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Sunday, February 3, 2013

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


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

Yes. Glenn Storman started this proceeding in 2006. Storman, a teacher at the DOE for approximately 30 years, challenged an unsatisfactory rating he received resulting from allegations of sexual misconduct and corporal punishment made in retaliation for his verbally reprimanding a student in 2004. Storman's teaching career has been seriously impacted by these false allegations. In an Order dated October 26, 2007, Justice Marcy Friedman granted the petition and remanded the case to DOE for further findings of fact. After a second hearing, in a letter dated June 10, 2008, DOE upheld Storman's unsatisfactory rating. Storman then commenced a second Article 78 proceeding challenging the result of the second hearing. In an Order dated May 11, 2009, the Court granted Storman's petition because "it was irrational for the DOE to conclude that the alleged conduct amounted to corporal punishment" and "the penalty imposed was excessive and shocking to the conscience." This Court ordered that the unsatisfactory rating be annulled and that "this matter [be] remitted to [DOE] for further proceedings not inconsistent with the court's decision."
The purpose of remitting the case to DOE was for the DOE and the UFT, to take the appropriate steps to remedy the consequences of the underlying false allegations so that Storman would be properly compensated and his employment status restored. Upon remittal, the unsatisfactory rating was annulled, but no further steps were taken to compensate Storman or to remedy his employment situation. As a result, Storman moved to hold DOE in contempt. In an Order dated November 19, 2010, this Court held DOE in contempt for its willful and contumacious failure to comply with the Judgment.
The City appealed and in an Order dated May 31, 2012, the Appellate Division vacated the Contempt Order on the ground that the Judgment did not contain a "clear and unequivocal mandate." See Storman v NYC Dep't of Educ., 95 AD3d 776, 777, 945 N.Y.S.2d 281 (1st Dept 2012). Nevertheless, the Appellate Division granted Storman leave to clarify the Judgment to allow the Supreme Court the opportunity to clarify its order.
Justice Shirley Werner Kornreich, in a rare display of judicial anger, ruled that "By April 5, 2013, DOE shall do the following, pursuant to Article 21H of the CBA: (1) remove all references to the underlying false accusations from Storman's personnel file; and (2) restore back pay, with interest, that Storman did not receive on account of the underlying false accusations, including any seniority salary adjustments and lost pension benefits. If a dispute arises between the parties before such date, the parties are to promptly contact the Court, and if the parties cannot agree on the proper amount of back pay owed to Storman, Storman is granted leave to move to have such calculation referred to a Special Referee to hear and report. Finally, if DOE fails to comply with this Order in good faith, which, at a minimum, shall include an in-person meet and confer with Storman about back pay, Storman has leave to move for contempt, as DOE can no longer maintain that its mandate is not clear and unequivocal."
May 28, 2009

