New York State Supreme Court Justice Carol Edmead rules that "...no City pension fund member can earn service credits from both funds [TRS and NYCERS] simultaneously, whether petitioner signed a waiver is inconsequential.
Matter of Locklear v Teachers' Retirement Sys. of the City of New York
2011 NY Slip Op 50663(U)
Decided on April 4, 2011
Supreme Court, New York County
Edmead, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Matter of Locklear v Teachers' Retirement Sys. of the City of New York
2011 NY Slip Op 50663(U)
Decided on April 4, 2011
Supreme Court, New York County
Edmead, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on April 4, 2011
Supreme Court, New York County
In the Matter of the Application of Elizabeth Locklear, Petitioner, For a Judgment pursuant to Article 78 of the Civil Practice Law and Rules
against
Teachers' Retirement System of the City of New York, Respondent.
113595/06
ATTORNEY FOR THE PLAINTIFF :
Firm: LLOYD SOMER
Address : 330 SEVENTH AVENUE, 15TH FL.
NEW YORK, NY 10001
Phone : 212 629-7001
ATTORNEY FOR THE DEFENDANT :
Firm: TEACHERS' RETIREMENT SYSTEM - Prose
Address : OF THE CITY OF NY
55 WATER STREET
NEW YORK NY 10041
Carol R. Edmead, J.
Petitioner Elizabeth Locklear ("petitioner") moves for an order pursuant to Article 78 of the CPLR, directing respondent the Teachers Retirement System ("TRS") to process her application for retirement, and provide her with a service retirement pension based on her service time and credits.
Background Facts
The New York City Police Department ("NYPD") hired petitioner on July 3, 1973 as a Police Administrative Assistant ("PAA"), and petitioner became a member of the New York City Employees' Retirement System ("NYCERS") when she enrolled on July 19, 1973. (Exhibit 1).
Fifteen years later in 1988, while working nights as a PAA, petitioner began working [*2]during the day for the New York City Department of Education ("DOE") (see Petition ¶4).[FN1] Petitioner became a substitute teacher, and then an attendance teacher in 1998 (Answer, Exh. 4), at which time, she filed her TRS application under the "Tier III/IV" benefits plan, dated November 22, 1998. (Id.). Petitioner's TRS application stated that she was a member of NYCERS under membership number 711265.
Petitioner then retired from the DOE on October 29, 2009, and from the NYPD on November 22, 2009.[FN2]
In response to her application for TRS retirement benefits, TRS advised petitioner that it was "reviewing" her application and that "the processing of [her] application may take additional time if we need to verify information from other agencies. Once we process your retirement application, we will notify you as to whether your eligible for retirement. If you are eligible, your prospective date of retirement would be 10/29/2009." (October 29, 2009 letter, Answer, Exh. 7). TRS advised that to "provide [petitioner] with retirement income as soon as possible," TRS would send her "advance payments" approximately one to two months after her effective retirement date.
During this process, on November 10, 2009, NYCERS notified TRS that the petitioners' membership with NYCERS began in 1973, that petitioner was in good standing, and that petitioner applied to retirement effective November 22, 2009.[FN3] NYCERS next advised that petitioner's TRS membership "should be considered invalid because her NYCERS membership would take precedence" and that her membership in TRS "should be withdrawn" immediately (Answer, Exhibit 8).
On the same date, November 10, 2009, TRS's Correspondence Unit notified petitioner that they were "unaware"of her "active membership" in NYCERS, and that since "dual membership in two New York City retirement systems is prohibited" and her NYCERS membership precedes her TRS membership, her TRS membership is invalid, rendering her unable to receive retirement benefits from TRS (hereinafter, the "cancellation letter") (Answer, Exhibit 9). TRS advised that she could receive her "erroneous contributions" through a refund process (id.).
Notwithstanding TRS's cancellation letter, TRS's Retirements/Withdrawals Unit then informed petitioner on November 16, 2009, that she would be receiving monthly advance payments in order to provide her with retirement income as soon as possible. However, TRS's Retirements/Withdrawals Unit then advised petitioner that her membership in TRS was going to be cancelled because her TRS members was invalid. This letter reiterated the reasons stated in the earlier November 10, 2009 cancellation letter sent from TRS's Correspondence Unit, and advised that she would receive a refund of her contributions.
However, TRS's Retirements/Withdrawals Unit sent another letter to petitioner on [*3]January 13, 2010, advising that when petitioner retired, she had "10 years, 4 months, and 0 days of total service credit" and that TRS members attain "vested rights when they have at least five years of total service." As a result, petitioner was a vested member, with certain options concerning her contributions and balances in her account. The letter advised, for example, that petitioner could lever her fund balances with TRS in order to receive a retirement allowance beginning as early as age 55; however, to do so, petitioner would have to file a service retirement application for her tier, and contact "TRS before you file your retirement application to obtain information about your eligibility; the letter also noted that she could transfer her membership to "another eligible public retirement system within New York State." The options available were reiterated in a subsequent letter sent by TRS's Member Status Unit on February 26, 2010.
Thereafter, TRS reimbursed petitioner for all contributions she made over the course of her tenure as a teacher, and this petition ensued.
Petitioner's Contentions
Petitioner argues that under caselaw, TRS must be estopped from denying her a pension, in that Petitioner was informed throughout her career that she would receive two pensions as a result of working for both entities. When petitioner took on both jobs, it was with the expectation and understanding that she would receive two pensions. Petitioner received a combined W-2 tax form from the City of New York while jointly employed by the NYPD and the DOE. In 2006, petitioner spoke to a TRS representative concerning purchasing prior service credit in the amount of 9 years, 2 months, and 25 days. During the conservation, petitioner never hid from her employers, NYCERS, or TRS, the fact that she was employed by both the NYPD and the DOE. When petitioner met with her unions in 2009 for pension counseling, she was informed that she would receive both pensions. Petitioner also completed a form in 2009 to combine her time for the two pensions.
Petitioner argues that if she was informed from the beginning that she would not be eligible for a TRS pension, then she would have sought a position in the private industry to gain a second pension. Petitioner maintained both jobs with the expectation that she would receive a pension for her y years of employment.
Petitioner argues that it is an injustice to deny her TRS pension, after working for the City of New York with the expectation and the understanding that she would receive two pensions.
Thus, petitioner urges the Court to rule that TRS should process her retirement application in order for petitioner to receive her pension.
Petitioner further argues that any bar to her joining TRS while a member of NYCERS is of no effect because she was never asked to sign a waiver pursuant to NYC Admin. Code § 13-104(2).
Respondent's Contention
TRS argues that under caselaw, New York City Pension Funds have a statutory obligation to follow NYC Administrative Code §13-184 as written, and that attempts to modify the law on equitable grounds have been rejected. According to Admin. Code § 13-184, a member of NYCERS cannot simultaneously be a member of another New York City retirement system. Thus, petitioner's membership in TRS is a nullity because she remained an active member of NYCERS while she was enrolled in TRS. Thus, TRS's determination was not arbitrary, capricious, or an abuse of discretion. [*4]
Further, in canceling petitioner's membership, TRS was exercising its governmental function, and caselaw holds that estoppel is not available against a governmental agency in the exercise of its governmental functions. And, the few instances in which the doctrine of estoppel has been applied to governmental agencies are distinguishable since such instances involved NYCERS taking a position inconsistent with the governing law.
And, petitioner cannot rely on conversations she had with pension counselers, her union, and TRS representatives because such conversations are unsubstantiated. In any event, it has been held that advice given to pension fund members regrading interpretations of controlling laws cannot bind the pension fund. Nor can TRS be bound by the letters sent out in error in November 2009, January 2010, and February 2010, which mistakenly informed petitioner that she was considered retired.
Petitioner's claim that she would incur financial harm should she be denied TRS membership is untrue, as she is receiving a pension from NYCERS, and was reimbursed for all her contributions.
Respondent contends that if a member of another City pension fund wants to join either TRS or NYCERS, he or she must submit a waiver of all present and prospective benefits provided by the city, pursuant to NYC Admin. Code § 13-304(3). Thus, a member may receive two pensions upon retirement from both funds as long as the member suspends his or her membership with the first fund while he or she is active in the second fund. However, no City pension fund member can be active in two funds and earn service credits from both funds simultaneously regardless of whether he or she signed a waiver. When petitioner joined TRS, she never suspended her then active membership with NYCERS. Thus, petitioner was never entitled to become a member of TRS, and her membership is a nullity. Since petitioner does not meet the requirements for TRS benefits, TRS's determination that her membership is invalid and its cancellation of petitioner's membership was proper.
Discussion
CPLR 7803 states that the court review of a determination of an entity, such as the Board of Education, consists of whether the determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty imposed (CPLR 7803(3) (see Windsor Place Corp. v New York State DHCR, 161 AD2d 279 [1st Dept.1990]; Mazel v DHCR, 138 AD2d 600 [1st Dept1988]; Bambeck v DHCR, 129 AD2d 51 [1st Dept 1987], lv. den. 70 NY2d 615 [1988]). An action is arbitrary and capricious, or an abuse of discretion, when the action is taken "without sound basis in reason and . . . without regard to the facts" (Matter of Pell v Board of Education, 34 NY2d 222, 231 (1974)). Rationality is the key in determining whether an action is arbitrary and capricious or an abuse of discretion (Matter of Pell v Board of Education, 34 NY2d at 231). The court's function is completed on finding that a rational basis supports the DHCR's determination (see Howard v Wyman, 28 NY2d 434 [1971]). Where the agency's interpretation is founded on a rational basis, that interpretation should be affirmed even if the court might have come to a different conclusion (see Mid-State Management Corp. v New York City Conciliation and Appeals Board, 112 AD2d 72 [1st Dept], affd 66 NY2d 1032 [1985]).
NYC Admin. Code § 13-184, which governs the parties' dispute, provides in relevant part as follows: [*5]
No other provision of law which provides wholly or partly at the expense of the city for pensions or retirement benefits for employees in the city-service, shall apply to such employees who become members or beneficiaries of the retirement system provided for by this chapter, their widows or their other dependents. . . . Notwithstanding the foregoing provisions of this section, nothing therein contained shall prevent a member of this retirement system whose membership is authorized by subdivision three of section 13-104 of this chapter, upon his or her retirement from this retirement system . . . from receiving benefits from this retirement system, as well as benefits to which they may be entitled from any other retirement system or pension fund maintained by the city.
"It is implicit in the language of the Administrative Code provision that joining one City retirement system automatically bars joining another system subsequently and remaining a member of both" (Zimet v Teachers' Retirement Bd., 41 AD2d 919, 343 NYS2d 617 [ Dept 1973]). Thus, a member of NYCERS cannot simultaneously be a member of another New York City pension fund.
Petitioner's argument that TRS should be estopped from canceling her membership is unavailing. The doctrine of estoppel only applies "against a governmental entity if failure to apply the doctrine would defeat a right legally and rightfully obtained. Estoppel cannot operate to create a right where none exists (Owens v McGuire, 121 AD2d 292, 503 N.Y.S.2d 387 [1st Dept 1986], citing Matter of McLaughlin v Berle, 71 AD2d 707, 708, 418 NYS2d 246, affd. 51 NY2d 917, 434 NYS2d 994). Further, estoppel is not available against a governmental entity in the exercise of governmental functions (Owens, supra citing Mtr. of Daleview Nursing Home v Axelrod, 62 NY2d 30, 33, 475 NYS2d 826 ). "[E]stoppel may not be invoked against a governmental agency to prevent it from discharging its statutory duties," except in "unusual factual situations" (Scheurer v New York City Employees' Retirement Sys., 223 AD2d 379, 636 NYS2d 291 [1st Dept 1996], citing Matter of E.F.S. Ventures Corp. v Foster, 71 NY2d 359, 369-370, 526 NYS2d 56). Application of the doctrine should be made "only when failure to do so would operate to defeat a right legally and rightfully obtained" ( Scheurer v New York City Employees' Retirement Sys., citing, Matter of Hauben v Goldin, 74 AD2d 804, 805, 426 NYS2d 273). "It cannot operate to create a right . . . Nor can it operate to relieve one from the mandatory operation of a statute" (Scheurer, supra). Lastly, "[t]he courts must weigh the degree of manifest injustice against the effect, in the particular case, of intervention into the public processes" (Scheurer, supra). And, in such unusual factual situations, the Court must determine that certain conditions are initially satisfied: the governmental body "must know the facts ... he must intend that his conduct shall be acted on ... the [other party] must be ignorant of the true facts; and ... he must rely on the former's conduct to his injury" (Brennan v New York City Housing Auth., 72 AD2d 410, 424 NYS2d 687 [1st Dept 1980]).
Here, it is uncontested that petitioner's TRS service credits accrued during her simultaneous membership in NYCERS, which is strictly prohibited by NYC Admin. Code § 13-184. Therefore, TRS's determination was not arbitrary, capricious or irrational.
Brennan v New York City Housing Auth., cited by petitioner, is not controlling. In Brennan, plaintiffs with years of service on the Housing Authority's police force were New York State residents at the time of their appointment. The examination taken prior to appointment did [*6]not specify a residence requirement, other examinations given at the same time for other peace officer positions specified residence in certain areas within New York State. Thereafter each purchased a home in New Jersey and Connecticut and lived there for an average of seven years. Parenthetically, several plaintiffs have resided out of State for over 15 years. "Most, if not all, moved only after receiving assurances from superior officers that their then contemplated move was lawful. Prior to moving, these officers were aided by defendant in securing mortgages on their property. After their moves, defendant rendered further aid by securing New York State driver's licenses and domiciliary pistol permits for plaintiffs." (Emphasis added).
The Court held that it was "evident that defendant Housing Authority knew the residential status of their employees, and the law applicable to them. The open publication of examinations for entry level and promotional positions without a residence requirement, coupled with the affirmative aid given by defendant prior and subsequent to the out-of-State relocations rendered foreseeable plaintiffs' reliance thereon."
It cannot be said that the alleged knowledge that TRS had about petitioner's then current enrollment in NYCERS was evident. While petitioner's TRS application provided information about her enrollment in NYCERS, the application actually calls for "prior" service. Petitioner's alleged conversations with TRS representatives of being informed that she would receive two pensions, in and of themselves, are insufficient to rise to the level of knowledge by TRS that she was simultaneously enrolled in NYCERS. Nor are such representations inconsistent with the position TRS now takes to cancel her membership; NYC Admin. Code § 13-184 bars simultaneous membership; not the receipt of two pensions. It does not appear that petitioner would be precluded from receiving two city pensions if she did not earn such service credits simultaneously. And, petitioner points to no affirmative action undertaken by TRS prior to her application for retirement, in assisting her to maintain simultaneous membership in both pensions from NYCERS and TRS.
Further, the Court notes that petitioner's allegation that she had been repeatedly informed that she would receive a TRS pension is vague and conclusory. In any event, errors in opinions made by pension fund employees cannot bind the pension fund (Zucker v New York City Emp. Retirement Sys., 27 AD2d 207, 277 NYS2d 978 [1st Dept 1967]; Distelman v Regan, 128 AD2d 935, 512 NYS2d 586 [3d Dept 1987] (stating that "[t]he doctrine of estoppel will not reach so far as to hold an individual eligible for vested retirement where by statute, he clearly does not qualify for such eligibility")).
Unlike the case cited by petitioner, Eden v Board of Trustees of State University (49 AD2d 277, 374 NYS2d 686 [2d Dept 1975]), estoppel did not operate so to compel the governmental agency from violating any Administrative or statutory laws (Eden, granting petitioners/applicants application for estoppel and to compel respondent to operate a podiatry school, where they were accepted into respondent's podiatry program, but later told that the opening of school "has been deferred"); Tamulinas v Board of Educ. of Jericho Union Free School Dist., 279 AD2d 527, 719 NYS2d 660 [2d Dept 2001] (annulling NYCER's determination that petitioner was not eligible for retroactive membership, after "she was specifically misinformed that she was not eligible to join the TRS" notwithstanding her "right to join the TRS").
The Court further notes that petitioner's claim of financial hardship is belied by the fact [*7]that she is receiving her NYCERS pension and was reimbursed her contributions into TRS. Also, her claim that she would have worked in the private sector had she known she was ineligible to receive two pensions is conclusory and unsupported by the record.
Finally, as to the failure of TRS to provide petitioner with a waiver, petitioner's failure to execute such a waiver does not entitle her to receive pension benefits to which she is not entitled or for which she is not qualified. Since no City pension fund member can earn service credits from both funds simultaneously, whether petitioner signed a waiver is inconsequential.
Conclusion
Based on the foregoing, it is hereby
ORDERED and ADJUDGED that the petition for an order pursuant to Article 78 of the CPLR, directing respondent the Teachers Retirement System to process petitioner's application for retirement, and provide her with a service retirement pension based on her service time and credits, is denied, and the petition is dismissed; and it is further
This constitutes the decision and order of the Court.
Dated: April 4, 2011______________________________________
Hon. Carol Robinson Edmead, J.S.C.
In accordance with the accompanying Memorandum Decision, it is hereby
ORDERED and ADJUDGED that the petition for an order pursuant to Article 78 of the CPLR, directing respondent the Teachers Retirement System to process petitioner's application for retirement, and provide her with a service retirement pension based on her service time and credits, is denied, and the petition is dismissed; and it is further
This constitutes the decision and order of the Court.
Footnotes
Footnote 1:According to the "Record of Prior Service" attached to petitioner's TRS enrollment form, she began working as a substitute teacher from November 1989.
Footnote 2: In connection with her retirement from the DOE, petitioner filed an retirement application with TRS, dated October 21, 2009, requesting that she be retired as of October 29, 2009.
Footnote 3: Petitioner is currently receiving retirement benefits from NYCERS.
Tuesday, April 19, 2011
Saturday, April 16, 2011
Who Are "Bad" Teachers?
The Myth of the “Crappy Teacher”
By: Crystal Sylvia
Date Published: March 11, 2011
LINK
On February 2, I attended a forum at the Fordham Institute titled “Are Bad Schools Immortal?” One of the speakers was Jeanne Allen, founder and president of the Center for Education Reform, which promotes “school choice,” a.k.a. charter schools and vouchers.
