Union Member Required To Exhaust Administrative Remedies Before Suing His Union

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

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

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

Mitchell H. Rubinstein

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Joel Klein and NYPD Commissioner Ray Kelly are Sued For Allowing Police Abuse in NYC Public Schools

Many parents were very worried about the New York City police presence in our public schools when Mayor Bloomberg brought in the NYPD troops as his allies in 2003 to enhance school security. Bloomberg believed in Rudy Giuliani's

COMSTAT policy that successfully reduced crime in the

city, and decided to place police officers, or "safety agents" in public schools as a way to curb the violence that he heard was rampant there. (But many police officers dont like COMSTAT, and frankly, I dont see how a child is equal to a statistic. However, that's what we got when we gave Mike Bloomberg our children to 'protect' and 'keep safe' in the NYC public schools - Betsy Combier).

The TV show "The District" used the version of COMSTAT called 'Citistat'.


Craig T. Nelson meets Jack Maple (CBS, 2000). Maple whose life experience in crime fighting (as well as eccentricities) is the basis of Nelson's character on The District, also helped produce the show before his passing.

Citistat is a bureaucracy-breaking system which was developed in the City of Baltimore. It was the brainchild of Mayor Peter O'Malley and former NYPD deputy chief, the late Jack Maple. Maple proved in New York City that crime could be reduced by mapping criminal patterns of behavior and like unique evidence in order to gain timely intelligence to help an investigation.
This system, which started for Maple as large sheets of paper covering the walls in his office to a sophisticated computer program. ArcView GIS from ESRI, is the computer software in what eventually became "Comstat."
An example of the use of Comstat was given by Jack Maple in his book Crime Fighter. A prostitute was strangled, a particularly gruesome murder. She was hog-tied and gagged with a pink towel.
When Comstat was beginning, statistics dug up had found a previous similar murder. When a third murder of the same sort occurred, it showed a definite pattern, as well as displaying an isolated part of the city where the similar offenses were occurring.
Police then followed this pattern by canvassing prostitutes in that part of town and eventually got the tip that helped to catch this serial killer.
Finding even the most minute patterns quickly--out of mountains of data--as well as being able to visualize and digest the information easily on large screen monitors is what gives progressive police forces using the Comstat model an edge.
Minute details that used to take hours or days to sort through filing cabinets to retrieve are now entered into a database and connected in a meaningful pattern, using software and posing "what if" scenarios.
The similar information, such as some unique piece of evidence, could then be displayed on demand as colored push points on ArcView's map software for use at a crime solving strategy meeting.
Its use in NYC helped dramatically reduce crime during the Giuliani administration and make New York America's safest big city.
ComStat has been studied by policing agencies for replication all over the world. Former Mayor Guiliani is consulting on solving crime with Mexico City at present.

Comstat becomes Citistat

Comstat turned into the CitiStat model in Baltimore. It has already saved the taxpayers millions of dollars there. Citistat's premise is similar to ComStat: regular accountability meetings and graphical data a few clicks away.
As an example of usage one mappage in Baltimore has displayed real-time snow plows (using GPS on each truck) that light up the map as they move around the city, showing lit up on the computer screen like little Pacmen.
Getting a successful handle on the information crunch in a part of the Roads Department of activities in Baltimore has resulted in the ability for the mayor to make a pledge to pave any pothole reported by citizens within 48 hours. (Effective pothole repair is the first defense against premature deterioration of the road, saving on major repair costs later.)
Like Comstat, officials from all over the world have made the pilgrimage to Baltimore to study this successful system. A number of cities are also adopting major portions of Citistat.


The public has also seen the Mayor adopt the "Broken Windows" theory to our education system here in New York. However, the "Broken Windows" theory has never been "proven" to be valid, but this never stopped Bloomberg from buying into it anyway. See an overview of "Fixing broken windows"

Mr. Joel Klein, the CEO of the New York City Board of Education, and NYPD Commissioner Ray Kelly are now in federal court defending a safety agent's use of extreme force against a child, and the question of whether or not the police belong in schools will be answered - I hope (they dont, in my opinion - B.C.). Mr. Nat Hentoff has now been laid off from The Village Voice, (see below) and I cant help but wonder whether or not his articles on Mr. Klein and Mayor Bloomberg had anything to do with this?


Federal Court Defendants Joel Klein & Ray Kelly
Our Education Mayor remains silent about police abuses of students in public schools
By Nat Hentoff, (pictured at right) The Village Voice
published: December 31, 2008

While Joel Klein was among those being seriously considered by Barack Obama for Secretary of Education—Chicago Superintendent Arne Duncan won out—a civil rights complaint, demanding a jury trial, was filed in U.S. District Court here [Southern District, 08 Civ. 10055 (RJH)(MHD)]. The defendants include Chancellor Klein, Police Commissioner Kelly, the City of New York, and School Safety Agent Daniel O'Connell. The plaintiff is Carlos Cruz, father of Stephen Cruz, an 11th-grade student at Robert F. Kennedy Community High School in Flushing, Queens.

Klein is a defendant in the lawsuit, which was filed by attorney Jeffrey Rothman, because he "is and was at all times, the Commissioner of Education . . . and is responsible, in whole or in part, for the creation . . . and enforcement of the policies and practices . . . herein. He is sued individually and in his official capacity."

I have reported often here on the documented abuses of students, and even some teachers, by the School Safety Agents deployed in this city's schools under Kelly, Klein, and Michael Bloomberg (the latter two praised around the country as champions of "school reform"). Since the 1950s, I've written in columns and books on our schools—and their chancellors from the worst to the best. But not until the Bloomberg/Klein regime have I seen such flagrant dereliction of accountability at the very top of the school system for frequent abuse of students by police agents. This Stephen Cruz case will be followed in next week's column by the even more outrageous treatment of 16-year-old Rohan Morgan at Hillcrest High School in Queens.

Teaching fear of the police is part of the curriculum in the school system—of which Bloomberg is so proud that he is striving (with the help of the City Council) to control the schools permanently.

On September 19, 2008, Stephen Cruz entered one of the stalls in the second-floor bathroom of his school and, as he leaned over to unbuckle his pants, School Safety Agent Daniel O'Connell—known as "Robocop" by the students—smashed open the door without any warning, let alone justification, cutting Stephen's head below the hairline. Bleeding, dizzy, the lump on his head swelling, Cruz showed his blood to the attacker, who said, "That's life. It will stop bleeding"—and left to do his safety rounds. A fellow student in the bathroom helped Cruz to the principal's office to get medical help. Cruz's parents were called to the school and told by the principal that since "Robocop" was an employee of the NYPD, he had no power to discipline the SWAT man.

But why had O'Connell knocked down the door? Stephen's father kept trying to find out, but was told that the Safety Agent didn't even have to submit a report to school officials. His immediate boss was School Safety Agent Supervisor Anthony Pelosi at the 107th Precinct. The impotent principal did schedule a meeting at the precinct to discuss the violence, but Pelosi abruptly canceled it—with, of course, no explanation.

Rothman said (as reported by the New York Civil Liberties Union, which has been trying to teach Klein and Bloomberg the Bill of Rights for years, concerning these cases): "It is appalling that the system is so broken that the only way for a parent to stand up for his son—and to prevent the same things from happening to other children—is to file a lawsuit and an Internal Affairs complaint." He added: "We shouldn't need attorneys to hold this man accountable for his shocking misconduct."

But not only Robocop should be held accountable. (Place your bets on whether he'll even be chided in an NYPD Internal Affairs "investigation.") Where was the chancellor of this city's public school students? Where was the Education Mayor? Not shocked—and not heard from.

If there are civics classes in our schools, then teachers—despite any fear of retaliation from the chancellor—should be reading to students from Rothman's suit during the testing-for-tests time of the No Child Left Behind Act: "School Safety Agent Daniel O'Connell, acting under color of law and without lawful justification, intentionally, maliciously, and with a deliberate indifference to—or a reckless disregard for the natural and probable consequences—caused injury and damage in violation of the plaintiff's constitutional rights . . ."

As for the creepy cover-up, the lawsuit continues: "By their conduct and actions in covering up the conduct and actions of the School Safety Agent," the other culpable defendants include "Raymond Kelly and Joel Klein," who also scorned the constitutional rights of Stephen Cruz. This lawsuit—and others are coming—also focuses on the failure "to properly train, screen, supervise, or discipline" O'Connell and others in that chain of command. Most clearly accountable for that failure is, of course, Police Commissioner Kelly. Aside from what your flack may conjure up, what say you directly, Commissioner?

Even more ultimately responsible for not bringing accountability and badly needed discipline to all of the potential defendants in this and other such lawsuits is the New York City Council leadership.

As I've detailed in previous columns, the Student Safety Act, which has long been before the council, would finally compel transparency and accountability for these and other police practices in the schools. Only 28 of the 51 council members support the Act, but there has yet to be even a hearing. Council member Melissa Mark-Viverito, a co-sponsor of the Student Safety Act, emphasizes: "What happened to Stephen is a disturbing reminder of the deep flaws in our Student Safety model. Ensuring students' safety is not a controversial matter. We all want safe schools, and this bill helps us meet that goal."

Of all big school systems in the country, only in New York does student safety also have to be protected from agents of the police. Why is there no hearing on the bill by the City Council? In the past, I've blamed Speaker Christine Quinn, but I now know that blocking this peril to the safety of students, especially in mainly black and Hispanic schools, is Queens Councilman Peter Vallone Jr., chairman of the Public Safety Committee, a majority of whose members support the Student Safety Act. Mr. Vallone has yet to respond to my calls to him and to his aides.

