Erica Bolt Wins Her Appeal in the First Department

Matter of Bolt v New York City Dept. of Educ.

2016 NY Slip Op 08158

Decided on December 6, 2016

Appellate Division, First Department

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

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

Decided on December 6, 2016 
Sweeny, J.P., Acosta, Andrias, Manzanet-Daniels, Webber, JJ.

2088 653285/14 

[*1]In re Ericka Bolt, Petitioner-Respondent,

v

The New York City Department of Education, Respondent-Appellant.

Zachary W. Carter, Corporation Counsel, New York (Melanie West of counsel), for appellant.

Law Offices of Richard J. Washington, P.C., New York (Richard J. Washington of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Joan M. Kenny, J.), entered April 28, 2015, which granted the petition to vacate an arbitrator's opinion and award, dated October 15, 2014, terminating petitioner's employment with respondent based on her misconduct, and denied respondent's cross motion to dismiss the petition, unanimously modified, on the law, to confirm the Arbitrator's determination that petitioner is guilty as charged in Specifications 2 and 3(a), (b), (c) and (d), and to remand the matter to respondent for imposition of a lesser penalty, and otherwise affirmed, without costs.

Notwithstanding the existence of conflicting testimony, the Arbitrator's findings of misconduct on Specifications 2, 3(a), (b), (c) and (d) are supported by adequate evidence and are not irrational (see Lackow v Department of Educ. [or "Board"] of City of N.Y., 51 AD3d 563, 567-568 [1st Dept 2008]). However, while we confirm the Arbitrator's finding, based on the testimony of three students, that petitioner "directly or indirectly," assisted several students on a standardized English Language Arts exam, we find that under the circumstances presented here the penalty of termination shocks our sense of fairness (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 234 [1974]).

"[A] result is shocking to one's sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals. Additional factors would be the prospect of deterrence of the individual or of others in like situations, and therefore a reasonable prospect of recurrence of derelictions by the individual or persons similarly employed. There is also the element that the sanctions reflect the standards of society to be applied to the offense involved" (Pell, 34 NY2d at 234).

While petitioner's behavior in suggesting to several students that some of their answers might be wrong demonstrated a lapse in judgment, petitioner did not provide the students with the correct answers and there is no evidence that the incident was anything but a one-time [*2]mistake (see Matter of Diefenthaler v Klein, 27 AD3d 347, 349 [1st Dept 2006] ["we find it shocking to the conscience that these long-standing and well-regarded employees have been terminated for such an isolated error of judgment"]). Prior to her termination in October 2014, petitioner, a tenured teacher who had worked for respondent since 2003, had an unblemished record and, as the OSI investigator testified, was considered to be a good teacher (see Matter of Solis v Department of Educ. of City of N.Y., 30 AD3d 532, 532 [2d Dept 2006] [termination disproportionate "(i)n light of, among other things, the petitioner's otherwise unblemished 12-year record as a teacher"]). Moreover, the record is devoid of evidence that would suggest petitioner could not remedy her behavior.

Matter of Carangelo v Ambach (130 AD2d 898 [3d Dept 1987], lv denied 70 NY2d 609 [1987]), cited by the dissent, does not mandate a different result. In Carangelo, the teacher was found guilty of failing to properly safeguard his students' Regents examinations, failing to accurately grade them and altering answers. The evidence indicated that of 705 answers on 15 examinations, 79 were altered. The teacher admitted that it was apparent that the answers had been changed by someone other than the students and that he did nothing about it, and the District's expert opined that it was highly probable that the teacher made 76 of the 79 changes (id. at 899). In affirming the penalty of termination, the Third Department found that "[a]ltering the answers given on an examination, or even ignoring alterations obviously not made by the student, amounts to a serious breach of a teacher's obligations" (id. at 900). Here, petitioner pointed out to several students that certain answers on their exams might be wrong and suggested they take another look at them. She did not alter any of her student's answers or advise them what the correct answers were.

Nor does Matter of Carlan v Board of Educ. of Lawrence Union Free School Dist. (128 AD2d 706 [2d Dept 1987]), cited in the Arbitrator's report, mandate the penalty of termination. In Carlan, the petitioner was found "guilty of some 53 charges and

specifications concerning, inter alia, repeated and continuous neglect of duty, insubordination, failure to prepare and grade certain final examinations, and manipulation of students' test scores" (id. at 707).