In her talk (at 56:27), Allen stated that she had recently visited an underperforming public high school in Philadelphia. To make the point about how awful this school was, she claimed that it had been open for 35 years yet “has never graduated one child who has actually gone to college.” When I challenged Allen on this outrageous claim she then said that “no child has graduated from college in 35 years.”
The purpose of both statements was to show how rotten and entrenched some public schools are. Allen’s story sounded made up to me; it would have been a monumental feat for a high school to track all of its students’ post high school lives for thirty-five years. I asked Allen for the name of the school and, not surprisingly, she said she didn’t remember.
This is not an isolated incident, as vilifying unions and teachers has become the focal point of corporate education reform. Michelle Rhee spent much of her time ”transforming” DC Public Schools (DCPS) by creating stereotypes that they were filled with incompetent teachers who were failing children. The claim was that these teachers had jobs for life, no matter how badly they performed, because the adult-serving, anti-child teachers’ union protected them.
In interviews and at countless speaking engagements, Rhee shared anecdotal stories about her experience walking into different DCPS classrooms and seeing “crappy teachers.” She recounted numerous stories of parents and students begging her to get ”good teachers” into the classrooms. The public was appalled by these stories, and this gave Rhee the upper hand in union contract negotiations, which she was using to try and secure a first-of-its-kind contract that gutted tenure and tied pay to performance. This, after all, was a public relations battle.
Attacks on welfare
Rhee and Allen’s attacks on teachers and unions are reminiscent of Ronald Reagan’s attacks on welfare, in which he promoted a stereotype of welfare recipients who were cheating the system, living high off the hog, and popping out babies just to collect more money. During Reagan’s 1976 presidential campaign he talked about a woman from Chicago who received welfare benefits:
“She has eighty names, thirty addresses, twelve Social Security cards and is collecting veteran’s benefits on four non-existing deceased husbands. And she is collecting Social Security on her cards. She’s got Medicaid, getting food stamps, and she is collecting welfare under each of her names. Her tax-free cash income is over $150,000.”
Even though this story was never corroborated, its repetition and others like it left an indelible image in the minds of people in the US and helped to shape the punitive welfare reform laws that were passed years later.
Susan Douglas, Professor of Communication Studies at the University of Michigan, offered an excellent analysis of Reagan’s strategy:
“He specialized in the exaggerated, outrageous tale that was almost always unsubstantiated, usually false, yet so sensational that it merited repeated recounting… and because his ‘examples’ of welfare queens drew on existing stereotypes of welfare cheats and resonated with news stories about welfare fraud, they did indeed gain real traction.”
This strategy of manufacturing facts or finding a think tank to support an agenda is also employed by many proponents of the corporate education model. It is used as a way to not only attack teachers’ unions, but to go after public schools in general, and push through privatization measures such as charter schools and vouchers.
Rhee has repeated outrageous anecdotes about abysmal teachers, and has also made statements that are not supported by statistics or studies in order to further her goals. In “How to Fix Our Schools: A Manifesto,” which was signed by sixteen school district chiefs, including Rhee, and was published in the Washington Post on October 10, 2010, it stated: “As President Obama has emphasized, the single most important factor determining whether students succeed in school is not the color of their skin or their ZIP code or even their parents’ income—it is the quality of their teacher.”
In this case, not only had the original statement been distorted—President Obama had said that teachers were the most important factor inside the school—the claim was not supported by any studies or data. As Diane Ravitch writes, “The single biggest correlate with low academic achievement—contrary to the film Waiting for Superman—is poverty.”
Yet because it has been reiterated over and over again, the myth of the “crappy teacher,” like the myth of the “welfare queen,” is now a common misconception.
For more on this issue, see "The 'Bad' Teacher"
The "Bad" Teacher
Teachers & Parents for Real Education Reform"
An initiative of teachers and parents in the DC Public Schools aimed at improving the quality of teaching and learning. We aim to get the administration and the union focused on what matters -- support for high quality teaching.
LINK
They are infamous. Countless newspaper stories have been written about them. DC school leaders and politicians include classroom horror stories about them in their speeches. Parents lament about them. They are assailed in e-mail posts and comment sections of articles and blog postings. They’ve even gotten attention nationwide with the recent spotlight on DCPS’ chancellor in the national media.
Lazy, incompetent, irresponsible and selfish are some words used to describe them. They are touted right now as being the primary obstacle to DCPS reform efforts. Who are they? The “bad” DCPS teachers, of course.
Anyone who has worked in DCPS or has had their children enrolled in the public schools has encountered teachers who should be removed from the classroom ASAP.
But how many “bad” teachers are there? The hype created by our school leaders, politicians and reporters would lead one to believe that most DCPS teachers are abject failures while only a small minority are really good. The few great teachers are described as mostly young and are talked about in saint-like terms. Anecdotal stories are told about how these extraordinary teachers struggle with the burdens of working in schools with a bunch of professional rejects.
However, the reality is quite different. While bad DCPS teachers exist, they are not the majority. Teachers have become an easy scapegoat for a reform effort that doesn’t understand the complexities of the problems facing DCPS. If we look closer, we see a failed system that has left the majority of teachers overwhelmed without the proper supports or the necessary training to overcome the tremendous obstacles that the children present.
Complicating matters, the Washington Teachers Union appears to rigidly defend all teachers, including the “bad” ones. This feeds into the stereotype that the Union doesn’t care about children, but is only concerned with protecting jobs. Our school leaders take advantage of this, framing the reform debate in these terms: eroding or even eliminating tenure is the only way to rid the system of the incompetents. Can’t we get rid of bad teachers without depriving all teachers of their due process rights?
Along with this massive firing campaign, huge salary increases are being proposed as the primary way to improve academic instruction. If you oppose this you are labeled an obstructionist who is interested in only preserving the status quo.
It is not that simple. Almost doubling teachers’ salaries will not magically make them better able to teach students who are disruptive nor will it make it easier to teach students who are several grade levels behind. These are the tougher issues that need to be addressed before any reform can be successful.
Posted by Crystal Sylvia at 8:46 PM
11 comments:
Anonymous said...
Great question--how many bad teachers are there?
Rhee's constant finger pointing to the bad DCPS teachers is like a broken record.
I guess she learned from George Bush. Just keep repeating it, no matter how untrue, and people will believe it.
How many American's still believe that Iraq had weapons of mass destruction and links to Al Qaeda after 9/11?
Unfortunately, it seems to be working.
November 16, 2008 4:41 PM
Anonymous said...
Yes- How many? I have taught in DCPS for 15 years and have had three children go through the system. I have encountered some "bad" teachers, but I have met many more great ones. This is all part of the negative propaganda that is everywhere- today's Parade Magazine, The News Hour and just about every issue of the Washington post. The idea that getting rid of bad teachers will fix the system sounds good to some- it is a quick fix. Unfortunately, it is not the solution. Supporting teachers in becoming great teachers, and implementing a fair evaluation process is one part of what is necessary to improve education for the District's children.
November 16, 2008 8:28 PM
The Washington Teacher said...
The tactics that Rhee and company are using are called union busting 101. One of the main tactics used to break unions is the divide and conquer tactic. Typically employers who engage in these tactics pit a group of employees against one another such as old versus young, men vs. women, etc. They get a group of employees to turn against their own union in support of the organization they work for . They even use unethical and illegal methods such as paying union members to advocate their cause. Sound familiar? They use other psychological tactics like I am your friend, don't let your union get in the way of our great relationship as I really care about your welfare.
These tactics have nothing to do with student achievment or bad or good teachers. The goal is to outsource and privatize as many jobs as they can. Unions are an impediment to their ultimate goal of privatization. Ask the United Federation of Teachers (UFT) in New York about Joel Klein and company. It is all about capitalism. If they can privatize and get more contracts - union busters can make lots more money with plenty of million dollar contracts going to their already wealthy friends and associates.
Contrary to what many in this city think, teachers unions work for not only workers but they also support what is in the educational best interests of our students such as limits on class size ratios which Rhee has failed to adhere to with class sizes of 40 and up. They also support improved working conditions which helps facilitate student learning in the classroom. Unions also provide professional development and teacher centers which help to support teachers in the classroom. The reform model (peer assistance and review) on this blog which is implemented in counties such as P.G. and Mongomery has been spearheaded by teacher unions.
Please check out my blog on union busting 101 and other educational issues @ http://www.thewashingtonteacher.blogspot.com/
November 16, 2008 10:36 PM
gt said...
Excellent points made. No matter how good or saint-like you are, the current status of our challenge chews up and spits out many quality individuals who cannot deal with the variety of obstacles we face. Bring in all the new folks you want. Unless we also focus on problems such as school discipline and rampant absenteeism (to name just a few), our district will continue to tread water.
November 16, 2008 11:11 PM
The Educator said...
I absolutely love your post! You should share with the WashPo. I am in a school with a mix of veteran and (mostly)new teachers. We have exactly 2 "bad" teachers. Everyone knows it but only the administration (principal) can do anything about and he has chosen not to do ANYTHING! So whose fault is it that the "bad" teachers are still teaching our children... surely not the teachers (good or bad). Our principals have to do their jobs with a take no prisoners attitude because our children are at stake!
November 17, 2008 8:17 AM
Ame in DC said...
We have one in my building -- out of about 30.
November 17, 2008 6:37 PM
Anonymous said...
I think there are also reasons that schools keep under-performing teachers that are unfortunately necessary. Huge teacher shortages force principals to hire who they can find, not necessarily who they want, and the angry anti-teacher rhetoric of late has only mad this worse. Many schools are currently so desperate to fill vacancies they'll take what they can get.
November 17, 2008 6:59 PM
Anonymous said...
I am concerned about the effect of the constant teacher bashing on the morale of teachers and the overall school climate. Add to this the constant drumbeat of directives from on high to teach to the test. And finally overstretched principals having to look over their shoulders for fear of a Friday afternoon meeting with the chancellor that could mean getting the boot.
November 17, 2008 10:01 PM
Anonymous said...
At one school the PTA I was a board member of documented 14 teachers who we requested the principal fire.
I believe that about 60% of DCPS teachers are Bad teachers. Certainly the majority of DCPS teachers must be fired, that is inarguable, but I don't think it's more than 60%.
In some schools I know they fired almost all the teachers, and that's fine for Wards 7 and 8 where the teachers stopped caring, but over all, in the entire DCPS, I don't think more than 60% should lose their jobs.
December 7, 2008 11:42 PM
meaningful change said...
Previous poster- you should not throw around statistics that are not evidence based. Where did you get 60% from?
There are incompetent teachers in DCPS for sure but no way near 60%. I think some people just repeat the same lines over and over again until people start believing and repeating.
December 9, 2008 10:24 AM
Anonymous said...
If you're all such great teachers, then what are you afraid of? If the union were gone and you were allowed major pay raises for strong performance (not necessarily entirely through standardized testing, although other countries use it and it delivers results juuuust fine), wouldn't you want that? I know I would. That's why I quit being a teacher. No incentives. If you're dissing on Rhee, why don't you look at the turnaround she's brought about.
Here are some more stats for you:
"In 1989 U.S. dollars, only Switzerland, with $4,845 per pupil, spent more. Spain spent only $938 per student, compared to our $4,083. France spent $2,483. Japan and Germany--major economic competitors known for their excellent education--spent only $2,243 and $2,487 per pupil, respectively."
"In math, the only nation America outscored was Jordan, and in science only Jordan and Ireland. We were outscored by two countries full of poverty--including one with a large number of Palestinian refugees! In the math test, Americans averaged 55 percent correct, as opposed to 73 percent for Koreans and Taiwanese, 71 percent for Swiss and 70 percent for students of the former Soviet Union. Our scores were 2 points below Slovenia's and equal to Spain's."
Trends in Academic Progress: The Nation's Report Card
Digest of Education Statistics 1992.
February 28, 2009 11:44 PM
By: Crystal Sylvia
LINK
On February 2, I attended a forum at the Fordham Institute titled “Are Bad Schools Immortal?” One of the speakers was Jeanne Allen, founder and president of the Center for Education Reform, which promotes “school choice,” a.k.a. charter schools and vouchers.
In her talk (at 56:27), Allen stated that she had recently visited an underperforming public high school in Philadelphia. To make the point about how awful this school was, she claimed that it had been open for 35 years yet “has never graduated one child who has actually gone to college.” When I challenged Allen on this outrageous claim she then said that “no child has graduated from college in 35 years.”
The purpose of both statements was to show how rotten and entrenched some public schools are. Allen’s story sounded made up to me; it would have been a monumental feat for a high school to track all of its students’ post high school lives for thirty-five years. I asked Allen for the name of the school and, not surprisingly, she said she didn’t remember.
This is not an isolated incident, as vilifying unions and teachers has become the focal point of corporate education reform. Michelle Rhee spent much of her time ”transforming” DC Public Schools (DCPS) by creating stereotypes that they were filled with incompetent teachers who were failing children. The claim was that these teachers had jobs for life, no matter how badly they performed, because the adult-serving, anti-child teachers’ union protected them.
In interviews and at countless speaking engagements, Rhee shared anecdotal stories about her experience walking into different DCPS classrooms and seeing “crappy teachers.” She recounted numerous stories of parents and students begging her to get ”good teachers” into the classrooms. The public was appalled by these stories, and this gave Rhee the upper hand in union contract negotiations, which she was using to try and secure a first-of-its-kind contract that gutted tenure and tied pay to performance. This, after all, was a public relations battle.
Attacks on welfare
Rhee and Allen’s attacks on teachers and unions are reminiscent of Ronald Reagan’s attacks on welfare, in which he promoted a stereotype of welfare recipients who were cheating the system, living high off the hog, and popping out babies just to collect more money. During Reagan’s 1976 presidential campaign he talked about a woman from Chicago who received welfare benefits:
“She has eighty names, thirty addresses, twelve Social Security cards and is collecting veteran’s benefits on four non-existing deceased husbands. And she is collecting Social Security on her cards. She’s got Medicaid, getting food stamps, and she is collecting welfare under each of her names. Her tax-free cash income is over $150,000.”
Even though this story was never corroborated, its repetition and others like it left an indelible image in the minds of people in the US and helped to shape the punitive welfare reform laws that were passed years later.
Susan Douglas, Professor of Communication Studies at the University of Michigan, offered an excellent analysis of Reagan’s strategy:
“He specialized in the exaggerated, outrageous tale that was almost always unsubstantiated, usually false, yet so sensational that it merited repeated recounting… and because his ‘examples’ of welfare queens drew on existing stereotypes of welfare cheats and resonated with news stories about welfare fraud, they did indeed gain real traction.”
This strategy of manufacturing facts or finding a think tank to support an agenda is also employed by many proponents of the corporate education model. It is used as a way to not only attack teachers’ unions, but to go after public schools in general, and push through privatization measures such as charter schools and vouchers.
Rhee has repeated outrageous anecdotes about abysmal teachers, and has also made statements that are not supported by statistics or studies in order to further her goals. In “How to Fix Our Schools: A Manifesto,” which was signed by sixteen school district chiefs, including Rhee, and was published in the Washington Post on October 10, 2010, it stated: “As President Obama has emphasized, the single most important factor determining whether students succeed in school is not the color of their skin or their ZIP code or even their parents’ income—it is the quality of their teacher.”
In this case, not only had the original statement been distorted—President Obama had said that teachers were the most important factor inside the school—the claim was not supported by any studies or data. As Diane Ravitch writes, “The single biggest correlate with low academic achievement—contrary to the film Waiting for Superman—is poverty.”
Yet because it has been reiterated over and over again, the myth of the “crappy teacher,” like the myth of the “welfare queen,” is now a common misconception.
For more on this issue, see "The 'Bad' Teacher"
The "Bad" Teacher
Teachers & Parents for Real Education Reform"
An initiative of teachers and parents in the DC Public Schools aimed at improving the quality of teaching and learning. We aim to get the administration and the union focused on what matters -- support for high quality teaching.
LINK
They are infamous. Countless newspaper stories have been written about them. DC school leaders and politicians include classroom horror stories about them in their speeches. Parents lament about them. They are assailed in e-mail posts and comment sections of articles and blog postings. They’ve even gotten attention nationwide with the recent spotlight on DCPS’ chancellor in the national media.
Lazy, incompetent, irresponsible and selfish are some words used to describe them. They are touted right now as being the primary obstacle to DCPS reform efforts. Who are they? The “bad” DCPS teachers, of course.
Anyone who has worked in DCPS or has had their children enrolled in the public schools has encountered teachers who should be removed from the classroom ASAP.
But how many “bad” teachers are there? The hype created by our school leaders, politicians and reporters would lead one to believe that most DCPS teachers are abject failures while only a small minority are really good. The few great teachers are described as mostly young and are talked about in saint-like terms. Anecdotal stories are told about how these extraordinary teachers struggle with the burdens of working in schools with a bunch of professional rejects.
However, the reality is quite different. While bad DCPS teachers exist, they are not the majority. Teachers have become an easy scapegoat for a reform effort that doesn’t understand the complexities of the problems facing DCPS. If we look closer, we see a failed system that has left the majority of teachers overwhelmed without the proper supports or the necessary training to overcome the tremendous obstacles that the children present.
Complicating matters, the Washington Teachers Union appears to rigidly defend all teachers, including the “bad” ones. This feeds into the stereotype that the Union doesn’t care about children, but is only concerned with protecting jobs. Our school leaders take advantage of this, framing the reform debate in these terms: eroding or even eliminating tenure is the only way to rid the system of the incompetents. Can’t we get rid of bad teachers without depriving all teachers of their due process rights?
Along with this massive firing campaign, huge salary increases are being proposed as the primary way to improve academic instruction. If you oppose this you are labeled an obstructionist who is interested in only preserving the status quo.
It is not that simple. Almost doubling teachers’ salaries will not magically make them better able to teach students who are disruptive nor will it make it easier to teach students who are several grade levels behind. These are the tougher issues that need to be addressed before any reform can be successful.
Posted by Crystal Sylvia at 8:46 PM
11 comments:
Anonymous said...
