Saturday, December 15, 2007

CAN’T GRIEVE A LETTER TO YOUR FILE: SUE

In a series of decisions by several different Justices in New York Supreme Court four teachers have gained what our Union gave up; the right to have negative letters removed from our files. As we all may recall our Union leadership saw fit to give up our precious right to grieve letters in the file as well as a step in our grievance procedure in our sellout contract a few years back. We have seen a precipitous increase in letters to the file, U-rated observations and U-ratings. This was no coincidence.

What our leadership gave away, however, might be partially saved if you decide to file a lawsuit. Joyce Sticco and three other teachers at P.S. 345 in Brooklyn did just that…and won.

The facts of Sticco v. BOE, Supreme Court, New York County, Index 105477/2007, decided 11/28/07 are, unfortunately, all too familiar. In April 2006 Sticco was questioned by investigators from the Special Commissioner of Investigations’ office (Condon’s office) about allegations of inappropriate touching of female students by a fellow teacher, Gregory Michaelides. In his report Condon found that Michaelides had engaged in the conduct and that Sticco and three other teachers either witnessed or gave inconsistent or inappropriate statements about Michaelides’ alleged misconduct. Condon recommended that Michaelides be terminated and that Sticco and the other teachers receive “appropriate disciplinary action.”

The appropriate disciplinary action was a letter to each teachers’ file indicating that they had “show[ed] a willful disregard for the welfare of children” when they failed to report Michaelides’ misconduct. With no way to contest the finding or the letter the teachers started a proceeding in Supreme Court.

The Courts found that the teachers’ due process rights were violated. Under New York State Education Law tenured teachers are entitled to hearings whenever the DOE contemplates disciplinary action. This law, Section 3020-a has certain procedural safeguards to make certain teachers don’t get the treatment that the principal of P.S. 345 gave to Sticco and her colleagues. Disciplinary letters to the file which come after a principal’s conference and without due process protection must be expunged.

The Court found that there are two types of letters to the file; those that are disciplinary and those that are critical administrative evaluations. Ever since 1981 in the Matter of Holt the Court of Appeals has held that this distinction is critical in the determination of letters which violated teacher due process and those that did not. For the last 26 years the “Holt letter,” (ironically the principal in Sticco is named Wanda Holt but, it is believed, she has no relation to Jon Holt the disciplined teacher in 1981) as it became known allowed school administrators to place letters in teachers’ files that were evaluations. Thus observations and “instructive” letters were ok without a full hearing. However, letters which were disciplinary in nature must be taken out of teachers’ files.

At the Delegate Assembly last Wednesday Randi announced the Sticco victories but was less than enthusiastic about its implications or application to other teachers. At the Executive Board meeting last Monday a form entitled “Disciplinary Letters in the File” was distributed which recounted the 4 court cases and gave some guidance as to whether a letter was “disciplinary” and thus available to be removed by Court intervention. While the form indicates a procedure to evaluate whether particular letters are disciplinary, the form does not indicate where the letter should be sent for evaluation and possible Court action.

What’s going on? School administrators have been placing disciplinary letters in teachers’ files for years. Don’t you think our Union should at least try to make up for giving away our grievance rights with aggressively fighting these letters in Court and telling us how to do it?

15 comments:

Anonymous said...

Are we going to get access to that form, incomplete as it is?

Anonymous said...

For more on this, check the following:

http://publicpersonnellaw.blogspot.com/2007/09/criticism-and-reprimand-differ.html

Anonymous said...

Criticism and reprimand differ


Criticism and reprimand differ
Ozol v Center Moriches UFSD, NYS Supreme Court, [Not officially reported]


Is a letter to an individual concerning his or her work performance constructive criticism or pejorative reprimand? Characterizing the letter as a "reprimand" constitutes discipline, entitling the individual to a Education Law Section 3020-a hearing or a contract disciplinary procedure. In contrast, if the letter simply contains "criticism of a teacher's performance," it may not rise to the level of formal disciplinary action and thus no disciplinary hearing would be required. How to distinguish between the two was the central issue in the Ozol case.


Center Moriches Union Free School District elementary school teacher Jean Ozol was handed a letter by the Superintendent informing her that she was being placed on a paid leave of absence until further notice and that:



1. The school district's attorney has been asked to review the information regarding an incident involving students "during which you displayed, [in the opinion of the Superintendent], conduct unbecoming a teacher" and that the "filing of Section 3020-a charges is a serious consideration at this time;" and


2. During the period of the leave of absence (a) Ozol was not to be on school grounds; and (b) Ozol was to refrain from any contact with students at the elementary school.



