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Friday, April 3, 2015

Bad Faith (2012) and Employment at Will

When an individual is discontinued from his/her Department of Education job, an Appeal must prove bad faith.

What is "bad faith"? I have posted on this subject previously.

See what these sites say for some interesting reading, and to prepare a lawsuit or a defense in arbitration:
The At-Will Presumption and Exceptions to the Rule
 Employment at Will
Latest Word on At-Will Employment and Wrongful Termination Claims 
Does Your Employer’s Termination Decision “Radiate” Bad Faith?
Fifth Circuit Court of Appeals Recognizes Bad Faith Termination Claim Against Supervisor Under Mississippi Law                                                                                 
Employee Termination

and then there is Leo Casey's 2012 Statement on Edwize:

In Bad Faith

There is but one conclusion that can be drawn from the NYC Department of Education’s last minute walk out of negotiations over a teacher evaluation system for 33 schools placed in the Transformation and Restart models: it was always Tweed’s intention to refuse to enter into an agreement for teacher evaluations.

Part of the evidence for this conclusion comes from the conduct of NYC DOE officials during negotiations. Throughout the month of December, the UFT made intensive efforts to bring these negotiations to a successful conclusion before the NYS Education Department’s deadline of December 31. Yet while UFT officers and staff canceled vacation plans to work on a potential agreement, key actors on the DOE side, such as the lawyer who writes up contractual agreements, were outside of New York City on vacation as the clock ticked down.
To move the negotiations forward, two different UFT-DOE working committees were established, with UFT officers and staff on each committee. The first committee met often, did an extraordinary amount of work, established joint working groups to prepare local assessments and reached agreement in principle on every important issue before it. The second committee, which included two Deputy Chancellors on the DOE side, was an entirely different story. Despite the looming deadline, the Deputy Chancellor leading their side had to be contacted three times before he responded to a request to set up the first meeting of that committee. The DOE group would come strolling into every meeting of the committee at least 30 minutes late. Shortly after the first committee completed its work, the two Deputy Chancellors come to their committee, announced that they would not agree with any system of appeals that was not essentially the same as the status quo, and walked out, declaring the negotiations over despite statements from the UFT that they should continue. President Mulgrew called Chancellor Walcott with an offer to submit this issue to binding arbitration, which was immediately turned down. Within a matter of minutes of the walk out, Tweed release a prepared statement justifying its actions.
Equally telling was the issue over which Tweed broke up the negotiations: whether or not there would be a meaningful system of appeals for end year ratings of ineffective. The DOE has stonewalled UFT requests to provide numbers of appeals filed and sustained under the current U rating appeals system, forcing us to file a Freedom of Information request. The data that we do possess, coming from members who come to us to contest their ratings, suggests a reason why these numbers are treated as ‘state secrets’ at Tweed: of the last 2000 appeals on the UFT’s books, the DOE has sustained the teacher exactly 10 times. The rate at which Tweed’s hearing officers turn down appeals is thus 99.5%, a figure that would be more appropriate for Stalinist show trials than a legitimate due process procedure. That is the process that the DOE refuses to negotiate.
The U rating appeals of the NYC DOE were not always a kangaroo court. Prior to the Bloomberg administration, a meaningful number of appeals led to the overturning of a unsatisfactory rating, a sign that hearing officers actually examined the facts presented to them. But under Bloomberg, the hearing officers have been under marching orders to turn down all appeals. It is this change, combined with the burden of proof that the new state evaluation law places on a teacher receiving two ineffective ratings in a row, that has led the UFT to insist upon changes in the current appeals process.
Appearing on his weekly radio show with John Gambling, Mayor Bloomberg explained why he opposed the UFT’s position that teachers should have the right to appeal negative unsatisfactory and ineffective ratings to an independent hearing officer, rather than a DOE employee.[1] “The principals’ job is to decide who’s good, who’s bad,” the mayor said. “It’s their judgment, that’s their job.” Subjective ratings are simply the way things work with bosses, and a mix of good and bad personnel decisions are “just part of the real world.”
Before we take the mayor at his word, it is worth recalling what he was saying about principal judgment on personnel matters nine months ago, when tenure decisions were being made. Conveniently ignoring the fact that tenure decisions are made at the end of a three year probationary process that involves the dismissal and voluntary resignation of ineffective novice teachers, such that approximately only 1 in every 2 new teachers achieved tenure, Bloomberg argued that the rate at which principals had been recommending tenure at the end of probation over the past few years, in the 90% range, was unacceptably high. In school after school, principals were ordered by superintendents to change positive recommendations for awarding tenure into deferrals. Clutching as a trophy the decline of awards of tenure to 58%, Bloomberg crowed that “we’ve turned what had been a joke interpretation of the state law, to make it something that you have to work hard, earn, and show that you are better than the average bear” to get.
So why is a 90% rate of principals recommending tenure, at the end of probation “a joke,” but a 99.5% rate of turning down U ratings appeal perfectly acceptable? Simply because the first is a positive evaluation of teachers, while the second is a negative evaluation. So long as principals are putting notches in Mayor Mike’s belt for fired teachers, their judgment should be treated as next to infallible, but when they offer positive evaluations, they will be overruled in a second. Nowhere was this clearer than in a U rating appeal decision the UFT recently had overturned in an Article 78 legal proceeding: on the record, the principal had explicitly said, again and again, that she was not contesting the teacher’s appeal, but the DOE hearing officer still upheld the unsatisfactory rating. It took a court to do the obviously right thing.
The bottom line here is that Tweed’s vision of a good teacher evaluation process is not one in which decisions are made on the basis of sound educational judgment, but one which delivers a requisite quota of dismissed teacher scalps. If you doubt it, consider the misleading comments a Deputy Chancellor began to make over the past summer, that 20% of all teachers had been rated ineffective in Tweed’s Talent Management pilot that has been practicing observations using the Danielson Framework for Teaching. For the last half year, at meeting after meeting, the UFT has been asking the DOE for the study that supports these claims, all to no avail.[2]We have concluded that the study has not been shared because it does not exist: the DOE has simply decided that 20% is a good target for the numbers of ineffective ratings, and so the claim continues to be made and to appear in DOE PowerPoint presentations.
At the end of the day, one conclusion is inescapable: Mayor Bloomberg decided that he had no intention of negotiating in good faith with the UFT over the subject of teacher evaluations. The plan was always to blow up the negotiations required by law, with a strategy of then trying to pressure Albany to change the teacher evaluation law and allow the DOE to continue its kangaroo court U rating appeal process. From the beginning of this process, he and his devotees at Tweed were acting in bad faith.

[1] In its public statements, the NYC DOE has claimed that the UFT wanted an independent hearing officer for both ineffective and developing ratings. This claim is, quite simply, a fabrication out of whole cloth. The UFT has asked for the independent hearing officer only for the ineffective rating, as it alone can lead to dismissal and the loss of livelihood.
[2] Where reputable, independent scholars have studied the use of Danielson framework for lesson observations, such as the study of the framework’s introduction in Chicago public schools by the University of Chicago’s Consortium On Chicago School Research, the rate of ineffective has varied from 3% to 6% annually.