An assistant has told investigative reporter Vladic Ravich of the Queens Chronicle that there aren't enough funds for the Civilian Complaint Review Board to handle the additional casework of parent complaints about the Robocops among the Safety Agents. To hell with these parents and their children?! Vallone has two daughters in the public schools. I guess they're safe, too.

School Safety Agent O'Connell is now patrolling a middle school nearby.

Complaint:
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------X
CARLOS CRUZ, as Father and Next Friend
of STEPHEN CRUZ, COMPLAINT
Plaintiff, JURY TRIAL DEMANDED
-against-
ECF CASE
THE CITY OF NEW YORK; RAYMOND KELLY,
COMMISSIONER OF THE NEW YORK CITY 08 Civ. 10055 (RJH)(MHD)
POLICE DEPARTMENT; JOEL KLEIN,
COMMISSIONER OF THE NEW YORK CITY
DEPARTMENT OF EDUCATION; SCHOOL
SAFETY AGENT DANIEL O’CONNELL, Shield
No. 2816; SCHOOL SAFETY AGENT
SUPERVISOR ANTHONY PELOSI AT THE
NYPD 107TH PRECINCT, Shield No. 0049;
JOHN DOES; RICHARD ROES,

Defendants
--------------------------------------------------------X
PRELIMINARY STATEMENT
1. This is a civil rights action in which CARLOS CRUZ seeks relief on behalf of his son STEPHEN CRUZ for the defendants’ violation of STEPHEN CRUZ’s rights secured by the Civil Rights Act of 1871, 42 U.S.C. Section 1983, by the United States Constitution, including its Fourth and Fourteenth Amendments, and by the laws and Constitution of the State of New York. The plaintiff seeks damages, both compensatory and punitive, affirmative and equitable relief, an award of costs and attorneys’ fees, and such other and further relief as this court deems equitable and just.

JURISDICTION

2. This action is brought pursuant to the Constitution of the United States, including its Fourth and Fourteenth Amendments, and pursuant to 42 U.S.C. §1983. Jurisdiction is conferred upon this court by 42 U.S.C. §1983 and 28 U.S.C. §§1331 and 1343(a)(3) and (4), this being an action seeking redress for the violation of STEPHEN CRUZ’s constitutional and civil rights.

JURY TRIAL DEMANDED

3. Plaintiff demands a trial by jury on each and every claim as pleaded herein.

VENUE

4. Venue is proper for the United States District Court for the Southern District of New York pursuant to 28 U.S.C. §1391 (a), (b) and (c).

PARTIES

5. Plaintiff CARLOS CRUZ is a citizen of the United States, and at all times relevant herein resided in the state of New York, county of Queens. STEPHEN CRUZ, a minor, is the son of CARLOS CRUZ, and is and was at the time of the events complained of herein fifteen years of age. STEPHEN CRUZ at all times relevant herein resided with his parents and family in the state of New York, county of Queens.

6. Defendant THE CITY OF NEW YORK (“The City”) is and was at all times relevant herein a municipal entity created and authorized under the laws of the State of New York. It is authorized by law to maintain a police department, which acts as its agent in the area of law enforcement and for which it is ultimately responsible. It is also authorized by law to maintain a department of education, which acts as its agent in the area of education of the City’s youth and for which it is ultimately responsible. Defendant THE CITY OF NEW YORK assumes the risks incidental to the maintenance of a police force and system of public education and the employment of school safety agents as said risk attaches to the public consumers of the services provided by the New York City Police Department (“NYPD”) and Department of Education (“DOE”).

7. Defendant RAYMOND KELLY is and was at all times relevant herein, the Police Commissioner for the City of New York, and he is responsible, in whole and/or in part, for the creation, implementation, promulgation and enforcement of the policies, practices and /or customs complained of herein. He is sued individually and in his official capacity.

8. Defendant JOEL KLEIN is and was at all times relevant herein, the Commissioner of Education for the City of New York, and he is responsible, in whole and/or in part, for the creation, implementation, promulgation and enforcement of the policies, practices and /or customs complained of herein. He is sued individually and in his official capacity.

9. Defendants SCHOOL SAFETY AGENT DANIEL O’CONNELL, Shield No. 2816, and JOHN DOES, are and were at all times relevant herein duly appointed and acting officers, servants, employees and agents of THE CITY OF NEW YORK and/or the New York City Police Department and/or the New York City Department of Education, municipal agencies of defendant THE CITY OF NEW YORK. Said individual defendants are and were at all times relevant herein acting under color of state law in the course and scope of their duties and functions as officers, agents, servants, and employees of defendant THE CITY OF NEW YORK, were acting for, and on behalf of, and with the power and authority vested in them by THE CITY OF NEW YORK and/or the New York City Police Department and/or the New York City Department of Education, and were otherwise performing and engaging in conduct incidental to the performance of their lawful functions in the course of their duties. Defendants O’CONNELL and JOHN DOES are sued individually and in their official capacity.

10. Defendants SCHOOL SAFETY AGENT SUPERVISOR ANTHONY PELOSI AT THE NYPD 107TH PRECINCT, Shield No. 0049, and RICHARD ROES are and were at all times relevant herein duly appointed and acting supervisory officers, servants, employees and agents of THE CITY OF NEW YORK and/or the New York City Police Department and/or the New York City Department of Education, responsible for the training, retention, supervision, discipline and control of school safety agents and other employees under their command. Said individual defendants are and were at all times relevant herein acting under color of state law in the course and scope of their duties and functions as supervisory officers, agents, servants, and employees of defendant THE CITY OF NEW YORK, were acting for, and on behalf of, and with the power and authority vested in them by THE CITY OF NEW YORK and/or the New York City Police Department and/or the New York City Department of Education, and were otherwise performing and engaging in conduct incidental to the performance of their lawful functions in the course of their duties. Defendants SCHOOL SAFETY AGENT SUPERVISOR PELOSI AT THE NYPD 107TH PRECINCT, Shield No. 0049 and RICHARD ROES are sued individually and in their official capacity.

STATEMENT OF FACTS

11. STEPHEN CRUZ is a student at Robert F. Kennedy High School in Flushing, Queens.

12. The afternoon of September 19, 2008, Plaintiff STEPHEN CRUZ entered the second floor bathroom, and entered one of the bathroom stalls so that he could use the facilities.

13. As he leaned his head over to unbuckle his pants, defendant SCHOOL SAFETY AGENT DANIEL O’CONNELL, without any warning or justification, violently kicked the door of the stall into STEPHEN CRUZ’S head.

14. When he saw that there was blood coming from the wound that he had inflicted upon STEPHEN CRUZ, Defendant SCHOOL SAFETY AGENT DANIEL O’CONNELL said, “That’s life, it will stop bleeding.”

15. Defendant SCHOOL SAFETY AGENT DANIEL O’CONNELL then left the bathroom, without any attempt to seek medical attention for STEPHEN CRUZ.

16. Another student who was present in the bathroom assisted STEPHEN CRUZ to clean the blood off of his head, and assisted STEPHEN CRUZ in getting to the school’s main office, where the incident could be reported and STEPHEN CRUZ could get medical attention.

17. STEPHEN CRUZ’s parents were called to the school.

18. STEPHEN CRUZ’s father CARLOS CRUZ made repeated attempts on that occasion and in the days that followed to ascertain what Defendant SCHOOL SAFETY AGENT DANIEL O’CONNELL’s explanation was for his conduct. CARLOS CRUZ was unable to obtain that information from the school’s officials, and was informed that SCHOOL SAFETY AGENT DANIEL O’CONNELL did not have to submit a report to school officials, since he was governed by the NYPD 107th Precinct.

19. STEPHEN CRUZ’s father CARLOS CRUZ was subsequently informed by the school’s Principal that SCHOOL SAFETY AGENT SUPERVISOR ANTHONY PELOSI AT THE NYPD 107TH PRECINCT had cancelled a meeting with the Principal at which meeting the Principal had expected to obtain further information as to what Defendant SCHOOL SAFETY
AGENT DANIEL O’CONNELL’s explanation was for his conduct.

20. To date, no explanation has been provided to STEPHEN CRUZ or his father CARLOS CRUZ for what transpired in the bathroom stall.

21. Defendant SCHOOL SAFETY AGENT DANIEL O’CONNELL is referred to as “Robocop” by the students at Robert F. Kennedy High School because of his routine aggressive and inappropriate behavior towards the students.

22. In 1998, School Safety Agents were transferred from the Department of Education and placed under the authority of the New York City Police Department. Since that time there has been a widespread lack of transparency and accountability concerning the actions of School Safety Agents in the New York City Public Schools.

FIRST CLAIM
DEPRIVATION OF RIGHTS UNDER THE
UNITED STATES CONSTITUTION AND 42 U.S.C. §1983

23. Plaintiff incorporates by reference the allegations set forth in all preceding paragraphs as if fully set forth herein.

24. By his conduct and actions in assaulting and battering STEPHEN CRUZ with unwarranted and excessive force, by wrongfully invading the privacy of STEPHEN CRUZ, by falsely imprisoning STEPHEN CRUZ in a bathroom stall, by inflicting emotional distress upon STEPHEN CRUZ, by failing to provide proper medical care for STEPHEN CRUZ, and by violating STEPHEN CRUZ’s right to substantive due process, defendant SCHOOL SAFETY AGENT DANIEL O’CONNELL, acting under color of law and without lawful justification, intentionally, maliciously, and with a deliberate indifference to or a reckless disregard for the natural and probable consequences of their acts, caused injury and damage in violation of plaintiff’s constitutional rights as guaranteed under 42 U.S.C. §1983 and the United States Constitution, including its Fourth and Fourteenth amendments.