Great question--how many bad teachers are there?
Rhee's constant finger pointing to the bad DCPS teachers is like a broken record.
I guess she learned from George Bush. Just keep repeating it, no matter how untrue, and people will believe it.
How many American's still believe that Iraq had weapons of mass destruction and links to Al Qaeda after 9/11?
Unfortunately, it seems to be working.
November 16, 2008 4:41 PM
Anonymous said...
Yes- How many? I have taught in DCPS for 15 years and have had three children go through the system. I have encountered some "bad" teachers, but I have met many more great ones. This is all part of the negative propaganda that is everywhere- today's Parade Magazine, The News Hour and just about every issue of the Washington post. The idea that getting rid of bad teachers will fix the system sounds good to some- it is a quick fix. Unfortunately, it is not the solution. Supporting teachers in becoming great teachers, and implementing a fair evaluation process is one part of what is necessary to improve education for the District's children.
November 16, 2008 8:28 PM
The Washington Teacher said...
The tactics that Rhee and company are using are called union busting 101. One of the main tactics used to break unions is the divide and conquer tactic. Typically employers who engage in these tactics pit a group of employees against one another such as old versus young, men vs. women, etc. They get a group of employees to turn against their own union in support of the organization they work for . They even use unethical and illegal methods such as paying union members to advocate their cause. Sound familiar? They use other psychological tactics like I am your friend, don't let your union get in the way of our great relationship as I really care about your welfare.
These tactics have nothing to do with student achievment or bad or good teachers. The goal is to outsource and privatize as many jobs as they can. Unions are an impediment to their ultimate goal of privatization. Ask the United Federation of Teachers (UFT) in New York about Joel Klein and company. It is all about capitalism. If they can privatize and get more contracts - union busters can make lots more money with plenty of million dollar contracts going to their already wealthy friends and associates.
Contrary to what many in this city think, teachers unions work for not only workers but they also support what is in the educational best interests of our students such as limits on class size ratios which Rhee has failed to adhere to with class sizes of 40 and up. They also support improved working conditions which helps facilitate student learning in the classroom. Unions also provide professional development and teacher centers which help to support teachers in the classroom. The reform model (peer assistance and review) on this blog which is implemented in counties such as P.G. and Mongomery has been spearheaded by teacher unions.
Please check out my blog on union busting 101 and other educational issues @ http://www.thewashingtonteacher.blogspot.com/
November 16, 2008 10:36 PM
gt said...
Excellent points made. No matter how good or saint-like you are, the current status of our challenge chews up and spits out many quality individuals who cannot deal with the variety of obstacles we face. Bring in all the new folks you want. Unless we also focus on problems such as school discipline and rampant absenteeism (to name just a few), our district will continue to tread water.
November 16, 2008 11:11 PM
The Educator said...
I absolutely love your post! You should share with the WashPo. I am in a school with a mix of veteran and (mostly)new teachers. We have exactly 2 "bad" teachers. Everyone knows it but only the administration (principal) can do anything about and he has chosen not to do ANYTHING! So whose fault is it that the "bad" teachers are still teaching our children... surely not the teachers (good or bad). Our principals have to do their jobs with a take no prisoners attitude because our children are at stake!
November 17, 2008 8:17 AM
Ame in DC said...
We have one in my building -- out of about 30.
November 17, 2008 6:37 PM
Anonymous said...
I think there are also reasons that schools keep under-performing teachers that are unfortunately necessary. Huge teacher shortages force principals to hire who they can find, not necessarily who they want, and the angry anti-teacher rhetoric of late has only mad this worse. Many schools are currently so desperate to fill vacancies they'll take what they can get.
November 17, 2008 6:59 PM
Anonymous said...
I am concerned about the effect of the constant teacher bashing on the morale of teachers and the overall school climate. Add to this the constant drumbeat of directives from on high to teach to the test. And finally overstretched principals having to look over their shoulders for fear of a Friday afternoon meeting with the chancellor that could mean getting the boot.
November 17, 2008 10:01 PM
Anonymous said...
At one school the PTA I was a board member of documented 14 teachers who we requested the principal fire.
I believe that about 60% of DCPS teachers are Bad teachers. Certainly the majority of DCPS teachers must be fired, that is inarguable, but I don't think it's more than 60%.
In some schools I know they fired almost all the teachers, and that's fine for Wards 7 and 8 where the teachers stopped caring, but over all, in the entire DCPS, I don't think more than 60% should lose their jobs.
December 7, 2008 11:42 PM
meaningful change said...
Previous poster- you should not throw around statistics that are not evidence based. Where did you get 60% from?
There are incompetent teachers in DCPS for sure but no way near 60%. I think some people just repeat the same lines over and over again until people start believing and repeating.
December 9, 2008 10:24 AM
Anonymous said...
If you're all such great teachers, then what are you afraid of? If the union were gone and you were allowed major pay raises for strong performance (not necessarily entirely through standardized testing, although other countries use it and it delivers results juuuust fine), wouldn't you want that? I know I would. That's why I quit being a teacher. No incentives. If you're dissing on Rhee, why don't you look at the turnaround she's brought about.
Here are some more stats for you:
"In 1989 U.S. dollars, only Switzerland, with $4,845 per pupil, spent more. Spain spent only $938 per student, compared to our $4,083. France spent $2,483. Japan and Germany--major economic competitors known for their excellent education--spent only $2,243 and $2,487 per pupil, respectively."
"In math, the only nation America outscored was Jordan, and in science only Jordan and Ireland. We were outscored by two countries full of poverty--including one with a large number of Palestinian refugees! In the math test, Americans averaged 55 percent correct, as opposed to 73 percent for Koreans and Taiwanese, 71 percent for Swiss and 70 percent for students of the former Soviet Union. Our scores were 2 points below Slovenia's and equal to Spain's."
Trends in Academic Progress: The Nation's Report Card
Digest of Education Statistics 1992.
February 28, 2009 11:44 PM
Friday, April 8, 2011
The Domino Effect: David Steiner, NYS Commissioner of Education, Announces His Resignation The Same Day As Cathie Black Says She's Gone
April 8, 2011
Ah, the domino effect! Howard [Wolfson] are you running for cover?
What I see is this: the total failure of the Bloomberg political machine. Mike, why not get out while you can? I actually believe it's too late for your saving any part of your agenda, and anyone who aligns with you will be embarrassed for doing so.
By the way, Madoff is talking.......
Betsy Combier
David Steiner to resign as education chief
Cara Matthews
Gannett Albany Bureau
LINK
ALBANY — David Steiner, the state's education commissioner, announced his resignation Thursday after less than two years in the job.
The news came the same day that New York City Schools Chancellor Cathleen Black abruptly resigned, and as the state Board of Regents is working in earnest on a policy to reform the way teachers and principals are evaluated.
Steiner, considered a national leader in education reform, said in a statement Thursday that he intends to leave the $250,000-a-year post later this year. He has informed the Board of Regents, which he reports to, and he pledged to work with Regents to "plan for a seamless transition."
"As the end of the school year and the legislative session approaches, I am immensely proud of the reforms we've achieved — guiding New York's successful Race to the Top application, designing a new teacher and school leader evaluation system, reforming teacher preparation and certification and implementing a tough re-setting of our 3-8 tests," he said in a statement.
The Board of Regents appointed Steiner in the summer of 2009 as the state's 13th education commissioner. He started Oct. 1 that year.
Steiner drew fire last November when he approved a waiver that allowed Black to become chancellor of New York City schools, even though the publishing executive didn't have any experience or credentials as an educator. Black has had a rocky tenure, culminating in an approval rating of just 17 percent in a Quinnipiac University poll released Thursday.
Steiner told the Associated Press that the resignations were unrelated and it was just a coincidence they were announced on the same day.
Regents Chancellor Merry Tisch said Thursday that the Regents would "begin an orderly transition" in the coming weeks and continue pursuing its reform agenda.
The Board of Regents has until July 1 to set up the new evaluation system for math and English teachers in grades 4 to 8 and their respective principals for the 2011-12 school year. The rest of the teachers and principals will start participating in the new evaluations in 2012-13.
Gov. Andrew Cuomo wants lawmakers to speed up the process so all teachers and principals will fall under the new system in 2011-12, but it is unclear whether the legislation will move forward.
CLMATTHE@Gannett.com
Ah, the domino effect! Howard [Wolfson] are you running for cover?
What I see is this: the total failure of the Bloomberg political machine. Mike, why not get out while you can? I actually believe it's too late for your saving any part of your agenda, and anyone who aligns with you will be embarrassed for doing so.
By the way, Madoff is talking.......
Betsy Combier
David Steiner to resign as education chief
Cara Matthews
Gannett Albany Bureau
LINK
ALBANY — David Steiner, the state's education commissioner, announced his resignation Thursday after less than two years in the job.
The news came the same day that New York City Schools Chancellor Cathleen Black abruptly resigned, and as the state Board of Regents is working in earnest on a policy to reform the way teachers and principals are evaluated.
Steiner, considered a national leader in education reform, said in a statement Thursday that he intends to leave the $250,000-a-year post later this year. He has informed the Board of Regents, which he reports to, and he pledged to work with Regents to "plan for a seamless transition."
"As the end of the school year and the legislative session approaches, I am immensely proud of the reforms we've achieved — guiding New York's successful Race to the Top application, designing a new teacher and school leader evaluation system, reforming teacher preparation and certification and implementing a tough re-setting of our 3-8 tests," he said in a statement.
The Board of Regents appointed Steiner in the summer of 2009 as the state's 13th education commissioner. He started Oct. 1 that year.
Steiner drew fire last November when he approved a waiver that allowed Black to become chancellor of New York City schools, even though the publishing executive didn't have any experience or credentials as an educator. Black has had a rocky tenure, culminating in an approval rating of just 17 percent in a Quinnipiac University poll released Thursday.
Steiner told the Associated Press that the resignations were unrelated and it was just a coincidence they were announced on the same day.
Regents Chancellor Merry Tisch said Thursday that the Regents would "begin an orderly transition" in the coming weeks and continue pursuing its reform agenda.
The Board of Regents has until July 1 to set up the new evaluation system for math and English teachers in grades 4 to 8 and their respective principals for the 2011-12 school year. The rest of the teachers and principals will start participating in the new evaluations in 2012-13.
Gov. Andrew Cuomo wants lawmakers to speed up the process so all teachers and principals will fall under the new system in 2011-12, but it is unclear whether the legislation will move forward.
CLMATTHE@Gannett.com
Thursday, April 7, 2011
Cathie Black Leaves, A Major Embarrassment To Mike Bloomberg
By SALLY GOLDENBERG, DAVID SEIFMAN and YOAV GONEN, NY POST
April 7, 2011
LINK
Mayor Bloomberg’s embattled, hand-picked schools chancellor, Cathie Black, is out after just 96 days on the job.
One source said Bloomberg made the decision himself and told Black of it during a meeting this morning.
"He initiated the conversation," the source said.
Having no choice, Black agreed to go, the source added.
At a news conference at City Hall this morning, Bloomberg sugar-coated the decision, saying the two had "mutually agreed" it was time for her to go.
"I take full responsibility for the fact that this did not work out," he said.
Bloomberg said, "The story had really become about her and away from the kids and that's not right."
Despite that, Bloomberg also said he "thinks [Black] has done an admirable job."
"I have nothing but respect ... for the work she has done," he added.
Black will be replaced by Deputy Mayor Dennis Walcott, who has served as a cross between a chaperone and mentor to Black since the out-of-left-field announcement of her appointment was made Nov. 11.
The head of the teachers’ union sidestepped questions about his opinions of Black’s departure.
Asked what grade he’d give Black, United Federation of Teachers President Michael Mulgrew said, “She wasn’t in the class for a semester so it wouldn’t be correct for me to give her a grade.“
The former publishing executive’s brief tenure had been wracked by public gaffes, abysmal poll numbers and a steadily departing crew of top level cabinet officials.
Black, 66, who officially took over for former Schools Chancellor Joel Klein in January, has been plagued by low approval ratings over the past few months.
Earlier this week, a NY1/Marist College poll showed that just 17 percent of New Yorkers think she was doing a good job, while 61 percent would give her a failing grade.
Black's approval rating in a Quinnipiac University poll three weeks ago was a similarly abysmal 17 percent, with 49 percent wishing she'd leave.
Apparently, the sentiment was echoed by some inside the administration.
"This is very good news," said one mayoral insider. "The fallout from the Black appointment just got so untenable."
Black's brief tenure was marked by controversy from the get-go.
In January, Black, whose lack of education and government work had been controversial since her appointment, joked about using "birth control" to stem school overcrowding during a meeting with concerned Manhattan parents.
She also likened her hard choices to those of a Holocaust victim from the novel and movie "Sophie's Choice."
Black later personally apologized, but some people say she never quite rebounded from the fallout. Mayor Bloomberg defended her on that occasion.
"I think the comment she made to me and my neighborhood was the writing on the wall," said Community Board 1 chair Julie Menin.
At a meeting with students and parents in Brooklyn, Black again put her foot in her mouth.
As a chorus of boos greeted her at Brooklyn Tech HS this past February, Black mocked the crowd.
"I cannot speak if you are shouting," Black had said before mocking the crowd's response by repeating, "Ohhhhh."
Since Black took the helm of the nation's largest school system, four of the eight top deputies in place to support her have jumped ship -- include two just this week.
City Council Education Chairman Robert Jackson called Black’s sudden departure "a surprise," but he said it was "best overall for the city of New York and the children of New York City."
"I have high regards for Dennis Walcott," said Jackson. "I’ve known Dennis for over 20 years. "I know Dennis went to the public school system. I know as the deputy mayor he’s not going to lose his ground."
Black's replacement has plenty of education experience.
Walcott has worked as Deputy Mayor for Education and Community Development and was a former kindergarten teacher in Queens.
After joining the Bloomberg administration in 2002, he was the President and CEO of the New York Urban League. Walcott graduated from the University of Bridgeport in Connecticut with a Bachelor's degree and a Master of Education in 1973 and 1974, respectively, and in 1980, received his Master of Social Work from Fordham University.
Walcott, who served on the now-defunct Board of Education, said he is happy to have the job.
"I am a believer in reform and I am a believer in Mayor Bloomberg," he said.
Black this afternoon said she was happy and relieved, adding that she had gone out and bought a new pair of running shoes.
She also said she was happy to have served and praised Walcott.
Amber Sutherland contributed to this story
Goodbye, Cathie Black
Posted by Amy Davidson, April 7, 2011
LINK
There are many moments New Yorkers might focus on as they contemplate why Cathie Black, our improbable schools chancellor, is, as the Times reported, out already, just a few months after Mayor Bloomberg confused everyone by picking her. You don’t get a seventeen per cent approval rating without real effort.
But here’s my favorite, perhaps because it has to do with the particular zone my child is enrolled in, and also says something about the way the city has responded to the legacy of September 11th. As Black heard at a meeting with downtown parents (video above, via the Tribeca Tribune), the area around Ground Zero is, in many ways, doing inspiringly well: through some combination of resilience, urban stubborness, and construction-tax incentives, the population has doubled downtown. This means that the same schools that were evacuated on September 11th are now badly overcrowded. My child’s school, with many more kindergarteners than fifth graders, resembles one of those developing countries in which half the population is under the age of eighteen. Black’s answer?
Can we just have some birth control for once? It would really help us all out.
After some nervous laughter, a parent repeats that he’s talking about children who are already born. Black says, in effect, that things are tough all around—even on the Upper East side.
It is—and I don’t mean this in any flip way—it is many Sophie’s Choices.
Holocaust metaphors are rarely a good idea. The head of a public-school system using one that involves picking one child for the Nazis to send to the gas chambers—which was Sophie’s choice in the novel—is really not a good idea. I’ll be curious to see what Black does next.
Retrospective: The Cathie Black Gaffe-A-Thon
BY CELESTE KATZ, NY Daily News
From verbal gaffes to losing her temper, Cathie Black added fuel to her critics' fire soon after Mayor Bloomberg appointed her chancellor, reports our Education Team's Meredith Kolodner:
Public outrage accompanied her November appointment to replace outgoing chancellor Joel Klein, taking the form of public protests and a lawsuit to deny her the state waiver she needed to become chancellor.
But barely two weeks after her handlers released her from a month-long seclusion from public questions and interviews, she stepped into controversy.
At a meeting about massive overcrowding in lower Manhattan schools, the new chancellor, whose own children never attended public school, asked parents, "Could we just have some birth control for a while?...It would really help us."
There was more to come.
Hundreds of parents booed her at the next school policy meeting, waving condoms. Black managed to keep her cool through the meeting, but revealed her lack of familiarity with school matters by referring to long-time panel member Patrick Sullivan as "Mr. Cunningham."
At the next public meeting, where she was booed again, she let her annoyance get the best of her. She responded to the hecklers by mocking them, screwing up her face and mimicking them, "Oooooh." The clip played continuously on local television stations.
Her public appearances began to dwindle, and she was flanked wherever she did go by deputy mayor Dennis Walcott, who stepped into taking the substantial questions.
She further alienated principals, who complained she was not as responsive to emails as Klein had been, when she refused to overturn a decision to take half the money principals had saved for next year in anticipation of budget cuts.
By Monday, Cathie Black clocked in with an approval rating of 17%.
Some saw the writing on the wall early. The first deputy chancellor to jump ship - Photeine Anagnostopoulos, deputy chancellor for finance and technology - left the agency the day after Black was appointed.
Eric Nadelstern, who was essentially number two in command under Klein, resigned in January. He was followed by well-regarded veteran Santiago Taveras and wunderkind John White this week.
CATHIE BLACK TIMELINE
Nov. 9, 2010 - Schools Chancellor Joel Klein abruptly steps down, and city officials announce magazine exec Cathie Black as his surprisingly replacement. Since she lacks the proper education background, she'll require a waiver from the state Education Department.
Nov. 23, 2010 - An advisory board created by State Education Commissioner David Steiner gave a thumb's down to Black, unless a chief academic officer is appointed.
Nov. 26, 2010 - Mayor Bloomberg caves and appoints Deputy Chancellor Shael Polakow-Suransky as chief academic officer.
