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Saturday, March 22, 2014

Probationary Teacher Loses U-Rating Appeal (2010)

The First Department does not agree that a probationary teacher may sue under Section 1983 and "Stigma Plus" claims in order to overturn a U-rating

Kahn v New York City Dept. of Educ.
2010 NY Slip Op 09168 [79 AD3d 521]
December 14, 2010
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, February 16, 2011

Leslie Kahn, Respondent,
New York City Department of Education et al., Appellants.
[*1] Michael A. Cardozo, Corporation Counsel, New York (Julian L. Kalkstein of counsel), for appellants. New York Civil Liberties Union Foundation, New York (Adriana C. PiÑon of counsel), for respondent. James R. Sandner, New York (Wendy M. Star of counsel), for New York State United Teachers, amicus curiae. Charity M. Guerra, Brooklyn, for Council of School Supervisors & Administrators, amicus curiae.
Order, Supreme Court, New York County (Alice Schlesinger, J.), entered on or about September 8, 2009, which denied respondents' motion to dismiss the petition, unanimously reversed, on the law, without costs, and the motion granted.
Petitioner challenges the termination of her probationary employment as a social worker, and asserts due process claims pursuant to 42 USC § 1983. She began working for the Department of Education in February 2005 as a social worker, spending 2½ years at Williamsburg High School. In July 2007 she switched to Khalil Gibran International Academy, where respondent Salzberg, as Interim Acting Principal, gave her a rating of unsatisfactory in an evaluation on December 19, 2007. Two days later, the Superintendent wrote to petitioner, denying her a certification of completion of probation, and advising that her service would be terminated effective January 25, 2008, and that she was entitled to administrative review under the collective bargaining agreement.
Petitioner proceeded with an administrative appeal on January 3, 2008. Following an administrative hearing, the Department of Education, by letter dated May 9, reaffirmed the denial of petitioner's certification of completion of probation. On or about September 9, 2008, [*2]petitioner commenced this proceeding.
Petitioner's claims, which are equitable in nature, are not barred by her failure to file a notice of claim pursuant to Education Law § 3813 (1), which is only required when money damages are sought (Ruocco v Doyle, 38 AD2d 132 [1972]).
However, her claims are time-barred. A petition to challenge the termination of probationary employment on substantive grounds must be brought within four months of the effective date of termination (see CPLR 217 [1]; Matter of Andersen v Klein, 50 AD3d 296 [2008]; Matter of Lipton v New York City Bd. of Educ., 284 AD2d 140 [2001]). The time to commence such a proceeding is not extended by the petitioner's pursuit of administrative remedies (Matter of Strong v New York City Dept. of Educ., 62 AD3d 592 [2009], lv denied 14 NY3d 704 [2010]). Petitioner failed to commence this proceeding within four months of the effective date of her termination. Although the notice of termination was procedurally defective in that she was not given the requisite 60 days' prior notice of discontinuance, as required by Education Law § 2573 (1) (a), that defect does not invalidate the discontinuance or render the statute of limitations inapplicable; at best, it would have entitled petitioner to additional back pay, had she served a notice of claim and sought money damages (see Matter of Pascal v Board of Educ. of City School Dist. of City of N.Y., 100 AD2d 622, 624 [1984]).
Nor does petitioner have a valid claim for deprivation of civil rights under 42 USC § 1983. Such a claim requires an allegation that the proponent was deprived of a property or liberty interest without due process of law (see Ciambriello v County of Nassau, 292 F3d 307, 313 [2d Cir 2002]). A probationary teacher does not have a property right in his or her position (see Pinder v City of New York, 49 AD3d 280 [2008]; Donato v Plainview-Old Bethpage Cent. School Dist., 96 F3d 623, 629-630 [2d Cir 1996], cert denied 519 US 1150 [1997]). The process provided for in the collective bargaining agreement did not create such an interest (see Sealed v Sealed, 332 F3d 51, 56 [2d Cir 2003]). Moreover, petitioner was not deprived of a liberty interest by the "stigma" arising from allegations of poor work performance. To establish such a "stigma plus" claim, a petitioner must prove "some action by the [agency] imposing a tangible and material burden, and . . . [the] utterance of a false statement that damaged his reputation in connection with the burdensome action" (O'Connor v Pierson, 426 F3d 187, 195 [2d Cir 2005]). While Salzberg's accusations against petitioner may "go to the heart of [petitioner's] professional competence and damage her professional reputation to such an extent as to severely impede her ability to continue in the education field in a supervisory capacity" (Donato, 96 F3d at 633), [*3]petitioner's "stigma plus" claim is defeated by the availability of a post-termination administrative hearing (see Segal v City of New York, 459 F3d 207 [2d Cir 2006]). Concur—Tom, J.P., Saxe, Moskowitz, DeGrasse and Abdus-Salaam, JJ.

