• The UFT brings the instant charge –that the Board has violated the Age Discrimination in Employment Act– on behalf of its members over 40 years of age, who have been harmed by the Board's discriminatory use of the disciplinary system, through the initiation of disciplinary charges under Education Law §3020-a and the issuance of Unsatisfactory annual performance ratings to such teachers, as well as the Board's discriminatory pattern and practice of coercing, threatening, and harassing teachers over 40 years of age to “encourage” those teachers to leave their assigned schools.


• Tenured personnel of school districts may only be disciplined pursuant to Education Law §§2590-j(7)(a), 3020 and 3020-a. Education Law §3020 provides that “No person enjoying the benefits of tenure shall be disciplined ... during a term of employment except for just cause ....” A Board of Education may not prefer charges against a tenured employee unless it has found that there is probable cause to do so. See Education Law §3020-a(2)(a).

• Pursuant to the Regulations of the Commissioner of Education (8 NYCRR §§89, 100), New York City Board of Education's Chancellor's Regulations (Special Circular No. 45), and the collective bargaining agreement between the UFT and the Board, all professional personnel must be provided with annual performance ratings. Those ratings must characterize the employee's work as either Satisfactory, Unsatisfactory, or, in certain cases, Doubtful. In still other cases where employees are reassigned outside of their regular assignment for disciplinary reasons, the Board must give them an annual performance rating of “NA” (not applicable). The By-Laws of the Panel for Education Policy of the Department of Education of the City School District of the City of New York provide for an appeal from any rating other than a Satisfactory. (See By-Law 4.3) .


• Of the UFT's 91,000 pedagogues who are eligible for tenure, approximately 41,000 or 63.4% are tenured teachers who are over the age of 40. This statistic is relevant in analyzing whether the Board is discriminating against older teachers in preferring disciplinary charges pursuant to §3020-a.

• Upon information and belief, based upon my review of the records maintained by the UFT, as set forth more fully in the following paragraphs, for the past three years, the Board has revealed its discriminatory intent in the rate of its preferral of disciplinary charges against teachers who are 40 years old.

• During the 2002-2003 school year, I am aware that the Board preferred §3020-a charges against at least 126 tenured pedagogues. Of those charged pedagogues, 114 or 90.5% were over the age of 40.

• During that same period, the Board formally threatened to prefer –but did not actually prefer– §3020-a charges against 24 pedagogues. Of those threatened pedagogues, 23 or 95.8% were over the age of 40.

• In sum, during the 2002-2003 school year, 137 of the 150 employees threatened with or served with §3020-a charges were over 40 years old. That is, 91.33% of those threatened or served with charges were over the age of 40.

• During the 2003-2004 school year, the Board served 147 pedagogues with disciplinary charges pursuant to §3020-a. Of those charged, 132 pedagogues were over the age of 40. That is, 90% of those charged were over the age of 40.

• During that same period, the Board formally threatened to prefer –but did not actually prefer– §3020-a charges against 21 pedagogues. Of those threatened pedagogues, 16 were over the age of 40. That is, 76.2% of those threatened with charges were over the age of 40.

• In sum, during the 2003-2004 school year, 146 of the 168 employees threatened with or served with §3020-a charges were over 40 years old. That is, 87% of those threatened or served with charges were over the age of 40.

• Similarly, during the 2004-2005 school year, the Board preferred §3020-a charges against at least 143 pedagogues. Of those 143 pedagogues, 122 were over the age of 40. That is 85.3% of all teachers disciplined pursuant to §3020-a during that school year were over the age of 40.

• I am also aware that, during each of the cited school years, there are pedagogues, over the age of 40, who were not formally threatened with charges, but were apprised that, if they did not retire, would be so charged. Those pedagogues did, in fact, retire or resign from their positions. As yet, I do not have the empirical data regarding those cases.

• The Board has similarly utilized the annual performance rating process to discriminate against older tenured members of the UFT.

• For example, of the 729 tenured UFT members who received Unsatisfactory annual performance ratings for the 2004-2005 school year, 571 or 78 % are over the age of 40. This statistic is relevant in analyzing whether the Board is discriminating against older teachers in the annual performance review process.

• During the 2002-2003 school year, 549 pedagogues throughout the New York City public school system were issued Unsatisfactory annual performance ratings (U-ratings). Of those pedagogues, 348 were over the age of 40. That is, 63% of all U-rated pedagogues in the 2002-2003 school year were over the age of 40.

