Friday, December 11, 2015

More Incriminating Evidence Arises Against LA Teacher Rafe Esquith

Rafe Esquith
Re-posted from Parentadvocates.org

Rafe Esquith may have collected more accolades over the years than any other teacher in America....But this year has seen Esquith embroiled in a controversy with the Los Angeles Unified School District — one that continues to unfold and which threatens to attach a far more nefarious set of labels to Esquith’s name. Esquith was removed from his classroom in April and subsequently terminated in October after an investigation was launched into allegations of misconduct. It started with a complaint about a nudity joke that Esquith made to his students, but has since ballooned to include a slate of other allegations about inappropriate behavior, often of a sexual nature, in a school setting.  

SEE:

JUST IN: LAPD confirms ‘ongoing investigation’ of Rafe Esquith

LINK

Here are the charges 

 Disclosures cast new light on LAUSD's probe of teacher Rafe Esquith    Editorial 
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‘How is my favorite Hottie?’ Documents allege years of sexual misconduct by famous L.A. teacher.
By Yanan Wang December 9, 2015
LINK

Updated with response from Esquith’s lawyers

Rafe Esquith may have collected more accolades over the years than any other teacher in America. His honors include Disney’s Outstanding Teacher of the Year Award, the National Medal of Arts and Oprah Winfrey’s $100,000 “Use Your Life Award.”

A fifth-grade teacher of three decades at Hobart Boulevard Elementary School in the Los Angeles Unified School District, the gregarious Esquith, 61, was known for devoting long hours to his classes, comprised largely of low-income immigrant children from in and around Los Angeles’s Koreatown neighborhood, and pioneering innovative teaching methods that he popularized in acclaimed books.

This sterling record led The Washington Post’s education columnist Jay Mathews to proclaim Esquith “America’s Best Classroom Teacher” in 2007.

But this year has seen Esquith embroiled in a controversy with the Los Angeles Unified School District — one that continues to unfold and which threatens to attach a far more nefarious set of labels to Esquith’s name.

Esquith was removed from his classroom in April and subsequently terminated in October after an investigation was launched into allegations of misconduct. It started with a complaint about a nudity joke that Esquith made to his students, but has since ballooned to include a slate of other allegations about inappropriate behavior, often of a sexual nature, in a school setting.

New documents released by L.A. Unified late Tuesday to The Washington Post and first reported by the Los Angeles Times extensively detail years of allegations against Esquith, starting from when he was still a teenager working with schoolchildren at the Westside Jewish Community Center. Most of the allegations deal with Esquith’s time at Hobart, including snippets of innuendo-laden email messages he allegedly sent to female students no older than 14.

Esquith’s lawyers, Mark Geragos and Ben Meiselas, responded Wednesday to The Post’s earlier request for comment, calling the allegations “discredited and baseless” and saying they had been “cherry picked …. No student, or parent, to this day, has ever made any allegation against Mr. Esquith …. The school district instead invaded the homes and colleges of these students demanding that they say something negative about Mr. Esquith and threatening to return if they did not.” Their entire response can be viewed here.

According to the Los Angeles Times, which originally reported the story, Geragos sent L.A. Unified a letter prior to the document release accusing the district of generating a “fraudulent narrative” and calling the documents L.A. Unified’s “latest effort to smear.”

After he was terminated in October, Esquith filed a $1 billion class-action lawsuit on behalf of nearly 2,000 teachers against the district. The complaint alleges that L.A. Unified practices age discrimination by disproportionately removing teachers nearing retirement age from their classrooms and placing them in a kind of administrative limbo Esquith calls “teacher jail” in an effort to compel them to resign without receiving a full pension and health benefits.

World-famous teacher files $1 billion lawsuit against Los Angeles schools to end ‘teacher jail’

Though Esquith has not been charged with any crimes, the teacher presented in the school district’s 66 pages of documents and records bears little resemblance to the one beloved by the public: a generous man who nurtured a love of learning in his students and compelled them to be moved to tears by “Huckleberry Finn,” as shown in a 2005 documentary about his annual class Shakespeare productions.

The documentary portrayed Esquith as “a genius and a saint,” as the New York Times explained when the film aired on PBS. Now L.A. Unified contends the legendary teacher is something quite different.

From 2008 to 2015, the L.A. Unified documents claim, Esquith inappropriately touched female students, made sexual jokes to students and kept his 5th grade students after school to watch movies depicting nudity and sexual intercourse.

The most disturbing allegations, however, come in the form of emails that Esquith supposedly sent to adolescent former students.

“Hey beautiful…another terrific day…hope you are getting ready for a sleepover,” the teacher allegedly wrote to a 14-year-old former student. The documents claim that Esquith maintained a frequent correspondence with the student for over a year starting in 2012, writing from a district-issued computer using a personal email address.

The messages were laced with sexual suggestiveness. “You’re soooooooooooo fine,” Esquith allegedly wrote. “You are stuck with me forever!”

