Pinkard v NYC DOE, United Federation of Teachers (2012) Federal Complaint

Below is the decision in the case Eugenia Pinkard v United Federation for Teachers, filed in 2012 in Federal Court. The case was dismissed because Ms. Pinkard sued on the basis of age and sex, instead of on the basis of race or color.

EUGENIA PINKARD, Plaintiff, - against - NEW YORK CITY DEPARTMENT OF EDUCATION, UNITED FEDERATION OF TEACHERS, and ERIC CHEN, Defendants. 11 Civ. 5540 (FM) UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK 2012 U.S. Dist. LEXIS 64207 May 2, 2012, Decided  May 2, 2012, Filed CASE SUMMARY OVERVIEW: Plaintiff former employee's claims against defendants, a former employer and a union, must have been dismissed for failure to exhaust her administrative remedies, under 42 U.S.C.S. § 2000e-5(e), because her charge did not put the Equal Employment Opportunity Commission (EEOC) on notice to investigate discrimination based on the employee's race or color; instead, the employee's EEOC charge was based solely on her age and sex. OUTCOME: Motions granted. Complaint dismissed. CORE TERMS: retaliation, discrimination claims, termination, administrative remedies, terminated, grievance, color, discontinuance, discriminatory, secretary, exhaust, nysut, reinstated, fair representation, conclusory, disability, sex, email, pro se, time barred, subject matter jurisdiction, national origin, protected activity, untimely, notice, woman, superintendent, probationary, employment discrimination, exercise of jurisdiction LexisNexis® Headnotes Civil Procedure > Jurisdiction > Subject Matter Jurisdiction > General Overview Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Motions to Dismiss Evidence > Procedural Considerations > Burdens of Proof > Preponderance of Evidence HN1 Under Fed. R. Civ. P. 12(b)(1), a complaint must be dismissed if a court lacks subject matter jurisdiction over the action. In deciding a Rule 12(b)(1) motion, a court is not limited to the face of the complaint and may consider evidence outside the pleadings to resolve disputed factual issues. The plaintiff has the burden of proving by a preponderance of the evidence that subject matter jurisdiction exists. Civil Procedure > Jurisdiction > Subject Matter Jurisdiction > General Overview Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Failures to State Claims Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Motions to Dismiss HN2 When faced with a motion to dismiss pursuant to both Fed. R. Civ. P. 12(b)(1) and 12(b)(6), a court should decide the jurisdictional question under Rule 12(b)(1) first because a disposition of a Rule 12(b)(6) motion is a decision on the merits, and therefore, an exercise of jurisdiction. Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Failures to State Claims HN3 A Fed. R. Civ. P. 12(b)(6) motion to dismiss for failure to state a claim tests the legal sufficiency of a plaintiff's claims for relief. In deciding the motion, a court must accept as true all factual allegations made in the complaint and draw all reasonable inferences in favor of the plaintiff. The complaint need not contain detailed factual allegations. Nonetheless, threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Failures to State Claims Civil Procedure > Parties > Self-Representation > Pleading Standards Evidence > Judicial Notice > General Overview HN4 To survive a Fed. R. Civ. P. 12(b)(6) motion, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Determining whether the allegations of a complaint nudge a plaintiff's claims across the line from merely conceivable to plausible requires a court to draw on its judicial experience and common sense. In making its assessment, a court may consider, in addition to the plaintiff's factual averments, any written instrument upon which the plaintiff necessarily relies, regardless of whether it is attached to the complaint or incorporated therein by reference. When a plaintiff is proceeding pro se, a court also may rely on any opposition papers in assessing the legal sufficiency of the plaintiff's claims. Furthermore, a court may take judicial notice of indisputable facts. Fed. R. Evid. 201. Legal conclusions masquerading as factual averments, however, may not be taken into account. Civil Procedure > Parties > Self-Representation > Pleading Standards HN5 When a party is proceeding pro se, a court must read her pleadings liberally and interpret them to raise the strongest arguments that they may suggest. Dismissal of a pro se complaint is nevertheless appropriate where a plaintiff has clearly failed to meet minimum pleading requirements. Labor & Employment Law > Discrimination > Title VII of the Civil Rights Act of 1964 > Coverage & Definitions > General Overview HN6 Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., makes it unlawful for an employer to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. 42 U.S.C.S. § 2000e-2(a)(1). Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Failures to State Claims Civil Procedure > Pleading & Practice > Pleadings > Complaints > Requirements Labor & Employment Law > Discrimination > Disparate Treatment > Proof > Burdens of Proof HN7 To establish a claim of employment discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., an employee must show that: (a) she was a member of a class protected by the statute; (b) she was qualified for the position; (c) she suffered an adverse employment action; and (d) the adverse employment action occurred under circumstances that give rise to an inference of discrimination. At the pleading stage, even if the employee is not required to establish a prima facie case of employment discrimination to survive a motion to dismiss, her claim must be facially plausible and must give fair notice to the defendant of the basis for the claim. Labor & Employment Law > Discrimination > Retaliation > Burdens of Proof Labor & Employment Law > Discrimination > Retaliation > Elements > General Overview Labor & Employment Law > Discrimination > Retaliation > Statutory Application > Title VII of the Civil Rights Act of 1964 > General Overview HN8 Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., makes it unlawful for an employer to retaliate against an employee who has exercised her statutory right to complain about conduct that she considers discriminatory. 29 U.S.C.S. § 623(d); 42 U.S.C.S. §§ 2000e-3(a), 12203(a). A retaliation claim is not dependent on the merits of the underlying discrimination complaint. Consequently, to establish a prima facie case of retaliation, an employee need only show that: (a) she engaged in a protected activity; (b) the employer knew of this activity; (c) the employer took adverse action against the employee; and (d) there was a causal relation between the adverse action and the employee's protected activity. Proof of causation can be shown either: (a) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (b) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant. Furthermore, mere temporal proximity between a plaintiff's protected activity and an adverse employment action may, by itself, be sufficient to create an inference of retaliation for purposes of proving a prima facie case. Labor & Employment Law > Discrimination > Disparate Treatment > Proof > Burdens of Proof Labor & Employment Law > Discrimination > Title VII of the Civil Rights Act of 1964 > Coverage & Definitions > Labor Organizations Discrimination by unions is prohibited by Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., which makes it an unlawful employment practice for a labor organization to exclude or to expel from its membership, or otherwise discriminate against, any individual because of his race, color, religion, sex, or national origin. 42 U.S.C.S. § 2000e-2(c)(1). A Title VII claim brought against a union, however, is evaluated differently than such a claim against an employer. To succeed on her claim, a plaintiff first must show that the union breached its duty of fair representation to her. A union breaches its duty of fair representation when (a) its conduct toward a member is arbitrary, discriminatory, or in bad faith, and (b) the alleged misconduct injures the plaintiff. If the plaintiff establishes a breach of the duty of fair representation, she then must show some indication that the union's actions were motivated by unlawful discrimination or retaliation. Civil Procedure > Jurisdiction > Subject Matter Jurisdiction > General Overview Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Failures to State Claims Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Motions to Dismiss Labor & Employment Law > U.S. Equal Employment Opportunity Commission > Exhaustion of Remedies > General Overview HN10 Since the exhaustion of administrative remedies is a precondition to bringing a Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., claim in federal court, rather than a jurisdictional requirement, Fed. R. Civ. P. 12(b)(6)--rather than Rule 12(b)(1)--is the appropriate vehicle to evaluate the sufficiency of a plaintiff's efforts to exhaust her remedies. Labor & Employment Law > U.S. Equal Employment Opportunity Commission > Exhaustion of Remedies > Filing of Charges Generally, a plaintiff may bring a Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., claim in federal court only after filing a timely charge with the Equal Employment Opportunity Commission (EEOC) or with a state or local agency with authority to grant or seek relief from such practice. 