Teacher Resists a Charge of Corporal Punishment

When Glenn Storman, a guidance counselor at Public School 212 in Gravesend, Brooklyn, came across an unruly student cursing at a substitute teacher in 2004, he ordered the boy to “zip it” and brandished a rolled-up piece of paper, thinking that would be the last he heard of the encounter.
But five years later, Mr. Storman, 57, is embroiled in a legal dispute over allegations that he committed corporal punishment. A 27-year veteran of the school system, Mr. Storman denies hitting the student and is seeking to erase an unsatisfactory rating that a principal gave him. The Department of Education, however, has defended the rating, arguing that Mr. Storman did indeed touch the student, who was in the fifth grade.
The case shows the difficulties teachers can face in disputing the ratings they receive each year from principals. The ratings can determine whether they are eligible for lucrative teaching opportunities outside of the normal school year. The case also sheds light on the fine lines of interpretation surrounding the question of corporal punishment: Did Mr. Storman’s paper brush against the student? If so, was that intentional, and did it rise to the level of corporal punishment?
Teachers who receive unsatisfactory ratings are allowed to appeal to a court, and this month a judge in Manhattan ruled in Mr. Storman’s favor, saying she did not find evidence of corporal punishment. The unsatisfactory rating, wrote the judge, Acting Supreme Court Justice Shirley Werner Kornreich, “shocks the conscience, was arbitrary, capricious and an abuse of discretion.”
The Department of Education said last week that it was reviewing the decision and declined to comment further.
In October 2004, Mr. Storman entered a special education classroom at P.S. 212 after hearing a student yelling. When he stepped into the room, he saw the student on his knees on a chair cursing at the teacher. Holding the piece of paper in his hand, Mr. Storman recalled in an interview, he told the student to be quiet. The student moved forward as he reprimanded him, but Mr. Storman said he did not remember coming into contact with him.
Mr. Storman said he would not have hit the student because he had experience with special education students and did not believe force was the best way of resolving disputes.
“I don’t need to do anything more than to look at them and say, ‘Listen, you know to stop right now,’ ” he said.
Mr. Storman said he had been carrying the rolled-up paper while walking down the hallway. In previous statements to school officials he said he “may have touched” the student’s mouth with the paper, according to the court ruling. He says now that he does not believe that was so.
The boy’s father complained to the school’s principal, who asked for an inquiry, and in 2005, Mr. Storman, who is still a guidance counselor at P.S. 212, received an unsatisfactory rating in his annual review. He appealed, but the Department of Education stood by its determination that he had committed corporal punishment.
Mr. Storman appealed again in 2006, seeking $100,000 in compensation because, he said, the unsatisfactory rating prevented him from getting work as a summer school teacher and a tutor, work which he estimates had added about $25,000 a year to his income. He has also filed a lawsuit in federal court, which is still pending.
Mr. Storman was given another unsatisfactory rating in 2008 after his principal said he had inappropriately yelled at a student, according to Mr. Storman’s lawyer, John. C. Klotz. Mr. Storman is also appealing that rating.
An investigation by the Department of Education’s Office of Special Investigations ultimately substantiated the charges of corporal punishment. But in an apparent change of heart, the investigator who wrote that report, Dennis Boyles, testified during the appeal process that he did not believe Mr. Storman’s actions rose to the level of corporal punishment, according to the May 11 ruling.
Mr. Boyles testified in 2006 that the encounter constituted “inappropriate physical contact” but not corporal punishment, the court ruling said. Last year, Mr. Boyles reiterated his statement that he did not believe Mr. Storman’s actions amounted to corporal punishment, but added that Mr. Storman inappropriately touched the student with the paper, according to the ruling.
The Department of Education defines corporal punishment as “any act of physical force upon a pupil for the purpose of punishing that pupil.”
Mr. Boyles stated in his report that three students in the classroom at the time of the encounter could not recall seeing the paper hit the student’s face. But the fifth grader whom Mr. Storman had reprimanded told the investigator that Mr. Storman had brushed the paper against his lips and embarrassed him, though he added that he had not been physically injured.
The principal of P.S. 212 said at a hearing last year that she had recommended that Mr. Storman be given the unsatisfactory rating because of Mr. Boyles’s findings, which she believed substantiated the corporal punishment charges, according to the ruling.
Justice Kornreich called the Department of Education’s actions “irrational.”
“Nothing in the record supports the D.O.E.’s conclusion that Mr. Storman committed a substantiated act of corporal punishment,” she wrote, ordering that the unsatisfactory rating be annulled.
Mr. Storman said in an interview that the Department of Education had turned a “pebble” into a “mountain worth of wrongdoing.”
“This was a long hard, road,” he said, “and a costly one to me.”

How NYSUT Attorneys Fail: Cohn v New York City Department of Education

Richard Casagrande
 re-posted from
Betsy Combier, Editor

In an effort to overturn a "U" rating for NYC teacher Mitchell Cohn, NYSUT, (New York State United Teachers) Attorneys did not mention the case of Elentuck v Green in the Article 78 petition. The Kings County Supreme Court and 2nd Department Appellate Division ruled that there are no facts in observations, and observations are not binding and nonfinal determinations.

In the case below, NYSUT defended teacher Mitchell Cohn when he asked the court to review the circumstances of his "U" rating.

NYSUT used the appropriate Collective Bargaining Agreement terms and other Union protections in their defense, but they never brought in, as far as I can see, the case Elentuck v Green. This case as ruled on by both the Kings' County Supreme Court and 2nd Department Appellate Division, and both courts substantiated the decision that:

"the court properly denied access to all three categories of reports as intra-agency materials which are not statistical or factual tabulations or data, instructions to staff that affect the public, or final agency policy or determinations (see, Public Officers Law § 87 (2) (g)). Chancellor's Committee reports consist of findings and recommendations regarding personnel actions to be taken by the Board of Education. The reports are prepared to assist the Chancellor, and are not binding. Similarly, hearing panel reports relating to Education Law § 3020-a consist of findings and recommendations subject to challenge by an appeal to the State Commissioner of Education, are not binding on either the Board of Education or the Commissioner of Education, and do not constitute final agency determinations. Accordingly, the requested Chancellor's Committee reports and hearing panel reports are predecisional material exempt from disclosure under Public Officers Law § 87 (2) (g) (see, Matter of McAulay v Board of Educ., 61 A.D.2d 1048, affd48 N.Y.2d 659; Matter of Herald Co. v School Dist., 104 Misc.2d 1041, 1046-1047).
The lesson observation reports consist solely of advice, criticisms, evaluations, and recommendations prepared by the school assistant principal regarding lesson preparation and classroom performance. As such, these reports fall squarely within the protection of Public Officers Law § 87 (2) (g) (see, Matter of Town of Oyster Bay v Williams, 134 A.D.2d 267, 268)." 
NYSUT and the UFT did argue Elentuck when Mike Mulgrew tried to keep TDR's without names, in the Mulgrew Article 78:
"The UFT's reliance on Matter of Elentuck v Green (202 AD2d 425 [2d Dept 1994]), in which the Court held that it was proper to withhold lesson observation reports, is misplaced. The Court there held that lesson observation reports are not statistical or factual data as they consist solely of advice, criticisms, evaluations and recommendations prepared by the school's assistant principal. In the present case, unlike in Elentuck, the determination by the DOE that the TDRs are statistical data has a rational basis. Unlike lesson observation reports, which are individual opinions of a teacher's lesson, the unredacted TDRs are a compilation of data regarding students' performance."

Therefore, NYSUT's effort to defend Cohn only on procedural errors in violation of various rules held within the CBA, etc., and not going to the substance of the "U" ratings as nonfinal, not factual opinions, the court saw no reason to overturn the "U" and give the Petitioner, here Mitchell Cohn, a win.

I am not an attorney and I dont give legal advice, but this omission of Elentuck v Green in the petition makes no sense. I have not read the Memorandum of Law in this case, maybe it is there. But Judge Schlesinger did not bring up Elentuck in her decision.

Just Asking.

Betsy Combier

Matter of Cohn v Board of Educ. of the City Sch. Dist. of the City of N.Y.
2013 NY Slip Op 00418
Decided on January 29, 2013
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before
publication in the Official Reports.
Decided on January 29, 2013
Andrias, J.P., Sweeny, DeGrasse, Freedman, Richter, JJ.

9078 110409/10
In re Mitchell Cohn, Petitioner-Appellant, —
Board of Education of the City School District of the City of New York, et al.,

Richard E. Casagrande, New York (Ariana A. Gambella of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Fay Ng of counsel), for respondents.

Order and judgment (one paper), Supreme Court, New York County (Alice Schlesinger, J.), entered October 27, 2011, which denied the petition seeking, inter alia, to annul the determination of respondents denying petitioner's appeal of an unsatisfactory rating (U-rating) for the 2006-2007 school year and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without

Petitioner has failed to show that the U-rating was arbitrary and capricious, or made in bad faith. The detailed observations in reports prepared by the principal and two assistant principals, describing petitioner's poor performance in class management, engagement of students, and lesson planning,
provided a rational basis for the rating (see Murnane v Department of Educ. of the City of N.Y., 82 AD3d 576 (1st Dept 2011); Batyreva v New York City Dept. of Educ., 50 AD3d 283 (1st Dept 2008). While petitioner complains that he did not receive pre-observation conferences prior to every classroom observation, he has not demonstrated that the U-rating was made in violation of lawful procedure or anysubstantial right (see Matter of Brown v Board of Educ. of the City School Dist. of the City of N.Y., 89 AD3d 486 (1st Dept 2011); Matter of Munoz v Vega, 303 AD2d 253, 254 (1st Dept 2003); compare Matter of Kolmel v City of New York, 88 AD3d 527 (1st Dept 2011). To the contrary, the record demonstrates that, after petitioner received a U-rating at the end of the prior school year, he was provided with a professional development plan at the start of the 2006-2007 and, throughout the year, received professional support and had a series of classroom observations by the principal and two assistant principals, each one documented by a detailed letter to him noting areas of improvement and making specific recommendations for addressing continuing deficiencies.


Ineffective Assistance of Counsel - Wikipedia

LII Ineffective Assistance of Counsel