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Wednesday, October 13, 2021

Patrick Brimstein Resigns His Position as Superintendent in Blind Brook-Rye Union Free School District

 

Former Superintendent Patrick Brimstein

Superintendent In Westchester Resigns Following Fallout Over State-Ordered School Closure

Zak Failla, White Plains Daily Voice, October 11, 2021

The head of a Westchester school district that had an elementary school forced to close due to safety concerns has stepped down.

Blind Brook-Rye Union Free School District officials announced that Superintendent Patrick Brimstein, who was placed on paid leave earlier this year, has resigned from his position after the state ordered the closure of the Ridge Street Elementary School.

The move comes after the school building was shut down by the state, which said the district was “using space for instruction without appropriate inspections and other approvals.”

Assistant Superintendent Colin Byrne was named the interim superintendent in Brimstein’s absence.

Brimstein cited “personal reasons” for his resignation, which took effect as of Tuesday, Oct. 5. Byrne will remain in the position through at least Tuesday, Oct. 26 as the Board of Education surveys its options moving forward

“The district has maintained a laser-like focus on a successful return to in-person instruction as quickly as possible," school officials said in a statement announcing the return of students to Ridge Elementary School under Byrne’s purview.

"We have been pursuing a thorough review and adherence to all NYSED requirements, keeping the health and safety of our students at the fore as we work to bring this process to fruition.”


See also:

Blind Brook Superintendent Steps Down After Safety Scandal


District Hopes To Bring Back Students To Westchester School NY State Ordered To Close

School officials: Ridge Street School closed indefinitely, students to learn remotely

Tuesday, October 12, 2021

Federal Judge Says N.Y. Must Allow Medical Workers To Get a Religious Exemption from COVID Vaccine Mandate

 

People march as they protest against NYC's coronavirus vaccine mandate in Manhattan, New York.
 
(Michael M Santiago/Getty Images)

Now it's Mike Mulgrew's turn (he is President of the UFT) to do the same for teachers.

Betsy Combier

President and Founder, ADVOCATZ
betsy.combier@gmail.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Judge rules N.Y. must allow religious exemption for COVID vaccine mandate for medical workers

NEW YORK DAILY NEWS 
OCT 12, 2021  4:37 PM

ALBANY — A federal judge dealt a blow to Gov. Hochul’s vaccine mandate for medical workers, ruling Tuesday that New York must allow religious exemptions to the state’s COVID immunization requirement.

Justice David Hurd of the Northern District in Utica granted a preliminary injunction temporarily barring the state and employers from enforcing the vaccine mandate against health care workers who claim a legitimate religious exemption.

Hurd had already issued a temporary restraining order last month order after 17 doctors, nurses and other health professionals filed a lawsuit claiming their rights would be violated by the mandate without an exemption.

New York began requiring all hospital and nursing home workers to be vaccinated against coronavirus starting on Sept. 27. Hochul last week expanded the edict to include workers at assisted living facilities, hospice care, treatment centers as well as home health aides.

Former Gov. Andrew Cuomo initially instituted the mandate back in August, but his version allowed for religious exemptions. Under Hochul, the state Department of Health amended the order and did away with the exemption.

The plaintiffs in the case argue that they oppose taking the shots due to the vaccines’ connections to aborted fetal cells, despite none of the available immunizations containing such tissue.

Johnson & Johnson, Pfizer and Moderna all used laboratory-grown cells based on aborted fetal cells collected decades ago in manufacturing and testing their COVID vaccines.

Hurd noted that the constitutional question in the suit is simply whether the mandate “conflicts with plaintiffs’ and other individuals’ federally protected right to seek a religious accommodation from their individual employers.

“The answer to this question is clearly yes,” he wrote.

Hochul indicated that the state will seek to appeal the decision.

“My responsibility as Governor is to protect the people of this state, and requiring health care workers to get vaccinated accomplishes that,” she said in a statement. “I stand behind this mandate, and I will fight this decision in court to keep New Yorkers safe.”

Sunday, October 10, 2021

A Question To The NYC Department of Education: Who Are You Kidding When You Deny Knowing How Many Students Are Attending School?

