Shango Blake Loses His Appeal After Being Terminated

Mr. Shango Blake was Principal of I.S. 109, and was accused of stealing money, assaulting a child, even running into two teachers with his car. He was terminated by the New York City Department of Education, and then he appealed to New York State.
Below is the decision of Commissioner Mills - who says no, you are not getting your job back.

Appeal of SHANGO BLAKE, from the determination of Joel I. Klein, Chancellor of the New York City Department of Education, to implement an arbitrator’s decision to terminate him as Principal of I.S. 109.

Decision No. 15,856
(December 18, 2008)

Bernbach Law Firm PLLC, attorneys for petitioner, Jeffrey M. Bernbach, Esq., of counsel

Michael A. Cardozo, Esq., Corporation Counsel, attorney for respondent, Robert Katz, Esq., of counsel

MILLS, Commissioner.--Petitioner (also referred to as “appellant”) appeals the determination of Joel Klein, Chancellor of the New York City Department of Education (“the Chancellor” or “respondent”), implementing an arbitrator’s decision to terminate petitioner from his position as Principal of I.S. 109. The appeal must be dismissed.

In January 2000, the New York State Legislature amended Education Law §3020 by adding a new subdivision three, which authorizes the City School District of the City of New York (“District”) and any employee organization representing employees or titles that are or were covered by any memorandum of agreement executed by the District and the Council of Supervisors and Administrators of the City of New York (the “Council”), on or after December 1, 1999, to negotiate agreements that modify or replace the procedures set forth in Education Law §§3020-a and 2590-j(7). It further provides that the Commissioner shall review any appeals brought according to the terms of such agreements.

Pursuant to Education Law §3020(3), on December 16, 1999, the Council and the District entered into an initial agreement providing for modified disciplinary procedures. The parties then entered into a successor agreement (the “Agreement”), dated April 20, 2007, covering July 1, 2003 through March 5, 2010. For allegations of misconduct with respect to principals, the parties, in Article VII(J)(4)(a) of the Agreement, established modified disciplinary procedures. Specifically, the Agreement provides that at the principal’s option, allegations of misconduct may be presented to an impartial arbitrator who will decide whether just cause exists for the proposed action. Thereafter, the Chancellor may, at the request of the principal, review the arbitrator’s decision. If the Chancellor implements the arbitrator’s decision against the principal, the principal may then apply to the Commissioner for review of the arbitrator’s decision.

Pursuant to the Agreement, a written notice of specifications of misconduct and proposed adverse action was prepared and served on petitioner, alleging that petitioner engaged in conduct unbecoming his position, neglect of duties, and criminal conduct. Petitioner was charged with 14 specifications of misconduct including, but not limited to, allegations of financial wrongdoing, an allegation of corporal punishment against a student, failing to report an incident, hindering an investigation and causing widespread negative publicity to the District.

An arbitration hearing was subsequently conducted on several dates in February, March, April, May and June 2008, and the arbitrator rendered his final decision on September 30, 2008. The arbitrator found petitioner guilty of the charges alleged in specifications 2(b), (c), (d), (e), (f) and (g), 4(e) and (f), 5(a) and (b), 6(a) and (b), 7(a) and (b), 8(a) through (h), and 11 [throwing or pushing a student into a radiator, threatening the student by stating words to the effect of “don’t you f****** say something about my son or I’ll break your neck” and punching and choking the student], but not guilty as to the remaining specifications. He concluded that petitioner should be terminated from his position as Principal of I.S. 109, based on the corporal punishment of the student.

Upon receipt of the decision, petitioner requested the Chancellor’s review of the arbitrator’s findings and conclusion that petitioner should be terminated from his position for inflicting corporal punishment on a student.

By decision dated October 24, 2008, the Chancellor agreed with the arbitrator’s determination and decided to implement it.[1] Petitioner then commenced this appeal by serving the Community Superintendent and the Chancellor on October 30 and 31, respectively, at their offices. Petitioner requests that I reverse the Chancellor’s decision and the arbitrator’s determination to terminate petitioner from employment, for inflicting corporal punishment on a student, on the grounds that they are irrational, arbitrary and capricious and unsupported by substantial evidence.

Initially, I must address whether service of this appeal was proper. Section 281.6 of the Commissioner’s regulations specifically addresses the service requirements for appeals to the Commissioner pursuant to Education Law §3020(3). Section 281.6 provides, in pertinent part, that an appellant shall institute an appeal to the Commissioner by effecting personal service of a copy of the appeal upon;

1. the chancellor, or a person designated to accept service on behalf of the chancellor; and
2. the community school district superintendent who initiated the arbitration proceeding, or a person in the office of such superintendent who has been designated to accept service.

In this case, the affidavits of service reflect that petitioner served the appeal on Monica Davis, a clerk to the Chancellor, and Camelia Brogdan-Cruz, the District Family Administrator for District 29. Respondent maintains that these persons are not authorized or designated to accept service on behalf of the Chancellor or the superintendent, and that the only agent authorized to accept service on their behalf is the New York City Law Department. It is undisputed that petitioner failed to serve the Law Department. Therefore, I am constrained to dismiss the appeal for improper service (Appeal of Tchoukanine, 47 Ed Dept 334, Decision No. 15,715; Appeal of Harmon, 43 id. 478, Decision No. 15,057; Appeal of Malley, 31 id. 149; Decision No. 12,601).

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. The issues in this appeal are whether the arbitrator’s finding of guilt on the corporal punishment charge is supported by the record and whether that finding warrants termination. I find that the record supports both the finding of guilt and the penalty.

This case turns on the credibility of petitioner, the student and the other witnesses who testified before the arbitrator. The Commissioner will not ordinarily substitute his judgment for that of a hearing officer with respect to the credibility of witnesses (Appeal of Morrison, 39 Ed Dept Rep 675, Decision No. 14,346; Appeal of Grihin, 38 id. 399, Decision No. 14,064; Appeal of Bd. of Ed. of Community School District #22, 30 id. 238, Decision No. 12,448). In order for the Commissioner to substitute his judgment for that of a hearing officer, there must be clear and convincing evidence that the hearing officer’s determination of credibility is inconsistent with the facts, or that the hearing officer’s decision is contrary to the weight of evidence and the hearing officer has not adequately explained his rejection of otherwise convincing testimony (Appeal of Morrison, 39 Ed Dept Rep 675, Decision No. 14,346; Appeal of Gibbs, 33 id. 684, Decision No. 13,196; Appeal of the Bd. of Ed. of Community School District No. 2, 32 id. 391, Decision No. 12,864). Upon my review of the record, I find no reason to substitute my judgment for the arbitrator’s determinations regarding the witnesses’ credibility or his factual findings based thereon.

The arbitrator heard testimony from a number of witnesses for both sides, including petitioner. A review of the arbitrator’s 68-page decision reveals that he assessed and evaluated the testimony of all witnesses, including petitioner, and provided detailed reasons for crediting certain testimony and not others. The arbitrator’s decision summarized each party’s position, discussed every specification individually, outlined both sides’ arguments and referred to specific pages of the more than 3,300-page transcript to support his determination.

With respect to the corporal punishment charge, the arbitrator credited the testimony of the student and the District’s witnesses. The student testified that on June 26, 2006, petitioner pushed the student’s hat off his head and threw it to the floor, that “he pulled [him] to the radiator and ... choked [him]”. The student then testified that petitioner told him “‘you say anything about my son again, I’m going to break your neck,’ and he started punching [him] with his arms.” According to the student, petitioner then punched him in the chest. After the incident, the student testified that he looked at the two other eye-witnesses, Troy Edwards (“T.E.”) and James Holder (“J.H.”), and said “‘you’re not going to do anything about this?’” and petitioner said to T.E. and J.H., “‘did you see anything’” and both replied, “‘no, I didn’t see nothing. I don’t have a problem.’” When the student returned home that day, he testified that he noticed red marks on his neck. The student’s written statement supports his testimony to the extent he indicates that petitioner threw him into the radiator, punched him in the chest and choked him.

In addition, the student’s recollection of the events that day was corroborated by other witnesses. Linette Edwards (L.E.), petitioner’s secretary, was seated at her desk outside the principal’s conference room and she testified that she heard petitioner say to the student “‘if you threaten my son, I’ll break your damn neck’”. After they exited the conference room, L.E. also heard petitioner say “‘I didn’t see or hear anything, [J.H.], did you” even before the student made any accusation that petitioner had punched or choked him. When the student heard J.H. say he didn’t say or hear anything, L.E. testified that the student asked J.H. how he could lie and stated, “‘you know you saw [petitioner] choke me.’” She further testified to observing fingerprint marks on the student’s neck.

Ernest Alvarez, the program director at Project HOPE, a program that the student attended regularly, testified that when the student arrived at the program on June 26th, he observed fingerprints on the student’s neck and when he asked the student “what happened to your neck?”; the student told him that petitioner grabbed him.

Moreover, two other employees at the school testified that petitioner admitted that he choked the student. Susan Druss, the Purchasing Secretary at the school, testified that two days after the incident petitioner called her into a conference room and brought up the incident with the student. At this time, petitioner told her that he lost it and blacked out and that he “put [the student] up against the wall, and ... choked him until he couldn’t breathe.” In addition, Tesha Forbes, the School Treasurer, testified that on June 30, 2006, petitioner called her into the main office and raised the incident and explained that “he didn’t realize it, but he went off on [the student] ... [and] started to choke him”.

Even though petitioner denies pushing, punching or choking the student and two other eye-witnesses, J.H. and T.E., deny that petitioner had any physical contact with the student, the arbitrator chose to credit the testimony of the student and the District’s witnesses, and upon my review, I find no basis to disturb the arbitrator’s determination, which I find to be supported by the preponderance of the evidence.

