Why Do Grievants Lose Their Grievance Hearings? Hearing Officer Marcel Kshensky Explains

Most people who have been through the grievance process at either 49-51 Chambers Street, 6th floor, or at 65 Court Street in the offices of Appeals and Reviews , leave thinking one or the other of the statements below are true:

1. Gosh, my UFT/DC37/CSA Rep. did a great job!! I'm sure that I won!!

2. There is something wrong with this process, the principal/AP/Respondent didn't show up and just spoke by telephone, and I was not allowed to speak/enter documents/have witnesses.

And then, after several weeks or months, you find out you lost.

The grievance procedure is a scam, charade, theatrical performance, etc., played out by all parties excluding you, the grievant, who may be thinking that all due process rights are being honored. Nope, not at all, sorry. The reps and hearing officers know this. But no one challenges the status quo. I want to add that this is in no way an attack on the individuals who hear/represent/testify at these hearings. They do their job. I expose the process they use, and the rules or policies they use to justify their actions.

See Marcel Kshensky, Susan Holtzman, and "Sham Closings"

Here is what the public knows about Hearing Officer Pedro Crespo: 
An Investigation Into Misconduct in Community School District 7

Susan Vairo

In 2013 I was hired as the paralegal at a 3020-a of a UFT Chapter Leader at C.S. 133 who was charged with 3020-a after the principal, Susan Vairo, took all employees off of the ATS and allowed access only after classes were over for the day. A teacher with a full program was given the duty of getting on the ATS for any employee who needed to view the information. This was a severe hardship for everyone. My client, the Respondent, spoke to the Principal as the Chapter Leader, and he questioned this policy. He was retaliated against and charged with 3020-a.

The arbitrator, Roy Watanabe, asked us - the attorney (Fred A.) and paralegal (me) to provide him with a brief on the Chapter Leader's First Amendment rights to speak within the school as the elected Chapter Leader, and we did this. Watanabe did not agree that the CL had any right to question Ms. Vairo, who was removed from the school by Superintendent Gale Reeves


Superintendent Gale Reeves

 and given a desk job at Tweed. The CL was given a fine and made an ATR.

Before the CL was charged with 3020-a, he grieved what the Principal was doing to him as the CL, and was shocked to find that he lost the grievance. He testified that he was not allowed to have any witnesses.







Marcel Kshensky

The DOE Attorney at the 3020-a, Lisa McFadden, (49-51 Chambers Street, Room 604, 212-374-4204)

brought in the Hearing Officer as a rebuttal witness. The Hearing Officer was Marcel Kshensky, a person who, in my opinion, should not be a hearing officer.  Ms. McFadden asked Mr. Kshensky to testify about how the grievance procedure worked.

I uploaded Kshensky's testimony at the CL's 3020-a on January 7, 2013 (I re-formatted the testimony so that it would not be in columns).

His testimony was that he is a consultant for the Office of Labor Relations but he does not work for the Department of Education.

Huh? I really don't get that. So who pays him?

And there are several shocking bits of information in the pages below which Grievants probably don't know.

1. Karen Solimando, Deputy Director of the Office of Labor Relations under David Brodsky, signs the Chancellor's name on all decisions after she writes them. The paperwork for every part of the grievance is done at OLR, and never leaves the building or goes to anyone outside of the Department of Education .In my opinion, this is not fair to the grievant, because Ms. Solimando does not attend the hearings, cannot determine credibility, and has only the scribbled notes of the hearing officer to work with. It seems to me that the decision is made in an arbitrary and capricious manner, without basis in the facts, only the paperwork submitted by the DOE Principal.

And then there is Hearing Officer Pedro Crespo.

Labor Relations

The Office of Labor Relations (OLR) provides daily support and guidance to both school-based and non school-based supervisors citywide concerning all labor relations matters including contract interpretation and employee performance/discipline. OLR advocates on behalf of principals and other DOE supervisors at contract arbitration hearings, as well as administers the Expedited Time and Attendance Process, which is an effective tool for principals to address tenured pedagogues in their schools with problematic time and attendance records.

David Brodsky

•  David Brodsky, Director
     (212) 374-7954
  DBrodsky@schools.nyc.gov

Karen Solimando, Deputy Director
(212) 374-7990
KSolimando@schools.nyc.gov

• Dimitrios (Jim) Gounelas,Deputy Director, Arbitration
  (212) 374-7926
  DGounelas@schools.nyc.gov
  
  

2. The Department of Education, Office of Labor Relations, and the UFT all know that the UFT Collective Bargaining Agreement does not allow anyone to grieve a letter to file, yet all of the above parties allow the grievant to go to Step 3(2?) at 49-51 Chambers Street, anyway. What a waste of time and money.