 

Mayor Bill de Blasio gives a news conference outside Phyl's Academy, Wednesday, March 24, in the Brooklyn borough
of New York. 
(Mark Lennihan/AP)

The NYC DOE is not kidding. They REALLY mean that they do not want any bad data to be made public. This might make the NYC Department of Education look bad. I mean, look worse.

Here is what I think, courtesy of Rick Kick, Editor (you should buy this book!):


I have given the "Who Are You Kidding Award" to several Chancellors:

The "Who Are You Kidding??" Award Goes To: Joel Klein, New York City Board of Education Pretender

NYC Department of Education Wins the "Who Are You Kidding Award" After Losing Gifted and Talented Entry Exams


The 2016 "Who Are You Kidding Award" Goes to Carmen Farina (for the second time) and Mayor Bill de Blasio



Betsy Combier

President and Founder, ADVOCATZ
betsy.combier@gmail.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

NEW YORK DAILY NEWS 
OCT 09, 2021  4:10 AM

The new academic year’s fourth week has just ended, yet America’s largest public school system still refuses to report the number of students in attendance. Preliminary numbers are promised at the end of the month, supposedly earlier than ever before, and that the public should be grateful for getting that much data that quickly.

Really?

Every weekday, the Department of Education delivers, and Mayor de Blasio boasts about the attendance rate — 87% on Thursday — without any numerator or denominator. Is that 87% of 1.1 million students, the pre-COVID tally? Is it 87% of last year’s 960,000, which included more than 600,000 fully remote learners? Or 87% of a much smaller number? The first week of school, the DOE told us it was too early because too many families were still settling in. While there may be some volatility, it’s been a month.

Meanwhile, only Wednesday did educrats reveal the number of kids whose parents have let them get COVID tests — a critical data piece of information, since a random 10% is swabbed weekly, with results triggering partial and full classroom closures. Of roughly a half-million elementary-age students, just 192,705 have signed forms — meaning we’re getting a very incomplete picture of COVID inside schools.


While we’re on the subject, last week came news that only about 300 medically vulnerable kiddos are getting at-home learning (there’s no remote option anymore, just limited at-home instruction for at-risk kids who qualify). That’s a tiny fraction of the 3,000-5,000 Schools Chancellor Meisha Porter expected. Why have these 300 been getting just an hour a day of instruction, far less than what remote learning provided last year? The DOE says it’s rolling out longer-day, small-group instruction for some of these youngsters. Why only now, and why can’t kids get one-on-one for more than an hour a day?


The City Council is mulling bills by Mark Treyger demanding the DOE publish basic indicators. If the mayor signs it, it won’t take effect for another 30 days. New Yorkers deserve the truth now. It’s embarrassing we even have to say this.

The Special Education Student Information System ("SESIS) Is Replaced

A teacher works on a laptop in her classroom. New York City is planning to scrap its special education data system and replace it with a new one.
 José A. Alvarado Jr. for Chalkbeat

Finally! The terrible Special Education Student Information System or "SESIS" will be replaced. At least that's what has been reported by Chalkbeat and voted on by the Panel For Educational Policy ("PEP")

New SESIS Form for 2020-21 School Year
UFT.org

 NYC parent advocates, special education teachers, paraprofessionals, and everyone else in the Department of Education have been heard. The voices have been loud and clear for many years. The NYC DOE, Mayor, and NY City Council weren't listening. Maybe they still aren't and this is a public relations campaign.

A law is only as good as its implementation.

$33 million in back pay for SESIS work going to members

SESIS For Dummies

Special Education Standard Operating Procedures Manual

Betsy Combier

President and Founder, ADVOCATZ
betsy.combier@gmail.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

NYC panel approves $43 million to replace troubled special education data system

A citywide panel cleared the way this week for New York City to begin overhauling its special education data system, approving nearly $43 million to replace the costly and glitchy database more than two years after officials first announced plans to scrap it.

The city’s Special Education Student Information System, known as SESIS, is responsible for tracking the services students with disabilities are supposed to receive, their evaluations, and progress toward meeting their goals. But the system, which cost $130 million to develop, has been plagued with problems since it launched in 2011. The new system should be ready by fall 2023, city officials said.

