In 2004 a math teacher at John Adams High School in Queens, Edmond Farrell, contacted me to help him at his Office of Appeals and Reviews appeal where he was fighting to overturn his "U" (unsatisfactory) rating on his APPR (Annual Professional Performance Review). I wrote a letter to the NYC Education Department, the Mayor, and others:
The E-Accountability Foundation
Betsy
Combier, President
December 29, 2004
Mayor
Michael Bloomberg
Department of
Education Chancellor Joel I. KleinDeputy Chancellor Carmen Fariña
Dr. Elizabeth Arons
Ms. Virginia Caputo
Mr. Greg Brooks
Ms. Marianne Alvarez
To All
Officials Listed Above:
TheE-Accountability Foundation is a nonprofit organization that holds people in
positions of power or influence accountable for their actions. In addition to accountability, we support
open government at the local, state and national levels, transparency in all
business and fiscal policy decisions, and the right to due process. We are writing this letter to express our
dismay at what appears to be a lack of fairness and a violation of the due
process rights of Mr. Edmond Farrell, a tenured mathematics teacher at John Adams High School in Ozone
Park , Queens .
We believe that by exposing incidences of due process violations by the New York City Department of Education here in
In
preparation for my appearance at OAR on November 8, I read the documents posted
on OAR’s Website, namely:
1) RATING PEDAGOGICAL STAFF MEMBERS
2) THE APPEAL PROCESS (updated by Editor)
3) PRINCIPAL PERFORMANCE REVIEW (updated - Editor)
 |
| John Adams High School |
I
also read a memo from Mr. Reyes Irizarry, Regional Superintendent of Region 4,
concerning observation reports. Mr.
Irizarry stated, “It is the role of the principal to ensure that the
observation process is understood to be a support mechanism to improve teaching
and not a punitive exercise." Mr.
Farrell’s school, John Adams HS, is located in Region 5, which borders on
Region 4. The Regional Superintendent of
Region 5 is Kathleen Cashin, and I do not know whether she issued a similar or
identical memo to the principals in her region.
I also had a copy of Mr. Farrell’s September 16 letter to Chancellor
Joel I. Klein, Dr. Elizabeth Arons, and Ms. Virginia Caputo listing Mr. Norman
Scott, three lawyers, and me as witnesses for the November 8th hearing. I printed out all the above documents and
brought them with me on the morning of November 8.
When Mr. Farrell and his UFT adviser, Ms. Patricia Ritter, arrived, Mr. Scott and I prepared to go into the hearing room when the Hearing Officer, Ms. Marianne Alvarez, told us she would not allow either Mr. Scott or me into the room. We were barred from the hearing. I asked why, and was told that she knew nothing about any witnesses, and I simply could not be a witness. The hearing began behind closed doors while Mr. Scott and I sat in the hallway.
As none of the documents I had read and brought with me mentioned barring a witness from a hearing, I decided to speak with Ms. Caputo, who is the Director of OAR. I walked into her office, and placed my stack of papers on the table near the door. Ms. Caputo asked me what I wanted, and I politely said that I needed to attend the hearing of Mr. Edmond Farrell and was there as a witness. Ms. Caputo walked over to me, saying over and over again that I was barred from the hearing, that she would not allow me to enter the hearing room, and that she simply would not allow it. She grabbed the first sheet of paper from the pile in front of me, which happened to be Mr. Irizarry’s memo, and said that Mr. Irizarry agreed that there could be no witnesses at a hearing who did not work for the Department of Education. Period! I tried to state that Mr. Irizarry’s memo did not say anything at all about barring witnesses from a hearing, that Mr. Irizarry’s memo did not even relate to the subject of administrative hearings, and that Mr. Farrell didn’t work in Mr. Irizarry’s region, but, unfortunately, Ms. Caputo wasn’t even listening to what I was attempting to say because she was talking very quickly and loudly about my not being allowed into the hearing because “this was the policy.”
I attempted to ask what “policy” this was, and could I please just read what this “policy” stated, but Ms. Caputo seemed to believe that I needed to be shouted out of the room. In fact, I believe my asking to see the “policy” that she was claiming barred me from the hearing, infuriated her, because at this point she started yelling at me in a rude, imperious tone of voice to not attempt any further discussion of the issue. I gathered up my papers and left the room, seeing that Ms. Caputo was not going to discuss anything. As I walked down the hallway from her office, I noticed an open door on my left, and walked in. I asked Mr. Greg Brooks to permit me into Mr. Farrell’s hearing, and he, too, started repeating that as I did not work for the Department of Education, I could not be a witness, and that was the “policy.” I again asked to see the “policy” that he was claiming stated this “rule,” but my question seemed to anger him, just as it did Ms. Caputo, and he told me that I would never be a witness. I joined Mr. Scott in the hallway and we sat out the remainder of the hearing there.
When the hearing ended, Ms. Alvarez asked Mr. Scott and I into the hearing room for a chat. She told us that, unfortunately, we could not enter the hearing because we did not work for the Department of Education. I reminded her that not only did the material on the conduct of hearings not bar witnesses, or say that all witnesses had to have worked for, or currently be employed by, the Department of Education, but that Mr. Scott had, indeed, been a teacher for many years. She said, again, that it was “policy” to not have witnesses at the appeals hearing!! Was this, indeed, the secret “policy” mentioned by both Ms. Caputo and Mr. Brooks?
I
knew that in the documents printed from the OAR website was the statement that
a copy of the hearing proceedings could be obtained after payment was received
of $10, therefore I asked when Mr. Farrell could receive a copy of the
tape-recorded hearing, because at least we could all listen to the tape and
comment on the discussion before Chancellor Joel Klein made his decision. Ms.
Alvarez’ reply alarmed me very much. She
told us that Mr. Farrell could obtain a copy of the hearing’s tape after the Chancellor had made his decision
and, “You can’t dispute what a principal
says.”
This statement shocked all of us in the room. This, I believe, is the crux of the matter. If a principal and other supervisors have written observation reports alleging that a teacher’s lesson is unsatisfactory, if the teacher’s intended witnesses are barred from a hearing that purports to investigate the teacher’s competence, and if no rebuttals of any statements made by the teacher’s accusers are permitted entry into the proceedings at some point before the person in the position of judging the matter makes a determination, then we have a biased, unfair, and seriously prejudicial process that cannot and must not be allowed in a democratic society.
I, President of The E-Accountability Foundation, write this letter in order to officially protest the unfair violation of due process rights of Mr. Edmond Farrell on November 8, 2004 at the New York City Department of Education’s Office of Appeals and Reviews. In addition we are outraged by the way both Ms. Caputo and Mr. Brooks spoke to me in the OAR office and by their support for some esoteric “policy” that we believe does not exist. We consider their actions at the level of “employee misconduct” and would appreciate both an explanation and an apology to be sent to my attention at the address above at your earliest convenience. We also request that Mr. Farrell be given a fair chance to state his position at a public forum. If the Department of Education does not schedule this forum, The E-Accountability Foundation will. We will also be publishing this letter, and all ensuing letters pertaining to this matter, on our Website, parentadvocates.org.
Thank you.
Sincerely,
Betsy Combier
CC:
Mr. Edmond
Farrell (via email)
Ms. Randi
WeingartenMr. Norman Scott (via email)
Ms. Lydia Segal (via email)
Ms. Elissa Gootman
Ms. Lila Corn (via email)
parentadvocates.org
I agreed to appear as a witness for him, along with retired teacher Norm Scott, and we were going to discuss the educational value of the workshop model in a high school setting, as well as the procedures used by Grace Zwillenberg to harm veteran teachers. We were both told that we did not work at the school, so we could not testify. I questioned Ms. Virginia Caputo about her decision, and she screamed me out of her office. I left quietly. Ed lost.
Then he filed a petition with the Commissioner:
STATE OF NEW YORK
STATE EDUCATION DEPARTMENT
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In the Matter of EDMOND FARRELL,
Petitioner,
PETITIONER’S MEMORANDUM OF LAW
v
JOEL I. KLEIN, Chancellor, New York City Department of Education, Appeal #17944
Respondent,
from action of the New York City Department of Education regarding the
denial of due process rights in the appeal of a U-rating
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PRELIMINARY STATEMENT
I, Edmond Farrell(“Petitioner”), am a tenured mathematics teacher employed by the New York City Department of Education (“DOE”). Petitioner is fully aware of all the facts and circumstances in this case. Petitioner has brought this proceeding pursuant to §310 of the New York State Education Law alleging that Respondent’s actions, including filing a Verified Answer and then a Memorandum of Law written by two different people who do not know the facts and circumstances of this case and never, in any of their papers, say that they do, do not justify or give credence to the “unsatisfactory” rating (“U-rating”) given Petitioner in the 2003-2004 school year. Petitioner is, in fact, an award-winning teacher with satisfactory and excellent ratings throughout his teaching career – including 9 years at John Adams High School - until Mrs.Grace Zwillenberg became Interim Acting and then Principal of this same school.