Moreover, I find no merit to petitioner’s argument that the Chancellor improperly relied upon the arbitrator’s decision because the arbitrator made two erroneous statements in his determination. While I agree that the arbitrator misstated that T.E. testified that petitioner “screamed he would break [the] student’s neck”[2] and that petitioner testified that he “was not angered by [the student] when he threatened [petitioner’s] son”, I find that these misstatements did not affect his overall findings, and any error in the language of the decision was de minimis.

In determining whether to substitute my judgment for that of hearing officer, the standard is whether the discipline imposed is proportionate to the offense (Matter of Mockler v. Ambach, 79 AD 2d 745, lv to app den 53 NY 2d 603; Appeal of the Bd. of Educ., Wellsville CSD, 35 Ed Dept Rep 523, Decision No. 13,620; Appeal of the Bd. of Ed., City School District of the City of New York, 35 id. 35, Decision No. 13,455). An appropriate penalty should underscore the inappropriateness of the conduct and serve as a warning against future improper conduct (Appeal of the Bd. of Educ., Greenburgh CSD No. 7, 34 Ed Dept Rep 506, Decision No. 13,397). The verbal and physical abuse of a student by an administrator is wholly inappropriate and intolerable. In light of the seriousness of petitioner’s conduct, I find that termination of his employment is warranted, and I will not substitute my judgment for the penalty imposed by the arbitrator and Chancellor (see Matter of Pell v Bd. of Educ., 34 NY2d 222, 233; Appeal of Blumenblatt, 33 Ed Dept Rep 249, Decision No. 13,041).

In light of the foregoing disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE
[1]I note that the Chancellor’s decision refers to the prior collective bargaining agreement entered into on December 16, 1999; however, a review of that agreement and its successor agreement reveal that the terms of both agreements relating to modified disciplinary procedures for principals are substantially the same.

[2]The entire statement reads “[Petitioner’s] own witness Troy Edwards confirmed [petitioner] was angry in the face of [the student’s] threat. Troy Edwards agrees [petitioner] screamed he would ‘break [the student’s neck’, if [the student] threatened his son.”

More on Blake:

New York City Board of Education Reports That Principal Shango Blake Misused School Funds and Punched a Student


October 14, 2007
Queens Village
The Two Shango Blakes
By EMILY BRADY, NY TIMES

ONE of the unusual works at last year’s Tribeca Film Festival was a rap video titled “Tuck That Shirt In” that was written, produced and performed by the students, parents and staff of Intermediate School 109 in Queens Village.

The star of the video is Shango Blake, the school’s 37-year-old principal. Mr. Blake, who is built like an N.F.L. linebacker, is seen bobbing down a school hallway, dressed in a sharp black suit and gold tie, rapping about the school uniforms he established when he took over in 2003.

The uniforms — pastel shirts neatly tucked into navy blue pants or skirts — symbolize the changes Mr. Blake has been credited with bringing to the school. After his arrival four years ago, reading and math scores increased, and new programs, like the one that used the production of rap videos as a learning tool, were introduced.

As one student raps at the end of the video, “Mr. Blake changed the school we call 109; now we look like the school where it’s time to shine.”

In the two years since the video was made, Mr. Blake’s professional role has continued off camera — and lately it has taken a dark turn.

In a report issued Aug. 13, the Office of Special Investigations of the city’s Department of Education found that Mr. Blake had mismanaged more than $30,000 in school funds, most of which had been collected from parents and students for school lunches, class trips and graduation events. The report, which followed an 18-month investigation, also said that Mr. Blake had punched and choked a 13-year-old student who had made negative remarks about Mr. Blake’s son.

After the findings were issued, Schools Chancellor Joel Klein — who made a cameo appearance in “Tuck That Shirt In” — suspended Mr. Blake and began proceedings to fire him.

The story might have ended there were it not for a large group of parents, community leaders and elected officials who are rallying around Mr. Blake and demanding that he be reinstated and allowed to defend himself.

“We take pride in Shango,” Archie Spigner, a former city councilman from southeast Queens, said this month. “He’s to be commended, not condemned.”

And Representative Gregory Meeks of Queens is so supportive of Mr. Blake that he honored him with an Educator’s Award at an Oct. 5 fund-raising dinner in Queens Village at which Gov. Eliot Spitzer was the guest speaker. Before an audience of 800 that included two dozen I.S. 109 students, Mr. Blake was given a plaque and a standing ovation.

“We don’t know what the facts are, other than he turned the school around, the parents love him and want him back, the kids love him and want him back and the community loves him and wants him back,” Mr. Meeks said after the event. “He’s worth fighting for.”

These feelings are shared by many other local officials, seven of whom, including Mr. Meeks, sent a joint letter to Mr. Klein on Sept. 13 saying Mr. Blake had been denied due process and should be reinstated immediately.

Jeffrey Bernbach, Mr. Blake’s lawyer, described the charge involving the misuse of funds as “absolutely untrue.” As for the accusation of assaulting a student, Mr. Bernbach said, “He doesn’t deny he became angry and yelled at the kid, but he never laid a hand on him.”

According to Dina Paul Parks, a spokeswoman for the Department of Education, Mr. Blake will have a chance to defend himself at a disciplinary hearing. No date for the hearing has been set.

Meanwhile, with a new interim principal in place at I.S. 109, many parents are afraid that changes instituted under Mr. Blake will disappear.

“We don’t see the same vigilance now,” said Kangela Moore, president of the school’s Parents’ Association and the mother of a seventh grader. In recent weeks, Ms. Moore said, the number of fights outside the school has increased; she attributes the increase to Mr. Blake’s not being there to patrol the block as he used to.

An emergency parents’ meeting was held after a fight in a school hallway on Oct. 5 left one student with a concussion, Ms. Moore said, and two seventh graders were subsequently arrested.

In response, Ms. Parks said that while she understands parents’ concerns, she is confident in the acting principal, Miatheresa Tate.

Ms. Moore said that she had faxed to the chancellor’s office letters from 600 parents in support of Mr. Blake, and that more than 400 parents showed up at a prayer vigil held in the principal’s honor at the Embury United Methodist Church in Jamaica.

“The overwhelming sentiment was that we need him to come back to the school,” Ms. Moore said. “We needed him back, like, yesterday.”

'SKIMMING' KIDS' MILK MONEY
By YOAV GONEN, New York Post
LINK

August 14, 2007 -- A flamboyant Queens principal who has been hailed by Chancellor Joel Klein once used students' lunch money to help foot the bill for limos to the premiere of a school-produced rap video, investigators charged yesterday.

School probers said the funds were among more than $30,000 misappropriated by Shango Blake, the four-year principal of IS 109.

Blake, 37, of Queens, allegedly misused funds he had collected from students and parents for school lunches, snacks and graduation expenses between May 2005 and June 2006.

"Shango Blake's financial mismanagement and inappropriate conduct makes it clear that he has no place in New York City public schools," concluded the report by the Office of the Special Commissioner of Investigation.

The report found that even as the school was accumulating more than $18,000 in debts to the Office of School Food, its treasurer was handing Blake up to $600 in cash per week to pay various other expenses. There is no indication he used any of the funds for himself.

When education officials asked Blake about the lack of payments, he reportedly said he had spent money on limousines to shuttle students to the premiere of the hip-hop video, "Tuck That Shirt In."

The video was screened at the 2006 Tribeca Film Festival.

Investigators found nearly $11,500 in expenses tied to that school digital production, as well as another.

Department of Education spokeswoman Dina Paul Parks said the agency was taking steps to ax Blake.

Reached by phone, Blake's wife declined to comment.

Officials also charge that the principal is a bully.

Blake, who was once cited by Klein for improving school safety, punched, choked and threatened a 13-year-old student last year for making remarks about his son, who also attended IS 109, officials said.

According to the report, the unidentified student told investigators that after being confronted by Blake about a discipline problem, he made a passing remark about Blake's son that set the principal off.

The student claimed that in the presence of two school employees, Blake threw him against a radiator and threatened to break his neck if he mentioned his son again.

When Blake challenged him to repeat the remark, the student did - leading Blake to punch him in the chest three times, grab his neck and choke him, the student said. While Blake and the two employees refuted the student's version of events, investigators found witnesses who corroborated the account.

Additional reporting by John Mazor and Erin Calabrese

yoav.gonen@nypost.com

Principal To Be Removed After Beating, Theft Accusations
By ELIZABETH GREEN, Staff Reporter of the Sun | August 14, 2007
LINK

A Queens principal accused of using corporal punishment against a student who insulted his son and misusing thousands of dollars in students' lunch money is being removed from his middle school weeks before school starts, the Department of Education said yesterday.

The student who was allegedly attacked, a 13-year-old male, was first sent to his principal's office for using "the �f' word" over a cafeteria sound system late last June, the report said. While walking out of the office after being reprimanded, the 13-year-old told investigators he said to the principal, Shango Blake, "Have a good life you and your son."

He said Mr. Blake then punched him three times in the chest and choked him, leaving fingernail marks on his neck that were observed by several witnesses, according to the report.

Mr. Blake's son also attended the middle school, the Jean Nuzzi Intermediate School, or I.S 209, in Queens, the investigators wrote. Of the four people who were in Mr. Blake's office at the time - the principal, the student, and two staff members - only the student claimed an attack occurred. Mr. Blake, whose attorney did not respond to a request for comment, denied that any abuse occurred during an interview conducted under oath, calling the student an "emotionally disturbed kid" who "had lied in the past," the report said.

Investigators cited several other witnesses who confirmed the 13-year-old's report. One, a secretary, said she heard through a conference room door Mr. Blake threatening to break the student's neck and then watched the student walk out with marks on his neck. A school treasurer said Mr. Blake told her he pushed the student up against an air-conditioner in his office and choked him "until he heard the boy gasping for air." The investigators, who work for the Department of Education's special commissioner of investigation, Richard Condon, also alleged that Mr. Blake had misappropriated $30,000 in funds � money students turned in to pay for school lunches, snacks, and graduation expenses � between May 2005 and June 2006.