The city’s Panel for Educational Policy on Wednesday approved nearly $43 million over five years for the education department to contract with a Milwaukee-based company called Experis to help replace the system, the result of a competitive bidding process.

City officials have been pushing for a custom-built alternative to SESIS that can be tailored to New York’s complex special education system rather than an off-the-shelf replacement. The new system will integrate data on preschool students with disabilities, which is currently housed in a separate system.

Advocates hope replacing SESIS will have tangible benefits for the city’s more than 200,000 students with disabilities. Because SESIS is incompatible with other city databases, including those that track what classrooms students are actually enrolled in, it is difficult to obtain up-to-date information about whether students are in classrooms with the correct ratios of students and educators, advocates said. City officials have previously been forced to cross reference data from different systems manually.

SESIS has also impeded the city’s ability to release accurate data on whether students are receiving the legally mandated special education services to which they’re entitled.

“I’m very excited that the city has finally allocated the resources to change [SESIS] and create a better system, which can only mean that more kids can get what they’re entitled to in a timely way,” said Lori Podvesker, a special education policy expert at INCLUDEnyc and a member of the education policy panel who voted to approve the city’s proposal.

Still, her vote to approve the funding came with some reservations. She worries the city prioritized cost-effectiveness over the best possible platform and wondered whether Experis had sufficient experience building special education data systems. “Do I trust that it’s going to be great? Absolutely not,” Podvesker said. “But I believe it will be better than what we have.”

Experis officials emphasized that the new system will be created to the education department’s specifications and owned by the city, which will not have to pay ongoing licensing fees. The city will also be able to change the system as needed. Michael Corley, the company’s managing director said in a prepared statement that Experis “has subject matter experts that are proficient in Special Education services, practices, and program implementation.”

Crucially, Experis will also provide a parent-facing portal for families to communicate about their child’s learning plan, monitor what services are being delivered, and give parents direct access to their child’s individualized education program, said education department spokesperson Sarah Casasnovas.

“This will help families get real-time information and allow for seamless reporting and oversight to make sure our students get the support they’re entitled to,” Casasnovas said in a statement.

Advocates have long called for more real-time information about whether students are receiving services and allow parents to access it, giving families a powerful tool to advocate on behalf of their children and city officials a clearer sense of where resources are needed. It’s unclear exactly what information parents will be able to access in the new system.

“Sometimes it feels like they’re relying on our escalations to figure out where they need to send support,” said Maggie Moroff, who works on special education policy issues for Advocates for Children. She hopes a new system will help city officials respond faster in situations where students aren’t getting required therapies — or are even in the wrong type of classroom setting.

Moroff noted that city officials have recently given parents direct access to some special education data, including whether the teachers in their courses have a special education certification, and the most recent dates of services such as speech or occupational therapy.

For its decade-long run, SESIS has caused headaches for teachers, families, and city officials.

Educators have long complained that SESIS is difficult and time consuming to use, and the system at times malfunctioned more than 800,000 times a day.

Special education teachers often spent hours navigating a maze of drop-down menus — inputting data such as whether they met with a student and for how long — only to experience error messages that erased their answers. (An arbitrator eventually ordered the city to pay more than $38 million in teacher overtime.)

In addition, former Public Advocate Letitia James filed a lawsuit claiming that SESIS was to blame for some children not receiving services as well as lost Medicaid payments. Between 2012 and 2015, according to the IBO, the city collected $373 million less in Medicaid reimbursements than officials projected.

Megan Moskop-Toler, a special education teacher who once experienced 41 error messages in the span of two hours, said she hopes a new data system isn’t so time consuming so she can spend more time focused on her students rather than on data entry tasks that are sometimes redundant.

She also pointed to more systematic issues with special education staffing, saying that knowing where students aren’t getting services is only one part of the issue.

“The heart of the problem is understaffing and under-resources,” she said. “No one is like, ‘Oh I don’t want to give their children physical therapy.’”

Other educators said they are nervous about whether such a massive undertaking will involve unforeseen glitches and delays that could impact the timeliness of special education evaluations or other services.

“I just worry about what the transfer will look like,” said Annie Tan, a Brooklyn special education teacher. “I’ve been using [SESIS] for about six years now and I think it was like the second or third year where I finally understood all the places to put things.”