25. By their conduct and actions in covering up the conduct and actions of defendant SCHOOL SAFETY AGENT DANIEL O’CONNELL and preventing transparency regarding the September 19, 2008 incident, defendants JOHN DOES, SCHOOL SAFETY AGENT SUPERVISOR ANTHONY PELOSI AT THE NYPD 107TH PRECINCT, RAYMOND KELLY, and JOEL KLEIN, acting under color of law and without lawful justification, intentionally, maliciously, and with a deliberate indifference to or a reckless disregard for the natural and probable consequences of their acts, caused injury and damage in violation of plaintiff’s constitutional rights as guaranteed under 42 U.S.C. §1983 and the United States Constitution, including its Fourth and Fourteenth amendments.

26. As a result of the foregoing, STEPHEN CRUZ was deprived of his liberty, suffered bodily injury, pain and suffering, psychological and emotional injury, great humiliation, costs and expenses, and was otherwise damaged and injured.

SECOND CLAIM
SUPERVISORY LIABILITY FOR DEPRIVATION OF RIGHTS
UNDER THE UNITED STATES CONSTITUTION AND 42 U.S.C. §1983

27. Plaintiff incorporates by reference the allegations set forth in all preceding paragraphs as if fully set forth herein.

28. By failing to remedy the wrongs committed by their subordinates, including defendant SCHOOL SAFETY AGENT DANIEL O’CONNELL, and in failing to properly train, screen, supervise, or discipline their subordinates, including defendant SCHOOL SAFETY AGENT DANIEL O’CONNELL, supervisory officers RICHARD ROES, SCHOOL SAFETY
AGENT SUPERVISOR ANTHONY PELOSI AT THE NYPD 107TH PRECINCT, RAYMOND KELLY, and JOEL KLEIN caused damage and injury in violation of STEPHEN CRUZ’s rights guaranteed under 42 U.S.C. §1983, and the United States Constitution, including its Fourth and Fourteenth amendments.

29. As a result of the foregoing, STEPHEN CRUZ was deprived of his liberty, suffered bodily injury, pain and suffering, psychological and emotional injury, great humiliation, costs and expenses, and was otherwise damaged and injured.

THIRD CLAIM
LIABILITY OF THE CITY OF NEW YORK
FOR CONSTITUTIONAL VIOLATIONS

30. Plaintiff incorporates by reference the allegations set forth in all preceding paragraphs as if fully set forth herein.

31. At all times material to this complaint, defendant THE CITY OF NEW YORK, acting through its police department and department of education, and through the individual defendants had de facto policies, practices, customs and usages which were a direct and proximate cause of the unconstitutional conduct alleged herein.

32. At all times material to this complaint, defendant THE CITY OF NEW YORK, acting through its police department and department of education, and through the individual defendants, had de facto policies, practices, customs, and usages of failing to properly train, screen, supervise, or discipline employees and school safety agents, and of failing to inform the individual defendants’ supervisors of their need to train, screen, supervise or discipline said defendants. These policies, practices, customs, and usages were a direct and proximate cause of the unconstitutional conduct alleged herein.

33. At all times material to this complaint, defendant THE CITY OF NEW YORK, acting through its police department, and through the individual defendants, had de facto policies, practices, customs, and usages of encouraging and/or tacitly sanctioning the violation of the rights of New York City Public School students by School Safety Agents and by other members of the NYPD. These policies, practices, customs, and usages were a direct and proximate cause of the unconstitutional conduct alleged herein.

34. At all times material to this complaint, defendant THE CITY OF NEW YORK, acting through its police department, and through the individual defendants, had de facto policies, practices, customs, and usages of encouraging and/or tacitly sanctioning the covering up of the improper conduct and actions of School Safety Agents and other members of the NYPD in the New York City Public Schools. These policies, practices, customs, and usages were a direct and proximate cause of the unconstitutional conduct alleged herein.

35. At all times material to this complaint, defendant THE CITY OF NEW YORK, acting through its police department, and through the individual defendants, had de facto policies, practices, customs, and usages of encouraging and/or tacitly sanctioning the widespread lack of transparency and accountability concerning the actions of School Safety Agents and other members of the NYPD in the New York City Public Schools. These policies, practices, customs, and usages were a direct and proximate cause of the unconstitutional conduct alleged herein.

36. As a result of the foregoing, STEPHEN CRUZ was deprived of his liberty, suffered bodily injury, pain and suffering, psychological and emotional injury, great humiliation, costs and expenses, and was otherwise damaged and injured.

WHEREFORE, plaintiff demands the following relief jointly and severally against all of the defendants:
a. Compensatory damages;
b. Punitive damages;
c. The convening and empanelling of a jury to consider the merits of the claims herein;
d. Costs and interest and attorney’s fees;
e. Such other and further relief as this court may deem appropriate and equitable.
Dated: New York, New York
November 19, 2008

________/S/____________________
JEFFREY A. ROTHMAN, Esq. [JR-0398]
Law Office of Jeffrey A. Rothman
315 Broadway, Suite 200
New York, New York 10007
(212) 227-2980

RONALD L. KUBY, Esq. [RK-1879]
Law Office of Ronald L. Kuby
119 W. 23rd Street, Suite 900
New York, New York 10011
(212) 529-0223

Attorneys for Plaintiff Carlos Cruz,
as Father and Next Friend of Stephen Cruz

See The School To Prison Pipeline

Here is a report by CBS in August, 2008:
Proposed 'Student Safety Act' To Police Security
NYC Schools Cop Report Card To Monitor Gender, Race Of Those Arrested, Suspended & Expelled
LINK
With shootings on campuses making headlines across the country, security remains a major concern.

But here at home some are saying those called on to help keep students and faculty safe are going too far.

On the steps of City Hall on Thursday, dozens of students, politicians and parents tried to make a point that the people who police the schools need to be policed themselves.

"I have seen a school safety agent handcuff one of my friends and punch her in the face," student Jaritza Geigel said.

Accusations are flying that school safety officers are treating too many students like criminals.

"What used to be a walk to the principal's office has now become a walk to your local precinct," said Udi Ofer of the New York Civil Liberties Union.

Now comes the Student Safety Act that's essentially a report card of school cops, meant to monitor arrests, suspensions and expulsions of students, and then break down the information by race, sex and disability status -- with complaints going to the civilian complaint review board.

"The information can be analyzed to determine is there racism going on? Is there sexism going on? Is it because any one student who has special needs?" said NYC Education Committee chairman Robert Jackson.

Backers of this bill say it would lead to more accountability and transparency in the schools but critics say it's just another layer of bureaucracy."

"It's very difficult to do your job under these kinds of pressures," said Gregory Floyd of Local 237.

The union head says with his officers in place crime in schools is down, yet this bill would be a punishment.

"The punishment is if you sneeze the wrong way, somebody is going to come after your position," Floyd said.

CBS 2 HD wanted to know if Mayor Michael Bloomberg's office thought added oversight for school officers was a good idea, but it deferred all comment to the city's Department of Education. However, the DOE wasn't talking either, saying it doesn't comment on pending legislation.

And by the way, The Village Voice has laid off Mr. Hentoff:

December 31, 2008
Village Voice Lays Off Nat Hentoff and 2 Others
By STEPHANIE CLIFFORD, NY TIMES

The troubled Village Voice laid off three employees Tuesday, including Nat Hentoff, the prominent columnist who has worked for the paper since 1958, contributing opinionated columns about jazz, civil liberties and politics.

Lynn Yaeger, a fashion writer who has worked for the paper for about 30 years, was also laid off, as was Chloe A. Hilliard, who has written for two years.

“Nat Hentoff wrote liner notes for every great musician that I’ve ever loved, from Billie Holiday to Bob Dylan and Aretha Franklin, and that’s not even what he’s been writing about for the last 30 years,” said Tom Robbins, a Voice staff writer.

Founded in 1955, The Village Voice was sold in 2005 to New Times Media, a Phoenix-based publisher of alternative weeklies that later changed its name to Village Voice Media. Calls for comment from Jim Larkin, the chief executive of Village Voice Media, and Tony Ortega, who was hired as Village Voice editor in 2007, were not returned.

Mr. Robbins estimated that since the sale, The Voice has laid off about half of its staff. “I understand they have serious advertising revenue problems, but they don’t seem to be able to sit there and just talk about them with their own work force to deal with these problems,” he said.

In an article in the current issue of The New Yorker about The Voice, Louis Menand wrote, “Until its own success made it irresistible to buyers who imagined that they could do better with a business plan than its founders had done from desperation and instinct, it had the courage to live by its wits.”

Mr. Hentoff said he learned the news in a phone call with Mr. Ortega on Tuesday morning. “I’m 83 and a half. You’d think they’d have let me go silently,” he said. “Fortunately, I’ve never been more productive.”

Mr. Hentoff plans to continue to write a weekly column for the United Media syndicate and contribute pieces to The Wall Street Journal. His book “At the Jazz Band Ball: 60 Years on the Jazz Scene,” is expected next year.

“With all due immodesty, I think it doesn’t help to lose me because people have told me they read The Voice not only for me, but certainly for me,” he said.

Nick De Marco, NYC Teacher, Loses His Appeal For a Three-Member Panel in His 3020a Hearing

Wednesday, December 24, 2008
Commissioner of Education (Richard Mills, pictured at right) no longer has jurisdiction to determine the merits of disciplinary charges served on a tenured teacher

Appeal of Nicola A. DeMarco from action of the New York City Department of Education regarding disciplinary charges, Decisions of the Commissioner of Education, No. 15,850, December 12, 2008

Nicola A. DeMarco, a tenured teacher employed by the New York City Department of Education [DOE], was served with disciplinary charges initiated by his principal at Louis Armstrong Middle School.

