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Wednesday, November 4, 2015

Re-posting a 2011 Article About Alyce Barr, Former Principal From Hell at Brooklyn School of Collaborative Studies

I am re-posting below an article I wrote about Alyce Barr, the former Principal of Brooklyn School of Collaborative Studies in 2011. She has moved on to the NYC DOE.

Alyce Barr

The way ADVOCATZ works is not the same as UFT Solidarity and that mob. I do my research and investigate facts.

I will not be threatened, Francesco, Jonathan, Victor. Stop.

Betsy Combier
Editor, NYC Rubber Room Reporter
President, ADVOCATZ

FRIDAY, DECEMBER 23, 2011

Alyce Barr, Principal From Hell, Suspends Student After Denying Student Any Lunch, And Taking Her Locker, And There Is Nothing The Parent Can Do

Brooklyn Secondary School For Collaborative Studies
I guess the conclusion I would like you to reach after reading the story below is this: if a principal accuses a student of an alleged assault on a staff member, but the video shows that this did not happen, shouldnt the Principal attempt to use the information on the video to resolve the issue rather than lie under oath at the student's Suspension Hearing?

...my conclusion would be: of course.

The New York City Department of Education is a strange entity, however, that refuses to look at a fact in "its face" (I'm making a fact into a thing) if it means that a targeted individual gets free of the harm that the principal wants the person to be victimized by, as nothing, absolutely nothing, must get in the way of the Gotcha Squad goons (SCI, OSI, DOI, OEO) and their foregone results.

The reason I am re-posting the story I posted on my website is to show how easy it is for Principals to remove anyone from the school - anyone, meaning any member of the staff or any student. Rubber Rooms for students are the Alternative Education Sites, or Second Opportunity Schools which house unwanted people, students, or whomever the principal wants harmed and/or removed. No evidence of wrong-doing is necessary, as the Superintendent is "permitted" to suspend, discard, remove, get arrested, and alter the life plan or career of anyone the Principal doesn't want. This is, of course, the rubberization process. When a Principal writes a note for the "Online Occurrence Reporting System" (OORS) and sends it to The EIC,(Chancellor's Response Group)  the principal or assistant principal has the power to write up whatever happened as if either the teacher or the student made the situation happen, and are guilty. Thus whomever the principal wants to target or 'get' is the perpetrator, and the victim is whomever will be bribed, subpoenaed, or told to be a "witness" at the Hearing. It's a set up.

The "confidential investigators" from the Office of Special Investigations (OSI), the Special Commissioner for Investigation (SCI) and Office of Equal Opportunity (OEO) all work with whatever the principal gives them as the 'facts' of the matter that must be "substantiated". The Supervisor at the entity involved writes the "substantiation" letter even if the "facts" are not reviewed. At the hearings the CI ("confidential Investigator") usually testifies that all notes have been thrown away. The end result is:
1. Careers of educational staff ruined forever (permanently on the Ineligible/Inquiry List, or Inquiry/No Hire List);
2. Students with SOHO reports unseen by parents that ruin their school lives with lies and anecdotals  only the Principal and Assistant Principal can write up and make up;
3. Permanent terror throughout the system that "you are next";
4. Physical, emotional, and social scars that alter the course of the lives of all victims;
5. The New York public school system left with unknown numbers of 'guilty' and 'innocent' people, of
    all ages, who will never get their rightful remedies because no one will ever know exactly what - or
    if - a person is guilty of anything, as there never are properly conducted investigations in any
    case.
6. A public school system that is segregated, based on lies, and hanging together by straws.

Whenever anyone gets close to finding out exactly what is going on, he or she is threatened into silence, or harmed into silence. If the first tactic wont work, the second is used.

Notice below that with suspensions, the Gotcha Squad uses SOHO ("Suspensions and Office of Hearing Online") reports to get rid of targeted people. The Rubber Room Gotcha Squad uses Technical Assistance Conference memos (TACs).
Alyce Barr
Alyce Barr, Principal From Hell At Brooklyn School For Collaborative Studies In Brooklyn, NY, Suspends Student After Parent Files A Complaint
Parentadvocates.org December 22, 2011

Alyce Barr considers Wanda Balbot an excellent middle school director, even after she refuses to give lunch to a student whose mother is outspoken, then assaults the girl in the hallway of the school and supends the student for "pushing the teacher in the hallway."

 "Suspended Education: Urban Middle Schools in Crisis," by Daniel J. Losen and Russell J. Skiba, published by the Southern Poverty Law Center, makes for fascinating and depressing reading. After reviewing over 30 years of data from nearly 10,000 middle schools nationwide, it concludes that suspension is over-used as a disciplinary tool, and that youth of color -- black males especially -- are suspended far out of proportion to their numbers.
Drama Teacher Kori Rushton, Principal Alyce Barr, and Music Teacher Christine Piccirillo
 
The authors looked specifically at types of suspensions where school staff could exercise discretion -- incidents of fighting, disruptive behavior, and so on. They analyzed how many youth were suspended and broke down differences by race/ethnicity, and gender. What they learned was appalling: suspension rates have nearly doubled for students of all races/ethnicities since 1973; African American, Latino, and American Indian youth were suspended at higher rates than White youth; six percent of all black students were suspended in 1973, compared with 15 percent in 2006; and a breathtaking 28.3% of black males were suspended in 2006, compared with 10% of White males.

When researchers looked at the 18 largest urban school districts, they found that most "had several schools that suspended more than 50% of a given racial/gender group." They even found schools that suspended more than half of their White and Hispanic female students.

Really? Fifty percent?

Worse, the authors point out that the federal data they used only counts students who've been suspended at least once -- it doesn't actually count the number of suspensions. So their conclusions probably underestimate the frequency of suspensions, and the impact on these students' classroom time (which is linked to their likelihood of dropping out).

You might be shrugging your shoulders and saying, "Well, if it makes the school safer and helps other students learn better ..." Here's what the authors have to say about that:

(D)espite nearly two decades of implementation of zero tolerance disciplinary policies and their application to mundane and non-violent misbehavior, there is no evidence that frequent reliance on removing misbehaving students improves school safety or student behavior.

In fact, frequent use of suspension and expulsion as disciplinary tools doesn't seem to help other students do better:

(E)merging data indicate that schools with higher rates of school suspension and expulsion have poorer outcomes on standardized achievement tests, regardless of the economic level or demographics of their students. It is difficult to argue that disciplinary removals result in improvements to the school learning climate when schools with higher suspension and expulsion rates average lower test scores than do schools with lower suspension and expulsion rates.

Since research suggests that instructional time is strongly related to achievement outcomes, a policy shift is necessary:

It is critical to note that schools with very high suspension rates (e.g., suspending one-third or more of the student body at least once) are not receiving the kind of public attention or regular exposure that schools with low test scores receive.

The disparate impact on youth of color, and black youth in particular, makes this a civil rights issue, the authors say. Here's why:

Research on student behavior, race, and discipline has found no evidence that African-American over-representation in school suspension is due to higher rates of misbehavior (McCarthy and Hoge, 1987; McFadden et al., 1992; Shaw & Braden, 1990; Wu et al., 1982). Skiba et al. (2002) reviewed racial and gender disparities in school punishments in an urban setting, and found that White students were referred to the office significantly more frequently for offenses that appear more capable of objective documentation (e.g., smoking, vandalism, leaving without permission, and obscene language). African-American students, however, were referred more often for disrespect, excessive noise, threat, and loitering - behaviors that would seem to require more subjective judgment on the part of the referring agent. In short, there is no evidence that racial disparities in school discipline can be explained through higher rates of disruption among African-American students.

(See also The New York Times story from September 13, 2010, titled, "Racial Disparity in School Suspensions.")

September 13, 2010
Racial Disparity in School Suspensions
By SAM DILLON, NY TIMES
LINK

In many of the nation’s middle schools, black boys were nearly three times as likely to be suspended as white boys, according to a new study, which also found that black girls were suspended at four times the rate of white girls.

School authorities also suspended Hispanic and American Indian middle school students at higher rates than white students, though not at such disproportionate rates as for black children, the study found. Asian students were less likely to be suspended than whites.

The study analyzed four decades of federal Department of Education data on suspensions, with a special focus on figures from 2002 and 2006, that were drawn from 9,220 of the nation’s 16,000 public middle schools.

The study, “Suspended Education: Urban Middle Schools in Crisis,” was published by the Southern Poverty Law Center, a nonprofit civil rights organization.

The co-authors, Daniel J. Losen, a senior associate at the Civil Rights Project at the University of California, Los Angeles, and Russell Skiba, a professor at Indiana University, said they focused on suspensions from middle schools because recent research had shown that students’ middle school experience was crucial for determining future academic success.

One recent study of 400 incarcerated high school freshmen in Baltimore found that two-thirds had been suspended at least once in middle school.

Federal law requires schools to expel students for weapons possession and incidents involving the most serious safety issues. The authors said they focused on suspensions, which often result from fighting, abusive language and classroom disruptions, because they were a measure that school administrators can apply at their discretion.

Throughout America’s public schools, in kindergarten through high school, the percent of students suspended each year nearly doubled from the early 1970s through 2006, the authors said, an increase that they associate, in part, with the rise of so-called zero-tolerance school discipline policies.

In 1973, on average, 3.7 percent of public school students of all races were suspended at least once. By 2006, that percentage had risen to 6.9 percent.

Both in 1973 and in 2006, black students were suspended at higher rates than whites, but over that period, the gap increased. In 1973, 6 percent of all black students were suspended. In 2006, 15 percent of all blacks were suspended.

Among the students attending one of the 9,220 middle schools in the study sample, 28 percent of black boys and 18 percent of black girls, compared with 10 percent of white boys and 4 percent of white girls, were suspended in 2006, the study found.

The researchers found wide disparities in suspension rates among different city school systems and even among middle schools in the same district.

Using the federal data, they calculated suspension rates for middle school students, broken down by race, in 18 large urban districts.

Two districts showed especially high rates. In Palm Beach County, Fla., and Milwaukee, more than 50 percent of black male middle school students were suspended at least once in 2006, the study showed.

Jennie Dorsey, director of family services in the Milwaukee district, said the district had recognized that its suspension rate was too high and had begun a program aimed at changing students’ behavior without suspensions.

The program has brought only modest reductions in the suspension rate so far, but Ms. Dorsey predicted sharper reductions over several years.

Nat Harrington, a spokesman for the Palm Beach County district, disputed the study’s statistics, but acknowledged that “all the data show an unacceptably high number of black students being suspended.” He said the district was using several strategies to reduce suspensions.

From Betsy Combier:

I started representing students k-12 at Superintendent Suspensions in New York City (you do not need a lawyer, and I am not an Attorney), about 9 years ago. A friend of mine gave my name to a friend of hers who had a son in kindergarten with an Individualized Education Plan (IEP) to protect his disability, which concerned his behavior. He was very smart, though, and hispanic. I agreed to represent him at his Superintendent's Suspension - meaning he was removed from the school and he could not return until the "sentence" was completed at an alternative site. We - the parent, the boy, and I - arrived at the hearing office in the Bronx, 501 Courtlandt Avenue (coincidentally the location of one of the Rubber Rooms), at 8:30AM as required. By 9:30AM the room was filled with black faces, both children and adults. No one had an advocate but the mom who asked for my advocacy, her son, and me.