I have spoken to several UFT Reps who are not happy with this grievance procedure, but tell me, "that's the way it is".

Also, there is a limited number of grievances allowed to be heard each school year. I heard that the number is 200. If you are 201, forgetaboutit.

Francesco Portelos has also written about this process, see:

UFT and DOE agree: If it’s not in the contract, you could be made an ATR at anytime. Francesco writes about Marcel Kshensky:

Listen carefully as Marcel Kshensky asks “Where is that written?” in reference to the statement that a teacher cannot be made an ATR based on a 3020-a hearing.  When my rep states it’s “not in the contract,” Marcel responds “Right, but it doesn’t prohibit it.” <——-?

Again, the chancellor’s representative is basically saying if the contract doesn’t say the DOE can’t do something, then therefore it can.

Make sure you catch the so-called "signature" of Carmen Farina on his grievance. That is not her signature, it's Karen Solimando, writing Carmen Farina's signature. Betsy Combier

Carmen Farina Arbitration Advocacy - Excerpts

Marcel Kshensky, Susan Holtzman, and "Sham Closings"

Everyday the 6th floor at 51-49 Chambers Street is busy with cases being heard, not only 3020-a, but grievances as well. When a grievance is scheduled, the parties are listed at the reception desk on a board.

The process of hearing a grievance has been broken for years, as long as I can remember.

The arbitration hearings that are grievances are actually scripted so that the Respondent/employee thinks that he or she is being heard, when all that is happening is, three people are being paid to deny one person his or her complaint. The three people are, of course, the hearing officer, the opposition to the employee, and the representative of the employee whose grievance is being heard. Everybody performs his or her role.

One hearing officer is Marcel Kshensky. See picture above (the photo on the right is current) He was sued in Federal Court by a former teacher by the name of George Lawson, who, as a friend of a rubber roomer in the Bronx, called me on several occasions to talk about this man, Mr. Kshensky. George alleges that Kshensky discriminates against people. I posted his name and a little about his story in a previous article.

Why am I telling you about this historical view of Mr. Kshensky? Because he is still a hearing officer at 51 Chambers Street, but I fail to understand why. Anyway, on May 4, 2012 I went to 51 Chambers Street for a 3020-a at which I am hired as the paralegal for a private Attorney. As I was signing in at the reception desk, UFT rep Mary Atkinson was laughing, she was sitting at my right in the waiting room. She told me to look at the grievance board, and take a picture.  I looked at the board, and I did take a picture:

 Aside from lines 2 and 3 having the names of Marcel Kshensky and SUSAN HOLTZMAN, here are lines 4 and 5:

11:00a #RM606  CONDCONF  Marcel Kshensky  Karen Solimando 122137  CSA  Excessing-Sham Closings 122137

1:30p #RM606  CONDCONF  Marcel Kshensky  Karen Solimando  122136  UFT Sham Closings 122136                                                                                                                         

That's why Mary was laughing, I assume, the "Sham Closing".

Who is Susan Holtzman?

None other than the former Records Access Officer at Tweed (replaced by Joseph Baranello) who gave me Joel Klein's "contract" (not) and was ridiculously rude whenever I asked her any questions, such as, if Joel Klein does not have a contract (which he doesnt - the 'letter' that I was sent is not a contract because there is no expiration date, says my brilliant lawyer friend and grad of Columbia Law School), and Education Law Section 2590-H says that the Chancellor "shall serve at the pleasure of and be employed by the mayor of the city of New York  by contract.  The length of such contract shall not exceed by more than two years the term of office of the mayor authorizing such contract. The chancellor shall receive  a salary to be fixed by the mayor within the budgetary allocation therefor. "

Then, how can he be Chancellor? Ms. Holtzman really made fun of that question, but 

never answered it. Cathie Black didnt have a contract and neither does Dennis Walcott.

If the chancellor does not have a contract, then how does the delegation work, say when a teacher is charged with discipline as in 3020-a?? From where does the power/authority for Dennis Walcott to delegate to Superintendents the "authority" to charge anyone? 

I wish someone would answer this question, its been 7 years since I started asking it.

Betsy Combier