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| Joseph McCarthy |
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We can now swing back to the 1950's when Joseph McCarthy was running a sideshow that forced many people to be condemned, made penniless and destitute, by criminalizing a person who had a connection to Communist thought or politics. Today, the NYC Department of Education places unwanted employees on the "Ineligible Inquiry List" or "No Hire List" which stigmatizes you forever, and before you have been found guilty of anything. Example: the case of Mary Ann Nicole Le Monda.
MARY ANN NICOLE LE MONDA, Petitioner, -against- CITY OF NEW YORK; NEW YORK CITY DEPARTMENT OF EDUCATION; JOEL I. KLEIN, CHANCELLOR of NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents. Index No. 108161/10
SUPREME COURT OF NEW YORK, NEW YORK COUNTY
2010 N.Y. Misc. LEXIS 6496; 2010 NY Slip Op 33612U
December 23, 2010, Decided
January 5, 2011, Filed
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
CORE TERMS: irrevocable, resignation, retirement, causes of action, agency's determination, cognizable, interview, resigned, teacher, arbitrary and capricious, rational basis, factual allegations, presently, teaching, letter dated, corporal punishment, resigning, daughter, tenured
JUDGES: HON. EILEEN A. RAKOWER, J.S.C.
OPINION BY: EILEEN A. RAKOWER
Petitioner Mary Ann Nicole Le Monda ("Petitioner") brings this Petition pursuant to CPLR Article 78 challenging the February 19, 2010 determination of respondent New York City Department of Education ("DOE"), which denied Petitioner's request to be removed from the DOE's Ineligible Inquiry List.
Petitioner states that she was first employed by DOE in September 1980 as "a teacher of speech and hearing handicapped," and served satisfactorily in that position for 16 years. On or around September 15, 1999, she "voluntarily resigned from her employment, for personal reasons." Petitioner further avers that, although she had been reassigned from her duties pending an investigation at the time of her resignation, "she was not aware of the nature of any allegations against her, no formal disciplinary charges were pending against her, and Petitioner understood that she was not irrevocably resigning but rather was resigning with the opportunity to be eligible for employment with DOE in the future."
Petitioner states that she subsequently made inquiries about returning to teach with DOE, and received a commitment to be hired for a position with DOE in September of 2009. However, shortly after beginning in her new position, Petitioner was informed by letter dated October 12, 2009 by DOE's Office of Personnel Investigation ("OPI") that DOE was unable to process her application because she appears on the DOE's invalid list. The letter further advised that Petitioner was placed on the DOE's Ineligible List on January 4, 2001 "for Corporal Punishment," and that she must be removed from the list before her application can be processed.
By e-mail dated October 14, 2009 OPI provided Petitioner with documents to be completed pursuant to OPI's background investigation, and stated that an interview was scheduled for October 16, 2009. OPI advised Petitioner that she could be accompanied at the interview by a representative of her choice, and that she could provide any written statements or documents which refute or explain the basis of OPI's ineligibility determination.
At her interview, Petitioner submitted a letter to OPI, wherein she explained that, although unaware of what she was being charged with and not guilty of any wrongdoing, she resigned "because she felt uncomfortable and frustrated about being falsely accused and maligned." She further stated that the decision to resign was also motivated by her mother's deteriorating mental health, which further added to her stress. Petitioner also alleged that the "false incident was manufactured" in order give Petitioner's teaching position to the daughter of a close friend of the Special Education Supervisor. Petitioner also submitted support letters from Frank Uzzo, Principal of the school where Petitioner worked (Assistant Principal while Petitioner was there); and Elizabeth J. Sheahan, retired Supervisor of Speech. Mr. Uzzo stated that he was able to observe Petitioner during the 1997-1998 academic year, and noted Petitioner's professionalism. Ms. Sheahan stated that in the 22 years that she has known Petitioner, Petitioner has shown herself to be an excellent teacher who possesses good moral character. Ms. Sheahan further stated that Petitioner's termination was a "gross miscarriage of justice," and that Petitioner was "pushed out" of her tenured position "in order to make room for the newly licensed daughter ... of the Special Education Supervisor's best friend!!!"
Petitioner states that in December 2009, her attorney was advised by counsel for DOE that Petitioner should not have any problem being reinstated for eligibility with DOE.