We were told to go to a room, where the Hearing Officer encouraged the mom to declare "no contest" and her son would go immediately back to school. We refused, as we didnt want his record to be tainted at such a young age, as he did not do what the Principal was accusing him of. The Hearing Officer tried to sell the idea that the boy would go back to school immediately ONLY if she took the deal, basically admitting her son's guilt. This was the "Pre-Hearing".

When we walked into the hearing room I thought it was strange that the hearing office was reading the file supposedly prepared by the principal. We all sat down, and the Principal started talking about the "crime", that this little boy would not stay seated during his classes. She, the Principal, wanted him to be put on drugs. The parent wouldnt do it. And, by the way, the Principal was not a doctor.

The Principal called in a teacher and questioned this teacher about his behavior, which sounded terrible. The parent realized during the testimony that the dates were made up, and they were talking about incidents that did not happen, or that no one ever told her about.

I questioned the teacher next, and she got so confused at the questions that she could not talk. She had forgotten her prepared lies. The little boy went back to school.

But every couple of weeks the Principal would suspend him again. Then one day she, the principal, got so mad at him that she called EMS and had him taken to the Hospital for a psychiatric exam. The mom met the ambulance at the hospital. The doctor who examined him found nothing "psychotic" or unusual, and sent him back to school. The Principal sent the $800 bill to the parent for payment (for the ambulance).

I have continued to provide advocacy for children caught in the web of discrimination and abuse by the very people who are supposed to protect them and guard their safety.

In all the years that I have dont hearings in Manhattan, the Bronx, and Brooklyn, I have never seen a white face. Never.

It is also important to realize that no child with an IEP (who therefore needs service providers or special education) gets to add the information to the reasons for putting them on suspension. Also, no Alternative Learning Center has special education service providers nor do they have any suspension plans in order for the Department of Education to be in compliance with theFederal laws of the US.

For example, last week I was asked to do the Superintendent's Suspension Hearing for "student A" who was accused of yelling at Ms. Wanda Barbot, the Middle School Director at the Brooklyn School of Collaborative Studies at 610 Henry Street in Brooklyn NY. Alyce Barr is Principal.
                                                    Alyce Barr on facebook
Student A says that she was assaulted by Ms. Barbot, who told her on December 2, 2011 to clean out her locker as she was late to class after lunch. Barbot took away the lock, and told her that she (student A) should take everything with her, as anything left would probably disappear (thus the student never made class at all, she had to carry her books and gather them up, after her lock was taken). When Student A started emptying the locker, suddenly Ms. Barbot came back to her and yelled at her that she was late to class. Then Barbot pushed the student, and the video shows this. Barbot can be seen on the video walking away, and the next 5 minutes show that student A remained on the floor with no one around, no Safety Officer, no one. Student A went back to her classroom, and then called her mother about what Ms. barbot did to her. She went to the Principal's office and met her mother, who was told that student A was suspended.

Now if Barbot was, as she claimed, pushed twice by Student A, why did she walk away and leave Student A alone in the hallway? Four witnesses heard the shouting, and the girl, student A, was accused of threatening Ms. Barbot. Student A was suspended on December 2, 2011. She was ordered to attend an alternative site until her hearing which takes place on December 21, nineteen days after she was told to leave her school for "pushing Ms. Barbot". Anyone reading the four statements - all of which said something different - and the SOHO report, would believe, as did the Superintendent who determined that student A must be suspended, this student was a danger to the school and other students. Student A has been given no homework at the Suspension Site, and no services as listed on her IEP. She has been dumped, forgotten and neglected by the system.

Yet the mom wrote a letter to the Superintendent on December 1, 2011, the day before the incident, and told her that Ms. Barbot had been targeting her daughter for almost a year. Shockingly, student A has a twin brother in the same class at the same school, who, before the parent wrote her December 1, 2011 letter, never had been given any trouble at all. Then trouble began for him, as well, so that the Principal, Alyce Barr, and Ms. Barbot, could pretend that they were not targeting twin A. It was too late. The word to use here is "retaliation" by the Principal, Alyce Barr, to protect Ms. Wanda Barbot. I am sending an official complaint to be investigated.

The parent asked me to look into this situation, and asked me to post this information on my website, so other parents will begin to see how unfair the suspension process in New York City really is.

I have, of course, written about suspensions before. The scenario is always the same: a student who is either black or hispanic, probably with an IEP (which is worth $25,000+), is accused of something, anything, in order to remove this student from the school so that the administrators can use the federal funds for other children, or their own purposes (office help, for instance). As schools try to work within reduced budgets, the high-priced IEPs are very tempting, and abuse of special education children is rampant throughout New York City.

The Director of the Manhattan Suspension Site is Shirley Rowe, a very pretty African American woman who thrives on the children she can keep out of school and away from the services, homework, and environment that they need. In my opinion she cannot hide her disdain for these children who appear in her offices, and the hearing officers would rather give a year's suspension at an alternative site for a child with a disability than walk on the side of mediation, accommodation, justice. Personally, I dont get it. These people should not be around kids of any age, much less have a responsibility for the health, safety, and welfare of any one of the 1 million students in the NYC school system.

The New York City Department of Education also does not want me, an advocate, to do suspension hearings. About 6-7 years ago I asked Michael Best, the NYC DOE General Counsel, to put my name and "parentadvocates" on the list of lawyers and advocates who assist parents with suspension. He refused, saying the list was for lawyers only. (wrong)

Then I started handing out my business card to the parents who came to the Manhattan Suspension hearing Office at West 125th Street. Ms. Rowe sent in her office staff to tell me to come into her office immediately, and when I did go to her office, she told me in no uncertain terms that I could NOT hand out my card in a DOE building. I of course asked why, and she told me that this was not allowed by "policy of the Chancellor". The next day I hired someone to stand downstairs outside of the building with me and hand out flyers that I wrote, telling parents about the suspension procedure and to call me, so that I could talk with them about the hearing process. Two security agents flew down the 3 flights of stairs (the suspension hearing site is not wheelchair accessible) and verbally assaulted us (I remained outside with the person I hired) saying we were forbidden from handing out my information, as the sidewalk belonged to the DOE. I asked where, exactly, the sidewalk belonging to the DOE ended, and I and my assistant stood on the outside of the dividing line. We stayed there, handing out flyers, until the flyers were all gone. The two security guards glared at me from that day on, furious that I thought of a way to challenge them. You must always think on your feet (no pun unintended).

Let me get back to the case of student A and the hearing at the Brooklyn Suspension Hearing. A very friendly lady by the name of Kyndell Reid is the Director, there. She was alarmed to see my press pass, which I always wear when I do a hearing. She told us that "no press is allowed here". I told her I was an advocate who also wrote on my website, not "press" in the "major media" way. At the prehearing and while talking with Ms. Reid in her office the parent and I were not allowed to see the records of Student A because the secret ammunition of the principal, Alyce Barr, is that the SOHO report is false, made up to make sure that student A is placed somewhere that is far away from her brother, the school, homework, her services, and anything that would assure her an appropriate education. Ms. Reid is an enabler. She is in her position to see that kids are suspended out of the public schools of Brooklyn.

On December 21, 2011, we - the parent, Student A, and me - arrived at theBrooklyn Suspension Office (335 Adams Street, 6th Floor) at 9:30AM. The school personnel, Alyce Barr, Wanda Barbot, and Vicky Madden, came in at 11:30. This became a problem later, because the Christmas Party for the office was that afternoon, and I ask alot of questions (we left at 4:45PM).

Ms. Christa Harper was the Attorney who did the Hearing. She looks like an African version of a Nordic Warrior. She asked questions of Ms. Barr, Ms. Barbot, and Vicky Madden. Student A and the parent testified as well. Harper would not allow me nor the parent to see the SOHO report on Student A that was in the file. She also refused to take out of her evidence all the false documentation on Student A that the mom received for the first time that morning, listing many incidents that she had never heard of before. Harper told me that the hearing was confidential and I could not write about what went on, nor what she said. Obviously I'm challenging her on this.
Elayna Konstan

By the time I finished asking questions of the Principal, Alyce Barr, Barr was holding her head and answered every question with "I dont recall! I dont remember!! She was very distraught. Harper attempted to terrorize me and finally said, "You know, Ms. Combier" all these questions doesnt help the student." I asked questions such as 'what evidence is there besides the video?' 'If the video shows Barbot pushing Student A, how come you are saying that this is not sufficient evidence'? And, 'as Elayna Konstan decreed that student A was suspended based upon the SOHO report, how come the parent never gets to see the SOHO report?' And stuff like that. The DOE says that the information in SOHO about each student in the NYC public school system is an intra-agency document, which the parent can never see. What did the Principal want for Student A as punishment for the alleged crime? Barr asked for a Second Opportunity School as a permanent placement, and she never mentioned any services as per Student A's IEP.

This is how the New York City Department of Education takes the federal funds from special needs students that are then used to fill budget gaps at the school, or used on a 'rainy day'.

See also Advocates For Children's "Empty Promises Report" which details how English Language Learners (ELL students) were pushed out of two high schools in Brooklyn, and

"HIGH SCHOOL DISCHARGES REVISITED: TRENDS IN NEW YORK CITY’SDISCHARGE RATES, 2000-2007" for the high discharge rates in NYC which, since 2002, have not declined.

This all makes no sense.

Tuesday, November 3, 2015

Re-post of Mary Hoffman's Article on the Leadership Academy (Parentadvocates.org, 2007)

Management By Intimidation, Jack Welch and The New York City Public School System
Parentadvocates.org

Now that Mr. Joel Klein (he is not Chancellor, legally) is changing the NYC public school administration for the third time in 5 years, the disaster of the Mayoral reign of Mike Bloomberg, Joel, and his sidekicks is becoming more obvious to everyone. The Jack Welch Leadership Academy is, we believe, the seed of the destruction.
           
In New York City, public school children, parents, teachers, school personnel and everyone else are watching their backs. They know that under Joel Klein's police state administration, a false allegation can send any one of them to a suspension center (from which there is no re-entry to the school system), to prison, to a re-assignment center or "rubber room", foster care with ACS, or termination and on the no hire list. You will have to move out of New York State to get a job. Times are bad, folks.

Jack Welch is My Daddy
The Former CEO of General Electric Brings His Big Stick to the Principals Academy...and Shows the Newbies How to Use It

By Mary Hoffman

Part 1: The School for Principals

When Joel Klein answered Mike Bloomberg’s call to serve as New York City schools chancellor in the new mayor’s administration, one of his stated intentions was to get rid of the so-called “bad teachers he believed were preventing the children at their schools from learning. Even without the vacancies his pursuit of that mission could be expected to create, the school system faced an administrator shortfall. Forty percent of the principals in the city will be eligible to retire by 2005. Hundreds of replacements will be needed in the next five years.

Traditionally, New York City school principals have come up through the ranks: starting their careers as teachers, then assuming teacher-training and administrative tasks and taking educational administration coursework at a university. Klein, and others at the Department of Education, saw a need for an alternative training route for aspiring principals. They envisioned a school where the process could be brought under one roof, and the time required to turn out a school-ready administrator shortened. When one considers the mayor’s business background, it isn’t surprising that the organizational framework for the Academy should be the model used in many business schools to turn out corporate leaders. Students work in groups to run fictional schools. They are given “paper” students and staff profiles, a budget, etc., and work to set up a school. There’s also a “real life” component: during their first year of study they are assigned to an acting principal for mentoring. They observe the principal they are assigned to, and undertake a small project to address an area of “instructional need” they’ve identified at his or her school.