A Department of Education spokeswoman, Dina Paul Parks, said the city is pursuing Mr. Blake's termination and will discipline the two other staff members in the room that day.

Term Limits Lawsuit Continues in Court

Attorney Randy Mastro, right, argues for the plaintiffs, while Corporation Counsel Stephen Kitzinger, left, representing the city, listens, Wednesday, Oct. 22, 2008 in New York as Mastro argues to stop a proposed Oct. 23 vote that could alter term limits for some of the city's elected officials, including Mayor Michael Bloomberg. Judge Jacquelyn Silbermann denied the request to block voting on Mayor Bloomberg's proposal to change the term-limits law so he can run for a third term.

January 6, 2009
Term Limits Get Reprise, This Time in Court
By FERNANDA SANTOS, NY TIMES

A decisive round in the battle over who can run for re-election in New York City in November played out on Monday in a packed courtroom in Brooklyn, where lawyers for the city and for a group challenging an extension of term limits argued their cases before a federal district judge.


Each side tried to make its case, and the judge, Charles P. Sifton, (pictured at right) acknowledged how difficult a decision this might be for him.

“We’re talking about different interests,” said Judge Sifton, whose ruling will essentially decide the makeup of the citywide ballot. “It’s difficult to convert into some common denominator.”

Two months have passed since Mayor Michael R. Bloomberg signed the law allowing him and most other elected city officials to seek third terms, circumventing two plebiscites that set two consecutive four-year terms in public office as the limit for all of them.

One primary issue in the lawsuit filed by the challengers is whether the law extending term limits violated the voters’ constitutional rights to free speech, by annulling a decision they had endorsed at the polls, and their due process, by giving two-term incumbents an unfair advantage over challengers.

Arguing on behalf of the city, Stephen Kitzinger, (above) senior counsel in the city’s Law Department, said the claims “have no merit whatsoever” and added, “This law does not preserve an incumbent’s position for another four years.”

With that, Mr. Kitzinger apparently hoped to discredit some of the lawsuit’s other claims, including one that called it a conflict of interest for politicians to vote on a law expanding their own time in office. When Judge Sifton asked about the salaries and pensions a three-term incumbent might earn, Mr. Kitzinger replied impatiently, “They still have to be re-elected.”

Randy M. Mastro, the lead lawyer for the plaintiffs, squarely disagreed.

“A term-limited mayor and a term-limited City Council majority made a conscious choice out of naked incumbent protection to vote themselves the opportunity for a third term,” Mr. Mastro said.

Overturning the law extending term limits would most likely cause chaos in the city’s political world, compelling politicians who would be forced out of office to come up with new plans and candidates who had given up running against entrenched officeholders to rethink their strategies.

Judge Sifton, who last month denied a city request to have the case moved to Manhattan and combined with another lawsuit challenging the law, did not set a date for his decision. “I’ll issue a written opinion as fast as I can,” he said.

A total of 25 elected officials, aspiring politicians and other people filed the lawsuit on Nov. 10, charging that the term limits extension was unconstitutional.

In a written response submitted late last month, city lawyers scoffed at the notion, calling it a “startling premise” and a “radical proposal” that would essentially undermine the power of legislatures to amend or revoke laws passed by referendum.

The bill sparked one of the most divisive battles in the city’s recent political history, at one point pitting Mr. Bloomberg against some of his top aides, who advised him against a re-election bid. It also sparked countless protests on the steps of City Hall, prompted petition drives and nearly split the City Council in half.

The Council passed the bill on Oct. 23 in a 29-to-22 vote and Mr. Bloomberg signed it into law 11 days later, after sitting through almost five hours of emotional — and often harshly critical — public testimony.

The mayor said that he wanted to run for a third term to give voters the option of choosing a seasoned leader during a period of extraordinary fiscal hardship for the city.

He has also said that a charter revision commission could revert to the two-term limit as early as next year.

November 11, 2008 10:30 AM
Gibson Dunn's Mastro Leads Term Limits Suit Against Bloomberg
Posted by Dimitra Kessenides
From The Am Law Litigation Daily
LINK

A diverse group of folks has filed a suit against New York mayor Michael Bloomberg, challenging the constitutionality of the recently passed legislation that will permit him to run for a third term. The coalition suing the mayor includes elected officials, private citizens, and public interest groups. Not surprisingly, one of the group's lawyers is Randy Mastro of Gibson, Dunn & Crutcher, who once served as Rudy Giuliani's deputy mayor. As we reported last month, (see below - Ed.) Mastro first signed on to represent two City Council members who had filed a petition for a temporary restraining order to halt the Council's October 23 vote.

Given his loyalty to Giuliani, Mastro's work on the legal campaign to block Bloomberg's efforts had already raised eyebrows even before he coauthored the coalition's complaint. "If Mastro succeeds in derailing Bloomberg's plan for another four years, he'd embarrass [Bloomberg]," wrote Jacob Gershman in a recent New York magazine story. "Taking Bloomberg down a peg could only help Giuliani, who's positioning himself to mount a comeback by seeking to unseat [New York governor] David Paterson in 2010."

In the same article, one veteran political operative jokingly described Mastro as the "Luca Brasi" of the term limits operation. But Mastro denied that his firm's pro bono work in support of term limits was influenced by his ties to Giuliani. "It has nothing to do with anyone I worked for in the past," Mastro told the magazine.

Mastro sees the term-limits move by Bloomberg and the Council members supporting it as "an assault on our democracy," he told The Am Law Daily last month.

The complaint also lists Gibson attorneys Jim Walden, Richard Bierschbach, and Gabriel Herrmann, and solo practitioner Norman Siegel. Lovells attorney Pieter Van Tol is listed as counsel to the New York Public Interest Group.

Download Term Limits Complaint

Comments (1)

There does not seem to be much difference between what Hitler did to gain power and what Bloomberg is doing. If Mr. Bloomberg thinks with his large ego that he is the only one to save NYC, then why cant he volunteer his services. I am sure that if another person was mayor they would listen to his advice. Or is it the 1st rule of power, which is to keep it. A referendum is the voice of the people, which in the past Mr. Bloomberg was all for. That is until it got in the way of his ambitions. Dictator: a person exercising absolute power, esp. a ruler who has absolute, unrestricted control in a government without hereditary succession. One who imposes or favors absolute obedience to authority. A ruler who is unconstrained by law.
Does it sound familiar Mr. Bloomberg, or should people start calling you mien fuehrer instead of mayor.

Comment By Ogel - November 11, 2008 at 2:44 PM

October 22, 2008 5:44 PM
NYC Judge Green Lights Term Limit Vote
Posted by Rachel Breitman
LINK

A New York City judge said Wednesday that a City Council vote on extending term limits can move forward as planned. Earlier in the day, two New York City Council members, represented by Gibson Dunn & Crutcher's Randy Mastro, filed a petition for a temporary restraining order to halt Thursday's scheduled vote.

Mastro, co-chair of Gibson Dunn & Crutcher's litigation practice and crisis management groups, argued that council members who stand to benefit from term extensions have a conflict of interest in voting on the matter. The former deputy mayor under Rudolph Giuliani was tapped to represent Brooklyn council members Bill de Blasio and Letitia James, both outspoken critics of Mayor Michael Bloomberg's plan to extend his term.

"We think some of the council members' personal interests in extending term limits are self-serving," Mastro tells The Am Law Daily. "It's an assault on our democracy," he says. Gibson Dunn is handling the case pro bono.

The suit tried in vain to slow the trajectory of Bloomberg's fast-moving campaign for a third term. Bloomberg announced October 2 that he would seek a change to the term limits rules, and said there wasn't enough time for a citywide vote on the matter.

Mastro previously locked horns with Bloomberg in a lawsuit over the city's controversial West Side Stadium project.

Stephen Kitzinger, senior counsel from the New York City Law Department, represented the rest of council, arguing that the city's legislative body has the power to change the term limits without opening the matter up to the public.

"We are gratified the court ruled in favor of the City's position, thus allowing the council to vote on this critical issue," Kitzinger said in a statement.

Under the current term limits law, passed by a city referendum in 1993, New York City's elected officials can serve only to two four-year terms. Under the current law, two out of three council members will be looking for work once their terms end come 2009, including Speaker Christine Quinn. Quinn supports the vote.

A recent op-ed by Mastro published in the New York Times argued that Bloomberg's only legitimate path to a third term would be through the approval of city residents in a special election referendum.

Barring a reversal by the appellate division Thursday, the council will move forward with a scheduled vote.

October 6, 2008 5:36 PM
Lawyers Debate Legality of Opening Door to a Third Bloomberg Term
Posted by Rachel Breitman
LINK

Even before Mayor Michael Bloomberg formally declared his desire to serve a third term last Thursday, lawmakers and lawyers had begun questioning the legality of the plan.

Conceding that there wasn't enough to time to give the public a chance to vote on whether to amend the city's term-limit law, the mayor said the City Council should be allowed to make the decision.

"The [City] Charter allows the Council to change the law - and it doesn't favor one method of adoption over another,” Bloomberg said in a statement. The mayor added that he expected Council Speaker Christine Quinn (pictured at right) --also set to be term-limited out of office next year--to lead the charge on the matter.

But council members, good-government advocates and politicians eyeing higher office expressed skepticism about the validity of using a council vote to undo the 1993 term limit law, which was passed via public referendum and caps at two the number of four-year terms that elected officials may serve. Critics -- some of whom gathered at City Hall on Sunday to protest any move to extend term limts -- note that voters already rejected a move to overturn the limits by defeating a 1996 referendum on the issue.