42 U.S.C.S. § 2000e-5(e); 42 U.S.C.S. § 12117(a). Although exhaustion thus is ordinarily an essential element of a Title VII claim, claims not raised in an EEOC complaint may be brought in federal court if they are reasonably related to the claim filed with the agency. A claim raised for the first time in the district court is reasonably related to allegations in an EEOC charge where the conduct complained of would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination. The central question is whether the complaint filed with the EEOC gave that agency adequate notice to investigate discrimination of the type alleged in the civil complaint. Courts have consistently held that discrimination claims based on age, sex, or disability are not reasonably related to claims based on race or color, and vice versa. COUNSEL:  [*1] Eugenia Pinkard, Plaintiff, Pro se, Brooklyn, NY. For NYC Department of Education, Defendant: Asad Rizvi, LEAD ATTORNEY, New York City Law Department, New York, NY. For UFT, Defendant: Stuart Lloyd Lichten, Lichten & Bright, P.C., New York, NY. JUDGES: FRANK MAAS, United States Magistrate Judge. OPINION BY: FRANK MAAS OPINION DECISION AND ORDER FRANK MAAS, United States Magistrate Judge. In this employment discrimination action, pro se plaintiff Eugenia Pinkard ("Pinkard"), an African-American woman, contends that the New York City Department of Education ("DOE") unlawfully terminated her employment as a school secretary because of her race. Pinkard further contends that her union, the United Federation of Teachers ("UFT"), and her UFT attorney, Eric Chen ("Chen"), unlawfully discriminated against her. In her complaint, (ECF No. 2 ("Compl." or "Complaint")), Pinkard expressly seeks relief only under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"). The parties have consented to my exercise of jurisdiction over this case for all purposes pursuant to 28 U.S.C. § 636(c). (ECF No. 15). The DOE, UFT, and Chen (collectively, the "Defendants") have moved to dismiss the Complaint pursuant to  [*2] Rules 12(b)(1) and12(b)(6) of the Federal Rules of Civil Procedure. (ECF Nos. 22, 33). For the following reasons, the Defendants' motions are granted and the Complaint is dismissed. I. Background A. Facts Unless otherwise indicated, the following facts are either undisputed or set forth in the light most favorable to Pinkard. In September 2004, Pinkard began working as a school secretary at the High School for Civil Rights in Brooklyn. (ECF No. 39 ("Pl.'s Opp'n") Ex. 9). In October 2004, Pinkard was involved in an altercation instigated by a school aide. The school's principal concluded, however, that Pinkard's behavior "constitute[d] insubordination" and placed a letter to that effect in Pinkard's file. (Id. Ex. 4 at 3). At the conclusion of the school year, the principal recommended that the DOE discontinue Pinkard's probationary service. (Id. at 2). Thereafter, on June 23, 2005, the Local Instructional Superintendent ("LIS") acted upon that recommendation by denying Pinkard a certification that she had completed her probationary period. Pinkard's employment consequently was terminated effective August 29, 2005. (Id. Ex. 5 at 1). On June 29, 2006, Pinkard went to the office of LIS Varleton  [*3] McDonald ("McDonald"), the successor to the LIS who had terminated Pinkard. (Pl.'s Opp'n at 4). Although that day was his last as the school's LIS, McDonald issued a letter reversing the discontinuance and instructing Pinkard to report to the Regional Operation Center ("ROC") for assignment. (Id. Ex. 6). Pinkard subsequently went to the ROC, where she presented the letter from McDonald, but was not given an assignment. (Id. at 4). Pinkard later learned that the ROC administrator with whom she spoke thought that McDonald was no longer an LIS at the time he issued the letter, rendering it ineffective. (Id.; see also id. Ex. 7 (email suggesting "McDonald was not the LIS of record on the date he affixed his signature to [his June 29 letter])). On December 11, 2006, Pinkard filed a grievance with the DOE. In that grievance, Pinkard stated that: (1) My discontinuance dated 7/23/05 [actually 6/23/05] was overturned by the superintendent on 6/29/06. I am asking for compensation for the time I was out of work and to be made whole in all ways. (2) I am owed 20 peak load hours from June 2005. The above is in violation of Articles 3, 7 and 15 of the Agreement. As a remedy, I request to be made whole  [*4] by being paid monies owed to me in addition to 6% interest pursuant to State law. (Id. Ex. 5 at 2). On January 10, 2007, the District held a hearing to consider Pinkard's grievance, at which Pinkard evidently was represented by a UFT representative. (Pl.'s Opp'n at 4 & Ex. 5 at 3). Thereafter, in May 2008, Pinkard contacted the UFT because she had not received a decision regarding her grievance. (Id. Ex. 12). The UFT subsequently arranged for Chen, an attorney with the New York State United Teachers ("NYSUT"), to represent Pinkard.1 Chen then contacted McDonald, who confirmed that he was, in fact, still a LIS when he wrote the letter reversing Pinkard's discontinuance. (Id. Exs. 1 at 1, 11 ("Pl.'s Art. 78 Mem.") at 4). On September 8, 2008, Chen filed an Article 78 petition on Pinkard's behalf in Supreme Court, New York County, which contended that the DOE had "failed to perform a ministerial act required by law" by not reversing the discontinuance of Pinkard's employment. (See Pl.'s Art 78 Mem. at 1). - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - 1 The NYSUT is a federation of 1,200 unions, the largest of which is the UFT. See http://www.nysut.org/cps/rde/xchg/nysut/hs.xsl/about.htm (last visited on Apr. 24, 2012). - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - At some point after  [*5] Chen filed the Article 78 petition, the DOE proposed a settlement, pursuant to which Pinkard would receive back pay in the amount of $91,067 and be reinstated as a school secretary at the highest pay scale contractually permissible for her position. (See Pl.'s Opp'n Ex. 1 (emails between Pickard and Chen discussing settlement offer)). Chen conveyed the offer to Pinkard, who rejected it because, among other things, she wanted the DOE to restore her to her position with tenure, pay her at an even higher rate, and add interest to the amount she recovered. (Id.; see Compl. at 11). On March 26, 2009, the DOE hand delivered a letter to Pinkard instructing her "to report to the Brooklyn Integrated Service Center for an assignment in order to be reinstated to the position of School Secretary." (Pl.'s Opp'n Ex. 3). The letter further instructed Pinkard to "go to 65 Court Street to . . . pick up your check for back pay." (Id.). Pinkard then sent Chen an email informing him of the letter and requesting guidance. Specifically, Pinkard wanted to know (1) why she was told to pick up a check when she had not signed any settlement papers, (2) whether she would receive a separate check for "per session"  [*6] pay and other back pay to which she believed she was entitled, and (3) whether a decision ever had been issued regarding her grievance. (Compl. at 50). Chen replied to Pinkard's email the same day, informing her that: It appears that rather than asking you to settle or sign anything, the DOE has unilaterally reinstated you to work and is just going to pay you the same money you were offered before. . . . They are arguing that since you are being offered back pay and your job back, that you have been given everything you seek and there is nothing left to ask the Court. But I don't see anything in the papers regarding the per session money, or the money you would have received since February. (Id. at 49). Chen further advised Pinkard to report for her work assignment as instructed in the letter because he feared that, if she failed to do so, the DOE would argue that she had refused to return to work and thus had abandoned her position. (Id.). Chen also recommended that Pinkard retrieve and deposit the check because "it may not be available to [her] later." (Id.). Pinkard emailed Chen that evening, stating that: I still want to make it clear that I want to proceed with the lawsuit[] if they  [*7] are not going to reinstate me wholly. I want to be reinstated wholly, I am not settling. If [] taking this money and returning to work is settling, I don't want it. (Pl.'s Opp'n Ex. 2). The next day, Chen sent Pinkard an email stating, "I don't believe taking the money and returning to work would be settling." (Id.). On or about March 27, 2009, Pinkard picked up a check in the amount of $91,067.88 and reported to work. (Id. at 5). Instead of being assigned to a permanent position, however, Pinkard was sent to a "[r]ubber room," where, according to Pinkard, "people are sent for further investigation."2 (Id. at 3). - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - 2 "[R]ubber rooms, [also] known as reassignment centers," were notorious facilities where school employees accused of incompetence or misconduct would "show up every school day, sometimes for years, doing no work and drawing full salaries." Jennifer Medina, Deal Reached to Fix Teacher Discipline Process, N.Y. Times, Apr. 17, 2010, at Al. The UFT and City of New York agreed to discontinue the use of rubber rooms in the fall of 2010. Id. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - Thereafter, on August 25, 2009, Justice Marcy S. Friedman granted a motion to dismiss Pinkard's Article 78 petition as moot since Pinkard had been  [*8] reinstated to her position as a school secretary and awarded back pay. See Pinkard v. Bd. of Ed. of the City Sch. Dist. of the City of N.Y., Index No. 112198 (Sup. Ct. N.Y. County), Order dated Aug. 25, 2009. Although Pinkard opposed the motion, Justice Friedman found that it was "unclear why [Pinkard] contend[ed] that the amount of back pay was insufficient."3 Id. Justice Friedman therefore dismissed the petition "without prejudice to proper proceedings if still timely." Id. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - 3 In her opposition brief, Pinkard maintained that she was entitled to an additional $13,209.12 in back pay and should have been reinstated at a higher pay rate. (See Pl.'s Opp'n Ex. 11 (Chen Affirm, in Opp'n to Resp'ts' Cross-Mot. to Dismiss)). - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - On March 5, 2009, while her Article 78 petition was pending, Pinkard filed an "improper practice charge" with the New York Public Employment Relations Board ("PERB"). See In re Pinkard, No. U-28996, 43 P.E.R.B. ¶ 4623 (Dec. 21, 2010), available at 2010 WL 6771342. In that charge, Pinkard alleged that the UFT had violated "§ 209-a.2(c) of the Public Employees' Fair Employment Act . . . [because] the UFT attorney representing Pinkard did not advise her why a decision following  [*9] her grievance hearing had not been rendered." Id. By order dated December 21, 2010, after a hearing at which both Pinkard and Chen testified and the submission of post-hearing briefs, PERB found that Pinkard failed to establish that the UFT "acted arbitrarily, discriminatorily or in bad faith in representing [her]." Id. PERB also declined to address additional claims that were either untimely or raised for the first time in Pinkard's post-hearing brief. Id. Pinkard was terminated again following the 2009-2010 school year. On August 16, 2010, the Superintendent of Brooklyn High Schools affirmed Pinkard's "Discontinuance of Probationary Service and Termination of License." (Pl.'s Opp'n Ex. 9 at 1). Following a hearing on January 5, 2011, before the Office of Appeals and Review, the District Superintendent reaffirmed Pinkard's discontinuance on February 7, 2011. (Id. at 3-4). Pinkard contends that her second termination was in retaliation "for standing up to [her] Union, the New York City Department of Education and NYSUT." (Pl.'s Opp'n at 2). Specifically, Pinkard alleges that the UFT failed to vindicate her rights in retaliation for Pinkard having filed a charge with PERB. Pinkard further  [*10] maintains that the discontinuance of her probationary service was impermissible because her reinstatement should have resulted in her obtaining tenure, thereby causing her to be a non-probationary employee. (See id. at 5). Although Pinkard brings this action pursuant to Title VII, the only reference to racial discrimination is found in the statement of facts section of her form Complaint, in which she states: I was terminated by the [DOE] for being insubordinate to a school aide in 2005. The union never filed any charges against the [DOE]. When the union finally assigned me an attorney[,] the attorney coer[c]ed me into taking monies[,] which was not in my best interest regarding my case. I feel because I am a black woman neither of my representatives handled my case properly. (Compl. at 3). The Complaint also mentions "wages [] being withheld as retaliation," but does not elaborate on that claim. (Id.). B. Procedural History After Pinkard filed a charge with the federal Equal Employment Opportunity Commission ("EEOC") on April 14, 2011 (see ECF No. 37 (Decl. of Ass't Corp. Counsel Asad Rizvi, dated Nov. 28, 2011 ("Rizvi Decl."), Ex. C)), the EEOC issued her three right-to-sue letters on [*11] May 11, 2011, authorizing her to sue the DOE, UFT, and NYSUT (see Compl. at 5-7). Pinkard then commenced this suit in forma pauperis on July 29. 