DeMarco demanded a hearing on the charges to be conducted by a three-member panel pursuant to Education Law §3020-a, and also demanded dismissal of the charges on the ground that “disciplinary charges pursuant to §3020-a may not be initiated by a principal without review and approval by higher authority.”

DOE refused DeMarco’s demands on the grounds that [1] it had adopted alternate disciplinary procedures as authorized by Education Law §3020(4); [2] its agreement with the United Federation of Teachers did not provide for three-member disciplinary panels;** and [3] the authority to initiate disciplinary charges had been properly delegated to principals by the Community Superintendent of Community School District involved.

The Commission dismissed DeMarco’s appeal for lack of personal jurisdiction after finding that DeMarco had not served the only agent authorized to accept service of his appeal on behalf of the DOE, the Office of the Corporation Counsel.

In addition, the Commissioner said that DeMarco’s appeal had to be dismissed because, as Commissioner, he no longer had subject matter jurisdiction. Education Law §3020-a was substantially amended in 1994 and the Commissioner no longer had jurisdiction to review either final or nonfinal determinations by disciplinary hearing officers.

The amendment, said the Commissioner, “specifically gives the hearing officer authority to hear and decide all motions, including, but not limited to, motions to dismiss disciplinary charges, citing Education Law §3020-a[3][c][iii] and [iv].” Accordingly, concluded the Commissioner, DeMarco’s request that he dismiss the charges would require a review of the merits, which review was no longer within his jurisdiction.

** §3020-a.2(c) provides that in the event the disciplinary charges concern pedagogical incompetence or issues involving pedagogical judgment, the educator may elect to have the hearing conducted by either a single hearing officer or a three-member panel. All other charges are to be heard by a single hearing officer. However, as the Court of Appeals indicated in Antinore v State, 40 NY2d 6, a collective bargaining agreement may provide for alternatives to the statutory provisions provided such modifications are consistent with administrative due process.

The full text of the Commissioners decision is posted on the Internet:

Appeal of NICOLA A. DeMARCO, from action of the New York City Department of Education regarding disciplinary charges.

Decision No. 15,850

(December 12, 2008)

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Ivan A. Mendez, Jr., Esq., of counsel

MILLS, Commissioner.--Petitioner challenges disciplinary charges brought against him by the New York City Department of Education (“respondent”). The appeal must be dismissed.

Petitioner is a tenured teacher employed in respondent’s district since 1994. On December 7, 2007, disciplinary charges were brought against him by his principal at Louis Armstrong Middle School, I.S. 227. Petitioner demanded a hearing on the charges by a three-member panel pursuant to Education Law §3020-a, and demanded dismissal of the charges on the ground that disciplinary charges pursuant to §3020-a may not be initiated by a principal without review and approval by higher authority.

Respondent refused petitioner’s demands on the grounds that it had adopted alternate disciplinary procedures as authorized by Education Law §3020(4), and that its agreement with the United Federation of Teachers did not provide for three-member panels. It also refused to dismiss the charges because it claims that authority to initiate disciplinary charges had been properly delegated to principals by the Community Superintendent of Community School District 30 on August 27, 2007.

Petitioner commenced this appeal on June 25, 2008, to seek dismissal of the disciplinary charges and to enjoin the disciplinary proceeding during the pendency of the appeal. Interim relief was denied on July 8, 2008.

Petitioner argues that the alternative disciplinary procedures adopted by agreement between respondent and the United Federation of Teachers are improper and effectively deprive him of due process. He contends that the disciplinary proceeding against him also violates his rights under the New York Human Rights Law and the federal Family and Medical Leave Act.

Respondent denies any wrongdoing on its part and asserts several affirmative defenses, including lack of personal jurisdiction and lack of subject matter jurisdiction over some or all of petitioner’s claims.

The appeal must be dismissed for lack of personal jurisdiction. Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent. If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]).

According to the affidavit of petitioner’s process server, he made service of the notice of petition and petition upon Christine J. Kicinski on June 25, 2008, at 52 Chambers Street, the location of the Chancellor’s office. Respondent alleges that Ms. Kicinski is not a person authorized to accept service on its behalf. Respondent alleges that “Ms. Kicinski informed the deliverer that she would not accept service on behalf of the DOE, and that he would have to serve the petition on the only agent authorized to accept service on behalf of the DOE, the Office of the Corporation Counsel.” Respondent further avers that the Office of the Corporation Counsel was not served with the petition.

Petitioner’s reply does not address or refute the statement attributed to Ms. Kicinski with respect to her lack of authority to accept service on behalf of respondent. The reply states only, in a general way, that all of petitioner’s papers were served “properly, legally and sufficiently.” This general statement is insufficient to contradict respondent’s assertion.

When there is no proof that an individual has been authorized to accept service on behalf of the respondent, service on that individual is improper and the appeal must be dismissed (Appeal of Baker, 47 Ed Dept Rep 280, Decision No. 15,696; Appeal of J.L., 47 id. 151, Decision No. 15,654; Appeal of D.P., 46 id. 516, Decision No. 15,580).

The appeal must also be dismissed for lack of subject matter jurisdiction. Education Law §3020-a was substantially amended by Chapter 691, §3, of the Laws of 1994, effective for disciplinary charges filed on and after September 1, 1994. Pursuant to that amendment, the Commissioner’s jurisdiction to review determinations of hearing officers, both final and nonfinal, has been removed (Appeal of T.W., 47 Ed Dept Rep ___, Decision No. 15,735; Appeal of Fauvell, 47 id. 350, Decision No. 15,720; Appeal of Frajer, 41 id. 403, Decision No. 14,725). The amendment specifically gives the hearing officer authority to hear and decide all motions, including, but not limited to, motions to dismiss disciplinary charges (Education Law §3020-a[3][c][iii] and [iv]). Petitioner’s request that I dismiss the charges would require my review of the merits, which is not within my authority (Appeal of McCall, 34 Ed Dept Rep 484, Decision No. 13,390).

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

THE APPEAL IS DISMISSED.

END OF FILE

Giving Something Back While Representing NYC

Michael A. Cardozo, New York City Law Department

Stacey Laskin
New York Law Journal
August 7, 2007

Name and Title: Michael A. Cardozo, corporation counsel

Age: 66

Like A Big Law Firm: The New York City Law Department represents and provides legal counsel to Mayor Michael Bloomberg, the City Council, other elected officials and city agencies. Cardozo heads a staff of 1,300 employees, 690 of them attorneys grouped into 17 legal divisions.

Cardozo works mostly in the department's headquarters near City Hall, but oversees offices in each of the city's five boroughs and maintains a desk inside City Hall. His staff vets $4 billion in contracts each year.

According to Cardozo, the department is the third-largest law firm in New York City and operates in much the same way as a large firm, except for the pay -- the average starting salary is $55,000. Still, Cardozo said, the excitement and the responsibility to which city employees are exposed more than make up for the money.

Legal Team: New York City gets sued approximately 200 times every week, and about 65 cases go to trial each week. To staff all of these cases, Cardozo frequently relies upon his first- and second-year attorneys, but also borrows lawyers from large New York firms.

"Unfortunately, because of the economics of the law industry, it's hard to give new associates trial practice. But if they're here for their first year at the firm, they're assigned to one of our trial offices. We win, the law firm wins," Cardozo said.

The law department sometimes refers cases to outside firms. In 2004, for example, New York-based Skadden, Arps, Slate, Meagher & Flom took on a case involving a shooting incident in a city jail. The firm assigned summer associates at no charge to the city. "It's a terrific help," Cardozo said. "The generosity of the private bar is just terrific. It's not just generosity; they gain from it."

Cardozo maintains an active affirmative litigation division, and recently argued, and won, a case before the U.S. Supreme Court, establishing the city's authority to charge property tax against foreign embassies that use their buildings to house employees.

Cardozo counsels the mayor on legislation, including the city's bans on smoking in bars and restaurants and use of trans fats by restaurants. He helped launch police searches of passengers' bags on the subway system following the 2005 London transit system bombings.

The Sept. 11, 2001, attacks generated 9,000 lawsuits against the city, including claims by workers that they had become sick while cleaning up the ruins of the World Trade Center. "This was huge, huge litigation," he said.

Outside Counsel: The city "very, very rarely" retains outside counsel, Cardozo said. Exceptions occur when city attorneys are conflicted out of a case or lack the necessary legal expertise. Litigation arising from the fatal 2003 Staten Island Ferry accident, for example, required retention of Freehill Hogan & Mahar, a firm specializing in admiralty law, as well as another New York firm, Debevoise & Plimpton. Federal regulations require the city to outsource the work involved in selling municipal bonds; firms doing that work have included Sidley Austin, Fulbright & Jaworski and Boston-based Edwards Angell Palmer & Dodge. The city turns to outside experts in medical malpractice litigation arising from the 14 municipally run hospitals; they have included McAloon & Friedman and Martin Clearwater & Bell, both of New York. For litigation arising from city pension investments, the office has turned to firms including Cohen, Milstein, Hausfeld & Toll of Washington, Grant & Eisenhofer of Wilmington, Del., and Labaton Sucharow & Rudoff of New York. Conflict counsel have included Seiff Kretz & Abercrombie and Peltz & Walker, both of New York. The city chooses among firms that respond to a formal request-for-proposal process.

Diversity: Cardozo prides himself on the diversity within his office. Women make up 65 percent of his staff and whites perhaps less than 50 percent, he said. According to Cardozo, the office has the largest number of gay and lesbian attorneys of any municipal law department in the country. "We are a very representative microcosm of society," he said.

Route To Present Position: The Sept. 11 attacks convinced Cardozo, then a partner at New York-based Proskauer Rose, to contribute more to the city in which he was born and spent much of his life. At the time, he was co-chairman of the firm's litigation department and had an active practice, representing the National Basketball Association, the National Hockey League and Major League Soccer in antitrust and labor cases.