Opposition to Bloomberg's third-term push could build inside City Hall this week, fueled in part by the efforts of council members with designs on higher office. Queens Councilmember -- and announced comptroller candidate -- David Weprin (pictured above) plans to introduce a bill shortly that would require a public vote in advance of any term-limit changes. Brooklyn Councilmember Bill de Blasio, a borough president hopeful, has teamed up with Councilwoman Letitia James, (pictured at right) whose term runs through 2011, on a bill that would place the question before voters in a special spring referendum.

A term limit bill could also face legal challenges from other mayoral hopefuls, including City Comptroller William Thompson Jr., a Democrat who has labeled Bloomberg's move “an attempt to suspend democracy,” or supermarket magnate John Catsimatidis, a potential GOP candidate.

“The people voted on term limits twice, and the will of the people should stand,” Catsimatidis spokesman Robert Ryan tells The AmLaw Daily.

Norman Siegel, director of the New York Civil Liberties Union from 1985 to 2000, tells The AmLaw Daily that he would be keen to help out with a legal challenge to the mayor. “The people have spoken two times by public referendum,” says Siegel, who is planning a third run for public advocate next year. Siegel has previously challenged the Bloomberg administration over such issues as citywide parade rules and mourners' access to Ground Zero. “The question is whether you can allow a legislative body to undo the people’s will by legislative fiat.”

Siegel downplayed the 1961 court decision in Benzow v. Cooley--often cited by Bloomberg supporters as a powerful precedent---when the New York State Court of Appeals upheld Buffalo city council’s right to overturn term limits. “The Buffalo decision is limited and not controlling in this case,” says Siegel.

The mayor's backers point to a 2003 New York City appeals court decision, which supported the council's power to tweak the 1993 term limits bill for candidates elected during mid-term special elections.

“It is absolutely clear that the city council can change the term limits, and it does not require a referendum,“ Robert Joffe, a partner in Cravath Swaine and Moore's litigation department, who represented the city council in the 2003 case, tells The AmLaw Daily. But he says there will still be debate over what a new term limit law might look like. “The question is, would they abolish term limits outright? Change the limits to three terms for all elections, or just this one because of fiscal emergency?”

Another potential wild card could be cosmetics heir Ronald Lauder, a longtime term-limits proponent and the driving force behind passage of the original law. Lauder says he will only support a one-time extension to the term limits bill, and will actively campaign against any council bill that would permanently change term limit restrictions.

The mayor has, however, won the support of several prominent lawyers, including Candace Beineke, chair of Hughes Hubbard & Reed and Martin Lipton, a founding partner of of Wachtell, Lipton, Rosen & Katz. The two joined 28 corporate executives in an open letter that was published in several New York City newspapers on Thursday supporting a third Bloomberg term.

“I am not an expert on term limits,” Beineke tells The AmLaw Daily. Nonetheless, she believes New Yorkers should see Bloomberg on the ballot next year. “I think the voters ought to have a chance to give Bloomberg a third term because it is the most democratic option.”
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I wanted to update your readers. After the City Council's introduction of two pieces of legislation relating to this matter yesterday, New York City Comptroller William C. Thompson, Jr. issued the following statement: "Today, the New York City Council introduced two measures, one that would allow the Council and the Mayor to single-handedly grant themselves the ability to run for a third term. The other measure would allow New York City voters to make the decision. The choice is clear: People must come before politics. It is inappropriate for the Mayor and City Council to pass legislation that ignores the will of the voters. A government should serve its people and not itself. New Yorkers deserve nothing less."

Comment By Jeff Simmons - October 8, 2008 at 2:26 PM

Why was the Mayor afraid to put in a referundum before the Sept. 24th deadline....No answer from him. WHY

Comment By james wachowiak - November 3, 2008 at 1:50 AM

News to Use: New York City Government Payroll, FOIL, PERB, Budget, and more

Now, everything would be fine if only the people of our government would replace random and arbitrary actions with due process, justice, accountability and transparency....in sum, follow the law and implement it fairly.
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Caroline Kennedy Did Not Submit Personal Financial Documents When Hired By Joel Klein in 2002

Pictured at right: Caroline Kennedy in January 2004, while she was working for New York City’s Education Department. She was paid $1 a year.

What I think is interesting about Ms. Kennedy's star quality is: she allowed the rules for financial disclosure to be bent for her when she accepted a position with the New York City Board of Education.

Most of us know that Joel Klein and Mike Bloomberg make different rules for different people. They also believe that they "know" what is best for New York City, and buy services with no bid contracts. Mike Bloomberg's push to get a third term as Mayor without a referendum was a good example of this policy. So, when Joel Klein wanted Caroline Kennedy to be involved with the fund-raising for public schools, of course they allowed her to by-pass the vetting process which involved filing details about her personal financial situation. Rudy Giuliani tried to do this with Bernard Kerik, even to the level of a Bush cabinet appointment - and look what happened there.

The fact that Caroline Kennedy was not asked to provide her financial portfolio when she became an employee of the New York City Department of Education (for $1/year) is not surprising, therefore, but I think she should have said then - and she should be saying now - "I am not above the law or rules, I'll disclose my assets just like everyone else".
"Why do New Yorkers accept this "arrogance of immunity"? We need to bring back the rule of law.
Betsy Combier

January 4, 2009
Kennedy Was Spared Financial Disclosure as a Top Aide at City Schools
By ALISON LEIGH COWAN

Like it or not, roughly 7,000 employees of New York City file 32-page disclosure forms each year divulging personal information about their family finances in an effort to bolster confidence in open government.

But when Caroline Kennedy was employed by the city Department of Education from 2002 to 2004, as the chief executive of the Office of Strategic Partnerships, she was not required to file, even though two people who worked for her had to disclose information about their finances.

City officials have offered a variety of explanations over the last few weeks why Ms. Kennedy did not have to meet this filing requirement despite her title and the responsibilities she has cited in her efforts to convince the public that she has the experience to take Hillary Rodham Clinton’s seat in the Senate.

City officials have most often pointed to Ms. Kennedy’s decision to accept $1-a-year in salary. More recently, Joel I. Klein, chancellor of New York’s schools, explained that she was ultimately exempt from the requirement because the department did not deem her to be a “policymaker.”

On Friday, Ms. Kennedy’s spokesman, Stefan Friedman, (pictured at right) declined to comment on the issue.

Mayor Michael R. Bloomberg, a billionaire who takes $1 a year from the city, is required to file disclosure forms each year. At least three of his appointees who have worked for nothing over the years have also filed — a sometimes awkward process, but one intended to serve as a conflict-of-interest safeguard for city officials and the public.

Ms. Kennedy’s finances have been a source of curiosity since she entered the contest to be named New York’s next senator. She has property in New York and on Martha’s Vineyard, and estimates of their worth have varied greatly. Great wealth, of course, can be an asset in an age of expensive campaigns.

Until 2004, public servants were generally required to file disclosure forms if they were officers or directors of agencies or if their salaries indicated high-level responsibility. That year, the city was able to shrink the rolls of those required to file by scrapping the salary test, and instead declaring that anyone holding a policymaking position had to file, regardless of income.

The city even spelled out what it meant to be considered a policymaker: someone who has “major responsibilities and exercises independent judgment in connection with determining important agency matters.”

“Public servants with substantial policy discretion include, but are not limited to, agency heads, deputy agency heads, assistant agency heads and public servants in charge of any major office, division, bureau or unit of an agency,” according to the city. Each agency or department makes the initial determination of who should be deemed a policymaker. The list is then subject to the review of the city’s conflicts-of-interest board, which has ultimate responsibility for collecting the annual forms and making them available to the public.

Though the Education Department is supposed to follow the same rules as every other arm of city government, it has issued its own regulations over the years as to who must file. The conflicts-of-interest board has not protested the department’s decisions regarding the Office of Strategic Partnerships, which Ms. Kennedy headed.

Last week, the board again referred all questions about the matter to the Education Department.

The department’s own written regulations make no mention of a class of “policymakers” who must file. Instead, it notes that employees have to file if they are in the management pay plan or have responsibilities over “contracts, leases, franchises, concessions and applications for variances and special permits” or if they are “serving in sensitive, confidential positions.”

In interviews, Ms. Kennedy has said that should she be chosen for the Senate job, she is “going to comply with every kind of disclosure that’s available.”

When she first went to work for Mr. Klein in October 2002, the job was a break from her former low profile. With fanfare, Mr. Klein put Ms. Kennedy in charge of raising money for the public schools from private sources, and said she would work closely with the department’s affiliated nonprofit organization, the Fund for Public Schools.

The department also announced that she would be in charge of the office of special adviser for the arts, and volunteer efforts like tutoring and mentoring. The next year’s official guide to New York City government listed Ms. Kennedy fifth from the top on the list of executives in the office of the chancellor.

By the middle of 2003, the department announced that Ms. Kennedy had second thoughts about accepting the $90,000 salary initially offered and would instead work for $1 a year.

City officials told The Daily News that July that she alone among those who had elected to forgo a paycheck would not be filing disclosure forms for the prior year because “the Ed Department deleted salary specifications from Kennedy’s specially created post.”

But people who drew nominal salaries at other city agencies at the time were still required to file. Deputy Mayor Daniel L. Doctoroff filed, as did Andrew Alper, then serving as chief of the Economic Development Corporation.

“The department determined that she did not fall into any of the categories in the pre-2004 disclosure law,” that governed the filing for 2002, said Michael Best, the general counsel for the Department of Education. Likewise, he said, Ms. Kennedy was not obliged to file for 2003 or 2004 because “she did not fit into any of the categories” once the law changed and the department concluded that “she did not have any policymaking position at the Department of Education.”

In August 2004, Ms. Kennedy announced that she was quitting her post in city government, though she continues to raise millions of dollars for the schools through her role as vice chairwoman of the board of the Fund for Public Schools.

While her departure from the city’s rolls cut short the debate over whether she should have been filing, two of those who worked for her were not spared.