All concur except Sweeny, J. who dissents in part in a memorandum as follows:

SWEENY, J. (dissenting in part)

I concur with the majority that there is no basis to overturn the factual findings reached by the Arbitrator.

I disagree that the matter should be remanded for imposition of a lesser penalty. The majority is in error to say the penalty of termination is so shocking to the conscience that it must be vacated.^[FN1]

The majority has accepted the Arbitrator's findings wherein he found credible the testimony of three separate students that petitioner assisted them and other students by pointing out a number of answers to be changed in a statewide English proficiency exam. Where I depart from the majority is their attempt to, for example, compare an employee neglecting to do carpentry work in a lavatory (Matter of Diefenthaler v Klein, 27 AD3d 347 [1st Dept 2006]) to a teacher who violated the integrity of a school examination.

In a case with a fact pattern similar to this, the Third Department found "petitioner's offense goes to the heart of one of the most integral aspects of the education process: integrity in conducting examinations" (Matter of Carangelo v Ambach 130 AD2d 898 [3d Dept 1987], lv denied 70 NY2d 609 [1987]).

The Arbitrator found, and the majority does not challenge, that petitioner "[c]ommitted insubordination by assisting students during the administration of the statewide exams when she was expressly directed not to do so." He further found

"that [petitioner] was the authority figure for these students, who were approximately ten years old at the time the incident occurred, and that she had the responsibility to set a good example for her students to emulate. [T]he message that her conduct conveyed to these young students, that cheating is permitted, was completely inappropriate and more than harmful. . . . [H]er actions demonstrated a lack of integrity and irrevocably comprised her ability to serve as a role model for students."

That petitioner had a previously unblemished record is not compelling, especially with the facts herein (see Russo v NYC Dept. of Educ., 25 NY3d 946 [2015]; Altsheler v Board. of Educ. of Great Neck Union Free School Dist. 62 NY2d 656 [1984]; Matter of Montanez v Department of Educ. of the City of N.Y., 110 AD3d 487 [1st Dept. 2013]).^[FN2]

Although the majority may feel a lesser penalty is more appropriate, as students and parents have the right to believe the testing process is fairly administered, it cannot be said that the penalty shocked one's sense of fairness (Pell at 234).

I would reverse the lower court and reinstate the arbitration decision along with the penalty of termination.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 6, 2016

CLERK

Footnotes

Footnote 1:I agree with the majority that the seminal cases such as Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County(34 NY2d 222 [1974]) clearly set out the heavy burden to vacate an arbitrator's penalty determination. I disagree to their application herein.

Footnote 2:The majority's reliance in Matter of Solis v Department of Educ. of City of N.Y. (30 AD3d 532 [2d Dept 2006]) is not helpful as the underlying act the teacher committed in that case was not explained. 

Implicit Bias. Everyone Has It

Everyone has it. Implicit bias. Something that triggers a feeling inside which has no basis in fact, but defines the way that you see the world around you. I was told about the website below, Perception.org, by an arbitrator who is on the 3020-a panel. He said he recognized me as a true advocate. Quite an honor!

Excellent reading! I've included some additional resources, below.

What is your bias?

Betsy Combier
betsy.combier@gmail.com
Editor, ADVOCATZ blog
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

IMPLICIT BIAS

What it is:

Thoughts and feelings are “implicit” if we are unaware of them or mistaken about their nature. We have a bias when, rather than being neutral, we have a preference for (or aversion to) a person or group of people. Thus, we use the term “implicit bias” to describe when we have attitudes towards people or associate stereotypes with them without our conscious knowledge. A fairly commonplace example of this is seen in studies that show that white people will frequently associate criminality with black people without even realizing they’re doing it.

Why it matters:

The mind sciences have found that most of our actions occur without our conscious thoughts, allowing us to function in our extraordinarily complex world. This means, however, that our implicit biases often predict how we’ll behave more accurately than our conscious values. Multiple studies have also found that those with higher implicit bias levels against black people are more likely to categorize non-weapons as weapons (such as a phone for a gun, or a comb for a knife), and in computer simulations are more likely to shoot an unarmed person. Similarly, white physicians who implicitly associated black patients with being “less cooperative” were less likely to refer black patients with acute coronary symptoms for thrombolysis for specific medical care.

