Another probationary teacher who cannot reach the standard for bad faith or retaliation.
Betsy Combier
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
Tom, J.P., Friedman, Renwick, Manzanet-Daniels, Feinman, JJ.
14367 In re Nayana Vyas, Index 102253/12
Petitioner Appellant,
-against - City
of New York, et al.,
Respondents-Respondents. Glass Krakower LLP, New York (Jordan Harlow of counsel), for
appellant.
Zachary W. Carter, Corporation Counsel, New York (Diana Lawless
of counsel), for respondents.
Judgment, Supreme Court, New York County (Kathryn E. Freed,
J.), entered June 25, 2013, insofar as appealed from as limited
by the briefs, granting respondents’ cross motion to dismiss,
pursuant to CPLR 3211(a)(7), the petition seeking the annulment
of respondents’ denial of petitioner’s appeals of her
unsatisfactory ratings (U-ratings) for the 2009-2010 and 2010-
2011 school years, and dismissing the proceeding brought pursuant
to CPLR article 78, unanimously affirmed, without costs.
Petitioner, who was formerly employed by respondent New York
City Department of Education (DOE) as a probationary teacher,
brought this proceeding under CPLR article 78 to annul her U ratings
for the 2009-2010 and 2010-2011 school years. In lieu of
answering the petition, respondents made a cross motion, pursuant to CPLR 3211(a)(7), to dismiss the petition for failure to state
a cause of action. Because petitioner has not pleaded any
specific facts giving rise to a fair inference that the U-ratings
were arbitrary, capricious, made in bad faith, or issued in
violation of lawful procedure, Supreme Court properly granted the
cross motion and dismissed the petition.
With regard to the U-rating for the 2009-2010 school year,
petitioner’s primary complaint is that she was evaluated based on
assignments to teach science classes, which were outside her area
of certification (mathematics). However, DOE was entitled to
assign petitioner (who holds a medical degree) to teach science
classes, notwithstanding that her certification is in
mathematics. The provision of the Rules of the Board of Regents
that prohibits assigning a teacher “to devote a substantial
portion of [her] time in a tenure area other than that in which
[she] has acquired tenure or is in probationary status, without
[her] prior written consent” (8 NYCRR § 30-1.9[c]) is “not . . .
applicable to city school districts located within cities having
a population in excess of 400,000 inhabitants” (8 NYCRR § 30-
1.2[e]), such as DOE (see Steele v Board of Educ. of City of
N.Y., 40 NY2d 456, 463 n 2 [1976]).
Since DOE was entitled to
make the teaching assignments in question, its evaluation of petitioner based on those assignments does not give rise to an
inference that the resulting U-ratings were arbitrary,
capricious, or made in bad faith, nor were the U-ratings issued
in violation of lawful procedure. Further, given that petitioner
was a probationary teacher who could have been discharged at any
time, for any lawful reason or no reason at all under Education
Law § 2573(1)(a) (see Matter of Venes v Community School Bd. of
Dist. 26, 43 NY2d 520, 525 [1978]), bad faith cannot be inferred
from the fact that the U-rating was issued after the school
principal insisted that petitioner sign an agreement consenting
to an additional year of probation to avoid being discharged.
The petition’s remaining allegations concerning the 2009-2010
school year also fail to raise an inference that her U-rating for
that year was issued in bad faith or was otherwise improper.
The only basis alleged in support of petitioner’s challenge
to her U-rating for the 2010-2011 school year is the contention
that it was issued in retaliation for her having filed a
complaint with the State Department of Education against the
principal who issued her U-rating for the previous year, when she
was teaching at a different school.
This fails to state a cause
of action for annulment of the rating because petitioner’s
imputation of a retaliatory motive for the U-rating is entirely speculative; the specific facts alleged do not give rise to a
fair inference that the U-rating was improperly motivated (see
Matter of Murnane v Department of Educ. of the City of N.Y., 82
AD3d 576 [1st Dept 2011]).