To give a U-rating to an experienced, tenured, and successful teacher is arbitrary, capricious, and simply a pretext, given under color of law as “just cause,” for creating intolerable working conditions for teachers as a result of false claims of unsatisfactory performance. This abuse of process, abuse of discretion and misfeasance is symptomatic of a method for terminating good teachers – those who have been successful in raising achievement scores of their students – in the name of “unsatisfactory performance” based on observation reports, which are simply opinions, in order to end the employment of people who are over the age of 40 or who do not remain silent about this abuse of their right to remain in the classroom and teach a curriculum that is proven to work, that they know how to teach, and teach well. This is, Petitioner alleges, a violation of employment law and his constitutional right to work and speak on issues proven to have reasonable pedagogical purpose. The right to teach a sound, basic educational program, Petitioner alleges, is a property right for the students, who are in school to learn from an experienced teacher and achieve their best. The key to the invalidity of Respondent’s claims is that the curriculum for which Petitioner was subjected to supervisory workplace bullying, harassment, and hazing is an unknown, worthless and unproven math program that harms students who then cannot succeed in the subject. Along with the abuses of process, discretion and misfeasance cited above, is the violation of due process by the Office of Appeals and Reviews Director Ms. Virginia Caputo, and OAR Hearing Officer Marianne Alvarez, both of whose actions are documented in the Verified Petition and Verified Reply, namely prohibiting Petitioner from addressing his grievance in a fair and unbiased hearing, as well as face his accusers. Accordingly, the petition and relief requested must be granted.
STATEMENT OF FACTS
Petitioner received “Satisfactory” ratings for nine school years in a row at John Adams High School under two previous principals before Grace Zwillenberg was named Interim Acting Principal during the 2003-2004 school year and then appointed Principal. Bahaa Aboughaida was appointed as the Math/Business Assistant Principal of John Adams High School during the 2003-2004 school year, and within a few weeks issued Petitioner the first of a series of six observation reports that consisted “solely of advice, criticisms, evaluations, and recommendations.” Others in the series were issued by Grace Zwillenberg, Ben Waxman, as well as by Mr. Aboughaida. A number of the reports were written after an unannounced observation made to a repeater class of slow learners, late in the day. Petitioner considers these tactics to be “observation by ambush” and adds that these unannounced visits disrupted the classroom and jeopardized the learning environment of the students by making petitioner nervous once he realized that Mrs. Zwillenberg and Mr. Aboughaida were out to get him. The observation reports contained, in part, baseless claims of “suggested strategies that we have discussed” which were, in fact, never discussed. The U-rating that resulted in this Education Law §310 appeal was based upon the alleged evaluations of Mrs. Zwillenberg and Mr. Aboughaida, rather than based on facts and statistics. Lesson observation reports have been held by the Second Appellate Division in Elentuck v. Green to not contain “statistical or factual tabulations or data” but to “consist solely of advice, criticisms, evaluations, and recommendations.” More recently, Irving Schachter received the following May 4, 2005 letter from Ms. Cory Mescon, the Regional Records Access Officer of DOE’s Region 5:
“This letter is in response to your request for lesson observation reports issued to mathematics teachers at John Adams High School for the school year ending June 28, 2004. These observation reports constitute intra-agency materials pursuant to Public Officers Law Section 87(2)(g), in that they are reflective of opinion, advice and recommendation. These materials are not (1) statistical or factual tabulations of data, (2) instructions to staff that affect the public, or (3) a final agency policy or determination. Therefore, your request is denied.”
Respondent’s assertion that “all six reports contain facts and statistics” is thus false and invalid. Respondent classifies as “facts” the number of students in the classroom, and the seat numbers of the students. However, these have nothing to do with the level of Petitioner’s teaching performance. Respondent could, if allowed to state such “facts” as part of the employment criteria for teachers in general, proceed to the number of cracks in the wall or the quality or height or color of the desks in the room as a determinant of Petitioner’s performance. In fact, Petitioner is surprised that these absurd opinions were not added to the other equally absurd claims set forth in the six observation reports, i.e., Bahaa Aboughaida’s 10/24/03 assertions, “As you were explaining verbally the answer to the problem a bumblebee entered the room. The students started getting up from their seats and running away from it.” According to Respondent, the six reports made “recommendations for improvement.” Assuming that Respondent meant “suggestions for improvement,” Petitioner points out that he was under no contractual or legal obligation to implement any of the “suggestions” that were made, nonetheless, he tried out a number of them. Petitioner discovered that the suggestions from Mr. Aboughaida and Mrs. Zwillenberg were not useful, but that one of the suggestions from Mr. Waxman was. The papers submitted by Respondent concede several crucial points, most notably the challenge to the ratings system used in Petitioner’s evaluation. Respondent alleges that “The regulations of the Commissioner of the New York State Education Department (‘Commissioner’s Regulations’) mandate that each City School District of the City of New York develop a professional performance review plan, as set forth in §100.2(o)(2) of the Commissioner’s Regulations. The New York City Department of Education (‘DOE’) has complied with the Commissioner’s Regulations by developing a professional performance review plan. The review plan consists of a system of evaluation of pedagogical employees of the DOE and is the subject of the collective bargaining agreement (‘CBA’) between the United Federation of Teachers (‘UFT’) and the DOE. Article 8J of the CBA, entitled ‘Evaluation and Observation System’ specifies that the entire agreement with respect to the system of evaluation of pedagogical employees is embodied in the document ‘Teaching for the 21st Century.’
The undated, incomplete material which respondent has offered predates the passage of §100.2(o)(2). Furthermore, no evidence has been introduced to demonstrate that “Teaching for the 21st Century” was revised after §100/2(o)(2) went into effect, or even that the professional performance review plan was validly adopted at a public meeting of either the former NYC Board of Education or the current Panel for Educational Policy. Respondent never offered any evidence that the standards described in “Teaching for the 21st Century” were the standards that were used to evaluate petitioner. Clearly, they were not the standards used, yet the observation reports consistently and routinely fault Petitioner for failure to follow the “Region 5 Mathematics Prototype” by whatever form Respondent refers to it. Significantly, respondent has failed to submit a copy of the “Region 5 Mathematics Prototype” as an exhibit to the Verified Answer. In paragraph 7 of the petition, Petitioner had alleged, “Such U-rating did not comply with the requirements of §100.2(o)(2) of the Regulations of the Commissioner of Education in that it was allegedly based on a flawed set of antiquated rating criteria that had not been developed cooperatively in consultation with representatives of the teachers, that had not been submitted in advance to parent groups and the United Federation of Teachers, and that had not been formally voted on during a public meeting of the PANEL FOR EDUCATIONAL POLICY OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK.”
Respondent has now supported this allegation by having offered undated, incomplete material that predates the passage of §100.2(o)(2), but which, nonetheless, contains the statement, on page A8, “A new professional performance review report for New York City public school teachers will replace form BE/DOP 9955B (5/87) and be the official performance review document placed in a teacher’s personnel file.” Regrettably, this “new professional performance review report” never materialized either in the 20th Century, or in the 21st Century, to date. Petitioner does not even recognize “Teaching for the 21st Century,” as being the standard at all, since it was never issued to him, nor cited, except for a brief reference buried within the over 200-page CBA with the UFT. Since Petitioner had neither been informed of, advised of, nor given a copy of “Teaching for the 21st Century” during the 2003-2004 school year, nor at any time preceding, petitioner could hardly be expected to teach in accord with a standard unknown to him, and apparently to his supervisors as well. Petitioner is, in fact, an award-winning teacher with satisfactory and excellent ratings throughout his teaching career until Mrs.Grace Zwillenberg became Principal of John Adams High School. In fact, Petitioner was honored in the Fall of the 2004 school year with an award from the Renaissance Math Company for excellent teaching of it’s curriculum. What happened to petitioner is symptomatic of a city-wide phenomenon. Petitioner was subjected to supervisory workplace bullying, harassment, and hazing in order to force him to change from his successful teaching practices to an unknown and unproven math curriculum, intentionally harming the potential of the students in his class to succeed in the subject. Respondent also omitted including Appendix B of “Teaching for the 21st Century” in the submitted documents so that relevant information that would support the granting of the petition, that related to the invalid process of using observation reports in a disciplinary manner, and that set forth a description of “alternative approaches to teacher performance reviews” would not be read by either the Commissioner or his legal staff. The evidently intentional omission of Appendix B leads to the fair inference that Respondent did not want either the Commissioner or the Office of Counsel to see, and be guided by, the statements contained therein. The use of observation reports, especially those not containing “statistical or factual tabulations or data” or “instructions to staff that affect the public,” to discipline teachers is not only a gross error but also a fatal error. Even the supervisory staff manual of the Office of Appeals and Reviews, “Rating Pedagogical Staff Members,” states in relevant part, on page 19 of 40, “A major objective of a written report is that it be effective in improving teaching without reducing morale.”
Clearly, as lesson observation reports do not contain "statistical or factual tabulations or data," they cannot be used to discipline a teacher unless they contain "instructions" that the teacher was alleged to have violated.