What can be done about it:

Social scientists are in the early stages of determining how to “debias.” It is clear that media and culture makers have a role to play by ceasing to perpetuate stereotypes in news and popular culture. In the meantime, institutions and individuals can identify risk areas where our implicit biases may affect our behaviors and judgments. Instituting specific procedures of decision making and training people to be mindful of the risks of implicit bias can help us avoid acting according to biases that are contrary to our conscious values and beliefs.

Implicit bias is a universal phenomenon, not limited by race, gender, or even country of origin. Take this test to see how it works for you: Implicit Bias Test

Learn more:

Implicit Bias sits at the core of our previously published reports. Most recently, Transforming Perception documents how implicit bias shapes the lives of black men and boys, and Telling Our Own Story: The Role of Narrative in Racial Healing integrates implicit bias insights with a discussion of how narrative can work to undo the harms of discrimination.

See also:

EXPLICIT BIAS

What it is:

“Explicit bias” refers to the attitudes and beliefs we have about a person or group on a conscious level. Much of the time, these biases and their expression arise as the direct result of a perceived threat. When people feel threatened, they are more likely to draw group boundaries to distinguish themselves from others.

Why it’s important:

People are more likely to express explicit biases when they perceive an individual or group to be a threat to their well being. Research has shown that white people are more likely to express anti-Muslim prejudice when they perceive national security to be at risk and express more negative attitudes towards Asian Americans when they perceive an economic threat. When people perceive their biases to be valid, they are more likely to justify unfair treatment or even violence. This unfair treatment can have long-term negative impacts on its victims’ physical and mental health.

What can be done about it:

Expressions of explicit of bias (discrimination, hate speech, etc.) occur as the result of deliberate thought. Thus, they can be consciously regulated. People are more motivated to control their biases if there are social norms in place which dictate that prejudice is not socially acceptable. As we start forming our biases at an early age, it is important that we reinforce norms in our homes, schools, and in the media that promote respect for one’s own and other groups. Research shows that emphasizing a common group identity (such as “we are all Americans”) can help reduce interracial tensions that may arise between majority and minority ethnic groups in the U.S. Also, when conducted under the right conditions, studies show intergroup contact between people of different races can increase trust and reduce the anxiety that underlies bias.

Learn more:

More information about explicit bias and the way it shapes the lives of black men and boys can be found in our report Transforming Perception.

Implicit Bias - Kirwan Institute

An Intro to Mindful Self Compassion

Could implicit bias be influencing your management style?

FAKE NEWS: Undue Process

Another anti-tenure report has hit the news: Undue Process 

The Thomas Fordham Institute likes fake news, commonly known for years as yellow journalism. I believe that reports like Undue Process are dangerous because the writing reflects anti-tenure political thinking that is based upon numbers. Its always about money. If an employee has tenure, then he/she has, most often than not, spent more years in the public school system than someone who has probationary status. This means that the tenured employee has a higher salary and a higher pension. That's what the anti-tenure policies are hoping to stop.

People are not numbers!!

I have to admit that I laughed when I saw the title and subtitle,
"Why Bad Teachers in Twenty-Five Diverse Districts Rarely Get Fired".

So whose "undue process" are the authors talking about? Are they saying that teachers do not have due process if twenty-five diverse districts can't fire those who are "bad"? Whose defining the word "bad", and what evidence do they have? If a principal doesn't like a teacher for some random - or, in too many cases, for a discriminatory reason that they are Black, women, Jewish or disabled - reason, this principal can observe this teacher and conclude out of thin air that he/she is "bad" and put them in a 3020-a hearing for so-called "incompetence". This is a word defined solely on the subjective opinions of an administrator focused on terminating the targeted teacher, and the process almost always is successful. I would say that 95% of teachers or staff charged with "incompetency" are terminated, and I can say this because I have been participating in 3020-a arbitration as an advocate for the charged person for more than 17 years.

If I believed that 3020-a arbitration is always a lost cause I would not have spent all these years doing my best to win my clients the right to continue their employment. There is a formula for winning these hearings after charges of incompetency are served on the tenured educator. This formula involves investigating the backstory of all witnesses testifying for the Department, and finding whatever facts can be used to uncredibilize (my word - means "make not credible") his/her testimony.

Anyway, the title at least started me reading further, so I guess it made the point.

The danger is their writing spurs on policymakers who know that bad news travels far and sells widely. The public likes to hear what we as a society are doing, and how terrible tenured teachers are. Alarmingly, most of the time the people they are describing as "bad" are not bad at all.