Monday, October 4, 2021

Leave Without Pay (LWOP) Starts, Blocking All Teachers Who Are Not Vaccinated From Entering Their Schools

 


Teachers who cannot get the vaccine or won't get it for medical or religious reasons and get approved, are on unpaid leave for a year starting today Monday October 4, 2021.

Many teachers are opting for a hearing on their medical or religious exemption. The hearing is very short, 15 minutes. A decision is made within 24 hours.

I am posting the Notice sent by the NYC Department of Education, below,  as well as the assignment while a teacher awaits the decision of the arbitrator on any exemption.

See this:

Thousands of Unvaccinated New York City Teachers on Unpaid Leave: Union

Vaccine Mandate for NYC Educators Survives Court Challenge

From: Division of Human Capital <DHC@schools.nyc.gov>
Sent:
Subject: Your Pending Appeal for An Exemption to the COVID-19 Vaccine Mandate
 

Colleague, 

According to our records, you have a pending appeal on your application for a medical or religious exemption to the COVID-19 Vaccine mandate. 

While this appeal is pending, you are considered eligible to be treated as exempt for the purposes of the vaccine mandate which will go into effect as of Monday, October 4.  However, as that status will change, you should be regularly checking your DOE email (including this weekend) for notification from the Arbitrator and be aware of the following: 

While your appeal is pending and you remain unvaccinated, you will not be put on a Leave Without Pay status.  However, you will not be permitted to enter a school building. If your usual place of work is in a school, you will be expected during this time to temporarily work offsite and support your school to cover your work in your absence and perform related activities.   You should be available during regular work hours and check-in with your school’s payroll secretary for timekeeping purposes. If your usual place of work is not in a school building, you should continue to report to your regular location and assignment. 

If your appeal is granted (approved) and you remain unvaccinated, you will not be put on a Leave Without Pay status.  If your usual place of work is in a school, you will receive a new assignment outside of a school building (e.g. administrative offices) to perform academic or administrative work determined by the DOE.  A notification of this assignment may take a few days and in the interim, you should temporarily work offsite to transition your work and support related activities.  During this time, you should be available during regular work hours and check-in with your school’s payroll secretary for timekeeping purposes. If your usual place of work is not in a school building, you should continue to report to your regular location and assignment unless notified otherwise. 

If your appeal is denied and you remain unvaccinated, you will be put on a Leave Without Pay, with benefits. If you are vaccinated and upload your information to the Vaccination Portal then you may be restored to active pay status.    

Thank you,

Division of Human Capital
***************************************************************
Subject: Appeal Hearing 
 

Good Evening, I’m Anthony Barnes, your UFT Advocate for your Appeal Hearing. 

If I emailed you at your Schools.nyc.gov, I apologize. Please reply with your personal email.

If you would like to talk, please send your contact information.

As a reminder, your principal is required to give you release time and a private area in order to attend your hearing.

The hearing will take place on Zoom and should take approximately 15 minutes, though you may have an additional wait time of up to 20 minutes. 

 If you are an employee represented by a union other than the UFT, please let us know. 

 * If you want to know more about what to expect, take a look at the arbitrator’s order pgs. 7-13 :

 https://www.uft.org/sites/default/files/attachments/DOC091021_%28003%29.pdf

 What To Expect:

The Arbitrator, Mr. Pfeffer, will let you into the chat room.

IF YOU HAVE AN ADDITIONAL DOCUMENTATION TO PRESENT, INFORM HIM THEN.

In the hearing will be You, Me the DOE Lawyer and the Arbitrator,  Earl R. Pfeffer.

We will all introduce ourselves.  The Arbitrator will swear you in. 

I will have an opening statement. Basically, I will address you. I will explain the Arbitration  Process and direct you to speak to the Arbitrator and convince him that the DOE made the wrong decision when your Exemption was denied.  Medical Documentation should be from a Specialist, as opposed to a General Doctor.  Religious Exemption request must not be your personal views.  You must explain how taking the vaccine violates your Religious Convictions.