• For example, in Manhattan alone, the average age of U-rated pedagogues during the 2002-2003 school year was 47.79. The borough of Manhattan was divided into ten School Districts (Districts 1 through 6, District 71, District 75, District 79, and District 81) at that time, and in every single one of those school districts, the average age of a U-rated pedagogue was well over 40; District 4 had the lowest average age, 44.6 years old, of U-rated pedagogues.

• Similarly, during the 2003-2004 school year, 645 pedagogues throughout the New York City public school system were issued Unsatisfactory annual performance ratings. Of those pedagogues, 381 were over the age of 40. That is, 59% were over the age of 40.

• Again, using the borough of Manhattan as an example, during the 2003-2004 school year, the average age of U-rated pedagogues in that borough was 49.3 years old. Only District 1's average that year fell below 40 years old; that year, only two teachers in District 1 were issued Unsatisfactory ratings: one was 53 years old with 30 years of service, and the other was 25 years old with 2 years of service. However, the average ages of U-rated teachers in District 2 was 54.25; in District 3 it was 55.9; in District 5, it was 58.1; and in District 6, it was 57.37.

• Based upon preliminary findings, during the 2004-2005 school year, 314 pedagogues were issued Unsatisfactory annual performance ratings. Of those pedagogues, 129 were over the age of 40. That is, 41% were over 40 years old.

• The above statistics alone establish that the Board's application of both the annual performance ratings and the preferral of disciplinary charges disparately impacts those members of the UFT who are over 40 years of age to the members' detriment, both professionally and personally.


• Upon information and belief, for at least the past three years, the Board has knowingly permitted school administrators to employ a pattern and practice of age discrimination in various schools within New York City. The discrimination has taken the form of unjust and unfounded criticisms, abuse of the observation process to intimidate and harass teachers, blatant disregard of seniority in making classroom assignments, and even making illegal offers of giving satisfactory ratings in exchange for senior teachers leaving the school. The employment of these discriminatory practices has resulted in the elimination of senior teachers from these given schools. In some cases it appears that the discrimination is motivated by administrators' budgetary agenda: that is, seeking to reduce the schools' payroll budgets or allowing the two teachers to be hired for the price of one older, more senior teacher.

P.S. 146, Region 9

• Between September 1999 and June 2004, Principal Laura Silver of P.S. 146 in Region 9 illegally drove nearly all of the senior teachers out of the school.

• Principal Silver was assigned as principal of P.S. 146 in September 1999.

• Upon information and belief, Principal Silver arrived at P.S. 146 believing that she was charged with "turning the school around," and undertook to eliminate from the school teachers who were older and/or more senior.

• Based upon a review of the organization sheets for P.S.146 for the school years 1999-2000 through 2003-2004, at the end of each school year, approximately 20 teachers did not return to P.S. 146 for the following school year.

• Upon information and belief, based upon conversations with other teachers and UFT representatives at P.S. 146, the majority of the teachers who did not return to P.S. 146 from one year to the next were over the age of 40. Most of them also had satisfactory service records within the Board of Education prior to their transfer from P.S. 146.

• Upon information and belief, many of the teachers who did not return to P.S. 146 were threatened by Ms. Silver that, if they did not make other arrangements for the following year's assignment, she would give them an Unsatisfactory rating for the year, and possibly bring them up on disciplinary charges. Faced with this Hobson's choice, most teachers left P.S. 146, beaten, but with their satisfactory ratings and records intact.

• Those teachers who opted not to yield to Ms. Silver's illegal intimidation were brought up on disciplinary charges pursuant to Education Law §3020-a, and were placed on administrative reassignment pending disposition of the charges.

• In May or June of 2002, one teacher , who is over 40 years old, had always received Satisfactory annual performance ratings, and had been assigned to P.S. 146 for more than 20 years by that time, was told by Ms. Silver, in the presence of the UFT representative, Aida Sanchez, that, if the teacher did not agree to leave the school, Ms. Silver would give her an Unsatisfactory annual performance rating for the year. The teacher refused the offer, but did take a sabbatical the following school year. Upon her return to P.S. 146 for the 2003-2004 school year, Ms. Silver inundated the teacher ' s file with letters – another 8 letters, most generated within the first two weeks of school, which formed the basis for the teacher ' s removal from the school on administrative reassignment, as well as the basis for Education Law § 3020-a charges.