Aida Bekele, a lawyer who reported that she was making $115,000 a year as chief of staff for the Office of Strategic Partnerships in 2003, had to file disclosure forms for 2003. So did Charissa Fernandez, who listed herself that year as a director of the Office of Strategic Partnerships, making $100,000 a year.


THE KENNEDY QUESTION
Rev. Al Sharpton and Caroline Kennedy break bread at Sylvia’s restaurant in Harlem. (Bill Moore Photo)
By SAEED SHABAZZ, Amsterdam News
Special to the AmNews
Published: Wednesday, December 24, 2008 11:34 AM EST

Queens Congressman Gary Ackerman (D) told a national television audience watching the CBS Sunday morning show “Face the Nation” that Caroline Kennedy has been Sarah Palan-ized, because her staff answers the questions from the press that have to be submitted in writing.

“DNA in this business can take you just so far,” Ackerman said, laughing at his own statement.

New York print media outlets reported over the weekend that Kennedy’s people responded to 15 questions with answers that were mostly “brief” and “some did not fully address the questions.”

Gov. David Paterson, who has to make the appointment to fill the Senate seat of Sen. Hillary Clinton—provided she is the next U.S. Secretary of State— told Albany reporters that Kennedy told him that “she’d like at some point to sit down and tell me what she thinks her qualifications are.”

So, observers keep hacking away at the daughter of assassinated president John Kennedy, saying she is a non-practicing attorney with little familiarity of the legislative process who has never been tested in the world of electoral politics.

Former Democratic Party vice presidential nominee Geraldine Ferraro sent a letter to Paterson, according to press reports, asking him to appoint one of the six sitting females representing New York in the Congress. Referring to Kennedy, she said, this is not the time for on-the-job-training, because New York is facing a fiscal crisis.

The Associated Press reported on Dec. 19, that Kennedy hasn’t voted in at least six major elections in the last 20 years, including the 1994 election for Clinton’s Senate seat. Kerry Kennedy, a cousin, stated on the television talk show “Hardball” that she didn’t know if her cousin was pro-choice.

“Her short tour of New York, visiting Harlem and Buffalo and talking to political leaders, but making no public statements and taking no media questions, has set exactly the wrong tone,” stated a writer for Salon.com.

Another glimpse into the political goings and comings of Kennedy was reported in the New York Observer in a story claiming that her political debut happened in the Big Apple some 10 years ago, when she showed up at a “teach-in” against the impeachment of former president Bill Clinton. “Her speech was not memorable—nor did she display passion as she read it,” stated the story. So, did Ackerman invoke the name of Sarah Palin as an insult?

baltimoresun.com
Caroline Kennedy eyes U.S. Senate
JFK's daughter tells N.Y. governor of interest in Clinton's seat
Associated Press, December 16, 2008
LINK

ALBANY, N.Y.

Caroline Kennedy told New York's governor yesterday that she's interested in the U.S. Senate seat being vacated by Hillary Clinton, making her the highest-profile candidate to express a desire for the job.

Democratic Gov. David A. Paterson will choose the replacement.

"She told me she was interested in the position," Paterson said. "It's not a campaign. She'd like at some point to sit down."

Caroline Kennedy's spokesman, Stefan Friedman, declined to comment.

Clinton is expected to be confirmed as President-elect Barack Obama's secretary of state.

At an afternoon news conference to discuss last week's paralyzing ice storm, New York's senior senator, Charles E. Schumer, said he has also talked to Kennedy about the job.

Kennedy is the daughter of President John F. Kennedy. Her uncle, Robert F. Kennedy, once held the Senate seat she wants. Both men were assassinated.

Paterson has sole authority to appoint a replacement for Clinton, who was elected in 2000 and re-elected by a wide margin in 2006. Paterson will appoint someone to fill Clinton's seat for two years if she is confirmed as secretary of state.

During the past week, Kennedy, who lives in Manhattan, has reached out to prominent New York Democrats to tell them of her interest in the Senate seat. They included Joel Klein, chancellor of the New York City Department of Education. Kennedy worked closely with Klein as executive of the Office of Strategic Partnerships for the New York City Department of Education, where she raised about $65 million for the city's schools.

Other Democrats who appear to be on Paterson's short list include New York Attorney General Andrew M. Cuomo, who has declined to say publicly whether he's interested.

Republicans wasted no time in criticizing Kennedy as unqualified for the job and unfamiliar with the state.

"If anything, it makes me more determined to run," said Rep. Peter T. King, a Long Island Republican who has expressed interest in the seat.

"As far as record of achievement, I strongly believe that I'm much more qualified, much more experienced and have an independent record," King said. "Nothing against Caroline Kennedy, but I don't think anyone has a right to a seat."

Besides being a member of America's famous political family, Caroline Kennedy Schlossberg, 50, is president of the John F. Kennedy Library Foundation and a member of the John F. Kennedy Profile in Courage Award Committee.

She also is a director of the Commission on Presidential Debates, a director of the NAACP Legal Defense and Educational Fund, honorary chairwoman of the American Ballet Theatre and vice chairwoman of New York City's Fund for Public Schools.

She received a bachelor's degree from Harvard University and a law degree at Columbia University. She and her husband, Edwin Arthur Schlossberg, have three children.

The Rev. Al Sharpton, a prominent civil rights activist, said Kennedy called him yesterday. Sharpton could be an important Democratic ally, and an early call on political matters can be a critical show of respect. If Sharpton eventually supports Kennedy, his endorsement could go a long way toward helping ease any criticism that a black candidate was passed over.

Sharpton said he disagrees with those who say that Kennedy is not qualified to be a U.S. senator.

Is Washington D.C. Schools Chief Michelle Rhee Really Making Any Difference in the Public Schools?

Beyond Publicity, What Is Rhee Producing?
By Colbert I. King, Washington Post,
Saturday, January 3, 2009; A13
LINK

During the end-of-year show last week, ABC 7 "Inside Washington" host Gordon Peterson asked panelists to cite their favorite story of the year.

The most surprising and intriguing selection was offered by Newsweek senior editor Evan Thomas.

"Most educators have given up on inner-city schools," Thomas said. "But right here in Washington, D.C., there's a lady named Michelle Rhee who is trying to actually win this battle, but she's trying to break the union to do it." Thomas called it "an epic struggle."

"Rarely have the lines been so clearly drawn," he said.

Breaking the teachers union may or may not be Rhee's ultimate goal. But Thomas is on to something.

Rhee was laboring in relative obscurity as a teacher trainer and headhunter for urban public schools only two years ago. Today, she's chancellor of the District's troubled school system and a proxy for the national education reform movement. She has risen, in the eyes of reformers, to near mythic heights, thanks to profiles in Time magazine (where she graced the front cover holding a broom), Newsweek, the Wall Street Journal, CNN and PBS's "NewsHour."

Clearly, Michelle Rhee is someone to watch in 2009.

But this column is about more than her celebrity status.

Rhee's "epic struggle" with the teachers union bears watching. Remember the old African proverb: "When elephants fight, the grass gets trampled." If a Rhee-union war paralyzes the school system, children may be the ones who suffer.

The struggle has already reduced the children to pawns, since what's really at stake are political interests.

Having muscled through his schools takeover, Mayor Adrian Fenty has his political future hanging on Rhee's ability to fulfill his promise to transform low-performing schools into a world-class system.

Education reformers across the nation have something on the line, too. Deep-pocketed reformers have placed large sums at Rhee's disposal to help her to loosen the union's grip on teachers. A Rhee victory would send a message to public schools nationwide.

The Washington Teachers' Union, scarred by scandal and with a warring leadership, also has much at stake. If Rhee succeeds in quashing tenure and seniority rights and if she scores with merit pay for teachers, the union loses its reason for being. National union leaders know that, too.

From a media viewpoint, the story of a firebrand educator taking the torch to a hidebound union is good copy.



But the issue is not whether the chancellor is a polarizing figure with her take-no-prisoners approach or is a fearless crusader against defenders of the status quo.

At issue is whether public education in the District is being improved.

What's known thus far is that plenty of principals, teachers and staff members have been fired, nearly two dozen schools have been closed, and dozens more have been overhauled and restaffed. But to what end?

People paying for the city's $1 billion system need to know whether Rhee is making any progress in reversing the record of failures in the schools. They deserve to know how her policies and practices -- not those of her predecessor -- are affecting teacher performance and student achievement. So, of course, do parents of the more than 46,000 students in the system.

Some parents have already rendered their verdict. Thousands of kids have been transferred to charter schools.

Lost in the squabble is the one ingredient that could help residents decide whether months of turbulence have been worthwhile.

D.C. Council Chairman Vincent Gray seems to agree.

He told me that he has decided that the council must do more than just appropriate funds for schools, leaving Rhee free to run the system as she sees fit.

He said he will propose this month that the council select an independent evaluator to examine the impact of changes initiated by Rhee on teacher and student performance, school system operations, and the school governance structure itself.

"I want to get away from the emotionalism surrounding Rhee and take a dispassionate look at school performance," he said.

Gray has tapped the D.C. auditor to organize the project, which will draw upon independently produced research, not just school system data. He said the mayor's office was to have produced an evaluation of the new governance structure a year ago. Instead, the mayor proposed a privately funded study to be conducted by researchers known to be favorable toward a mayoral takeover of schools.

Gray said he wants impartiality, not advocacy. He hopes to have the council's evaluation project up and running by early spring.

Good. The city must know where Rhee is going. I say this as a supporter of Fenty's takeover and of Rhee's whacks at the Gordian knots entangling the school system. ["Rhee vs. the Central-Office Hydra," Aug. 18, 2007; "Coming Soon: The Real Schools Battle," Sept. 29, 2007]. Last August, I had lunch with Rhee near the anniversary of our first meeting to get an update on school system reforms.

What a difference a year makes.