However, lesson observation reports do not contain "instructions" to a teacher, because they do not contain "instructions to staff that affect the public." The NYS Supreme Court, Monroe County, in Geneva Printing Co. and Donald C. Hadley v. South Seneca Central School District; South Seneca Board of Education; and President, South Seneca Board of Education (Index No. 7510/81, NYS Supreme Court, Monroe County, July 12, 1982) stated, in relevant part:
“The principal justification relied on by respondents is that the memorandum is inter-agency material which is not statistical or factual tabulations or data, instructions to staff that affect the public or final agency policy (or) determinations. The crux of the memorandum is the direction and instructions given Tyler as to the performance of his job. The principal of a high school obviously deals regularly with teachers, the board of education and children enrolled in the school and instructions as to the performance of his duties must necessarily affect the public. Furthermore, the memorandum is the foundation for Weibezahl’s recommendation and the subsequent approval of respondents and therefore it constitutes a final agency determination.”
If lesson observation reports from a school supervisor to a teacher are to have any validity whatsoever, they must contain a recitation of the facts and statistics upon which the "advice, criticisms, evaluations, and recommendations" are based. In addition, if a school supervisor wishes a teacher to take any "corrective action" based on the contents of a lesson observation report, then either the report itself, or a separately issued memorandum or letter, must contain "instructions to staff that affect the public" which the teacher is mandated to implement.
Petitioner’s substantive and procedural due process rights were consistently violated:
(1) Petitioner exercised his right to appeal from a rating other than a satisfactory rating. However, the UFT assigned a non-Attorney, Ms. Patricia Ritter, who refused to speak to Petitioner’s chosen advocate, Ms. Combier, and would not look at any documents pertaining to Petitioner’s case, before the November 8, 2004 Hearing at the Office of Appeals and Reviews, although she did speak briefly with Petitioner. Ms. Ritter asked very few questions, and was not an appropriate advocate for Petitioner in this forum. Ms. Alvarez’ barring of both Ms. Combier and Mr. Scott from the Hearing due to the fact that neither witness worked for the NYC DOE is invalid due to the obvious fact that Ms. Ritter does not work for the NYC DOE either.
(2) Petitioner’s right to have witnesses appear at his hearing was arbitrarily denied by Ms. Alvarez. Petitioner’s request to call three witnesses was denied prior to the administrative review; the right to call two other witnesses was denied during the administrative review; the right to telephone a physically handicapped witness was ignored during the administrative review; and, Respondent’s claim that Ms. Alvarez “permitted the presentation of a witness” namely Ms. Combier, (p. 8) after Petitioner and his advocate Ms. Ritter made their closing statements is completely false. Petitioner was permitted no witnesses. Ms. Combier and Mr. Scott were told – actually, Ms. Combier was screamed at – before the Hearing began, that they would not be allowed into the Hearing due to the fact that neither worked for the DOE. Both Mr. Scott and Ms. Combier arrived before the Hearing began, and sat outside the Hearing Room until after the Hearing was over. Ms. Alvarez left the Hearing Room after it was concluded and invited Ms. Combier and Mr. Scott into the room to talk, at which point she told them, when they asked why she had not allowed them to attend the Hearing, “Well, you cannot dispute what a Principal says.”
(3) Mr. Waxman, who is mentioned in the reply as having observed petitioner, was not present at the administrative review, either by telephone or in person. Ms. Alvarez did not seek to question him, yet the U-rating could not have been given, according to the policy and practice of DOE, without an observation report having been submitted by a “superintendent’s representative.” As there was no “superintendent’s representative” at this Hearing, any claims to the validity of the U-rating must be denied, as per Respondent’s own Regulations.
(4) Mrs. Zwillenberg and Mr. Aboughaida were not present at the Hearing, but were permitted to simply telephone in their testimony which is an outrageous violation of due process. Petitioner has a Constitutional right to face his accusers as he redresses a grievance. Any testimony given by telephone cannot be verified, as any oath taken over the telephone without a legal representative present at the other end cannot be valid. Witnesses must be seen and not just heard in order for the testimony to have value and in order for the testimony to be verified.
(5) It is perfectly clear that Marianne Alvarez’s claim that she did not know anything about Petitioner’s witnesses could only be true if she had never read the copy of Petitioner’s September 16, 2004 letter that had been sent to Ms. Alvarez’s supervisor, Virginia Caputo, at the Office of Appeals and Reviews. All the witnesses were clearly identified by name and address or name and business location in the September 16, 2004 letter, and receipt of this letter by Ms. Caputo is proven by the letter Ms. Sharon Sandra Dunn-Yules of the Queens United Federation of Teachers sent to Ms Caputo on November 3, 2004 advising her of the names of witnesses, and the fax Ms Caputo sent to Ms. Dunn-Yules on November 4, 2004 explaining the witness policy at OAR and denying Petitioner three witnesses from the Office of Legal Services. This provides irrefutable evidence that Ms. Caputo arbitrarily denied Petitioner access to three critical witnesses whom she had summarily determined had no involvement in petitioner’s case. Ms. Alvarez totally disregarded the major arguments in petitioner’s September 16, 2004 letter, thus successfully eliminating any possibility for substantiating any claims.
If, it is true, as Respondent states in the Memorandum of Law (p. 9), that “Carmen Farina, Deputy Chancellor, Teaching and Learning, as designee for Joel Klein, Chancellor of the New York City Department of Education, reviewed the Committee’s Report and Recommendation”, why did she not sign it? Ms. Combier supplied a valid copy of Mrs. Farina’s signature from one of many letters she, Ms. Combier, received had in her possession which were signed by Mrs. Farina, and it is very clear that Mrs. Farina did not sign the Recommendation. Petitioner alleges that it is obvious that Mrs. Farina never read the Report, never decided his case, and/or refused to be held accountable for the decision. Did the person who signed for Mrs. Farina have knowledge of the facts and circumstances in this case? The questions that Petitioner asked about Mrs. Farina’s decision were never answered, and thus he alleges that Mrs. Farina will be, nonetheless, held accountable for the decision.
The numerous due process violations listed above necessitate the granting of the relief which Petitioner requests.
ARGUMENT
POINT I
THE DECISION OF THE CHANCELLOR OF THE NEW YORK CITY DEPARTMENT OF
EDUCATION TO SUSTAIN PETITIONER’S UNSATISFACTORY RATING BASED ON FALSE OBSERVATION REPORTS IS MADE IN BAD FAITH, AND WITHOUT MERIT
The determination that the Petitioner’s U-rating must be upheld is wholly inconsistent with the facts and circumstances in this case and the deductions that can reasonably be made from the facts and circumstances. ( Barron’s Law Dictionary, 5th Edition, “Abuse of Discretion” 251 N.E. 2d 468, 471; and 458 P. 2d 336, 338, p. 4). The facts are that when Mrs. Zwillenberg was appointed Interim Acting Principal of John Adams High School in September, 2003, she and Petitioner did not agree on several matters. Mrs. Zwillenberg decided, upon information and belief, that she must “get rid of” Petitioner, and arbitrarily decided to use “observation reports” as the way to do it, despite her knowledge that Petitioner was in a protected category, that of age. Mr. Bahaa Aboughaida entered the school at the same time, and immediately gave Petitioner an unsatisfactory observation report in October. This is hardly the actions of someone who desired to work as a Team, and in a cooperative way with a new staff. As Petitioner was a tenured, award-winning teacher at the same school (See Verified Reply Exhibit “J”) for 9 years before Mrs. Zwillenberg started her job as Principal, and during this “pre-Zwillenberg” time Petitioner had consistently received “satisfactory” and “excellent” observation reports. Petitioner’s first Zwillenberg unsatisfactory observation was made less than two months after the beginning of school and shows vindictiveness and malice without justification or excuse. Nothing had changed in Petitioner’s teaching strategies or in the school except for the appointment of Mrs. Zwillenberg as Principal I.A. in September 2003. 99A. 2d 849, 854 (“Malice”, Barron’s Law Dictionary, p. 306) refers to an “intent to cause the very harm that results or some harm of the same general nature, or an act alone in wanton or willful disregard of the plain and strong likelihood that some such harm will result. There is no other circumstance, justification, excuse or recognized mitigation” that could give reason to the situation of a successful career ended so quickly and unfairly. 118 N.W. 2d 422, 425 (Barron’s, p.306).
The use of observation reports to discipline teachers in New York State cannot be sustained as valid when used arbitrarily, capriciously and in bad faith against a successful teacher such as Petitioner due to Elentuck v. Green (202 AD2d 425 [2d Dept.], lv. to appeal denied, 84 NY2d 809 [1994], reargument denied, 85 NY2d 858 [1995]). In this case, the Courts decided that observation reports are simply opinions, not facts or data.
If the argument is made that New York State is an “employer” and not an “employee” state, then using observation reports as a tool to rid the NYC DOE of teachers who are terminated because of these opinions used as a pretext may be legally valid in court except in those areas protected by the Federal Government which, in the ultimate forum of debate trumps both local and state laws. Petitioner does fall under the federal protection of age discrimination, and therefore alleges that a case could be made that a teacher’s right to redress false claims made in observation reports fall under Title 42 > Chapter 21 > Subchapter I > § 1983 especially if the administrative proceedings have so many violations of due process as in Farrell v Klein which will be discussed below.