Graphic Communications Arts High School, Region 9

• During the 2004-2005 school year, the Board engaged in a pattern and practice of discrimination against older teachers assigned to work at Graphic Communication Arts High School (“GCAHS”). GCAHS offers students academic study and teaches them vocational skills related to graphic communication careers. GCAHS is located at 439 West 49 th Street, New York, New York. The GCAHS administration discriminated against its older staff members by scrutinizing their performance in an unfair and inequitable manner. At least 19 teachers over age 40 were subjected to discriminatory treatment, including but not limited to: (1) unannounced observations of classroom performance lasting only a few minutes and resulting in negative observation reports; (2) negative age-related comments; (3) negative age-related comments aimed at pressuring older teachers to retire and/or transfer out of the school; (4) issuance, or threat of issuance, of Unsatisfactory annual performance ratings; (5) preferral, or threat of preferral, of §3020-a charges; and (6) unfair treatment, in general, which younger teachers did not receive.

• Specific examples of age discrimination which took place at GCAHS are enumerated in Paragraphs 35 through 49 below. All information is stated upon information and belief, based upon correspondence received by the UFT from pedagogues at the school.

• DIANA FRIEDLINE is a 53 year old teacher of Graphic Arts, who is employed by the Board and has worked at GCAHS since 1988. Ms. Friedline holds a New York City Printing/Cold Type Composition License, as well as a permanent New York State Commercial Art License. The Cold Type Composition License has been phased out and persons newer to the profession in New York City are now offered the Commercial Art Licensure Exam in its stead. During the 2004-2005 school year, the GCAHS administration has discriminated against Ms. Friedline on the basis of age, in that it limited her to certain teaching positions based on her possession of the “older” or “phased out” Cold Type License.

• For example, in March and April 2005, GCAHS advertised a position for a teacher to update the CTE curriculum. The job posting specifically excluded persons who possessed the Cold Type License. Although she is licensed to teach Commercial Art anywhere in New York State, GCAHS's job posting excluded Ms. Friedline from consideration, on the basis of age. In September 2004, Ms. Friedline, for the second time that year, requested that student teacher, Claudio Garcia, be assigned to her classroom, consistent with Mr. Garcia's wishes. Ms. Friedline's request was denied based on her license. Because only senior teachers hold the Cold Type Composition License, it appears that the GCAHS administration once again discriminated against Ms. Friedline based on her age.

 • By Verified Complaint dated March 21, 2005, Ms. Friedline filed a charge of age and sex discrimination against GCAHS with the New York State Division of Human Rights.

• FITZROY O. KINGTON is a 55 year old teacher of Social Studies who was assigned to GCAHS until June 2005. Mr. Kington is currently assigned to the Bayard Rustin High School for the Humanities.

• Notwithstanding the fact that Mr. Kington had the highest passing rate on the Regents examination of any Social Studies teacher at the school in June 2004 and June 2005, he was informed by Assistant Principal Matt Guttman that it would be in Mr. Kington's best interest to transfer to another school for the 2005-2006 school year.

• Mr. Guttman told Mr. Kington that Principal Jerod Resnick “wanted to staff the school with ‘young energetic teachers' and wanted to see ‘young teachers' in the classroom.” Guttman further told Mr. Kington that it would, thus, be best for “older teachers” like Mr. Kington to transfer to another school.

• Mr. Kington believes that most of the older teachers at GCAHS received Unsatisfactory annual performance ratings for the 2004-2005 school year, in keeping with Principal Resnick's stated goal of staffing the school with “young teachers”. Upon information and belief, Mr. Kington will be filing an individual charge of discrimination with the EEOC.

• LEAH KONTOVRAKIS is a 67 year old teacher of mathematics at GCAHS. Ms. Kontovrakis said that she believes that the Principal is discriminating against her and other older teachers based on age. During the 2004-2005 school year, the Assistant Principal walked into her class unannounced on multiple occasions, and issued her an unsatisfactory observation report on improper grounds. Ms. Kontovrakis observed that the principal did not treat younger teachers in the same manner. Based on the observation reports, Ms. Kontovrakis was issued an Unsatisfactory annual performance rating for the 2004-2005 school year.