Eva Moskowitz' Charter School Empire Throws Special Needs Students Out, Tapes Reveal

I still have a question which no one has ever answered. When my youngest daughter was at NEST+M on Houston Street, we heard that Eva Moskowitz' son was going to be attending. Why did Eva give NEST+M $250,000 when she left City Council? And then her son was given a seat in NEST+M. Why did she not give him a seat in her charter kingdom? How was the money donated to NEST+M, and where was it used (or whose pocket did it end up in?)

Betsy Combier

Eva Moskowitz founded the Success Academy charter school in the upper West Side, which
prides itself on not pushing out students with special needs.


Success Academy parent's secret tapes reveal attempt to push out special needs student

The Upper West Side Success Academy charter school has touted itself for not trying to push out kids with special needs or behavior problems, but a parent has audio to the contrary.

Friday, August 30, 2013, 2:30 AM

Call them the charter school tapes.

The parent of a special education kindergarten pupil at the Upper West Side Success Academy charter school secretly tape recorded meetings in which school administrators pressed her to transfer her son back into the public school system.

The tapes, a copy of which the mother supplied the Daily News, poke a hole in claims by the fast-growing Success Academy chain founded by former City Councilwoman Eva Moskowitz that it doesn’t try to push out students with special needs or behavior problems.

Nancy Zapata said she resorted to the secret tapes last December and again in March after school officials used their “zero tolerance” discipline policy to repeatedly suspend her son, Yael, kept telephoning her at work to pick him up from school in the middle of the day and urged her to transfer him.

The News reported earlier this week that the Success network, which boasts some of the highest test scores in the city, also has far higher suspension rates than other elementary schools and that more than two dozen parents were claiming efforts to push their children out.

“There was a point when I was getting a call every day for every minor thing,” Zapata said. “They would say he was crying excessively, or not looking straight forward, or throwing a tantrum, or not walking up the stairs fast enough, or had pushed another kid.”

What school officials did not do, Zapata said, was provide the kind of special education services that her son’s individual educational plan, or IEP, requires.

That plan calls for daily speech therapy and occupational therapy for Yael. It also requires him to be placed in a smaller class, one staffed by both a regular teacher and a special education teacher.

At one point in the tapes, a Success official can be heard telling Zapata:

“We’re technically out of compliance because we aren’t able to meet what his IEP recommends for him.”

Asked about those remarks, a Success official would only say both the School District’s Special Education Committee and Success Academy now believe Yael should be transferred to a District 75 special education school.


In the tapes, however, another Success administrator is heard acknowledging that Yael’s tantrums are related to his speech disability.

“He is getting really frustrated when people can’t understand what he’s communicating, and you can’t blame him for that,” the administrator tells Zapata.

In a second meeting, the mother asks why Success admitted her son through a lottery but is not providing him all the services he needs.

“If they have those special education needs, you’re absolutely right that they need to be fulfilled,” an official replies, but then quickly adds that the network doesn’t offer smaller special ed classes in kindergarten.

“We will help them find the [appropriate] DOE placement,” the official says.

In other words, lottery or not, kindergarten kids like Yael who need smaller classes should find a public school that has one.

But Zapata has resisted the pressure to transfer her son.

When she accompanied him to the first day of school at Upper West Side Success last week, she was informed Yael will have to repeat kindergarten — the same grade that doesn’t have the special education class he needs.

“They’re trying to frustrate me enough to take him out,” Zapata said, “but I’m going to fight it.”