The female student, who at one point wrote, “I’m not lusting,” expressed confusion in many of her responses, and insisted that she was not interested in dating anyone at her age. To these protestations, Esquith allegedly said, “You know many things, and are a fabulous student. But you do not understand men and their wants and desires. You are their dream come true.”

(L.A. teacher files claim against school district after being removed from classroom)

According to the documents, Esquith maintained similar communications with other students over the years, and on several occasions alluded to giving them money to cover various expenses. In emails to a 13-year-old former student, he allegedly signed off as “Your favorite ATM.” He also told the student, whom he addressed as “Supermodel,” that he would cover the cost of her uniforms and additional classes.

“It sounds like books/uniforms/classes will run about 1800,” Esquith wrote, the documents claim. “…I don’t get to relax, but seeing your pretty face is even better! Do not worry about movies and giving them back. Just enjoy and know I love you.”

In another email, he purportedly asked, “How is my favorite Hottie?”

The documents also include allegations from former students — now adults — who recalled that Esquith fondled two boys and two girls in the 1970s and 1990s. One man stated that while babysitting him as a 9-year-old, Esquith rubbed his genitals, punched him and slammed his head against the floor, threatening to kill his mother if the child told anyone about the incident.

Another man reported a similar encounter while Esquith was babysitting him. According to the man, who was 8 years old at the time, Esquith told him to sleep naked and squeezed his penis in the middle of the night.

[Opinion: L.A. district continues to persecute one of the nation’s best teachers]

L.A. Unified has expanded its investigation to include a look at the Hobart Shakespeareans, a nonprofit run by Esquith that funds his class’s annual play and field trips to Washington, D.C., Mississippi, New York and Yosemite National Park.

According to the Hobart Shakespeareans website, all the children at Hobart qualify for free breakfast and lunch, and few speak English as a first language (the school is predominantly Asian and Latino). “Many are from poor or troubled families,” the site says.

Sir Ian McKellan, the renowned Shakespeare actor, has made visits to Esquith’s class and joined in their readings.

“You can’t watch the little actors without wanting to cry,” McKellan is quoted saying on Hobart Shakespeareans page. “Why do you cry? I suppose it’s happiness, really, and a regret that not all the children in the world could have a Rafe Esquith for a teacher.”

In contrast to his public image and reputation, L.A. Unified’s documents paint a portrait of Esquith as quick to offer cash to his low-income students in order to win their favor and, in some cases, have something to hold over them.

In one email exchange with a 14-year-old former student, Esquith appears to be accusing another former student of being ungrateful for receiving financial help from him in the past.

He wrote, according to the document:

I saw J(redacted name) walking down Harvard with H[redacted name]. J, who…I got a full scholarship to Willows. Paid her hospital bill when she was hurt. Paid for 2 years of drum lessons. Took to Ashland, Washington DC, and Idaho. Spent two years of Saturdays teaching her. Took to the Magic Castle. Took to Disneyland twice for 3 days. I called out, ‘Hi J!’ And she ran away.

L.A. Unified also cites fellow teachers at Hobart who say they witnessed Esquith engaging in inappropriate behavior. Jay Gowan, a fourth-grade teacher, allegedly walked in on Esquith tickling his female students. Esquith stopped after he noticed Gowan. Another time, Gowan witnessed Esquith point to one of his female students and say that she “loved green M&Ms because they made her horny.”

Back in April, Esquith described his removal from his classroom at Hobart as an injustice. “We overreact to everything,” he told the L.A. Times this past summer. “That’s the American way and I’m a victim of that overreaction. I want to fix this system.”

His supporters — including students, parents and teachers — were outraged that he had been taken out of the classroom, holding rallies in which they invoked a mantra that Esquith taught them: “Be nice, work hard! Reinstate Rafe!”

This was before specific details of L.A. Unified’s investigation surfaced. The documents released this week under the California Public Records Act are the most comprehensive account of the allegations against Esquith to date.

L.A. Unified has recently handled multiple cases of sexual misconduct from teachers and administrators, paying $139 million last year to victims at Miramonte Elementary School after the accused teacher was allowed to stay in the classroom.

Yanan Wang is a reporter on the Morning Mix team.

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jls1110
12/9/2015 9:42 PM EST
Part 4
I can assure you that in those 2 years, he has NEVER touched us in a SEXUAL way, nor did I feel threatened by him in any way. The tickling it happened maybe once or twice in the whole year and it was just horsing around. He never touched us anywhere besides the sides of your tummy to tickle us to death…..again to get a reaction from us….he thought it was hilarious.

The comment about “surf the net for porn like we always do” obviously it was sarcasm and he told the teacher “it’s a joke” come on. It really was a joke. If you knew him, you could imagine the tone of voice he would say it in. Of course they wouldn’t surf for porn and the firewall on LAUSD’s computers don’t even allow us to do that anyways, I think. We can’t even go on Youtube for God’s sake.