• Prior to the 2004-2005 school year, Ms. Kontovrakis had always received Satisfactory observation reports and annual performance ratings. Upon discussing this matter with older teachers in her school, Ms. Kontovrakis discovered that they were being treated similarly with respect to the onslaught of unannounced observations of brief durations, which negatively characterized the older teachers' performance.

• Last year Ms. Kontovrakis spoke to a 55 year old female shop teacher who reported that she had to retire because the administration "made her life miserable" by discriminating against her based on age. According to Ms. Kontovrakis, an older English teacher was similarly forced to retire because she was given 5 different classrooms per day and was unable to wheel her books and materials from room to room.

• MIDGE MARONI is a 58 year old English teacher at GCAHS. Since the commencement of her employment with the Board, 10 years ago, until the Spring of the 2004-2005 school year, Ms. Maroni consistently received Satisfactory annual performance ratings and evaluations. Before the end of the Fall Term of the 2004-2005 school year, the Assistant Principal in charge of Ms. Maroni ' s department (English/ESL) was replaced with Eric Brand.

• During the 2004-2005 school year, prior to the Spring Term, Ms. Maroni had received three satisfactory evaluations (two from the previous A.P. and one from the Principal and Mr. Brand, himself). Immediately thereafter, Mr. Brand subjected Ms. Maroni to frequent short-term visits (none lasting more than 10 minutes) to her classroom during March and April of 2005. Mr. Brand's visits were memorialized in a single observation report (hereinafter referred to as "the composite observation"), given to Ms. Maroni on May 2, 2005. The composite observation concluded that Ms. Maroni's performance was unsatisfactory on the numerous dates cited within the report. Ms. Maroni filed a grievance challenging this "observation report" on the ground that it violated the collective bargaining agreement. That grievance is currently pending. Moreover, Ms. Maroni was the only staff member at the school to have received such a composite observation. On May 11, 2005, Mr. Brand conducted a formal observation of Ms. Maroni, and concluded that the lesson observed was unsatisfactory. Ms. Maroni's grievance of that formal observation, too, is pending.

• Between April and the end of June, 2005, Mr. Brand made a number of comments relating to Ms. Maroni's age. For example, he told Ms. Maroni that she is "the kind of teacher who deserves unsatisfactory ratings because she has too many old ideas about teaching." On another occasion, Mr. Brand told Ms. Maroni he was aware that she was a lot older than he, and he said, "I know you don't like being supervised by a younger male." Upon information and belief, Ms. Maroni will be filing an individual charge of discrimination with the EEOC.

• ANDREA SHAPIRO is a teacher, 58 year old teacher, who has been assigned to GCAHS since 1984. Like Ms. Maroni, Ms. Shapiro was subjected to a number of age-related comments and negative, unfair treatment by Mr. Brand, the Assistant Principal of the English/ESL Department during the 2004-2005 school year. Mr. Brand communicated his hostility towards older teachers when he stated words to the effect that he would be having a wonderful English Department the following year because they would have no old teachers. Principal Jerod Resnick allegedly told a staff member that he did not like Ms. Shapiro and did not want to see her or talk to her because of her age.

• During the 2004-2005 school year, Ms. Shapiro was also improperly removed from her compensatory time position and was falsely accused of misconduct. Despite this discriminatory treatment, Ms. Shapiro felt that she had no recourse but to stay at the school and endure the continuing age-related harassment geared toward pushing her to retire.


• In addition to the disparate impact of the Board's discriminatory application of the disciplinary and ratings processes, and the pattern and practice of discrimination to remove older teachers from selected schools, the Board has engaged in intentional discrimination on the basis of age against a number of individual teachers. I make the following representations based upon letters and communications from these individuals to me and/or members of the UFT staff. These individuals have consented to participate with the UFT in the instant charge.

• HEATHER ALLISON is a 40 year old elementary school teacher who has been employed by the Board since 1993. When she transferred from P.S. 50 to P.S. 161 in 1993, Principal Jill Hoder issued Ms. Allison her very first Unsatisfactory annual performance rating and replaced her with a teacher in her 20's who had no experience. Ms. Allison was intimidated by frequent, unannounced visits by her Principal and other administrators. These visits disrupted her class and often lasted only a few minutes. Younger teachers at P.S. 161 were not subjected to such treatment. Ms. Allison is aware of several other older teachers who were driven out of P.S. 161. These older teachers either retired or transferred to other schools.