The Academy is not funded with city monies. Instead, corporate and foundation donations were solicited to underwrite the cost of the training, and to provide the candidates with salaries of a little over $100,000 a year. Given the source of the funding, it’s also no surprise that many of the people selected to run the project came from a background in business rather than education. Richard Knowling, the top executive at a number of internet and technology companies was chosen as the Leadership Academy’s CEO.* Richard Parsons, CEO at Time-Warner, was picked to serve as vice-president of the advisory board, a post he shared with former schools chancellor Anthony Alvarado. When I learned about the Academy, I did expect that somewhere in the lineup there’d be a figure with a record of academic and/or humanitarian accomplishment that would symbolize the ultimate goal of the work the principals would be doing in the city schools: promoting the academic and social achievement of the students in their care. And, whether from the world of education, business or philanthropy, the individual ought to be an exemplar of effective leadership: someone whose ideas and actions earned the respect of the people she or he managed, since principals oversee the people who provide direct instructional services to children – teachers. Naturally it wouldn’t be the CEO of a company whose financial services division was fined for discrimination against low-income consumers. Or one whose firm was convicted of numerous cases of cheating on defense contracts throughout the 1990s. No individual whose organization paid no taxes on net earnings of $2.7 billion in 1998 (for a combined total of $6.9 billion in tax breaks between 1996-98) would be an appropriate choice for a school that aimed to train public school principals. In other words, it wouldn’t be somebody like Jack Welch.

But, remarkably, that’s exactly who the Department of Education DID offer the top spot on the Leadership Academy’s advisory board to. Jack Welch – the PCB-causes-cancer-denying, corporate-tax avoiding, personnel-and-plant ridding, outsourcing cheerleading, former CEO of General Electric.

For a thorough treatment of the scandals that took place at GE during Jack Welch’s tenure, and the social costs of his leadership, I recommend the book “At Any Cost: Jack Welch, General Electric, and the Pursuit of Profit,” by Thomas O’Boyle, a former staff writer at the Wall Street Journal (Vintage Books, 1998). Most of the information in this article comes from that book, and even a cursory glance shows why it’s hard to imagine a less suitable figure for the post he was given at the Leadership Academy. It might be one thing if Welch’s position had been largely ceremonial – if all he was charged with was providing a little color at public functions. But Welch’s role has given him direct access to the new principals. He is one of the Academy’s instructors, and he uses the forum to actively sell his brand of management by intimidation and fear.

Part II: The First Class

I first learned of Jack Welch's association with the Academy at the start of the 2003-04 school year. In the week or so before school opens each fall, Channel 13/WNET usually broadcasts a couple of programs with education themes. That year, one program seemed particularly relevant. One of the station’s staff reporters, Rafael Pi Roman, introduced a documentary-in-installments that would follow three of the candidates in the newly established Leadership Academy as they undertook their year of study, and then took charge of a school. Episodes of the documentary would air periodically on a program called “New York Voices.” I watched, fascinated, as the three candidates the program would focus on were introduced. All seemed earnest and intelligent. I found myself hoping that the Leadership Academy would live up to their expectations, and satisfy the city’s need for good school administrators.

I watched with less enthusiasm at a scene from one of the classroom lessons the candidates sat through. An instructor at the Academy pretended to be a math teacher with a monotonic voice. She threw out a couple of phrases so the students would know what subject she was supposed to be teaching...something about the formula for computing the slope of a line, if I recall. When the performance ended, the instructor asked the students how they would approach this teacher. “You’ve seen this teacher on your travels, haven’t you?” she asked, disdainfully, eliciting laughter. One member of the class responded by suggesting that she might open might open a dialogue with the teacher by imitating her – as the instructor had just done. Another objected that the teacher might reasonably become upset at seeing herself mimicked. No mention was made of the content of the lesson, or where the study of slope might fit into a larger lesson. But then, an analysis of the content hadn’t been the instructor’s object. The object had been to show these future leaders WHO to look for when they took over their respective schools: the people with monotonic voices talking about math formulas. (In Jack Welchian terms: the “dull crowd” he thought they’d be such “jerks” for hanging around with in the quote that opens this piece.)

I was heartened that one of the candidates seemed as uncomfortable with the performance as I was. He suggested opening a dialogue with the teacher with a question: “What do you think worked...and what didn’t work so well?” It was harder to tell about the others. At $100,000 plus a year, and given the instructor’s apparent lack of concern about using mimicry to make her point, any reticence they felt about expressing their misgivings would be understandable.

Which is why a scene from a later episode that aired during the series’ first year rekindled my optimism. Jack Welch had invited the Academy’s students to GE’s upstate conference center for a weekend retreat. At one point they were all seated around him in a circle. The topic under discussion was the value of teacher incentives. I was heartened when one of the aspiring principals took issue with the idea that incentives should be tied solely to test performance. “Children are not products,” she said, heatedly, and went on to present her case: schools must try to consider each child’s individual needs and talents...

Mr. Welch squashed her outburst. “Oh, yes they are,” he said, with the absolute assurance of a man whose retirement package was so generous that it even raised eyebrows on Wall Street, and her protest petered out.

But she had made a stand. It would have been easier to let Jack Welch feel important, and keep silent about any differences of opinion. Enjoy the weekend upstate, and let him play guru. I was so pleased at this evidence of independence that the next day I reported on her courage to the new principal we had last year – and for just a year – recommending that she try to see the program the next time it aired. (She had come to the principal’s position through traditional means, teaching for many years first. She was taking classes at the Leadership Academy, but was not in the full-time program featured in the documentary.) In June, during the last week of school, I saw that principal showing someone around our school. The visitor’s face was familiar, but I didn’t place her until I returned to my room. Then I realized who I’d seen, and went to the office to confirm the identification. The Leadership Academy student who’d “talked back” to Jack Welch was seated with the principal in her office. I introduced myself, and asked if she would be working at our school the following year. I thought perhaps the visitor might intend to take a position as an assistant principal until something else opened up. She shook her head. “Oh no,” she said.

In August she telephoned me at home: she was going to be our new principal.

Were changes in order at the elementary school where I work? Most definitely. Our schoolyard –or the lack of one -- had been a problem for years. Located half a block away from our building, the logistics of using the space were always a challenge, and over the years it fell into disuse and disrepair. For at least the past fifteen years, our students have remained indoors, seated at their cafeteria tables, throughout their entire lunch periods. A number of teachers made efforts to get their students outside, with limited, and sporadic success. (For a time the former principal approved class visits to a new early childhood playground built down the street from the school, but after 9/11 she withdrew her approval. Individual teachers took children on neighborhood walks, and occasionally used the playgrounds around local apartment buildings. At one point I had arranged for Operation Greenthumb to come and measure our playground for the creation of a community garden; but the MTA had already started work on the conversion of an adjacent transformer station, putting if off-limits for school use.) Last year I told this story to someone at the regional office that replaced the district offices closed under Mayor Bloomberg’s school restructuring. She assured me that there would be action on the matter and within a month I was introduced to the representative of a company that designs playgrounds. I turned over to him the blueprints for the schoolyard that I’d gotten a couple of years earlier from the School Construction Authority as part of my quest to get it reopened, and I’ve been told that efforts to make the renovation happen are underway. In the meantime, the children have a real recess, either outside on the terrace in front of the school (an idea I suggested to the principal we had last year, and which she put into effect) or in the gym. This year a talented student from the school of education at Brooklyn College runs clubs during the lunch periods.

Academic performance had also been showing steady improvement over the past few years. In 2001, 24.1% of the students in Grade 4 scored at Levels 3 or 4 in English Language Arts; in 2003 61.6% did. In Math, 34.1% of Grade 4 students scored at Levels 3 or 4 in 2001; by 2003 that had risen to 76.3%. The “Adequate Yearly Progress” goals set by New York State were met in both these areas in 2003. How much these scores reflect real growth in academic achievement by individual students is difficult to say however; one would probably need to follow the students’ progress over the course of years to see whether the apparent improvement had lasting effects. But as a very crude measure of whether or not students were learning, it seemed that many students were making progress.

It’s interesting to note that this improvement took place before the new, standardized “workshop model” of delivering instruction was implemented in most city schools. A change in the state reading test some years ago drove a return to using texts of greater length and complexity in the classroom than had been the case for many years in some schools, and to the study of genre and literary devices. (Before that, the test followed a ‘cloze’ format – students had to fill in words in short paragraphs that were devoid of any literary value, and at our school, classroom materials tended to follow that format.) A treatment of the pros and cons of the workshop model and the units of study supplied as curriculum guides in reading is beyond the scope of this article. Support for portions of the reading program can certainly be found in the research literature. The value of read-alouds, followed by discussion and “lessons that build children’s understanding of the ideas, topics and words in the story” are an effective way to address the problem of word-poverty that’s at the heart of reading difficulty for many students, for example.1

But the comments of a city teacher I met recently illustrate the shortcomings many see in the new reading program, and/or the way it is being implemented in some schools. This teacher said that she can see the positive impact the program is having on some of her students. And it’s apparent to me in the school library: students have always been eager to borrow books by the authors I’ve featured in read-alouds; now they are asking for the works by the authors their teachers are using for that purpose in the classroom. For others – the New York City children who come to school less ready to read than their peers for a host of reasons-- she feels the new program falls short. “There are children in my class who still don’t recognize ‘the.’ It’s December! I know, with a program like McGraw-Hill, they would be able to do that.” This teacher isn’t saying she would ditch all aspects of the new program.. Nor is she saying that the alternatives – whether McGraw-Hill, or any other program, on its own, has everything she needs to teach reading effectively. What she would like to be able to do is customize her presentation of the material she knows her students need to master, based on what her prior experience has shown her will work with her students. Surely, any school leader would be interested in what these teachers have to say about where the new curriculum falls short, and how they would like to customize it to help their students? They would be encouraged to come up with the mix of methods and resources that best meet them? Unfortunately, the opposite is true.

Part III: “Get Rid of Your Negative People.”

This fall, the opening episode of the documentary about the Leadership Academy featured scenes from the ceremony for the first class of graduates. Chancellor Joel Klein addressed the gathering, as did Mayor Bloomberg. Again, Jack Welch played a role in the proceedings. When I saw him at the podium I wondered: would he wish the graduates luck? Tell them they could continue to call on him for advice and support? Thank them in advance for the years of public service they were about to embark upon?

“Get rid of your negative people,” he said.

Not an unexpected sentiment, coming from Jack Welch, if somewhat inappropriately – well, negative – for the occasion. He earned the title “Neutron Jack” for his slash-and-burn style of doing employee relations. His lack of concern for how his policies impacted on his employees is legendary. The list of former employees who have accused Welch of firing them for trying to bring attention to problems within the company to light is a long one. (In one case the company paid $7.2 million to settle a lawsuit brought by a GE engineer who charged the company with selling the Air Force jet engines that didn’t comply with contract terms.) His general attitude towards GE employees might best be summed up by one of more famous quotes, which states that in the perfect business world, companies would have their manufacturing plans on barges, so they could move them around the world looking for the cheapest labor. From the book “At Any Cost”:

“Companies move jobs all the time. But seldom do they move them with as little consideration given to the human and societal consequences as does GE. Consider Welch’s announcement in January 1998 of another year of record profit. Buried in that proclamation was a $2.3 billion charge to cover, among other things, the cost of eliminating more than 4,000 manufacturing jobs.” In many of the cities affected by the job loss, “...union and government officials had engaged in months of negotiations, offering wage concessions, tax breaks, anything, so that their locals and communities would be allowed to keep the jobs.”