However, by letter dated February 19, 2010, DOE denied Petitioner's application. DOE explained the basis for its decision as follows:
Your application is denied due to the underlying facts and circumstances to an irrevocable retirement agreement outlined in the Pre-Charge Stipulation of Settlement from the Office of Legal Services (OLS). In summary the facts include a serious corporal punishment allegation against you while you were a tenured teacher at MS 180X. At the time of your separation from service in 1999, you resigned your position before the Pre-Charge Stipulation of Settlement could be executed. Thus you chose to avoid either a hearing or resolving the facts surrounding those allegations and your retirement was deemed irrevocable. As a result you are not permitted to return to the DOE.
Petitioner subsequently commenced this Article 78 proceeding, claiming that DOE's February 19, 2010 decision is arbitrary and capricious.
DOE cross-moves to dismiss the petition pursuant to CPLR §3211(a)(7). DOE asserts that its decision was rationally based and therefore must be upheld.
It is well settled that the "judicial review of an administrative determination is confined to the 'facts and record adduced before the agency'." (Matter of Yarbough v. Franco, 95 N.Y.2d 342, 347, 740 N.E.2d 224, 717 N.Y.S.2d 79 (2000), quoting Matter of Fanelli v. New York City Conciliation & Appeals Board, 90 A.D.2d 756, 455 N.Y.S.2d 814 (1st Dept. 1982). The reviewing court may not substitute its judgment for that of the agency's determination but must decide if the agency's decision is supported on any reasonable basis. (Matter of Clancy -Cullen Storage Co. v. Board of Elections of the City of New York, 98 A.D.2d 635, 636, 469 N.Y.S.2d 391 (1st Dept. 1983)). Once the court finds a rational basis exists for the agency's determination, its review is ended. (Matter of Sullivan County Harness Racing Association, Inc. v. Glasser, 30 N.Y. 2d 269, 277-278, 283 N.E.2d 603, 332 N.Y.S.2d 622 (1972)). The court may only declare an agency's determination "arbitrary and capricious" if it finds that there is no rational basis for the determination. (Matter of Pell v. Board of Education, 34 N.Y.2d 222, 231, 313 N.E.2d 321, 356 N.Y.S.2d 833 1974).
CPLR §3211 states, in relevant part:
(a) a party may move for judgment dismissing one or more causes of action asserted against him on the ground that:
(7) the pleading fails to state a cause of action
The court, on a motion to dismiss an action pursuant to CPLR 3211(a)(7), must accept the factual allegations of the pleading as true, accord the plaintiff all favorable inferences which may be drawn therefrom, and determine only whether the facts as alleged fit within any cognizable legal theory (Leon v. Martinez, 84 NY2d 83, 638 N.E.2d 511, 614 N.Y.S.2d 972 1994). The sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law (Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 372 N.E.2d 17, 401 N.Y.S.2d 182(1977)).
Here, DOE has failed to demonstrate its entitlement to dismissal pursuant to CPLR §3211. There is nothing in the record presently before the Court that would permit it to conclude, as a matter of law, that Petitioner effected an irrevocable resignation from her teaching position in 1999. Chancellor's Regulation C-205(24) provides that an individual's resignation or retirement is permanent (i.e., irrevocable) where he or she either (1) was dismissed pursuant to Education Law §3020-a; or (2) had charges pending. Neither circumstance exists in the Petition herein. Here, Petitioner was being investigated for alleged misconduct, but no formal charges were pending against her at the time of her resignation. Thus, without any evidence that Petitioner agreed to effect an irrevocable resignation or retirement in the record presently before the Court, Plaintiff has stated a cognizable claim that DOE's outright denial of Petitioner's application based upon an "irrevocable retirement agreement" was improper.
Wherefore it is hereby
ORDERED that DOE's cross-motion to dismiss is denied; and it is further
ORDERED that DOE shall serve its answer upon Petitioner within 30 days of receipt of a copy of this Order with notice of entry thereof; and it is further
ORDERED that reply papers, if any, shall be served by Petitioner within 14 days of service of DOE's answer; and it is further
ORDERED that Petitioner may re-notice this matter in accordance with CPLR §7804(f), returnable to the Motion Support Office, Room 130, 60 Centre Street.
This constitutes the decision and order of the court. All other relief requested is denied.
Dated: December 23, 2010
/s/ Eileen A. Rakower
EILEEN A. RAKOWER, J.S.C.