2011. (ECF. Nos. 1, 2). On November 3, 2011, the parties consented to my exercise of jurisdiction over this case for all purposes pursuant to 28 U.S.C. § 636(c). (ECF No. 15). On November 7, 2011, the Court ordered that the Complaint and caption be deemed amended to add Chen as an individual defendant. (See ECF No. 14) On November 17, 2011, Pinkard apparently served the DOE with an amended complaint. (See EFC No. 25 ("Am. Compl." or "Amended Complaint"); DOE Mem. Ex. B). It is unclear whether the Amended Complaint ever was served on the UFT or Chen. The only difference between the Complaint and the Amended Complaint is the inclusion of the following underlined words in the statement of facts: Originally I was terminated for being insubordinate to a school aide in 2005. The union never filed any charges against the [DOE]. The union finally assigned me an attorney. The attorney coer[c]ed me intl taking monies[,] which was not in my best interest regarding my case. I feel because I am a black woman and secretary neither of my representatives  [*12] handled my case properly[,] which resulted in me being terminated again Aug[ust] 2011. (Am. Compl. at 3). The Court need not decide whether Pinkard properly served and filed the Amended Complaint because, even if she did, it would be subject to dismissal for the reasons set forth below. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - 4 The original Complaint listed "NYC Dept of Ed Attorney" in the caption, but referred to an unnamed union attorney in the statement of facts. (See Compl. at 1, 3). The November 7 order incorrectly spelled Chen's last name as "Chin." (See ECF No. 36 ("DOE Mem.") at 3 n.1). The Complaint and caption therefore are deemed amended again to reflect the correct spelling of Chen's last name.5 Pinkard has the date wrong. Her second termination took place on August 16, 2010, and was effective that day. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - On November 22, 2011, the UFT filed a motion to dismiss, and, on November 29, 2011, the DOE did the same. (ECF Nos. 22, 33). Pinkard filed her opposition to both motions on December 27, 2011, (ECF No. 38), after which the DOE filed a reply on January 6, 2012 (ECF No. 39). The motions therefore are fully submitted. II. Discussion A. Standard of Review 1. Rule 12(b)(1) HN1Under Rule 12(b)(1), a complaint must be dismissed  [*13] if a court lacks subject matter jurisdiction over the action. In deciding a Rule 12(b)(1) motion, a court is not limited to the face of the complaint and may consider evidence outside the pleadings to resolve disputed factual issues. State Emp. Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 77 n.4 (2d Cir. 2007); Phifer v. City of N.Y., 289 F.3d 49, 55 (2d Cir. 2002). The plaintiff has the burden of proving by a preponderance of the evidence that subject matter jurisdiction exists. Phifer, 289 F.3d at 55 (citing Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). HN2When faced with a motion to dismiss pursuant to both Rules 12(b)(1) and 12(b)(6), a court should "decide the 'jurisdictional question [under Rule 12(b)(1)] first because a disposition of a Rule 12(b)(6) motion is a decision on the merits, and therefore, an exercise of jurisdiction.'" Tirone v. N.Y. Stock Exch., Inc., No. 05 Civ. 8703 (WHP), 2007 U.S. Dist. LEXIS 54255, 2007 WL 2164064, at *3 (S.D.N.Y. July 27, 2007) (quoting Magee v. Nassau Cnty. Med. Ctr., 27 F. Supp. 2d 154, 158 (E.D.N.Y. 1998)). 2. Rule 12(b)(6) HN3A Rule 12(b)(6) motion to dismiss for failure to state a claim tests the legal sufficiency of a plaintiff's claims for relief. Krasner v. HSH Nordbank AG, 680 F. Supp. 2d 502, 511 (S.D.N.Y. 2010)  [*14] (Lynch, D.J.). In deciding the motion, a court must accept as true all factual allegations made in the complaint and draw all reasonable inferences in favor of the plaintiff. Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d Cir. 2006). The complaint need not contain "detailed factual allegations." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). Nonetheless, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555). HN4To survive a Rule 12(b)(6) motion, a complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). Determining whether the allegations of a complaint nudge a plaintiff's claims across the line from merely "conceivable to plausible" requires a court to "draw on its judicial experience and common sense." Id. at 679-80. In making its assessment, a court may consider, in addition to the plaintiff's factual averments, any written instrument upon which the plaintiff necessarily relies, regardless of whether it is attached  [*15] to the complaint or incorporated therein by reference. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002). When a plaintiff is proceeding pro se, a court also may rely on any opposition papers in assessing the legal sufficiency of the plaintiff's claims. See Crum v. Dodrill, 562 F. Supp. 2d 366, 373 n.13 (N.D.N.Y. 2008) (citing Gadson v. Goord, No. 96 Civ. 7544 (SS), 1997 U.S. Dist. LEXIS 18131, 1997 WL 714878, at *1 n.2 (S.D.N.Y. Nov. 17, 1997)). Furthermore, a court may take judicial notice of indisputable facts. See Fed. R. Evid. 201. Legal conclusions masquerading as factual averments, however, may not be taken into account. Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir. 2002) (citing Gebhardt v. Allspect, Inc., 96 F. Supp. 2d 331, 333 (S.D.N.Y. 2000)). HN5Because Pinkard is proceeding pro se, the Court must read her pleadings "liberally" and interpret them "to raise the strongest arguments" that they may suggest. Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (citing Harris v. City of N.Y., 607 F.3d 18, 24 (2d Cir. 2010)). "Dismissal of a pro se complaint is nevertheless appropriate where a plaintiff has clearly failed to meet minimum pleading requirements." Carvel v. Ross, No. 09 Civ. 722 (LAK) (JCF), 2011 U.S. Dist. LEXIS 25203, 2011 WL 856283, at *8 (S.D.N.Y. Feb. 16, 2011). [*16]  B. Applicable Law 1. Wrongful Termination HN6Title VII makes it unlawful for an employer "to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). HN7To establish a claim of employment discrimination under Title VII, Pinkard must show that: (a) she was a member of a class protected by the statute; (b) she was qualified for the position; (c) she suffered an adverse employment action; and (d) the adverse employment action occurred under circumstances that give rise to an inference of discrimination. See Farias v. Instructional Sys., Inc., 259 F.3d 91. 98 (2d Cir. 2001). At the pleading stage, even if Pinkard is not required to establish a prima facie case of employment discrimination to survive a motion to dismiss, see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-11, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002); Barbosa v. Continuum Health Partners, Inc., 716 F. Supp. 2d 210, 214-15 (S.D.N.Y. 2010) (reconciling Twombly, Iqbal, and Swierkiewicz),  [*17] her "claim must be facially plausible and must give fair notice to the defendant[] of the basis for the claim,"Barbosa, 716 F. Supp. 2d at 215 (citing Fowler v. Scores Holding Co., Inc., 677 F. Supp. 2d 673, 679 (S.D.N.Y. 2009)). 2. Retaliation HN8Title VII also makes it unlawful for an employer to retaliate against an employee who has exercised her statutory right to complain about conduct that she considers discriminatory. 29 U.S.C. § 623(d); 42 U.S.C. §§ 2000e-3(a), 12203(a). A retaliation claim is "not dependent on the merits of the underlying discrimination complaint." Davis v. State Univ. of N.Y., 802 F.2d 638, 642 (2d Cir. 1986). Consequently, to establish a prima facie case of retaliation, an employee need only show that: (a) she engaged in a protected activity; (b) the employer knew of this activity; (c) the employer took adverse action against the employee; and (d) there was a causal relation between the adverse action and the employee's protected activity. Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001); Holt v. KMI-Cont'l, Inc., 95 F.3d 123, 130 (2d Cir. 1996). "[P]roof of causation can be shown either: [a] indirectly, by showing that the protected activity was followed  [*18] closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or [b] directly, through evidence of retaliatory animus directed against the plaintiff by the defendant." Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000). Furthermore, mere temporal proximity between a plaintiff's protected activity and an adverse employment action may, by itself, be sufficient to create an inference of retaliation for purposes of proving a prima facie case. El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 932 (2d Cir. 2010). 3. Title VII Claim Against a Union HN9Discrimination by unions is prohibited by Title VII, which makes it "an unlawful employment practice for a labor organization . . . to exclude or to expel from its membership, or otherwise discriminate against, any individual because of his race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(c)(1); see Yerdon v. Henry, 91 F.3d 370, 375 (2d Cir. 1996) (labor union liable under Title VII). A Title VII claim brought against a union, however, is evaluated differently than such a claim against an employer. To succeed on her claim,  [*19] Pinkard first must show that "the [u]nion breached its duty of fair representation to [her]." Oparji v. United Fed. of Teachers, 418 F. Supp. 2d 139, 147 (E.D.N.Y. 2006). A union breaches its duty of fair representation when (a) "its conduct toward a member . . . is arbitrary, discriminatory, or in bad faith," Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 44, 119 S. Ct. 292, 142 L. Ed. 2d 242 (1998), and (b) the alleged misconduct injures the plaintiff, Spellacy v. Airline Pilots Assoc.-Int'l, 156 F.3d 120, 130 (2d Cir. 1998). If Pinkard establishes a breach of the duty of fair representation, she then "must show some indication that the union's actions were motivated by unlawful discrimination or retaliation." Oparji, 418 F. Supp. 2d at 146. C. Application of Law to Facts 1. Exhaustion of Administrative Remedies The DOE contends that the Complaint must be dismissed pursuant to Rule 12(b)(1) on the ground that the Court lacks subject matter jurisdiction because Pinkard failed to allege discrimination based on race or color in her EEOC Charge. (See DOE Mem. at 7-8). Indeed, in her charge, Pinkard selected only "sex" and "age" as the "circumstances of alleged discrimination," omitting "race" or "color." (See Rivzi Decl.  [*20] Ex. C). HN10Since the exhaustion of administrative remedies "is a precondition to bringing a Title VII claim in federal court, rather than a jurisdictional requirement," Francis v. City of N.Y., 235 F.3d 763, 768 (2d Cir. 2000) (quotation marks omitted), Rule 12(b)(6) — rather than Rule 12(b)(1) — is the appropriate vehicle to evaluate the sufficiency of a plaintiff's efforts to exhaust her remedies, see Holowecki v. Fed. Express Corp., 440 F.3d 558, 565 (2d Cir. 2006) (reviewing motion to dismiss complaint for failure to exhaust administrative remedies under Rule 12(b)(6)); Fernandez v. Chertoff, 471 F.3d 45, 51-52 (2d Cir. 2005) (same). HN11Generally, a plaintiff may bring a Title VII claim in federal court only after filing a timely charge with the EEOC or with "a State or local agency with authority to grant or seek relief from such practice." 42 U.S.C. § 2000e-5(e); 42 U.S.C. § 12117(a). Although exhaustion thus is "ordinarily an essential element of a Title VII claim, . . . [c]laims not raised in an EEOC complaint . . . may be brought in federal court if they are 'reasonably related' to the claim filed with the agency." Williams v. N.Y.C. Hous. Auth., 458 F.3d 67, 70 (2d Cir. 2006) (quoting  [*21] Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001), and Butts v. City of N.Y. Dep't of Hous. Pres. & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993)). "A claim raised for the first time in the district court is 'reasonably related' to allegations in an EEOC charge 'where the conduct complained of would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.'" Holtz v. Rockefeller & Co., 258 F.3d 62, 83 (2d Cir. 2001) (quoting Butts, 990 F.2d at 1402). "The central question is whether the complaint filed with the EEOC gave that agency adequate notice to investigate discrimination [of the type alleged in the civil complaint]." Williams, 458 F.3d at 70 (internal quotation marks omitted). Here, Pinkard has failed to exhaust her administrative remedies because her charge did not put the EEOC on notice to investigate discrimination based on Pinkard's race or color. Instead, Pinkard's EEOC charge was based solely on her age and sex. (Rivzi Decl. Ex. C). Courts have consistently held that discrimination claims based on age, sex, or disability are not reasonably related to claims based on race or color,  [*22] and vice versa. See, e.g., Joseph v. Am. Works, Inc., No. 01 Civ. 8287 (DC), 2002 U.S. Dist. LEXIS 9075, 2002 WL 1033833, at *5-6(S.D.N.Y. May 21, 2002) (disability claim dismissed for failure to exhaust because plaintiff asserted only Title VII race discrimination claims in her EEOC complaint); Coleman v. Bd. of Educ., No. 96 Civ. 4293 (GBD), 2002 U.S. Dist. LEXIS 619, 2002 WL 63555, at *3 (S.D.N.Y. Jan. 16, 2002) (gender discrimination claim not reasonably related to national origin, race, or color discrimination claims); McNealy v. N.Y. Pub. Library, No. 96 Civ. 3023 (DAB), 1997 U.S. Dist. LEXIS 15014, 1997 WL 607548, at *4 (S.D.N.Y. Oct. 1, 1997) (disability claim not reasonably related to race discrimination claim raised in EEOC charge); DiProjetto v. Morris Protective Serv., 489 F. Supp. 2d 305, 308 (W.D.N.Y. 2007) (race, gender, and disability discrimination claims not reasonably related to discrimination claim based on national origin); James v. Fed. Reserve Bank of N.Y., No. 01-CV-1106 (RJD) (WP), 2005 U.S. Dist. LEXIS 43493, 2005 WL 1889859, at *5 (E.D.N.Y. Aug. 8, 2005) (race discrimination claim not reasonably related to disability, age, and gender discrimination charges raised before the EEOC). Pinkard's claims against both the DOE and UFT therefore must be dismissed pursuant to Rule 12(b)(6)  [*23] for failure to exhaust her administrative remedies. 2. Timeliness Even if Pinkard had exhausted her administrative remedies, most of her claims would have to be dismissed on the independent ground that they are untimely. "Title VII . . . require[s] claimants to file a charge of discrimination with the EEOC . . . within 300 days of the alleged discriminatory employment action; claims for acts that occurred more than 300 days before the filing are time-barred in federal court." Adams v. N.Y.S. Educ. Dep't., 752 F. Supp. 2d 420, 465 n.52 (S.D.N.Y. 2010) (citing 29 U.S.C. § 626(d)(1)(B); 42 U.S.C. §§ 12117(a), 2000e-5(e)(1)). There are, however, several possible ways to overcome the limitations period. First, the Second Circuit has held that the 300-day limitations period is "subject to waiver, estoppel, and equitable tolling." Downey v. Runyon, 160 F.3d 139, 145-46 (2d Cir. 1998) (quotingZipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S. Ct. 1127, 71 L. Ed. 2d 234 (1982)). Additionally, a plaintiff may rely on the "continuing violation exception." See Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 220 (2d Cir. 2004). Under that exception, if a plaintiff "files an EEOC charge that is timely as to any incident  [*24] of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts of discrimination under that policy will be timely even if they would be untimely standing alone."Nghiem v. U.S. Dep't of Veterans Affairs, 323 F. App'x 16, 17 (2d Cir. 2009) (quoting Patterson, 375 F.3d at 220). Nevertheless, "discrete discriminatory acts," such as termination, failure to promote, or refusal to hire, "are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113-14, 122 S. Ct. 2061, 153 L. Ed. 2d 106(2002). Thus, each "discrete act" of discrimination or retaliation "constitutes a separate actionable unlawful employment practice." Id. at 114. (internal quotation marks omitted). In this case, Pinkard's EEOC charges against the DOE and UFT evidently were filed no earlier than April 8, 2011. (See Compl. at 5-6; ECF No. 23 (Decl. of Stuart Lichten, Esq., dated Nov. 18, 2011), ¶¶ 4-5). Any claims related to DOE or UFT actions that occurred more than 300 days before April 8, 2011 — i.e., before June 12, 2010 — therefore are time barred. Consequently, Pinkard's claims relating to her termination in 2005, her grievance in  [*25] 2006, any shortcomings in her union representation in 2008-2009, and her reinstatement in 2009 are untimely. Furthermore, Pinkard has failed to allege any facts that suggest that the Defendants had an "ongoing policy of discrimination" that would warrant application of the continuing violation exception, see Nghiem, 323 F. App'x at 17, or any of the three other exceptions set forth in Downey, 160 F.3d at 145-46. Pinkard's claims relating to events occurring before June 12, 2010 therefore are dismissed as time barred.6 - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - 6 This includes all of Pinkard's claims against Chen. Even if those claims were not time barred, her Title VII claims against Chen would have to be dismissed because individuals cannot be held liable under Title VII. See Mandell v. Cnty. of Suffolk, 316 F.3d 368, 377 (2d Cir. 2003); Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000) (per curiam) - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - 3. Failure to State a Claim a. Wrongful Termination To the extent Pinkard brings a Title VII claim arising out of her termination on August 16, 2010, and the UFT's subsequent failure to represent her, her claim would have to be dismissed even if it had been properly exhausted, for failure to allege facts giving rise to an inference  [*26] of racial discrimination. Pinkard's single, conclusory statement with respect to discriminatory intent — that she "feels" that neither the DOE nor the UFT "handled [her] case properly" "because [she] is a black woman" — clearly is insufficient to state a racial discrimination claim under Title VII. See, e.g., Reid v. Hebrew Home for the Age, No. 11 Civ. 1408 (GBD) (GWG), 2012 U.S. Dist. LEXIS 29013, 2012 WL 698135, at *2 (S.D.N.Y. Mar. 05, 2012) (plaintiff's conclusory statement that "defendant's acts were taken 'because of [her] race' . . . without more is insufficient to support a race discrimination claim") (brackets in original); Alvarez v. Rosa, No. 11 Civ. 3818 (KBF), 2012 U.S. Dist. LEXIS 25693, 2012 WL 651630, at *4 (S.D.N.Y. Feb. 28, 2012) (discrimination claim dismissed because "[p]laintiff provide[d] only speculations, labels and conclusions in support of her claims"); Mitchell v. Project Renewal, No. 09 Civ.1958 (CM), 2010 U.S. Dist. LEXIS 8323, 2010 WL 481348, at *3 (S.D.N.Y. Jan. 29, 2010) (plaintiff's conclusory statement, that "because I was African American, [plaintiff's supervisor] felt like I wasn't good enough to be a supervisor," insufficient to state a discrimination claim under Title VII). This shortcoming, of course, applies to any Title VII claim  [*27] that Pinkard might be able to assert with respect to earlier events. Accordingly, all of Pinkard's Title VII claims are subject to dismissal for failure to state a claim. See Fed. R. Civ. P. 12(b)(6). b. Retaliation Pinkard also has failed to state a retaliation claim against the UFT based on its alleged failure to represent her following her August 2010 termination. Indeed, Pinkard has failed to demonstrate any "indication that the union's actions were motivated by unlawful discrimination or retaliation." Oparji, 418 F. Supp. 2d at 146. Pinkard similarly has set forth no facts substantiating her conclusory allegation that her "wages are being withheld as retaliation." Her retaliation claim consequently also must be dismissed.7 - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - 7 To the extent Pinkard seeks to assert a "hybrid" claim against the UFT for breaching its duty of fair representation under the Labor Management Relations Act (LMRA), see DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 164, 103 S. Ct. 2281, 76 L. Ed. 2d 476, (1983), that claim also must fail because federal courts lack "subject matter jurisdiction over duty of fair representation claims brought by employees of political subdivisions." Gear v. Dep't of Ed., No. 07 Civ. 11102 (NRB), 2010 U.S. Dist. LEXIS 137153, 2010 WL 5297850, at *3-4 (S.D.N.Y. Dec. 21, 2010)  [*28] (citing Ford v. D.C. 37 Union Local 1549, 579 F.3d 187, 188 (2d Cir. 2009)). - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - III. Conclusion For the reasons set forth above, the Defendants' motions to dismiss, (ECF Nos. 22, 33), are granted. Moreover, because Pinkard failed to exhaust her administrative remedies and could not timely do so now, that dismissal is with prejudice. The Clerk of the Court accordingly is requested to close this case. The Court further certifies that any appeal from this Decision and Order would not be taken in good faith because it would be frivolous. See 28 U.S.C. § 1915: Coppedge v. United States, 369 U.S. 438. 445, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962). Dated: New York, New York May 2, 2012 /s/ Frank Maas FRANK MAAS United States Magistrate Judge