About showing videos of a sexual nature, I do remember him showing us Romeo and Juliet but that was after we read the play in FULL, and Juliet was topless at one point in the movie but he warned us of that beforehand and those that felt uncomfortable didn’t have to watch, I think there was a parent consent form. He wasn’t showing us porn, and he didn’t show us Romeo and Juliet for the fun of it, it was after a culmination of reading the Shakespeare play, like he did with other plays and books, such as To Kill a Mocking Bird, Henry V, Othello, etc. It was the 1968 version where film critic Roger Ebert gave 4/4 and said, “I believe Franco Zeffirelli's Romeo and Juliet is the most exciting film of Shakespeare ever made" and Rotten Tomatoes critics gave a 97% Fresh rating. So, how horrible of Rafe Esquith to have exposed me to this great film of all time?
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jls1110
12/9/2015 9:41 PM EST
Part 3
I even remember he used to tell us, “Don’t eat the green M&Ms because it’ll make you horny”. I have no idea why he said that, I feel like he said there was research on that color and horniness? But I’m just sharing that story because he said it in a joking tone of voice and we would giggle, probably wonder if that’s true, not even knowing what horny meant, but we didn’t take it seriously and he would say those kinds of things and we didn’t think twice about those jokes.

Now as an adult looking back, I personally wouldn’t say that but that’s just my own personality. His personality is to joke around about everything….his main objective seemed to be to elicit an embarrassed response from us because he thought it was the funniest thing. He loved SNL, David Letterman, Seinfeld, so his sense of humor was a bit racy perhaps along the lines of SNL/Letterman jokes perhaps. But in 5th grade, I also watched SNL, Letterman, Seinfeld late at night, so it wasn’t anything I didn’t already hear on TV everyday. Am I forever scarred by those jokes where we all laughed as a class, whether we got the joke or not? No. Am I going to now try and sue LAUSD for Rafe making inappropriate jokes long ago, no. Does that make him a pedophile? No. Does that make him a creep? No. Fine, maybe his Principal or fellow teacher should’ve told him, hey, you should knock it off, those jokes are not kid-friendly…but does that mean he doesn’t even get a warning and should be fired and lose his pension? NO. He is THE BEST, most HARD-WORKING teacher I know. He didn’t use good judgment perhaps, but it doesn’t warrant him being smeared like dirt by the LAUSD after 30 years devoting his life to enriching the lives of inner city kids.
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jls1110
12/9/2015 9:40 PM EST
Part 2
These snippets of ALLEGED inappropriateness released by the LAUSD are, remember, THEIR findings. So from the thousands of emails he must have, since we started using email in the 90s, they are only releasing the ones that they combed through by their “Tiger Investigation Team” to smear his name. So what there are 3 or 4 emails out of thousands of email exchanges that they deem “inappropriate”.

But, you guys don’t know Rafe like we, the students, knew and know him. He is brilliant, talented, all of those things. But he is also a big jokester, prankster, sarcastic, pretty much has a good sense of humor. When you read in the media, that in his email, he called a 14 year old, hottie, I’m sorry, but so what? That is just what he called all of us. He rarely used our names. We got nicknames the first day of class and he would greet any of us “Hey hot stuff” “Hey hottie, how’s it going?” This was not said to us in private, it was said casually, like hey you, how are you? He didn’t mean anything by it people! We would all laugh because it was silly and he just liked the reactions he would get from us, because we were so shy. He was constantly joking around, the type of guy that would say, ok Ladies and Germs. He would say things like Heads I Win, Tails You Lose, and we would be so confused….and he would think it was hilarious. He enjoyed getting that reaction.

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jls1110
12/9/2015 9:37 PM EST
As a former student of Rafe Esquith for 2 years, I just want to say he is THE BEST teacher, bar none. Not only for the world-class education, but for the life-changing experiences (trips to D.C., Oregon Shakespeare Festival, Yosemite National Park, Disneyworld, San Diego Shakespeare Festival) and for planting in me, a dream, for believing in me even when I couldn’t see beyond the poverty-stricken life I had with my immigrant family. If he cared about me more than just another teacher, THANK YOU for making me feel special, for building in me self-confidence, for investing in my life, caring for my emotional well-being, and for my future. If spending extra hours after school and before school to introduce me to Shakespeare and to have me perform it, classical music (teach me to play on guitar and take us to Hollywood Bowl), the Beatles, Seurat, Mondrian, Van Gogh, classical literature like Dickens, Anne Frank, A Separate Peace, Animal Farm, Fahrenheit 454, etc as a 10 year old whose parents never even went to high school, then THANK YOU Mr. Esquith for crossing the boundaries and caring too much for your students. I will never forget my experience and no teacher, no one person, has ever come even close to caring that much about me.

And now, isn’t it interesting how the LAUSD who is always trying to cover up their scandals, are all of a sudden “releasing” THEIR investigation findings against Rafe Esquith, who is by the way heading a class action lawsuit for $1 BILLION? LAUSD does not want to lose this case or maybe even hoping he or his lawyer will decide to drop the lawsuit. They don’t have $1 Billion. So now what is the motivation of these cherry-picked leaks.