A copy of the letter was placed in Ozol's personnel file.


According to New York State Supreme Court Justice Oshrin's opinion, this letter and subsequent actions by the District directed towards Ozol constituted discipline. Why did the Superintendent take this action? It was in response to an incident that occurred while Ozol was teaching a fifth grade physical education class during which a student reported to class fifteen minutes late.


The Superintendent subsequently advised Ozol that "the letter should be considered a formal letter of reprimand." The Superintendent also commented that "it is my conclusion as Superintendent of Schools that your actions were inappropriate in that instance." Ozol was directed "... to refrain from any similar actions in the future." In addition, the letter "strongly urged ... [Ozol to] enroll in one or more enumerated courses, the participation in which will provide [you] with the opportunity to improve [your] classroom management skills and instructional techniques." This letter was also placed in Ozol's personnel file. Ultimately Ozol sued, contending that the letters written by the Superintendent and other actions taken against her by the District, including a temporary reassignment, violated her rights under Section 3020-a of the Education Law.


The District objected, claiming that any judicial action was premature because Ozol had not exhausted the administrative remedies available to her under the controlling Taylor Law agreement. Why? Because, the District argued, Ozol had not filed a contract grievance. In addition, the District characterized its actions as part of an "evaluation procedure" and thus not discipline within the meaning of Section 3020-a.


The Court was not persuaded by the District's claims, however. The ruling notes that (1) the Taylor Law agreement did not contain "an exclusive remedy clause that would expressly require the exhaustion of administrative remedies prior to seeking judicial review," and (2) the term grievance as used in the contract referred to the resolution of "a dispute between the parties as to the meaning, interpretation or application of the provisions of this Agreement."


The decision also notes that another relevant provision set out in the agreement. The Court said that Article 5, Paragraph 4, of the contract states that "[t]his procedure shall not be used as a method of .... circumventing provisions of State Statutes relating to tenure, retirement, compensation, or disciplinary proceedings."


The Court decided that the letters placed in Ozol's personnel file, her suspension, and her teaching reassignment constituted disciplinary action within the meaning of Section 3020-a and thus not covered by the contract's grievance procedure.


Significantly, the decision indicates that in determining whether a letter in a personnel file constitutes a reprimand, and thus requiring a hearing under Section 3020-a of the Education Law, a Court must recognize the distinction between admonitions to a teacher which are critical of performance and are in the nature of evaluations or administrative efforts to achieve improvement of performance which do not require any formal hearing, and a formal reprimand and actions of a punitive nature, denoting disciplinary action requiring a due process hearing.


Insofar as "admonitions" are concerned, Justice Oshrin said that courts have ruled that the supervisory personnel of a school district have the right, and the duty, to make administrative evaluations as an adjunct to their responsibility to supervise the faculty of the schools, citing Holt v. Board of Education, Webutuck Central School District, 52 NY2d 625.


In contrast, factors to be considered in determining whether a particular letter should be characterized as a formal reprimand rather than an admonition include whether the letter (1) is from the teacher's immediate supervisor or from the Board of Education; or (2) is directed towards an improvement of [future] performance or is a formal reprimand for prior alleged misconduct; or (3) in the nature of a performance evaluation or a castigation for misconduct.


Also of some relevance is whether the letter uses the term "reprimand" and whether the letter uses the accusatory language of formal charges in describing the teacher's conduct. In this instance, said the Court, the Superintendent advised Ozol that she was being placed on a paid leave of absence; that she has displayed conduct unbecoming a teacher; that Section 3020-a charges may be filed; and that she may not go on school grounds or contact students at the elementary school during the period of her leave.


Finally, on February 14, 1997, the Superintendent wrote a letter described as "a formal letter of reprimand," in which Ozol was chastised for her actions and was directed to refrain from similar acts in the future.


Under the circumstances, the Court said it could only conclude that the Superintendent's actions were intended to be disciplinary and punitive in nature, thus triggering the need to file formal disciplinary charges against Ozol pursuant to Section 3020-a and requiring a disciplinary hearing to be held. The Court also observed that although the other contract provisions cited by the District provide for reviewing and challenging materials placed in an individual's personnel file, there was no provision for the removal of formal letters of reprimand from such files.