What the heck is the best definition of "bad"? It's an adjective and a subjective opinion of something or someone. I might believe that someone is "bad" if I see this person with my own eyes harm another person, animal, bird, or any living creature, for no reason. Otherwise, an investigation is called for that satisfies my standard of proof. We all have our own standard which we do not always acknowledge, and sometimes this leads to prejudice when we have a lower standard of proof for someone or some group based upon general characteristics such as race, religion, gender, disability, nationality, etc. We must all watch for that. All individuals are unique and should be treated as such.

But getting to know someone who is charged with something is hard to do, because by the time the person is charged, there is little time to figure out what the real facts are. But you gotta do the research. Truly listening to someone tell you his/her life story, what happened in their career, who the bad guys are, etc., all involves first, interest, and second, time. 

Many are terminated at 3020-a simply because they are not defended adequately by their NYSUT or private lawyer or team (I am not a lawyer, but work on 3020-as as a paralegal, which is permitted in arbitration). I might as well say that I think the team I have assembled for doing 3020-a cases is the best, and my background information and closing arguments are untouchable by any private lawyer. This is my opinion and this is my blog, so live with it. We care.

Also, if you are disabled and/or do not speak English well, you can be terminated, unless you have proper defenses. Of course, the charges against your language and disability are covered up by other allegations, but you can dig up the real reason for being charged, and must do so, in my opinion. The whole scenario of one arbitrator judging you by seeing you in a small room for 1 - 10 days, or the length of the hearing, is absurd. The arbitrators are chosen by the UFT and the DOE but are not neutral. Some are more able to hear facts than others, but there is always an implicit bias.

Nonetheless, 3020-a is winnable if the defense is strong. And, the defenders must know what to do. Unfortunately, not many people are interested in spending 20-30 hours listening and researching a person's life in order to find solutions to problems that are disrupting that life. I do that.

When I was hired by the UFT to find out who was in the rubber rooms, I was ridiculed by Jim Callahan, the NY Teacher reporter who also worked with me at the UFT then turned on me because I know that he despised anyone who ended up in the rubber room, and told everyone "they are all guilty". I was hired for 14 hours/week, but it turned into 90 hours/week as I was the only one who went to the rubber rooms every day and spent all day talking to members about their cases.

There is a national goal right now to take away job protections for teachers, because if they continue to get tenure, supposedly, our children in public schools will continue to suffer.

Not.

In New York State, tenure is public policy.

Why? Because our state legislators know that children need stability. When a teacher is in a classroom, the first thing that must be established is some kind of trust. The children need to know that they are safe, and the person keeping them safe is their teacher. Children, especially in elementary grades, need to know that their teacher will be there when they arrive at school.

As noted by New York's Court of Appeals in Ricca v. Board of Ed. of the City Sch. Dist, 47 N.Y.2d 385, 418 N.Y.S.2d 345 (1979):

"The tenure system is not an arbitrary mechanism designed to allow a school board to readily evade its mandate by the creation of technical obstacles . ... Rather it is a legislative expression of a firm public policy determination that the interests of the public in the education of our youth can best be served by a system designed to foster academic freedom in our schools and to protect competent teachers from the abuses they might be subjected to if they could be dismissed at the whim of their supervisors. In order to effectuate these convergent purposes, it is necessary to construe the tenure system broadly in favor of the teacher, and to strictly police procedures which might result in the corruption of that system by manipulation of the requirements for tenure."

Public policy is also to give immunity to all judges in the Courts. Same as teacher tenure, except that for judges, there really is no way to get them removed for being "bad" unless some high-powered politician or prosecutor decides to do it.

When I write the closing argument for a 3020-a I always strenuously argue for public policy and tenure protections because each and every case is a mix of truth and lies created to end the career of a tenured person - an individual with a family, a house, a career. Bills. Mortgages. Medical needs.

That is why every case is unique and deserves to be studied and every memo, letter, email, piece of information should be integrated into the record. 3020-a arbitration is, in my 14-year experience, a war against the destruction of tenure rights. That being said, every case is unique and special in its own way. Despite my being involved in about 60 cases since 2003, every case is different and must be looked at as if all the parts are new. Every Respondent, or charged DOE employee, is different. No two people bring to the 3020-a the same case, because no two people are alike.

I am very different from my identical twin sister. Nothing about our lives have any similarity except we both have children. That's it.

The general public loves hearing about how and when corrupt politicians get arrested for hurting the very same community members who put them into office. Public corruption is everywhere.