"The city was on its knees. But this was an opportunity to give back, so when the mayor offered me the job, I said, 'Yes,'" he said.

"This is my absolute dream job. We make a difference. You can stand up in court and say, 'I represent the city of New York' -- there's a lot of meaning behind that. That's a powerful statement. It's very satisfying."

Cardozo served as president of the Bar Association of the City of New York from 1996 to 1998, and said that it helped prepare him for his job's management and executive duties. He graduated from Brown University with a bachelor's degree in political science in 1963 and earned a J.D. from Columbia Law School in 1966.

Daily Duties: Cardozo starts his day at 9 a.m. with meetings in City Hall with the mayor and other officials. Then he'll usually head back to his office to confer with aides on management issues and with lawyers working on individual cases. He tries to visit each of his offices every week, has frequent meetings with judges and attends charity and bar association events.

One task the mayor assigned Cardozo was to help lead a parade safety task force. Bloomberg set up the panel after a wind gust blew a helium-filled balloon into a lamp post and injured two people during the 2005 Macy's Thanksgiving Day parade. It followed a similar incident involving a Cat in the Hat balloon in 1997.

"We realized this was something serious," Cardozo said. "We came up with a new protocol for measuring wind -- that's something I didn't learn in law school."

Personal: The Scarsdale, N.Y., resident enjoys attending the theater with his wife, Nancy, and spending time with daughters Hedy and Sheryl, and 3-year-old twin grandchildren, Joshua and Lucy. He is an avid New York Yankees fan, and likes to "putter around the garden." He runs three days a week on a treadmill and relaxes in the evenings by reading.

Last Book and Movie: Team of Rivals, by Doris Kearns Goodwin, and Sicko.

No Right To Union Representation During Criminal Investigatory Interview

Union presence during an interrogation of a unit member by the appointing authority
Seabrook v City of New York, 2008 NY Slip Op 09471, Decided on December 4, 2008, Appellate Division, First Department

Norman Seabrook, individually and as President of the Correction Officers' Benevolent Association, challenged the policy of not allowing an employee to consult with a union representative after a question is posed and before an answer must be given, at an interrogation conducted pursuant to [New York City] Mayoral Executive Order No. 16.

Mayoral Executive Order 16 requires city employees to report allegations of corruption to City's Department of Investigation.

The exclusion of union representatives, said the court, "ensures that the charges will be probed confidentially and professionally by investigators independent of the employee's own agency and superiors."

Holding that this policy “was reasonably designed to promote truthful responses by discouraging coaching,” the Appellate Division concluded that such action did not deprive the employee of his right to union representation under Civil Service Law §75(2) (p. 24) or National Labor Relations Bd. v J. Weingarten, Inc. (420 US 251 [1975]).
( See also Civil Service Laws and Rules - Editor)

A similar issue was addressed by the Appellate division in City of Rochester v Public Employment Relations Board, 15 AD3d 922, Leave to appeal denied, 4 N.Y.3d 710. In Rochester the Appellate Division, Fourth Department, held that PERB abused its discretion when it decided that the City of Rochester committed an improper employer practice in violation of Civil Service Law §209-a(1)(a) (The Taylor Law) by denying city police officers, who were union members, access to union representation during a criminal investigation interview.

The Fourth Department said that "PERB abused its discretion in expanding a public employee's rights to include the right to have a union representative present during a criminal investigation" as New York State "has a strong public policy that prohibits union interference with criminal investigations."



The full text of the Seabrook decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09471.htm

The text of Executive Order 16 (see below - Editor) is posted on the Internet

Reprinted with Permission From New York Public Personnel Law
Mitchell H. Rubinstein

From Betsy:
Below is Executive Order No. 16, and the mandate to report corruption if you are a public employee. Then, you will be subjected to the NYC policy of "killing the messenger". You will be retaliated against.
You Are Obligated To Report Corruption

Most public employees are honest, hardworking people. However, as in any other business, there are always a few people who think they're above the law. For instance, there have been City workers who have asked for a 'tip' just to provide a service that residents and taxpayers are entitled to free of charge; or they used a City-owned car or equipment for personal business or pleasure; or stole money or property from the City; or faked an injury in order to collect disability pay. That's where DOI comes in. As the Mayor's watchdog over City government, DOI roots out fraud, waste and corruption wherever it may be.



Pursuant to Mayoral Executive Order 16, City employees must report allegations of corruption to DOI. This ensures that the charges will be probed confidentially and professionally by investigators independent of the employee's own agency and superiors.

If a City employee has knowledge of criminal activity and doesn't report it, that employee could face disciplinary action or termination, or other more serious penalties in a court of law. A City employee who interferes or obstructs a DOI investigation could be removed from office or employment, or face criminal or civil penalties.

For your convenience, we have included a copy of E.O. 16 on this page and a link to a flyer that was published and distributed by the Department of Investigation. Click here to view the flyer.

Executive Order No. 16
Note:
The document that follows is an electronic reproduction of the actual one in Web Page format. As such, errors may have occurred when the information was converted to this format, and therefore should not be considered an authorized version of the original document.

Go to Sections

1. Responsibilities of Commissioner
2. Responsibilities of Agency Heads
3. Responsibilities of Inspectors General
4. Investigations (Read this section for the duty to report corruption)
5. Formal Disciplinary Proceedings
6. Informal Disciplinary Proceedings
7. Background Investigations
8. Dissemination of Information
9. Regulations and Procedures
10. Waiver of Provisions
11. Construction with Other Law
12. Preservation of Rights
13. Revocation of Executive orders
14. Effective Date

Go to Amendments

* EXECUTIVE ORDER NO. 72
* EXECUTIVE ORDER NO. 78
* EXECUTIVE ORDER NO. 105

The 2004 "How to Remove Teachers Permanently" Manual from the New York City Public School System

In October 2004, the New York City Board of Education - or Department of Education, as Mayor Bloomberg would have you believe - published a manual for principals in which FAQs on how to remove a teacher permanently from his/her school were described in detail. No one could find a copy for several years, and then I was given a copy by a member of the "Rubber Room" in Brooklyn NY, just in time for the holidays.
Happy holiday, whatever you celebrate!
Betsy Combier

In October 2004 the New York City Office of Labor Relations published a 69-page document in answer to frequently asked questions that Principals were asking when they wanted to discipline a teacher or get him/her removed from the school permanently.

The first page says;
"These FAQs are intended as legal advice for Principals and other supervisors and as such are protected from disclosure as attorney-client communication. The purpose of these FAQs is to ensure greated predictability that supervisors' actions will not be overturned. As a result, some of the advoce contained herein may go beyond bare minimum contractual or legal requirements and does not necessarily constitute the administration's interpretation of a particular contractual or legal provision. Principals and other supervisors may utilize this advice in their discretion. Therefore, these FAQs do not constitute a policy or directive of the Chancellor or the Department of Education without limitation. The Office of Labor Relations reseves the right to change these FAQs at will."

Click Here for the Principals' Manual, 2004

Why is this document interesting?

In America teachers are removed from his/her classroom (see below - Editor) for no reason other than:

1. The principal doesn't like him/her
2. The principal wants the job for a friend
3. The principal wants the job to be given to a senator's friend/relative/assistant/etc.
4. The teacher bothers him/her for some reason (wears glasses, talks with an accent, is too
short/fat/tall/hairy/bald/wears red sneakers/asks questions about taboo topics/etc.)
5. Teacher is accused of sexual/verbal abuse or corporal punishment (and then is removed only if the
teacher is not a personal friend/contact)

In fact, Principals can find any reason (or no reason) to throw a probationary teacher out permanently, or a tenured teacher into the re-assignment center ("rubber room") in New York City. All the rules and regulations are not considered because Principals have the "power" to ignore these guidelines. As soon as a reason can be dreamed up or an allegation made (false or true, doesn't matter) an online occurence report is made (OORS) and the teacher's life is changed forever. His or her name is now "in the system". If the individual is a mental health provider, the charge, if sustained, will assure the individual a life without an income in that field.

This is unlimited power. Principals in New York City, for example, have been given this power by Mayor Bloomberg and Mr. Joel Klein. Mr. Klein is coloring the title of "Chancellor" in order to rid the New York City public school system of expensive teachers or teachers who think on their feet and report wrong-doing in their schools.

I tell teachers who are suddenly removed from the school in which they are teaching that this process is not actually about him or her, but about a business that must reject teachers who have been in the system a long time and therefore earn top salaries - often above $100,000/year. It doesn't matter that you are a great teacher and the kids in your classes love you. The administration really does not care about whether or not the kids are happy. This is business. The bottom line is profit. The profit for a principal is the higher score on the test (however achieved) and the money earned for raising scores.

The indiviuals who suffer the most: the kids.

Here is one teacher's story:

From Rubber Room and Back
LINK

When I started working for a large city school district in 2003 I already had permanent State certification, one Masters degree in my content subject and credits toward an additional Masters degree in Special Ed. The permanent certification is important because there have been scores of teachers who have completed all their schooling only to have their entire license taken away by one of these principals. These teachers who have done nothing wrong except that they are needed for their principal’s body counts can’t get licenses in other states because the application asks if they have ever been terminated. Many fully certified teachers marginally employed as substitutes and teachers assistants in suburban district say that teachers should NEVER work in the city; it has a wide reputation for having dangerous schools but loosing all your schooling, life savings and being made destitute on completely unjust grounds by an aggressive principal climbing their way to the top over the bodies is a scarier prospect.