The session wasn't what I expected.

An hour's conversation, and it was all about her.

kingc@washpost.com

Michelle Rhee and Adrian Fenty Look Toward a Non-Union Washington DC Public Education System

An Unlikely Gambler
By firing bad teachers and paying good ones six-figure salaries, Michelle Rhee just might save D.C.'s schools.
Evan Thomas, Eve Conant and Pat Wingert
NEWSWEEK
From the magazine issue dated Sep 1, 2008

Not long after Michelle Rhee took over as head of the Washington, D.C., public schools a year ago, she announced a plan to shut down almost two dozen schools in D.C.'s decrepit, shrinking, public-education system. At a meeting at one school, parents began screaming at Rhee and throwing things. As it happened, Rhee's own parents were in Washington, visiting from Denver, and they saw the confrontation on TV. "So I come home at 11 o'clock at night," Rhee recalled in a recent interview with NEWSWEEK. "I am making myself a peanut-butter sandwich. My mother is, like, 'Are you OK?' I said, 'Yeah, I'm fine.' She said, 'You know, when you were young, you never used to care what people thought about you, and I always thought that you were going to be antisocial, but now I see this serving you well.' I was, like, 'Yeah'."

Rhee says she doesn't mind getting yelled at. "I don't take things personally," she says. Indeed, she seems unflappable, a slender, pretty young woman with a straightforward, though not humorless, manner. A tireless single mother of two young girls, she taps away at two BlackBerrys (one for her close friends and staff, the other for the city and the public at large) from early morning until after midnight, answering every e-mail personally. Her candor can be disarming, though risky in her position. "She is without guile," says her mentor, Joel Klein, the head of the New York City public schools, who adds, a little wistfully, "so rare in public life."

That is not to say that Rhee is relaxed. She says she wakes up every morning with a "knot in my stomach," and that she is "angry," though "angry in a good way." She is angry at a system of education that puts "the interests of adults" over the "interests of children," i.e., a system that values job protection for teachers over their effectiveness in the classroom. Rhee is trying to change that system. In a way that few realistic observers thought was possible, she has a chance to succeed, not just in Washington, but also around the country. She is entering into a struggle with the local teachers union that will test whether an urban school district can weed out its weak teachers—a profound threat to politically powerful teachers unions nationwide. "If she can pull it off, it's big," says Klein, who has battled, with mixed success, to tame the teachers union in New York City. Rhee's own story is a flicker, potentially a flame, of hope in the relentlessly depressing story of inner-city education.

For many years, high-achieving students chose not to be teachers (the average SAT of would-be elementary-school teachers taking a popular licensing exam is significantly below the national average for all college grads). The daughter of a doctor, Rhee, who was raised in Toledo, Ohio, describes herself as "a relatively high-achieving kid all through high school and college. So nobody tells you to go into education," she says, in her matter-of-fact way, not trying to be ironic. "You know, people are telling you to go be a doctor or a lawyer or a stockbroker. They are not telling you to be a teacher." Not sure what she wanted to do with her life as she graduated from Cornell in 1992, Rhee joined Teach For America, a then brand-new organization, created by a Princeton student, to get Ivy Leaguers to work in poor inner-city schools for a couple of years. The experience, she says, "has shaped every single day of my life since then."

Rhee was placed in one of the lowest-performing schools in Baltimore as a second-grade teacher. "It was a total culture shock for me," she recalls. While she was talking to her students as they lined up for lunch, one of the students fell down on the floor. "Each kid, as they were walking by, kicked the kid that was down," Rhee says. "I was, like, 'What are they doing?' But it was like second nature to them. The kid is down. Kick him."

Rhee was unable to stop the kids, or control them in the classroom for most of her first year. At Christmas, she went home scratching at huge welts on her arm. A doctor diagnosed stress. Her mother said, "You can apply for law school second semester." Her father, a strong believer in the work ethic and rooting for the underdog, said, "Suck it up and get back in there."

Rhee "sort of became obsessed," she says. "I was not going to let 8-year-olds run me out of town." Over the next two years, working with another teacher, she took a group of 70 kids who had been scoring "at almost rock bottom on standardized tests" to "absolutely at the top," she says. (Baltimore does not keep records by classroom, so NEWSWEEK was unable to confirm this assertion.) The key to success was, in her word, "sweat," on the part of the teacher and the students. "I wouldn't say I was a great teacher. I've seen great. I worked hard," says Rhee.

She had an epiphany of sorts. In the demoralized world of inner-city schools, it is easy to become resigned to poor results—and to blame the environment, not the schools themselves. Broken families, crime, drugs, all conspire against academic achievement. But Rhee discovered that teachers could make the critical difference. "It drives me nuts when people say that two thirds of a kid's academic achievement is based on their environment. That is B.S.," says Rhee. She points to her second graders in Baltimore whose scores rose from worst to best. "Those kids, where they lived didn't change. Their parents didn't change. Their diets didn't change. The violence in the community didn't change. The only thing that changed for those 70 kids was the adults who were in front of them every single day teaching them."

Rhee (with parental consent) made the kids go to school on Saturdays and gave them two hours of homework a night, so they would "not watch TV or sit on the stoop or play Nintendo." She slowly won the respect of parents. "My first year of teaching, they were, like, 'We do not want the crazy Korean lady,' and by the time I left, they were, 'Where are you going? You can't leave'."

Rhee stayed in education, starting an organization, The New Teacher Project, devoted to recruiting better teachers for hard-to-staff inner-city schools. She caught the attention of Joel Klein, who was trying to reform the New York City school system under Mayor Michael Bloomberg. Klein, in late 2006, recommended Rhee to Adrian Fenty, the newly elected mayor of Washington, D.C., who staked his reputation on fixing D.C.'s chronically poor schools.

At first Rhee said she was not interested. "It's not a job you would want," she says. "You have your hands tied. You have to deal with school boards. It's all about politics. You can't get anything done. It's an impossible job." But Fenty managed to convince Rhee that he was serious. Skeptical (she says she was "not wowed" by the mayor at first), she asked him, "What would you be willing to risk at the chance of being able to transform the schools?" According to Rhee, he "didn't hesitate. He said, 'Everything'." Rhee warned him that she was not politically correct and was sure to cause him political pain. (Last week Fenty told NEWSWEEK, "I don't want to look back on our time and say we were careful, we did the politically correct thing.") Fenty has kept his word to Rhee. His first act was to take away power from the D.C. school board, which had been for many years an obstacle to real reform. He showed a willingness to open up the city's checkbook. At one meeting not long ago, he asked Rhee how much more money she might need. "It would be about $40 million," she answered. (The D.C. school's annual budget is just under $800 million.) The stunned city administrator, Dan Tangherlini, spluttered, "We don't have an extra $40 million." Fenty ordered the administrator to start figuring out a way to get the money, even if it meant citywide reductions in force. (Fenty and Rhee communicate several times a day by e-mail and cell phone.)

Even measured by the low standard of inner-city schools, Washington's have long been among the worst. The math and reading skills of its students lag two or three years behind national norms, despite per-student expenditures greater than in any major city outside of New York. The school bureaucracy had a reputation for bloat and incompetence, and an almost Stalinist resistance to reform. (When she arrived, no one could tell her how many textbooks the schools owned.) The former president of the teachers union, Barbara Bullock, is now serving a six-and-a-half-year prison sentence for embezzling $4.6 million. She admitted using union funds to buy 13 furs, 37 designer handbags and a 288-piece antique Tiffany silver set (she told the judge she is now mentoring young inmates, who call her "Grandma").

Rhee is the seventh person to run the D.C. schools in the past 10 years. Most of her predecessors were, according to Rhee, "smart and worked hard and wanted to do the right thing for kids," but "they didn't get a whole lot done." The reason, she says, is that they "caved in" to the city's educational establishment, whose talk of reform was just that.

Rhee showed she was serious by firing more than a hundred non-union central office workers, including administrators, and 36 principals (one out of four). She even fired the principal of the school where she chose to enroll her own daughters, Starr, 9, and Olivia, 6. "I can't talk about the details, but let's just say I was in that school three days a week. I know what was going on there." The "sad thing," she said, "was when a parent e-mailed me to say that she [Marta Guzman, the fired principal] couldn't possibly have been one of the worst principals in the system. My answer was, is that our standard? Have our expectations been so lowered?" One co-chairman of the school's PTA, Eduardo Barada, accused Rhee of racism for ousting a Hispanic principal. (Guzman told NEWSWEEK that she did not know why she had been fired, a characterization Rhee disputes.) But the other PTA co-chair, Claire Taylor, told NEWSWEEK, "Rhee's making decisions that should have been made years ago, and she's accountable for those decisions. And that is what is so disarming to parents who have been traumatized by this school system." Taylor was impressed by Rhee's cool at raucous parents' meetings. "She clearly is a brave person. I have been in rooms where parents are hysterically upset and she walks in so quietly respectful, telegraphing accountability, and says, 'I'm gonna do something you may not like, but it's for the good of the children, and I'm doing it, it's all me'."

Other parents call her a "dictator" and predict she will flee or be driven into exile. "She gives you this stare as if she's looking right through you. 'I'm listening but I'm not hearing you'," says Clarence Cherry, another local PTA head. "Rhee and her people are not from D.C. They don't understand us. They are here for the money. She'll be here two years, tops." As a Korean-American, Rhee was regarded with suspicion by some in D.C., where 85 percent of public-school students are black, and where racial identity can still matter. But her directness and purposefulness have won over some early critics, like Ray Behbehani, a parent who was initially angered by Guzman's dismissal. "She may not be the warmest person, or maybe it's just me, I don't read Asian faces and people well, but she's got it totally together," he told NEWSWEEK.