Cindy Mauro and Alini Brito Get Their Jobs Back, Rules Appeals Court

James Madison High School
Cindy Mauro (left) and Alini Brito (right)
 Court Orders City to Rehire Teachers in Misconduct Case
It was a November night in 2009 when Alina Brito, a Spanish teacher at James Madison High School in Brooklyn, and Cindy Mauro, a French teacher there, went out with a colleague to a neighborhood restaurant for dinner, and a cocktail or two.

They returned to watch a student musical performance in the auditorium, but they did not stay long. Before the first intermission, Ms. Brito and Ms. Mauro left the show, walking up two flights to Room 337, a classroom Ms. Mauro often taught in.

“They had left the door to the room unlocked, and the lights were out. What were they doing?” asked a judge in an animated court ruling in 2012.

A custodian heard noises, peered inside and, he said, saw a woman on the floor, topless. He alerted security. A school safety agent then barged into the room, the judge wrote, and “saw a brunette woman (Brito is dark haired) completely naked, lying on the floor” and “a blond woman (Mauro is light haired) also naked on top of the brunette.”

They instantly became the most famous teachers in New York City, winning their school the tabloid nickname of “Horndog High.” But though it all might have sounded like the stuff of overheated high school fantasy, it had some very grown-up consequences: They were fired.

Their case has gone through a series of twists, the latest this week, when an appeals court ruled, more than four years after the episode, that Ms. Brito and Ms. Mauro must be put back on the city’s payroll.

Given that they were consenting adults, that no students were harmed as a result of their actions and that they broke no laws, the appellate division of the State Supreme Court in Manhattan ruled that terminating their employment was “shockingly disproportionate” to the misconduct. Their “behavior demonstrated a lapse in judgment,” it continued, but “there is no evidence that this incident was anything but a one-time mistake.”

The five-judge panel added, “Indeed, lesser penalties have been imposed where a teacher had an ongoing relationship or engaged in inappropriate behavior with a student.”

During the initial arbitration process, Ms. Brito and Ms. Mauro argued that there had been no impropriety whatsoever. Ms. Brito — who had required medical attention in the past — said she was suffering from reactive hypoglycemia, and Ms. Mauro was attending to her by laying her down, getting her sugar packets and elevating her feet, they said. Other than a sweater, which had been repurposed as a pillow for Ms. Brito, they said they were both fully dressed. They lost.

When they appealed their dismissal in court, the judge overseeing Ms. Brito’s case ruled that her offense did not warrant termination. The judge also ruled that Ms. Brito had been deprived of due process, because a surveillance tape showing the hallway outside the classroom, which could have shed light on the witnesses’ account, had been erased.

The judge overseeing Ms. Mauro’s case came to the opposite conclusion, however, upholding the arbitrator’s decision that she should be fired.

Barring an appeal, this week’s ruling, reported Friday by The New York Post, means both teachers’ cases will be sent back to arbitration for a lesser penalty, which could include a reprimand, suspension or fine.

In a statement, the city’s Law Department said lawyers were considering their options.

Both women are off the payroll, though they are likely to receive back pay if the ruling stands. An Education Department spokesman could not say if the teachers would be allowed back into classrooms.

Michael A. Valentin, a lawyer for the women, did not respond to messages left Friday.

Teachers caught in topless lesbian romp get their jobs back at 'Horndog High'

  • The two language teachers were fired in 2012 over an alleged lesbian tryst in a classroom
  • Cindy Mauro and Alini Brito deny there was any such tryst
  • The pair appealed the school's decision to fire them
  • Judges in the appeal found firing the two women to be 'shockingly disproportionate' to their alleged misconduct

Disgraced teachers Alini Brito (left) and Cindy Mauro are allowed to teach again following an appeal
after being fired for 'lesbian tryst'

Two teachers who were fired from a New York City high school in 2009 after an alleged lesbian tryst in a classroom are getting their jobs back after an appeals court in Manhattan ruled in their favor in a decision handed down Thursday. 
Cindy Mauro, a 34-year-old French teacher at Brooklyn’s James Madison High School, was caught half naked in a classroom, 'kneeling between the legs' of a topless fellow teacher, an independent arbitrator found.
Mauro and her alleged lover, 32-year-old Spanish teacher Alini Brito, had vehemently denied allegations of a 'lesbian lovefest.' The 34-year-old claimed that she was only helping Brito deal with her diabetes by bringing her some candy to raise her blood glucose levels.