Rubber Roomer's May 25, 2010 Letter To UFT President Mike Mulgrew

To all readers of my blog:

I was just sent the letter sent below from a former 335 Park place "rubber roomer", and thought I would post it.

Mike Mulgrew did not reply.

In July 2010 I was told that no UFT members needed help any more, as there were no more 'rubber rooms', so my agreement to represent members ended. Ellie and Mike wrote me that they loved my advocacy for the members.

I started my own company, ADVOCATZ, which shows that everything happens for a reason.

Betsy Combier Editor, NYC Rubber Room Reporter
President, ADVOCATZ

May 25, 2010

Dear Mr. Mulgrew,                                                                           

I am writing to thank you for providing the Reassigned Teachers at 355 Park Place in Brooklyn with the unwavering advocacy of your staff member, Betsy Combier.  I feel fortunate to have met Mrs. Combier at this center when it first opened two and a half years ago.  As frightening as it was for me to be removed from my school, nothing could have prepared me for the stress associated with being in the TRC.  Like most of the teachers that I have met, I felt scared, alone and unable to help my situation.   I had hundreds of questions and concerns about my future.  Betsy’s   genuine commitment to the teachers in our center not only alleviated some of the burdens associated with reassignment, but also served as an ongoing source of support and comfort.  She spent her time listening to our concerns and provided sensible advice.  Her positive spirit and boundless encouragement to stay focused on the resolution of each of our individual concerns made her weekly visits a time that we all looked forward to.

Now that the “Rubber Rooms” are closing, the future has become even more uncertain. Many of us are scared and concerned about where we will be placed in September. What type of work will we be assigned? What if we find ourselves in a less than fair situation?  Who will be available to listen to our concerns? Will there be a support system provided to attend to our specific needs?  Will there be someone assigned the responsibility of tracking where we are sent and whether or not the work assigned to us is appropriate?

Mike Mulgrew, Carmen Farina, Bill de Blasio

Unanswered questions, confusion, fear and anger will surely accompany the opening of the 2010-2011 as teachers who have been unfairly re-assigned are their new locations.  Teachers reassigned randomly will still need ongoing support from someone with knowledge and experience in the reassignment process who understands the mental stress those of us who have been sitting in the rubber rooms have endured.  In the past seven years, Betsy Combier has generated an infallible trust with the reassigned teachers and I believe that the continuity she is able provide would greatly benefit them.  Please consider utilizing Mrs. Combier’s  experience and knowledge in a way that would continue to support the UFT members during and after the reorganization process.   I would very much appreciate a response to this letter. Thank you so much.

Sincerely,    Laurie Luft

The Sobering NAEP Results

CONTACT:

Nicolle Grayson

202-293-1217, x. 354

ngrayson@edtrust.org

“TODAY’S NAEP RESULTS ARE SOBERING”
Ed Trust on the results of the 2015 National Assessment of Educational Progress, or NAEP

WASHINGTON (October 28, 2015) — Kati Haycock, president of TheEducation Trust, issued the following statement on the release of results from the 2015 National Assessment of Educational Progress, or NAEP.

“Any way you look at it, today’s NAEP results are sobering. Compared with results from 2013, scores for the nation’s low-income students and students of color mirror those of all other students: mostly flat or declining performance. 

“While there may be plausible explanations for these patterns — among them the disruptions caused by the transition to new standards — any interruption of the slow but steady progress these groups have made over the past two decades is cause for great concern. With fewer than 1 in 4 low-income students and students of color meeting the proficient or advanced levels, the nation cannot afford anything less than accelerated improvement for these groups, who now make up the majority of our K-12 student body. 

“Education leaders at the national, state, and local levels must do a clear-eyed assessment of what’s working and what’s not, and redouble efforts to drive improvement for all students, especially our most vulnerable.”

NOTE: The Education Trust will release an analysis of national, state, and district data later today. Please check back at EdTrust.org/NAEP2015 or follow us on Twitter @EdTrust for up-to-date news on NAEP.  

###

The Education Trust is a nonprofit advocacy organization that promotes high academic achievement for all students at all levels, pre-kindergarten through college. Its goal is to close the gaps in opportunity and achievement that consign far too many young people — especially those from low-income families or who are black, Latino, or American Indian — to lives on the margins of the American mainstream.

California's decade of gains on this test just ended

ICE Posts UFT Chief Amy Arundell's Clarification on the Cost of ATRs

UFT EXPLAINS COST OF ATRS; ATR DEPARTMENT OF LABOR CHAPTER ELECTION COMPLAINT MOVES FORWARD
LINK

Amy Arundell

The email below was sent from UFT personnel specialist Amy Arundell to an ATR. As some of us have said in the past, the reason ATR's are not hired for permanent placement, particularly in smaller schools, has much to do with most of us having seniority so we would have bumping rights over junior teachers in an excess situation. Our high salaries are not added to school budgets as Amy illustrates. An ATR who is hired at a school still costs more than a new teacher, who would lower the school's average salary, however the difference is not great. In the end, many veteran ATRs are not getting regular positions because we have institutional memory. To put it another way, many of us won't say how high when asked to jump by administrators.

The ATR agreement in the current contract expires after the 2015-16 school year ends and must be renegotiated to continue. I would argue that the UFT should let it expire to get rid of the provision that says that an ATR misses who two mandated interviews has automatically resigned. Tenure is irrelevant and interviews can be missed for legitimate reasons. I heard of someone who was sick for one recently. If that person misses a second interview, is that teacher out? This provision has to go. Also, the weakened tenure hearings for certain ATR's also needs to end.

The UFT could just sit and allow the 2014 provisions to sunset by doing nothing. We would revert to the previous contract. I predict they will continue the 2014 agreement and keep treating ATRs like third class UFT members. I hope I'm wrong. I would like for the union's leaders to at least ask the ATRs how they feel about their contract.

Meanwhile, I spoke at length to Department of Labor Investigator Robert Rennard last week about our ATR election complaint. It is now up to the ATRs to tell the DOL their stories about how they could not vote in Chapter elections in the spring. Please email me at ICEUFT@gmail.com for more information on moving ahead with this.

Amy's Email

As I explained in the meeting:...
If a school hires an ATR permanently, the MOA states that any school that selects an ATR for a permanent placement will not have that ATR’s salary included for the purpose of average teacher salary calculation.



If a school utilizes a person from the ATR pool to 1) fill a vacancy as a provisional hire; or 2) cover a long term leave or absence for someone who is not on payroll, the school must staff the person, which means the person costs the school the average salary for the school for that fiscal year.

If a school has a long term leave/absence and the person who is being covered is using his/her days, the DOE allows a person from the ATR pool to remain at a school and cover that leave without the person from the ATR pool having to be staffed at the school (without going on the school’s Table of Organization.)

Everything you have listed below are the typical types of misinformation and “urban myths” out there around school budgets. What I have provided here is the policy of the DOE (in alignment with our MOA). Anyone who is told something other than what I have detailed are welcome to report this to my office and we will follow up and clarify with the school.

Amy

Amy Arundell
Director of Personnel and Special Projects
United Federation of Teachers

Posted by James Eterno at 10/27/2015 09:40:00 PM



1 comment:

ATR 25/55 said...

James-
Once again you've hit the nail on the head concerning ATRs and their lack of permanent positions. Even if the DOE reverted back to its previous funding of teacher by Central principals would still prefer non-tenured teachers, as well as those who don't understand the contract (such as it is.) While many on this site and others rail against the UFT concerning age discrimination, they miss the obvious point. The DOE is circumventing civil service laws (although not blatantly) by filling open positions with new hires rather than using teachers already on the payroll. In fact, many schools, if they cannot find a "newbie" will simply use ATRs to cover classes, whether or not they are licensed for the subject covered, even for the rest of the year. This is the legal avenue ATRs should pursue, as well as the UFT.Wednesday, October 28, 2015 9:22:00 AM

A Look Back: My Birthday Card From the Rubber Roomers at 25 Chapel Street, and a FOIL Incident With Former General Counsel Michael Best

I found my birthday card from the rubber roomers at 25 Chapel Street (2008?)!!!

So happy. Thanks, people!!! See below.

The UFT members at 25 Chapel street were my first connection to the rubber room saga that would change my life, alter the life of my children and allow me to start my company ADVOCATZ.

I will forever be grateful to David Pakter, Polo Colon, Steve Ostrin, and all the wonderful people who talked with me about their troubles. I was then, and continue to be, honored with your trust.

By the way, my birthday is 7-11. July 11, not October (I'm re-posting the birthday card now because I just found it)..

Betsy Combier
President, ADVOCATZ
Editor, NYC Rubber Room Reporter

Strange things happen when you try to get information from the New York City Board of Education
by Betsy Combier
June 2009
LINK


Under the Bloomberg/Klein administration, public school buildings are "plants" (as in factories) and every inch must be used for the assembly line workers (teachers) to complete the widgets (children) for the marketplace (graduation, technical jobs, etc). This may sound rather harsh, but try as hard as I can to find another picture that fits the pattern and practice of the people at Tweed over the past 7 years, I cant come up with any other scenario. See Courtney Ross, pictured at left.

Company business must be protected at all times, of course, and this means that workers always must be present and willing and able to work, at all times. Sickness and family obligations that take you away from your job for any amount of time are simply weaknesses that you must be punished for. If you are a child with special needs and you have a parent who knows what to do to protect you, and does not bend with the threats, barrage of wrong information couched in "the law" as seen by the managers (ISC and Superintendents, the CEO Klein and his vice-president Michael Best) and other such deviations from the facts, then you may be fine. Similarly, if you are a parent or teacher, and you have the evidence necessary to prove what you are saying if true, JUST SAY NO to the NYC BOE when they try to allege anything about you, your actions, your character, family, or rules.

I'm a parent of four daughters who are and have been in the public schools of New York City, and I and all of them have been harmed by administrators of the New York City BOE. Nonetheless I can, and obviously do, speak out about what I see and hear in my children's factories...oops, schools. Alot aint right.

Anyway, in 2006 Joel Klein decided to place the Ross Global Academy Charter School inside of NEST+M, one of my daughters' schools. The NYC BOE insisted that our capacity was half empty - by changing the capacity number on a daily basis. As I wrote in a previous article, Garth Harries, the recently departed manager of the BOE plant capacity and assessment, came to NEST+m in April of 2006 with several other people to measure rooms that "they" liked at NEST for the Ross classrooms. Parents were outraged. (We sued twice, first the City of New York, Joel Klein, et al., and then the Board of Regents of the State University of New York; we won our lawsuits).