Now it seems that Mr. Welch wants to export his style of personnel management to the city’s schools. “Get rid of your negative people,” he told the graduating principals. And who might those people be? Probably anyone who expresses skepticism about any aspect of the new curriculum. The official term used by the instructors at the Leadership Academy is “pushback,” and students role-play methods of dealing with it. A Joel Klein statement made in the course of the documentary is also instructive in this regard: he said one way the new principals could gauge their effectiveness was to ask themselves “...how much you are changing the system, and how much the system is changing you.” In other words, “good” graduates will not be altered from the missionary outlook the Academy has instilled in them; “bad” ones might allow themselves to learn something on the ground, even from people who don’t have the Academy’s seal of approval. And there’s no doubt what Jack Welch would counsel the new principals to do with the people who dare question the new program, or its implementation – even when they ask out of genuine concern about what’s best for students. In the Welch playbook, the solution to the problem of what to do with those who do not immediately surrender to the new order is obvious: the new principals should “get rid of them.”

Part IV: “Pushback” and Teacher Autonomy

I once met H. Carl McCall during the brief period when he served as the president of the Board of Education for New York City schools in the early 1990s. I described the lack of children’s literature in the school where I worked – a function, as explained earlier, of the type of reading tests students were then required to take, and the administration’s efforts to prepare them for it. I bemoaned the tension between the test preparation focus of the curriculum, and the efforts of many teachers to expose the children to wider offerings. McCall paused to consider the problem, and then said, “That’s not a bad tension.”

This anecdote is instructive for two reasons. Yes, it does show that teacher skepticism about the curricula they are required to offer students is nothing new. But, more importantly, it points up an important teacher function – one that that the DOE leadership, and the instructors at the Leadership Academy do not recognize – and that is to protect their students from the changing enthusiasms of the education marketplace. You can choose your analogy – the Emperor requiring all his subjects to get their clothing from the fabulous new tailors who are dressing him; with teachers keeping a collection of old clothes on the side for their students to wear; or the enthusiasts at the DOE running after “workshop model” purity like lemmings running headlong off a cliff, with teachers conducting a lesson on the dangers of blind faith looking on from the side. The anedcote is not a defense of teachers who don’t know why they do what they do, but want to keep on doing it anyway – but in my experience there are very few of those. It is an argument on behalf of those teachers who express their doubts about what they are being asked to do out of genuine concern that students will not be well served by some of the changes being forced on them. These teachers take their role seriously enough that they are willing to risk administrative censure – and in some schools, that’s getting serious – in order to protect their students from the untested new – arguably as important a function as that of rescuing them from the discredited old. As long as those in charge defend their sudden jettisoning of one form of instruction in favor of another with the argument that the “children can’t wait,” teachers are the only people who can keep everyone from leaping off that cliff, or arriving at the end of the school year without the “clothing” of skills and experience required for the next. To the plea, “Let teachers teach,” Carmen Farina said that students “didn’t get what they needed” when teachers had more autonomy. To which I reply that while teachers have never had as little leeway to “correct” for the shortcomings of the curriculum or methods they were required to use as they do now, they’ve never had complete autonomy either. And that while some children did not make the kind of progress every teacher would like to see every child make, many did. I don’t know a teacher who doesn’t have ideas about how to improve the prospects for those children who are not as easily served. Their input was rarely sought before; it is even less valued now.

Part V: The Welch Effect

This year’s first episode of the documentary about the Leadership Academy rebroadcast scenes from the programs that aired previously. Once again, the three candidates the program would be following were introduced. Two of the new principals were going on to high schools...in fact, due to an emergency vacancy, one had already taken charge of his school. And, viewers were again treated to the scene in which Jack Welch addressed the Academy students at the GE conference center, and my principal made her small gesture of independence.

She was standing in the office when I arrived for school the next day. I mentioned that I had seen the program, and commended her for “talking back” to Jack Welch. She replied with a demurral: Welch was a great leader; someone who had, “really turned his company around.” As evidence, she presented the fact that the value of GE stock had soared under his stewardship. Then she added, “But he could fire people.”

I was taken aback. Did she really think that success depended on the top executive’s ability to fire people at will? Did she have any knowledge of Welch’s treatment of company whistleblowers? Or his treatment of so many other employees?

I decided she needed to know more about Jack Welch than the sanitized biography they were obviously offering at the Leadership Academy. During the next Monday professional development block I presented her with the O’Boyle book, which sets out to correct the impression of executive infallibility the business media had bestowed on Welch. As I handed her the book, I mentioned a few of the not-so-good things Welch had “brought to life” at GE:

-- His long and well-documented efforts to prevent GE from bearing any expense for cleaning up the company-generated pollution in the Hudson River, and the many affected towns in upstate New York, where PCB-infected soil was illegally dumped.3

At a 1991 meeting where high level staff members met to discuss an environmental study the company had commissioned, Welch stopped the discussion once the cost of various clean-up schemes began to be discussed. “On this one, guys, let’s just keep two steps ahead of the law,”4 he told those assembled. With more lawyers and money to devote to that enterprise, GE successfully fended off responsibility for any cleanup for years.

-- the fact that the rise in GE shares came about, not through engineering innovation, but from the acquisition of financial service companies. As one business writer put it: “Welch likes to claim he succeeded by stimulating innovation, but his record says otherwise. He bought innovation, he didn’t create it. In that respect, he is not a good model for most enterpreneurs.”5

I hoped she would read about the following:

-- GE attorneys kept tabs on individual workers poisoned by working directly with PCBs, creating lists of the “experts” GE could call upon to refute these workers’ claims about the health effects the chemicals caused.

-- Within days of the Environmental Protection Agency’s decision to announce a dredging order that would finally force GE to begin to clean up the Hudson River, the company announced that it would move the headquarters of its Power Systems devision from Schenectady, New York, where it had been since founder Thomas Edison’s time, to Atlanta. Local people interpreted the move as revenge for the state’s support for cleaning up the river.

-- The fact that 77% of GE’s 401k employee retirement plan was invested in GE stock as of Nov. 2001...this is what ENRON did with its employee pension funds, and when that company went belly up, many lost those pensions.

-- GE has “the dubious distinction of (being) the leading corporate criminal among the defense department’s one hundred largest contractors...Defense contract fraud was so rampant in GE that in June 1990 the Department of Defense took the unusual step of creating a special office in Philadelphia solely to police and audit GE defense contracts.”6

While any of these things ought to put a wrinkle in the portrait of Welch being presented at the Leadership Academy, it is his style of dealing with employees that probably poses the greatest threat to the principals-in-training, because it is the easiest to imitate.

Welch counseled GE managers to fire 10% of the workforce every year, whether or not their departments were productive. The aim of the policy is explained this way in “At Any Cost”:

“To get results, Welch and his lieutenants had created a climate of purposeful insecurity, a turbocharged environment in which people were never quite certain they would have a job tomorrow. It was a form of corporate cannibalism, which eventually unleashed a series of scandals that were unprecedented in the history of American business for their variety and scope. More than anything, it was Welch’s treatment of GE employees that engendered the cynicism which in turn paved the way for those scandals, blemishing his own reputation and that of General Electric.”

Welch was lionized in the business press for his merciless style of dealing with employees, and as long as share price was rising, no one argued with its effectiveness. In hindsight, the long-term impact of such behaviors are less clearly positive:

“Downsizing also wrecks morale among those who survive. People come to feel that the organization doesn’t care about their welfare, and they respond by becoming 9-to-5ers, unwilling to put forth extra effort, certainly unwilling to take risks...the American Management Association found in a survey of one thousand companies that fewer than half had laid off people and managed to increase their operating profits afterward. That would seem to explain why the U.S. economy’s productivity gains have been relatively modest considering the effect of recent personnel cutbacks.”7

As for the defense that whatever Welch did, it was good for the shareholders:

“It surely is no coincidence that criminality within GE and throughout American business hit its apex at the very time when the corporate community was most profit-driven and treating its employees with the most egregious disregard.”8

Welch has long been an advocate of outsourcing, pressuring suppliers to relocate offshore in order to provide GE with lower input costs. The public is beginning to find out that such practices carry hidden costs, that aren’t reflected in the price of the products and services the corporation produces. Those costs must be borne by someone. A recent study of Wal-Mart employees in California, for example found that they are more likely then employees of other companies to rely on food stamps to feed their families, and emergency rooms for health care.9

The public pays for what Wal-Mart won’t; their low prices don’t reflect their actual cost of doing business. The same has been true of GE. Its stock prices soared in part because of the company’s successful avoidance of responsibility for cleaning up the PCBs left behind by its manufacturing processes in upstate New York, and its willingness to overcharge the military for the things it supplied...and, in some cases, to supply materials that did not meet military standards. The cost to taxpayers for the illnesses caused, for the loss of river access for fishing and recreation, for the unemployment that resulted from Welch’s race to divest GE of manufacturing plants in favor of service industries, wasn’t part of the company’s accounting practice. The costs never got factored into the soaring stock price. But somebody paid.

Of course, it’s hard to say with any precision how much any of the new graduates of the Leadership Academy has been influenced by exposure to Jack Welch. In the most recent broadcast of the Channel 13 documentary about their progress, a visiting instructor from the Academy inquired about what kind of feedback my principal was getting from the staff about her efforts to implement the workshop model. She replied that while she hasn’t gotten direct feedback, she has heard that teachers feel she is “policing them, which is so not what it’s about!” She seemed genuinely distressed at the perception. Later, the instructor faced the camera to explain: “Ideally, you would have more experienced people,” enrolling in the Academy to prepare to be school leaders. She then went on to suggest that the demographics of the coming wave of principal retirements meant that experience could no longer be considered an essential requirement for the job. I wondered if she had spent much time reflecting on the possibility that something in the curriculum at the Leadership Academy may have contributed to the “communication gap” between the new principal and her staff. Isn’t it possible that all those lessons about “pushback” might have prejudiced the Academy’s graduates against looking on, and dealing with, teacher concerns positively? Ditto for “Neutron Jack” Welch’s statement at the graduation ceremony about “getting rid of your negative people.”

Then, despite occasional protests to the contrary, there seems to be a general belief in the leadership at the DOE, from Chancellor Klein down, that the interests of students and teachers are mutually exclusive, and that the latter must indeed be policed or they will not get the job done. The idea that their experience and opinions might also serve children seems not to have any adherents, or at least not any vocal ones. At some point, all the Academy’s graduates may have the courage to form their own opinions on these matters...may make the revolutionary decision to learn from their surroundings, as well as from those who have the imprimatur of the Leadership Academy.

Part IV: What Should the Role of Business Be?

As potential employers of the graduates of the city’s public schools, city businesses claim a stake in how well they are prepared for work or higher education.