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NeIlachapman
12/9/2015 8:46 PM EST
When are folks going to realize that you can't identify these predators? You have to ensure that there is never one adult alone with a child - period.
The BSA addressed this a few years ago with "two deep leadership" rules. It's the only protocol that makes sense.
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jhb8426
12/9/2015 11:07 PM EST
Yeah, that "two deep leadership" really works well doesn't it. Pedoes still get into BSA leadership positions and cause problems. The main problem is no one wants to report that nice guy, maybe we just misunderstood his actions.
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KBlit
12/9/2015 5:42 PM EST
Welllllll there was the math teacher in Stafford County who was having sex with students but the District did not want to fire as math teachers are hard to find. A lot of teachers who are guilty of this stuff are just moved from school to school until their actions become impossible to hide.

December 9, 2015
LAUSD HITS NEW LOW IN WITCHUNT AGAINST TEACHERS

Mark Geragos and Ben Meiselas, attorneys for internationally renowned teacher Rafe Esquith, have issued the following response: LAUSD, which is run by Superintendent Ramon Cortines who (1) used $350,000.00 in tax payer money to settle his own crotch-grabbing lawsuit, and (2) who defends a policy in California Courts that the age of consent for his students with teachers is 14 years old, has hit a new low by its own exceedingly low and perhaps non-existent standards.

The release of discredited and baseless allegations with no validation in law or any court, and the piecemeal out-of-context release of an email from a graduate from years ago, reflects the depths of retaliation and retribution from LAUSD on its last throes of existence due to the class action brought against it by thousands of teachers who have been victims to LAUSD teacher witch-hunts. As an initial matter, Mr. Esquith has never used an LAUSD email account. This means that LAUSD would have had to hack into Mr. Esquith's personal AOL Account, without a warrant or notice, and harvested thousands of emails for over a decade since the account was set up. LAUSD illegally accessed attorney-client documents and marital documents, and crafted an illegal and criminal strategy to smear Mr. Esquith by purporting to selectively quote an email from a graduate from years ago from the hundreds of thousands of emails that would have been processed. No student, or parent to this day has ever made any allegation against Mr. Esquith.

In fact, LAUSD's hit squad invaded the homes and colleges of these students demanding that they say something negative about Mr. Esquith and threatening to return if they did not. The students had nothing negative to say. Several former students have hired attorneys and will be bringing lawsuits against LAUSD for the harassment and abuse inflicted on them by LAUSD investigators at the direction of Superintendent Cortines. Additionally, LAUSD is a mandatory reporter under the California Penal Code, Government Code, and Education Code, to report misconduct to the California Teacher Credentialing Commission which conducts investigations into teacher misconduct.

The California Teacher Credentialing Commission run by the Governor’s Office of the State of California, closed its file on May 27, 2015. If LAUSD believed that an email from 2012, read in context, or an allegation from when Mr. Esquith was a teenager from 1960 constituted misconduct, they never reported it. This is because there is no misconduct. Further, the computer instructor Barbara Hayden, who reported Mr. Esquith for quoting Huck Finn, which began the witchunt, emailed Mr. Esquith on three separate occasions telling him that she hoped he returned soon and encouraging his lawsuit against LAUSD. Ms. Hayden was unaware that LAUSD would use her allegation as pretext for the witchunt.

Finally, rather than release reports and documents to Mr. Esquith’s attorneys when they requested it for months, LAUSD rapidly provided documents to the LA Times in the same way LAUSD introduced the LA Times to the mother of a phony accuser from the 1960s so they could get a quote. In response to the public records request, Mr. Esquith demanded that all documents be turned over, and not LAUSD cherry-picked documents. This includes internal emails from Superintendent Cortines and from the LAUSD hit-squad team. This includes the materials submitted by LAUSD to the California Teacher Credentialing Commission when the allegations were discredited. Mr. Esquith requested all documents relating to the tactics, the cost to tax payers, and all internal emails bearing his name be turned over. LAUSD responded that Mr. Esquith would have to seek a Court Order to release all information. Mr. Esquith was previously subjected to numerous background checks by the United States Government before receiving the National Medal of Arts from the United States President. He was subjected to grueling background checks upon being named Disney’s Teacher of the Year and Oprah’s Teacher of the Year.

He was subjected to rigorous background checks before being made a Member of the British Empire. Mr. Esquith has nothing to hide and wants the most transparency rather than a piecemeal leak of fabricated information by LAUSD to the LA Times. That said, LAUSD has established a dangerous precedent for all teachers. Without any case or formal charges pending against them in any forum, LAUSD will hack into your private email accounts, harass and assault former students, and rush to turn over illegally seized and fabricated information to the press. It is now clear that LAUSD, which traditionally objects to public records requests on privacy grounds, has now forever waived those objections based on its conduct here. We encourage all citizens to make public records requests regarding (1) the personnel files for Superintendent Cortines and General Counsel David Holmquist including but not limited to all allegations of sexual harassment and abuse brought against them, (2) for all of the internal emails by LAUSD relating to teacher jail, (3) for all information regarding the formation and conduct of the LAUSD hit squad team and the goal of divesting teachers nearing retirement age of their benefits, and (4) for all information and documents, including internal emails, relating to pending FBI and other governmental investigations into LAUSD.



