Matter of Anna Finkelstein v Board of Education and the Importance of the UFT Grievance Process

Decision by a Panel of the Appellate Division, First Department in Matter of Finkelstein v. Board of Education, __A.D. 3d__, N.Y.L.J. 5/15/17 p. 19 col. 3 [1st Dept. 2017] reversing Justice Alice Schlesinger’s ruling on behalf of a probationary teacher, appearing in the May 15th New York Law Journal.

It underscores the importance of availing oneself of existing grievance procedures set forth in the collective bargaining agreement (C.B.A.), and a willingness (at least by this appellate panel) to excuse (or ignore) the investigator’s written report as a perceived “technical violation” of the  C.B.A.

She was deemed entitled to nine days pay, pursuant to Education Law Sec. 3019-a, due to insufficient advance notice of her termination of employment.

Matter of Finkelstein v Board of Educ. of the City Sch. Dist. of the City of N.Y.

2017 NY Slip Op 03850

Decided on May 11, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 11, 2017 
Sweeny, J.P., Richter, Andrias, Feinman, Kahn, JJ.

3959 101540/14 

[*1]In re Anna Finkelstein, Petitioner-Respondent,

v

Board of Education of the City School District of the City of New York, et al., Respondents-Appellants.

Zachary W. Carter, Corporation Counsel, New York (Deborah A. Brenner of counsel), for appellants.

Office of Richard E. Casagrande, New York (Gregory M. Ainsley of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Alice Schlesinger, J.), entered February 16, 2016, denying respondents' cross motion to dismiss the amended petition, or, in the alternative, to submit an answer, granting the amended petition, which sought, inter alia, to annul the determination of respondents, dated December 23, 2014, discontinuing petitioner's probationary employment, and ordering that she be reinstated with full salary and benefits retroactive to September 30, 2014, unanimously reversed, on the law, without costs, the judgment vacated, the petition granted only to the extent of awarding petitioner nine days' pay in accordance herewith, and the cross motion granted to the extent of dismissing the petition insofar as petitioner seeks reinstatement of her probationary employment, retroactive pay in excess of nine days salary and benefits.

Petitioner failed to avail herself of the grievance procedure set forth in her collective bargaining agreement before commencing the instant action seeking relief under CPLR article 78 (see Matter of Gil v Department of Educ. of the City of N.Y., 146 AD3d 688 [1st Dept 2017]; see also Matter of Sapadin v Board of Educ. of City of N.Y., 246 AD2d 359, 360 [1st Dept 1998]), and the court erred in relieving her of her obligation to exhaust her administrative remedies.

In any event, a probationary employee may be terminated for "almost any reason, or for no reason at all," as long as it is not "in bad faith or for an improper or impermissible reason" (Matter of Swinton v Safir, 93 NY2d 758, 762-763 [1999]; see also Matter of DeVito v Dept. of Educ. of the City of N.Y., 112 AD3d 421 [1st Dept 2013]). "[T]he burden falls squarely on the petitioner to demonstrate, by competent proof, that a substantial issue of bad faith exists, or that the termination was for an improper or impermissible reason, and mere speculation, or bald, conclusory allegations are insufficient to shoulder this burden" (Matter of Che Lin Tsao v Kelly, 28 AD3d 320 [1st Dept 2006] [internal citations omitted]; see also Matter of Witherspoon v Horn, 19 AD3d 250 [1st Dept 2005]).

The record shows that petitioner's dismissal was made in good faith and was based on substantiated findings after an independent investigation demonstrating that she neglected her duties and falsified records (see Matter of Thomas v Abate, 213 AD2d 251, 252 [1st Dept 1995]). The investigator's delay in publishing the written report amounted to a mere technical violation of the collective bargaining agreement, as petitioner received timely notice of the allegations, as well as an opportunity to respond, prior to the issuance of the report (see Matter of Freytes v City of New York, 146 AD3d 678 [1st Dept 2017]). The court's conclusion of bad faith stemming from the lateness of the report was purely speculative (see Thomas, 213 AD2d at 252).