The Business Round Table is one national organization that makes the same claim, and publishes position papers on such issues as the importance of early childhood education, and a national testing program. I don’t see anything wrong with their efforts to offer their view – it is important to know what future employment trends will be, and what skills employers think they will need. The rise of small private schools offering certification in various software languages and packages, outside of the structure of college computer science programs, shows that established schools can’t always respond quickly enough to meet the economy’s needs for workers with particular expertise.

( On the other hand, the people inside the college departments might argue that they should NOT be concerned with meeting the needs of the current economy, but in preparing students to create the future one.) It could be useful for educators to have

an idea of what entry level requirements are for various positions in the major industries in New York. Many business leaders have promoted the idea of tying employment directly to coursework, by publicizing how many years of English and math would

be required for employment, for example, as well as grade-point cut-offs. This could provide incentive to struggling students to stay in school, and make it easier for those who will go directly to work after graduating (while studying part-time, or full-time) to get that first job.

What the architects of the Leadership Academy have done takes the role business should play in the schools a step further, however. By putting a Jack Welch in a leadership role, they have made corporate success the philosophical touchstone of

an educational endeavor. Now, the limited liability corporation might provide the best framework for bringing useful products and services to market, but the production of human capital has traditionally not been seem as the same kind of undertaking.

But even if you do think the corporate model could be an appropriate paradigm for a school system, all the recent scandals in the business world (from Enron to Worldcom, and a few in between), have shown that it really isn’t safe to assume that it always creates “the best for the most.” Many companies manage to be profitable while doing right by their employees, their customers and their country.Under Jack Welch, GE wasn’t one of them.

My misgivings about his appearance at the helm of an educational enterprise is probably best expressed by the quote that closes “At Any Cost.” It comes from one of the author’s college professors, Alfred Kern, who has followed Welch’s career – and the popularization of his management style – with dismay. “I’m both angered and saddened that we live in an America that now defines not only success but also good and evil by the Dow Jones,” Kern says.

I wish Mr. Klein and Mr. Bloomberg were as discerning. It seems they’ve bought the “Welch Doctrine,” no questions asked, and are content to give “Neutron Jack” unfettered access to the hearts and minds of those new school administrators. The concept of a “school for principals” may be a good one: one of the mentor principals shown in an early episode of the Channel 13 documentary says he wishes there had been something like the Academy available when he first became an administrator. The danger comes when someone like Welch is touted as the man to imitate. Again, from “At Any Cost”:

“History will eventually set the record straight. Above all, he will be held responsible for GE’s multiple misadventures: transgressions in which entire businesses were destroyed and thousands of people lost their jobs. Business historians will come to understand the anxiety and insecurity which Welch instilled and how that contributed to a make-money-at-all-costs world that was a perfect hothouse for a growing calamity.”

It doesn’t appear that anyone at the Leadership Academy has really taken the time to evaluate whether the mantra Welch is pitching is something his students can profit from. And whether the success of his pitch might have some hidden costs, that someone, at some point, will end up paying for.

When Pedro Martinez said he felt like the Yankees were his Daddy last year, I wasn’t sure what he meant. Then a baseball fan enlightened me: he was trying to say that when the Yankees beat him, they were behaving like a parent. Now a beating isn’t everyone’s idea of good parenting practice, but that’s what Pedro was stuck with facing the Yankees. Whenever I see Jack Welch with the future principals of the Leadership Academy, I know just how he felt.

March 8, 2005

References

*. Update: Knowling was replaced by Sandra J. Stein on April 8. A press release quoted Joel Klein saying,"Bob stayed longer than he first promised, and we wish him every success back in the corporate world.”

1.“Reading Comprehension Requires Knowledge – of Words and the World” by E.D. Hirsch, Jr., American Educator, Spring 2003, pp. 10-28.

2.“The Early Catastrophe: The Thirty Million Word Gap by Age 3”, by B. Hart & T. Risley, American Educator, Spring 2003, pp. 4-9.

3.“For years, a class of chemicals called PCBs were created in GE plants as a by-product of the manufacturing process for plastics. Their dangers to humans are widely-accepted. One study by two scientists from Wayne State University found evidence that babies born to mothers who had eaten PCB tainted fish “were born sooner, weighed less, and had smaller heads than those whose mothers did not eat fish...A subsequent study, published in the New England Journal of Medicine, found that children who had been prenatally exposed to PCBs in concentrations only slightly higher than those found in the general population exhibited IQ deficits, poor reading comprehension, and difficulty paying attention.” From “At Any Cost: Jack Welch, General Electric, and the Pursuit of Profit,” by Thomas O’Boyle, Vintage Books, New York, 1998.

4. Ibid.

5. www.enterpreneur.com

6.“At Any Cost”

7.“At Any Cost.”

8. Ibid.

9.“UC Berkeley Study Estimates Wal-Mart Employment Practices Cost California Taxpayers $86 Million a Year,” www.berkeley.edu/news/media/releases/2004/08/02_walmart.shtml.

Friday, October 30, 2015

Happy Halloween - Dont Text and Fly

This Halloween, please do not text and fly....or drive, whatever.

Stay safe,

Betsy Combier




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

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


EUGENIA PINKARD, Plaintiff, - against - NEW YORK CITY DEPARTMENT OF EDUCATION, UNITED FEDERATION OF TEACHERS, and ERIC CHEN, Defendants.

11 Civ. 5540 (FM)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

2012 U.S. Dist. LEXIS 64207


May 2, 2012, Decided
 
May 2, 2012, Filed

CASE SUMMARY

OVERVIEW: Plaintiff former employee's claims against defendants, a former employer and a union, must have been dismissed for failure to exhaust her administrative remedies, under 42 U.S.C.S. § 2000e-5(e), because her charge did not put the Equal Employment Opportunity Commission (EEOC) on notice to investigate discrimination based on the employee's race or color; instead, the employee's EEOC charge was based solely on her age and sex.

OUTCOME: Motions granted. Complaint dismissed.

CORE TERMS: retaliation, discrimination claims, termination, administrative remedies, terminated, grievance, color, discontinuance, discriminatory, secretary, exhaust, nysut, reinstated, fair representation, conclusory, disability, sex, email, pro se, time barred, subject matter jurisdiction, national origin, protected activity, untimely, notice, woman, superintendent, probationary, employment discrimination, exercise of jurisdiction

LexisNexis® Headnotes


Civil Procedure > Jurisdiction > Subject Matter Jurisdiction > General Overview
Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Motions to Dismiss
Evidence > Procedural Considerations > Burdens of Proof > Preponderance of Evidence
HN1
Under Fed. R. Civ. P. 12(b)(1), a complaint must be dismissed if a court lacks subject matter jurisdiction over the action. In deciding a Rule 12(b)(1) motion, a court is not limited to the face of the complaint and may consider evidence outside the pleadings to resolve disputed factual issues. The plaintiff has the burden of proving by a preponderance of the evidence that subject matter jurisdiction exists.


Civil Procedure > Jurisdiction > Subject Matter Jurisdiction > General Overview
Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Failures to State Claims
Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Motions to Dismiss
HN2
When faced with a motion to dismiss pursuant to both Fed. R. Civ. P. 12(b)(1) and 12(b)(6), a court should decide the jurisdictional question under Rule 12(b)(1) first because a disposition of a Rule 12(b)(6) motion is a decision on the merits, and therefore, an exercise of jurisdiction.


Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Failures to State Claims
HN3
A Fed. R. Civ. P. 12(b)(6) motion to dismiss for failure to state a claim tests the legal sufficiency of a plaintiff's claims for relief. In deciding the motion, a court must accept as true all factual allegations made in the complaint and draw all reasonable inferences in favor of the plaintiff. The complaint need not contain detailed factual allegations. Nonetheless, threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.


Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Failures to State Claims
Civil Procedure > Parties > Self-Representation > Pleading Standards
Evidence > Judicial Notice > General Overview
HN4
To survive a Fed. R. Civ. P. 12(b)(6) motion, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Determining whether the allegations of a complaint nudge a plaintiff's claims across the line from merely conceivable to plausible requires a court to draw on its judicial experience and common sense. In making its assessment, a court may consider, in addition to the plaintiff's factual averments, any written instrument upon which the plaintiff necessarily relies, regardless of whether it is attached to the complaint or incorporated therein by reference. When a plaintiff is proceeding pro se, a court also may rely on any opposition papers in assessing the legal sufficiency of the plaintiff's claims. Furthermore, a court may take judicial notice of indisputable facts. Fed. R. Evid. 201. Legal conclusions masquerading as factual averments, however, may not be taken into account.


Civil Procedure > Parties > Self-Representation > Pleading Standards
HN5
When a party is proceeding pro se, a court must read her pleadings liberally and interpret them to raise the strongest arguments that they may suggest. Dismissal of a pro se complaint is nevertheless appropriate where a plaintiff has clearly failed to meet minimum pleading requirements.


Labor & Employment Law > Discrimination > Title VII of the Civil Rights Act of 1964 > Coverage & Definitions > General Overview
HN6
Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., makes it unlawful for an employer to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. 42 U.S.C.S. § 2000e-2(a)(1).


Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Failures to State Claims
Civil Procedure > Pleading & Practice > Pleadings > Complaints > Requirements
Labor & Employment Law > Discrimination > Disparate Treatment > Proof > Burdens of Proof
HN7
To establish a claim of employment discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., an employee must show that: (a) she was a member of a class protected by the statute; (b) she was qualified for the position; (c) she suffered an adverse employment action; and (d) the adverse employment action occurred under circumstances that give rise to an inference of discrimination. At the pleading stage, even if the employee is not required to establish a prima facie case of employment discrimination to survive a motion to dismiss, her claim must be facially plausible and must give fair notice to the defendant of the basis for the claim.


Labor & Employment Law > Discrimination > Retaliation > Burdens of Proof
Labor & Employment Law > Discrimination > Retaliation > Elements > General Overview
Labor & Employment Law > Discrimination > Retaliation > Statutory Application > Title VII of the Civil Rights Act of 1964 > General Overview
HN8
Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., makes it unlawful for an employer to retaliate against an employee who has exercised her statutory right to complain about conduct that she considers discriminatory. 29 U.S.C.S. § 623(d); 42 U.S.C.S. §§ 2000e-3(a), 12203(a). A retaliation claim is not dependent on the merits of the underlying discrimination complaint. Consequently, to establish a prima facie case of retaliation, an employee need only show that: (a) she engaged in a protected activity; (b) the employer knew of this activity; (c) the employer took adverse action against the employee; and (d) there was a causal relation between the adverse action and the employee's protected activity. Proof of causation can be shown either: (a) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (b) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant. Furthermore, mere temporal proximity between a plaintiff's protected activity and an adverse employment action may, by itself, be sufficient to create an inference of retaliation for purposes of proving a prima facie case.


Labor & Employment Law > Discrimination > Disparate Treatment > Proof > Burdens of Proof
Labor & Employment Law > Discrimination > Title VII of the Civil Rights Act of 1964 > Coverage & Definitions > Labor Organizations

Discrimination by unions is prohibited by Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., which makes it an unlawful employment practice for a labor organization to exclude or to expel from its membership, or otherwise discriminate against, any individual because of his race, color, religion, sex, or national origin. 42 U.S.C.S. § 2000e-2(c)(1). A Title VII claim brought against a union, however, is evaluated differently than such a claim against an employer. To succeed on her claim, a plaintiff first must show that the union breached its duty of fair representation to her. A union breaches its duty of fair representation when (a) its conduct toward a member is arbitrary, discriminatory, or in bad faith, and (b) the alleged misconduct injures the plaintiff. If the plaintiff establishes a breach of the duty of fair representation, she then must show some indication that the union's actions were motivated by unlawful discrimination or retaliation.