Nov. 29, 2010 - Steiner grants Black the necessary waiver. "I'm ready to roll up my sleeves and get going," she says.
Dec. 8, 2010 - A group of public school parents sued the state for granting Black the waiver, saying Steiner "acted unlawfully." An Albany judge affirmed Steiner's right to to make the call several weeks later.
Jan. 2, 2011 - On her first official day on the job, Black tours a school in each borough. "For me, this is a dream. It's a dream job, a dream opportunity, a chance to make a difference," she said.
Jan. 13, 2011 - Black's joke at a parent meeting about overcrowding bombed. "Could we just have some birth control for a while?" she asked.
Jan. 19, 2011 - Parents at an education policy meeting waved condoms at her in protest.
Feb. 1, 2011 - At another contentious meeting, Black lost her temper and replied "oooh" at parents who booed her.
April 4, 2011 - Deputy chancellor Santiago Taveras steps down, the third to leave during Black's brief tenure. An an NY1/Marist poll shows her approval rating is a dismal 17 %.
April 6, 2011 - Deputy chancellor John White announces he will also leave for a job heading New Orleans public schools.
April 7, 2011 - Black steps down.
State Education Commissioner Steiner next out after Cathie Black
BRENDAN SCOTT and YOAV GONEN, NY POST
Posted: 2:25 PM, April 7, 2011
Steiner, who drew fire for granting a critical waiver to let Cathie Black become city schools chief, will soon be the next education big to hit the road, state education sources told The Post this afternoon.
State Regents Chancellor Merryl Tisch confirmed during a radio interview this morning rumors that the former Hunter College dean was mulling an exit less than two years after taking the state's top education job.
Tisch insisted Steiner had not yet made a decision, but sources later told The Post that Steiner's departure was imminent.
"I have heard a lot about that," Tisch told the Syracuse-based public radio station, WCNY. "I believe that the commissioner is exploring other options, but no decision has been made."
The spokesman for the State Education Department said the agency had no immediate comment.
The Regents – in one of their first acts under Tisch's leadership - voted with great fanfare in July 2009 to elect Steiner commissioner, where he oversees the state's some 700 school districts and 240,000 certified educators.
The commissioner drew criticism in November for granting a waiver that allowed Cathie Black to serve as chancellor, even though she lacked formal education experience. A state court later upheld the waiver.
Sunday, April 3, 2011
New York Court of Appeals Affirms NYPD Discrimination Award in Albunio v City of New York
Decided on March 31, 2011
No. 43
Captain Lori Albunio, et al., Respondents, The
v
City of New York, et al., Appellants. —-
Robert Sorrenti, Plaintiff,
v
The City of New York, et al., Appellants.
Julie Steiner, for appellants.
Mary D. Dorman, for respondents.
SMITH, J.:
A jury found that two members of the New York City Police Department, Captain Lori Albunio and Lieutenant Thomas Connors, were subjected to retaliation because they opposed discrimination against a third member of the department, Sergeant Robert Sorrenti, on the basis of Sorrenti's perceived sexual orientation. We hold that there is sufficient evidence in the record to support the verdict. [*2]
I
Albunio was commanding officer of the Youth Services section of the police department. Connors was operations coordinator of the section, and reported to Albunio. Sorrenti, then serving in another command, applied in 2001 to be transferred into the Youth Services section. Albunio interviewed him, and was favorably impressed; when a position opened in April 2002 in a Youth Services program known as DARE, in which police officers educate New York City school children about the dangers of drugs, she requested that Sorrenti be chosen to fill the vacancy. The request was submitted to Inspector James Hall, who had recently become commanding officer of Community Affairs, and Albunio's immediate supervisor. Hall decided to interview Sorrenti himself, and did so, with Albunio present, on May 13, 2002.
From this point on, the facts were sharply disputed at trial, but the jury could have found the following: At the May 13 interview, Hall asked Sorrenti whether he was married, and whether he had children. He also questioned Sorrenti aggressively about Sorrenti's relationship with another male police officer to whom Sorrenti had loaned money, saying loudly, among other things: "You were more than just friends." Sorrenti became visibly uncomfortable with the questions. After the interview, Hall told Albunio "that there was something not right about that guy." Hall later chose another person for the open position with DARE, telling Albunio that he "found out some fucked up shit about Sorrenti and . . . wouldn't want him around children." Albunio's interpretation of this statement was: "[T]he guy must think the guy is gay and for some reason doesn't want him around kids."
In June or July of 2002, Hall called Connors into Hall's office and began to speak to him about Sorrenti, angrily and with the use of many expletives. He talked about Sorrenti's loan to his fellow officer, saying "There must be more between this cop and Sergeant Sorrenti," and added that he "wouldn't be able to sleep at night knowing that Sorrenti is going to be working around kids." Connors responded that he thought Sorrenti "would be more than qualified to work around kids" and showed Hall a favorable evaluation Sorrenti had received. Connors inferred from the conversation that Hall "believed that Sergeant Sorrenti was a child molester and homosexual."
In the fall of 2002, Albunio began to hear rumors that she would be removed from the command of the Youth Services section. She asked for a meeting to discuss this subject with Hall's superior, Deputy Commissioner Frederick Patrick. The meeting took place on October 31, and Hall was present at it with Patrick.
At the October 31 meeting, Patrick confirmed that he and Hall "were contemplating" replacing Albunio, to which she responded: "[W]hy am I losing my command?" Hall interjected to say that Albunio "utilized poor judgment when requesting personnel," citing [*3]Sorrenti as the primary example. Albunio told Hall that "Sorrenti was the better candidate," adding: "If I had to do it all again, I would have recommended Sorrenti again." Albunio was told that it would be in her best interest to find another assignment, which she soon did — an assignment much less desirable than the one she left.
Albunio told Connors that she had been directed to go elsewhere. Connors, on November 8, 2002, filed a complaint with the police department's Office of Equal Employment Opportunity alleging that Hall had discriminated against Sorrenti because of Sorrenti's perceived sexual orientation. Soon after that, Connors was contacted about the complaint by someone who worked directly for Hall, leading Connors to believe that Hall knew of Connors's accusation. Connors put in for a transfer from the Youth Services section, believing that with Albunio's forced departure "[t]he writing was on the wall for me." During his remaining time with Youth Services, he suffered a number of adverse employment actions: geographical assignments and hours of work were changed in ways he did not like; and he was shunned and excluded from meetings by Hall and Hall's other subordinates. When his transfer finally came through, he got a less desirable job than he had expected.
Albunio and Connors brought this action against the City, Hall and Patrick, alleging violations of the anti-retaliation section of the New York City Human Rights Law, New York City Administrative Code § 8-107 (7). (Sorrenti also brought a discrimination lawsuit, which was tried with Albunio's and Connors's case, but which is not involved in this appeal.) The jury found that the City and Hall had retaliated against both plaintiffs, and awarded damages. A judgment was entered on the verdict, which the Appellate Division affirmed, with one Justice dissenting as to Albunio. The Appellate Division granted leave to appeal to this Court, and we now affirm.
II
New York City Administrative Code § 8-107 (7) says, in relevant part:
"It shall be an unlawful discriminatory practice . . . to retaliate or discriminate in any manner against any person because such person has . . . opposed any practice forbidden under this chapter."
The dispositive question on this appeal is whether the record supports the jury's finding that Albunio and Connors "opposed" discrimination against Sorrenti on the basis of Sorrenti's perceived sexual orientation (a practice forbidden by Administrative Code § 8-107 [1] [a]). In answering this question, we must be guided by the Local Civil Rights Restoration Act of 2005 (LCRRA), enacted by the City Council "to clarify the scope of New York City's Human Rights Law," which, the Council found "has been construed too narrowly to ensure protection of [*4]the civil rights of all persons covered by the law" (Local Law No. 85 [2005] of City of New York § 1). The LCRRA, among other things, amended Administrative Code § 8-130 to read:
"The provisions of this title [i.e., the New York City Human Rights Law] shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions comparably-worded to provisions of this title, have been so construed."
The application of the LCRRA provision to this case is clear: we must construe Administrative Code § 8-107 (7), like other provisions of the City's Human Rights Law, broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible. We interpret the word "opposed" according to this principle, and conclude that the evidence supports a finding that both Albunio and Connors opposed discrimination against Sorrenti.
As to Connors, the case is easy. Connors filed a discrimination complaint on Sorrenti's behalf; there is evidence from which the jury could find that Hall knew of the complaint; and, after the complaint was filed, Connors was subjected to a series of adverse employment actions. Indeed, defendants, after arguing that neither Albunio nor Connors engaged in protected activity by advocating Sorrenti's transfer into the Youth Services section, concede that the filing of Connors's discrimination complaint in November 2002 was protected. Thus, as to Connors, defendants effectively give the case away, making only a perfunctory — and meritless — argument that the jury could not find that the actions taken against Connors were the result of his protected activity, or that they were adverse.
As to Albunio, the case is closer, because she had neither filed a discrimination complaint nor explicitly accused anyone of discrimination before she was ousted as commanding officer of the Youth Services section. Indeed, we see nothing in the record to support a finding that Albunio "opposed" discrimination before her October 31, 2002 meeting with Hall and Patrick. So far as the record shows, Albunio observed and listened to Hall's mistreatment of, and unfavorable remarks about, Sorrenti, but uttered no word of protest before October 31.
The record might, it is true, support a finding that, before October 31, Hall was displeased with Albunio and decided she should be removed from her command because she had recommended an applicant who Hall thought was gay. We do not suggest that, if that happened, Hall's conduct was either appropriate or legal, but we do not see how it can be called retaliation for opposition to discrimination. There is no evidence that Albunio knew, when she advocated Sorrenti's transfer, either that Sorrenti was or would be perceived as gay or that Hall was [*5]prejudiced against gay people. If Albunio was removed for being Sorrenti's advocate, she could perhaps have proved a violation of Administrative Code § 8-107 (20), which prohibits "discrimination against a person because of the actual or perceived . . . sexual orientation . . . of a person with whom such person has a known relationship or association." But Albunio brought no claim under that section of the City Human Rights Law.
Since her claim is limited to retaliation, she can prevail only if she shows that she "opposed" discrimination. She did so, if at all, only at the October 31 meeting [FN1]. At that meeting, Albunio reacted to Hall's criticism of her recommendation of Sorrenti by telling Hall that Sorrenti was the better candidate for the job and that "[i]f I had to do it all again, I would have recommended Sorrenti again." While she did not say in so many words that Sorrenti was a discrimination victim, a jury could find that both Hall and Albunio knew that he was, and that Albunio made clear her disapproval of that discrimination by communicating to Hall, in substance, that she thought Hall's treatment of Sorrenti was wrong. Bearing in mind the broad reading that we must give to the New York City Human Rights Law, we find that Albunio could be found to have "opposed" the discrimination against Sorrenti at the October 31 meeting.
Accordingly, the order of the Appellate Division, insofar as appealed from, should be affirmed, with costs. The certified question is unnecessary and need not be answered.
Order, insofar as appealed from, affirmed, with costs, and certified question not answered upon the ground that it is unnecessary. Opinion by Judge Smith. Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Pigott and Jones concur.
Decided March 31, 2011
FOOTNOTES
Footnote 1:Defendants might argue, but have not argued, that by the time of that meeting the decision to remove Albunio from command had already been made. The parties appear to assume, and we accept the assumption, that the jury could find a causal connection between the October 31 meeting and her removal from command.
No. 43
Captain Lori Albunio, et al., Respondents, The
v
City of New York, et al., Appellants. —-
Robert Sorrenti, Plaintiff,
v
The City of New York, et al., Appellants.
Julie Steiner, for appellants.
Mary D. Dorman, for respondents.
SMITH, J.:
A jury found that two members of the New York City Police Department, Captain Lori Albunio and Lieutenant Thomas Connors, were subjected to retaliation because they opposed discrimination against a third member of the department, Sergeant Robert Sorrenti, on the basis of Sorrenti's perceived sexual orientation. We hold that there is sufficient evidence in the record to support the verdict. [*2]
I
Albunio was commanding officer of the Youth Services section of the police department. Connors was operations coordinator of the section, and reported to Albunio. Sorrenti, then serving in another command, applied in 2001 to be transferred into the Youth Services section. Albunio interviewed him, and was favorably impressed; when a position opened in April 2002 in a Youth Services program known as DARE, in which police officers educate New York City school children about the dangers of drugs, she requested that Sorrenti be chosen to fill the vacancy. The request was submitted to Inspector James Hall, who had recently become commanding officer of Community Affairs, and Albunio's immediate supervisor. Hall decided to interview Sorrenti himself, and did so, with Albunio present, on May 13, 2002.
From this point on, the facts were sharply disputed at trial, but the jury could have found the following: At the May 13 interview, Hall asked Sorrenti whether he was married, and whether he had children. He also questioned Sorrenti aggressively about Sorrenti's relationship with another male police officer to whom Sorrenti had loaned money, saying loudly, among other things: "You were more than just friends." Sorrenti became visibly uncomfortable with the questions. After the interview, Hall told Albunio "that there was something not right about that guy." Hall later chose another person for the open position with DARE, telling Albunio that he "found out some fucked up shit about Sorrenti and . . . wouldn't want him around children." Albunio's interpretation of this statement was: "[T]he guy must think the guy is gay and for some reason doesn't want him around kids."
In June or July of 2002, Hall called Connors into Hall's office and began to speak to him about Sorrenti, angrily and with the use of many expletives. He talked about Sorrenti's loan to his fellow officer, saying "There must be more between this cop and Sergeant Sorrenti," and added that he "wouldn't be able to sleep at night knowing that Sorrenti is going to be working around kids." Connors responded that he thought Sorrenti "would be more than qualified to work around kids" and showed Hall a favorable evaluation Sorrenti had received. Connors inferred from the conversation that Hall "believed that Sergeant Sorrenti was a child molester and homosexual."
In the fall of 2002, Albunio began to hear rumors that she would be removed from the command of the Youth Services section. She asked for a meeting to discuss this subject with Hall's superior, Deputy Commissioner Frederick Patrick. The meeting took place on October 31, and Hall was present at it with Patrick.
At the October 31 meeting, Patrick confirmed that he and Hall "were contemplating" replacing Albunio, to which she responded: "[W]hy am I losing my command?" Hall interjected to say that Albunio "utilized poor judgment when requesting personnel," citing [*3]Sorrenti as the primary example. Albunio told Hall that "Sorrenti was the better candidate," adding: "If I had to do it all again, I would have recommended Sorrenti again." Albunio was told that it would be in her best interest to find another assignment, which she soon did — an assignment much less desirable than the one she left.
Albunio told Connors that she had been directed to go elsewhere. Connors, on November 8, 2002, filed a complaint with the police department's Office of Equal Employment Opportunity alleging that Hall had discriminated against Sorrenti because of Sorrenti's perceived sexual orientation. Soon after that, Connors was contacted about the complaint by someone who worked directly for Hall, leading Connors to believe that Hall knew of Connors's accusation. Connors put in for a transfer from the Youth Services section, believing that with Albunio's forced departure "[t]he writing was on the wall for me." During his remaining time with Youth Services, he suffered a number of adverse employment actions: geographical assignments and hours of work were changed in ways he did not like; and he was shunned and excluded from meetings by Hall and Hall's other subordinates. When his transfer finally came through, he got a less desirable job than he had expected.
Albunio and Connors brought this action against the City, Hall and Patrick, alleging violations of the anti-retaliation section of the New York City Human Rights Law, New York City Administrative Code § 8-107 (7). (Sorrenti also brought a discrimination lawsuit, which was tried with Albunio's and Connors's case, but which is not involved in this appeal.) The jury found that the City and Hall had retaliated against both plaintiffs, and awarded damages. A judgment was entered on the verdict, which the Appellate Division affirmed, with one Justice dissenting as to Albunio. The Appellate Division granted leave to appeal to this Court, and we now affirm.
II
New York City Administrative Code § 8-107 (7) says, in relevant part:
"It shall be an unlawful discriminatory practice . . . to retaliate or discriminate in any manner against any person because such person has . . . opposed any practice forbidden under this chapter."
The dispositive question on this appeal is whether the record supports the jury's finding that Albunio and Connors "opposed" discrimination against Sorrenti on the basis of Sorrenti's perceived sexual orientation (a practice forbidden by Administrative Code § 8-107 [1] [a]). In answering this question, we must be guided by the Local Civil Rights Restoration Act of 2005 (LCRRA), enacted by the City Council "to clarify the scope of New York City's Human Rights Law," which, the Council found "has been construed too narrowly to ensure protection of [*4]the civil rights of all persons covered by the law" (Local Law No. 85 [2005] of City of New York § 1). The LCRRA, among other things, amended Administrative Code § 8-130 to read:
"The provisions of this title [i.e., the New York City Human Rights Law] shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions comparably-worded to provisions of this title, have been so construed."
The application of the LCRRA provision to this case is clear: we must construe Administrative Code § 8-107 (7), like other provisions of the City's Human Rights Law, broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible. We interpret the word "opposed" according to this principle, and conclude that the evidence supports a finding that both Albunio and Connors opposed discrimination against Sorrenti.
As to Connors, the case is easy. Connors filed a discrimination complaint on Sorrenti's behalf; there is evidence from which the jury could find that Hall knew of the complaint; and, after the complaint was filed, Connors was subjected to a series of adverse employment actions. Indeed, defendants, after arguing that neither Albunio nor Connors engaged in protected activity by advocating Sorrenti's transfer into the Youth Services section, concede that the filing of Connors's discrimination complaint in November 2002 was protected. Thus, as to Connors, defendants effectively give the case away, making only a perfunctory — and meritless — argument that the jury could not find that the actions taken against Connors were the result of his protected activity, or that they were adverse.
As to Albunio, the case is closer, because she had neither filed a discrimination complaint nor explicitly accused anyone of discrimination before she was ousted as commanding officer of the Youth Services section. Indeed, we see nothing in the record to support a finding that Albunio "opposed" discrimination before her October 31, 2002 meeting with Hall and Patrick. So far as the record shows, Albunio observed and listened to Hall's mistreatment of, and unfavorable remarks about, Sorrenti, but uttered no word of protest before October 31.