The next day I called Ms. Mashea Ashton, Garth's boss at Tweed, to ask if I could read the Ross Global Charter application, a public document. I also filed a freedom of information request with the New York State Ed Dept. Ms. AShton said, "Sure, when do you want to come to Tweed to review it?"

That is how I ended up at Tweed on April 18, 2006 at 2PM. I was given a desk on the third floor on which were four huge volumes, all 1900+ pages of the application for a charter filed with the Regents to set up a charter school in New York City. The location was never given, but the charter school would be in the NYU "education park" on the lower east side of Manhattan (there was a map).

From 2PM until about 5PM I read the documents and wrote notes. Suddenly at 5PM Ms. Ashton came over to me and said, "I'm so sorry, but someone at legal just called me and told me that I should review your notes because we may have left some information in the documents that you should not have seen."

I thought, wow, this is interesting! I knew that "they" had no right whatsoever under any law to seize my personal notes, but as a reporter, I thought there might be a great story if I let Ms. Ashton take my property. I wanted to know what she might do with it.

I reluctantly said something like, "Gee, I'm not sure that you have any right to look at my notes, but I guess you could look at them". Ms. AShton took my pad and, a few feet away, started reading my notes. Then, she ripped two pages out of my pad. I said, "What are you doing". Ms. AShton said, "Well, you have some private information here that we forgot to take out of the documents you are reviewing, and I have to take these pages. But I'll xerox them for you and give you the left half ".

These pages had the names and addresses of the Board of Trustees of the Ross Global Charter Academy. My protests fell on deaf ears, and she answered my question "Who told you to do this" by saying "someone in the legal department".

She then left me to read/copy/write notes on the entire documents all over again, until 6PM when I left.

I went home and wrote Joel Klein's attorney Michael Best, and asked him for my notes back.

I started a log of the emails:

April 28, 2006

Now, the NYC BOE is informing me that I will get my notes back, but in an altered form. I do not believe that I wrote down any personal addresses.

From: Best Michael
Sent: Friday, April 28, 2006 6:18 PM
To: 'Solarmedia@aol.com'
Subject: Your request regarding notes taken about the Ross Charter School Application

Ms. Combier,

I have considered the situation regarding the notes you took while examining paperwork related to the Ross Global Charter School ("Ross').

There are two pages of notes at issue. My understanding is that Ms. Mashea Ashton of the DOE asked to see your notes and realized that you had copied down the addresses of various people associated with Ross. Realizing belatedly that information pertaining to the home addresses of these individuals should not have been provided to any member of the public because of the need to protect the individuals' personal privacy, Ms. Ashton asked to see your notes. She then made a redacted copy of your notes, i.e., a photocopy of your notes with the addresses redacted, and she gave you that redacted copy of your notes. Thus, although Ms. Ashton kept the original, unredacted version of your notes, you were not actually deprived of your notes or of any pertinent information concerning Ross.

Upon reviewing the matter, however, I have determined that, with one exception, the redacted addresses are not personal addresses. Instead, they are business addresses, which should not have been redacted. It appears that Ms. Ashton redacted the business addresses in an excess of caution to preserve the privacy rights of the individuals associated with Ross, but at this time, we will provide those business addresses to you. There is, however, one address that appears to be a home address, and it would be inappropriate to release that home address publicly.

Therefore, we will return the original version of your notes to you, but we will redact the one home address before we do so.

Please contact me via email on Monday to let me know the best way to return the notes, with the one item redacted as mentioned, to you. Thank you.

Michael Best

From: Best Michael [mailto:MBest2@nycboe.net]
Sent: Friday, April 28, 2006 6:22 PM
To: Betsy
Subject: FW: Your request regarding notes taken about the Ross Charter School Application

Please see below. It appears that the attempt to send this email to your other email address was not successful.

>>> 4/20/2006 9:40:56 AM >>>

Dear Mr. Freeman,

I request an expedited verbal opinion on the following Freedom of Information request and incident. Please call me at 212-794-8902 as soon as possible.

On Friday, April 14, 2006 I made an appointment with Ms. Mashea Ashton of the NYC DOE Office of New Schools, to go over the charter application of the Ross Global Academy Charter School at Tweed at 2 o'clock on April 18.

On Tuesday, April 18, 2006 at 2PM I arrived at Tweed, ms. Ashton met me downstairs, and subsequently took me upstairs to her office. She gave me a table in the corner, upon which she placed the 1919 pages she had received back from NYSED of the Ross charter application, and told me that all charter applications were that long and to please let me know if there was anything that I needed, and she went to her desk.

I looked over the documents and jotted down on my pad the names of the Board of Trustees as well as relevant sections of the Charter School Act of 1998 and other information on the 501 (C) 3 (Ross Institute and Ross Global Academy Charter School).

At approximately 5PM Ms. Ashton came over to me and told me that she had to take all my notes and look at them. I asked why. She told me that there was private information in the documents and she had to make sure I had not copied any information down. as a long-time admirerer of your work, and the FOIL law, I have some knowledge of what is private information and what is not, and I believed that I had no private information in my notes, so I gave her my pad. I did not want to dispute her assessment at the time, and she told me that I had to give all my notes to her. She removed two pages: the list of the Board of Trustees' names with their affiliations (no addresses).

She told me that she had "checked with legal" and had been told that I could not have my notes back, because the Board of Trustees' affiliations were private information. Again, my notes had no addresses or telephone numbers.

Ms. Ashton xeroxed my notes and gave me the left half with the names of the Trustees. She then left me to look at all the documents for another 1/2 hour, and I had to leave at 6PM, which I did.

Was she correct in taking my notes?

Thank you for your reply as soon as possible.

Respectfully,
Betsy Combier

On Monday, April 24, 2006, I tried calling Ms Holtzman to ask if I could pick up my notes that day. Ms. Holtzman returned my call on Tuesday, April 25, and told me that “Mike” [Best] would get back to me. I still have not heard from Ms. Best, nor do I have my notes.

I consider this a very serious violation of my 4th and 14th Amendment rights, and I demand my personal property back immediately. On Monday morning May 1, 2006, at 9:30AM, I will expect to have my two pages returned to me. Please let me know where I can pick them up. My telephone number is 212-794-8902.

Betsy Combier
Editor,Parentadvocates.org

We wondered why Mr. Best did not want us to have the home address of Robert Torres, the only home address on the two pages of notes. Perhaps he did not want us to contact him, although he is listed on zabasearch.com. We called him, and he told us that “…if the NEST parents don’t stop their protests and think that we will not protect our children, they are very wrong;” and, “if you do not stop the NEST parents your principal will be sorry”.

Robert Durkin, well-known in New York City for changing the grades of 19 students at Washington Irving High School when he was Principal, and for being fired, told us that he “would make NEST+M a better school, just like the Julia Richman High School Complex”. We know the Julia Richman Educational Complex very well, and comparing NEST, a very small school, with a complex of 6 schools is like comparing apples to spinach.

Kunle Abodunde has resigned from the Board, we were told, and has presumably left the country, as zabasearch.com has no record of him, even though he supposedly started The Posse Group (he is not on their website, but we called a few colleges).

Richard Halperin, former Principal of Quellos LLP, had no comment about Ross/NEST, and we located more than 80 pages on his involvement with the Clinton Administration and the Monica Lewinsky coverup, but no data on his knowledge of elementary school teaching/curricula/education. (From Betsy Combier: Mr. Halperin died suddenly on June 19, 2008, and here is his obituary tribute from the New York Times, June 21, 2008:
" HALPERIN--Richard E., sadly on June 19, 2008 at age 53. Born December 7, 1954 in New York, NY to Alvin and Anne Halperin. Richard was the former Chief Operating Officer of the Quellos Group. Prior to joining Quellos, Mr. Halperin was Executive Vice President and Special Counsel to the Chairman of MacAndrews & Forbes Holdings, Inc. He also served as President of the Revlon Foundation, The MacAndrew & Forbes Foundation, and the Perelman Family Foundation. Previous to joining MacAndrews, Richard was Administrative Assistant to the Attorney General of New York State. He served on the Board of Trustees of the Rye Country Day School, The Ross Global Academy Charter School and The Citizens Budget Commission. He was also an Executive Advisory Board Member of the Boston University College of Communication and was a member of the Zoning Board of the Town of Harrison, New York. He held a B.S. cum laude in Communications from Boston University and a J.D. from the New England School of Law. Survived by his beloved wife Lucy, cherished children Ross, Robert, Kenneth and Steven, and adoring sister Marsha (Martin) Epstein. Funeral service Sunday 12 noon at The Jewish Community Center of Harrison. Interment to follow at Sharon Gardens Cemetery. For information, Zion Memorial Chapel 914-381-1809."

We have concluded from all of our telephone calls to Ms. Jennifer Chidsey Pizzo (no comment), Martin Payson (no comment), and Dr. Mark English (no comment) that there is no strategy currently in place to establish a positive partnership between Ross Global staff, parents and children, and NEST+m. This foretells doom for all.

We have information on Ms. Ross’ legal troubles with her taxes. It seems that in the rush for tax exempt properties, NYU and the NYC DOE have forgotten that the environment for the Ross kids has been poisoned irrevocably. The only solution is to change the location of the Ross Global Academy Charter before children’s lives are changed and the promises you have made to your new students shown to be false.

Second reason. We will publicize the new study by City Project, “Fatal Subtraction”. This shocking report may convince New Yorkers that New York University has ulterior motives for placing the Ross Global Charter in NEST+m that have nothing to do with putting “children first”. We have received comments from parents not connected with the NEST+M community that the Ross Global Academy Charter may be a good idea, but one that cannot succeed with NYU behind it, despite the massive power and wealth connected with this University. You will not have the best wishes of New York City residents behind you in your desire to be in partnership with NYU as small, excellent schools such as NEST+m are destroyed and minority parents are lied to.