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Cortines: LAUSD responded ‘correctly’ in Esquith dismissal


More salacious charges against celebrated teacher Rafe Esquith were released this week, and for the first time LAUSD superintendent Ramon Cortines commented publicly about the case.
At a forum last night, Cortines said he was surprised about the charges but stood behind the district for taking action, once its investigation was complete.
“For me, six months ago it would be hard to believe about a teacher, yet the evidence was there, and yet when we said there was something about it, the school district was highly criticized,” Cortines said. “And now it has been proven that the school district indeed did handle it correctly.”
The case led to Esquith’s dismissal and a $1 billion lawsuit against LAUSD filed by lawyers on his behalf, seeking to end the district’s “teacher jail” program.
One of Esquith’s lawyers, Ben Meiselas, denied all of the charges against Esquith and said the release of the documents continues “an obvious witch hunt” by the district.
“The release of discredited and baseless allegations with no validation in law or any court, and the piecemeal, out-of-context release of an email from a graduate from years ago reflects the depths of retaliation and retribution from LAUSD on its last throes of existence due to the class action brought against it by thousands of teachers who have been victims to LAUSD teacher witch-hunts,” Meiselas said.
He also said the district improperly hacked into the teacher’s personal email account.
“No student, or parent – to this day – has ever made any allegation against Mr. Esquith,” said Meiselas, who instead pointed to the many who have demonstratedon the teacher’s behalf. “In fact, LAUSD’s hit squad invaded the homes and colleges of these students demanding that they say something negative about Mr. Esquith and threatening to return if they did not. The students had nothing negative to say. Several former students have hired attorneys and will be bringing lawsuits against LAUSD for the harassment and abuse inflicted on them by LAUSD investigators at the direction of Superintendent Cortines.”
Meanwhile, the Los Angeles Police Department has the information provided by the district and is conducting its own investigation in the juvenile division.
Cortines said, “We are in a business that has humans; we are doing a better screening of all employees, teachers and classified.”
In the latest information revealed after a Los Angeles Times public records request, Esquith was fired on seven charges, including immoral and unprofessional conduct, dishonesty and failure to follow and obey school laws. A 32-page document by the district, dated Sept 30, 2015, outlines its version of the claims, several reflecting accounts from former students. Previously, all the documentation and discussion presented to the school board was held in closed sessions.
The details include when Esquith worked in the after school program of the Westside Jewish Community Center in the mid-1970s. In one instance it says Esquith accused a student of plagiarizing homework and in front of a group of students “slapped ‘M’ in the face, punched ‘M’ in the head and struck ‘M’ with the papers from the assignment.”
The charges also include details of a series of graphic instances in which Esquith was accused of highly improper sexual behavior involving students and teachers, some of it involving sexual contact.
Other charges involve student trips under the auspices of Esquith’s group, the Hobart Shakespeareans. Some trips had 30 students but only the Esquith and his wife as chaperones. The district said Esquith charged the students $100 a month, which was paid directly to the teacher with no receipts given. The teacher told them it was for expenses of the trips.

Rivera v DOE (2008) - Notice of Claim and Vindicating a Public Interest in the Enforcement of a Public Right


RIVERA v. DEPARTMENT OF EDUCATION OF NEW YORK CITY SCHOOL DISTRICT

0115537/2007 MOTION SEQ. NO. 001
2008 NY Slip Op 32165 (U)

LUIS RIVERA, Petitioner, v. THE DEPARTMENT OF EDUCATION OF THE NEW YORK CITY SCHOOL DISTRICT, Respondent.

Supreme Court of the State of New York, New York County
MOTION DATE April 23, 2008

KIBBIE PAYNE, Judge.

In this proceeding, petitioner Luis Rivera, a former probationary teacher employed by respondent New York City Board of Education (the "BOE") (also known as and being sued herein as "The Department of Education of the New York City School District") alleges that he was improperly terminated by the respondent. The termination occurred after Mr. Rivera received a "U" rating for the 2006-2007 school year, and an investigation conducted by the Special Commissioner of Investigation for the New York City School District ("SCI") concluded that he had inappropriate Internet contact with a female student.

Petitioner now brings this CPLR Article 78 proceeding seeking to vacate the BOE's determination that discontinued his probationary employment, claiming that the BOE's determination was disproportionate to the factors cited for his "U" rating, and was therefore arbitrary and capricious (see CPLR 7803 [3]). Petitioner also claims that the SCI investigation, which determined that he had had inappropriate contact with a female student, was made in violation of his due process rights, and therefore cannot form the basis of the determination to discontinue his probationary employment and place him on the BOE Ineligible/Inquiry List. Petitioner seeks reinstatement to his probationary status, with an award of back pay and reasonable attorney's fees.