Rhee's toughest fight, by far, is coming up. She has proposed a new contract for the union that would undermine tenure, the teachers union holy of holies. The carrot is money. By tapping Mayor Fenty and private philanthropists, she is hoping to make D.C. teachers the best-paid in the country. Current teachers would actually have a choice. If they are willing to go on "probation" for a year—giving up their job security—and can successfully prove their talent, they can earn more than $100,000 a year and as much as $130,000, a huge salary for a teacher, after five years. If not, they still get a generous 28 percent raise over five years and keep their tenure. (All new teachers must sign up for the first option and go on probation for four years.) Rhee predicts that about half the teachers will choose to take their chances on accountability for higher pay, and that within five years the rest will follow, giving up tenure for the shot at merit pay hikes.

She may be overly optimistic about getting the union to accept her terms. The union president, George Parker, has been willing to work with Rhee, but he has taken heat from some union members who accuse him of cozying up to the school chief. Privately, Rhee and Parker have had some shouting matches. Rhee said she would refuse to sign a contract that had provisions that are "bad for kids," and Parker is balking at the probationary period for teachers. (Some of his experienced teachers say they are "insulted" by the probation requirement, but Rhee told NEWSWEEK that probation is "non-negotiable" because it goes to the heart of the matter, the ability to remove teachers who are not performing well.) In one meeting, according to Rhee's own account, she said to Parker: "Either we do this with you or we do this to you." And then she challenged him by saying, "You don't have what it takes to pull this off."

Parker is caught in the middle. At the end of a week of meeting with suspicious and hostile teachers groups in early August, he appeared tired and beaten-down. (Rhee, who had sat in on many of the same meetings, seemed cool and relaxed.) The union's vice president, Nathan Saunders, has sued Parker to open up the negotiations to a wider group of union officials. "George was negotiating as if this was a private contract, one on one," says Saunders. "My reaction was, oh, hell no! The best unions have large negotiating teams. We had two folks dating." Saunders is whipping up opposition in the union. "I consider this proposal to be an IQ test as to whether teachers are willing to slit their own throats," says Saunders. A black inner-city kid who made a fortune on real estate, Saunders is a smart dresser who sports bow ties and talks a lot about "due process." Indeed, a critical and so far unresolved question is how teachers will be judged. Rhee will insist on hard data—test scores—showing effectiveness in the classroom, but union members warn about arbitrary firings.

The union can play hard. When Rhee moved to reclassify some central-administration workers so they could be terminated without cause, the union began running 60-second radio ads attacking Rhee, playing "Back Stabbers" by the O'Jays as background music. But Rhee has some sticks to wave as well as carrots. Although she will not go into detail, it is a good bet that she will find other legal tools to hold teachers accountable even if the teachers refuse to sign a contract. "I believe this contract is going to pass," she told NEWSWEEK. "And I believe it is going to have a huge impact." But, she added, "even if it didn't, it would not stop me."

The fact is that D.C.'s school system is shrinking. About a third of D.C. parents now opt to send their kids to charter schools, which are public schools—but where the teachers are non-union. The union has lost more than a thousand of its more than 5,000 teaching slots during the past decade. Rhee, it appears to many, is not interested in protecting turf. If she can open more charter schools that are better than the regular city schools, she seems willing to let the old system wither away. At first charter schools were often no better or even worse than schools in the system, but lately some—particularly the KIPP schools—have been scoring higher on tests. If the union doesn't accept reform, it may not have many jobs left to protect.

Rhee doesn't quite come out and say it, but she and her fellow reformers are trying to change the teaching profession, at least in the inner city, from an 8 a.m.-to-3 p.m. job with summers off, to something that bears more resemblance to joining the Green Berets. Rhee succeeded in Baltimore because she worked like a demon. The KIPP schools score well because teachers work from 7 a.m. to 7 p.m., and on Saturday, and carry cell phones so their students can reach them any time. Summer vacation lasts only about a month. There are teachers who can maintain this pace for decades (just as there are some older Special Forces operatives in the military), but in Rhee's world many teachers may find themselves working hard, burning out and moving on. "There are some absolutely fabulous teachers who have taught in very tough settings for 20 years and have consistently produced stunning growth, and have somehow found the stamina to do it, while some energetic 24-year-olds aren't up to it," says Kati Haycock, president of Education Trust, a longtime reform expert (and former D.C. school parent). "But what we need to do is change the idea that education is the only career that needs to be done for life. There are a lot of smart people who change careers every six or seven years, while education ends up with a bunch of people on the low end of the pile who don't want to compete in the job market."

Naturally, this sentiment seems patronizing, if not downright threatening, to many career teachers with a union card. They resent the young Ivy Leaguers who come in from Teach For America for a couple of years, acting superior, and then go off to become investment bankers or lawyers. (TFA stands for "Teach for Awhile," they joke.)

It is hard to know how Rhee sustains her own pace. Three days a week she picks up her kids at 5:30 (they are in after-school programs) and stays with them until bedtime—then it's back to work until 1 or 2 a.m. When their father, a TFA executive named Kevin Huffman, has the kids, she basically works 18-hour days. Having a mom as school chancellor is "hard on the kids," she says. She recalls that when she refused to cancel school on a not-very-snowy day, her older daughter, Starr, came home complaining, "Other kids are saying that by not canceling school because of the snow that you are putting all of our lives in danger." Rhee explained that some poor kids don't eat unless they can get a school meal. A couple of weeks later, Starr reported, "Now there's a rumor that you are going to lengthen the schoolyear and make us go to school longer." Rhee replied, "Well, you know, time on task is very important." Starr, who apparently takes after her mother, answered, "I backed you on the snow thing. I am not backing you on more school, though."

Rhee's bluntness and unwillingness to compromise are admirable, but they may also be her undoing. Rhee has Mayor Fenty's complete support, but she has irked some city council members, in one case because her aides supposedly blocked a council member from going onstage with her at a summer-school graduation. Rhee does not seem interested in the rituals of political nicety, and, while she says she's a Democrat, she can be very scornful of her own party. "It's embarrassing to be a Democrat when you hear Democrats talk about education," she says. "The Democratic Party is supposed to be the party that looks out for poor black kids, yet the kind of rhetoric they spew about … [how the Bush administration's No Child Left Behind law is] 'sucking the life out of our teachers'—come on. Get real. I believe that until the Democratic Party breaks ties with the teachers unions, we are not going to see the true reform in this country that we need."

As she spoke, late in the day (but only in the middle of her workday), she was becoming uncharacteristically wound up. "We do not have a nation right now where every child has an equal chance in life, because poor black kids don't have an equal shot in life, because they go to crappy schools, and the Democratic Party is not tackling this issue, which I think is one of the biggest problems that exist."

The interview was drawing to an end. A NEWSWEEK reporter asked her if she still got welts from stress. "Uh, yeah," she said, seeming slightly knocked off-balance for the first and only time. The moment passed; she excused herself to go back to work.

Union Member Required To Exhaust Administrative Remedies Before Suing His Union

Paulino v. New York Printing Pressman, ___F.3d___(2d Cir. Dec. 3, 2008) involves certain important principles under the LMRDA. (See also the complete text of the LMRDA - B.C.) Specifically, that a union can discipline its members, union members are entitled to a hearing, but that they must first exhaust administrative remedies. As the court explained:

Paulino also claims that the Union unlawfully suspended him without a full and fair hearing in violation of the LMRDA. The LMRDA requires that no member can be suspended from a union, except for failure to pay dues, without written notice, a
reasonable time to prepare his defense, and a full and fair hearing. 29 U.S.C. § 411(a)(5). But, before legal proceedings can be brought, any union member can be required to exhaust reasonable hearing procedures within his or her union. 29 U.S.C.
§ 411(a)(4). The requirement that a plaintiff exhaust internal union remedies under the LMRDA lies within the court's discretion. Maddalone v. Local 17, 152 F.3d 178, 186 (2d Cir. 1998) (citations omitted). The district court found that Paulino had failed to exhaust his internal union remedies, noting that, while Paulino did write letters to the Union president and to the International Union, none of these letters complained about not being given a full and fair hearing prior to his alleged
suspension.Paulino, 2007 WL 1345234, at *6, 2007 U.S. Dist. LEXIS 33885, at *21-*24. The district court was correct in finding Paulino has not exhausted his internal union remedies:

Paulino has never raised his claim that he was wrongfully suspended from the Union with the Union. Because there is no evidence that the Union officials in this case are so hostile to Paulino that there is no chance the Union would provide Paulino
with a fair hearing, that the Union's internal procedures are inadequate, or that exhaustion of his remedies within the Union structure would unreasonably delay his opportunity to obtain a judicial hearing, the district court correctly granted summary judgment because Paulino has not exhausted his union remedies.
See Schermerhorn v. Local 100, Transport Workers Union of America, AFL-CIO, 91 F.3d 316, 325 (2d Cir. 1996). Paulino's argument that going through the administrative process would have been futile is unsupported.

Mitchell H. Rubinstein

07-2425-cv
Paulino v. The New York Printing Pressman's Union, Local Two

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED

AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1 AND 6FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT 7CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION 8MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: “(SUMMARY ORDER).”

UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE 10WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV), THE PARTY CITING THE SUMMARY ORDER MUST FILE AND SERVE A COPY OF THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED. IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

At a stated term of the United States Court of Appeals for the
Second Circuit, held at the Daniel Patrick Moynihan United States
Courthouse, 500 Pearl Street, in the City of New York, on the
3rd day of December, two thousand eight.
PRESENT:
HON. ROBERT D. SACK,
HON. RICHARD C. WESLEY,
Circuit Judges,
HON. LAWRENCE E. KAHN,*
District Judge.
--------------------------------------
DANIEL PAULINO,
Plaintiff-Appellant,
- v -
THE NEW YORK PRINTING PRESSMAN'S
UNION, LOCAL TWO, and THE BOARD OF
TRUSTEES and ROBERT COSTELLO,
Administrator of the Pressman's
Publisher's Benefits Fund,
Defendants-Appellees.
No. 07-2425-cv
--------------------------------------

Appearing for Appellant: Neil M. Frank, Frank & Associates,
P.C., Farmingdale, New York, on submission.

