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Thursday, November 23, 2017

Defining the Limits of 3020-a Arbitration and Pursuing Litigation After Arbitration Ends

Lillie Leon
What is a fact about 3020-a arbitration is that anyone charged and going to a full hearing has a period of self-doubt, anger, and emotional distress. In most of the cases I have studied over the past 14 years there are certain recurring events, such as false claims and outrageous lies made against a stellar education professional while the witness is under oath to tell the truth; and, personal angst while a stellar career is shredded for no valid reason. No one finds it easy to sit at a table and look straight into the eyes of a person who you know is lying, and the sad reality is that witnesses for the opponent are prepped with a script that often is not filled with facts or any truth at all.

But it must be done, as one of the terrible twists in the rubber room process  (the 'rubber room' is, to me, not a place, but a process ) is that if you resign, settle, or don't testify and go to a full hearing, your future is dim to zero to work for the school district or its vendors ever again.

There is every reason to fight to clear a stellar name but many charged educators only think about an immediate solution, not long-term consequences, and do not file cases to rectify the wrong-doing of the DOE after the 3020-a is over.

Arbitrators who sit as hearing officers in 3020-a arbitration say that they are supposed to examine the charges and the charged period, nothing more. They also may insist, at the demand of the school district, that any racial/age discrimination and/or workplace harassment, disability issues, and anything else that is not mentioned in the charges cannot be brought into the hearing record.

We at Advocatz do not agree, to a certain extent.  We always see the need to prove bad faith and malicious prosecution by administrators who create false charges, so that our clients may file a claim in State or Federal Court for remedies not available to them in the 3020-a process in addition to an Article 75 Appeal. Thus we do bring in facts that may lead to a discrimination or harassment charge, but we do not present the entire evidence we have on any of the issues which may be brought to Court later on.

In the case of Lillie Leon, an 80-year old kindergarten teacher who sued the Department of Education in Federal Court for age discrimination after being terminated at 3020-a, the Second Circuit vacated the dismissal of plaintiff’s age/disability discrimination, retaliation, and accommodation claims, and held that a finding pursuant to NY Education § 3020-a that a teacher was fired for “cause” does not necessarily preclude a viable claim for discriminatory termination under principles of collateral estoppel. The Second Circuit overturned the dismissal of Leon's case in the district court effectively stopping Leon for suing the Department after she was terminated for insubordination and neglect of her duties.

Betsy Combier
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Employment Discrimination Claims Not Collaterally Estopped By Finding That Teacher Was Fired For “Cause” Under New York Education Law § 3020-a

by MJPOSPIS on MAY 25, 2015


In Leon v. NYC Dept. of Education, a Summary Order dated May 22, 2015, the Second Circuit vacated the dismissal of plaintiff’s age/disability discrimination, retaliation, and accommodation claims, and held that a finding pursuant to NY Education § 3020-a that a teacher was fired for “cause” does not necessarily preclude a viable claim for (e.g.) discriminatory termination under principles of collateral estoppel.

In this case, the district court held that since the state proceedings “concluded that Plaintiff was dismissed for insubordination and neglect of her duties, not because of unlawful discrimination[,] Plaintiff’s claims, as they relate to her 2011 termination, are collaterally estopped from relitigation in this Court.”

The Second Circuit disagreed.

Here’s the law:

Under New York law, the doctrine of collateral estoppel bars re-litigation of an issue when: (1) the identical issue necessarily was decided in the prior action and is decisive of the present action, and (2) the party to be precluded from relitigating the issue had a full and fair opportunity to litigate the issue in the prior action. The bar can apply even if the tribunals or causes of action differ. Section 3020–a findings are entitled to preclusive effect.

Applying the law, the court explained why the district court’s dismissal was improper:

The District Court erroneously concluded that the Section 3020–a hearing’s “determination that there was cause for [Leon’s] termination precludes [Leon] from making a prima facie case of discrimination or retaliation[.]” There is no indication that the Section 3020–a hearing addressed, much less “actually decided,” whether the charges leading to Leon’s termination were driven, even in part, by discriminatory or retaliatory intent. The court’s error thus stems from the faulty assumption that termination for cause necessarily precludes the possibility of termination motivated by unlawful animus. “[T]he hearing officer’s determination that [the plaintiff] had engaged in the charged conduct, and that these violations called for h[er] termination, does not preclude a jury from later finding that [the plaintiff] was also terminated at least in part because of [discriminatory reasons]. The plaintiff could be successful on the [discrimination or retaliation] claims even if the jury were to accept that there were legitimate reasons for terminating h[er], too.”

Likewise the District Court erroneously concluded that the Section 3020–a hearing’s determination “that Plaintiff did not apply for an accommodation for air conditioning from [DOE’s] Medical Bureau” precludes Leon “from alleging a necessary element of her failure to accommodate claim.” While Leon is estopped from challenging the Hearing Officer’s factual finding that she failed to apply to the Medical Bureau for an air conditioning accommodation, Leon also alleges that she informed Defendants of her air conditioning-related health concerns and had filed medical documentation to that effect with the school. The overall adequacy of Leon’s accommodation requests cannot be determined based on the Amended Complaint or documents reasonably viewed as incorporated in it.

Therefore, the court vacated the dismissals of plaintiff’s discrimination, retaliation, and accommodation claims under the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the New York State State Human Rights Law, since those dismissals could not be justified under Federal Rule of Civil Procedure 12(b)(6).

In George v. Professional Disposables Int’l, Inc., 2017 WL 4574806 (S.D.N.Y., 2017), an employment discrimination case, the court denied defendant’s motion for reconsideration of the court’s denial of defendant’s motion for summary judgment.

Plaintiff alleged that he was subjected to discrimination and a hostile work environment based on his race, color, and national origin in violation of Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law.

In its decision denying summary judgment to defendant, the court held (with respect to plaintiff’s discrimination claim) “that a reasonable juror could find both that Plaintiff had established a prima facie case of discrimination and that Defendant’s legitimate, non-discriminatory reasons for his termination were pretext for discrimination” and (with respect to plaintiff’s hostile work environment claim) “that a reasonable juror could, on the basis of Plaintiff’s testimony that his direct supervisor made offensive remarks regarding his race and national origin at least five times per day, find that Plaintiff was subjected to a hostile work environment.”

In seeking reconsideration, defendant argued that the court incorrectly applied the law when it determined that plaintiff’s direct supervisor’s (Joseph Zocalli’s) alleged remarks regarding plaintiff’s race, color, and national origin give rise to an inference of discrimination.

The court cited the rule that “in determining whether a statement regarding an employee’s protected characteristics is probative of discrimination, courts often consider whether the speaker played a ‘meaningful role’ in the adverse employment action.” Applying the law, the court held that “the record contains sufficient evidence for a reasonable juror to conclude that Zocalli did, in fact, play a meaningful role in Defendant’s decision to terminate Plaintiff’s employment.” It noted, for example, evidence that this person was plaintiff’s direct supervisor, had a significant role in the investigation that ended in plaintiff’s termination, and initiated that investigation.