The record might, it is true, support a finding that, before October 31, Hall was displeased with Albunio and decided she should be removed from her command because she had recommended an applicant who Hall thought was gay. We do not suggest that, if that happened, Hall's conduct was either appropriate or legal, but we do not see how it can be called retaliation for opposition to discrimination. There is no evidence that Albunio knew, when she advocated Sorrenti's transfer, either that Sorrenti was or would be perceived as gay or that Hall was [*5]prejudiced against gay people. If Albunio was removed for being Sorrenti's advocate, she could perhaps have proved a violation of Administrative Code § 8-107 (20), which prohibits "discrimination against a person because of the actual or perceived . . . sexual orientation . . . of a person with whom such person has a known relationship or association." But Albunio brought no claim under that section of the City Human Rights Law.
Since her claim is limited to retaliation, she can prevail only if she shows that she "opposed" discrimination. She did so, if at all, only at the October 31 meeting [FN1]. At that meeting, Albunio reacted to Hall's criticism of her recommendation of Sorrenti by telling Hall that Sorrenti was the better candidate for the job and that "[i]f I had to do it all again, I would have recommended Sorrenti again." While she did not say in so many words that Sorrenti was a discrimination victim, a jury could find that both Hall and Albunio knew that he was, and that Albunio made clear her disapproval of that discrimination by communicating to Hall, in substance, that she thought Hall's treatment of Sorrenti was wrong. Bearing in mind the broad reading that we must give to the New York City Human Rights Law, we find that Albunio could be found to have "opposed" the discrimination against Sorrenti at the October 31 meeting.
Accordingly, the order of the Appellate Division, insofar as appealed from, should be affirmed, with costs. The certified question is unnecessary and need not be answered.
Order, insofar as appealed from, affirmed, with costs, and certified question not answered upon the ground that it is unnecessary. Opinion by Judge Smith. Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Pigott and Jones concur.
Decided March 31, 2011
FOOTNOTES
Footnote 1:Defendants might argue, but have not argued, that by the time of that meeting the decision to remove Albunio from command had already been made. The parties appear to assume, and we accept the assumption, that the jury could find a causal connection between the October 31 meeting and her removal from command.
Saturday, April 2, 2011
Jo Haines, Executive Director of The International Dyslexia Association, Needs Your Help
Ms. Haines, Executive Director of The International Dyslexia Association, asks New Yorkers to rally behind reading teachers who are about to be laid off. See her email below.
Dear Friend,
In early March, the New York City Department of Education released a layoff plan that raises real concerns about the city's ability to serve students with learning disabilities. Included in the plan are cuts of up to 15% of licensed reading teachers. The cuts will effectively terminate any reading teacher with less than ten (10) years seniority. Although we believe that any cuts to education are wrong, the effect of these proposed cuts on public school children with reading disabilities will be quite serious.
We urge you to contact the DOE and your elected officials to let them know you oppose the plan. (See below for contact information.)
Cuts system-wide are 6%, but not every discipline will be impacted equally. Math and Science will experience only 3% cuts, whereas Reading is scheduled for the most severe cuts of 15%. Including reading in the group scheduled for the largest cuts fails to recognize the invaluable service which reading specialists provide classroom teachers and our most educationally vulnerable children.
Eighty five percent (85%) of all learning disabilities are reading disabilities. Reading Teachers are specifically trained to address those learning disabilities in one-on-one and small group settings. Despite the city's claim that Special Education will be exempt from layoffs, many reading teachers spend most of their time with students requiring special education. In fact, reading specialists working in District 75 (the special education district) are not exempt from these cuts and face termination.
Reading teachers are on the educational front lines not only with special education students but also with children with reading disabilities who have not been classified for special ed. services. Families unable to afford private tutors for their children will be most affected by these cuts. It is our belief that children with reading disabilities served by licensed reading teachers in New York City will be disproportionately harmed by the intended layoffs.
CONTACT THE FOLLOWING OFFICIALS and Your City Council Person:
Bill de Blasio
NYC Public Advocate
Municipal Building
One Centre Street
New York, NY 10007
212 669 7200
Deblasio@pubadvocate.nyc.gov
Cathleen P. Black
Chancellor
NYC Department of Education
Tweed Courthouse
52 Chamber Street
New York, NY 10007
212 935 2000
cpblack@schools.nyc.gov
Robert Jackson
Chairperson
NYC Council Committee on Education
250 Broadway
New York, NY 10007
212 234 0551
rjackson@council.nyc.gov
To locate and contact your council representative, visit http://council.nyc.gov/html/members/members.shtml
Sincerely,
Jo Haines
Executive Director
Int'l Dyslexia Association - New York
71 West 23rd Street #1527
New York, NY 10010
212-691-1930
jhaines@nybida.org
http://www.nybida.org/
Sol Stern on Reading
here is a comment on the above post that I received April 3:
Thanks so much for your article. I am one of the Reading Specialists who is slated to be laid off (I am in year 4). I am also an ATR, and have been told by my Chapter Leader and borough rep that the Reading License is "dead", that no one wants it anymore. I called the UFT District Office and was basically told to ty to work under my ELA 7 -12 (even though I have never worked under it and therefore would lose my tenure and be at year 0) because "you'll never find a Reading position - no one wants them and you'll be in the ATR pool forever." So I guess I spent $22,000 on a useless piece of paper and am considering shredding it and putting it in my cat's litter box. I am planning cram through a 36 credit course in administration since no one seems to want to let me do the work I love and am also extremely good at (I was excessed, with 2 other Reading Specialists) because all of the grade 7/8 level 1 kids got 2 or higher on the ELA two years ago. As a thank you, the City decided that the school no longer needed Reading classes and eliminated the Title 1 Reading funding. Some pat on the back, eh?
Anyway, thanks for acknowledging us. I'll still be on the unemployment line, my house up for sale, and my kids' dance/piano/sports eliminated as keeping a roof over our heads becomes our main priority, but it's nice to know that someone noticed.
Dear Friend,
In early March, the New York City Department of Education released a layoff plan that raises real concerns about the city's ability to serve students with learning disabilities. Included in the plan are cuts of up to 15% of licensed reading teachers. The cuts will effectively terminate any reading teacher with less than ten (10) years seniority. Although we believe that any cuts to education are wrong, the effect of these proposed cuts on public school children with reading disabilities will be quite serious.
We urge you to contact the DOE and your elected officials to let them know you oppose the plan. (See below for contact information.)
Cuts system-wide are 6%, but not every discipline will be impacted equally. Math and Science will experience only 3% cuts, whereas Reading is scheduled for the most severe cuts of 15%. Including reading in the group scheduled for the largest cuts fails to recognize the invaluable service which reading specialists provide classroom teachers and our most educationally vulnerable children.
Eighty five percent (85%) of all learning disabilities are reading disabilities. Reading Teachers are specifically trained to address those learning disabilities in one-on-one and small group settings. Despite the city's claim that Special Education will be exempt from layoffs, many reading teachers spend most of their time with students requiring special education. In fact, reading specialists working in District 75 (the special education district) are not exempt from these cuts and face termination.
Reading teachers are on the educational front lines not only with special education students but also with children with reading disabilities who have not been classified for special ed. services. Families unable to afford private tutors for their children will be most affected by these cuts. It is our belief that children with reading disabilities served by licensed reading teachers in New York City will be disproportionately harmed by the intended layoffs.
CONTACT THE FOLLOWING OFFICIALS and Your City Council Person:
Bill de Blasio
NYC Public Advocate
Municipal Building
One Centre Street
New York, NY 10007
212 669 7200
Deblasio@pubadvocate.nyc.gov
Cathleen P. Black
Chancellor
NYC Department of Education
Tweed Courthouse
52 Chamber Street
New York, NY 10007
212 935 2000
cpblack@schools.nyc.gov
Robert Jackson
Chairperson
NYC Council Committee on Education
250 Broadway
New York, NY 10007
212 234 0551
rjackson@council.nyc.gov
To locate and contact your council representative, visit http://council.nyc.gov/html/members/members.shtml
Sincerely,
Jo Haines
Executive Director
Int'l Dyslexia Association - New York
71 West 23rd Street #1527
New York, NY 10010
212-691-1930
jhaines@nybida.org
http://www.nybida.org/
Sol Stern on Reading
here is a comment on the above post that I received April 3:
Thanks so much for your article. I am one of the Reading Specialists who is slated to be laid off (I am in year 4). I am also an ATR, and have been told by my Chapter Leader and borough rep that the Reading License is "dead", that no one wants it anymore. I called the UFT District Office and was basically told to ty to work under my ELA 7 -12 (even though I have never worked under it and therefore would lose my tenure and be at year 0) because "you'll never find a Reading position - no one wants them and you'll be in the ATR pool forever." So I guess I spent $22,000 on a useless piece of paper and am considering shredding it and putting it in my cat's litter box. I am planning cram through a 36 credit course in administration since no one seems to want to let me do the work I love and am also extremely good at (I was excessed, with 2 other Reading Specialists) because all of the grade 7/8 level 1 kids got 2 or higher on the ELA two years ago. As a thank you, the City decided that the school no longer needed Reading classes and eliminated the Title 1 Reading funding. Some pat on the back, eh?
Anyway, thanks for acknowledging us. I'll still be on the unemployment line, my house up for sale, and my kids' dance/piano/sports eliminated as keeping a roof over our heads becomes our main priority, but it's nice to know that someone noticed.
Mike Bloomberg On Paying Teachers (Not) And Buying Ed Technology To Replace Them (Teachers)
A conversation in the bull pen at City Hall, overheard by a co-worker, has been forward to me. Mike Bloomberg is evidently on a conference call with Richard Condon ("Dick"), Special Commissioner of Investigation, and Mecca Santana, director of the Office of Equal Opportunity at the NYC BOE's 65 Court Street address. "Theresa" is, of course, Theresa Europe of "The Gotcha Squad", and Howard Wolfson is "Counsel to the Mayor".
 |
| Theresa Europe |
Mike Bloomberg :
"Darn it, I can control technology, but not those lazy, unprofessional high-paid senior teachers sitting around classrooms and doing nothing while their students fight each other and send sexually explicit texts on their iphones (that I banned). Dick, Mecca, I need you to get me the names of these principals who are not getting rid of tenured teachers fast enough. Get Cathie on board. Tell them they better get moving on sending incident reports to Theresa over at the "Gotcha Squad" - I hate that name, but you know the procedure - or there will be consequences. Oh, and the problem that we have with that music teacher from PS22, I forget his name, Gregg...Breinberg, thanks, for looking into getting something to use against him, he could blotch this whole campaign to get rid of senior teachers. Get moving on this and call Howard if you need anything from our buddies over at the News or Post, ok? But get moving, now.
 |
| Richard "Dick" Condon |
DOE: Computers More Important Than Teachers, Schools
 |
| Mecca Santana |
LINK
Mayor Bloomberg and the Department of Education have been talking constantly about the department's budget of late, insisting that they must end the "Last In, First Out" rule (perhaps you've noticed the ads occasionally running on Gothamist?) and putting out scary budget projection after scary budget projection in which they say that unless they get more aid they will have to do things like fire six percent of the city's teachers. So isn't it a little odd that the department is planning to spend more than half-a-billion dollars on technology improvements next year while simultaneously cutting $1.3 billion from its construction budget for the next three years?
As Manhattan Beep Scot Stringer wrote to Cathy Black last week, the numbers being bandied about by the DOE are “particularly large in the context of a fiscal crisis which the mayor reports is so dire that he may eliminate some 6,000 teaching positions.”
Now, to be fair, the state capital that is behind much of the technology funding is specifically not to be used for teachers salaries. But it can use those funds for construction costs. And considering the department has announced plans to cut its construction budget from $2 billion over the next three years to $642 million you'd think they could use the cash. Remember, the city is already lined up to spend $708 million just changing the lights in city schools over the next decade! Not to mention the fact that 3,200 children were put on wait lists for kindergarten this year.
So what is the DOE planning on using that tech money for exactly? Didn't they already put a computer in every classroom? Bandwidth, baby! Now that more and more schools are actually starting to use the computers and smart boards and whatnot that they've been installing over the years they are increasingly finding that their networks can't keep up. And that's not all. Other tech projects in the works include something called iLearn NYC (a $50 million online course management project) and expanding a program called the Innovation Zone, or iZone, in which the department has been testing out tech-intensive teaching methods in 80 schools. The mayor's office wants the program to be expanded to 400 schools by the end of Bloomberg's third term.
Now we recognize that being technologically up-to-date is important for children (or at least is important for their parents), but in our minds no technology matters as much as having a good teacher and a school for them to teach in.
Contact the author of this article or email tips@gothamist.com with further questions, comments or tips.
Bloomberg: There Could Be 21,000 Teacher Layoffs
LINK
With Gov. Cuomo's first budget proposal since taking office imminent, Mayor Bloomberg announced yesterday that city schools could be facing a $1 billion budget cut, which could spell massive teacher layoffs. On his WOR radio show yesterday, he raised the specter that as many as 21,000 teachers could lose their jobs this year: "Scuttlebutt is that the education budget will be cut statewide, and New York City's share of that would be a billion-dollar cut."
Bloomberg estimated that if the $1 billion cut is approved, the city would be forced to cut 15,000 teachers. That's in addition to the 6,166 teacher layoffs Bloomberg plans to make in the fiscal year beginning July 1, making for a loss of nearly a quarter of the 75,000 teachers employed by the Department of Education. Bloomberg lamented the unfairness of the layoffs, focusing on the rules requiring teachers hired last to go first: "We'd have to part company with some of the best teachers. It's a state law, 'Last in, first out.' There are great and terrible teachers at every level of experience and age...In the private sector, nobody would do 'Last in, first out.' You'd do it on the 'Who is the most productive.'"
The only teachers who would be immune to the cuts are those in special education, English as a second language and speech. The worst cuts would hit District 9, which includes the Highbridge section of the Bronx, who would lose 27 percent; schools in District 1, which includes Manhattan's lower East Side, District 10 and District 12, which include Riverdale and Tremont, would all lose 26 percent of their teachers. United Federation of Teachers President Michael Mulgrew criticized Bloomberg for supporting the end of the millionaires' tax in light of these developments: "I would hope the mayor would fight for the children. He has chosen that his millionaire and billionaire friends are much more important than the children in the schools of New York City."
Friday, April 1, 2011
The Issue Is: When You File An Article 78, Do You Have To File A Notice Of Claim Against The BOE?
Gebran v New York City Dept. of Educ.
2011 NY Slip Op 50486(U)
Decided on March 7, 2011
Supreme Court, Kings County
Schmidt, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
is opinion is uncorrected and will not be published in the printed Official Reports.
Nagib Gebran, Petitioner,
against
New York City Department of Education, Respondent.
19140/10
Petitioner's Counsel: Michael Rhode, PO Box 20021, Park West Finance Station
Respondent's Counsel: Corporation Counsel, 100 Church Street NY NY by James Hallman Esq.
David I. Schmidt, J.
Upon the foregoing papers, petitioner Nagib Gebran (Gebran) moves for a judgment:
(1) pursuant to CPLR 7803 (3), annulling the "Unsatisfactory" teacher's rating ("U" or U-rating) he received on the Annual Professional Performance Review and Report on Probationary Service of Pedagogical Employee for the 2007-2008 school year or changing the U-rating to a "C" or "S" rating (and removing three particular untimely letters in support [*2]of the rating from file);
(2) declaring said determination arbitrary, capricious, and without rational basis in the record; and
(3) pursuant to CPLR 7806, awarding actual compensatory damages incidental to the U-rating, up to and including the full salary petitioner might have earned during the 2009-2010 school year in the amount of $95,200, and the costs and disbursements of this proceeding.
Respondent the New York City Board of Education (the BOE) (a/k/a, s/h/a, d/b/a the New York City Department of Education) cross-moves for an order, pursuant to CPLR 7804 (f) and 3211 (a) (7), dismissing the Petition on the grounds that (1) the Petition fails to state a cause of action that the decision to issue petitioner a U-rating was arbitrary, capricious, or unlawful, and (2) petitioner has failed to file a timely notice of claim against the BOE pursuant to New York Education Law 3813 (1).
FACTS AND PROCEDURAL HISTORY
Gebran is a tenured teacher at the New Horizons School, M.S. 442 (New Horizons) in Brooklyn, New York, where he has taught since 1985. He never received any unsatisfactory ratings during his annual performance reviews until the 2007-2008 school year. He commenced this Article 78 proceeding against the BOE to annul or change the U-rating he received for the 2007-2008 school year. Petitioner alleges that during the past few years, his medical problems have caused him to suffer seizures and that respondent has not accommodated his disability.
In September 2007, Gebran suffered a seizure while teaching and his medical condition forced him to take an approved medical leave of absence, which ran from approximately October 2007 until February 1, 2008. Petitioner then suffered a second seizure during class on February 15, 2008, which forced him to take a second approved medical leave of absence from February 16, 2008 through the remainder of the school year.
The February 25, 2008 Letter
Prior to taking leave, petitioner was involved in various incidents during the 2007-2008 school year for which respondent wrote letters to his personnel file. A February 25, 2008 letter (the February 25th Letter, annexed as Exhibit A to respondent's cross motion) concerned an event that occurred on February 1, 2008, when the Principal of New Horizons and petitioner's rating officer, Marylou Aranyos (Principal Aranyos), observed petitioner playing chess with his students during what should have been an instructional science class. The letter refers to a conference on February 7, 2008 that petitioner attended with union representative Lisa Merill to discuss the incident on February 1st. According to the letter, when asked why he engaged in this activity during instructional hours, Gebran responded, among other things, that he and his co-teacher had mutually agreed that chess would be a [*3]good incentive and motivation and that he had told his students they could play chess as a reward during the second portion of the two-period science class if they behaved. Gebran also testified that he was hired partly for his specialized knowledge of chess, which the school administration purportedly knew Gebran would be using to help teach math and science, given that Gebran possessed a patent on a chess set which combined chess with math and science.