Even if the allegations of sexual misconduct are true, the five-judge Appellate Court ruled that firing the two women was 'shockingly disproportionate to (their) misconduct.'
'While (Brito’s) behavior demonstrated a lapse in judgment, there is no evidence that this incident was anything but a one-time mistake,' the panel ruled.
In their decision, the justices ruled that even if the reports are true, 'consensual sexual contact' was not grounds to fire them.
The justices also noted the 'unblemished disciplinary records' of each teacher, as well as their 'consistently satisfactory teacher ratings.'
In Brito's case, her supervisor once described her as 'one of the best teachers she had ever worked with,' according to the report, first obtained by the New York Daily news.
The court sent the case back to city education officials with instructions to impose a less-severe penalty.
Sine the allegations first arose - on the word of a janitor who claimed he saw the two women engaged in sexual activity - both teachers denied they were ever naked, alleging that the custodian who walked in on them during a school talent show had a vivid imagination.

The scandal earned the school a suggestive nickname: Horndog High.
Lawyers representing the city said in court documents that the teachers’ alibi was hard to believe because no medical equipment was found in Room 337, where the pair allegedly was busted. 
The city also pointed out that Brito and Mauro had climbed six flights of stairs before arriving at their destination, passing multiple classrooms and more than one bathroom — unlikely behavior for someone suffering from low blood sugar.
Judge Robert Torres apparently agreed, upholding an arbitrator’s decision in 2012 to fire Mauro as ‘rational and with plausible basis.’

The ruling came less than two weeks after another judge allowed Brito to return to the classroom after she had successfully sued the Department of Education.
Judge Alice Schlesinger wrote in her opinion that Brito's punishment was ‘excessive and shockingly severe,’ the New York Post reported. 
‘We have children who are deprived of a first-class, caring teacher, and a teacher who, due to one sensational, publicly exploited incident where she exhibited extremely poor judgment, is deprived of continuing a career she loves and excels at.
‘That is not a good balance, in the opinion of this court. In fact, the imbalance is shockingly bad,’ Schlesinger wrote.
The judge criticized the city for destroying a surveillance tape supposedly documenting the act, which she said had deprived the teacher of due process.
Denial: Brito and Mauro claim nothing inappropriate went on and that witnesses let their imaginations
get the best of them

Brito’s lawyers claimed it was a crucial piece of evidence that could prove witness accounts to be false.
The married teacher was fired in January, 2012, following the release of a report that claimed Mauro had lured her away from a student song-and-dance competition with promises of sugar and candy.
In her lawsuit, Brito claimed that the account of the witness to the events was not reliable because he never entered the classroom and a 300-pound janitor was blocking his view through a small opening in the door.
'There were no shenanigans,' said her lawyer Michael Valentine.
'He sees through this other custodian, who's 6'4" or 6'5", and sees a partially naked body lying on the floor.'

Valentine offered a much more innocent version of events, claiming: 'Upon immediately entering the classroom, Brito's knees buckled, at which point Brito laid down off to the right but at the foot of the classroom door. 
'Mauro assisted Brito by placing Brito's sweater under her head and elevated her legs in a chair. Mauro also obtained a couple of sugar packets from her desk and gave them to Brito.'
It's unclear when - or if - the women will be returning to their jobs at James Madison High School.

'Horndog High' teachers fired after sexy romp get their jobs back: court

A Manhattan appeals court ruled language teachers Alina Brito and Cindy Mauro — who were accused of having a same-sex romp on school grounds in November 2009 while students and staff were at a singing competition — can have their jobs back at James Madison High School in Midwood, Brooklyn, because the pair has ‘unblemished’ discipline records and had a ‘lapse in judgment’ on the day in question.


Thursday, March 20, 2014, 1:50 PM
Get ready for a reunion at Horndog High.

Two randy Romance language teachers fired for their lesbian grope session in a darkened classroom at James Madison High School are entitled to get their jobs back, an appeals court ruled Thursday.

Spanish teacher Alini Brito and French instructor Cindy Mauro won their long legal battle to return to the classroom — although perhaps not the darkened one where they were spotted in November 2009.

“The penalty of termination of unemployment is shockingly disproportionate to (their) misconduct,” the five-judge Manhattan Appellate Division panel declared in a sharp rebuke of city education officials.