People assume these teachers have been terminated for inappropriate conduct with a child or at least gross incompetence. The state licensures will never know or care that these terminated teachers are innocent victims who have wrongfully had their years and savings for schooling and their very livelihoods stolen. This is especially tragic when it is done to an older person who went into teaching as a second career; those second career teachers having so much more to offer students than those who have never been out of the field of education. There is an emphasis on youth because they want teachers who are wide eyed and naïve and also because these teachers generally have to be paid less. The rubber rooms are caulked full of over 40 twofers who made the mistake of knowing too much, seeing what administration was doing, being perceived as knowing or at least being able to figure out what their administration was doing, or the ultimate crime of connecting positively with their students and being a good teacher. Administrators set up a false system in which really bad students never get in trouble, and good students get in trouble. Like attracts like and immoral, spineless and dishonest students are cultivated by administrators who share their qualities. These students are rewarded for lying about teachers by having their grades inflated or by not getting in trouble for something the students did.

I went to work in an alternative high school located in the basement of an organization. The school was for students with problematic behavior who had been expelled from the surrounding traditional high schools. The site I was working at started the previous spring of 2003, and I came in the fall of 2003. Six female teachers taught at this school, three of whom had known each other from previous schools. There was one other woman who was new to this school and she and I were the only white women. All the teachers said hello and were friendly to me when I first came, except for one woman who would not even say hello to me the first day. When I said hello to her she just gave me a scowling look. This woman was taking administration classes, did work that the assistant principal should have been doing and had the unfortunate habit of yelling very loudly and abusively with no provocation at many people including myself. She yelled at me on several occasions for no reason, one time when I was doing a favor for her. One time she came into a small room and yelled at me very loudly. The yelling teacher was good friends with the two other dominant “black” female teachers, all of whom were middle class, lived in the suburbs and two of them could have easily passed for white. I got the worst room which was away from the other classrooms; it was in the lunchroom and I had to set up partitions every morning. Students who came late were not allowed to enter the other classrooms, and they stayed unattended outside my partitions heckling my students when they were participating. It was a comical situation. One time one of the three dominant black female teachers came to my area, I told her that the late students were heckling my classroom, and she started shouting at me very loudly, coming into the classroom to shout. My students were shocked at this and I did not shout back, not wanting to up the ante and not knowing what would happen.

This was an anything goes atmosphere. These dominant black female teachers were all light skinned middle class women who drove expensive cars and lived in the suburbs on Long Island. My students used to be amused by the way they said they were black and yet they looked white. The worst one who was taking administration classes and who screamed at me the worst many times told her students that she lived in a housing project when she was young. These three were always trying to play up their blackness in contrast to me, and yet my students were close with me. The behavior problems I had were from students who were not in my class, and who I believe had been turned against me by these teachers. If I said anything in faculty meetings I was told in a very nasty way to “Go back to the suburbs” or something else to let me know that they thought I didn’t belong there because I was white. The other white woman never said anything and told me she just wanted to get along with these teachers. (This only other white teacher had worked in a suburban district and was not part of the power click in that district so she was booted out. I knew what she said was true because I did my student teaching in this district and my cooperating teacher used to tell me all the time how more than half of the teachers are related to each other and the cooperating teacher used to love to see my pained expression when she constantly rubbed it in my face how she was going to get her daughter’s boyfriend a job in the district as soon as he got his bachelors degree. So I didn’t doubt this teacher’s assertion that she was unfairly targeted because she wasn’t part of the suburban district’s cabal.) The assistant principal, who was the only administrator, was seldom at the site because there were many problems setting up the site which she also over saw at the building next door, plus the AP had some surgery that fall.

At faculty meetings there were comments from these three teachers about “our children” as if I wasn’t connected to them and I was told to “Go back to the suburbs” frequently. There was a faculty meeting in November 2003, in which every time I said anything, I was told to shut up and shouted over. After being told to shut up three times, I got up to leave and said there was no reason for me being at the meeting because they didn’t want to know anything I had to say. After I said this, the teacher who was going for administration classes screamed at me “You wanna take it outside”? I did not want to “take it outside” and I waited three more hours to leave because I didn’t want to meet her in the parking lot. I had verbally and in writing informed the assistant principal as these verbal assaults were going on and the AP did nothing about it.

I told the community based organization head about it and he told me he didn’t think it was anything to worry about. I also told the union. This happened before the weekend and when I came back into work after the weekend the school safety officer told me that this teacher who screamed at me filed a harassment charge against me. I was shocked but I taught all my classes for that day not knowing if I would be handcuffed in front of my students and put in jail. I wondered what would happen to my school aged child if I was put in jail. I was in complete shock and disbelief. After I was finished teaching for the day I walked to the police department to see what this meant and what my rights were. The school safety officer offered to take a counter statement from me, but my experience with the school was that everything that was up was down and everything that was down was up, there was no logic or sanity and I did not think I would be treated fairly. The next day when I came in to work, the community based organization head asked me where I was, and I told him I walked to the police department. It was strange because I felt I was the victim in the situation, I thought I had the right to go to the police station on my free time and I didn’t understand why they were treating me like I had done something wrong. I had been completely honest with them, and I had been telling the AP about these problems as they were occurring; I was also telling the UFT chapter leader as this abuse and unprofessional behavior which I was being subjected to.

The AP moved me to the site next door where a teacher who had been working for the city district for fifteen or twenty years was in a physical altercation with the community based organization leader at this site; the teacher was closing the classroom door as the organization leader was opening it. This teacher was taken away by the police and put in a rubber room at a near by high school. When I met with the AP to get my new schedule, the schedule of the teacher who was taken away by the police, the AP told me to start looking for another job. I didn’t think I did anything wrong, I think I acted prudently in trying to protect myself, and I would have done the same again if I was in the same position. I hope to never be in a situation like that again.

This AP tried to get me fired. The principal saw that I didn’t do anything wrong and gave me a counseling memo which does not go in the file. A school safety officer in a van followed me all the way back to the school. I know it was me they were following because when I pulled over, they pulled over also, and did this several times. This was a waste of personnel to follow me all the way back to the school. I also had city education detectives outside my classroom area on several occasions, the same city detectives I saw at the chancellor’s office and sometimes at the downtown rubber room, and I also saw these detectives at the last high school I worked at.

This AP was not successful in firing me, so she started writing silly letters to put in my file, did a surprise observation the day after a snowstorm when I had a bad cold, wrote me up for having students with “head gear” on when they were girls with scarves on in a room where we had no heat. What if they were Muslim and this was part of their religion? She also wrote that the desks were in a haphazard order when we had to set them up every morning. She wrote that there was no “aim” on the board when she admitted that she arrived halfway into the lesson, the board was flipped around and the students had the “aim” written in their notebooks. Another teacher who’s classroom was next to the AP and the CBO director’s office told me that the AP was always talking about firing me. This teacher transferred away from this AP and told me that if I don’t the AP will fire me at the end of the year.

The next site in the same program I transferred into was in the space that used to be a small pizza parlor with three small rooms. We would go into “work” every day and just sit there. In spite of the fact that we weren’t doing anything, the AP at this new site, who was a good friend of the AP at the last site, saw fit to threaten to write me up for being three minutes late for “work”. One day there was something wrong with the heating system and they told us we could leave because the smell was so bad. I told them I would be at a nearby diner and gave them my cell phone number. When I got back after an hour he threatened to write me up because I didn’t just take thirty minutes; we had no students and there were bad smoke smells in the “school”. Just before the vacation, he suddenly asked me for a bunch of lesson plans, and over the vacation this AP kept demanding months and months of lesson plans from me and would send me threatening emails saying that I had a 5PM deadline to get the lesson plans in. They must have had a good laugh over this. I was teaching out of my license area and the first AP had been an English teacher so I probably made many mistakes. I was getting sick turning in all these lesson plans. They probably knew all along that the site was never going to open, but I was informed via email two days before we went back to school that it wasn’t going to open and I was reassigned a substantial drive from where I lived. I had transferred to this site to get away from the AP who wanted to fire me and to be closer to home; but that easy commute only lasted a month and I had an hour and a half commute after that. When I went to the Pizza Pallor site to get belongings, the AP told me I had 40 minutes to get to a place over an hour and a half away.

The AP at the new site was exponentially crazier that the other two combined. She wrote me up for absurd things, made me sign letters and didn’t give me a copy, did absurd things with teachers and students, and she topped all this off by sending me to the rubber room. She wrote me up for ASKING to get my coat from a distance of a few feet away when we team taught and there was another teacher for the class, plus counselors. She screamed NO at me in front of the students, and I walked out to the fire drill with no coat in very cold weather. This AP also wrote a letter saying that I “abandoned my classroom” when I spoke to her inside my classroom with the door ajar and with the other teacher in the classroom, and in this case she made me sign the letter but never gave me a copy. She kept telling me it was in her car and then I never got it because she sent me to the rubber room. This AP wound up being promoted to work with the school’s chancellor. The principal told me I was being investigated, but I was never told what I had been accused of, never got to know who my accusers were, never got the outcome, and never got exonerated. I was first rubber roomed at an almost two hour drive away. The other teacher from our program who lived near me was rubber roomed in a local school. They sent me as far away as they could, probably hoping I would just quit. Why didn’t I just quit? I had bills to pay. I wish I could have just quit. One day when I was in the office alone while being rubber roomed I looked through the files and found that the teacher who yelled at me so badly kept writing to get her sick day absence reserves because when they didn’t come into work, they didn’t call in sick, but just had the other teachers cover for them without reporting the absence. I also found in duplicate, triplicate, quadruplicate copies of a silly incident in which a student threw a comb at the other teacher who warned me of the AP’s intention to fire me, and this happened a year before at another alternative school for problem students. This was a silly incident which can happen every day, but I’m sure they used that to try to fry that teacher. This is what these principals spend their time on, on the tax payer dime, and if they get in trouble these unscrupulous administrators will have a lawyer paid for by the tax payers defending them.