Principal Aranyos concluded in the February 25th Letter that petitioner was in fact playing chess with his students during a scheduled science class. She called petitioner's behavior "unacceptable and unprofessional," and warned that such misconduct could "lead to further disciplinary action including an unsatisfactory rating and disciplinary charges that could lead to termination of [his] employment."
The September 11 and 12, 2008 Letters
Petitioner was also involved in various incidents on February 12, 13, and 14 that occurred during the 2007-2008 school year, prior to taking his medical leave. According to respondent, those matters could only be addressed when petitioner returned from leave, and petitioner was thus given a "C" rating in the interim for the 2007-2008 school year (see 2008 Annual Professional Performance Review, dated June 12, 2008, annexed as Exhibit 2 to the Petition). Petitioner claims that he never received the original rating form until after the BOE Hearing on January 5, 2010 (discussed further below) and was never informed that he was initially given a "C" rating.
Upon Gebran's return to teaching in September 2008, Principal Aranyos resumed her investigations into those incidents. Once complete, letters concerning the incidents were added to petitioner's file. First, respondent added to petitioner's file a letter, dated September 11, 2008 (the September 11th Letter, annexed as Exhibit 10 to the Petition), which related to the incidents on February 12 and 13. The September 11th Letter first addressed an incident on February 12th, in which petitioner tore up a student's test paper in front of the entire class and threw it in the garbage because the student was allegedly misbehaving. It also discussed an incident on February 13th, in which petitioner similarly tore up a second student's test in a different class that he taught.
After reviewing the allegations of both the February 12 and 13 incidents and the statements made at the September 5th Meeting (discussed further below), Principal Aranyos concluded that petitioner did in fact tear up both students' exams and throw them in the garbage, and that he also yelled at the student during the latter incident. In the September 11th Letter, Principal Aranyos indicated that "[petitioner's] actions created a serious endangerment to the students involved" and that "[petitioner] failed to utilize the ladder of referral which mandated that [he] contact the Dean if [he] was having problems with students [as outlined in the school handbook]."
Respondent submitted a second letter for petitioner's file, dated September 12, 2008 (the September 12th Letter, annexed as Exhibit 12 to Petition), which related to an incident on February 15, 2008 and referred to petitioner's "failure to follow proper procedure." The [*4]letter stated that petitioner left the school building fifty minutes early on February 15, 2008 without notifying Principal Aranyo or obtaining permission. According to the letter, Principal Aranyo apparently went to speak with Gebran in his classroom at about 1:30 p.m. on that date and was informed by his co-teacher that petitioner had put on his coat and stated that he would not be returning to school for the remainder of the year.
However, according to petitioner, he had suffered a seizure that day. He claims that he did not leave school early, but instead went to the teacher's lounge during the last period of the day, which was a scheduled "prep period" for him. Because he suspected that Principal Aranyos was harassing him for his seizures, he went to her office to request a meeting with his union leader and an attorney. In response, she "unnecessarily and improperly started yelling and screaming, help, security' when discussing the incident with [him]."
Both the September 11th and 12th Letters advised that his misconduct could "lead to further disciplinary action including an unsatisfactory rating" as well as termination of employment. Both letters also referenced a meeting on September 5, 2008 (the September 5th Meeting) which was attended by petitioner, Lisa Reiter (Reiter), his union representative, Principal Aranyos, and Assistant Principal Deanna Diable (Diable) to discuss the incidents that had occurred on February 12-14 and subsequent allegations of misconduct. The letters further explained that the meeting could not be held sooner because school was on mid-winter recess during the week of February 18, 2008, and petitioner was out on approved medical leave from February 25, 2008 through the remainder of the school year.
Petitioner's Grievance Re: the September 11th and 12th Letters
Petitioner filed a grievance on or about September 25, 2008, claiming that his rights pursuant to the collective bargaining agreement (the CBA) between the United Federation of Teachers (the UFT) and the BOE had been violated when the September 11th and 12th Letters were placed in his file over three months after the incidents occurred and well after the close of the school year. On or about October 2, 2008 (the October 2nd Meeting), petitioner and Reiter met with Principal Aranyo to discuss petitioner's grievance. In a letter dated October 2, 2008 (the Grievance Denial Letter), Principal Aranyo denied petitioner's grievance, stating, "I deny your grievance because I was unable to meet with you before September of 2008 since you were out of school on an unpaid medical leave of absence from February 23, 2008 through the end of the year."
Gebran appealed the grievance denial pursuant to the procedures in the CBA, and had an opportunity to be heard at a conference held on or about October 23, 2008 (the Grievance Conference). At the hearing, petitioner and his UFT representative, Arthur Solomon, argued that the BOE had violated the CBA because the letters regarding the February 2008 incidents were not added to petitioner's file within three months of their occurrence, as required under Article 21 (A) (1) of the CBA. However, Chancellor Joel I. Klein (Chancellor Klein) of the [*5]BOE denied the grievance in a letter, dated November 5, 2008, concluding that the school's administration was unable to investigate the incidents within three months because Gebran took a medical leave of absence immediately following the incidents (see Grievance Decision, annexed as Exhibit 9 to Petition). He further reasoned that, consistent with the objective of the three-month deadline to prevent delay in preparing materials to be placed in a personnel file, "the administration did not delay in that [Principal Aranyo] acted in an expeditious manner as soon as [petitioner] returned to work" (id.).
The UFT chose not to invoke arbitration under the provisions of the CBA to further challenge the BOE's decision to deny petitioner's grievance, but petitioner appealed the UFT's decision not to pursue arbitration. After hearing the appeal, the UFT still was not persuaded that petitioner's grievance merited arbitration, and opined that the administration acted properly in waiting until petitioner returned from medical leave to hold a meeting before writing a letter to his personnel file.
The December 12, 2008 Letter
The last letter in petitioner's file on which this proceeding is based is dated December 12, 2008 (the December 12th Letter, annexed as Exhibit 13 to Petition) and relates to petitioner's excessive absences. The letter states that petitioner was absent from work fifteen times during the 2007-2008 school year, specifically excluding the time periods from October 16, 2007 to January 31, 2008 and February 25, 2008 to June 30, 2008, when petitioner was on approved medical leave. At a conference on September 19, 2008 to discuss those absences, however, petitioner, who was again accompanied by Reiter, claimed that the absences were all "medically certified absences." After reviewing his attendance history and considering his responses at the conference, Principal Aranyo determined that his absences were "excessive as defined by the attached School Attendance Policy . . . [which] states that five or more absences per semester (10 or more per year) are considered to be excessive and will be reviewed for rating purposes." Gebran refused to sign the letter in acknowledgment.
The U-rating and the BOE's Determination
On or about December 16, 2008, petitioner received an amended U-rating on his 2008 Annual Review, with individual U-ratings in eleven out of the possible twenty-three qualities and skills categories. As Aranyo retired from the BOE sometime in December 2008, Diable signed and dated the amended rating form with her own name when she became principal during mid-December 2008. However, she later testified that the manner in which she signed the form was a mistake; she conceded that she should have instead signed former-principal Aranyo's name and included her own initials, since the former principal was the person that instructed her to issue the U-rating. When Diable presented the rating sheet to petitioner during an instructional period, he refused to sign it.
Petitioner challenged the U-rating and the placement of the supporting letters in his personnel file, but his grievance was denied after a hearing, pursuant to Section 4.3.2 of the New York City Department of Education Bylaws, which took place on or about January 5, 2010 (the BOE Hearing). The union declined to invoke arbitration for his grievance. [*6]Petitioner appealed to the Chancellor's Committee, but it denied his appeal and sustained the U-rating. The Deputy Chancellor, as the Chancellor's designee, adopted that recommendation on May 3, 2010, affirming the June 2008 decision to issue petitioner a U-rating for the 2007-2008 school year as a result of his poor professional performance and excessive absences (the Final Determination, annexed as Exhibit 1 to the Petition).
On or about August 10, 2010, petitioner commenced the instant Article 78 proceeding seeking to annul the December 16, 2008 U-rating he received for the 2007-2008 school year. Currently, petitioner is still away on medical leave.
THE PARTIES' CONTENTIONS
Initially, Gebran suggests that Chairperson Stephen Hinds (Chairperson Hinds), the hearing officer who presided over the BOE Hearing on January 5, 2010, was impartial because he pursued a cross-examination of petitioner and his union representative by himself, even though Diable declined to conduct any questioning of petitioner. Petitioner asserts that he worked a total of only five weeks during the 2007-2008 school year due to his medical problems, and should have been rated a "C," which he suggests is the appropriate rating used to rate teachers who could not be properly rated. Moreover, he contends that the "U" rating for the 2007-2008 school year was arbitrary and capricious because three of the four letters (the September 11th and 12th and December 12th Letters) on which the U-rating was based were not admissible, given that they were placed in his file over three months after the corresponding incidents occurred, and should be removed from his file as violative of Article 21 (A) (1) of the CBA. He further maintains that the rating was untimely because it was given to him six months after the end of the school year in question, rather than within the last four school days to ten days of the school year, as delineated in the Regulations of the Chancellor Regarding Ratings (former Bylaw Section 89.7).
Petitioner then argues that the U-rating was not properly authorized because it was unclear whether Aranyos or Diable was the principal on the date the rating was rendered. Also, he challenges the U-rating because he was not formally observed during that period and given the limited time that he was at work during that year. As a backdrop, he asserts that respondent allowed a work environment intolerant and hostile to his medical condition to exist and failed to provide the proper accommodations for his medical condition as required by law. Finally, petitioner argues that he should be awarded compensatory damages incidental to the U-rating, upon annulment of the U-rating, because he had to take multiple unpaid Leaves of Absence for Restoration of Health in 2009 and 2010 in order to avoid working in a hostile and stressful environment at New Horizons, and because the "U" on his record made it difficult or impossible for him to transfer to another school.
The BOE cross-moves to dismiss the Petition, arguing that it fails to state a cause of action for annulling the U-rating, since it was supported by a number of letters regarding various incidents during the 2007-2008 school year. In that respect, the BOE asserts that, although petitioner disagrees with the account of the incidents and resulting letters, he does not dispute the fact that the U-rating was based substantially on those letters. Respondent [*7]further indicates that, although the Petition alleges that the BOE improperly allowed the letters regarding the February incidents to be added to petitioner's file, it does not deny that the incidents of unprofessional conduct occurred. With regard to petitioner's claims that the amended U-rating was untimely issued, respondent avers that the deadlines cited by petitioner in the handbook "Rating Pedagogical Staff Members" (the Ratings Manual, annexed as Exhibit 6 to Petition) are not mandatory. Lastly, the BOE contends that petitioner's claims are barred because he failed to file a timely notice of claim pursuant to Section 3813 of the Education Law within three months of the BOE's Final Determination on May 3, 2010.
Petitioner opposes respondent's cross motion on the grounds that he has indeed filed an application to extend the time to serve the notice of claim by seven days to August 10, 2010 by requesting that the court deem, nunc pro tunc, his Petition a notice of claim. In any event, petitioner maintains that he seeks to vindicate certain public interests which preclude him from having to comply with the notice of claim requirements under Education Law � 3813. He avers that his rating was not authorized to be amended by anyone other than the designated rating officer for the 2007-2008 school year, and that such an issue qualifies as a constitutionally protected right to continued employment.
DISCUSSION
At the outset, the court first addresses the BOE's cross motion to dismiss the Petition based on petitioner's failure to file a notice of claim within three months after the accrual of his claims. Section 3813, subdivision 1, of the Education Law provides, in relevant part:
"1. No action or special proceeding, for any cause whatever ... shall be prosecuted or maintained against any school district, board of education, [or] board of cooperative educational services . . . or any officer of a school district, board of education, [or] board of cooperative educational services ... unless it shall appear by and as an allegation in the complaint or necessary moving papers that a written verified claim upon which such action . . . is founded was presented to the governing body of said district ... within three months after the accrual of such claim, and that the . . . body having the power to adjust or pay said claim has neglected or refused to make an adjustment or payment."
As the Court of Appeals has interpreted the statute, "[t]he Legislature has spoken unequivocally that no action or proceeding may be prosecuted or maintained against any school district or board of education unless a notice of claim has been presented to the governing body,' and this court may not disregard its pronouncement" (Parochial Bus Sys., Inc. v Bd. of Educ., 60 NY2d 539, 549, [1983] [citations omitted]). The petitioner bears the burden of pleading and proving that he or she filed a notice of claim within three months after the accrual of his or her claim (see C.S.A Contr. Corp. v New York City School Constr. Auth., 5 NY3d 189, 192 [2005]; Stoetzel v Wappingers Cent. School Dist., 166 AD2d 643, 644 [1990]). Although the failure to present notice of a claim within ninety days of its accrual is generally a fatal defect, an exception has been carved out for actions which seek [*8]vindication of a public interest, as opposed to actions that seek the enforcement of private rights (see Biggers v Brookhaven Comsewogue Union Free School Dist., 127 F Supp 2d 452, 455 [SDNY 2001], citing Union Free School Dist. No. 6 of Towns of Islip & Smithtown v New York State Human Rights Appeal Bd., 35 NY2d 371, 379 80 [1974]). Thus, a notice of claim pursuant to Education Law § 3813 (1) is not a condition precedent to an Article 78 proceeding seeking to vindicate a public interest (see Matter of Cayuga Onondaga Counties Bd. of Coop. Educ. Servs. v Sweeney, 89 NY2d 395, 400 [1996]; Kight v Wyandanch Union Free School Dist., 84 AD2d 749 [1981], affd 56 NY2d 606 [1982]). Although "[a]ll actions brought to enforce civil rights can be said to be in the public interest" (Mills v County of Monroe, 59 NY2d 307, 311, [1983], cert denied, 464 US 1018 [1983]), "actions that are brought to protect an important right, which seek relief for a similarly situated class of the public, and whose resolution would directly affect the rights of that class or group" are deserving of special treatment, such as relief from the notice requirement (see Id. at 311-12).
Here, the BOE's Determination affirmed petitioner's U-rating on May 3, 2010, and petitioner was required to file a notice of claim no later than August 3, 2010, which was three months after his claims regarding the U-rating accrued. However, petitioner has not proven that he filed a notice of claim at any time prior to commencing this proceeding. First, petitioner's argument that he is not bound by the notice of claim requirement lacks merit. In his Petition, Gebran seeks a monetary award of $95,200 in actual compensatory damages for the full salary petitioner might have earned during the 2009-2010 school year, as well as costs and disbursements, and "[s]uch other relief as this Court may deem just and proper." Courts have consistently held that where a party demands money damages they are seeking "resolution of a private dispute and not the vindication of an important public right" (Hermele v Union Free School Dist. No. 23,167 AD2d 512 513 [1990]; Matter of McClellan v Alexander Cent. School Bd. of Educ., 201 AD2d 898, 898-899 [1994] [where petitioner sought the vindication of his private rights to back pay and benefits, in addition to his reinstatement as a vindication of a public interest, he was not exempt from the notice of claim requirements under Education Law � 3813]; Matter of Vail v Board of Coop. Educ. Servs., 115 AD2d 231 [1985]; W v City of New York, 24 Misc 3d 1224[A], 2009 NY Slip Op 51606[U], *8 [2009]). Although petitioner argues that the discriminatory nature of his claims, generally, is relevant to the public interest, this action seeks relief only for claims relating to his U-rating, and the money damages sought are to redress his own lost wages. "Inasmuch as the disposition of plaintiff's claim was not intended to nor could it directly affect or vindicate the rights of others, [his] action is properly characterized as one seeking the enforcement of private rights" (Mills, 59 NY2d at 312). Therefore, petitioner is not exempt from the notice of claim requirements under Education Law § 3813 (1).
Gebran then requests in his Application to Extend the Time to Serve a Notice of Claim that the court extend his deadline by seven days to August 10, 2010 and treat his Petition as a notice of claim. However, that application was not made until approximately November [*9]26, 2010.[FN1] In any event, where an application for leave to file a late notice of claim is timely, the court has discretion to extend the time for petitioner to file a notice of claim, as long as such an extension would not exceed the four-month statute of limitations applicable to Article 78 proceedings (see Education Law § 3813 [2-a], [2-b]), which the extension herein would not.[FN2] Insofar as petitioner requests that the court deem the Petition a notice of claim, courts have stated that a defendant is put on notice of claims asserted against it when the essential elements thereof are communicated to the defendant, including the nature of the claim, the time when, the place where, and the manner in which the claim arose (see Parochial Bus Sys. v Bd. of Educ. of City of New York, 60 NY2d 539, 547 [1983]). Indeed, the Petition sufficiently alerts the BOE of these matters. Petitioner did not actually request leave until November 2010, and moving for leave to file a late notice of claim after the deadline's expiration may be considered untimely and fatal (see e.g. Tarquino v City of New York, 84 AD2d 265 [1982][untimely where leave to file a late notice of claim was not sought until almost four years after the subject accident, well beyond the ninety-day deadline for filing a notice of claim pursuant to General Municipal Law � 50-e in an action against the city]; Colon v City of New York, 116 Misc 2d 729, 731-732 [1982] [untimely where leave was not sought until nearly two years after the subject accident]). However, in light of petitioner's relatively short seven-day delay for providing respondent with actual notice, relatively short three-month delay for seeking leave, the sufficiently descriptive Petition which Gebran adequately served on respondent (see Pope v Hempstead Union Free School Dist. Bd of Educ., 194 AD2d 654, 656 [1993]), and the lack of substantial prejudice to respondent, the court will nevertheless consider the Petition sufficient to satisfy Gebran's statutory duty to provide respondent with notice of its claims (see Gelish v Dix Hills Water [*10]Dist., 58 AD3d 841, 842 [2009] [where serving notice of claim less than one month after the ninety day deadline was considered a reasonable and minimal delay that did not cause substantial prejudice]).