If you assert the vaccines have aborted fetuses, you will loose your case.  That is false information according to the NYC Medical Division, and that’s a personal view.  Religious Exemption requests shall be considered for recognized and established religious organizations. You should present documentation in writing by clergy or a  religious official . Again, you must show/tell how taking the vaccine violates your religious convictions. NO

PERSONAL VIEWS, only Provable Facts.  The DOE Lawyer will have an opening statement. They will say that your denial should be upheld, and state why.

I will speak, the DOE Lawyer will speak, then you will speak to the Arbitrator.  We will have closing comments and you will exit the chat.  He will email you the results.

Hope This Is Helpful.  If you need a side bar in the meeting, we can certainly ask for a few minutes alone.

Wishing Everyone Success Tomorrow.

 

Anthony Barnes

MEMBER REPRESENTATIVE

Personnel and Special Projects

United Federation of Teachers

212 701 9442


Betsy Combier

President and Founder, ADVOCATZ
betsy.combier@gmail.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

***********************************************

From: NYCDOE <noreply@schools.nyc.gov>
Sent: Saturday, October 2, 2021, 3:12 PM
To: 
Subject: Notice of Leave Without Pay - PLEASE READ


Dear ,

You are receiving this message because you are being placed on a Leave Without Pay (LWOP) because you are not in compliance with the DOE’s COVID-19 Vaccine Mandate. If you are a substitute or in certain titles you have been placed in another inactive status, not a LWOP. This means you must not report to your work or school site beginning Monday, October 4th.

While you are on Leave Without Pay (LWOP), you:

· Cannot work and will not receive compensation, but you will continue your medical benefits

· Cannot use annual leave, CAR, or sick time

· Cannot enter your work or school site

· Cannot reach out to students or families

In order to return from LWOP status, you must complete two steps using the DOE Vaccination Portal

1. Upload proof that you have received your first dose of a COVID-19 vaccine. Proof of COVID-19 Vaccine can be an image of your vaccination card, NYS Excelsior Pass, or another government record

2. E-sign the attestation stating that you are willing to return to your worksite within seven calendar days of submission.

Once you have completed these two steps, your HR Director and supervisor will also be notified and will work with you to plan your return date.

If you have been vaccinated this weekend and upload this information by Monday morning, you may report to work as usual on Monday, October 4th, and you will be put back on active status.

On Monday, October 4th, if you have an acceptable proof of vaccination (e.g., vaccination card, NY State Excelsior pass, or other government record) but have not been able to upload to the DOE Vaccination Portal, you may show your proof to the School Safety Agent and/or Principal (or designee) at the door. You will be allowed in the building, and you must immediately upload proof of vaccination to the Vaccination Portal and confirm that you would like to return to work in order to ensure there is no break in payroll.

If you encounter technical issues accessing the Vaccination Portal, please contact the DOE Help Desk by opening a ticket online or calling 718-935-5100. If you need support uploading your proof of vaccination, please contact your principal or HRD who can do so on your behalf.

Please be advised that if you do not intend to return to the DOE after October 1, 2021, you will need to return all DOE property, including computers, IDs, blackberries, and keys, immediately. Failure to return any DOE property that has been assigned to you will delay the processing of your final payment and any payout of leave time.

Employees represented by UFT or CSA who have been placed on LWOP due to vaccination status may select (in SOLAS) special separation or leave options per the arbitration award:

· Separation with benefits (available in SOLAS as of Monday, October 4): Employees choosing to separate under this option:

o Must share their intention to separate via SOLAS by October 29, 2021.

o Will be required to waive their rights to challenge the involuntary resignation, including, but not limited to, through a contractual or statutory disciplinary process

o Will be eligible to be reimbursed for unused CAR/sick leave on a one-for-one basis at the rate of 1/200th of the employee’s salary at departure per day, up to 100 days, to be paid out following the employee’s separation

o Will be eligible to maintain health insurance through September 5, 2022, unless they have health insurance available from another source.

· Extend the leave without pay due to vaccination status through September 5, 2022 (available in SOLAS as of Monday, November 1 through November 30, 2021):

o Employees choosing this option will also be required to waive their rights to challenge their involuntary resignation, including, but not limited to, through a contractual or statutory discipline process

o They will remain eligible for health insurance through September 5, 2022

o Employees who have not returned by September 5, 2022 shall be deemed to have voluntarily resigned

· Beginning December 1, 2021, the DOE will seek to unilaterally separate employees who have not selected one of the options above or otherwise separated service.