How does corruption and fraud in public office get to be so pervasive? One reason, of course, is that sheep people, or sheeple, believe the fake news that the politician spews out in order to win votes. My mom watched ABC News, and that was The Truth of the matter. I tried to convince her that truth may not be what she was seeing, but my efforts were in vain. Strange, because my dad was a fact person, he was Assistant Attorney General for the State of New York under Louis Lefkowitz, 20+ years.

Why people believe certain things and not others, or certain individuals and not others, is way beyond my pay grade. All I'm saying is that I do not believe anything until is see the facts first hand. I love the internet, but I sift facts out and it is time-consuming. This must be done, and hopefully, some people may follow me because they think that I have sifted through the information web for them adequately.

For all these reasons, Undue Process is fake news, but even the authors gave a crumb of truth, as seen in the NY POST article (re-posted below):

"While decrying needless bureaucratic delays that allow inept instructors to remain in front of students, Griffith stressed that the overwhelming number of city teachers are diligent and effective.

“We’re not talking about,” he said. “We’re not saying most teachers are ineffective. They very hard and are doing a good job on the whole. We’re talking about 2 to 4 percent who are demonstrably ineffective.”

Betsy Combier
betsy.combier@gmail.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Undue Process

Why Bad Teachers in Twenty-Five Diverse Districts Rarely Get Fired

December 08, 2016

Countless studies have demonstrated that teacher quality is the most important school-based determinant of student learning, and that removing ineffective teachers from the classroom could greatly benefit students. Consequently, many states have reformed their teacher evaluation systems in an effort to differentiate between effective and ineffective teachers, with an eye toward parting ways with the latter.

But is dismissing poorly performing teachers truly feasible in America today? After all the political capital (and real capital) spent on reforming teacher evaluation, can districts actually terminate ineffective teachers who have tenure or have achieved veteran status?

To find answers, Fordham analysts David Griffith and Victoria McDougald constructed a ten-point metric based on three questions:

1. Does tenure protect veteran teachers from performance-based dismissal?
    
2. How long does it take to dismiss an ineffective veteran teacher?
    
3. How vulnerable is an ineffective veteran teacher’s dismissal to challenge?

They then used this framework to gauge the difficulty of dismissing ineffective veteran teachers in twenty-five diverse districts.

As shown in the table below, not one district in our sample has an easy process in place for dismissing an ineffective veteran teacher. Rather, the data suggest that significant barriers to dismissal remain in place in every district that we examined.

Across the country, most districts and states continue to confer lifetime tenure on teachers, weak teachers still take years to dismiss if they achieve tenured status, and any attempt to dismiss an ineffective veteran teacher remains vulnerable to costly challenges at every stage in the process—from evaluation, to remediation, to the dismissal decision, and beyond. Consequently, in most districts and schools, dismissing an ineffective veteran teacher remains far harder than is healthy for children, schools, taxpayers—and the teaching profession itself.

It’s basically impossible to fire a New York City school teacher

By Selim Algar

                                                                                                                                             LINK
It’s the city that never sacks.

New York City is one of the hardest places in the nation to fire ineffective public-school teachers, according to a new study.

A report by the Thomas Fordham Institute found that, out of 25 school districts across the country, only San Francisco, Los Angeles, and Chicago make it more onerous to boot failing instructors than New York City.

“Once teachers are granted tenure, the dismissal timeline is protracted, and the dismissal itself is extremely vulnerable to challenge,” the conservative-leaning think tank concluded.

Its report — titled “Undue Process: Why Bad Teachers in 25 Diverse Districts Rarely Get Fired” — said New York City administrators face nearly prohibitive hurdles when trying to terminate staffers who repeatedly fail to make the grade.

At a minimum, it takes two years to dismiss a tenured city teacher, according to the report.

“And that’s the best-case scenario,” said one of the study’s authors, David Griffith. “But two years is already far too long — it usually doesn’t take two years to fire someone who isn’t doing an in most industries.”

Even after they’ve been marked for termination, instructors can drag out the process internally or through court action, the report said.

City teachers must be observed at least eight times over the course of two years in order for termination proceedings to take place — and they can fight negative findings at every step, Griffith said.

“Principals are already extremely overburdened,” he said. “It’s already a tough job. If you’re a principal and you know there’s ­really no chance to dismiss a teacher or it’s going to take hours and hours of your time, why bother in the first place.”