Notably, petitioner admits that she
was assigned to teach within her area of certification during the
2010-2011 school year, and she alleges no procedural
irregularities that might have undermined the integrity or
fairness of the rating process for that year (cf. Matter of
Kolmel v City of New York, 88 AD3d 527, 529 [1st Dept 2011]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: NOVEMBER 17, 2015
_______________________
Showing posts with label appeal. Show all posts
Showing posts with label appeal. Show all posts
Sunday, May 14, 2017
Friday, July 17, 2015
Santiago v New York City Department of Education: Union Mishandling Grievance Does Not Merit Review
| Santiago v New York City Dept. of Educ. |
| 2015 NY Slip Op 05779 |
| Decided on July 2, 2015 |
| 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. |
Mazzarelli, J.P., Friedman, Richter, Manzanet-Daniels, Gische, JJ.
103976/12 15584 15583
[*1] Justine Santiago, Plaintiff-Appellant,
v
The New York City Department of Education, et al., Defendants-Respondents.
Law Office of Robert S. Powers, North Babylon (Robert S. Powers of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Fay Ng of counsel), for The New York City Department of Education and the City of New York, respondents.
Robin Roach, New York (Deena S. Mikhail of counsel), for District Council 37, respondent.
v
The New York City Department of Education, et al., Defendants-Respondents.
Law Office of Robert S. Powers, North Babylon (Robert S. Powers of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Fay Ng of counsel), for The New York City Department of Education and the City of New York, respondents.
Robin Roach, New York (Deena S. Mikhail of counsel), for District Council 37, respondent.
Orders, Supreme Court, New York County (Margaret A. Chan, J.), entered August 19, 2013, which granted defendants' motions to dismiss the complaint, unanimously affirmed, without costs.
The court correctly dismissed the complaint as against defendant New York City Department of Education (DOE), because plaintiff failed to exhaust the administrative remedies set forth in the collective bargaining agreement (see Matter of Plummer v Klepak, 48 NY2d 486, 489 [1979], cert denied 445 US 952 [1980]; Matter of Ray v New York City Dept. of Correction, 212 AD2d 387, 387 [1st Dept 1995], lv denied 85 NY2d 810 [1995]). Plaintiff was not excused from this requirement by simply alleging that the union had mishandled her grievance, because she could have instituted the grievance procedure herself, yet she failed to do so. This is not a case where the union had sole, exclusive authority over the grievance process (see Matter of Lewis v Klepak, 65 AD2d 637, 638 [3d Dept 1978], lv denied 46 NY2d 711 [1979]).
Defendant the City of New York is not a proper party to this action, as it cannot be held liable for the DOE's alleged wrongdoings (see Perez v City of New York, 41 AD3d 378, 379 [1st Dept 2007], lv denied 10 NY3d 708 [2008]).
Plaintiff's claim against the union was not brought within the applicable four-month statute of limitations (see CPLR 217[2][a]). The statute of limitations was not tolled under CPLR 205(a), because the initial federal action, which was dismissed for lack of subject matter jurisdiction, was itself untimely. Moreover, plaintiff was not entitled to the 30-day toll created by the application of Education Law § 3813(1) and CPLR 204(a), because the union is not an entity covered by Education Law § 3813(1).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JULY 2, 2015
CLERK
Saturday, May 30, 2009
Teacher Glenn Storman Wins in Court After Fighting the NYC BOE on False Corporal Punishment Charges
Congratulations Mr. Storman!
We now know how the NYC Board of Education works to get rid of teachers "they" dont want: write TAC memos which'prove' an allegation (see my articles on the Teacher Performance Unit and the TPU, and "Investigating the Investigators")that may or may not be true. What is striking about the case of Mr. Storman is the fact that well-known "Gotcha Squad" OSI-former-police-detective Dennis Boyles is mentioned as changing his mind about what to charge Mr. Storman:
"An investigation by the Department of Education’s Office of Special Investigations ultimately substantiated the charges of corporal punishment. But in an apparent change of heart, the investigator who wrote that report, Dennis Boyles, testified during the appeal process that he did not believe Mr. Storman’s actions rose to the level of corporal punishment, according to the May 11 ruling."
See my article about Workplace Defamation Lawsuits and, if you see Mr. Condon or Mr. Boyles, give them the URL or a copy?
Congratulations also to New York State Supreme Court Judge Shirley Werner Kornreich for seeing that the investigators who accused Mr. Storman of corporal punishment after he waved a rolled up piece of paper in the air as "irrational"(read the entire decision below).