SUPREME COURT OF NEW YORK, NEW YORK COUNTY
2010 N.Y. Misc. LEXIS 6496; 2010 NY Slip Op 33612U
December 23, 2010, Decided
January 5, 2011, Filed
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
CORE TERMS: irrevocable, resignation, retirement, causes of action, agency's determination, cognizable, interview, resigned, teacher, arbitrary and capricious, rational basis, factual allegations, presently, teaching, letter dated, corporal punishment, resigning, daughter, tenured
JUDGES: HON. EILEEN A. RAKOWER, J.S.C.
OPINION BY: EILEEN A. RAKOWER
Petitioner Mary Ann Nicole Le Monda ("Petitioner") brings this Petition pursuant to CPLR Article 78 challenging the February 19, 2010 determination of respondent New York City Department of Education ("DOE"), which denied Petitioner's request to be removed from the DOE's Ineligible Inquiry List.
Petitioner states that she was first employed by DOE in September 1980 as "a teacher of speech and hearing handicapped," and served satisfactorily in that position for 16 years. On or around September 15, 1999, she "voluntarily resigned from her employment, for personal reasons." Petitioner further avers that, although she had been reassigned from her duties pending an investigation at the time of her resignation, "she was not aware of the nature of any allegations against her, no formal disciplinary charges were pending against her, and Petitioner understood that she was not irrevocably resigning but rather was resigning with the opportunity to be eligible for employment with DOE in the future."
Petitioner states that she subsequently made inquiries about returning to teach with DOE, and received a commitment to be hired for a position with DOE in September of 2009. However, shortly after beginning in her new position, Petitioner was informed by letter dated October 12, 2009 by DOE's Office of Personnel Investigation ("OPI") that DOE was unable to process her application because she appears on the DOE's invalid list. The letter further advised that Petitioner was placed on the DOE's Ineligible List on January 4, 2001 "for Corporal Punishment," and that she must be removed from the list before her application can be processed.
By e-mail dated October 14, 2009 OPI provided Petitioner with documents to be completed pursuant to OPI's background investigation, and stated that an interview was scheduled for October 16, 2009. OPI advised Petitioner that she could be accompanied at the interview by a representative of her choice, and that she could provide any written statements or documents which refute or explain the basis of OPI's ineligibility determination.
At her interview, Petitioner submitted a letter to OPI, wherein she explained that, although unaware of what she was being charged with and not guilty of any wrongdoing, she resigned "because she felt uncomfortable and frustrated about being falsely accused and maligned." She further stated that the decision to resign was also motivated by her mother's deteriorating mental health, which further added to her stress. Petitioner also alleged that the "false incident was manufactured" in order give Petitioner's teaching position to the daughter of a close friend of the Special Education Supervisor. Petitioner also submitted support letters from Frank Uzzo, Principal of the school where Petitioner worked (Assistant Principal while Petitioner was there); and Elizabeth J. Sheahan, retired Supervisor of Speech. Mr. Uzzo stated that he was able to observe Petitioner during the 1997-1998 academic year, and noted Petitioner's professionalism. Ms. Sheahan stated that in the 22 years that she has known Petitioner, Petitioner has shown herself to be an excellent teacher who possesses good moral character. Ms. Sheahan further stated that Petitioner's termination was a "gross miscarriage of justice," and that Petitioner was "pushed out" of her tenured position "in order to make room for the newly licensed daughter ... of the Special Education Supervisor's best friend!!!"
Petitioner states that in December 2009, her attorney was advised by counsel for DOE that Petitioner should not have any problem being reinstated for eligibility with DOE.
However, by letter dated February 19, 2010, DOE denied Petitioner's application. DOE explained the basis for its decision as follows:
Your application is denied due to the underlying facts and circumstances to an irrevocable retirement agreement outlined in the Pre-Charge Stipulation of Settlement from the Office of Legal Services (OLS). In summary the facts include a serious corporal punishment allegation against you while you were a tenured teacher at MS 180X. At the time of your separation from service in 1999, you resigned your position before the Pre-Charge Stipulation of Settlement could be executed. Thus you chose to avoid either a hearing or resolving the facts surrounding those allegations and your retirement was deemed irrevocable. As a result you are not permitted to return to the DOE.
Petitioner subsequently commenced this Article 78 proceeding, claiming that DOE's February 19, 2010 decision is arbitrary and capricious.
DOE cross-moves to dismiss the petition pursuant to CPLR §3211(a)(7). DOE asserts that its decision was rationally based and therefore must be upheld.