But United Federation of Teachers union boss Michael Mulgrew ripped the report, arguing that it ignored systemic flaws that send even the best instructors fleeing

“Hundreds of teachers depart the New York City public schools every year based on their professional performance — failure to maintain, disciplinary
action and similar reasons,” he said.

“But every year, thousands of teachers in good standing leave of their own volition because the system has failed to provide the supports they need to effectively help the students in their classrooms. That’s the real scandal that critics like the Thomas Fordham Institute ignore.”

The UFT also argued that the study used flawed and inaccurate information to reach its conclusions.

The termination process has been steadily shortening, the UFT said, with a median duration of 105 days between the issuance of charges and a settlement.

While decrying needless bureaucratic delays that allow inept instructors to remain in front of students, Griffith stressed that the overwhelming number of city teachers are diligent and effective.

“We’re not talking about,” he said. “We’re not saying most teachers are ineffective. They very hard and are doing a good job on the whole. We’re talking about 2 to 4 percent who are demonstrably ineffective.”

He added, however, that “dismissing that bottom slice can ­really dramatically improve student achievement. It’s small but very important.”

Morton v Mulgrew: Dianna Morton Once Again Loses a Right to Wage Increases Between October 2009 and June 2014 Because She Resigned Between Both Dates

The First Department has decided to deny Dianna Morton and other plaintiffs their lawsuit against the UFT after the UFT ratified a contract that provided for wage increases retroactive to the October 31, 2009 expiration of the preceding agreement both for members employed on June 3, 2014 and for members who had retired after October 31, 2009, but not for former members, such as plaintiffs, who had resigned from their employment between those two dates. 

This is unfair, arbitrary and capricious. Maybe the Plaintiffs will take this issue to the Court of Appeals, and get some justice there.

I hope so!

Betsy Combier
betsy.combier@gmail.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Morton v Mulgrew

2016 NY Slip Op 07270

Decided on November 3, 2016

Appellate Division, First Department

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

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

Decided on November 3, 2016 
Renwick, J.P., Feinman, Gische, Kapnick, JJ.

2134 6522111/14 

[*1]Dianna Morton, Plaintiff, Grant Tedaldi, et al., Plaintiffs-Appellants, —

v

Michael Mulgrew, etc., Defendant-Respondent.

Salem & Shimko, Brooklyn (Daniel Shimko of counsel), for appellants.

Stroock & Stroock & Lavan LLP, New York (Dina Kolker of counsel), for respondent.

Order, Supreme Court, New York County (Donna M. Mills, J.), entered July 23, 2015, which, to the extent appealed from, granted defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(7), unanimously affirmed, without costs.

The complaint alleges that New York United Federation of Teachers, Local 2, AFT, AFL-CIO, breached the duty of fair representation to plaintiffs by ratifying, on June 3, 2014, a collective bargaining agreement that provided for wage increases retroactive to the October 31, 2009 expiration of the preceding agreement both for members employed on June 3, 2014 and for members who had retired after October 31, 2009, but not for former members, such as plaintiffs, who had resigned from their employment between those two dates.

Cognizant of the obstacle to this suit presented by the Martin rule, which "limit[s] such suits . . . to cases where the individual liability of every single member can be alleged and proven" (Martin v Curran, 303 NY 276, 282 [1951]; General Associations Law § 13), plaintiffs argue that the rule was abrogated by the enactment of the Taylor Law in 1967 (Civil Service Law § 200 et seq.), or by its 1990 amendment. This argument is unavailing in light of the recent decision of the Court of Appeals upholding the Martin rule (even as it questioned the rule's "continued utility or wisdom") (Palladino v CNY Centro, Inc., 23 NY3d 140, 150 [2014]).

Given the foregoing, we need not reach plaintiffs' remaining contentions.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 3, 2016

CLERK

The 3020-a Arbitration Newswire: Dennis Walcott's Speech on "Ending Just Cause at 3020-a"

Dennis Walcott was a Chancellor-in-waiting who was always in the background of all the others during the Bloomberg Administration, and he remains a person who covers up waste and corruption - oops, I mean who cleans up waste and corruption (actually, you can pick which one). He's a "floater", always ready to jump in to a position when a political hack fizzles out.

Here is the Wikipedia write-up:
"Dennis M. Walcott (born September 7, 1951) was the Chancellor of the New York City Department of Education. He succeeded Cathie Black, who resigned in April 2011 after only three months on the job. He was succeeded as chancellor by Carmen Fariña.