A claimant under section § 1983 seeking to recover from a school district for the actions of an employee must produce evidence that the discriminatory treatment – in this case Petitioner alleges the use of “observation reports” to terminate teachers in New York State – resulted from policy or custom or the district to discriminate. Artis v. Francis Howell North Band Booster Association, 161 F.3d 1178 (8th Cir. 1998). Although a policy or custom under section 1983 usually involves more than one act, even a single act may be sufficient. Matthews v. high Island Independent School District, 991 F. Supp. 840 (S.D. Tex. 1998). Petitioner’s case shows that the “observation reports” written by Principal Zwillenberg, AP Aboughaida, and Regional LIS Ben Waxman are not valid tools of teacher discipline and termination as they do not contain any facts or tabulations of data, and therefore their use to remove Petitioner from the classroom shows an inappropriate intent to discriminate against him. Reyes Irizarry, in his memo “The Observation Process” dated September 27, 2004 (Verified Petition, Exhibit “G”), writes:
“The improvement of instruction is the primary goal and responsibility of every principal. The classroom observation is the most effective process to evaluate and improve the quality of instruction in the school. By observing teachers on a regular basis, principals can identify the strengths and needs of teachers as well as develop specific staff development activities to enhance the delivery of instruction in the school. It is the role of the principal to ensure that the observation process is understood to be a support mechanism to improve teaching and not a punitive exercise. The principal must also train all assistant principals supervision on how to effectively use the observation process to develop the teaching skills of all teachers”
The intention to discriminate, once proven, prohibits Respondent from using qualified immunity from damages awards as protection. Coleman v Houston Independent School District, 113 F. 3d 528 (5th Cir. 1997); Mercer v. Hammonds, 134 F. 3d 1066 (11th Cir. 1998). This information should be added to the training manual for Principals on the writing and use of “observation reports” so that no principal will use these observations to terminate the employment of, or harass, good teachers in the future as they will be held accountable for this.
A 73-year old teacher with exemplary evaluations who was given a U-rating after a change in school administration won her case after suing the Sewanhaka Central High School District:
LUCILLE GRUBERG, Plaintiff, --against-- THE BOARD OF EDUCATION OF THE SEWANHAKA CENTRAL HIGH SCHOOL DISTRICT, Defendant, CV 96-3042 (ADS), 3 F. Supp. 2d 280; 1998 U.S. Dist. LEXIS 6079; 73 Empl. Prac. Dec. (CCH) P45,395, decided April 27, 1998. (See Exhibit “B”).
“The plaintiff accurately characterizes her annual evaluations from the time she began her career through 1990 as "more than satisfactory" and often "exemplary… In 1989, the year after she received such glowing accolades, there was a change in administration at the school. Diane Scricca became the Principal of Elmont Memorial High School and Robert Walsh became the Chair of the English Department. That same year, the plaintiff's annual evaluations suddenly plummeted. While the previous year's evaluations commended Gruberg's classroom management skills, Walsh's October 1990 evaluation criticized the teacher, suggesting that she needed to me more of "a strong classroom leader, firmly in control of the entire class at all times. (Defendant's Ex. E to Memorandum of Law in Support of Summary Judgment Motion). Walsh's evaluation of the plaintiff stated that "several times when questioning or helping a child, you so focused on that child that the remainder of the class was [**4] ignored and they became restless and went off task." He criticized her for such things as momentarily turning her back on the class to provide a tissue for a student, and for taking her eyes off the class when peering into the textbook for information, both of which purportedly lead to "lack of eye contact [which] causes problems." Despite these criticisms, Walsh concluded that Gruberg's lesson was "satisfactory" with the "aim of the lesson being accomplished." The plaintiff alleges that following her evaluation conference with Walsh, he told her that she "really ought to retire" and that "the job is getting to be too much for you and it will only get worse."
According to the plaintiff, things, indeed, got much worse for her. The teacher states that "at that point, Mr. Walsh and Ms. Scricca began to make my life impossible in order to force my retirement. I believe, without any doubt whatsoever, that they wanted me to retire because of my age." (Gruberg Aff., P 11). Her evaluations went from glowing in 1989, the year before she began working for Scricca and Walsh, to "mixed," and finally, to "unsatisfactory." By the plaintiff's account, once Scricca and Walsh came into power, she [**5] could not obtain a satisfactory evaluation no matter how hard she tried or whatever she did. "My every move was watched, and every incident the administration thought was improper was documented, no matter how trivial. For example, I was reprimanded for not standing by the door before the bell rang, for allowing my students two minutes at the start of class to settle down, for letting students speak without raising their hands, and for not utilizing the chalk board correctly." (Gruberg Aff., P 13). Her annual performance evaluation for the 1990-1991 school year, while overall satisfactory, noted a "weakness" in her classroom management. The plaintiff alleges that during the following school year, on February 28, 1992, Walsh approached her and said, "Why don't you retire while you still can with dignity?" At the end of the 1991-1992 school year, her annual evaluation was, for the first time in her career, rated "unsatisfactory." (Defendant's Exhibit L).
In June of 1992, as a consequence of the poor evaluation, Gruberg was placed under the Board of Education's Administration Regulation 4117.1 ["the Regulation"] for the next school year. A teacher placed on the Regulation is, in essence, [**6] on probation: a "remediation" plan is developed to address and improve those areas in which the teacher is deemed deficient, she is closely monitored by her supervisor, and more than the usual number of classroom observations are conducted to monitor her progress. The defendant explains that "if the remediation plan fails and the teacher's performance remains unsatisfactory, a decision has to be made as to what other action should be taken." If the teacher is not performing at a satisfactory level, one of the options is for the District to "charge" the teacher with incompetency under § 3020a of the New York Education Law, which provides that in order for a tenured teacher to be discharged for "incompetence," the teacher is entitled to notice of specific charges and hearing before a hearing officer. At such a hearing, the burden of proof is on the District to prove the charges, and the teacher is entitled to representation by counsel, to cross-examine witnesses, and to present witnesses in her own behalf. The hearing officer determines whether the [*283] teacher is "guilty" of the charges and what, if any, penalty should be imposed.
While still in the defendant's employ, the plaintiff filed [**7] age discrimination charges with the New York State Division of Human Rights. On August 4, 1992, following a hearing at which the defendant was represented by counsel and the plaintiff proceeded pro se, the State Division rendered a probable cause determination stating that the purported legitimate business reasons provided by the School District for her treatment were pretextual, and that she was discriminated against based on her age.
When the plaintiff returned to work at the beginning of the 1992-1993 school year, she continued to teach under the remediation plan. However, in the plaintiff's words, from then on, Walsh and Scricca constantly "demoralized, belittled, intimidated and [eventually] coerced me into resigning. They did this by singling me out and subjecting me to a standard of review unequal [to] that of any other teacher similarly situated in the District. They engaged in a deliberate and punitive course of conduct designed to force me to resign because of my age. . . . I worked under constant unwarranted criticism and the threats of an incompetency hearing. I was plagued with numerous requests to retire." (Gruberg Aff., P 31). The plaintiff contends, the defendants [**8] "created working conditions for me that were so intolerable that I was forced to tender my resignation in April 1994, effective in June 1994.’ (Gruberg Aff., P 29).
According to the plaintiff, the defendant's treatment of her was part of a broader discriminatory pattern and practice of ousting older teachers by placing them on the District's Administrative Regulation 4117.1, for purposes of eventually replacing them with younger teachers who are paid less. The plaintiff has named ten other teachers in the district who also were subjected to the Regulation, four of whom also resigned, allegedly as a consequence of being placed on the Regulation and being subjected to treatment similar to that described by Gruberg.”
Petitioner sees many similarities between the case currently before the Commissioner and that of Ms Gruberg, and offers the material below to support his belief that “observation reports” cannot be used to‘constructively discharge’ an employee, or to create an intolerable work atmosphere as Mrs. Zwillenberg, and Mr. Aboughaida did to Petitioner at John Adams High School:
”The plaintiff contends that she has satisfied the "discharge" element of her employment discrimination claim by proffering evidence that she was "constructively discharged." Constructive discharge of an employee occurs when an employer, rather than directly discharging an individual, intentionally creates an intolerable work atmosphere that forces an employee to quit involuntarily. See Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983). Working conditions are intolerable if they are "so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Lopez, 831 F.2d 1184 at 1188 (quoting Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 [1st Cir. 1977]).
In the Court's view, Gruberg has presented evidence sufficient to raise a material triable issue on the question of constructive discharge. The "plaintiff's proof allows [**14] the inference that she was treated arbitrarily and severely criticized despite her strong [*285] performance. A fact finder could infer, from the facts set forth in the affidavits and deposition testimony, that plaintiff was among the most competent employees in the [school]. . . . [A] reasonable person in [Gruberg's] position might have inferred from the circumstances, including the onslaught of unfounded criticism coupled with the threat of [an incompetency hearing and repeated demands that she retire], that she was compelled to leave. . . . Viewed as a whole, the facts in the case at hand, if proven, would permit a finder of fact to conclude that [Gruberg] was forced to resign." Chertkova v. Connecticut General Life Insurance Co., 92 F.3d at 92.