It is well settled that the "judicial review of an administrative determination is confined to the 'facts and record adduced before the agency'." (Matter of Yarbough v. Franco, 95 N.Y.2d 342, 347, 740 N.E.2d 224, 717 N.Y.S.2d 79 (2000), quoting Matter of Fanelli v. New York City Conciliation & Appeals Board, 90 A.D.2d 756, 455 N.Y.S.2d 814 (1st Dept. 1982). The reviewing court may not substitute its judgment for that of the agency's determination but must decide if the agency's decision is supported on any reasonable basis. (Matter of Clancy -Cullen Storage Co. v. Board of Elections of the City of New York, 98 A.D.2d 635, 636, 469 N.Y.S.2d 391 (1st Dept. 1983)). Once the court finds a rational basis exists for the agency's determination, its review is ended. (Matter of Sullivan County Harness Racing Association, Inc. v. Glasser, 30 N.Y. 2d 269, 277-278, 283 N.E.2d 603, 332 N.Y.S.2d 622 (1972)). The court may only declare an agency's determination "arbitrary and capricious" if it finds that there is no rational basis for the determination. (Matter of Pell v. Board of Education, 34 N.Y.2d 222, 231, 313 N.E.2d 321, 356 N.Y.S.2d 833 1974).
CPLR §3211 states, in relevant part:
(a) a party may move for judgment dismissing one or more causes of action asserted against him on the ground that:
(7) the pleading fails to state a cause of action
The court, on a motion to dismiss an action pursuant to CPLR 3211(a)(7), must accept the factual allegations of the pleading as true, accord the plaintiff all favorable inferences which may be drawn therefrom, and determine only whether the facts as alleged fit within any cognizable legal theory (Leon v. Martinez, 84 NY2d 83, 638 N.E.2d 511, 614 N.Y.S.2d 972 1994). The sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law (Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 372 N.E.2d 17, 401 N.Y.S.2d 182(1977)).
Here, DOE has failed to demonstrate its entitlement to dismissal pursuant to CPLR §3211. There is nothing in the record presently before the Court that would permit it to conclude, as a matter of law, that Petitioner effected an irrevocable resignation from her teaching position in 1999. Chancellor's Regulation C-205(24) provides that an individual's resignation or retirement is permanent (i.e., irrevocable) where he or she either (1) was dismissed pursuant to Education Law §3020-a; or (2) had charges pending. Neither circumstance exists in the Petition herein. Here, Petitioner was being investigated for alleged misconduct, but no formal charges were pending against her at the time of her resignation. Thus, without any evidence that Petitioner agreed to effect an irrevocable resignation or retirement in the record presently before the Court, Plaintiff has stated a cognizable claim that DOE's outright denial of Petitioner's application based upon an "irrevocable retirement agreement" was improper.
Wherefore it is hereby
ORDERED that DOE's cross-motion to dismiss is denied; and it is further
ORDERED that DOE shall serve its answer upon Petitioner within 30 days of receipt of a copy of this Order with notice of entry thereof; and it is further
ORDERED that reply papers, if any, shall be served by Petitioner within 14 days of service of DOE's answer; and it is further
ORDERED that Petitioner may re-notice this matter in accordance with CPLR §7804(f), returnable to the Motion Support Office, Room 130, 60 Centre Street.
This constitutes the decision and order of the court. All other relief requested is denied.
Dated: December 23, 2010
/s/ Eileen A. Rakower
EILEEN A. RAKOWER, J.S.C.
From March 25, 2012:
Just Asking: Is Mayor Bloomberg's No Hire List A Return To McCarthyism?
Why does the UFT and NYSUT allow the infamous "No Hire", "Ineligible" or "Inquiry" List to continue?
This list seems to be taken from the 1950's, where Joe McCarthy placed people who were communists, or he thought they were communists.
This is my understanding of the "Ineligible/No Hire List":
Whenever a complaint is lodged against an employee, whether or not it is true or proven, or an employee gets a U rating, this person gets a code number (83?) next to his or her name at the Office of Personnel Investigation (OPI) now under the supervision of Michelle Nacht and "CY" the former principal of the Washington Heights trailers ("rubber room") who now is in charge of the "rubber room" on the 12th floor of 51 Chambers Street.
I have been asking how and why this list exists, for years. Approximately 5.
No one at the DOE, UFT, or NYSUT, have given me a good explanation.
In the case of Philomena Brennan (see interim order below of New York State Supreme Court Judge Alice Schlesinger) Judge Schlesinger ordered Theresa Europe to give her how people get put onto the list and how these individuals get off. Ms. Europe immediately took Ms. Brennan off the list rather than give any information, which made this part of the Article 78 moot.