Respondent BOE cross-moves to dismiss the petition on the ground that petitioner failed to file a notice of claim prior to commencing this proceeding, as required by Education Law § 3813 (1), and that the petition otherwise fails to state a cause of action. For the reasons set forth below, petitioner's application for Article 78 relief is denied, and respondent's cross motion is granted.

Petitioner commenced his employment with the BOE in September 2005 as a probationary teacher at Patria Mirabal Middle School 324. In June of 2006, petitioner received his first annual professional performance review. On his second annual performance review, in June of 2007, petitioner received a "U" rating. That June 2007 performance review noted that petitioner had received seven letters over the course of seven months regarding his unsatisfactory behavior, viz., three letters for lateness, one letter for lack of instruction, one letter for endangering the safety of a student, and one letter for his unprofessional conduct. Petitioner's performance review further reflected that, during the rating period, he was late 20 times, resulting in the loss of three hours and 39 minutes of instructional time, and was absent for 17 days. Petitioner's performance review further noted that there was an outstanding SCI investigation, and other allegations of misconduct regarding petitioner.

On June 15, 2007, Principal Janet Heller recommended discontinuance of petitioner's probationary service. On June 19, 2007, the Community Superintendent of District 6 notified petitioner that she had affirmed the discontinuance of his probationary employment, effective July 23, 2007. On July 19, 2007, the SCI substantiated that petitioner had had inappropriate internet contact with a female student and, on August 2, 2007, petitioner was placed on the BOE's Ineligible/Inquiry List.

On November 20, 2007, petitioner commenced this Article 78 proceeding seeking to vacate the BOE's determination to discontinue his probationary employment and place him on the Ineligible/Inquiry List, alleging that the BOE's decision was arbitrary and capricious.

Education Law § 3813 establishes conditions precedent to the commencement of an action against a Board of Education or any of its employees. Pursuant to Education Law § 3813 (1), a notice of claim must be filed prior to bringing any suit against the BOE, including a special proceeding pursuant to Article 78 of the CPLR:
No action or special proceeding, for any cause whatever . . or claim against the district or any such school, or involving the rights or interests of any district or any such school shall be prosecuted or maintained against any school district, board of education . . or any officer of a school district [or] board of education . . . unless it shall appear by and as an allegation in the complaint or necessary moving papers that a written verified claim upon which such action or special proceeding is founded was presented to the governing body of said district or school within three months after the accrual of such clalm[.]
(Education Law 3813 [1]) (emphasis added).

A timely notice of claim is, therefore, a condition precedent to maintaining an action against the BOE, and petitioner "has the obligation to plead and prove that [his] notice of claim was served within three months after the accrual of [his] claim" (C.S.A. Contr. Corp. v New York City School Constr. Auth., 5 N.Y.3d 189, 192 [2005];Stoetzel v Wappingers Cent. School Dist., 166 A.D.2d 643, 644-45 [2d Dept 1990]). Failure to comply with the condition precedent under Education Law § 3813 (1) "is a fatal defect mandating dismissal of this action" (Parochial Bus Sys., Inc. v Board of Educ. of City of N.Y., 60 N.Y.2d 539, 548 [1983]; see also Spedding v Bowman, 152 A.D.2d 971, 972 [4th Dept 1989]).

The only instance where plaintiffs or petitioners are exempt from the notice of claim requirement with respect to their actions or proceedings against the DOE is when they seek to vindicate a public interest in the enforcement of a public right (see Union Free School Dist. No. 6 of Towns of Islip & Smithtown v New York State Human Rights Appeal Bd., 35 N.Y.2d 371, 379-80 [1974]). Where, as here, petitioner seeks private relief in the form of reinstatement and back pay against a board of education pursuant to CPLR 7803 (3), the filing of a timely notice of claim is a condition precedent to suit (see Matter of Cayuga-Onondaga Counties Bd. of Coop. Educ. Servs. v Sweeney, 89 N.Y.2d 395, 400 [1996] [citation omitted]; Matter of O'Connor v. Bd. of Educ., 11 A.D.3d 616 [2d Dept 2004]; Matter of Taylor v Hammondsport Cent. School Dist., 267 A.D.2d 987, 988 [4th Dept 1999]; Sephton v Board of Educ. of City School Dist. of City of N.Y., 99 A.D.2d 509 [2d Dept], lv denied62 N.Y.2d 605 [1984]).
In the case at bar, it is undisputed that petitioner failed to file a notice of claim in accordance with the procedure set forth in Education Law § 3813 (1). Petitioner therefore failed to comply with the condition precedent to the institution of this action, and his failure to comply is a fatal defect, mandating dismissal of the petition (see Matter of Silvernail v Enlarged City School Dist. of Middletown, 40 A.D.3d 1004[2d Dept 2007]).