Civil Procedure > Jurisdiction > Subject Matter Jurisdiction > General Overview
Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Failures to State Claims
Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Motions to Dismiss
Labor & Employment Law > U.S. Equal Employment Opportunity Commission > Exhaustion of Remedies > General Overview
HN10
Since the exhaustion of administrative remedies is a precondition to bringing a Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., claim in federal court, rather than a jurisdictional requirement, Fed. R. Civ. P. 12(b)(6)--rather than Rule 12(b)(1)--is the appropriate vehicle to evaluate the sufficiency of a plaintiff's efforts to exhaust her remedies.


Labor & Employment Law > U.S. Equal Employment Opportunity Commission > Exhaustion of Remedies > Filing of Charges

Generally, a plaintiff may bring a Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., claim in federal court only after filing a timely charge with the Equal Employment Opportunity Commission (EEOC) or with a state or local agency with authority to grant or seek relief from such practice. 42 U.S.C.S. § 2000e-5(e); 42 U.S.C.S. § 12117(a). Although exhaustion thus is ordinarily an essential element of a Title VII claim, claims not raised in an EEOC complaint may be brought in federal court if they are reasonably related to the claim filed with the agency. A claim raised for the first time in the district court is reasonably related to allegations in an EEOC charge where the conduct complained of would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination. The central question is whether the complaint filed with the EEOC gave that agency adequate notice to investigate discrimination of the type alleged in the civil complaint. Courts have consistently held that discrimination claims based on age, sex, or disability are not reasonably related to claims based on race or color, and vice versa.


COUNSEL:  [*1] Eugenia Pinkard, Plaintiff, Pro se, Brooklyn, NY.

For NYC Department of Education, Defendant: Asad Rizvi, LEAD ATTORNEY, New York City Law Department, New York, NY.

For UFT, Defendant: Stuart Lloyd Lichten, Lichten & Bright, P.C., New York, NY.

JUDGES: FRANK MAAS, United States Magistrate Judge.

OPINION BY: FRANK MAAS

OPINION
DECISION AND ORDER
FRANK MAAS, United States Magistrate Judge.
In this employment discrimination action, pro se plaintiff Eugenia Pinkard ("Pinkard"), an African-American woman, contends that the New York City Department of Education ("DOE") unlawfully terminated her employment as a school secretary because of her race. Pinkard further contends that her union, the United Federation of Teachers ("UFT"), and her UFT attorney, Eric Chen ("Chen"), unlawfully discriminated against her. In her complaint, (ECF No. 2 ("Compl." or "Complaint")), Pinkard expressly seeks relief only under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"). The parties have consented to my exercise of jurisdiction over this case for all purposes pursuant to 28 U.S.C. § 636(c). (ECF No. 15).
The DOE, UFT, and Chen (collectively, the "Defendants") have moved to dismiss the Complaint pursuant to  [*2] Rules 12(b)(1) and12(b)(6) of the Federal Rules of Civil Procedure. (ECF Nos. 22, 33). For the following reasons, the Defendants' motions are granted and the Complaint is dismissed.
I. Background
A. Facts
Unless otherwise indicated, the following facts are either undisputed or set forth in the light most favorable to Pinkard.
In September 2004, Pinkard began working as a school secretary at the High School for Civil Rights in Brooklyn. (ECF No. 39 ("Pl.'s Opp'n") Ex. 9). In October 2004, Pinkard was involved in an altercation instigated by a school aide. The school's principal concluded, however, that Pinkard's behavior "constitute[d] insubordination" and placed a letter to that effect in Pinkard's file. (Id. Ex. 4 at 3). At the conclusion of the school year, the principal recommended that the DOE discontinue Pinkard's probationary service. (Id. at 2). Thereafter, on June 23, 2005, the Local Instructional Superintendent ("LIS") acted upon that recommendation by denying Pinkard a certification that she had completed her probationary period. Pinkard's employment consequently was terminated effective August 29, 2005. (Id. Ex. 5 at 1).
On June 29, 2006, Pinkard went to the office of LIS Varleton  [*3] McDonald ("McDonald"), the successor to the LIS who had terminated Pinkard. (Pl.'s Opp'n at 4). Although that day was his last as the school's LIS, McDonald issued a letter reversing the discontinuance and instructing Pinkard to report to the Regional Operation Center ("ROC") for assignment. (Id. Ex. 6). Pinkard subsequently went to the ROC, where she presented the letter from McDonald, but was not given an assignment. (Id. at 4). Pinkard later learned that the ROC administrator with whom she spoke thought that McDonald was no longer an LIS at the time he issued the letter, rendering it ineffective. (Id.; see also id. Ex. 7 (email suggesting "McDonald was not the LIS of record on the date he affixed his signature to [his June 29 letter])).
On December 11, 2006, Pinkard filed a grievance with the DOE. In that grievance, Pinkard stated that:
(1) My discontinuance dated 7/23/05 [actually 6/23/05] was overturned by the superintendent on 6/29/06. I am asking for compensation for the time I was out of work and to be made whole in all ways. (2) I am owed 20 peak load hours from June 2005.
The above is in violation of Articles 3, 7 and 15 of the Agreement. As a remedy, I request to be made whole  [*4] by being paid monies owed to me in addition to 6% interest pursuant to State law.
(Id. Ex. 5 at 2).
On January 10, 2007, the District held a hearing to consider Pinkard's grievance, at which Pinkard evidently was represented by a UFT representative. (Pl.'s Opp'n at 4 & Ex. 5 at 3). Thereafter, in May 2008, Pinkard contacted the UFT because she had not received a decision regarding her grievance. (Id. Ex. 12). The UFT subsequently arranged for Chen, an attorney with the New York State United Teachers ("NYSUT"), to represent Pinkard.1 Chen then contacted McDonald, who confirmed that he was, in fact, still a LIS when he wrote the letter reversing Pinkard's discontinuance. (Id. Exs. 1 at 1, 11 ("Pl.'s Art. 78 Mem.") at 4). On September 8, 2008, Chen filed an Article 78 petition on Pinkard's behalf in Supreme Court, New York County, which contended that the DOE had "failed to perform a ministerial act required by law" by not reversing the discontinuance of Pinkard's employment. (See Pl.'s Art 78 Mem. at 1).

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1 The NYSUT is a federation of 1,200 unions, the largest of which is the UFT. See http://www.nysut.org/cps/rde/xchg/nysut/hs.xsl/about.htm (last visited on Apr. 24, 2012).

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At some point after  [*5] Chen filed the Article 78 petition, the DOE proposed a settlement, pursuant to which Pinkard would receive back pay in the amount of $91,067 and be reinstated as a school secretary at the highest pay scale contractually permissible for her position. (See Pl.'s Opp'n Ex. 1 (emails between Pickard and Chen discussing settlement offer)). Chen conveyed the offer to Pinkard, who rejected it because, among other things, she wanted the DOE to restore her to her position with tenure, pay her at an even higher rate, and add interest to the amount she recovered. (Id.; see Compl. at 11).
On March 26, 2009, the DOE hand delivered a letter to Pinkard instructing her "to report to the Brooklyn Integrated Service Center for an assignment in order to be reinstated to the position of School Secretary." (Pl.'s Opp'n Ex. 3). The letter further instructed Pinkard to "go to 65 Court Street to . . . pick up your check for back pay." (Id.). Pinkard then sent Chen an email informing him of the letter and requesting guidance. Specifically, Pinkard wanted to know (1) why she was told to pick up a check when she had not signed any settlement papers, (2) whether she would receive a separate check for "per session"  [*6] pay and other back pay to which she believed she was entitled, and (3) whether a decision ever had been issued regarding her grievance. (Compl. at 50).
Chen replied to Pinkard's email the same day, informing her that:
It appears that rather than asking you to settle or sign anything, the DOE has unilaterally reinstated you to work and is just going to pay you the same money you were offered before. . . . They are arguing that since you are being offered back pay and your job back, that you have been given everything you seek and there is nothing left to ask the Court. But I don't see anything in the papers regarding the per session money, or the money you would have received since February.
(Id. at 49).
Chen further advised Pinkard to report for her work assignment as instructed in the letter because he feared that, if she failed to do so, the DOE would argue that she had refused to return to work and thus had abandoned her position. (Id.). Chen also recommended that Pinkard retrieve and deposit the check because "it may not be available to [her] later." (Id.).
Pinkard emailed Chen that evening, stating that:
I still want to make it clear that I want to proceed with the lawsuit[] if they  [*7] are not going to reinstate me wholly. I want to be reinstated wholly, I am not settling. If [] taking this money and returning to work is settling, I don't want it.
(Pl.'s Opp'n Ex. 2). The next day, Chen sent Pinkard an email stating, "I don't believe taking the money and returning to work would be settling." (Id.).
On or about March 27, 2009, Pinkard picked up a check in the amount of $91,067.88 and reported to work. (Id. at 5). Instead of being assigned to a permanent position, however, Pinkard was sent to a "[r]ubber room," where, according to Pinkard, "people are sent for further investigation."2 (Id. at 3).

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2 "[R]ubber rooms, [also] known as reassignment centers," were notorious facilities where school employees accused of incompetence or misconduct would "show up every school day, sometimes for years, doing no work and drawing full salaries." Jennifer Medina, Deal Reached to Fix Teacher Discipline Process, N.Y. Times, Apr. 17, 2010, at Al. The UFT and City of New York agreed to discontinue the use of rubber rooms in the fall of 2010. Id.

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Thereafter, on August 25, 2009, Justice Marcy S. Friedman granted a motion to dismiss Pinkard's Article 78 petition as moot since Pinkard had been  [*8] reinstated to her position as a school secretary and awarded back pay. See Pinkard v. Bd. of Ed. of the City Sch. Dist. of the City of N.Y., Index No. 112198 (Sup. Ct. N.Y. County), Order dated Aug. 25, 2009. Although Pinkard opposed the motion, Justice Friedman found that it was "unclear why [Pinkard] contend[ed] that the amount of back pay was insufficient."3 Id. Justice Friedman therefore dismissed the petition "without prejudice to proper proceedings if still timely." Id.

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3 In her opposition brief, Pinkard maintained that she was entitled to an additional $13,209.12 in back pay and should have been reinstated at a higher pay rate. (See Pl.'s Opp'n Ex. 11 (Chen Affirm, in Opp'n to Resp'ts' Cross-Mot. to Dismiss)).