However, petitioner is entitled to nine days' pay pursuant to Education Law § 3019-a [*2]because she was given inadequate notice of her termination (id.; see Matter of Tucker, see Matter of Tucker v Board of Educ., Community School Dist. No. 10, 82 NY2d 274 [1993]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 11, 2017

CLERK

UFT President Says That the Just-Released Test Scores Are Good News

My comment:

Who wrote this for him?

Michael Mulgrew

The press office of the UFT spews out nonsense and gets a lot of money to do it. They of course ignore the huge amount of scrubbing in New York City and the current grade-fixing/"credit recovery" scandal going on, as well as the on-going waterfall of UFT members brought to 3020-a and given no defense by their NYSUT attorneys. Teachers, and ATRs, are front-line. They see and are given the directive to graduate all the students, no matter what. If they stand up to these directives, they are re-assigned, sent to 3020-a. NYSUT continues to bring termination decisions from the panel of arbitrators, based upon the omission of objective data.

I see very often violations of the UFT Collective Bargaining Agreement, and ADVOCATZ fights these violations and wins.

Where is the UFT and why didn't someone over there stop the charges from getting to arbitration in the first place?

Betsy Combier

OPINION: INCREMENTAL TEST SCORE GAINS ARE MORE LIKELY TO BE REAL

by Michael Mulgrew

LINK

The incremental gains New York City recently scored on statewide reading and math tests are good news for our schools and children – and a much more positive and credible development than the rapid, but ultimately meaningless, increases in scores touted by Michael Bloomberg during his tenure as mayor.

During the Bloomberg years, state and city test scores exploded, to the point that in 2009 nearly 70 percent of city elementary and middle school students were supposedly proficient in reading, and more than 80 percent were proficient in math – results that Bloomberg and his allies in the “school reform” gang could not stop boasting about.

The UFT and experts warned that these results were smoke and mirrors, and by 2013 those numbers had fallen dramatically – to 26 percent proficiency in reading and 30 percent proficiency in math, thanks to new tests based on the Common Core learning standards, and to the state’s overtly political decision to set the new passing mark very high.

It generally takes students and teachers some time to adapt to new curricula and test approaches, and it has been a slow road back. The 26 percent in reading proficiency in 2013 grew to 28 percent last year and to more than 30 percent in the most recent results. Math proficiency is now up to more than 35 percent. 

An indication of real progress is the fact that the rate of increase for city reading scores this year (1.9 percentage points) was more than twice that of the state’s (0.7 percentage points). Overall, city reading scores are now close to the same level as the state’s, which has traditionally outscored the city by significant amounts in this area.

Schools set aside for special interventions also appear to show real progress. More than half the schools that have been in the UFT’s Community Schools program for more than two years showed increases in reading scores, several of them well above the average citywide increase. 

On average, schools in the PROSE program, which provides schools with wide flexibility to change their instruction based on input from teachers, showed significant reading gains – up 4.8 percentage points (versus 1.9 percentage points citywide).

Despite all the clamor from “reformers” about charter schools, charter reading gains in 2015 (1.3 percentage points) were under the average gain for public schools, and, as usual, overall city charter reading scores remain below the average for public schools (with public schools’ reading proficiency average at 30.4 percent versus the charter school average of 29.3 percent).

The racial achievement gap – the difference in performance between whites/Asian students and black/Hispanic students – is a stubborn and troubling phenomenon, and a feature of local, state and national standardized tests. 

The new scores did not show any major improvement in this category, though “reformers” – who were largely silent when Bloomberg and then-Schools Chancellor Joel Klein were making transparently fictitious claims about progress in this area – seem to have adopted it as a key concern since Bloomberg’s departure.

Unfortunately, a concentration on test scores obscures some important questions about the usefulness of standardized tests as a measure of educational quality. But, to the extent they do reflect reality, their incremental increases are more likely to reflect real progress based on the hard work of teachers and their students.

 

Michael Mulgrew is president of the United Federation of Teachers