In his opposition to the cross motion, petitioner claims that: (1) the Collective Bargaining Agreement ("CBA") between the BOE and the United Federation of Teachers ("UFT") renders the notice of claim requirement inapplicable to the present matter; (2) petitioner's reliance on the terms of the CBA estops the BOE from asserting the notice of claim requirement as a bar to petitioner's claims against the BOE; and (3) petitioner's appeal of his "U" rating and the grievance he filed with the UFT with respect to his due process claim gave actual notice of petitioner's claims sufficient to satisfy the notice of claim requirement, and he should thus be allowed to file a late notice of claim. Petitioner's claims, however, are without merit.

Petitioner claims that the CBA between the BOE and the UFT renders the notice of claim requirement inapplicable to the instant matter. However, in order to establish this assertion, petitioner needs to demonstrate that there is some contractual provision contained in the CBA indicative of an intent to waive compliance with the notice of claim requirement, or which affords similar notice (see Matter of Board of Educ. of Union-Endicott Cent. School Dist. v New York State Pub. Empl. Refs. Bd., 197 A.D.2d 276, 278-79 [3d Dept], lv denied 84 N.Y.2d 803 [1994]).

"There are, however, two judicially recognized exceptions to compliance with Educational Law § 3813(1): `[w]here an action or proceeding is brought to vindicate a public interest rather than to seek enforcement of a private right or duty' (cases cited omitted) or where 'there are procedures set forth in separate statute or contractual provision which either afford the school district notice similar to that contained in subdivision a of section 3813 or which waive compliance with its requirements'" (Matter of Board of Educ. of Union-Endicott Cent. School Dist. v New York State Pub. Empl. Rels. Bd., 197 A.D.2d 276, 278-279). A waiver may not be presumed; rather, it must affirmatively appear that the parties intended to make the statutory requirement inapplicable (Matter of Board of Educ. Cent. School Dis. No. 1 [Minstein Constr. Co.], 12 A.D.2d 40 [3d Dept 1960]). In the absence of an agreement to the contrary, compliance with the notice of claim requirement is mandatory, and is a matter for judicial resolution (Matter of Board of Educ. of Enlarged Ogdensburg City School Dist. [Wager Constr. Corp.], 37 N.Y.2d 283, 288 [1975]).

Here, there is no contractual provision contained in the parties' CBA which is either indicative of an intent to waive compliance with the notice of claim requirement, or which affords the BOE notice similar to that contained in section 3813 (1). Thus, petitioner's compliance with the notice of claim requirement is mandatory.

Next, petitioner argues that his reliance on the terms of the CBA estops the BOE from asserting the notice of claim requirement as a bar to petitioner's claims against the BOE. However, the doctrine of equitable estoppel is not applicable here.

Estoppel against a municipal defendant will lie only when the municipal defendant "acts or comports itself wrongfully or negligently, inducing reliance by a party who is entitled to rely and who changes his position to his detriment or prejudice" (Bender v New York City Health and Hospitals Corp., 38 N.Y.2d 662, 668 [1976]; accord Delacruz v Metropolitan Transp. Auth., 45 A.D.3d 482 [1st Dept 2007]), and should be "invoked sparingly and only under exceptional circumstances" (Luka v New York City Transit Auth., 100 A.D.2d 323, 325 [1st Dept 1984], affd 63 N.Y.2d 667 [1984]).
Petitioner fails to demonstrate, or even allege, that the BOE engaged in any wrongful or negligent conduct that would support a finding of equitable estoppel, or that he relied on any purported deception by the BOE that would give rise to an estoppel. Thus, the BOE is not estopped from asserting the notice of claim requirement as a defense (see e.g. Urena v New York City Health & Hosps. Corp., 35 A.D.3d 446 [2d Dept 2006]; Wade v New York City Health & Hosps. Corp., 16 A.D.3d 677, 677 [2d Dept 2005]).

Although petitioner also contends that he should be allowed leave to file a late notice of claim to avoid dismissal of the petition, the court rejects this contention, as "statutory requirements conditioning suit [against a governmental entity] must be strictly construed" (Varsity Tr., Inc. v Board of Educ. of City of N.Y., 5 N.Y.3d 532, 536 [2005] [internal quotations and citations omitted]).

In support of his argument that he should be permitted to file a late notice of claim, petitioner conclusorily asserts that his appeal of his "U" rating and due process grievance gave the DOE actual notice of his claims within 90 days and, thus, the DOE did not suffer any prejudice. This argument is without merit. Even if petitioner could demonstrate that his contentions were true, strict compliance with the notice of claim requirements under Education Law § 3813 is warranted even where the DOE "'had actual knowledge of the claim or failed to demonstrate actual prejudice'" (id. at 536, quoting Parochial Bus Sys., Inc. v Board of Educ. of City of N.Y., 60 NY2d at 548; accord Power Cooling, Inc. v Board of Educ. of City of N.Y., 48 A.D.3d 536 [2d Dept 2008]).