• MADELYN DIMITRACOPOULOS is a 64 year old English teacher assigned to Flushing High School, who has been employed by the Board since 1962. She was the only teacher in the English Department to be assigned to teach out of 4 different classrooms. After Ms. Dimitracopoulos grieved this assignment, it was reduced to 3 classrooms. According to Ms. Dimitracopoulos, most younger teachers only have 1 or 2 classrooms from which they must teach. As a result of hauling books and supplies from room to room throughout the day, Ms. Dimitracopoulos, who had informed the school of her prior medical condition, tore her miniscus ligament. When another teacher and a student assisted her, they were told to stop because the administration indicated that Ms. Dimitracopoulos was to carry her materials herself.

• Ms. Dimitracopoulos has also been a victim of unfair observations. For example, on a few occasions, her administrators observed her lesson for only the last 5 minutes of class and rated the entire lesson as unsatisfactory. The Chairman of the English Department, Ms. Burton, changed Ms. Dimitracopoulos's teaching program 3 times during the 2005-2006 school year and took away her elective class.

• During the 2004-2005 school year, an article entitled “No Time to Retire,” with the word “No” crossed out, was anonymously placed in Ms. Dimitracopolous's mailbox, obviously suggesting that it was time for Ms. Dimitracopoulos to retire. She immediately went to Ms. Burton for assistance and was ignored. Indeed, rather than receiving assistance from the administration, the article was placed in Ms. Dimitracopoulos's attendance folder. Upon information and belief, Ms. Dimitrocopoulos will be filing an individual charge of discrimination with the EEOC.

• JOY HOCHSTADT is a 66 year old teacher who has been employed by the Board since 1997. She has been assigned to Brandeis High School since 2000. At the close of the 2004-2005 school year, former Assistant Principal, Richard Weiss, issued Ms. Hochstadt an Unsatisfactory annual performance rating on the basis of alleged latenesses. Ms. Hochstadt's supervisor was acting under the mistaken belief that the 7:50 AM bell rang at 8:00 AM, and based the allegations of lateness on this misapprehension. Despite the fact that she was an experienced Biology and Science teacher, Ms. Hochstadt was denied AP/Honors classes; instead she was assigned outside of her tenure area to special education classes. Ms. Hochstadt was further discriminated against when the Board denied her a compensatory-time assignment for which she was qualified.

• The Principal at Brandeis High School also attempted to prevent Ms. Hochstadt from returning from an approved medical leave, retorting that although she may have had tenure in the system, she did not have tenure in the school. The Principal communicated his disdain for older teachers when he told Ms. Hochstadt that a teacher who cannot stand the entire day should retire. Despite the discriminatory treatment that she suffers, Ms. Hochstadt continues to be employed by the Board.

• PATRICK KANE is a social studies teacher presently assigned to Susan E. Wagner High School. Mr. Kane has been employed by the Board since 1981. Immediately prior to his current assignment, Mr. Kane was one of at least 3 teachers working at South Brooklyn Community High School, who were replaced by younger teachers. Prior to being replaced, Mr. Kane's pedagogical performance was superb. Each year, he received Satisfactory annual performance ratings and he received continued commendations for his work.

• LINDA KUZNESOFF-HERMAN is a 57 year old teacher who has been employed by the Board since 1980, and is presently teaching elementary students at P.S. 276K.

• Ms. Kuznesoff-Herman was denied assignment to the position of teacher of a 5 th grade gifted class, despite her 25 years' experience as a teacher, 4 years as a literacy staff developer, and 2 years as a literacy coach. Instead, the position was given to a younger teacher in her 30's, Dale Taylor-Campbell, who had no prior experience teaching gifted students. All of Ms. Kuznesoff-Herman's prior annual performance rating ratings were satisfactory. In fact, Ms. Kuznesoff-Herman trained Dale Taylor-Campbell when she arrived at the school.

• Ms. Kuznesoff-Herman has grieved this violation. Principal Jonathan Straughn made specific discriminatory comments toward Ms. Kuznesoff-Herman. For example, Principal Straughn told her that he would not rehire her as the literacy coach because he needed “new blood” for that position. Furthermore, in explaining why the position needed someone else, Principal Straughn told her she was at the stage where teachers become “battle weary.” Upon information and belief, Ms. Kuznesoff-Herman will be filing an individual charge of discrimination with the EEOC.