For more information about where to get vaccinated, visit vaccinefinder.nyc.gov or call 877-VAX-4-NYC. For the latest COVID-19 staffing updates, please visit the Coronavirus Staff Update InfoHub page.

Sincerely,

NYCDOE Division of Human Capital

Sunday, October 3, 2021

From ADVOCATZ: Claimant Wins Unemployment Benefits After Resigning for "Good Cause"

 


Re-posted from ADVOCATZ.com, Sept. 7, 2017:

The case of Yolanda Cohen decided by the Appellate Division Third Department shows the importance of a fact-based defense by a Claimant showing “good cause” for resignation due to workplace harassment.

We at Advocatz use terms such as “Just Cause” (or ‘good cause’) and “bad faith” in our defense of a Respondent brought to Education Law 3020-a arbitration. We want the Hearing Officer to look at the facts, or lack thereof, and the fairness and integrity of the process followed in support of those facts.

From Wikipedia:

“Good cause is a legal term denoting adequate or substantial grounds or reason to take a certain action, or to fail to take any action prescribed by law. What constitutes a good cause is usually determined on a case-by-case basis and is thus relative.

Often the court or other legal body determines whether a particular fact or facts amount to a good cause. For example, if a party to a case has failed to take legal action before a particular statute of limitations has expired, the court might decide that the said party preserves its rights nonetheless since that party’s serious illness is a good cause or justification for having additional time to take the legal action.”

( Henry Campbell Black; Joseph R. Nolan; Jacqueline M. Nolan-Haley (1991). “good cause”. Black’s Law Dictionary. West Pub. Co. p. 476).

Thus, a sustainable, valid defense in any forum results from a thorough, fact-based inquiry into the background of a case using the “good cause” justification.

Similarly, a valid defense should have a fact-based presentation of bad faith by the defendant(s).

From Wikipedia:

“Bad faith (Latinmala fides) is double-mindedness or double heartedness in duplicityfraud, or deception. It may involve intentional deceit of others or self-deception.

The expression “bad faith” is associated with “double heartedness”, which is also translated as “double-mindedness”. A bad faith belief may be formed through self-deception, being double-minded, or “of two minds”, which is associated with faith, belief, attitude, and loyalty. In the 1913 Webster’s Dictionary, bad faith was equated with being double hearted, “of two hearts”, or “a sustained form of deception which consists in entertaining or pretending to entertain one set of feelings, and acting as if influenced by another”. The concept is similar to perfidy, or being “without faith”, in which deception is achieved when one side in a conflict promises to act in good faith (e.g. by raising a flag of surrender) with the intention of breaking that promise once the enemy has exposed himself. After Jean-Paul Sartre‘s analysis of the concepts of self-deception and bad faith, bad faith has been examined in specialized fields as it pertains to self-deception as two semi-independently acting minds within one mind, with one deceiving the other.

Some examples of bad faith include: a company representative who negotiates with union workers while having no intent of compromising; a prosecutor who argues a legal position that he knows to be false; an insurer who uses language and reasoning which are deliberately misleading in order to deny a claim.”

Betsy Combier

President and Founder, ADVOCATZ
betsy.combier@gmail.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Appellate Division, Third Department

In the Matter of the Claim of

2017 NY Slip Op 05885

In the Matter of the Claim of YOLANDA COHEN, Respondent.

NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES, Appellant.

COMMISSIONER OF LABOR, Respondent.

Appellate Division of the Supreme Court of New York, Third Department.

Decided July 27, 2017.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 11, 2015, which ruled that claimant was entitled to receive unemployment insurance benefits.

Zachary W. Carter, Corporation Counsel, New York City (Michael J. Pastor of counsel), for appellant.

Michelle I. Rosien, Philmont, for Yolanda Cohen, respondent.

Eric T. Schneiderman, Attorney General, New York City (Linda D. Joseph of counsel), for Commissioner of Labor, respondent.

Before: Peters, P.J., Garry, Egan Jr., Rose and Mulvey, JJ.

MEMORANDUM AND ORDER

EGAN, Jr., J.