After being assigned to this rubber room which was a long commute for me, I was assigned to a central rubber room. (I managed to see memos when I left in 2006 in which they were emailing each other back and forth to see if they could just fire me.) I did not mind being in this rubber room. We had comfortable chairs in this one and they didn’t make us do anything all day. The only thing which made me nervous was that the light skinned black woman who yelled at me so many times, one time threatening “do you want to take it outside” was also in this rubber room. I avoided her and luckily did not have any run ins with her. Strangely enough, many teachers from the program I was in wound up in the rubber room, coincidentally at the time the program was contracting. All these alternative programs have since been absorbed into other programs. The region we were in had recently had an administrator who stole large sums of money, and the word was that it was harder to get fired from our region than others because we worked with such difficult children. The other thing which made me nervous was that I was never informed of the charges against me, and there were payroll issues. I had heard of people being fired without being informed, and I wondered if I was one of these. For all the uncertainty and worry, I received a priceless education on how the system works from these other teachers, plus I found them to me more interesting, engaging, and intelligent than teachers in the school. This could have been the setting we were in and the fact that we had nothing to do all day. I was only in the rubber room for a few months, all without charges. Then in November of 2004, inmates of the rubber room started talking to the press and the city district was under pressure to empty these rubber rooms out.

I was finally informed that there were no charges against me, I was never told why I was put in the rubber room in the first place, and I was sent to meet with my superintendent to be sent back to work. I told the superintendent some of what went on in this program and I asked to go into another program because I feared further retaliation. The superintendent was a nice man and he obliged, sending me to a small program where all the teachers knew each other personally and the principal of this program resented the superintendent. The teachers in this program all spoke highly of the superintendent, but not of the principal. This superintendent wound up leaving this city school district in disgust at the gross mismanagement and wrote a book exposing how poorly the schools are run and how they shortchange the children.

Even though I told the principal I did not want to go to a site with such a long commute, I was sent there. It seemed like the principal did not even want me and asked me for references. I was probably just “put” there by the superintendent. I thought I wouldn’t be sent there, but I was called the day before and told to report in the morning.

The site I was sent to was a drug and alcohol treatment center. A few of the female teachers and I expressed the idea that the people running the place seemed very shady. It turned out that officers of this organization were actually involved on the wrong side of the law involving drugs. The organization hated all the teachers, and the former drug addict counselors did an “us against them” act with the students, portraying the teachers as the oppressors. This organization had forced out many teachers. I took over from a teacher who was forced out of the classroom the year before, but still remained in the school tutoring, they forced a teacher to another site, one teacher who started in September quit or was fired, another started and was forced out by an accusation by a student which no one should have believed. Without me even asking, a student told this didn’t happen, and I asked her to give me that in writing. She did, and she was also afraid of them, but she felt bad to see this innocent man wrongly accused. I didn’t win any points with the AP or union rep, (who is supposed to be on the teacher’s side) by this action. This accused teacher told me something which is ironic but true; a teacher who yells at a student can get in more trouble than a cop who shoots someone.

There were many other teachers from this organization who got into trouble from obvious lies by students. They were closing down sites, making teachers be substitutes in all areas of the city, one teacher even wound up dying and I never got to know the circumstances. He looked young and healthy and I wondered if he committed suicide. This place was crazy and I transferred out to be someplace closer to where I lived.

The way the system works is that the teacher can check the vacancies, put in many choices and then the city decides where they will put the teacher. I was put in a school with a graduate from the leadership academy, which is a fast track principal certification program which uses a business model which advocating firing a certain amount of teachers every year to promote fear and keep the rest in line. I was observed the second week of school by the principal and AP. What they used in this case was that they didn’t like my teaching style. I was told that I didn’t walk around the room enough. I explained that I couldn’t walk around the room because of the oversupply of desks which I kept trying to get rid of, and these desks also had to be set up in 4 square facing each other, which meant that there was even less room. They kept my room oversupplied with desks because it was also used for night school. I could have been accused of inappropriate contact with a child if I brushed up against them, and I really didn’t want to. A student purposely tripped me, and I know it was on purpose because he laughed in my face as he was doing it. On the first day of school this student bragged that he got a teacher fired the last year. An older male teacher was also tripped by a student and didn’t get in trouble. I didn’t even get a key to the department office for two months. The AP probably wanted to fire me right away, and the principal was making him go through what she thought were the proper steps.

In the post observation conference when the principal told me I didn’t walk around the room enough I told her about the over supply of desks, the fact that I saw a chiropractor and a student had tripped me on purpose, she responded “become an AP and you’ll get a comfortable chair.” This principal was hardly graceful herself, she was very overweight, had bad skin, unkempt hair, dressed badly, took off her shoes and walked around in slippers, and let her finger nails grow to a ghastly length to the point that the nails curled around. As she told me this, she got her hanging earring caught in a sequin of her shirt and couldn’t even pick it up because she had to do everything with the sides of her fingers because of her grotesquely long nails. It was so obvious that I was being treated unfairly at the first post observation conference and I told the principal that I would do whatever she wanted and if she didn’t happy with my performance, I would transfer out. At one of the last hearings she completely lied and said that I said that I was going to do whatever I wanted and if she doesn’t like it I would just transfer out. It was never questioned if this would have been a logical thing for an employee who wanted to keep their job to say. I was given unsatisfactory reviews for perfectly good lessons. My students did well on their state tests. How can a teacher prove that it is a good lesson? The administrator has the ultimate power. I was a good teacher, but they just wanted to get rid of me because of paperwork in my file from other administrators or because of the incentive principals have to get rid of teachers, particularly older, higher paid teachers with more education.

I was told by several people who see this information that there were no complaints about me from either parents or students. My students mostly liked me. On my last day of work, and when the principal wasn’t there, I asked the secretary to see my file. I was only at this school five months, and yet they had a five inch file on me. One teacher told me that another teacher told her that when he was in the office he saw a 20 page fax come in all about me. Out of this five inch file, they gave me a few pieces of paper. One of the papers, which I still have, was a letter written by the drug and alcohol treatment center containing an anonymous accusation that someone smelled alcohol on my breath. In the column of this letter my former principal wrote “No one would come foreword with an name, so I did not put a letter in the file” I’m sure the principal did not believe the anonymous accusation against me based on past history of the organization and his personal knowledge of me, yet the principal or his secretary sent this letter alleging on the job drinking to my next school. This is how the system is set up against teachers. In any other field, an employee could sue for something as discriminatory as anonymous letters of drinking on the job, and yet the teacher, a profession which used to be thought of as virtuous, can have their years of work taken away by anonymous slurs. I put this letter in a separate area of my belongings in case they tried to take it back from me, but they never did. The sad thing was that they didn’t even have to worry. The whole system up to the highest level in the education department is totally corrupt and these administrators know they don’t have to worry because they can get away with this. Destroying a teachers career, in some cases their lives, is just another day at work for them. It’s like shooting fish in a barrel.

The after firing hearings are a complete joke. I have the whole thing on tape and they lie through their teeth. The union will tell the teacher that they would have a better chance of winning in Stalinist Russia. The city school district never rules against itself. Administration committed fraud many times. The teacher has the right to write an appeal after they receive the upholding of the discontinuance letter, and when I pressed them for this letter which I never got I saw on the letter that they had addressed the upholding of the discontinuance letter to another teacher they discontinued a month after me. They fire that many teachers there, and in the middle of the year also. These administrators are seriously disturbed people. The only thing graceful about this last principal was the grace with which she ruined innocent people’s lives. She started out as a teacher’s aide, and dated and later married her former teacher. Years later when her husband, as principal, went after teachers in his school, the teachers were successful in ousting him as principal and my principal got her husband another principal position. As she was working her way up the ladder, she would go to barbecues at the homes of the other teachers in the science department. After she knew them personally, she would go after the teachers she had befriended. When she became principal she carried on the same harassment and firing of teachers. A post observation conference caused a 40 year old science teacher who had a PhD and seemed to be in good shape to go in to cardiac arrest. He complained of back pains, lied down on the floor and asked them to call an ambulance. The principal refused to because she said the ambulances were for the students. When the man’s wife came to the school to meet the principal, the principal had the nerve to say that the man didn’t take care of himself, not that she had harassed the poor man to death with phony observations and then refused to call an ambulance for him. The wife was not American and didn’t know the legal system here. Even if the wife did sue, the money would come from the tax payers. These administrators do not have to account to anyone or anything, and it is the most ruthless, immoral ones with no sense of scruples who rise to the top. A student was hit by the car of another parent; the parent backed up and hit the student again, killing the student. This principal managed to keep this story out of the press with the help of a politician in the state assembly who keeps her in power.

I was never told I did anything wrong, except that they didn’t like my teaching style and they discontinued me. I was told that I could keep working for the district, if I could get another principal to hire me. Of the hundreds of vacancies I applied for in the district, I received a few interviews which were all hostile. This district is doing this on a vast scale to all teachers by making large schools into smaller academies and making the teachers apply for the jobs they have had for years; these are teachers not even being accused of being bad teachers, they also send hundreds to the rubber rooms to face 3020 hearings on mostly made up charges. I now count my blessings that I did not hit tenure in this system because then I would have had to go through a 3020 hearing in which they can take away your license, and I saw first hand how they lied. I also hear horror stories from other teachers in the rubber room and I believe them all to be true because I saw what was done to me. I went on many more interviews in the state and did not get a job. I suspect that I was blackballed in the entire state. Either my state has too many teachers, they are expecting a sudden decrease in population, all the teaching jobs go to family members and they just interview teachers to make it seem like the job is open to everyone, or my principal with the help of her politician friend went to the trouble of having me blackballed in the entire state.