If you have plans for franchising the “Ross Model” – and we are still unclear exactly what that is – then we suggest (audaciously, we admit), that you separate your charter school from NYU as quickly as possible, despite the ridicule of the NY State Regents to this suggestion, especially Regent Meryl Tisch, who had so much to do with the approval of your charter application, and works with Mr. Richard Halperin at The Citizen’s Budget Commission. At minimum, you should not continue to jeopardize the success of NEST+M to suit your own needs. It looks to us that you will not succeed in realizing your goals within the NEST building. We know that the general public no longer trusts that Mayor Bloomberg and Chancellor Klein are doing a good job in the area of public school education reform. This sentiment will prevail after Mayor Bloomberg’s term of office is over and the media in NYC hopefully will be more open to covering all views and honestly reporting all data. Public opinion seems to be turning against your benefactors right now, and will only continue to grow, and harm your potential for success.

Third reason. The NYC DOE has not been in favor of Gifted and Talented education for many years, at least since the 1980’s. However, this opinion is not shared by the public especially in New York City, where right now there is immense pressure from parents to encourage highly gifted students. There is also the matter of what seems to be Joel Klein’s dislike of Celenia Chevere. His attacks against NEST+m have always been personal and this will become his legacy: using his personal feelings as weapons. We suggest that no foundation built upon this kind of attack will succeed.

Our summary above will be elaborately explained on our website, but we hope that you will re-consider the disastrous destruction of NEST+m. Your Charter school would thrive at another location, and you should pursue establishing an independent school, at a new site. You should leave NEST+M to the parents, staff and administration who have built and maintained it. The Ross Global Academy Charter School will not succeed at 111 Columbia Street, because the general public and those who care about the children most affected by this terrible attack on our nation’s public school system by the rich and powerful wont let you.

Thank you for your consideration of our issues, and we look forward to promoting your charter and your “Ross model” at a location other than 111 Columbia Street.

P. Wilder
Ajamo Kamau
Betsy Combier
betsy@parentadvocates.org

From: Robert Freeman [mailto:RFreeman@dos.state.ny.us] (pictured at right)
Sent: Thursday, April 20, 2006 11:15 AM
To: Solarmedia@aol.com

Subject: Re: Fwd: FOIL Request From The E-Accountability Foundation

I have received your letter concerning the ability of the New York City Department of Education to review and/or confiscate personal notes that you prepared while reviewing records made available to you pursuant to the Freedom of Information Law.

In short, government agencies are subject to the Freedom of Information Law; private individuals are not government agencies and are not required to comply with that law. Further, from my perspective, your notes are your personal property, and the Department would have no right either to review or take possession of your property.

I hope that I have been of assistance.

Robert J. Freeman
Executive Director
NYS Committee on Open Government
41 State Street
Albany, NY 12231
(518) 474-2518 - Phone
(518) 474-1927 - Fax
Website - www.dos.state.ny.us/coog/coogwww.html 

From: Betsy [mailto:betsy@parentadvocates.org]
Sent: Saturday, April 29, 2006 1:59 AM
To: 'Best Michael'
Cc: 'Betsy'
Subject: RE: Your request regarding notes taken about the Ross Charter School Application

Dear Mr. Best,

I will pick up my notes at approximately 10 AM May 1 at Tweed. I suggest that you read Mr. Freeman’s opinion, which is also mine, that my notes are not subject to the freedom of Information Act/Law, and any change in my notes by your agency or officers is actionable.

Please have my notes in the original form at the front desk on Monday morning, or have the law that covers your statement that you may redact my notes without my permission.
Betsy Combier

From: Betsy [mailto:betsy@parentadvocates.org]
Sent: Saturday, April 29, 2006 2:10 AM
To: 'Robert Freeman'; 'Best Michael'; jklein@nycboe.net;
Cc: 'Betsy'
Subject: FW: Your request regarding notes taken about the Ross Charter School Application

Dear Mr. Freeman,

I request an expedited opinion on the matter outlined below.

On April 18, 2006 at approximately 5PM, , while sitting at a desk at Tweed, Ms. Mashea Ashton, the employee of the NYC DOE with whom I spoke about viewing the Ross Charter Application under FOIL, and the person who gave me the time 2-6PM to read the charter and gave me the 1010 pages to read, told me that I had to give her my notes so she could read them. I unwillingly gave my notes to her, and she told me that she had to seize two pages.

Now, the NYC BOE is informing me that I will get my notes back, but in an altered form. I do not believe that I wrote down any personal addresses.

Please reply as soon as possible, by telephone if necessary: 212-794-8902, or by return email, about the NYC BOE giving me back my personal notes, redacted by them.

Thank you!!

Betsy Combier
betsy@parentadvocates.org

From: Best Michael [mailto:MBest2@nycboe.net]
Sent: Monday, May 01, 2006 8:14 AM
To: Betsy
Subject: RE: Your request regarding notes taken about the Ross Charter School Application

Ms. Combier,

I am afraid that 10 AM this morning will not work for me. Please propose another time tomorow. Thank you.

Michael Best

From: Betsy [mailto:betsy@parentadvocates.org]
Sent: Monday, May 01, 2006 8:36 AM
To: 'Best Michael'
Cc: 'Betsy'
Subject: RE: Your request regarding notes taken about the Ross Charter School Application

Dear Mr. Best,

I hope that 11AM tomorrow morning will be convenient for you.

Additionally, I request that you give me, in writing, the name of the person in your office who told Ms. Ashton to seize my notes. If you do not give me a name, I will assume that you told Ms. Ashton.

Thank you,

Betsy Combier

From: Best Michael [mailto:MBest2@nycboe.net]
Sent: Tuesday, May 02, 2006 10:46 AM
To: Betsy
Subject: RE: Your request regarding notes taken about the Ross Charter School Application

Ms. Combier,

This will confirm our conversation of a few minutes ago. I explained to you that I am obliged to protect the privacy concern of the preson whose personal address you wrote on your notes. I told you that I was trying to reach that person on the telephone but had been unable to do so as yet. I told you that I wanted to find out if this person would consent to release of his personal address. And I asked for a bit more time to try to get a hold of him before you picked up your original notes, because if he consented, i would not have to redact his address on your original notes.

You told me that you were coming to get the notes in 20 minutes, and you said "I should do what I have to do." I told you that you were putting me in a position where I have no choice but to redact your notes in order to protect this individual's privacy interests, and you reiterated that I should do what I have to do, but you were coming to get your notes.

Michael Best

On May 2, 2006 I went to Tweed's front desk and asked for an envelope with my name on it. There was none. I asked the security to buzz Mr. Best. Michael Best came downstairs, and asked me to sit with him for a few minutes. I said, "Sure!" Mr. Best tried to convince me that he must redact my personal notes, and he encouraged me to agree with him. I finally said, "Mr. Best, you are the Attorney here, I am not. So why dont you go to your office and get my two pages from my pad, and bring them to me? If you feel that you must redact my notes, then you do what you feel you must do as an attorney."

He went upstairs and brought me my two pages, unredacted.

I thanked him, and as I turned around to leave, he said, "I enjoyed speaking with you very much."

New York City DOE Asks For a Waiver From the Newly Revised Teacher Evaluation Law Until the 2016-2017 School Year

New York City Seeks Teacher Evaluation Waiver
LINK

New York City applied for a waiver on Monday from the state's newly revised teacher evaluation law so its changes would be ready for the 2016-17 school year.

The move came after state officials allowed waivers for school districts that wanted more time to implement rules approved last spring by the state legislature and the Board of Regents. The city's new deadline for submitting a plan to Education Commissioner MaryEllen Elia would be March 15, 2016, instead of November of this year.

"We want to make sure that our teacher development and evaluation system is high quality and works best for students, teachers and school communities as a whole," said Devora Kaye, spokeswoman for the Department of Education. "Learning to implement a brand new system of teacher development and evaluation at this time would not be best for students and school communities."

The state's new rules were approved after Gov. Andrew Cuomo complained that too few teachers received the lowest ratings under the previous evaluation system; he pushed the state to give more weight to student test scores. Many teachers, school superintendents and parents then cried foul, saying the process was rushed.

(Here are the new regulations with an outline of the changes over the last few years.)

“Commissioner Elia has made it clear all along that districts need to get this right. We’d rather have them request a waiver and work to get this done than to rush into an agreement,” said Dennis Tompkins, a spokesman for the state’s education department.

Evan Stone, the co-founder and co-CEO of a teacher group called Educators 4 Excellence, said his group wanted the city to take the time needed for a smooth transition. 

"We have heard from teachers citywide, and what too often gets overlooked is their reasonable interest in pursuing new and improved policies but their understandable frustration over constant change," he said in a statement. "We should take the time to do this work right." 

The commissioner, who took office in July, addressed other concerns about the evaluations and testing on Monday afternoon at the New York State School Boards Assocation's annual convention, held in a midtown hotel.

She emphasized that she's already granted hardship waivers for small school districts from a provision requiring them to hire outside evaluators to observe their teachers at work. She also promised the state's third through eighth grade math and reading tests in April would be shorter than this year's test.

Elia, who is currently leading a review of the Common Core standards, reiterated her support for higher standards. She said tests can help teachers address their pupils' weaknesses. In a nod to the 200,000 students who opted out of this year's tests, she also said she understood the concerns of many teachers and families.

"Parents in the state have a right to not to have their children participate in assessments," she said, adding that she hoped families would support the tests once they see that they aren't meant to hurt teachers.

Elia urged parents, teachers and superintendents to participate in a survey she's conducting of the standards that will go up on her department's website later this week. Recommendations will then be made to the Regents in January, to be adopted later in 2016.

Several audience members asked Elia why she couldn't just halt the use of both the standards and the Common Core tests until she's done with her review. Michael Hynes, superintendent for the Patchogue Medford school district on Long Island, said it feels like "the road is being paved as we're moving forward."

Elia said the federal government wouldn't allow her to suspend the standards or tests.

"But I can tell you I will be very vocal in what I think is appropriate," she said, adding a note of encouragement. "I also know that as a leader you really can make a difference in what's happening in your districts."