The Court rejects the defendant's contention that the plaintiff's resignation does not constitute a "constructive discharge" as a matter of law (Defendant's Memorandum of Law, at 6). In support of this argument, the defendant cites Stetson v. NYNEX Service Co., 995 F.2d 355 (2d Cir. 1993), where the Court of Appeals held that a constructive discharge could not be established "simply through evidence that an employee [is] dissatisfied [**15] with the nature of his assignments," that he "feels that the quality of his work has been unfairly criticized," or that "the employee's working conditions [are] difficult or unpleasant." In the Court's opinion, the defendant's reliance on Stetson is misguided. As the Second Circuit subsequently clarified in Chertkova v. Connecticut General Life Ins. Co., 92 F.3d at 92,
"While the Court recognizes that a disagreement with management over the quality of an employee's performance will not suffice to establish a constructive discharge. . . . here there is more than a disagreement over quality. Plaintiff's evidence suggests her supervisor[s] engaged in a pattern of baseless criticisms, [repeatedly demanded her retirement, and threatened to bring her up on incompetency charges, a precursor to her discharge.] . . . [A] reasonable person in [Gruberg's] position might have inferred from the circumstances, including the onslaught of unfounded criticism coupled with the threat of [a] termination [hearing], that she was compelled to leave.
The Court finds that there are myriad triable issues of material fact with respect to the issue of constructive discharge. [**16] Accordingly, the defendant's motion for summary judgment as to that issue is denied.”
April 27, 1998, Decided
DISPOSITION: [**1] Defendants' motion for summary judgment denied.
COUNSEL: Robert M. Rosen, Esq., Delvis Melendez, Esq., Of Counsel, ROSEN, LEFF, ATTORNEYS, Hempstead, New York, for Lucille Gruberg, Plaintiff.
Stanley a. Camhi, Esq., Carrie Preble, Esq., Of Counsel, JASPAN, SCHLESINGER, SILVERMAN & HOFFMAN, LLP, Garden City, New York, for Sewanhaka Central High School District, Defendant.
JUDGES: Hon. Arthur D. Spatt, United States District Judge.
OPINIONBY: Arthur D. Spatt
OPINION: [*281] MEMORANDUM OF DECISION AND ORDER
SPATT, District Judge:
This matter arises from the claims of the plaintiff, Lucille Gruberg ("Gruberg" or "the plaintiff'), under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. ("ADEA"), and New York State Executive Law §§ 296 and 297. Presently before the Court is the defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.
I. BACKGROUND
At the time of the filing of the complaint, Gruberg was a seventy-three year old woman who had been employed by the defendant, the Board of Education of the Sewanhaka Central High School District (the "School District" or "the defendant"), as an English teacher [**2] in the Elmont Memorial High School ("High School") for more than twenty years, from September 1972 until June 1994. The plaintiff accurately characterizes her annual evaluations from the time she began her career through 1990 as "more than satisfactory" and often "exemplary." For example, her annual evaluation for the 1988-1989 school year included the following high praise:
Mrs. Lucille Gruberg is an experienced and knowledgeable teacher of English.
. . . Mrs. Gruberg planned lessons that would not only cover the many facets of the English courses of study but would also stretch students' minds. For her English 12 and 12NR students, especially, Mrs. Gruberg continually searched for stimulating materials that would force these students to think about what they wanted out of life and how to respond to the challenges that life offered.
Mrs. Gruberg is a caring teacher who tries to help students to reach their potential. She sets high standards for her classes and is completely in control of her students and her lesson. She respects her students, and they respect her.
Mrs. Gruberg is always willing to try out new ideas and approaches to encourage her students [**3] to write with confidence and to write better. . . .
Mrs. Gruberg is a responsible member of the English Department, performing her various duties effectively and conscientiously. [*282] This has been an excellent, productive year for Mrs. Gruberg.
(Plaintiff's Ex. B. Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment)(emphasis added).
In 1989, the year after she received such glowing accolades, there was a change in administration at the school. Diane Scricca became the Principal of Elmont Memorial High School and Robert Walsh became the Chair of the English Department. That same year, the plaintiff's annual evaluations suddenly plummeted. While the previous year's evaluations commended Gruberg's classroom management skills, Walsh's October 1990 evaluation criticized the teacher, suggesting that she needed to me more of "a strong classroom leader, firmly in control of the entire class at all times." (Defendant's Ex. E to Memorandum of Law in Support of Summary Judgment Motion). Walsh's evaluation of the plaintiff stated that "several times when questioning or helping a child, you so focused on that child that the remainder of the class was [**4] ignored and they became restless and went off task." He criticized her for such things as momentarily turning her back on the class to provide a tissue for a student, and for taking her eyes off the class when peering into the textbook for information, both of which purportedly lead to "lack of eye contact [which] causes problems." Despite these criticisms, Walsh concluded that Gruberg's lesson was "satisfactory" with the "aim of the lesson being accomplished." The plaintiff alleges that following her evaluation conference with Walsh, he told her that she "really ought to retire" and that "the job is getting to be too much for you and it will only get worse."
According to the plaintiff, things, indeed, got much worse for her. The teacher states that "at that point, Mr. Walsh and Ms. Scricca began to make my life impossible in order to force my retirement. I believe, without any doubt whatsoever, that they wanted me to retire because of my age." (Gruberg Aff., P 11). Her evaluations went from glowing in 1989, the year before she began working for Scricca and Walsh, to "mixed," and finally, to "unsatisfactory." By the plaintiff's account, once Scricca and Walsh came into power, she [**5] could not obtain a satisfactory evaluation no matter how hard she tried or whatever she did. "My every move was watched, and every incident the administration thought was improper was documented, no matter how trivial. For example, I was reprimanded for not standing by the door before the bell rang, for allowing my students two minutes at the start of class to settle down, for letting students speak without raising their hands, and for not utilizing the chalk board correctly." (Gruberg Aff., P 13). Her annual performance evaluation for the 1990-1991 school year, while overall satisfactory, noted a "weakness" in her classroom management. The plaintiff alleges that during the following school year, on February 28, 1992, Walsh approached her and said, "Why don't you retire while you still can with dignity?" At the end of the 1991-1992 school year, her annual evaluation was, for the first time in her career, rated "unsatisfactory." (Defendant's Exhibit L).
In June of 1992, as a consequence of the poor evaluation, Gruberg was placed under the Board of Education's Administration Regulation 4117.1 ["the Regulation"] for the next school year. A teacher placed on the Regulation is, in essence, [**6] on probation: a "remediation" plan is developed to address and improve those areas in which the teacher is deemed deficient, she is closely monitored by her supervisor, and more than the usual number of classroom observations are conducted to monitor her progress. The defendant explains that "if the remediation plan fails and the teacher's performance remains unsatisfactory, a decision has to be made as to what other action should be taken." If the teacher is not performing at a satisfactory level, one of the options is for the District to "charge" the teacher with incompetency under § 3020a of the New York Education Law, which provides that in order for a tenured teacher to be discharged for "incompetence," the teacher is entitled to notice of specific charges and hearing before a hearing officer. At such a hearing, the burden of proof is on the District to prove the charges, and the teacher is entitled to representation by counsel, to cross-examine witnesses, and to present witnesses in her own behalf. The hearing officer determines whether the [*283] teacher is "guilty" of the charges and what, if any, penalty should be imposed.
While still in the defendant's employ, the plaintiff filed [**7] age discrimination charges with the New York State Division of Human Rights. On August 4, 1992, following a hearing at which the defendant was represented by counsel and the plaintiff proceeded pro se, the State Division rendered a probable cause determination stating that the purported legitimate business reasons provided by the School District for her treatment were pretextual, and that she was discriminated against based on her age.
When the plaintiff returned to work at the beginning of the 1992-1993 school year, she continued to teach under the remediation plan. However, in the plaintiff's words, from then on, Walsh and Scricca constantly "demoralized, belittled, intimidated and [eventually] coerced me into resigning. They did this by singling me out and subjecting me to a standard of review unequal [to] that of any other teacher similarly situated in the District. They engaged in a deliberate and punitive course of conduct designed to force me to resign because of my age. . . . I worked under constant unwarranted criticism and the threats of an incompetency hearing. I was plagued with numerous requests to retire." (Gruberg Aff., P 31). The plaintiff contends, the defendants [**8] "created working conditions for me that were so intolerable that I was forced to tender my resignation in April 1994, effective in June 1994." (Gruberg Aff., P 29).
According to the plaintiff, the defendant's treatment of her was part of a broader discriminatory pattern and practice of ousting older teachers by placing them on the District's Administrative Regulation 4117.1, for purposes of eventually replacing them with younger teachers who are paid less. The plaintiff has named ten other teachers in the district who also were subjected to the Regulation, four of whom also resigned, allegedly as a consequence of being placed on the Regulation and being subjected to treatment similar to that described by Gruberg.
II. DISCUSSION
A. Summary Judgment: the Standard
A district court may grant summary judgment only if the evidence, viewed in the light most favorable to the party opposing the motion, presents no genuine issue of material fact, Samuels v. Mockry, 77 F.3d 34, 35 (2d Cir. 1996), and the movant is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The Court must, however, [**9] resolve all ambiguities and draw all reasonable inferences in the light most favorable to the party opposing the motion. See Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir. 1995). A genuine issue of material fact exists if "a reasonable jury could return a verdict for the nonmoving party." Vann v. City of New York, 72 F.3d 1040 (2d Cir. 1995).