I finally got three part time jobs and it seemed like they were happy to have me. After I told a friend where I was working, I suddenly had a supervisor in my classroom telling me bad things. Coincidence? I would love to see my secret file to know exactly what I was ever accused of. I suspect it is nothing, or it could just be anonymous nasty gossip. It is probably just the first AP having nothing better to do with her time and writing a bunch of things about me, and it snowballs as each successive principal jumps on the band wagon because they can’t make the students better students, so the way they try to show they are good principals is by going after teachers, the reasoning being that if you criticize the teacher you have high standards. There is so much hype in the public arena about a teacher shortage. If there is a teacher shortage, they wouldn’t treat teachers as if they have no rights. It seems like they just want a bunch of naive and idealistic people going into teaching, and then when they won’t be told the truth about what is really going on until it is too late. Teachers are just so expendable and there is no rule of law operating here. We are told to teach students that we are living in a democracy with due process and the rule of law, and yet none of this exists for the teacher.

From Ellen, now living in Florida:
NEW YORK TEACHER TEACHES THE PUBLIC

I was recently employed and unemployed by the Amityville School District. I paid out of my pocket close to a thousand dollars plus received donations for my classroom supplies. All I had were tables and stools, all of which were missing nuts and bolts as well as other hazardous conditions. I was resented by certain entities for supplying my classroom with excellent materials and beautifying the room and then bullied into resigning. The Amityville Administration also interfered with my getting a job with Wyandanch. The NY State Labor Department found in my favor. I am now unemployed collecting benefits.

The purpose of this letter is to tell you this is one malignant school district. I have children and you could not pay me to send my children to the Edmund Miles Middle School where I worked 2002 - 2003.

The environment is not fit for children. The culture is sick and twisted and serves as a detrimental role model for the children. Hall monitors evaluate and belittle nontenured teachers. They make complaints to the arrogant and bully happy principal who has to appease the bully happy superintendent.

These children are at severe risk by a school board and administration that have no emotional intelligence and care not for the mental and emotional well being of children. The children must be nurtured emotionally and mentally and nutritionally. Then the learning can take place thus higher test scores. NOBODY UNDERSTANDS THIS! THESE CHILDREN ARE SUFFERING AT THE HANDS OF SELF SERVING INDIVIDUALS PARADING AROUND AS EDUCATORS.

Also, the teachers who live in the district, their children are the ones receiving goodies like AP classes and scholarships not to mention the overinflated recommendations for college. Meanwhile other children cannot even read and write and are pushed through.

The Amityville UFSD needs many watchdogs for many unethical and immoral goings on. Especially the taxpayers’ money. Send people to walk through Edmund Miles Middle School at any given time without warning and inspect the furniture and supplies. Go into the 1965 bathrooms with 1965 fixtures that are disgusting to say the least. Listen to the way Dr. DeSorbe speaks to his subordinates and check out the hall monitors. Maybe they cleaned up some since I was there.

In conclusion; watch them, and watch them, and watch them. Never turn your back especially on the money. Help the children, save the children,
Ellen Belfiore: X - Home and Careers Teacher

DOES THIS SOUND LIKE A DISTRICT DESERVING OF GRANTS? NAPTA

TARGETED INSTRUCTIONAL STAFF DEVELOPMENT GRANT AWARDS 1999-2000

The New York State Education Department has awarded grants totaling $5 million to thirty schools districts throughout New York State. The State funds support proposals for professional development of instructional staff to improve their skills to help students achieve the State standards and assessments. The proposals are model programs addressing four professional development targets:

* Effective use of technology in the regular classroom setting
* Pre-kindergarten programs
* Children with disabilities in the regular classroom setting
* Non-disabled children who demonstrate the need for increased academic attention

Other areas of need demonstrated by the local district that relate to student instruction may also be supported.

Wyandanch UFSD
Contact: Brian DeSorbe
(516) 491-1021

This project will further implement the ATLAS Communities Pathway model, which combines strategies of the School Development Program at Yale University, Project Zero at Harvard University, the Coalition of Essential Schools at Brown University, and the Education Development Center of Greater Boston. It provides monthly meetings, study groups and sharing events, two additional superintendent conference days, and visits to other Atlas sites to observe practices that would have a positive impact on the district. $190,000

BELOW THIS TEACHER TRIES TO TEACH THE PUBLIC A THING OR TWO ABOUT WHITE CHALK CRIME. NAPTA

Subject: The "Damage Control Shuffle"

Message: I lost the battle, but not the war. Amityville UFSD has been investigated by the Feds, the County DA, and now the state dept of education. GOD BLESS

I lost my discrimination case because of reasons that are very, very, disturbing.

1. The Superintendent shuffles people around in the district to keep from getting statements from them. All they have to say is "I do not remember" and the complaint is dismissed.

2. The Superintendent calls a faculty meeting to get everyone on the same page of lies. The Superintendent tells everyone what to say to the questions anticipated from Human rights. They all follow suit and lie, lie, lie in writing to human rights.

3. The superintendent says he hired a zillion new teachers of all ages and races. How could I claim discrimination. Because we all know the superintendent will fire and hire a zillion new teachers every year, only tenuring family members, cronys, and to hush up teachers with potential lawsuits like the art teacher who was severely assaulted by a student, DeSorbe is now clamoring to give her tenure.

But Human rights does not have the manpower or the proper tools to do an extensive investigation!!!! Which would turn up more foul smelling goings on than you could shake a stick at.

THIS IS WHY THEY CAN get away with it!!!!!!!

My first mistake was missing the statute of limitations with the Federal EEOC You must file immediately when you suspect foul play. They will coach you how to build a case. They are competent, capable, and very thorough.

Otherwise you are stuck with the State Human Rights Dept as in NY. The computers are always down, the Investigators are overworked and to save money, the state hires para's instead of full fledged trained investigators. The investigations are half/assed, lack of working technology, manpower, etc...

Now I am told to go after Brian DeSorbe in Civil Court. This is where I get them caught up in all the lies. I was told I stand an excellent chance in civil court.

Like O.J. who won in criminal court but lost in civil, this is what I am Hoping for

Why am I bothering?

So all of you can learn from my mistakes and hopefully my successes.

So all who were tortured and abused like me will hopefully file successful discrimination suits

We are doing this for the future of our grand and great grand children. We must stop the corruption in the public schools and make them our public schools once again.

We must take our schools back from elite family groups who feel they and their off springs are the only people entitled to the public school jobs, and taxpayers money.

We must stop the colleges from knowingly and willfully taking money from people who think they will get a teaching job when this is the furthest from the truth. And the college certification professors know it. The college certification professors are well aware of who to support in their endeavor and who not to support.

This is one big racket. This is why I will continue to fight!
The Racket

$42,000 – $100,000
collusion
nepotism/cronyism
entry - top-pay
cartel
certified does not mean qualified

good pay and summers off teacher-shortage

paper-trail
grant$$$$$$$$$$$$$$
crook$$$$$
propaganda
In General

Back In the late 1960’s, 1970’s and early 1980’s all the teaching jobs were filled. The job was not high paying and attracted mostly women as teachers. Men who got into education usually went for the admin jobs because of higher pay. Thus, was the creation of the good ole boys club overseeing a mostly female population of teachers.

The late 1980’s saw an aging burnt out teacher population. It was impossible to get rid of incompetent or burnt out teachers because of the bit with tenure and the unions. The buzz was to get rid of the old burnt out teachers. The buzz was that tenure protected the incompetent and burnt out teachers. Administrators learned that in order to get rid of unwanted tenured teachers they had to create a paper- trail over time. The paper- trail tactic worked. Admins were now able to force unwanted teachers out and bring in new blood. But the low salaries were not attracting the material girls of the late 1980’s and 1990’s and certainly not men. Around this time, the college teacher certification programs were starving for students and their money as well. Teaching programs were being dropped from some colleges. Teacher shortage was now the new buzz of the late 1990’s.

Low salaries will not attract the brightest and the best and the public also wanted men teachers to ‘defeminize’ if you will, the profession. The early 1990’s also saw teachers picketing for more money. The public was behind the higher salaries as well. The public believed the higher salaries would attract the brightest and the best and men. So, Long Island, in the 1990’s, saw amazing entry level salary hikes to $38,000 – $42,000 and top pay became anywhere from $75,000 on the south shore to $100,000 on the north shore. Teaching now became desirable to the young college students. The buzz is now; good pay and summer’s off.

You rarely saw the children of teachers and administrators become teachers at one time. They wanted their children to become doctors and lawyers where the real money was. But now, with the rise in teachers’ salaries, rise in malpractice insurance and lawsuits, this began to change. Getting a job in the public schools is now good pay, clean and easy work, and the weekly school schedule with weekends, holidays, and summers off just too good to be true. So, the admins and teachers began to steer their own children into teaching. And now they want to guarantee their child get a position. But, according to the law, I believe that principals cannot hire their own family members so this is where the collusion or cartel begins.

Administrators now, not only make deals to hire each other’s offspring within one district, but many districts will collude with each other to do this. It gets worse. Before hire is made, a minimum of 4 candidates must be fully interviewed. What better way to keep the college teaching programs full of paying, unknowing, students, to be nothing more than a ‘minyan’ if you will for administrators hiring nepotisms anyway. Teacher-shortage is now nothing more than propaganda. At its worst, some administrators will destroy the careers of teachers simply to open up the position for a new hire, nepotism within the cartel.

This is the new face of what is going on in education right now.

Background from NAPTA President Karen Horwitz

NYC Rubber Room Reporter