Although Walcott lacks training as a schools administrator, he served nine years as New York City Deputy Mayor for Education and was a member of the NYC Board of Education. He required a waiver from the New York State Education Department under Education Commissioner David M. Steiner. Walcott is a former employee at Amistad Day Care Center and holds a master's degrees in the education field.

Prior to joining Mayor Michael Bloomberg in 2002 as Deputy Mayor for Education, he headed the New York chapter of the Urban League."

He, like Mike Bloomberg and Joel Klein, set in motion the unfair 3020-a arbitration process. They and many others around the US believe that Just Cause is not something that they want to deal with. Their goal is to end tenure rights. If a principal wants an employee out of the school and off the payroll, they should have the right, legally, to terminate the person, tenure be damned. The goal is to end job protection for anyone.

See:  

Dennis Walcott testifies at New York State Senate on fixing 3020-a by speeding the hearings up and doing away with "Just Cause" May 23, 2011

Transcript: NYS Senate Hearings May 23, 2011 on 3020-a

Arbitration decisions: Are They in Compliance With The JUST CAUSE STANDARD - or is the Penalty Determined Under the JUST 'CAUSE Someone Dislikes You Standard?

Corrupting Civil Rights: Sham Colleges, Loan Usury, and Soda

Dennis Walcott to be named monitor of troubled East Ramapo school district

There Can Be No Change Under the Reign Of Bloomberg (Except In Ourselves )

Goals and Plans For Education in New York State (1961)

The Second "Who Are You Kidding Award" Goes To Dennis Walcott

I believe we must keep tenure, and must use every resource available to keep good teachers in their jobs. And, to get bad teachers out. Who is a bad teacher? A person who is proven to lie, cheat, deliberately harm a child or adult, or steal. The key word here is "proven", as in giving Proof. Facts Matter.

Proof with facts wins.

Just keep writing and fighting, that's the answer.

Betsy Combier

betsy.combier@gmail.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Matter of Zarinfar: The Court Will Not Vacate Termination, Because Petitioner Received a U-Rating While a Probationary Teacher

If you do not have tenure, says Judge Billings in New York State Supreme Court, (affirmed by the First Department Appellate Division Nov. 3, 2016), and you received a U-rating as a probationary teacher, the Court will not agree to give you your job back or grant you tenure by estoppel.

The NYC DOE can effectively stop anyone from getting tenure for any reason because the grievance process is so messed up. Request to NYSUT: fix the grievance process!!!!

What is interesting about Mr. Zarinfar's case is that NYSUT represented him in Court.

Betsy Combier
betsy.combier@gmail.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

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

2016 NY Slip Op 07269

Decided on November 3, 2016

Appellate Division, First Department

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

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

Decided on November 3, 2016 
Friedman, J.P., Renwick, Feinman, Gische, Kapnick, JJ.

2133 116457/10 

[*1]In re Majid Zarinfar, Petitioner-Appellant,

v

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

Office of Richard E. Casagrande, New York (Lori M. Smith of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Diana Lawless of counsel), for respondents.

Judgment (denominated an order), Supreme Court, New York County (Lucy Billings, J.), entered July 20, 2015, which, to the extent appealed from, denied the petition and dismissed the proceeding brought pursuant to CPLR article 78, seeking to annul respondents' termination of petitioner's probationary employment, effective August 30, 2010, and seeking a declaration that petitioner obtained a tenured teaching position in the Department of Education by estoppel, unanimously modified, on the law, solely to declare that petitioner did not obtain tenure by estoppel, and as so modified, affirmed, without costs.

Petitioner seeks credit against the three-year probationary service requirement and tenure by estoppel based on his service in the same subject area at a different school under a different license (Education Law § 2573[1][a]). However, the court correctly found that such credit was not available to him because his initial probationary service was not found "satisfactory," and his employment under that license was terminated (see Matter of Triana v Board of Educ. of City School Dist. of City of N.Y., 47 AD3d 554, 558 [1st Dept 2008]). Moreover, as the court found, a new probationary period commenced under petitioner's mathematics license after his service was terminated under his technology license.

Hence, because petitioner never received tenure, he was subject to termination at any time for any reason without a hearing (see Matter of Gould v Board of Educ. of Sewanhaka Cent. High School Dist., 81 NY2d 446, 451 [1993]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 3, 2016

CLERK