May 28, 2009
Teacher Resists a Charge of Corporal Punishment
By JAVIER C. HERNANDEZ, NY TIMES
When Glenn Storman, a guidance counselor at Public School 212 in Gravesend, Brooklyn, came across an unruly student cursing at a substitute teacher in 2004, he ordered the boy to “zip it” and brandished a rolled-up piece of paper, thinking that would be the last he heard of the encounter.
But five years later, Mr. Storman, 57, is embroiled in a legal dispute over allegations that he committed corporal punishment. A 27-year veteran of the school system, Mr. Storman denies hitting the student and is seeking to erase an unsatisfactory rating that a principal gave him. The Department of Education, however, has defended the rating, arguing that Mr. Storman did indeed touch the student, who was in the fifth grade.
The case shows the difficulties teachers can face in disputing the ratings they receive each year from principals. The ratings can determine whether they are eligible for lucrative teaching opportunities outside of the normal school year. The case also sheds light on the fine lines of interpretation surrounding the question of corporal punishment: Did Mr. Storman’s paper brush against the student? If so, was that intentional, and did it rise to the level of corporal punishment?
Teachers who receive unsatisfactory ratings are allowed to appeal to a court, and this month Acting Supreme Court Justice Shirley Werner Kornreich ruled in Mr. Storman’s favor, saying she did not find evidence of corporal punishment. The unsatisfactory rating, wrote the judge, (pictured at right) “shocks the conscience, was arbitrary, capricious and an abuse of discretion.”
The Department of Education said last week that it was reviewing the decision and declined to comment further.
In October 2004, Mr. Storman entered a special education classroom at P.S. 212 after hearing a student yelling. When he stepped into the room, he saw the student on his knees on a chair cursing at the teacher. Holding the piece of paper in his hand, Mr. Storman recalled in an interview, he told the student to be quiet. The student moved forward as he reprimanded him, but Mr. Storman said he did not remember coming into contact with him.
Mr. Storman said he would not have hit the student because he had experience with special education students and did not believe force was the best way of resolving disputes.
“I don’t need to do anything more than to look at them and say, ‘Listen, you know to stop right now,’ ” he said.
Mr. Storman said he had been carrying the rolled-up paper while walking down the hallway. In previous statements to school officials he said he “may have touched” the student’s mouth with the paper, according to the court ruling. He says now that he does not believe that was so.
The boy’s father complained to the school’s principal, who asked for an inquiry, and in 2005, Mr. Storman, who is still a guidance counselor at P.S. 212, received an unsatisfactory rating in his annual review. He appealed, but the Department of Education stood by its determination that he had committed corporal punishment.
Mr. Storman appealed again in 2006, seeking $100,000 in compensation because, he said, the unsatisfactory rating prevented him from getting work as a summer school teacher and a tutor, work which he estimates had added about $25,000 a year to his income. He has also filed a lawsuit in federal court, which is still pending.
Mr. Storman was given another unsatisfactory rating in 2008 after his principal said he had inappropriately yelled at a student, according to Mr. Storman’s lawyer, John. C. Klotz. Mr. Storman is also appealing that rating.
An investigation by the Department of Education’s Office of Special Investigations ultimately substantiated the charges of corporal punishment. But in an apparent change of heart, the investigator who wrote that report, Dennis Boyles, testified during the appeal process that he did not believe Mr. Storman’s actions rose to the level of corporal punishment, according to the May 11 ruling.
Mr. Boyles testified in 2006 that the encounter constituted “inappropriate physical contact” but not corporal punishment, the court ruling said. Last year, Mr. Boyles reiterated his statement that he did not believe Mr. Storman’s actions amounted to corporal punishment, but added that Mr. Storman inappropriately touched the student with the paper, according to the ruling.
The Department of Education defines corporal punishment as “any act of physical force upon a pupil for the purpose of punishing that pupil.”
Mr. Boyles stated in his report that three students in the classroom at the time of the encounter could not recall seeing the paper hit the student’s face. But the fifth grader whom Mr. Storman had reprimanded told the investigator that Mr. Storman had brushed the paper against his lips and embarrassed him, though he added that he had not been physically injured.
The principal of P.S. 212 said at a hearing last year that she had recommended that Mr. Storman be given the unsatisfactory rating because of Mr. Boyles’s findings, which she believed substantiated the corporal punishment charges, according to the ruling.