Turning to the merits of the Petition, under CPLR 7803 (3), the relevant question is "[w]hether a determination was made in violation of lawful procedure, was affected by error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed." Judicial review of an administrative determination brought by an Article 78 proceeding is "limited to the evaluation of whether that administrative determination is consistent with lawful procedures, whether it is arbitrary or capricious, and whether it is a reasonable exercise of the agency's discretion" (Matos v Hernandez, 10 Misc 3d 1068[A], 2005 NY Slip Op 52188[U], at *2-3, citing Matter of Pell v Board of Educ. of Union Free School Dist., 34 NY2d 222, 230-231 [1974]). Thus, a court may disturb a respondent's actions only if they were either arbitrary and capricious or lacked a rational basis (see Matter of Hughes v Doherty, 5 NY3d 100, 105 [2005] ["(u)nless the administrative agency's determinations were arbitrary or capricious, a court should not undermine its actions"] [internal citations omitted]; Matter of Pell, 34 NY2d at 231["where a determination is made and the person acting has not acted in excess of his jurisdiction, in violation of lawful procedure, arbitrarily, or in abuse of his discretionary power, including discretion as to the penalty imposed, the courts have no alternative but to confirm his determination"] [internal citations omitted]). "A rational or reasonable basis for the agency's determination exists if there is evidence in the record to supports its conclusion" (see Gill v Hernandez, 22 Misc 3d 390, 394 [2008], citing Sewell v New York, 182 AD3d 469, 473 [1992]). If the administrative determination is determined to be rational, the court must defer to the agency's interpretation of its own regulations in making its determination; however, if the court finds that the agency determination is rational, it may not substitute its judgment for that of the agency (see Howard v Wyman, 28 NY2d 434, 438 [1971]). Judicial review of an administrative determination is so deferential that courts have said the administrative determination "must be upheld unless it shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a matter of law'" (Mayes v Hernandez, 17 Misc 3d 1140[A], 2007 NY Slip Op 52351 [U], *4 [2007], citing Featherstone v Franco, 95 NY2d 550, 554 [2000]).
The Ratings Manual, which incorporates the Regulations of the Chancellor Regarding Ratings (former Bylaw Section 89.7) and has been upheld as binding law (see Budnick v New York City Dept. of Educ., 25 Misc 3d 1235[A], 2009 NY Slip Op 52425[U] [2009]; Smith v Board of Educ. of City School Dist. of City of NY, 18 Misc 3d 192 [2007]), states that "[w]ithin the last ten (10) days of each school year and not fewer that four (4) school days prior to the close thereof, the principal of each school shall give to each member of his/her staff a signed statement characterizing his/her work as Satisfactory or Unsatisfactory." Similarly, Article 21 (A) (1) of the CBA provides that "an incident which has not been reduced to writing within three months of its occurrence, exclusive of the summer vacation [*11]period, may not later be added to [a teacher's] file." Petitioner challenges the BOE's Final Determination as arbitrary and capricious because both the U-rating as well as the letters on which they were based were allegedly untimely: the "U" was issued in December 2008 (approximately six months after the end of the 2007-2008 school year for which petitioner was being rated), and the September 11th and 12th and December 12th Letters were placed in petitioner's file seven and ten months after their corresponding incidents, respectively.
Given the great deference afforded to administrative determinations, the court finds that "it [was] a reasonable exercise of the agency's discretion" (Matter of Social Serv. Empls. Union, Local 371 v New York City Bd. of Collective Bargaining, 47 AD3d 417, 418 [2008]) for the BOE to base its issuance of petitioner's U-rating on the September 11th and 12th and December 12th Letters, even though those letters were purportedly untimely. Upon petitioner's return to teaching the following school year, the BOE acted expeditiously to investigate and place letters regarding petitioner's incidents and absences in his file. Furthermore, the court agrees that the BOE's decision to toll the time period for investigating and placing the letters in petitioner's file, due to petitioner's taking of medical leave for the remainder of the 2007-2008 school year, was entitled to deference (see Red Apple Child Dev. Ctr. v Chancellor's Bd. of Review, 307 AD2d 815, 815 [2003] [where a rational basis exists, administrative agency's construction and interpretation of its own regulations are entitled to deference]; Powers v City of New York, 262 AD2d 246, 246 [1999] [same]).[FN3] In turn, the BOE similarly tolled the issuance of petitioner's rating until the underlying pending investigations and letters were finalized. The September 11th and 12th Letters found that Gebran had torn up two students' test papers during class (while yelling during the latter incident) and left the school building early without notifying Principal Aranyos or obtaining her consent. Similarly, the December 12th Letter found that his absences were excessive as defined by the school attendance policy. In the court's analysis, the letters provide ample rational basis for the Chancellor's Committee to conclude that Gebran's professional performance and attendance record were unsatisfactory, and for the court to conclude that the issuance of petitioner's U-rating was not arbitrary and capricious.
Additionally, petitioner's argument that the BOE's Final Determination must be [*12]annulled because Chairperson Hinds was impartial during the BOE Hearing is unavailing. Although petitioner claims that Chairperson Hinds improperly did not allow petitioner to question Diable regarding her statement that Principal Aranyos told her to issue the U-rating, petitioner presents no evidence of any such bias or predisposition against his favor. Thus, his allegations do not provide a insufficient basis to set the determination aside (see Chadha v County of Nassau, 248 AD2d 465, 466-467 [1998]; Kelsch v Walsh, 180 AD2d 683, 684 [1992]).
Petitioner's request for actual compensatory damages are also unpersuasive and moot.
Accordingly, petitioner's application for judgment pursuant to CPLR Article 78 annulling the BOE's Final Determination is denied and the Petition is dismissed. The court has considered petitioner's remaining arguments and finds them to be without merit.
The foregoing constitutes the decision, order, and judgment of the court.
E N T E R,
J. S. C.
Footnotes
Footnote 1: Petitioner additionally requested such leave in his reply papers, which is also improper (see Gover v Savyon, 26 Misc 3d 1124[A], 2009 NY Slip Op 52746[U], *4 [2009]; Tray Wrap, Inc. v Pacific Tomato Growers, Ltd., 18 Misc 3d 1122[A], 2008 NY Slip Op 50156[U], *21 [2008]).
Footnote 2: Education Law § 3813 (2-a) further provides that,
[i]n determining whether to grant the extension, the court shall consider, in particular, whether the district or school or its attorney or its insurance carrier or other agent acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one of this section or within a reasonable time thereafter . . . [and] all other relevant facts and circumstances, including: whether the claimant was an infant, or mentally or physically incapacitated, or died before the time limited for service of the notice of claim; whether the claimant failed to serve a timely notice of claim by reason of his justifiable reliance upon settlement representations made by an authorized representative of the district or school or its insurance carrier; whether the claimant in serving a notice of claim made an excusable error concerning the identity of the district or school against which the claim should be asserted; and whether the delay in serving the notice of claim substantially prejudiced the district or school in maintaining its defense on the merits."
Footnote 3: Contrary to petitioner's contentions, although the December 12th Letter was not placed in petitioner's file until a few months after the beginning of the 2008-2009 school year, this court cannot revisit the issue of its timeliness, since that was already determined at the time the Chancellor's Committee made its Final Determination. Likewise, the court may not revisit the determinations of whether respondent's informal observations in lieu of formal reviews were sufficient; whether Diable's issuance of the amended rating was legitimate; or whether petitioner received criticism or guidance after the incidents. Such matters are best determined by the relevant agency, to whose knowledge and experience the court must defer (see Trump on Ocean, LLC v Cortes-Vasquez, 76 AD3d 1080, 1093 [2010]; City of New York v Novello, 77 AD3d 514, 515 [2010]).
2011 NY Slip Op 50486(U)
Decided on March 7, 2011
Supreme Court, Kings County
Schmidt, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
is opinion is uncorrected and will not be published in the printed Official Reports.
Nagib Gebran, Petitioner,
against
New York City Department of Education, Respondent.
19140/10
Petitioner's Counsel: Michael Rhode, PO Box 20021, Park West Finance Station
Respondent's Counsel: Corporation Counsel, 100 Church Street NY NY by James Hallman Esq.
David I. Schmidt, J.
Upon the foregoing papers, petitioner Nagib Gebran (Gebran) moves for a judgment:
(1) pursuant to CPLR 7803 (3), annulling the "Unsatisfactory" teacher's rating ("U" or U-rating) he received on the Annual Professional Performance Review and Report on Probationary Service of Pedagogical Employee for the 2007-2008 school year or changing the U-rating to a "C" or "S" rating (and removing three particular untimely letters in support [*2]of the rating from file);
(2) declaring said determination arbitrary, capricious, and without rational basis in the record; and
(3) pursuant to CPLR 7806, awarding actual compensatory damages incidental to the U-rating, up to and including the full salary petitioner might have earned during the 2009-2010 school year in the amount of $95,200, and the costs and disbursements of this proceeding.
Respondent the New York City Board of Education (the BOE) (a/k/a, s/h/a, d/b/a the New York City Department of Education) cross-moves for an order, pursuant to CPLR 7804 (f) and 3211 (a) (7), dismissing the Petition on the grounds that (1) the Petition fails to state a cause of action that the decision to issue petitioner a U-rating was arbitrary, capricious, or unlawful, and (2) petitioner has failed to file a timely notice of claim against the BOE pursuant to New York Education Law 3813 (1).
FACTS AND PROCEDURAL HISTORY
Gebran is a tenured teacher at the New Horizons School, M.S. 442 (New Horizons) in Brooklyn, New York, where he has taught since 1985. He never received any unsatisfactory ratings during his annual performance reviews until the 2007-2008 school year. He commenced this Article 78 proceeding against the BOE to annul or change the U-rating he received for the 2007-2008 school year. Petitioner alleges that during the past few years, his medical problems have caused him to suffer seizures and that respondent has not accommodated his disability.
In September 2007, Gebran suffered a seizure while teaching and his medical condition forced him to take an approved medical leave of absence, which ran from approximately October 2007 until February 1, 2008. Petitioner then suffered a second seizure during class on February 15, 2008, which forced him to take a second approved medical leave of absence from February 16, 2008 through the remainder of the school year.
The February 25, 2008 Letter
Prior to taking leave, petitioner was involved in various incidents during the 2007-2008 school year for which respondent wrote letters to his personnel file. A February 25, 2008 letter (the February 25th Letter, annexed as Exhibit A to respondent's cross motion) concerned an event that occurred on February 1, 2008, when the Principal of New Horizons and petitioner's rating officer, Marylou Aranyos (Principal Aranyos), observed petitioner playing chess with his students during what should have been an instructional science class. The letter refers to a conference on February 7, 2008 that petitioner attended with union representative Lisa Merill to discuss the incident on February 1st. According to the letter, when asked why he engaged in this activity during instructional hours, Gebran responded, among other things, that he and his co-teacher had mutually agreed that chess would be a [*3]good incentive and motivation and that he had told his students they could play chess as a reward during the second portion of the two-period science class if they behaved. Gebran also testified that he was hired partly for his specialized knowledge of chess, which the school administration purportedly knew Gebran would be using to help teach math and science, given that Gebran possessed a patent on a chess set which combined chess with math and science.
Principal Aranyos concluded in the February 25th Letter that petitioner was in fact playing chess with his students during a scheduled science class. She called petitioner's behavior "unacceptable and unprofessional," and warned that such misconduct could "lead to further disciplinary action including an unsatisfactory rating and disciplinary charges that could lead to termination of [his] employment."
The September 11 and 12, 2008 Letters
Petitioner was also involved in various incidents on February 12, 13, and 14 that occurred during the 2007-2008 school year, prior to taking his medical leave. According to respondent, those matters could only be addressed when petitioner returned from leave, and petitioner was thus given a "C" rating in the interim for the 2007-2008 school year (see 2008 Annual Professional Performance Review, dated June 12, 2008, annexed as Exhibit 2 to the Petition). Petitioner claims that he never received the original rating form until after the BOE Hearing on January 5, 2010 (discussed further below) and was never informed that he was initially given a "C" rating.
Upon Gebran's return to teaching in September 2008, Principal Aranyos resumed her investigations into those incidents. Once complete, letters concerning the incidents were added to petitioner's file. First, respondent added to petitioner's file a letter, dated September 11, 2008 (the September 11th Letter, annexed as Exhibit 10 to the Petition), which related to the incidents on February 12 and 13. The September 11th Letter first addressed an incident on February 12th, in which petitioner tore up a student's test paper in front of the entire class and threw it in the garbage because the student was allegedly misbehaving. It also discussed an incident on February 13th, in which petitioner similarly tore up a second student's test in a different class that he taught.
After reviewing the allegations of both the February 12 and 13 incidents and the statements made at the September 5th Meeting (discussed further below), Principal Aranyos concluded that petitioner did in fact tear up both students' exams and throw them in the garbage, and that he also yelled at the student during the latter incident. In the September 11th Letter, Principal Aranyos indicated that "[petitioner's] actions created a serious endangerment to the students involved" and that "[petitioner] failed to utilize the ladder of referral which mandated that [he] contact the Dean if [he] was having problems with students [as outlined in the school handbook]."
Respondent submitted a second letter for petitioner's file, dated September 12, 2008 (the September 12th Letter, annexed as Exhibit 12 to Petition), which related to an incident on February 15, 2008 and referred to petitioner's "failure to follow proper procedure." The [*4]letter stated that petitioner left the school building fifty minutes early on February 15, 2008 without notifying Principal Aranyo or obtaining permission. According to the letter, Principal Aranyo apparently went to speak with Gebran in his classroom at about 1:30 p.m. on that date and was informed by his co-teacher that petitioner had put on his coat and stated that he would not be returning to school for the remainder of the year.
However, according to petitioner, he had suffered a seizure that day. He claims that he did not leave school early, but instead went to the teacher's lounge during the last period of the day, which was a scheduled "prep period" for him. Because he suspected that Principal Aranyos was harassing him for his seizures, he went to her office to request a meeting with his union leader and an attorney. In response, she "unnecessarily and improperly started yelling and screaming, help, security' when discussing the incident with [him]."
Both the September 11th and 12th Letters advised that his misconduct could "lead to further disciplinary action including an unsatisfactory rating" as well as termination of employment. Both letters also referenced a meeting on September 5, 2008 (the September 5th Meeting) which was attended by petitioner, Lisa Reiter (Reiter), his union representative, Principal Aranyos, and Assistant Principal Deanna Diable (Diable) to discuss the incidents that had occurred on February 12-14 and subsequent allegations of misconduct. The letters further explained that the meeting could not be held sooner because school was on mid-winter recess during the week of February 18, 2008, and petitioner was out on approved medical leave from February 25, 2008 through the remainder of the school year.
Petitioner's Grievance Re: the September 11th and 12th Letters
Petitioner filed a grievance on or about September 25, 2008, claiming that his rights pursuant to the collective bargaining agreement (the CBA) between the United Federation of Teachers (the UFT) and the BOE had been violated when the September 11th and 12th Letters were placed in his file over three months after the incidents occurred and well after the close of the school year. On or about October 2, 2008 (the October 2nd Meeting), petitioner and Reiter met with Principal Aranyo to discuss petitioner's grievance. In a letter dated October 2, 2008 (the Grievance Denial Letter), Principal Aranyo denied petitioner's grievance, stating, "I deny your grievance because I was unable to meet with you before September of 2008 since you were out of school on an unpaid medical leave of absence from February 23, 2008 through the end of the year."
Gebran appealed the grievance denial pursuant to the procedures in the CBA, and had an opportunity to be heard at a conference held on or about October 23, 2008 (the Grievance Conference). At the hearing, petitioner and his UFT representative, Arthur Solomon, argued that the BOE had violated the CBA because the letters regarding the February 2008 incidents were not added to petitioner's file within three months of their occurrence, as required under Article 21 (A) (1) of the CBA. However, Chancellor Joel I. Klein (Chancellor Klein) of the [*5]BOE denied the grievance in a letter, dated November 5, 2008, concluding that the school's administration was unable to investigate the incidents within three months because Gebran took a medical leave of absence immediately following the incidents (see Grievance Decision, annexed as Exhibit 9 to Petition). He further reasoned that, consistent with the objective of the three-month deadline to prevent delay in preparing materials to be placed in a personnel file, "the administration did not delay in that [Principal Aranyo] acted in an expeditious manner as soon as [petitioner] returned to work" (id.).
The UFT chose not to invoke arbitration under the provisions of the CBA to further challenge the BOE's decision to deny petitioner's grievance, but petitioner appealed the UFT's decision not to pursue arbitration. After hearing the appeal, the UFT still was not persuaded that petitioner's grievance merited arbitration, and opined that the administration acted properly in waiting until petitioner returned from medical leave to hold a meeting before writing a letter to his personnel file.
The December 12, 2008 Letter
The last letter in petitioner's file on which this proceeding is based is dated December 12, 2008 (the December 12th Letter, annexed as Exhibit 13 to Petition) and relates to petitioner's excessive absences. The letter states that petitioner was absent from work fifteen times during the 2007-2008 school year, specifically excluding the time periods from October 16, 2007 to January 31, 2008 and February 25, 2008 to June 30, 2008, when petitioner was on approved medical leave. At a conference on September 19, 2008 to discuss those absences, however, petitioner, who was again accompanied by Reiter, claimed that the absences were all "medically certified absences." After reviewing his attendance history and considering his responses at the conference, Principal Aranyo determined that his absences were "excessive as defined by the attached School Attendance Policy . . . [which] states that five or more absences per semester (10 or more per year) are considered to be excessive and will be reviewed for rating purposes." Gebran refused to sign the letter in acknowledgment.
The U-rating and the BOE's Determination
On or about December 16, 2008, petitioner received an amended U-rating on his 2008 Annual Review, with individual U-ratings in eleven out of the possible twenty-three qualities and skills categories. As Aranyo retired from the BOE sometime in December 2008, Diable signed and dated the amended rating form with her own name when she became principal during mid-December 2008. However, she later testified that the manner in which she signed the form was a mistake; she conceded that she should have instead signed former-principal Aranyo's name and included her own initials, since the former principal was the person that instructed her to issue the U-rating. When Diable presented the rating sheet to petitioner during an instructional period, he refused to sign it.