• BARBARA LAROCCA is a 55 year old school counselor who has been employed by the Board since 1972. She was assigned to P.S./M.S. 83 in 2005 and is presently on maternity leave. Ms. Larocca asserts that the Board discriminated against her on the basis of age in that she was shifted around a lot and was allowed no permanency in her teaching assignments. Although she was told that she could not return to her previous assignment due to purported “budgetary concerns,” it appears that the motivating factor was her age. Ms. Larocca asserts that all of the guidance counselors who have 13 or more years of experience are unassigned within the school.

• DAWN MANSON is a 57 year old Science teacher previously assigned to South Brooklyn Community High School (“SBCHS”). She has been employed by the Board since 1970. After providing satisfactory service at SBCHS for 21 years, she and 2 other teachers, Patrick Kane and Barry Greiper, were asked to go through the School Based Option transfer program. Ultimately all three older teachers were informed at the last minute that they had been replaced by more qualified teachers.

• The teachers who replaced Ms. Manson, Mr. Kane and Mr. Greiper were all younger than they and did not appear to possess the superior qualifications that the Board alleged. The new principal at SBCHS is Kate Garrison, who is in her 30's. When Ms. Manson ran into a former student a few months ago, the student told her that the director had indicated that the 3 teachers had been replaced because they and their teaching techniques were too old.

• BRUCE MORGAN is a 58 year old teacher who began working for the Board in 1970. Between 1980 and 2004, Mr. Morgan did not teach. When Mr. Morgan returned to teaching for the Board in 2004, he was assigned to P.S. 115K. At the close of the 2004-2005 school year, Mr. Morgan was issued an Unsatisfactory annual performance rating. Additionally, Mr. Morgan's name was placed on the Ineligible/Inquiry List, which precluded him from working within the Board. Although, Mr. Morgan was originally offered a Satisfactory annual performance rating if he transferred, he was ultimately discontinued from his position. Mr. Morgan is in the process of filing an individual charge with the EEOC, alleging discrimination based on age, sex and race.

• SIDNEY RUBINFIELD is a 56 year old teacher who has been employed by the Board of Education since 1971. Since 2004, Rubinfield has worked as a teacher of emotionally handicapped students at P.S. 721Q. Rubinfield was removed from the classroom and replaced by a younger teacher, Ann Toback. The Board falsely alleged that Rubinfield submitted IEPs late. The Board further discriminated against this teacher when it denied Rubinfield seniority assignments in all selections, withheld a Circular 6 assignment, and denied the teacher's assignment choice for this past September. Upon information and belief, younger teachers at the school were not charged or disciplined for same conduct alleged against Rubinfield.

• The Principal discriminated against this teacher in that she refused to talk to, assist, or even provide classroom keys to Rubinfield. The Principal even refused to assist when this teacher was trying to restrain an autistic student who was acting out, even though the Principal assisted younger teachers in similar situations. Additionally, the Principal has made multiple discriminatory comments aimed at this older teacher. For example, the Principal stated that young teachers knew the proper teaching theories, and that older teachers were stuck in the past. At a May 2005 meeting with Rubinfield, the Principal described Rubinfield's years of seniority as “dead years”. In response to the continued mistreatment of older teachers, the faculty of P.S. 721Q distributed and signed a petition against the Principal.

• Sidney Rubinfield filed an EEOC complaint against the Board in August 2005.

• ROBERT DAVID VOGEL is a 58 year old Technology teacher who was assigned to P.S. 53K and who has been employed by the Board since 1991. At the close of the 2004-2005 school year, Mr. Vogel was issued an Unsatisfactory annual performance rating and was charged with misconduct, pursuant to Education Law §3020-a. Mr. Vogel was reassigned out of the classroom, and was replaced by younger teachers. Both his Unsatisfactory annual performance rating appeal and § 3020-a case are pending. Mr. Vogel's prior performance was always previously deemed satisfactory.


• Based upon the foregoing facts, I respectfully request that the Equal Employment Opportunity Commission investigate the instant charge of age discrimination and issue a complaint of age discrimination based on both disparate impact and disparate treatment against the New York City Board (or “Department”) of Education.

Sworn to before me this
14 th day of November, 2005