Justice Kornreich called the Department of Education’s actions “irrational.”
“Nothing in the record supports the D.O.E.’s conclusion that Mr. Storman committed a substantiated act of corporal punishment,” she wrote, ordering that the unsatisfactory rating be annulled.
Mr. Storman said in an interview that the Department of Education had turned a “pebble” into a “mountain worth of wrongdoing.”
“This was a long hard, road,” he said, “and a costly one to me.”
Judge: Brush With Paper Roll Wasn't Corporal Punishment
LINK
Back in 2005, Glenn Storman, a guidance counselor at P.S. 212 in Gravesend, entered a special education classroom in which a fifth-grader was kneeling on his chair cursing at the teacher. What happened next is a matter of debate: Storman says he happened to be holding a rolled up piece of paper when he told the boy to "zip it." But according to the Times, the student says Storman "brushed the paper against his lips and embarrassed him." After an investigation, Storman got an unsatisfactory rating in his annual review, which is a big deal because it prohibits him from getting extra work as a summer school teacher and a tutor. But after a long legal battle, it looks like the alleged paper punisher will be vindicated: A judge ruled earlier this month that Storman's actions did not constitute corporal punishment, and said the unsatisfactory rating "shocks the conscience, was arbitrary, capricious and an abuse of discretion." The Department of Education is reviewing the decision while defending another lawsuit brought by Storman in federal court. And it's unclear if the student has yet to recover from his brush with rolled up paper.
By John Del Signore in News on May 28, 2009 11:40 AM
We now know how the NYC Board of Education works to get rid of teachers "they" dont want: write TAC memos which'prove' an allegation (see my articles on the Teacher Performance Unit and the TPU, and "Investigating the Investigators")that may or may not be true. What is striking about the case of Mr. Storman is the fact that well-known "Gotcha Squad" OSI-former-police-detective Dennis Boyles is mentioned as changing his mind about what to charge Mr. Storman:
"An investigation by the Department of Education’s Office of Special Investigations ultimately substantiated the charges of corporal punishment. But in an apparent change of heart, the investigator who wrote that report, Dennis Boyles, testified during the appeal process that he did not believe Mr. Storman’s actions rose to the level of corporal punishment, according to the May 11 ruling."
See my article about Workplace Defamation Lawsuits and, if you see Mr. Condon or Mr. Boyles, give them the URL or a copy?
Congratulations also to New York State Supreme Court Judge Shirley Werner Kornreich for seeing that the investigators who accused Mr. Storman of corporal punishment after he waved a rolled up piece of paper in the air as "irrational"(read the entire decision below).
May 28, 2009
Teacher Resists a Charge of Corporal Punishment
By JAVIER C. HERNANDEZ, NY TIMES
When Glenn Storman, a guidance counselor at Public School 212 in Gravesend, Brooklyn, came across an unruly student cursing at a substitute teacher in 2004, he ordered the boy to “zip it” and brandished a rolled-up piece of paper, thinking that would be the last he heard of the encounter.
But five years later, Mr. Storman, 57, is embroiled in a legal dispute over allegations that he committed corporal punishment. A 27-year veteran of the school system, Mr. Storman denies hitting the student and is seeking to erase an unsatisfactory rating that a principal gave him. The Department of Education, however, has defended the rating, arguing that Mr. Storman did indeed touch the student, who was in the fifth grade.
The case shows the difficulties teachers can face in disputing the ratings they receive each year from principals. The ratings can determine whether they are eligible for lucrative teaching opportunities outside of the normal school year. The case also sheds light on the fine lines of interpretation surrounding the question of corporal punishment: Did Mr. Storman’s paper brush against the student? If so, was that intentional, and did it rise to the level of corporal punishment?
Teachers who receive unsatisfactory ratings are allowed to appeal to a court, and this month Acting Supreme Court Justice Shirley Werner Kornreich ruled in Mr. Storman’s favor, saying she did not find evidence of corporal punishment. The unsatisfactory rating, wrote the judge, (pictured at right) “shocks the conscience, was arbitrary, capricious and an abuse of discretion.”
The Department of Education said last week that it was reviewing the decision and declined to comment further.