Petitioner challenged the U-rating and the placement of the supporting letters in his personnel file, but his grievance was denied after a hearing, pursuant to Section 4.3.2 of the New York City Department of Education Bylaws, which took place on or about January 5, 2010 (the BOE Hearing). The union declined to invoke arbitration for his grievance. [*6]Petitioner appealed to the Chancellor's Committee, but it denied his appeal and sustained the U-rating. The Deputy Chancellor, as the Chancellor's designee, adopted that recommendation on May 3, 2010, affirming the June 2008 decision to issue petitioner a U-rating for the 2007-2008 school year as a result of his poor professional performance and excessive absences (the Final Determination, annexed as Exhibit 1 to the Petition).
On or about August 10, 2010, petitioner commenced the instant Article 78 proceeding seeking to annul the December 16, 2008 U-rating he received for the 2007-2008 school year. Currently, petitioner is still away on medical leave.
THE PARTIES' CONTENTIONS
Initially, Gebran suggests that Chairperson Stephen Hinds (Chairperson Hinds), the hearing officer who presided over the BOE Hearing on January 5, 2010, was impartial because he pursued a cross-examination of petitioner and his union representative by himself, even though Diable declined to conduct any questioning of petitioner. Petitioner asserts that he worked a total of only five weeks during the 2007-2008 school year due to his medical problems, and should have been rated a "C," which he suggests is the appropriate rating used to rate teachers who could not be properly rated. Moreover, he contends that the "U" rating for the 2007-2008 school year was arbitrary and capricious because three of the four letters (the September 11th and 12th and December 12th Letters) on which the U-rating was based were not admissible, given that they were placed in his file over three months after the corresponding incidents occurred, and should be removed from his file as violative of Article 21 (A) (1) of the CBA. He further maintains that the rating was untimely because it was given to him six months after the end of the school year in question, rather than within the last four school days to ten days of the school year, as delineated in the Regulations of the Chancellor Regarding Ratings (former Bylaw Section 89.7).
Petitioner then argues that the U-rating was not properly authorized because it was unclear whether Aranyos or Diable was the principal on the date the rating was rendered. Also, he challenges the U-rating because he was not formally observed during that period and given the limited time that he was at work during that year. As a backdrop, he asserts that respondent allowed a work environment intolerant and hostile to his medical condition to exist and failed to provide the proper accommodations for his medical condition as required by law. Finally, petitioner argues that he should be awarded compensatory damages incidental to the U-rating, upon annulment of the U-rating, because he had to take multiple unpaid Leaves of Absence for Restoration of Health in 2009 and 2010 in order to avoid working in a hostile and stressful environment at New Horizons, and because the "U" on his record made it difficult or impossible for him to transfer to another school.
The BOE cross-moves to dismiss the Petition, arguing that it fails to state a cause of action for annulling the U-rating, since it was supported by a number of letters regarding various incidents during the 2007-2008 school year. In that respect, the BOE asserts that, although petitioner disagrees with the account of the incidents and resulting letters, he does not dispute the fact that the U-rating was based substantially on those letters. Respondent [*7]further indicates that, although the Petition alleges that the BOE improperly allowed the letters regarding the February incidents to be added to petitioner's file, it does not deny that the incidents of unprofessional conduct occurred. With regard to petitioner's claims that the amended U-rating was untimely issued, respondent avers that the deadlines cited by petitioner in the handbook "Rating Pedagogical Staff Members" (the Ratings Manual, annexed as Exhibit 6 to Petition) are not mandatory. Lastly, the BOE contends that petitioner's claims are barred because he failed to file a timely notice of claim pursuant to Section 3813 of the Education Law within three months of the BOE's Final Determination on May 3, 2010.
Petitioner opposes respondent's cross motion on the grounds that he has indeed filed an application to extend the time to serve the notice of claim by seven days to August 10, 2010 by requesting that the court deem, nunc pro tunc, his Petition a notice of claim. In any event, petitioner maintains that he seeks to vindicate certain public interests which preclude him from having to comply with the notice of claim requirements under Education Law � 3813. He avers that his rating was not authorized to be amended by anyone other than the designated rating officer for the 2007-2008 school year, and that such an issue qualifies as a constitutionally protected right to continued employment.
DISCUSSION
At the outset, the court first addresses the BOE's cross motion to dismiss the Petition based on petitioner's failure to file a notice of claim within three months after the accrual of his claims. Section 3813, subdivision 1, of the Education Law provides, in relevant part:
"1. No action or special proceeding, for any cause whatever ... shall be prosecuted or maintained against any school district, board of education, [or] board of cooperative educational services . . . or any officer of a school district, board of education, [or] board of cooperative educational services ... unless it shall appear by and as an allegation in the complaint or necessary moving papers that a written verified claim upon which such action . . . is founded was presented to the governing body of said district ... within three months after the accrual of such claim, and that the . . . body having the power to adjust or pay said claim has neglected or refused to make an adjustment or payment."
As the Court of Appeals has interpreted the statute, "[t]he Legislature has spoken unequivocally that no action or proceeding may be prosecuted or maintained against any school district or board of education unless a notice of claim has been presented to the governing body,' and this court may not disregard its pronouncement" (Parochial Bus Sys., Inc. v Bd. of Educ., 60 NY2d 539, 549, [1983] [citations omitted]). The petitioner bears the burden of pleading and proving that he or she filed a notice of claim within three months after the accrual of his or her claim (see C.S.A Contr. Corp. v New York City School Constr. Auth., 5 NY3d 189, 192 [2005]; Stoetzel v Wappingers Cent. School Dist., 166 AD2d 643, 644 [1990]). Although the failure to present notice of a claim within ninety days of its accrual is generally a fatal defect, an exception has been carved out for actions which seek [*8]vindication of a public interest, as opposed to actions that seek the enforcement of private rights (see Biggers v Brookhaven Comsewogue Union Free School Dist., 127 F Supp 2d 452, 455 [SDNY 2001], citing Union Free School Dist. No. 6 of Towns of Islip & Smithtown v New York State Human Rights Appeal Bd., 35 NY2d 371, 379 80 [1974]). Thus, a notice of claim pursuant to Education Law § 3813 (1) is not a condition precedent to an Article 78 proceeding seeking to vindicate a public interest (see Matter of Cayuga Onondaga Counties Bd. of Coop. Educ. Servs. v Sweeney, 89 NY2d 395, 400 [1996]; Kight v Wyandanch Union Free School Dist., 84 AD2d 749 [1981], affd 56 NY2d 606 [1982]). Although "[a]ll actions brought to enforce civil rights can be said to be in the public interest" (Mills v County of Monroe, 59 NY2d 307, 311, [1983], cert denied, 464 US 1018 [1983]), "actions that are brought to protect an important right, which seek relief for a similarly situated class of the public, and whose resolution would directly affect the rights of that class or group" are deserving of special treatment, such as relief from the notice requirement (see Id. at 311-12).
Here, the BOE's Determination affirmed petitioner's U-rating on May 3, 2010, and petitioner was required to file a notice of claim no later than August 3, 2010, which was three months after his claims regarding the U-rating accrued. However, petitioner has not proven that he filed a notice of claim at any time prior to commencing this proceeding. First, petitioner's argument that he is not bound by the notice of claim requirement lacks merit. In his Petition, Gebran seeks a monetary award of $95,200 in actual compensatory damages for the full salary petitioner might have earned during the 2009-2010 school year, as well as costs and disbursements, and "[s]uch other relief as this Court may deem just and proper." Courts have consistently held that where a party demands money damages they are seeking "resolution of a private dispute and not the vindication of an important public right" (Hermele v Union Free School Dist. No. 23,167 AD2d 512 513 [1990]; Matter of McClellan v Alexander Cent. School Bd. of Educ., 201 AD2d 898, 898-899 [1994] [where petitioner sought the vindication of his private rights to back pay and benefits, in addition to his reinstatement as a vindication of a public interest, he was not exempt from the notice of claim requirements under Education Law � 3813]; Matter of Vail v Board of Coop. Educ. Servs., 115 AD2d 231 [1985]; W v City of New York, 24 Misc 3d 1224[A], 2009 NY Slip Op 51606[U], *8 [2009]). Although petitioner argues that the discriminatory nature of his claims, generally, is relevant to the public interest, this action seeks relief only for claims relating to his U-rating, and the money damages sought are to redress his own lost wages. "Inasmuch as the disposition of plaintiff's claim was not intended to nor could it directly affect or vindicate the rights of others, [his] action is properly characterized as one seeking the enforcement of private rights" (Mills, 59 NY2d at 312). Therefore, petitioner is not exempt from the notice of claim requirements under Education Law § 3813 (1).
Gebran then requests in his Application to Extend the Time to Serve a Notice of Claim that the court extend his deadline by seven days to August 10, 2010 and treat his Petition as a notice of claim. However, that application was not made until approximately November [*9]26, 2010.[FN1] In any event, where an application for leave to file a late notice of claim is timely, the court has discretion to extend the time for petitioner to file a notice of claim, as long as such an extension would not exceed the four-month statute of limitations applicable to Article 78 proceedings (see Education Law § 3813 [2-a], [2-b]), which the extension herein would not.[FN2] Insofar as petitioner requests that the court deem the Petition a notice of claim, courts have stated that a defendant is put on notice of claims asserted against it when the essential elements thereof are communicated to the defendant, including the nature of the claim, the time when, the place where, and the manner in which the claim arose (see Parochial Bus Sys. v Bd. of Educ. of City of New York, 60 NY2d 539, 547 [1983]). Indeed, the Petition sufficiently alerts the BOE of these matters. Petitioner did not actually request leave until November 2010, and moving for leave to file a late notice of claim after the deadline's expiration may be considered untimely and fatal (see e.g. Tarquino v City of New York, 84 AD2d 265 [1982][untimely where leave to file a late notice of claim was not sought until almost four years after the subject accident, well beyond the ninety-day deadline for filing a notice of claim pursuant to General Municipal Law � 50-e in an action against the city]; Colon v City of New York, 116 Misc 2d 729, 731-732 [1982] [untimely where leave was not sought until nearly two years after the subject accident]). However, in light of petitioner's relatively short seven-day delay for providing respondent with actual notice, relatively short three-month delay for seeking leave, the sufficiently descriptive Petition which Gebran adequately served on respondent (see Pope v Hempstead Union Free School Dist. Bd of Educ., 194 AD2d 654, 656 [1993]), and the lack of substantial prejudice to respondent, the court will nevertheless consider the Petition sufficient to satisfy Gebran's statutory duty to provide respondent with notice of its claims (see Gelish v Dix Hills Water [*10]Dist., 58 AD3d 841, 842 [2009] [where serving notice of claim less than one month after the ninety day deadline was considered a reasonable and minimal delay that did not cause substantial prejudice]).
Turning to the merits of the Petition, under CPLR 7803 (3), the relevant question is "[w]hether a determination was made in violation of lawful procedure, was affected by error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed." Judicial review of an administrative determination brought by an Article 78 proceeding is "limited to the evaluation of whether that administrative determination is consistent with lawful procedures, whether it is arbitrary or capricious, and whether it is a reasonable exercise of the agency's discretion" (Matos v Hernandez, 10 Misc 3d 1068[A], 2005 NY Slip Op 52188[U], at *2-3, citing Matter of Pell v Board of Educ. of Union Free School Dist., 34 NY2d 222, 230-231 [1974]). Thus, a court may disturb a respondent's actions only if they were either arbitrary and capricious or lacked a rational basis (see Matter of Hughes v Doherty, 5 NY3d 100, 105 [2005] ["(u)nless the administrative agency's determinations were arbitrary or capricious, a court should not undermine its actions"] [internal citations omitted]; Matter of Pell, 34 NY2d at 231["where a determination is made and the person acting has not acted in excess of his jurisdiction, in violation of lawful procedure, arbitrarily, or in abuse of his discretionary power, including discretion as to the penalty imposed, the courts have no alternative but to confirm his determination"] [internal citations omitted]). "A rational or reasonable basis for the agency's determination exists if there is evidence in the record to supports its conclusion" (see Gill v Hernandez, 22 Misc 3d 390, 394 [2008], citing Sewell v New York, 182 AD3d 469, 473 [1992]). If the administrative determination is determined to be rational, the court must defer to the agency's interpretation of its own regulations in making its determination; however, if the court finds that the agency determination is rational, it may not substitute its judgment for that of the agency (see Howard v Wyman, 28 NY2d 434, 438 [1971]). Judicial review of an administrative determination is so deferential that courts have said the administrative determination "must be upheld unless it shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a matter of law'" (Mayes v Hernandez, 17 Misc 3d 1140[A], 2007 NY Slip Op 52351 [U], *4 [2007], citing Featherstone v Franco, 95 NY2d 550, 554 [2000]).
The Ratings Manual, which incorporates the Regulations of the Chancellor Regarding Ratings (former Bylaw Section 89.7) and has been upheld as binding law (see Budnick v New York City Dept. of Educ., 25 Misc 3d 1235[A], 2009 NY Slip Op 52425[U] [2009]; Smith v Board of Educ. of City School Dist. of City of NY, 18 Misc 3d 192 [2007]), states that "[w]ithin the last ten (10) days of each school year and not fewer that four (4) school days prior to the close thereof, the principal of each school shall give to each member of his/her staff a signed statement characterizing his/her work as Satisfactory or Unsatisfactory." Similarly, Article 21 (A) (1) of the CBA provides that "an incident which has not been reduced to writing within three months of its occurrence, exclusive of the summer vacation [*11]period, may not later be added to [a teacher's] file." Petitioner challenges the BOE's Final Determination as arbitrary and capricious because both the U-rating as well as the letters on which they were based were allegedly untimely: the "U" was issued in December 2008 (approximately six months after the end of the 2007-2008 school year for which petitioner was being rated), and the September 11th and 12th and December 12th Letters were placed in petitioner's file seven and ten months after their corresponding incidents, respectively.
Given the great deference afforded to administrative determinations, the court finds that "it [was] a reasonable exercise of the agency's discretion" (Matter of Social Serv. Empls. Union, Local 371 v New York City Bd. of Collective Bargaining, 47 AD3d 417, 418 [2008]) for the BOE to base its issuance of petitioner's U-rating on the September 11th and 12th and December 12th Letters, even though those letters were purportedly untimely. Upon petitioner's return to teaching the following school year, the BOE acted expeditiously to investigate and place letters regarding petitioner's incidents and absences in his file. Furthermore, the court agrees that the BOE's decision to toll the time period for investigating and placing the letters in petitioner's file, due to petitioner's taking of medical leave for the remainder of the 2007-2008 school year, was entitled to deference (see Red Apple Child Dev. Ctr. v Chancellor's Bd. of Review, 307 AD2d 815, 815 [2003] [where a rational basis exists, administrative agency's construction and interpretation of its own regulations are entitled to deference]; Powers v City of New York, 262 AD2d 246, 246 [1999] [same]).[FN3] In turn, the BOE similarly tolled the issuance of petitioner's rating until the underlying pending investigations and letters were finalized. The September 11th and 12th Letters found that Gebran had torn up two students' test papers during class (while yelling during the latter incident) and left the school building early without notifying Principal Aranyos or obtaining her consent. Similarly, the December 12th Letter found that his absences were excessive as defined by the school attendance policy. In the court's analysis, the letters provide ample rational basis for the Chancellor's Committee to conclude that Gebran's professional performance and attendance record were unsatisfactory, and for the court to conclude that the issuance of petitioner's U-rating was not arbitrary and capricious.
Additionally, petitioner's argument that the BOE's Final Determination must be [*12]annulled because Chairperson Hinds was impartial during the BOE Hearing is unavailing. Although petitioner claims that Chairperson Hinds improperly did not allow petitioner to question Diable regarding her statement that Principal Aranyos told her to issue the U-rating, petitioner presents no evidence of any such bias or predisposition against his favor. Thus, his allegations do not provide a insufficient basis to set the determination aside (see Chadha v County of Nassau, 248 AD2d 465, 466-467 [1998]; Kelsch v Walsh, 180 AD2d 683, 684 [1992]).
Petitioner's request for actual compensatory damages are also unpersuasive and moot.
Accordingly, petitioner's application for judgment pursuant to CPLR Article 78 annulling the BOE's Final Determination is denied and the Petition is dismissed. The court has considered petitioner's remaining arguments and finds them to be without merit.
The foregoing constitutes the decision, order, and judgment of the court.
E N T E R,
J. S. C.
Footnotes
Footnote 1: Petitioner additionally requested such leave in his reply papers, which is also improper (see Gover v Savyon, 26 Misc 3d 1124[A], 2009 NY Slip Op 52746[U], *4 [2009]; Tray Wrap, Inc. v Pacific Tomato Growers, Ltd., 18 Misc 3d 1122[A], 2008 NY Slip Op 50156[U], *21 [2008]).
Footnote 2: Education Law § 3813 (2-a) further provides that,
[i]n determining whether to grant the extension, the court shall consider, in particular, whether the district or school or its attorney or its insurance carrier or other agent acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one of this section or within a reasonable time thereafter . . . [and] all other relevant facts and circumstances, including: whether the claimant was an infant, or mentally or physically incapacitated, or died before the time limited for service of the notice of claim; whether the claimant failed to serve a timely notice of claim by reason of his justifiable reliance upon settlement representations made by an authorized representative of the district or school or its insurance carrier; whether the claimant in serving a notice of claim made an excusable error concerning the identity of the district or school against which the claim should be asserted; and whether the delay in serving the notice of claim substantially prejudiced the district or school in maintaining its defense on the merits."
Footnote 3: Contrary to petitioner's contentions, although the December 12th Letter was not placed in petitioner's file until a few months after the beginning of the 2008-2009 school year, this court cannot revisit the issue of its timeliness, since that was already determined at the time the Chancellor's Committee made its Final Determination. Likewise, the court may not revisit the determinations of whether respondent's informal observations in lieu of formal reviews were sufficient; whether Diable's issuance of the amended rating was legitimate; or whether petitioner received criticism or guidance after the incidents. Such matters are best determined by the relevant agency, to whose knowledge and experience the court must defer (see Trump on Ocean, LLC v Cortes-Vasquez, 76 AD3d 1080, 1093 [2010]; City of New York v Novello, 77 AD3d 514, 515 [2010]).
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