Claimant worked for the employer as a paralegal from 2007 to 2012, during which time various disciplinary charges were lodged against her. In February 2012, claimant and the employer entered into a stipulation of settlement resolving the most recent round of disciplinary infractions. Pursuant to the terms of that stipulation, claimant would waive her right to a Civil Service Law § 75 hearing and would resign effective March 15, 2012. In the interim, claimant would be allowed to collect her accrued annual leave and, going forward, would receive a “neutral reference” from the employer. Notably, the stipulation of settlement contained no admission of misconduct, and no finding of wrongdoing on the part of claimant was made.

Claimant subsequently filed an application for unemployment insurance benefits, and the Department of Labor issued initial determinations disqualifying claimant from receiving benefits upon the grounds that she voluntarily left her employment without good cause or, alternatively, lost her employment due to misconduct. Following a lengthy hearing, an Administrative Law Judge (hereinafter ALJ) overruled the initial determinations, finding that claimant had good cause to separate from her employment and had not otherwise committed disqualifying misconduct. In so concluding, the ALJ found that claimant had been subject to a hostile work environment. The Unemployment Insurance Appeal Board subsequently adopted the ALJ’s findings and affirmed the ALJ’s decision, prompting this appeal by the employer.

We affirm. As a general proposition, a claimant who voluntarily leaves his or her employment without good cause will not be entitled to receive unemployment insurance benefits (see e.g. Matter of Flint-Jones [Federal Reserve Bankof N.Y.— Commissioner of Labor], 144 AD3d 1288, 1288-1289 [2016]), and the same holds true for a claimant who engages in disqualifying misconduct (see e.g. Matter of Trunzo [Commissioner of Labor], 145 AD3d 1308, 1309 [2016]). That said, “[a] claimant who voluntarily leaves his or her position in the face of disciplinary charges may qualify for unemployment benefits if the actions did not amount to misconduct” (Matter of Jimenez [New York County Dist. Attorney’s Off.—Commissioner of Labor], 20 AD3d 843, 843 [2005] [internal quotation marks and citation omitted]; accord Matter of Cohen [Town of Brookhaven—Commissioner of Labor], 91 AD3d 998, 998 [2012], lv dismissed 19 NY3d 831 [2012]; Matter of Straw [Rocky Point Union Free School Dist.—Commissioner of Labor], 32 AD3d 1098, 1099 [2006]). “Whether a claimant has engaged in disqualifying misconduct is a factual question for the Board to resolve and its determination will not be disturbed if supported by substantial evidence” (Matter of Oberman [New York City Dept. of Citywide Admin. Servs.—Commissioner of Labor], 143 AD3d 1022, 1023 [2016] [internal quotation marks and citations omitted]; see Matter of Trunzo [Commissioner of Labor], 145 AD3d at 1309).

Claimant and the employer’s witnesses presented competing accounts of claimant’s work history, her work product, her general demeanor and her interaction with others in her office. Without recounting the extensive testimony offered on these points, suffice it to say that the employer portrayed claimant as an insubordinate malcontent who failed to timely and appropriately complete assignments or respond to various emails or directives. Claimant, on the other hand, testified at length as to the “bullying” and harassment that she endured at the hands of her supervisors, recounted the manner in which she was verbally threatened by certain individuals in her office and disputed the employer’s account of her overall work performance. This conflicting testimony presented factual and credibility issues for the Board to resolve (see Matter of Saunders [Life Adj. Ctr., Inc.—Commissioner of Labor], 106 AD3d 1317, 1317-1318 [2013]). As noted previously, the stipulation of settlement entered into between claimant and the employer contained no finding or admission of wrongdoing on the part of claimant. Further, upon crediting claimant’s testimony as to the nature of her work environment and her reasons for resigning, the Board agreed with the ALJ’s findings that claimant’s actions did not rise to the level of disqualifying misconduct but, rather, were undertaken in direct response to her “hostile” and “untenable” work environment — an environment that, in turn, provided “a compelling reason for her to resign.” As there is substantial evidence to support the Board’s decision in this regard, it will not be disturbed — despite the presence of other evidence in the record that could support a contrary conclusion (see Matter of Barrier Window Sys., Inc. [Commissioner of Labor], 149 AD3d 1373, 1375 [2017]).