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On March 5, 2009, while her Article 78 petition was pending, Pinkard filed an "improper practice charge" with the New York Public Employment Relations Board ("PERB"). See In re Pinkard, No. U-28996, 43 P.E.R.B. ¶ 4623 (Dec. 21, 2010), available at 2010 WL 6771342. In that charge, Pinkard alleged that the UFT had violated "§ 209-a.2(c) of the Public Employees' Fair Employment Act . . . [because] the UFT attorney representing Pinkard did not advise her why a decision following  [*9] her grievance hearing had not been rendered." Id. By order dated December 21, 2010, after a hearing at which both Pinkard and Chen testified and the submission of post-hearing briefs, PERB found that Pinkard failed to establish that the UFT "acted arbitrarily, discriminatorily or in bad faith in representing [her]." Id. PERB also declined to address additional claims that were either untimely or raised for the first time in Pinkard's post-hearing brief. Id.
Pinkard was terminated again following the 2009-2010 school year. On August 16, 2010, the Superintendent of Brooklyn High Schools affirmed Pinkard's "Discontinuance of Probationary Service and Termination of License." (Pl.'s Opp'n Ex. 9 at 1). Following a hearing on January 5, 2011, before the Office of Appeals and Review, the District Superintendent reaffirmed Pinkard's discontinuance on February 7, 2011. (Id. at 3-4).
Pinkard contends that her second termination was in retaliation "for standing up to [her] Union, the New York City Department of Education and NYSUT." (Pl.'s Opp'n at 2). Specifically, Pinkard alleges that the UFT failed to vindicate her rights in retaliation for Pinkard having filed a charge with PERB. Pinkard further  [*10] maintains that the discontinuance of her probationary service was impermissible because her reinstatement should have resulted in her obtaining tenure, thereby causing her to be a non-probationary employee. (See id. at 5).
Although Pinkard brings this action pursuant to Title VII, the only reference to racial discrimination is found in the statement of facts section of her form Complaint, in which she states:
I was terminated by the [DOE] for being insubordinate to a school aide in 2005. The union never filed any charges against the [DOE]. When the union finally assigned me an attorney[,] the attorney coer[c]ed me into taking monies[,] which was not in my best interest regarding my case. I feel because I am a black woman neither of my representatives handled my case properly.
(Compl. at 3). The Complaint also mentions "wages [] being withheld as retaliation," but does not elaborate on that claim. (Id.).
B. Procedural History
After Pinkard filed a charge with the federal Equal Employment Opportunity Commission ("EEOC") on April 14, 2011 (see ECF No. 37 (Decl. of Ass't Corp. Counsel Asad Rizvi, dated Nov. 28, 2011 ("Rizvi Decl."), Ex. C)), the EEOC issued her three right-to-sue letters on [*11] May 11, 2011, authorizing her to sue the DOE, UFT, and NYSUT (see Compl. at 5-7). Pinkard then commenced this suit in forma pauperis on July 29. 2011. (ECF. Nos. 1, 2). On November 3, 2011, the parties consented to my exercise of jurisdiction over this case for all purposes pursuant to 28 U.S.C. § 636(c). (ECF No. 15).
On November 7, 2011, the Court ordered that the Complaint and caption be deemed amended to add Chen as an individual defendant. (See ECF No. 14) On November 17, 2011, Pinkard apparently served the DOE with an amended complaint. (See EFC No. 25 ("Am. Compl." or "Amended Complaint"); DOE Mem. Ex. B). It is unclear whether the Amended Complaint ever was served on the UFT or Chen. The only difference between the Complaint and the Amended Complaint is the inclusion of the following underlined words in the statement of facts:
Originally I was terminated for being insubordinate to a school aide in 2005. The union never filed any charges against the [DOE]. The union finally assigned me an attorney. The attorney coer[c]ed me intl taking monies[,] which was not in my best interest regarding my case. I feel because I am a black woman and secretary neither of my representatives  [*12] handled my case properly[,] which resulted in me being terminated again Aug[ust] 2011.
(Am. Compl. at 3). The Court need not decide whether Pinkard properly served and filed the Amended Complaint because, even if she did, it would be subject to dismissal for the reasons set forth below.

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4 The original Complaint listed "NYC Dept of Ed Attorney" in the caption, but referred to an unnamed union attorney in the statement of facts. (See Compl. at 1, 3). The November 7 order incorrectly spelled Chen's last name as "Chin." (See ECF No. 36 ("DOE Mem.") at 3 n.1). The Complaint and caption therefore are deemed amended again to reflect the correct spelling of Chen's last name.5 Pinkard has the date wrong. Her second termination took place on August 16, 2010, and was effective that day.

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On November 22, 2011, the UFT filed a motion to dismiss, and, on November 29, 2011, the DOE did the same. (ECF Nos. 22, 33). Pinkard filed her opposition to both motions on December 27, 2011, (ECF No. 38), after which the DOE filed a reply on January 6, 2012 (ECF No. 39). The motions therefore are fully submitted.
II. Discussion
A. Standard of Review
1. Rule 12(b)(1)
HN1Under Rule 12(b)(1), a complaint must be dismissed  [*13] if a court lacks subject matter jurisdiction over the action. In deciding a Rule 12(b)(1) motion, a court is not limited to the face of the complaint and may consider evidence outside the pleadings to resolve disputed factual issues. State Emp. Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 77 n.4 (2d Cir. 2007); Phifer v. City of N.Y., 289 F.3d 49, 55 (2d Cir. 2002). The plaintiff has the burden of proving by a preponderance of the evidence that subject matter jurisdiction exists. Phifer, 289 F.3d at 55 (citing Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)).
HN2When faced with a motion to dismiss pursuant to both Rules 12(b)(1) and 12(b)(6), a court should "decide the 'jurisdictional question [under Rule 12(b)(1)] first because a disposition of a Rule 12(b)(6) motion is a decision on the merits, and therefore, an exercise of jurisdiction.'" Tirone v. N.Y. Stock Exch., Inc., No. 05 Civ. 8703 (WHP), 2007 U.S. Dist. LEXIS 54255, 2007 WL 2164064, at *3 (S.D.N.Y. July 27, 2007) (quoting Magee v. Nassau Cnty. Med. Ctr., 27 F. Supp. 2d 154, 158 (E.D.N.Y. 1998)).
2. Rule 12(b)(6)
HN3A Rule 12(b)(6) motion to dismiss for failure to state a claim tests the legal sufficiency of a plaintiff's claims for relief. Krasner v. HSH Nordbank AG, 680 F. Supp. 2d 502, 511 (S.D.N.Y. 2010)  [*14] (Lynch, D.J.). In deciding the motion, a court must accept as true all factual allegations made in the complaint and draw all reasonable inferences in favor of the plaintiff. Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d Cir. 2006). The complaint need not contain "detailed factual allegations." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). Nonetheless, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555).
HN4To survive a Rule 12(b)(6) motion, a complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). Determining whether the allegations of a complaint nudge a plaintiff's claims across the line from merely "conceivable to plausible" requires a court to "draw on its judicial experience and common sense." Id. at 679-80. In making its assessment, a court may consider, in addition to the plaintiff's factual averments, any written instrument upon which the plaintiff necessarily relies, regardless of whether it is attached  [*15] to the complaint or incorporated therein by reference. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002).
When a plaintiff is proceeding pro se, a court also may rely on any opposition papers in assessing the legal sufficiency of the plaintiff's claims. See Crum v. Dodrill, 562 F. Supp. 2d 366, 373 n.13 (N.D.N.Y. 2008) (citing Gadson v. Goord, No. 96 Civ. 7544 (SS), 1997 U.S. Dist. LEXIS 18131, 1997 WL 714878, at *1 n.2 (S.D.N.Y. Nov. 17, 1997)). Furthermore, a court may take judicial notice of indisputable facts. See Fed. R. Evid. 201. Legal conclusions masquerading as factual averments, however, may not be taken into account. Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir. 2002) (citing Gebhardt v. Allspect, Inc., 96 F. Supp. 2d 331, 333 (S.D.N.Y. 2000)).
HN5Because Pinkard is proceeding pro se, the Court must read her pleadings "liberally" and interpret them "to raise the strongest arguments" that they may suggest. Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (citing Harris v. City of N.Y., 607 F.3d 18, 24 (2d Cir. 2010)). "Dismissal of a pro se complaint is nevertheless appropriate where a plaintiff has clearly failed to meet minimum pleading requirements." Carvel v. Ross, No. 09 Civ. 722 (LAK) (JCF), 2011 U.S. Dist. LEXIS 25203, 2011 WL 856283, at *8 (S.D.N.Y. Feb. 16, 2011). [*16] 

B. Applicable Law
1. Wrongful Termination
HN6Title VII makes it unlawful for an employer "to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1).
HN7To establish a claim of employment discrimination under Title VII, Pinkard must show that: (a) she was a member of a class protected by the statute; (b) she was qualified for the position; (c) she suffered an adverse employment action; and (d) the adverse employment action occurred under circumstances that give rise to an inference of discrimination. See Farias v. Instructional Sys., Inc., 259 F.3d 91. 98 (2d Cir. 2001). At the pleading stage, even if Pinkard is not required to establish a prima facie case of employment discrimination to survive a motion to dismiss, see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-11, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002); Barbosa v. Continuum Health Partners, Inc., 716 F. Supp. 2d 210, 214-15 (S.D.N.Y. 2010) (reconciling Twombly, Iqbal, and Swierkiewicz),  [*17] her "claim must be facially plausible and must give fair notice to the defendant[] of the basis for the claim,"Barbosa, 716 F. Supp. 2d at 215 (citing Fowler v. Scores Holding Co., Inc., 677 F. Supp. 2d 673, 679 (S.D.N.Y. 2009)).

2. Retaliation
HN8Title VII also makes it unlawful for an employer to retaliate against an employee who has exercised her statutory right to complain about conduct that she considers discriminatory. 29 U.S.C. § 623(d); 42 U.S.C. §§ 2000e-3(a), 12203(a). A retaliation claim is "not dependent on the merits of the underlying discrimination complaint." Davis v. State Univ. of N.Y., 802 F.2d 638, 642 (2d Cir. 1986). Consequently, to establish a prima facie case of retaliation, an employee need only show that: (a) she engaged in a protected activity; (b) the employer knew of this activity; (c) the employer took adverse action against the employee; and (d) there was a causal relation between the adverse action and the employee's protected activity. Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001); Holt v. KMI-Cont'l, Inc., 95 F.3d 123, 130 (2d Cir. 1996). "[P]roof of causation can be shown either: [a] indirectly, by showing that the protected activity was followed  [*18] closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or [b] directly, through evidence of retaliatory animus directed against the plaintiff by the defendant." Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000). Furthermore, mere temporal proximity between a plaintiff's protected activity and an adverse employment action may, by itself, be sufficient to create an inference of retaliation for purposes of proving a prima facie case. El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 932 (2d Cir. 2010).

3. Title VII Claim Against a Union
HN9Discrimination by unions is prohibited by Title VII, which makes it "an unlawful employment practice for a labor organization . . . to exclude or to expel from its membership, or otherwise discriminate against, any individual because of his race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(c)(1); see Yerdon v. Henry, 91 F.3d 370, 375 (2d Cir. 1996) (labor union liable under Title VII). A Title VII claim brought against a union, however, is evaluated differently than such a claim against an employer. To succeed on her claim,  [*19] Pinkard first must show that "the [u]nion breached its duty of fair representation to [her]." Oparji v. United Fed. of Teachers, 418 F. Supp. 2d 139, 147 (E.D.N.Y. 2006). A union breaches its duty of fair representation when (a) "its conduct toward a member . . . is arbitrary, discriminatory, or in bad faith," Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 44, 119 S. Ct. 292, 142 L. Ed. 2d 242 (1998), and (b) the alleged misconduct injures the plaintiff, Spellacy v. Airline Pilots Assoc.-Int'l, 156 F.3d 120, 130 (2d Cir. 1998). If Pinkard establishes a breach of the duty of fair representation, she then "must show some indication that the union's actions were motivated by unlawful discrimination or retaliation." Oparji, 418 F. Supp. 2d at 146.