Appearing for Appellee: Barry I. Levy, Rivkin Radler LLP,
Uniondale, New York, on submission.

Appeal from the United States District Court for the Southern District of New York (George B. Daniels, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be, and it hereby is, AFFIRMED.

Daniel Paulino appeals from an order of the United States District Court for the Southern District of New York granting summary judgment in favor of Defendants-Appellees. We assume the parties' familiarity with the facts and procedural history of this case, and the issues presented on this appeal.

Paulino, a Hispanic male, claims he was intentionally placed lower than two Caucasians on his Union's "Revision List," a list kept by the Union which, among other things, determines allocation of work assignments, vacation days, and when an
employee may be promoted to Journeyman status. He also claims that following his complaints about his allegedly improper placement on the Revision List, he was unlawfully suspended from the Union without due process, because of his complaints about the alleged racial discrimination.

Paulino filed this lawsuit against his union, the New York Printing Pressman's Union, Local Two (the "Union"), on January 4,2006, making three claims that he pursues on appeal: (1) race and national origin-based discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and in violation of 42 U.S.C. § 1981 based on his claim that he was lower on the Revision List than two Caucasians; (2) retaliation in violation of Title VII and section 1981 based on his alleged suspension from the Union following his complaints about his placement on the Revision List; and (3) that the Union violated the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 411 et seq., by suspending his membership without a full and fair hearing.

Defendants filed a motion to dismiss or for summary judgment, along with a statement of uncontested facts pursuant to Local Rule 56.1, as well as several declarations, affidavits, and exhibits. The district court granted defendants' motion for summary judgment. Paulino v. The New York Printing Pressmen's Union, Local Two, 2007 WL 1345234, 2007 U.S. Dist. LEXIS 33885 (S.D.N.Y. May 7, 2007).

"We review a district court's grant of summary judgment de novo, construing the evidence in the light most favorable to the non-moving party and drawing all reasonable inferences in its favor." Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113 (2d Cir. 2005) (citation omitted). Summary judgment is appropriate where there is "no genuine issue of material fact and . . . the moving party is entitled to judgment as a matter of law," Fed. R. Civ. P. 56(c), i.e. "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 69 (2d Cir. 2001)(citation omitted).

To survive a summary judgment motion on discrimination claims pursuant to Title VII and section 1981, the plaintiff must establish a prima facie case of discrimination under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). McLee v. Chrysler
Corp., 109 F.3d 130, 134 (2d Cir. 1997). To do so, he must show:

(1) that he belongs to a protected class, (2) that his job performance was satisfactory, (3) that he suffered adverse employment action, and (4) that the action occurred under conditions giving rise to an inference of discrimination.
Demoret v. Zegarelli, 451 F.3d 140, 151 (2d Cir. 2006). The district court found that Paulino had failed to establish a prima facie claim because an adverse employment action had not been established, because Paulino had not shown he was actually lower on the Revision List than he should have been, and that
circumstances giving rise to an inference of discrimination had not been established, because Paulino failed to allege any reason to believe that even if his placement on the list was lower than it should have been, that it resulted from intentional discrimination. Paulino, 2007 WL 1345234, at *3-*4, 2007 U.S. Dist. LEXIS 33885, at *15-*16. We agree with the district court. Even accepting as true
that Paulino was lower on the list than he should have been, he fails to allege conditions giving rise to an inference of discrimination. Paulino provided alternate payroll records that purportedly show he should have been higher on the Revision List
than he was, but he never claims the records were given to the Union. Paulino fails to allege any reason to think the Union did anything but rely on the payroll records provided to it by Paulino's employer, as it customarily does when constructing the
list. Indeed, Paulino seems to base his belief that he was discriminated against because of his ethnicity on the fact that he had been working longer than the other two employees, without adequately addressing the Union's position that placement on the list does not depend on seniority alone. Because Paulino does not allege conditions giving rise to an inference of discrimination and thus fails to establish a prima facie claim under McDonnell Douglas, his claims for discrimination under Title VII and section 1981 fail as a matter of law.

A prima facie claim of retaliation under Title VII or section 1981 requires proof that the plaintiff (1) engaged in protected activity, (2) that his employer was aware of this activity, (3) that the employer took an adverse employment action
against him, and (4) that a causal connection exists between the alleged adverse action and the protected activity. Schiano v. Qual. Payroll Sys., Inc., 445 F.3d 597, 608 (2d Cir. 2006)(citation omitted). The district court found the section 1981
retaliation claim could not survive summary judgment because Paulino proffered no evidence that he had raised the issue of discrimination with anyone at the Union prior to the asserted adverse employment action, i.e., his alleged suspension from the Union, and that Paulino had failed to show that there was actually an adverse employment action. Paulino, 2007 WL 1345234, at *5, 2007 U.S. Dist. LEXIS 33885, at
*18-*20.

We agree. On appeal, Paulino asserts that he did complain of racial discrimination to the person in charge of the Revision List, Daniel Macphee, and to the president of the local Union, William Loftus. The record does not support these claims. The
letters Paulino wrote to Loftus did not assert discrimination. Instead, they alleged only that Paulino was improperly placed on the Revision List and asked for the formula for how the list is made. The statements Paulino alleged he made to MacPhee in his complaint and affidavit before summary judgment do not explicitly
allege racial discrimination either, and, although Paulino, in his appellate brief, alleges that he made it clear to Macphee that his complaints were about racial discrimination, alleging this on appeal is not sufficient to reverse summary judgment. See Katir v. Columbia Univ., 15 F.3d 23, 25 (2d Cir. 1994) ("Upon review of a grant by a district court of a motion for summary judgment, a federal appellate court may examine only the evidence which was before the district court." (internal quotation marks and citations omitted)). Because Paulino fails to allege that
his employer knew of his complaints about racial discrimination, he has failed to show that his employer was aware of any protected activity, and his claim for retaliation necessarily fails. See Schiano, 445 F.3d at 608.

Paulino does not challenge in his brief to this Court the district court's dismissal of his Title VII retaliation claim for failing to raise the claim first with the EEOC. Paulino, 2007 WL 1345234, at *4, 2007 U.S. Dist. LEXIS 33885, at *17. The claim is therefore waived. See, e.g. State St. Bank and Trust Co. v. Inversiones Errazuriz Limitada, 374 F.3d 158, 172 (2d Cir. 2004).

Paulino also claims that the Union unlawfully suspended him without a full and fair hearing in violation of the LMRDA. The LMRDA requires that no member can be suspended from a union, except for failure to pay dues, without written notice, a
reasonable time to prepare his defense, and a full and fair hearing. 29 U.S.C. § 411(a)(5). But, before legal proceedings can be brought, any union member can be required to exhaust reasonable hearing procedures within his or her union. 29 U.S.C.
§ 411(a)(4). The requirement that a plaintiff exhaust internal union remedies under the LMRDA lies within the court's discretion. Maddalone v. Local 17, 152 F.3d 178, 186 (2d Cir.1998) (citations omitted). The district court found that Paulino had failed to exhaust his internal union remedies, noting that, while Paulino did write letters to the Union president and to the International Union, none of these letters complained about not being given a full and fair hearing prior to his alleged
suspension. Paulino, 2007 WL 1345234,at *6, 2007 U.S. Dist. LEXIS 33885, at *21-*24.

The district court was correct in finding Paulino has not exhausted his internal union remedies: Paulino has never raised his claim that he was wrongfully suspended from the Union with the Union. Because there is no evidence that the Union officials in this case are so hostile to Paulino that there is no chance the Union would provide Paulino with a fair hearing, that the Union's internal procedures are
inadequate, or that exhaustion of his remedies within the Union structure would unreasonably delay his opportunity to obtain a judicial hearing, the district court correctly granted summary judgment because Paulino has not exhausted his union remedies. See Schermerhorn v. Local 100, Transport Workers Union of America, AFL-CIO, 91 F.3d 316, 325 (2d Cir. 1996). Paulino's argument that going through the administrative process would have been futile is unsupported.

The district court also found that Paulino had not established that he was actually suspended, and therefore had no claim whatsoever under the LMRDA. Paulino, 2007 WL 1345234, at *6, 2007 U.S. Dist. LEXIS 33885, at *21-*24. The court found that despite the minutes of the November 2004 local union meeting, which stated that Paulino had been "suspended," the Union had demonstrated that the statement was in error. The minutes, the Union argued, referred only to the suspension of his
health benefits because he had failed to pay the required contribution. Id. In light of this reasonable explanation of the statement in the minutes and the fact that Paulino continued to pay dues, attend, participate in, and vote at Union meetings, the district court did not err in concluding that summary judgment for the defendants was appropriate on the LMRDA claim.

In short, in light of the fact that Paulino failed to establish that he was suspended from the Union, he cannot prevail on a claim that such a suspension was unlawful. Paulino asserts that summary judgment was granted prematurely because further discovery was warranted. We review a district court's discovery rulings under Federal Rule of Civil Procedure 56(f) for abuse of discretion. Gualandi v. Adams, 385 F.3d 236, 244-245 (2d Cir. 2004). The district court gave Paulino ample opportunity to conduct discovery before the summary judgment motion was decided. While Paulino makes several new assertions in his appellate briefs about discovery he wishes he could obtain, because he did not raise these matters in his 56(f)
affidavit they will not be considered on appeal. See Gurary v.Winehouse, 190 F.3d 37, 43-44 (2d Cir. 1999). The district court did not abuse its discretion by not allowing further discovery.

For the foregoing reasons, the judgment of the District
Court is hereby AFFIRMED.

FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk of the Court
By:_________________________________