Peters, P.J., Garry, Rose and Mulvey, JJ., concur.

ORDERED that the decision is affirmed, without costs

see Matter of Kolmel:

Matter of Kolmel v City of New York
2011 NY Slip Op 07265 [88 AD3d 527]
October 18, 2011
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, December 7, 2011

 

In the Matter of William Kolmel, Appellant,
v
City of New York et al., Respondents.

—[*1]

Wolin & Wolin, Jericho (Alan E. Wolin of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Edward F. X. Hart of counsel), for respondents.

Order and judgment (one paper), Supreme Court, New York County (Carol R. Edmead, J.), entered June 10, 2010, which, insofar as appealed from as limited by the briefs, denied the petition seeking, inter alia, to annul the determination of respondent Department of Education (DOE) denying petitioner certification of completion of probation and terminating his employment as a probationary teacher, and denying his appeal of an unsatisfactory rating (U-rating) for the 2008-2009 school year, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously reversed, on the law, without costs, the petition granted to the extent of annulling the U-rating and the matter remanded to DOE for proper completion of the final review and recommendation.

The record shows that following three years of probationary service as a high school social studies teacher, petitioner had received satisfactory reviews and year-end reports. However, petitioner was informed he would not be recommended for tenure that year and agreed to enter into an agreement extending his probation through the 2008-2009 school year. During this fourth year, petitioner received two satisfactory and two unsatisfactory classroom reports, two letters to the file for unbecoming conduct, and his principal gave him an unsatisfactory rating in each category on the year-end report (except voice and appearance, which were left blank) and an overall U-rating. As a result, it was recommended that petitioner be denied certification of completion of probation, which required termination of his service and precluded him from being hired by any other high school in the City.

“[A] . . . probationary employee may be discharged for any or no reason at all in the absence of a showing that his or her dismissal was in bad faith, for a constitutionally impermissible purpose or in violation of law” (Matter of Brown v City of New York, 280 AD2d 368, 370 [2001]; see Matter of Frasier v Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763, 765 [1988]). “Evidence in the record supporting the conclusion that performance was unsatisfactory establishes that the discharge was made in good faith” (Matter of Johnson v Katz, 68 NY2d 649, 650 [1986]); the same standard applies when a teacher challenges a “U” rating (see Batyreva v New York City Dept. of Educ., 50 AD3d 283 [2008]).

Here, the two negative classroom observations cited in the year-end report, which [*2]criticized petitioner’s manner of asking questions, and the file letters, could rationally support a finding that petitioner had not developed into a proficient high school social studies teacher, following three years of suggestions and assistance (see e.g. Matter of Murnane v Department of Educ. of the City of N.Y., 82 AD3d 576 [2011]).

However, petitioner submitted evidence that the principal who made the determination to award the 2008-2009 U-rating did not observe petitioner’s teaching during either of his final two years at the school. This was in violation of DOE’s rules concerning teacher rankings, which require at least one observation by the principal and pre-observation meetings with probationary teachers in danger of U-ratings. Furthermore, the year-end report, on its face, was completed by the principal in an arbitrary manner, including unsatisfactory rankings in every category, even where unsupported by any evidence or contradicted by evidence in the report itself. Petitioner’s assertion that the principal stated at the administrative hearing that she did not rely on the file letters in making her tenure recommendation is not disputed by respondents. Petitioner also submitted a statement by a current DOE employee who formerly worked at the high school, that the principal pressured assistant principals to give negative U-ratings without observing the teachers. These deficiencies in the review process leading to the recommendation to deny tenure and terminate petitioner’s employment are not merely technical, but undermined the integrity and fairness of the process (see Matter of Blaize v Klein, 68 AD3d 759 [2009]; Matter of Lehman v Board of Educ. of City School Dist. of City of N.Y., 82 AD2d 832, 834 [1981]; compare Matter of Davids v City of New York, 72 AD3d 557, 558 [2010] [technical failure to follow rules not bad faith where delays were undertaken in attempt to allow petitioner to bring his performance up to standards]). Concur—Mazzarelli, J.P., Moskowitz, Acosta, Renwick and DeGrasse, JJ. [Prior Case History: 2010 NY Slip Op 31350(U).]