Jia Lee Becomes MORE's Candidate for UFT President

Lee speaks with Earth School student Jamir Geidi and his mother Fatima Geidi about their positive experiences at her school in contrast to the treatment they received at Success Academy. photo credit: Julia Neusner

Video of Jia Lee

FOR IMMEDIATE RELEASE: October 24, 2015

Contacts:

Megan Moskop (252) 367-0908

John Antush (917) 734-3907

media@morecaucusnyc.org

Jia Lee voted in as Movement of Rank-and-File Educators Presidential Challenger to Michael Mulgrew and his Passive Unity Caucus

As NYC School Crisis Continues, Jia Lee Leads Teachers and Community to Challenge Unaccountable Union Leadership and Defend Public Education

NEW YORK: Educators, parents, and community members cheered the announcement of Jia Lee as their choice for UFT presidential nominee at the State of Our Union, State of Our Schools Conference on Saturday. Fed up with overcrowding, underfunding, and overtesting, educators are coming together with the community to take back their union, and bring change to their schools through the 2016 UFT elections.

“Our schools are in crisis, in large part part because our current union leadership is complicit in bad policy and continues to tell us that this is the best they can do. It’s not the time for us to re-negotiate what has already proven to be disastrous. It’s time for teachers to come together with the community and chart a new course for our union. We are going to take back our union and lead a fight for the schools our children deserve,” said Ms. Lee.

Saturday’s conference, organized by the Movement of Rank and File Educators (MORE) in coalition with a host of community organizations, was the first step in defining a platform for the upcoming UFT election and 2018 contract negotiations to defend and enhance New York City’s public schools. The conference  featured discussions ranging from “Bringing Democracy to the UFT” to “Making Black Lives Matter in Education.”

In the upcoming UFT election, Lee will head a joint slate of teachers representing a united front of MORE and the New Action caucus. As a parent and a teacher since 2001, Jia Lee is at the forefront of the growing movement to opt-out of high stakes testing. She has served as a UFT Chapter Leader for the past 8 years, and is a conscientious objector who has steadfastly refused to administer tests that reduce her students to test score. Last year, she brought this testimony to the U.S. senate hearing on ESEA.

Educators and have lost patience with Michael Mulgrew and the Unity caucus’ leadership of the United Federation of Teachers and are joining the community to continue building a movement for change– in their union and in our schools. Mulgrew has been president of the UFT since 2009 but has been unable and unwilling to effectively challenge the corporate onslaught against public education. He has agreed to high stakes-test based teacher evaluations and a contract that delayed earned pay raises for teachers.

In the last union election, in which 75% of working educators did not vote and the majority of ballots came from retirees, the MORE caucus earned 40% of the vote in the high school division and 23% of the active teacher vote overall. This year, in partnership with the New Action caucus, MORE seeks to increase voter turnout as active teachers reclaim their union.

ABOUT MORE: The Movement of Rank-and-File Educators (MORE), is the social justice caucus of the UFT and largest force for change within the teachers union. In the upcoming elections, MORE has formed a united front with New Action Caucus  to challenge Unity Caucus, the bureaucratic political machine that has dominated New York’s teachers’ union for the past 50 years. Over the past decade, Unity has led the UFT into crisis, signing off on harmful policies such as overuse of standardized testing and pay increases that fail to keep pace with inflation, while using union funds to pay UFT President Michael Mulgrew over $260,000 per year and dole out salaries of over $100,000 per year to over 100 Unity Caucus political operatives on UFT staff.

###

The Movement of Rank and File Educators is the Social Justice Caucus of the United Federation of Teachers.  To learn MORE, visit www.morecaucusnyc.org

Wendy Bradshaw: Why I Resigned From The Polk County Public Schools

“Today I resigned from the school board.” From Teacher Wendy Bradshaw PhD

Posted on October 23, 2015 by Poetic Justice

Teacher Wendy Bradshaw PhD from Florida handed in her resignation letter today. Her letter speaks the unspoken words of thousands of professional educators across the country. Her letter is the cry of what is in the hearts of teachers who, also, can no longer harm the children.

Please share her words so just maybe, we can once again have schools that love and tenderly care for the well-being of our most precious gifts – our children and grandchildren. #DoNoHarm

“Today I resigned from the school board. I would like to share with you what I gave them. Feel free to share it if it strikes you as important.

To: The School Board of Polk County, Florida

I love teaching. I love seeing my students’ eyes light up when they grasp a new concept and their bodies straighten with pride and satisfaction when they persevere and accomplish a personal goal. I love watching them practice being good citizens by working with their peers to puzzle out problems, negotiate roles, and share their experiences and understandings of the world. I wanted nothing more than to serve the students of this county, my home, by teaching students and preparing new teachers to teach students well. To this end, I obtained my undergraduate, masters, and doctoral degrees in the field of education. I spent countless hours after school and on weekends poring over research so that I would know and be able to implement the most appropriate and effective methods with my students and encourage their learning and positive attitudes towards learning. I spent countless hours in my classroom conferencing with families and other teachers, reviewing data I collected, and reflecting on my practice so that I could design and differentiate instruction that would best meet the needs of my students each year. I not only love teaching, I am excellent at it, even by the flawed metrics used up until this point. Every evaluation I received rated me as highly effective.

Like many other teachers across the nation, I have become more and more disturbed by the misguided reforms taking place which are robbing my students of a developmentally appropriate education. Developmentally appropriate practice is the bedrock upon which early childhood education best practices are based, and has decades of empirical support behind it. However, the new reforms not only disregard this research, they are actively forcing teachers to engage in practices which are not only ineffective but actively harmful to child development and the learning process. I am absolutely willing to back up these statements with literature from the research base, but I doubt it will be asked for. However, I must be honest. This letter is also deeply personal. I just cannot justify making students cry anymore. They cry with frustration as they are asked to attempt tasks well out of their zone of proximal development. They cry as their hands shake trying to use an antiquated computer mouse on a ten year old desktop computer which they have little experience with, as the computer lab is always closed for testing. Their shoulders slump with defeat as they are put in front of poorly written tests that they cannot read, but must attempt. Their eyes fill with tears as they hunt for letters they have only recently learned so that they can type in responses with little hands which are too small to span the keyboard.

The children don’t only cry. Some misbehave so that they will be the ‘bad kid’ not the ‘stupid kid’, or because their little bodies just can’t sit quietly anymore, or because they don’t know the social rules of school and there is no time to teach them. My master’s degree work focused on behavior disorders, so I can say with confidence that it is not the children who are disordered. The disorder is in the system which requires them to attempt curriculum and demonstrate behaviors far beyond what is appropriate for their age. The disorder is in the system which bars teachers from differentiating instruction meaningfully, which threatens disciplinary action if they decide their students need a five minute break from a difficult concept, or to extend a lesson which is exceptionally engaging. The disorder is in a system which has decided that students and teachers must be regimented to the minute and punished if they deviate. The disorder is in the system which values the scores on wildly inappropriate assessments more than teaching students in a meaningful and research based manner.

On June 8, 2015 my life changed when I gave birth to my daughter. I remember cradling her in the hospital bed on our first night together and thinking, “In five years you will be in kindergarten and will go to school with me.” That thought should have brought me joy, but instead it brought dread. I will not subject my child to this disordered system, and I can no longer in good conscience be a part of it myself. Please accept my resignation from Polk County Public Schools.

Best,
Wendy Bradshaw, Ph.D.”

Are Teachers Under Too Much Stress?

LINK

Teachers expect to work hard but should not be expected to devote every minute of their lives to their job, writes one union leader

I was speaking recently at a joint ATL/NUT meeting on childhood and adolescent mental ill healthwhen I was silenced by a young man who told me that while he was very concerned about adolescent stress, he was even more worried about his partner, a primary school teacher.  Increasingly, when he came home from work, he found her crying on the kitchen floor. 

Even more recently I heard of one young teacher who had, as a performance objective, the instruction that she must not cry in the staffroom. She did not know what to be more mortified about – that she had cried in the staffroom, or that her line manager could propose such an objective without any thought about what might cause her to cry in the first place.

Tales like these are told to me just too often. It seems that teacher stress is increasingly being regarded as par for the course and part of the job. A newly qualified teacher, asking for help to deal with an impossible workload which took up every evening until 11pm and all of the weekend, was told by her line manager –"that’s the way it is in teaching".

Well, it should not be that way. Teachers, as professionals, expect to work hard but should not be expected to devote every minute of their lives to their work. Teachers need time to relax, to pursue hobbies, to talk to their families and friends. They need time to be human.

In no other profession would this entirely reasonable view be contested. Teachers, however, too often are expected to sacrifice their health, their relationships and their happiness to the job. I speak to too many teachers who are exhausted from the constant stress of never feeling they are on top of their workload; who know that there is always something else to do. They never really relax, apart from a week or two in the summer holidays. Constantly on the alert for the next thing, struggling under the weight of impossible demands, they are leaving the profession in increasing numbers, often with no other job to go to, worn down and worn out by the voracious demands of their work.

The education system cannot afford to be so profligate with its teachers. At the moment England is in a perfect storm of rising pupil numbers, falling teacher recruitment and poor teacher retention. Official figures show that the country will need nearly 160,000 additional teachers over the next three years, to cope with a projected 582,000 rise in primary and secondary age pupils by 2020. If our education system is to meet this immense challenge, it needs to value its teachers as its most precious resource, and treat them accordingly.

School leaders could start by collecting data on what is happening in their school. How many hours are their staff working, and on what? ATL members complain about the hours spent on pointless bureaucracy which adds not one jot to the quality of their teaching or their pupils’ learning. Over-elaborate lesson plans; triple marking (have you got your green pen to hand?); taking photographs of their pupils’ practical maths work (to prove they have done some practical maths); stamping pupils’ books with "verbal feedback given" (to prove that they have given verbal feedback). These activities are pointless and unprofessional.

They betray a worrying lack of trust between school leaders and their staff, and this underpins activities which are, frankly, a waste of time. In the end, school leaders who make these demands are acting unprofessionally – because their key role should be to lead effective teaching and learning in their schools. The activities I have listed above do not, in any way, characterise effective teaching and learning. They are a waste of teachers’ valuable time.

Mary Bousted is general secretary of the ATL education union

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