Although petitioner also contends that he has a meritorious excuse for the late filing because it was the DOE's duty to advise him regarding the statutory requirements he needed to comply with before he could commence a proceeding against it, the DOE "was under no obligation to apprise [petitioner] that [his] notice of claim had not been timely served upon it" (Wade, 16 AD3d at 677; see also Matter of Nayyar v Bd. of Educ. of City of N.Y., 169 A.D.2d 628, 629 [1st Dept 1991]). Accordingly, petitioner has failed to comply with a condition precedent to this action, and his petition must be dismissed.

Moreover, even if petitioner had complied with the notice of claim requirements, the petition would also have to be dismissed because petitioner cannot demonstrate that the BOE acted arbitrarily, capriciously or in bad faith by discontinuing his probationary employment. Petitioner was a probationary employee for the BOE and, therefore, could be terminated without a pretermination hearing and without a statement of reasons, so long as the dismissal was not made in bad faith, i.e., in violation of constitutional or statutory law (see James v Board of Educ. of Cent. School Dist. No. 1 of Towns of Orangetown & Clarkstown, 37 N.Y.2d 891, 892 [1975]; see also Matter of Venes v Community School Bd. of Dist. 26, 43 N.Y.2d 520, 525 [1978]; Haviland v Yonkers Public Schools, 21 A.D.3d 527, 528 [2d Dept 2005]). Thus, judicial review of such termination is "'limited to an inquiry as to whether it was made in bad faith and was therefore arbitrary and capricious'"(Matter of Bonney v Dilworth, 99 A.D.2d 468, 468 [2d Dept 1984] [citation omitted]; accord Matter of Guilbe v New York City Bd. of Educ., 193 A.D.2d 604 [2d Dept], lv denied 82 N.Y.2d 654 [1993]).

Here, petitioner has failed to adduce any evidence to establish that his termination was made in bad faith, or was arbitrary or capricious. Petitioner alleges that there were two reasons for his termination. First, on June 15, 2007, Principal Heller reviewed his annual professional performance for the period of September 2006 through June 2007 and gave him a "U" rating. Petitioner's June 22, 2007 performance review states that he received seven letters over the course of seven months regarding his unsatisfactory performance: three letters for lateness, one letter for lack of instruction, one letter for endangering the safety of a student, and one letter for his unprofessional conduct (the "Disciplinary letters"). In addition, petitioner's review notes that during the rating period, he was late 20 times, resulting in the loss of three hours and 39 minutes of instructional time, and was absent for 17 days. Second, petitioner alleges that, on July 19, 2007, an SCI investigation substantiated that he had had inappropriate internet contact with a female student.

These allegations do not establish a basis to disturb the BOE's determination. A "U" rating alone provides a sufficient basis for the HOE to terminate a probationary employee. Petitioner cannot show that the BOE acted in bad faith in terminating his probationary employment after petitioner received seven Disciplinary letters over the course of seven months, was late 20 times, and absent for 17 days. While petitioner attempts to excuse his failures as set forth in his "U" rating, such an attempt is insufficient to establish bad faith. The presence of evidence in the record supporting the conclusion that petitioner's performance as a probationary employee was unsatisfactory establishes that the discharge was made in good faith (see Matter of Eynoe v City of New York, 281 A.D.2d 340 [1st Dept 2001]; Matter of Atkinson v Koch, 161 A.D.2d 152, 153 [1st Dept 1990]; Bonney, 99 AD2d at 468).

Petitioner also attempts to challenge his termination by suggesting that the statements he gave to SCI investigators were obtained in violation of his collective bargaining rights, and that therefore, such illegal action requires his reinstatement. However, the decision to recommend petitioner's termination was made more than one month prior to the SCI report.

Further, petitioner's statements were not the sole basis for the SCI's finding that petitioner had had inappropriate internet contact with a female student. In addition to petitioner, SCI investigators spoke with paraprofessional Paula Mota, teacher Crystal Ringer, and Student A, who told investigators that petitioner had engaged in an inappropriate Internet contact with her. Thus, even without petitioner's statements, SCI investigators had at least a rational basis sufficient to conclude that he engaged in inappropriate internet contact with a female student. In addition, petitioner's placement on the Ineligible/Inquiry List by the BOE was not arbitrary or capricious since he was the subject of disciplinary charges (see Matter of Spata v Levy, 306 A.D.2d 534, 535 [2d Dept 2003]).
Therefore, petitioner has not shown that respondent acted arbitrarily by terminating his probationary employment and placing him on the Ineligible/Inquiry List, and the petition must be dismissed. The court has considered petitioner's remaining claims, and finds them to be without merit. Accordingly, it is
ORDERED and ADJUDGED that the petition is denied in its entirety, respondent's cross motion is granted, and the special proceeding is dismissed.
The foregoing constitutes the decision and judgment of this court.