Mere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment. Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996). If there is evidence in the record as to any material fact from which an inference could be drawn in favor of the non-movant, summary judgment is unavailable. Holt v. KMI-Continental, Inc., 95 F.3d 123, 128 (2d Cir. 1996), cert. denied, 520 U.S. 1228, 117 S. Ct. 1819, 137 L. Ed. 2d 1027 (1997); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991). The District Court is charged with the function of "issue finding", not "issue resolution." Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1224 (2d Cir. 1994).
Finally, the Court of Appeals has warned that trial courts must be especially cautious about granting summary judgment in discrimination [**10] cases, because in such cases the employer's intent is ordinarily at issue. See, e.g., Gallo, 22 F.3d at 1224. Since it is rare to find in an employer's records direct proof that a personnel decision was made for a discriminatory reason, whatever other relevant depositions, affidavits and materials are before the district court must be carefully scrutinized for circumstantial evidence that could support an inference of discrimination. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994).
[*284] It is within this framework that the Court addresses the grounds for the present motion for summary judgment.
B. ADEA: The Standards
The ADEA provides, in relevant part, that it is "unlawful for an employer . . . to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). At trial, it is the plaintiff's burden to prove employment discrimination on the basis of age. Gallo, 22 F.3d at 1224. The Court notes that age discrimination claims brought under the New York State Human Rights Law, N.Y.Exec.Law §§ 290-301, [**11] are governed by the same standards as those brought under the ADEA. Wanamaker v. Columbian Rope Co., 108 F.3d 462, 467 (2d Cir. 1997); Spence v. Maryland Casualty Co., 995 F.2d 1147, 1158 (2d Cir. 1993).
A plaintiff asserting an age discrimination claim must meet an initial burden of presenting evidence sufficient to establish a prima facie case of the alleged violation of ADEA. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506, 113 S. Ct. 2742, 2746-47, 125 L. Ed. 2d 407 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 1093-94, 67 L. Ed. 2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973); Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995). Once the plaintiff establishes a prima facie case, the burden shifts to the employer to rebut it through the introduction of evidence of non-discriminatory reasons that support a finding that unlawful discrimination was not the cause of the discharge. Hicks, 509 U.S. at 506-07, 113 S. Ct. at 2746-47; Cronin, 46 F.3d at 203. The plaintiff retains the 'ultimate burden of persuasion" and the burden [**12] of proof to demonstrate that the challenged employment action was the result of intentional age discrimination. Hicks, 509 U.S. at 511, 113 S. Ct. at 2749; Cronin, 46 F.3d at 203. Since, in this case, the plaintiff resigned, she also has the burden of proving a "constructive discharge."
A prima facie case of discharge resulting from age discrimination is established if the plaintiff shows, through direct or circumstantial evidence, that: (1) she was within the protected age group; (2) she was qualified for the position; (3) she was discharged; and (4) the discharge occurred under circumstances giving rise to an inference of discrimination. Cronin, 46 F.3d at 204. To defeat a defendant's motion for summary judgment, the plaintiff need only show that there is a material issue of fact as to whether (1) the employer's asserted reason for discharge is false or unworthy of belief; and (2) it is more likely than not that an unlawful basis of discharge was the true reason. Chertkova v. Connecticut General Life Insurance Co., 92 F.3d 81, 92 (2d Cir. 1996).
The parties agree that the plaintiff was within the protected age group. Instead, the disputed issues in this case center [**13] on whether: (1) the plaintiff can establish that she was "discharged"; (2) the "discharge" occurred under circumstances giving rise to an inference of age discrimination; and (3) the defendant had legitimate, non-discriminatory reasons for the employment actions taken.
i. Constructive Discharge
The plaintiff contends that she has satisfied the "discharge" element of her employment discrimination claim by proffering evidence that she was "constructively discharged." Constructive discharge of an employee occurs when an employer, rather than directly discharging an individual, intentionally creates an intolerable work atmosphere that forces an employee to quit involuntarily. See Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983). Working conditions are intolerable if they are "so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Lopez, 831 F.2d 1184 at 1188 (quoting Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 [1st Cir. 1977]).
In the Court's view, Gruberg has presented evidence sufficient to raise a material triable issue on the question of constructive discharge. The "plaintiff's proof allows [**14] the inference that she was treated arbitrarily and severely criticized despite her strong [*285] performance. A fact finder could infer, from the facts set forth in the affidavits and deposition testimony, that plaintiff was among the most competent employees in the [school]. . . . [A] reasonable person in [Gruberg's] position might have inferred from the circumstances, including the onslaught of unfounded criticism coupled with the threat of [an incompetency hearing and repeated demands that she retire], that she was compelled to leave. . . . Viewed as a whole, the facts in the case at hand, if proven, would permit a finder of fact to conclude that [Gruberg] was forced to resign." Chertkova v. Connecticut General Life Insurance Co., 92 F.3d at 92.
The Court rejects the defendant's contention that the plaintiff's resignation does not constitute a "constructive discharge" as a matter of law (Defendant's Memorandum of Law, at 6). In support of this argument, the defendant cites Stetson v. NYNEX Service Co., 995 F.2d 355 (2d Cir. 1993), where the Court of Appeals held that a constructive discharge could not be established "simply through evidence that an employee [is] dissatisfied [**15] with the nature of his assignments," that he "feels that the quality of his work has been unfairly criticized," or that "the employee's working conditions [are] difficult or unpleasant." In the Court's opinion, the defendant's reliance on Stetson is misguided. As the Second Circuit subsequently clarified in Chertkova v. Connecticut General Life Ins. Co., 92 F.3d at 92,
"While the Court recognizes that a disagreement with management over the quality of an employee's performance will not suffice to establish a constructive discharge. . . . here there is more than a disagreement over quality. Plaintiff's evidence suggests her supervisor[s] engaged in a pattern of baseless criticisms, [repeatedly demanded her retirement, and threatened to bring her up on incompetency charges, a precursor to her discharge.] . . . [A] reasonable person in [Gruberg's] position might have inferred from the circumstances, including the onslaught of unfounded criticism coupled with the threat of [a] termination [hearing], that she was compelled to leave.
The Court finds that there are myriad triable issues of material fact with respect to the issue of constructive discharge. [**16] Accordingly, the defendant's motion for summary judgment as to that issue is denied.
ii. The Defendant's Asserted Reasons for Their Employment Decisions
The Court also concludes that this case is replete with genuine issues of material fact with respect to the defendant's asserted reasons for their employment decisions, and whether it is more likely than not that the defendant was motivated by the plaintiff's age. The Court begins with the plaintiff's age, a robust seventy-three. Additionally, in the Court's opinion, the plaintiff has presented substantial circumstantial evidence that the defendant sought to oust her due to her age. Just one year before Walsh and Scricca assumed power, she received a stellar annual review which commended her superior classroom management, innovative teaching style, and inspiring lectures. One year later, the same teacher was criticized for poor classroom control, and purported inability to capture her students' attention. In addition to this circumstantial proof, the plaintiff has alleged that Walsh and Scricca made various statements evidencing their improper motivation -- remarks such as that she "really ought to retire" and that "the job is [**17] getting to be too much for you and it will only get worse." Such classic, key statements are thinly veiled references to the plaintiff's age -- or so a jury reasonably could find. While the defendant asserts that the reason for the sudden, drastic change in the plaintiff's evaluation was due to Walsh's practice of conducting unannounced evaluations, in contrast to his predecessor's preference to forewarn teachers of any observations, this merely underscores the presence of material issues of fact as to the reasons for the defendant's employment decisions.
In addition, the plaintiff has raised the specter of a discriminatory pattern and practice of forcing out older teachers by placing them on the District's Administrative Regulation 4117.1, only to replace them with younger teachers who, interestingly, command less salaries. In fact, the plaintiff has named ten other teachers within the district who [*286] also were subjected to such treatment, four of whom resigned while on the Regulation remediation plan. Moreover, the plaintiff states that she was replaced with a teacher approximately twenty to thirty years her junior who was entitled to a much lower salary than the plaintiff earned. [**18] This latter assertion also raises a classic factual issue in an age discrimination case.
In sum, the Court concludes that this case is loaded with genuine issues of material fact. For this reason, and in view of the Second Circuit's directive that the plaintiff's burden of establishing a prima facie case in a discrimination suit is "de minimis," Chambers, 43 F.3d at 37, the defendant's motion for summary judgment is denied in all respects.
III. CONCLUSION
For the reasons stated above, it is hereby
ORDERED, that the defendants' motion for summary judgment is denied.
SO ORDERED.
Dated: Uniondale, New York
April 27, 1998
Hon. Arthur D. Spatt
United States District Judge
POINT I
TEACHERS DO NOT HAVE ANY LEGAL OBLIGATION TO IMPLEMENT THE ADVICE OR SUGGESTIONS OF SUPERVISORS AND MAY NOT BE RATED “UNSATISFACTORY” OR OTHERWISE DISCIPLINED, FOR AN ALLEGED FAILURE TO IMPLEMENT SUCH
Throughout the State of New York, teachers are not required to implement advice, recommendations, suggestions, and the like, even if they originate from supervisory personnel. Furthermore, teachers may not be rated “unsatisfactory,” or otherwise disciplined, for an alleged failure to implement such.