C. Application of Law to Facts
1. Exhaustion of Administrative Remedies
The DOE contends that the Complaint must be dismissed pursuant to Rule 12(b)(1) on the ground that the Court lacks subject matter jurisdiction because Pinkard failed to allege discrimination based on race or color in her EEOC Charge. (See DOE Mem. at 7-8). Indeed, in her charge, Pinkard selected only "sex" and "age" as the "circumstances of alleged discrimination," omitting "race" or "color." (See Rivzi Decl.  [*20] Ex. C).
HN10Since the exhaustion of administrative remedies "is a precondition to bringing a Title VII claim in federal court, rather than a jurisdictional requirement," Francis v. City of N.Y., 235 F.3d 763, 768 (2d Cir. 2000) (quotation marks omitted), Rule 12(b)(6) — rather than Rule 12(b)(1) — is the appropriate vehicle to evaluate the sufficiency of a plaintiff's efforts to exhaust her remedies, see Holowecki v. Fed. Express Corp., 440 F.3d 558, 565 (2d Cir. 2006) (reviewing motion to dismiss complaint for failure to exhaust administrative remedies under Rule 12(b)(6)); Fernandez v. Chertoff, 471 F.3d 45, 51-52 (2d Cir. 2005) (same).
HN11Generally, a plaintiff may bring a Title VII claim in federal court only after filing a timely charge with the EEOC or with "a State or local agency with authority to grant or seek relief from such practice." 42 U.S.C. § 2000e-5(e); 42 U.S.C. § 12117(a). Although exhaustion thus is "ordinarily an essential element of a Title VII claim, . . . [c]laims not raised in an EEOC complaint . . . may be brought in federal court if they are 'reasonably related' to the claim filed with the agency." Williams v. N.Y.C. Hous. Auth., 458 F.3d 67, 70 (2d Cir. 2006) (quoting  [*21] Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001), and Butts v. City of N.Y. Dep't of Hous. Pres. & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993)).
"A claim raised for the first time in the district court is 'reasonably related' to allegations in an EEOC charge 'where the conduct complained of would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.'" Holtz v. Rockefeller & Co., 258 F.3d 62, 83 (2d Cir. 2001) (quoting Butts, 990 F.2d at 1402). "The central question is whether the complaint filed with the EEOC gave that agency adequate notice to investigate discrimination [of the type alleged in the civil complaint]." Williams, 458 F.3d at 70 (internal quotation marks omitted).
Here, Pinkard has failed to exhaust her administrative remedies because her charge did not put the EEOC on notice to investigate discrimination based on Pinkard's race or color. Instead, Pinkard's EEOC charge was based solely on her age and sex. (Rivzi Decl. Ex. C). Courts have consistently held that discrimination claims based on age, sex, or disability are not reasonably related to claims based on race or color,  [*22] and vice versa. See, e.g., Joseph v. Am. Works, Inc., No. 01 Civ. 8287 (DC), 2002 U.S. Dist. LEXIS 9075, 2002 WL 1033833, at *5-6(S.D.N.Y. May 21, 2002) (disability claim dismissed for failure to exhaust because plaintiff asserted only Title VII race discrimination claims in her EEOC complaint); Coleman v. Bd. of Educ., No. 96 Civ. 4293 (GBD), 2002 U.S. Dist. LEXIS 619, 2002 WL 63555, at *3 (S.D.N.Y. Jan. 16, 2002) (gender discrimination claim not reasonably related to national origin, race, or color discrimination claims); McNealy v. N.Y. Pub. Library, No. 96 Civ. 3023 (DAB), 1997 U.S. Dist. LEXIS 15014, 1997 WL 607548, at *4 (S.D.N.Y. Oct. 1, 1997) (disability claim not reasonably related to race discrimination claim raised in EEOC charge); DiProjetto v. Morris Protective Serv., 489 F. Supp. 2d 305, 308 (W.D.N.Y. 2007) (race, gender, and disability discrimination claims not reasonably related to discrimination claim based on national origin); James v. Fed. Reserve Bank of N.Y., No. 01-CV-1106 (RJD) (WP), 2005 U.S. Dist. LEXIS 43493, 2005 WL 1889859, at *5 (E.D.N.Y. Aug. 8, 2005) (race discrimination claim not reasonably related to disability, age, and gender discrimination charges raised before the EEOC).
Pinkard's claims against both the DOE and UFT therefore must be dismissed pursuant to Rule 12(b)(6)  [*23] for failure to exhaust her administrative remedies.

2. Timeliness
Even if Pinkard had exhausted her administrative remedies, most of her claims would have to be dismissed on the independent ground that they are untimely.
"Title VII . . . require[s] claimants to file a charge of discrimination with the EEOC . . . within 300 days of the alleged discriminatory employment action; claims for acts that occurred more than 300 days before the filing are time-barred in federal court." Adams v. N.Y.S. Educ. Dep't., 752 F. Supp. 2d 420, 465 n.52 (S.D.N.Y. 2010) (citing 29 U.S.C. § 626(d)(1)(B); 42 U.S.C. §§ 12117(a), 2000e-5(e)(1)). There are, however, several possible ways to overcome the limitations period. First, the Second Circuit has held that the 300-day limitations period is "subject to waiver, estoppel, and equitable tolling." Downey v. Runyon, 160 F.3d 139, 145-46 (2d Cir. 1998) (quotingZipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S. Ct. 1127, 71 L. Ed. 2d 234 (1982)). Additionally, a plaintiff may rely on the "continuing violation exception." See Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 220 (2d Cir. 2004). Under that exception, if a plaintiff "files an EEOC charge that is timely as to any incident  [*24] of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts of discrimination under that policy will be timely even if they would be untimely standing alone."Nghiem v. U.S. Dep't of Veterans Affairs, 323 F. App'x 16, 17 (2d Cir. 2009) (quoting Patterson, 375 F.3d at 220). Nevertheless, "discrete discriminatory acts," such as termination, failure to promote, or refusal to hire, "are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113-14, 122 S. Ct. 2061, 153 L. Ed. 2d 106(2002). Thus, each "discrete act" of discrimination or retaliation "constitutes a separate actionable unlawful employment practice." Id. at 114. (internal quotation marks omitted).
In this case, Pinkard's EEOC charges against the DOE and UFT evidently were filed no earlier than April 8, 2011. (See Compl. at 5-6; ECF No. 23 (Decl. of Stuart Lichten, Esq., dated Nov. 18, 2011), ¶¶ 4-5). Any claims related to DOE or UFT actions that occurred more than 300 days before April 8, 2011 — i.e., before June 12, 2010 — therefore are time barred. Consequently, Pinkard's claims relating to her termination in 2005, her grievance in  [*25] 2006, any shortcomings in her union representation in 2008-2009, and her reinstatement in 2009 are untimely. Furthermore, Pinkard has failed to allege any facts that suggest that the Defendants had an "ongoing policy of discrimination" that would warrant application of the continuing violation exception, see Nghiem, 323 F. App'x at 17, or any of the three other exceptions set forth in Downey, 160 F.3d at 145-46.
Pinkard's claims relating to events occurring before June 12, 2010 therefore are dismissed as time barred.6

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6 This includes all of Pinkard's claims against Chen. Even if those claims were not time barred, her Title VII claims against Chen would have to be dismissed because individuals cannot be held liable under Title VII. See Mandell v. Cnty. of Suffolk, 316 F.3d 368, 377 (2d Cir. 2003)Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000) (per curiam)

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3. Failure to State a Claim
a. Wrongful Termination
To the extent Pinkard brings a Title VII claim arising out of her termination on August 16, 2010, and the UFT's subsequent failure to represent her, her claim would have to be dismissed even if it had been properly exhausted, for failure to allege facts giving rise to an inference  [*26] of racial discrimination. Pinkard's single, conclusory statement with respect to discriminatory intent — that she "feels" that neither the DOE nor the UFT "handled [her] case properly" "because [she] is a black woman" — clearly is insufficient to state a racial discrimination claim under Title VII. See, e.g., Reid v. Hebrew Home for the Age, No. 11 Civ. 1408 (GBD) (GWG), 2012 U.S. Dist. LEXIS 29013, 2012 WL 698135, at *2 (S.D.N.Y. Mar. 05, 2012) (plaintiff's conclusory statement that "defendant's acts were taken 'because of [her] race' . . . without more is insufficient to support a race discrimination claim") (brackets in original); Alvarez v. Rosa, No. 11 Civ. 3818 (KBF), 2012 U.S. Dist. LEXIS 25693, 2012 WL 651630, at *4 (S.D.N.Y. Feb. 28, 2012) (discrimination claim dismissed because "[p]laintiff provide[d] only speculations, labels and conclusions in support of her claims"); Mitchell v. Project Renewal, No. 09 Civ.1958 (CM), 2010 U.S. Dist. LEXIS 8323, 2010 WL 481348, at *3 (S.D.N.Y. Jan. 29, 2010) (plaintiff's conclusory statement, that "because I was African American, [plaintiff's supervisor] felt like I wasn't good enough to be a supervisor," insufficient to state a discrimination claim under Title VII). This shortcoming, of course, applies to any Title VII claim  [*27] that Pinkard might be able to assert with respect to earlier events.
Accordingly, all of Pinkard's Title VII claims are subject to dismissal for failure to state a claim. See Fed. R. Civ. P. 12(b)(6).

b. Retaliation
Pinkard also has failed to state a retaliation claim against the UFT based on its alleged failure to represent her following her August 2010 termination. Indeed, Pinkard has failed to demonstrate any "indication that the union's actions were motivated by unlawful discrimination or retaliation." Oparji, 418 F. Supp. 2d at 146. Pinkard similarly has set forth no facts substantiating her conclusory allegation that her "wages are being withheld as retaliation." Her retaliation claim consequently also must be dismissed.7

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7 To the extent Pinkard seeks to assert a "hybrid" claim against the UFT for breaching its duty of fair representation under the Labor Management Relations Act (LMRA), see DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 164, 103 S. Ct. 2281, 76 L. Ed. 2d 476, (1983), that claim also must fail because federal courts lack "subject matter jurisdiction over duty of fair representation claims brought by employees of political subdivisions." Gear v. Dep't of Ed., No. 07 Civ. 11102 (NRB), 2010 U.S. Dist. LEXIS 137153, 2010 WL 5297850, at *3-4 (S.D.N.Y. Dec. 21, 2010)  [*28] (citing Ford v. D.C. 37 Union Local 1549, 579 F.3d 187, 188 (2d Cir. 2009)).

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III. Conclusion
For the reasons set forth above, the Defendants' motions to dismiss, (ECF Nos. 22, 33), are granted. Moreover, because Pinkard failed to exhaust her administrative remedies and could not timely do so now, that dismissal is with prejudice. The Clerk of the Court accordingly is requested to close this case. The Court further certifies that any appeal from this Decision and Order would not be taken in good faith because it would be frivolous. See 28 U.S.C. § 1915: Coppedge v. United States, 369 U.S. 438. 445, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).
Dated: New York, New York
May 2, 2012
/s/ Frank Maas
FRANK MAAS
United States Magistrate Judge