The judges noted the two women were consenting adults who were not inside the Brooklyn school in any official capacity when they were caught with their pants on — and their shirts off. 
“I can tell you one thing for sure: My clients will be happy to be back in the classroom doing a job they love,” said their lawyer, Michael Valentine of the firm Altman Schochet.
“They were both good at what they did,” he added.
“The record showed they were extremely competent professionals.”
Valentine suggested the pair, in addition to getting their jobs back, are entitled to back pay.

The two tenured teachers were yanked from the classroom at the Midwood school once the headline-making allegations went public.
The case was kicked back to city education officials to impose a less-severe penalty.
Officials would not say if they planned to appeal the decision or what sanctions the pair could face.
“We are disappointed with the decision and are considering our options,” said Education Department spokesman David Pena

Mauro, 38, and Brito, 34, were fired in January 2011 by Education Department officials after a janitor insisted he stumbled upon the pair getting busy during the annual school singing competition.

A report by investigators found the pair slipped away to Room 337, where one was seen naked from the waist up and the other was on her knees.

The night of lust started with the teachers going to a bar and knocking back drinks.

Brito had a shot of tequila and a martini, the investigators alleged.

The two teachers denied any hanky-panky, insisting they went to the classroom because the diabetic Brito needed some candy to stabilize her blood sugar.

The appeals court — made up of justices Angela Mazzarelli, Richard Andrias, Leland DeGrasse, Helen Freedman and Judith Gische — appeared to believe the janitor’s version, but ruled that “consensual sexual contact” was not enough to merit firing.

“While (Brito’s) behavior demonstrated a lapse in judgment, there is no evidence that this incident was anything but a one-time mistake,” the panel ruled.

Brito, the judges wrote, “was described by her supervisor as one of the best teachers she had ever worked with.”

In a separate decision, the same judges noted that Mauro boasted an “unblemished disciplinary record and consistent satisfactory teacher ratings.”

The pair’s escapades were only the first in a long line of sexual shenanigans at the school.

Erin Sayar pleaded guilty last year to having sex with a 16-year-old male student. Sayar received 10 years’ probation.

In 2009, social studies teacher Allison Musacchio was probed for having an inappropriate relationship with a male student. The investigation was ultimately closed because the teen was above the age of consent and had left the school.

With Ben Chapman

Schools Chancellor Carmen Fariña attempting to block 'Horndog High' teachers fired for romp from returning to school

Former James Madison High School instructors Cindy Mauro and Alini Brito were caught in a darkened classroom in November 2009, and fired in January 2011. An appeals court recently granted them the right to return to work, but schools boss Fariña is trying to stop that from happening.


Friday, March 21, 2014
Carmen Farina
Not so fast, Horndogs. City Education officials are searching for a way to block the reinstatement of two randy teachers who were fired for a having a lesbian romp at their school but won their jobs back on appeal Thursday.
Former James Madison High School instructors Cindy Mauro and Alini Brito were caught having a grope session in a darkened classroom in November 2009. The pair was fired in January 2011 after a lengthy investigation and legal battle.
But the two Romance language instructors, who have steadfastly maintained their innocence, were granted the right to return to work in city schools, after a judge decided they deserved lesser punishment.
Schools Chancellor Carmen Fariña wants to stop that from happening. “We have zero tolerance for this kind of behavior from our professionals and in our schools,” Fariña said. “So we are pursuing all options going forward and if we have a legal basis for this we will certainly appeal.”
Mauro, 38, and Brito, 34, were fired after a janitor told administrators he accidentally walked in on the pair doing some hands-on instruction during a school singing competition.
Investigators said the pair got drinks at a nearby bar before they were caught in a darkened classroom, where one was spotted topless and the other on her knees.
The two denied the charges and said they slipped off to the classroom alone because diabetic Brito needed a candy fix to aid her blood sugar.
The appeals court that granted their reinstatement appeared to buy the janitor’s story, but ruled that “consensual sexual contact” between the two wasn’t a fireable offense.
City officials wouldn’t give any details of what the appeal of the disgraced educators’ reinstatement might look like, but said the city could argue the case again.
Their lawyer Michael Valentine didn’t return calls for comment.
With Barbara Ross