On March 6, 1986, Former Commissioner of Education Gordon Ambach determined Appeal of Board of Education of the Orchard Park Central School District (25 EDR 331). Commissioner Ambach stated on page 332:“Absent a violation of an established school rule or a direct order from a supervisor, respondent’s behavior would not constitute neglect of duty. Although petitioner identifies certain provisions of the school building manual as the source of a rule against leaving students to work unsupervised in the hallway, those provisions are expressed in terms of suggestions to teachers rather than directives. Upon careful review of the record, I find that petitioner failed to establish that respondent’s conduct breached any mandatory school rule or directive by a supervisor.”
POINT II
RESPONDENT HAS ADMITTED THAT ELENTUCK V. GREEN WAS A PROPER HOLDING, BUT MISREPRESENTED THE SCOPE OF THE HOLDING
On Page 19 of Respondent’s Memorandum of Law is the statement, “The Court properly held that the observation reports were exempt from production under FOIL pursuant to Public Officers Law § 87(2)(g) because they were intra-agency materials which were not ‘(i) statistical or factual tabulations or data,’ but rather were intra-agency ‘advice, criticisms, evaluations, and recommendations.’ ” However, respondent misrepresented the case as, “In Elentuck, the sole issue before the Court was whether the observation reports sought by the petitioner in that case were within one of the recognized exemptions to the Freedom of Information Law (‘FOIL’).” Respondent did not reveal that Elentuck also involved public access to Chancellor’s Committee reports and other records, and that a voluminous collection of records was being sought, for instance, “all Chancellor’s Committee reports, Education Law §3020-a reports, and ‘unsatisfactory’ lesson observation reports in the possession of Community School District/Board 24.”
POINT III
THE PROFESSIONAL PERFORMANCE REVIEW PLAN USED BY THE NEW YORK CITY DEPARTMENT OF EDUCATION DOES NOT COMPLY WITH §100.2(o)(2) OF THE COMMISSIONER’S REGULATIONS
The undated material, “Teaching for the 21st Century,” submitted by respondent as Exhibit 8, which, significantly, was missing Appendix B in its entirety, and several of the “credit pages,” was promulgated a number of years prior to the passage of §100.2(o)(2). Nonetheless, the material contained the statement on page A8: “A new professional performance review report for New York City public school teachers will replace form BE/DOP 9955B (5/87) and be the official performance review document placed in a teacher’s personnel file.” Clearly, an examination of petitioner’s rating form for the 2003-2004 school year reveals that form BE/DOP 9955B (5/87) is still in use.
POINT IV
PETITIONER’S ORIGINAL “UNSATISFACTORY” RATING AND THE ALLEGED UPHOLDING OF SUCH BY SOMEONE ASSOCIATED WITH CARMEN FARIÑA WAS ARBITRARY, CAPRICIOUS, IRRATIONAL, AND IN BAD FAITH
In Canty v. New York City Board of Education (312 F. Supp. 254), the United States District Court of the Southern District of New York stated:
"The terms 'arbitrary' and 'capricious' embrace a concept which emerges from the due process clauses of the Fifth and Fourteenth Amendments of the United States Constitution and operates to guarantee that the acts of government will be grounded on established legal principles and have a rational factual basis. A decision is arbitrary or capricious when it is not supported by evidence or when there is no reasonable justification for the decision."
No “statistical or factual tabulations or data” or “instructions to staff that affect the public” pertaining to petitioner’s 2003-2004 teaching service were served upon petitioner prior to the U-rating hearing. No “statistical or factual tabulations or data” or “instructions to staff that affect the public” pertaining to petitioner’s 2003-2004 teaching service were presented to petitioner during the U-rating hearing. No “statistical or factual tabulations or data” or “instructions to staff that affect the public” pertaining to petitioner’s 2003-2004 teaching service were presented to Joel I. Klein or Carmen Fariña after the U-rating hearing had concluded, and prior to the November 29, 2004 personalized form letter being generated.
The Commissioner of Education order respondent Klein to vacate Petitioner’s “Unsatisfactory” rating, and to direct that a “Satisfactory” rating be substituted therefor. The Commissioner of Education order the Panel for Educational Policy to take all necessary actions to promptly implement §100.2(o) (2) of the Regulations of the Commissioner of Education.
The Commissioner of Education order the Panel for Educational Policy to revise its By-laws to ensure that employees receive due process at administrative reviews.
The Commissioner of Education order Virginia Caputo to revise the staff manuals of the Office of Appeals and Reviews so that employees and Union officials are accorded, and are properly informed of, due process procedures.
The Commissioner of Education order audits of the Panel for Educational Policy to ensure that §100.2(o)(2) of the Commissioner’s Regulations is being fully complied with, to forward one copy of the report of each audit to the New York State Education Department, and to post the audit reports on New York City’s official Website.
The Commissioner of Education order the Panel for Educational Policy to revise its By-laws to ensure that teachers are furnished a copy of the hearing panel report, and that they be given an appropriate time period to respond in writing, before the report is forwarded to the Chancellor for final decision on the matter.
The Commissioner of Education order respondent Klein to ensure that either he, personally, or his designee, personally, sign decision letters in the future, and that no initialed signatures are permissible.
The Commissioner order the Panel for Educational Policy to develop written procedures guaranteeing that the decision of the Chancellor, or the Chancellor’s designee, is appealable to the full Panel, in a manner reflective of fundamental due process.
An opportunity to present oral argument before the Commissioner.
8. Such other relief as the Commissioner deems just and proper.
CONCLUSION
For the reasons set forth herein, and in petitioner’s verified petition, verified reply, and the exhibits annexed to both, petitioner respectfully requests that the petition be granted and the relief requested therein be granted in all respects.
Dated: May 16, 2005
ED FARRELL
The Commissioner dismissed the Petition:
Appeal of EDMOND FARRELL from action of the New York City Department of Education and Chancellor Joel I. Klein regarding an unsatisfactory rating.
Decision
No. 15,308
(September
15, 2005)
Michael A. Cardozo, Corporation
Counsel, attorney for respondents, Robert Katz and Ilana A. Eck, Esqs., of
counsel
MILLS, Commissioner.--Petitioner
challenges an unsatisfactory rating for his teaching performance during the
2003-2004 school year. The appeal must be dismissed.
During the 2003-2004 school year,
petitioner was a tenured mathematics teacher at John Adams High School, a
public school now operated by the New York City Department of Education.
Petitioner has taught there since September 1994, and for nine consecutive
years received satisfactory ratings from two different principals.
In 2003-2004, Grace Zwillenberg, who
had been an administrator at the school, became interim acting principal and
later principal. During that school year, petitioner was observed on six
different occasions by various administrators, from October 21, 2003 through
June 7, 2004. On each occasion, the reviewers considered his performance
unsatisfactory. At the end of that school year, petitioner received an
unsatisfactory rating for the year.
Petitioner appealed the rating
pursuant to district bylaws. On November 8, 2004, a Chancellor's Administrative
Review Committee ("Committee") chaired by Marianne Alvarez convened
to hear petitioner's appeal. Petitioner was accompanied by a representative of
the United Federation of Teachers, who was not an attorney. The Committee
received testimony by telephone from Principal Zwillenberg and from
Math/Business Assistant Principal Bahaa Aboughaida. Petitioner also testified,
and introduced 24 documents. Chairperson Alvarez ruled that certain witnesses
proposed by petitioner would not be heard.
On November 15, 2004, the Committee
recommended to the Chancellor that petitioner's appeal be denied. By letter
dated November 29, 2004, Carmen Farina, the Deputy Chancellor for Teaching and
Learning, as the Chancellor's designee, denied petitioner' s appeal. She wrote:
Please be advised that the appeal of Mr.
Edmond Farrell from the rating of "Unsatisfactory" for the period
ending June 2004 has been denied and the said rating is sustained as a
consequence of ratings on the annual review form, testimony at the Review and
failure to provide an acceptable level of instructional service for the
students in his charge.
Petitioner states that he received this
letter on December 3, 2004. He commenced this appeal on December 30, 2004.
Petitioner asks that I vacate the
unsatisfactory rating and direct respondents to rate him satisfactory for the
2003-2004 school year.
Petitioner contends, among other
things, that the Chancellor's determination was arbitrary, capricious, and in
bad faith. Petitioner further claims that he had no legal or contractual
obligation to implement the suggestions made by reviewers throughout the year.
He maintains that he was never given a copy of the professional performance
review plan upon which he was rated, and claims that the review plan did not
comply with �100.2(o)(2) of
the Commissioner' s regulations. He also claims that the Committee deprived him
of due process because he was not represented by counsel, his
witnesses were not allowed to testify, and two of respondents' witnesses were
allowed to testify by telephone.
Respondents deny petitioner's claims,
and contend that the observations, the unsatisfactory rating, the review process,
and the Chancellor's final determination all complied with law.