I think we need answers.
Betsy Combier
betsy.combier@gmail.com
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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In the Matter of the Application of PHILOMENA BRENNAN, Petitioner, Index No. 112977/09 Motion Seq. No. 001 For An Order and Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, -against-NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent.
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SCHLESINGER, J.:
Before this Court is an Article 78 petition wherein the petitioner Philomena Brennan is asking the Court to grant relief vis-a-vis two issues. One issue has to do with her desire to withdraw her resignation, as a teacher with the New York City Department of Education. The resignation occurred on September 5,2007. The second relief sought is her removal from an Ineligible/lnquiry list where she was placed on February 4,2009.
Some background is necessary. Ms. Brennan was a tenured teacher at that time she was assigned, in 2006 to Frederick Douglas Academy in Brooklyn. At some point, at the end of the school year, she indicates that she was approached by the principal Tamika Matheson who gave her an unsatisfactory rating, the first one she had ever received. Again, according to the petitioner a discussion between the principal and herself was held and pursuant to that discussion, Ms. Brennan decided to formally resign from her teaching position. In the ensuing period she did some substitute teaching. In January of2009, after a discussion with others, she decided to take steps to withdraw her resignation.
Again, according to Ms. Brennan, on January 30,2009 she returned to the Frederick Douglas Academy in order to talk to the principal. She said she saw the principal, was escorted to her office and told to wait a few moments and about ten minutes later she was arrested, handcuffed and charged with the Misdemeanor of Trespass and the Violation of Harassment.
Pursuant to rules, which Ms. Brennan knew, she immediately reported the arrest to the Department. Then, as a result of the arrest, she was placed on an Ineligible/lnquiry list. The presence of one's name on the list makes that person ineligible for rehire or for a teaching assignment. On June 10,2009 all charges were dismissed against Ms. Brennan. Shortly thereafter, either the next day or very soon after, Ms. Brennan made a formal request to have her name taken off this list. At the time she made that request she produced proof that all charges were dismissed. To this day, May 12, 2010, Ms. Brennan still has not been informed of whether or not her request to have her name struck from the list has been decided. On June 21, 2009 and again in January 2010, Ms. Brennan had what could be categorized as a hearing, but in actuality consisted of a short meeting wherein she again presented documentation that the charges against her were dismissed in their entirety.
She has also made attempts to withdraw her resignation. However, with regard to that relief, there is a condition for such withdrawal, the condition being that the teacher in petitioner's status must show the Department that there has been a written request to fill a vacancy by a regional manager of the department. In other words, it is not simply a ministerial act for the Chancellor to permit a resigned teacher to withdraw that resignation. There is a condition, as stated above, that first must be met. But of course, as petitioner argues, it is impossible for Ms. Brennan to meet this condition as long as she remains on the Ineligible list.
The respondent argues that with regard to the petitioner's request to have her name struck from the Ineligible list, that request via her Article 78 Petition is time barred. Counsel urges that the four month statute began running on February 4, 2009, when she was first placed on the list. That would mean that the moment that the charges were dismissed on June 9, she would have been barred from asking to have her name removed from the list. Frankly, this is an argument that makes no sense whatsoever. The petitioner pursuant to the responsibilities of a teacher knew that she had to report an arrest and did so. She was not legally aggrieved by her placement on the list in February because the charges were still pending. The time that she became aggrieved was after the charges were dismissed and after she made a demand to have her name removed from the list. Even then she was not yet aggrieved, because she was never given a decision denying her request to remove her name from the list. Therefore, she was not time barred in June 2009 when she made her first request and even though this Court does not have to reach this issue, she is not even time barred now. And certainly when she brought her petition on September 14, 2009 she was not time barred. (Biondo v. New York State Board of Parole, 60 NY2d 832 (1983)).
With regard to the withdrawal of her resignation, a resolution of that issue must await a determination of the Ineligible list issue. Therefore, the Court is directing the following.
First, the Department of Education is ordered to make a decision with regard to the continuation of Ms. Brennan's name on the Ineligible list within thirty days from today or by June 16, 2010 and notify petitioner promptly of this. The Department has no right to keep Ms. Brennan in a perpetual state of limbo by not making this decision. If the decision is adverse to her, clear reasons must be stated. I am adjourning this matter until July 7,2010 at 2:15 p.m. for further consideration of what relief is sought after a decision has been reached.
This decision constitutes the interim order of this Court
MAY 1 2 2010
J·O
ALICE SCHLESINGER