In October 2004, Mr. Storman entered a special education classroom at P.S. 212 after hearing a student yelling. When he stepped into the room, he saw the student on his knees on a chair cursing at the teacher. Holding the piece of paper in his hand, Mr. Storman recalled in an interview, he told the student to be quiet. The student moved forward as he reprimanded him, but Mr. Storman said he did not remember coming into contact with him.
Mr. Storman said he would not have hit the student because he had experience with special education students and did not believe force was the best way of resolving disputes.
“I don’t need to do anything more than to look at them and say, ‘Listen, you know to stop right now,’ ” he said.
Mr. Storman said he had been carrying the rolled-up paper while walking down the hallway. In previous statements to school officials he said he “may have touched” the student’s mouth with the paper, according to the court ruling. He says now that he does not believe that was so.
The boy’s father complained to the school’s principal, who asked for an inquiry, and in 2005, Mr. Storman, who is still a guidance counselor at P.S. 212, received an unsatisfactory rating in his annual review. He appealed, but the Department of Education stood by its determination that he had committed corporal punishment.
Mr. Storman appealed again in 2006, seeking $100,000 in compensation because, he said, the unsatisfactory rating prevented him from getting work as a summer school teacher and a tutor, work which he estimates had added about $25,000 a year to his income. He has also filed a lawsuit in federal court, which is still pending.
Mr. Storman was given another unsatisfactory rating in 2008 after his principal said he had inappropriately yelled at a student, according to Mr. Storman’s lawyer, John. C. Klotz. Mr. Storman is also appealing that rating.
An investigation by the Department of Education’s Office of Special Investigations ultimately substantiated the charges of corporal punishment. But in an apparent change of heart, the investigator who wrote that report, Dennis Boyles, testified during the appeal process that he did not believe Mr. Storman’s actions rose to the level of corporal punishment, according to the May 11 ruling.
Mr. Boyles testified in 2006 that the encounter constituted “inappropriate physical contact” but not corporal punishment, the court ruling said. Last year, Mr. Boyles reiterated his statement that he did not believe Mr. Storman’s actions amounted to corporal punishment, but added that Mr. Storman inappropriately touched the student with the paper, according to the ruling.
The Department of Education defines corporal punishment as “any act of physical force upon a pupil for the purpose of punishing that pupil.”
Mr. Boyles stated in his report that three students in the classroom at the time of the encounter could not recall seeing the paper hit the student’s face. But the fifth grader whom Mr. Storman had reprimanded told the investigator that Mr. Storman had brushed the paper against his lips and embarrassed him, though he added that he had not been physically injured.
The principal of P.S. 212 said at a hearing last year that she had recommended that Mr. Storman be given the unsatisfactory rating because of Mr. Boyles’s findings, which she believed substantiated the corporal punishment charges, according to the ruling.
Justice Kornreich called the Department of Education’s actions “irrational.”
“Nothing in the record supports the D.O.E.’s conclusion that Mr. Storman committed a substantiated act of corporal punishment,” she wrote, ordering that the unsatisfactory rating be annulled.
Mr. Storman said in an interview that the Department of Education had turned a “pebble” into a “mountain worth of wrongdoing.”
“This was a long hard, road,” he said, “and a costly one to me.”
Judge: Brush With Paper Roll Wasn't Corporal Punishment
LINK
Back in 2005, Glenn Storman, a guidance counselor at P.S. 212 in Gravesend, entered a special education classroom in which a fifth-grader was kneeling on his chair cursing at the teacher. What happened next is a matter of debate: Storman says he happened to be holding a rolled up piece of paper when he told the boy to "zip it." But according to the Times, the student says Storman "brushed the paper against his lips and embarrassed him." After an investigation, Storman got an unsatisfactory rating in his annual review, which is a big deal because it prohibits him from getting extra work as a summer school teacher and a tutor. But after a long legal battle, it looks like the alleged paper punisher will be vindicated: A judge ruled earlier this month that Storman's actions did not constitute corporal punishment, and said the unsatisfactory rating "shocks the conscience, was arbitrary, capricious and an abuse of discretion." The Department of Education is reviewing the decision while defending another lawsuit brought by Storman in federal court. And it's unclear if the student has yet to recover from his brush with rolled up paper.
By John Del Signore in News on May 28, 2009 11:40 AM
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