Before considering the merits, I must
comment on certain materials submitted by petitioner, beginning with his reply.
The purpose of a reply is to respond to new material or affirmative defenses
set forth in an answer (8 NYCRR ��275.3 and
275.14). A reply is not meant to buttress allegations in the petition or to
belatedly add assertions that should have been in the petition (Appeal
of Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Appeal
of Kirschenbaum, 43 id. 366, Decision No. 15,020; Appeal of
Hollister, 39 id. 109, Decision No. 14,188). Therefore, while I have
reviewed the reply, I have not considered those portions containing new
allegations or exhibits that are not responsive to new material or affirmative
defenses set forth in the answer.
Petitioner also requests that I
consider a videotape of an appearance by petitioner on a television newscast
and a copy of his annual performance review for the 2004-2005 school year.
Petitioner has not shown that these additional materials relate to the subject
matter of this appeal. Consequently, I have not considered them.
The standard of proof required to
overturn a teacher rating is very high. In Appeal of Gordon (36 Ed Dept
Rep 343, Decision No. 13,743), which also concerned a teacher rating, I wrote:
With respect to appeals challenging
unsatisfactory ratings, in the absence of a showing of malice, prejudice, bad
faith or gross error, the Commissioner will not substitute his judgment for that
of the Chancellor (Appeal of Bristol, 33 Ed Dept Rep 202; Matter of
Taylor, 23 id. 482). Petitioner has the burden of establishing the
facts upon which he or she seeks relief (Appeal of Marek, 35 Ed Dept Rep
314; Appeal of Nash, 35 id. 203; Appeal of Goldman, 35 id.
126) and the burden of demonstrating a clear legal right to the relief
requested (Appeal of Marek, supra; Appeal of Nash, supra;
Appeal of DiMicelli, 28 Ed Dept Rep 327).
(see alsoAppeal of Schreiber,
44 Ed Dept Rep ___, Decision No. 15,209, in which I adhered to that standard).
Petitioner claims that his
unsatisfactory rating of June 28, 2004, which was upheld by the Chancellor's
designee on November 29, 2004, was arbitrary and capricious, and was issued in
bad faith. Respondents have provided the actual observation reports from six
occasions during the 2003-2004 school year. They provide substantial factual
detail regarding the lessons presented, the behavior of petitioner, his
performance as a teacher, and the actions of his students. Aside from
differences over teaching methodology, it is clear that many deficiencies are
documented. For example, petitioner had poor control of the class, in that
students were allowed to enter late, move about the room, and leave the room at
will, without any consequences. The observers noted that the lessons were
"teacher dominated" and that there was little opportunity for
students to become actively engaged in the lessons being observed.
Each observation report contains
suggestions for improvement of petitioner's performance. However, petitioner
has taken the position that he is not legally obligated to follow suggestions
given, but only to obey directives. Petitioner fails to understand that the
repeated failure to follow suggestions to improve invites a continuing series
of unsatisfactory evaluations.
Petitioner also claims that
respondents have not complied with �100.2(o)(2) of the Commissioner's regulations in adopting evaluation
standards, and claims that he was never provided with the applicable standards.
Respondents state unequivocally that the evaluation procedures are in
compliance with the regulation, that the applicable standards are found in a
document entitled "Teaching for the 21st Century," and that Article
8J of the Collective Bargaining Agreement between respondent Department and the
United Federation of Teachers specifies that the "entire agreement with
respect to the system of evaluation of pedagogical employees is embodied"
in that document. As with any governmental action, there is a presumption of
regularity that such action is and was taken in a legal fashion (57 NY Jur 2d,
Evidence and Witnesses, ��118-121; Matter
of Rickett v. Hackbarth, 98 Misc 2d 790; Matter of
Leichter v. Barrett, 208 Misc 577). Petitioner provides no facts that would
rebut the presumption, and does not allege that respondents were obligated to
provide him with his own copy of that document. In any event, I note that the
evaluation at issue in this appeal is based upon the same factors and the same
evaluation form as used in the previous nine years, and I find that petitioner
was sufficiently informed as to the standards which would be used to evaluate
him.
With respect to the hearing by the
Committee, I do not find that petitioner was deprived of due process. While there
appeared to be some confusion as to whether or not petitioner could be
represented by counsel, in fact his union, the United Federation of Teachers,
appointed a non- attorney to represent him. This is a matter between petitioner
and his union, and, after reviewing the hearing transcript, I cannot say that
he was not adequately represented.
Prior to the hearing, the union
advised Virginia Caputo, the Director of the Office of Appeals and Reviews,
that petitioner wished to call six witnesses, three of whom were attorneys for
the Department of Education who had no connection with his case. Caputo advised
that the attorneys would not be proper witnesses, and petitioner did not
seriously pursue that issue at the hearing.
Petitioner also wanted to call Irving
Schachter, a retired teacher, who was not present at the hearing, Norman Scott,
a retired teacher, and Betsy Combier, both of whom were outside the hearing
room. Petitioner did not press to have Schachter testify. The chairperson
examined Combier briefly, determined that she had no personal knowledge of the
case, and ruled that she could therefore not testify. With respect to Scott,
the chairperson may have improperly excluded him on the ground that he was not
on the witness list, when in fact his name did go to Caputo. However, as
respondents point out, Mr. Scott never worked at John Adams High School, and it
seems doubtful that he could have had any personal knowledge that would have
added any relevant information. Petitioner has not indicated what Scott would
have said if he had been permitted to testify, and I must conclude that, while
this may have been error, it was not serious or material error.
Petitioner also claims that Principal
Zwillenberg and Assistant Principal Aboughaida were permitted to testify by
telephone, depriving petitioner of the opportunity to observe their demeaner as
they testified. Although I recognize the importance of cross examination, it is
clear that �4.3.3 of the
By-laws of the Panel for Educational Policy of the Department of
Education of the City School District of the City of New York permits such a
practice: "Nothing herein shall preclude witnesses from appearing at
review proceedings by teleconference or other technological means." In
sum, I cannot conclude that petitioner was deprived of due process at the
hearing.
A petition must contain "a clear
and concise statement of the petitioner's claim showing that the petitioner is
entitled to relief, and shall further contain a demand for the relief to which
the petitioner deems himself entitled" (8 NYCRR �275.10). Such statement must be sufficiently clear to advise a respondent
of the nature of petitioner's claim and of the specific act or acts complained
of (id.). Where petitioner is not
represented by counsel, a liberal interpretation of this regulation is
appropriate absent prejudice to the opposing party (Appeal of Darrow, 43
Ed Dept Rep 394, Decision No. 15,029; Appeal of Eckert, 40 id.
433, Decision No. 14,520). Where a petition fails to state a comprehensible
claim and fails to identify the specific remedy sought, it will be dismissed (seeAppeal
of Darrow, 43 Ed Dept Rep 394, Decision No. 15,029; Appeal of Stephen
and Roseanne W., 39 id. 808, Decision No. 14,388).
The petition in this matter claims
that the unsatisfactory rating was arbitrary, capricious, irrational, and
issued in bad faith. However, the only specific allegation in the petition is
that the chairperson was biased in favor of Principal Zwillenberg, as indicated
by an off-the-record remark allegedly made after the conclusion of the hearing.
As a result, petitioner has not submitted any evidence of actual bias
sufficient to warrant reversal of the unsatisfactory rating based upon bias.
It appears that the real basis for
petitioner's challenge to his unsatisfactory rating is stated in his memorandum
of law, which improperly offers new allegations. A memorandum of law should
consist of arguments of law (8 NYCRR �276.4). It may not be used to add belated assertions
or exhibits that are not part of the pleadings (Appeal of Schultz, 45 Ed
Dept Rep ____, Decision No. 15,242; Appeal of N.L., 44 id. 216,
Decision No. 15,153; Appeal of Smolen, 43 id. 296, Decision No.
15,000).
On page 12 of his memorandum,
petitioner alleges that he and Principal Zwillenberg had a history of prior
disputes that originated from a time when Mrs. Zwillenberg was an assistant
principal. Petitioner states that he believes Zwillenberg decided that she must
"get rid of" petitioner and decided to do that by the use of
unfavorable observation reports, despite her knowledge that petitioner was
"in a protected category, that of age." On page three, petitioner
states that he came to realize that Mrs. Zwillenberg and Mr. Aboughaida "were
out to get him." Petitioner followed these remarks with approximately
eight pages of argument relating to age discrimination against teachers in
respondents' district and elsewhere, including lengthy quotes from a federal
court decision and a Public Employees Relations Board decision. If, indeed,
this is the true basis of petitioner' s complaint, it should have been included
in the petition, under oath, allowing respondents to answer the claim, rather
than alleged in unsworn form in a memorandum of law which respondents had no
opportunity to answer.
In conclusion, petitioner has failed
to meet his burden of proof that the unsatisfactory rating assigned to him was
the result of malice, prejudice, bad faith, or gross error, and I will not
substitute my judgment for that of the Chancellor.
In view of this disposition, I need
not consider the parties' other claims, which I find without merit.
THE APPEAL IS DISMISSED.
END OF FILE