Concluding that the dispute between the parties was not covered by the Taylor Law agreement, the Court ruled that Ozol was not required to exhaust the remedies provided in the agreement prior to seeking judicial relief and rejected the District's motion to dismiss Ozol's action.


By Harvey Randall, Esq. on

Anonymous said...

I am in a quite similar situation. A few months ago, I was placed in the rubber room based on false and bogus allegation, but was sent back to the school without being charged or tried for any offense. However, the principal placed LTF and u rating based on the OSI report, which did not conclude the allegation.


About a month ago, I filed a complaint to State Division of Human Rights against DoE and the principal for their reprisal of my previous filing a charge, which is a protected activities.
Just went through the u rating hearing last week, wonder what will come out of it. Actually I challenged the DoE and principal at the u rating hearing to charge and put me on trial.

Anonymous said...

Take them to court. Good luck with the case.

Anonymous said...

Once a court rules, do all teachers have to sue individually or does that null and void that part of the contract?

Also, Randi is upset that a teacher had a victory? I feel so bad her feelings were hurt. How can she ever face her good friend, the mayor.

Anonymous said...

Randi wasn't upset. I was at the DA last week but I don't think that's what Jeff was saying. I don't see how this would null and void any part of the contract.

The DOE can still write letters. This just limits them somewhat as they should have been limited since 1981.

Each person would have to sue as far as I can see as I can't see that they would remove everyone's letters for file based on these four cases. Each case is different.

James Eterno

Anonymous said...

But it goes to the heart of due process. What can we all do now if we get letters in files? Randi being "less than enthusistic" was it because other teachers can't use this ruling or because she wants to keep it that way?

If she applauded the ruling for these teachers doesn't that have something to say about giving up this right in the first place?

Anonymous said...

She did applaud the rulings, but I think she was less than enthusiastic about its impact right now. Don't you think the DOE is going to appeal?

Further, I fully agree that we should have never ever given up the right to grieve letters in the file. This has led to open season on teachers.

James Eterno

Anonymous said...

Did the UFT financially support these teachers lawsuit? If not, it goes to prove that the '05 contract was totally unfair to teachers.

What else did Randi have to say about this case and its relevance to the fact that the contract does not offer the support?

Anonymous said...

I'm relatively sure the UFT financally supported the lawsuits.

Grieved said...

I got one of these letters and asked my district rep what I should do. She knew nothing about the court cases and said she would get back to me. I am waiting.

Anonymous said...

Court directs Unsatisfactory Rating Be Removed from Teacher's Record

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Smith v. Board of Education of the City School District of the City of New York,

118947/06

Ms Eileen Smith, a Social Studies teacher at Far Rockaway High School given unsatisfactory
rating on June 24, 2004, for the 2003-2004 school year due to an incident occurred on October 21, 2003, the first day of the implementation of a new policy at school. Smith filed an Article 78 proceeding.


One minute after the late bell had rung signaling that classes had changed, teachers were required to lock their classroom doors. In Ms. Smith’s class, the ones locked out banged on her door to compel the teacher to let them in. Ms. Smith then attempted to leave the room to get help, but two students in the classroom held the door closed.


Ms. Smith acknowledged having used inappropriate language during the chaotic time. Ms. Smith allegedly had said: "This 'fucking' language has to stop. I do not want abusive or profane talk in the class." Ms. Smith had also reportedly said: "I will not continue until the stupids stop," and then presumably in an effort to clarify added: "I mean the stupid remarks. I am not calling anyone stupid."


Ms Smith was found to have "committed acts which are prohibited by the Chancellor's Regulation A-420 Corporal Punishment and Chancellor's Regulation A-420 Verbal Abuse which constitutes unacceptable teacher deportment." The letter concluded that the finding "may lead to disciplinary action, including an Unsatisfactory rating and termination."


Ms. Smith filed a grievance. An arbitrator ruled that the letter should be deleted from Eileen Smith's file because it is unfair and inaccurate as these terms have been defined by the parties. Also Ms. Smith had received an "Unsatisfactory" rating and immediately appealed it. That hearing was held on May 31, 2006 before the Chancellor's designated Chairperson.


It was recommended that the appeal be denied and rating of "Unsatisfactory" be sustained. This Article 78 followed. The Court held that:


The Commissioner and the courts have held that a U-Rating cannot be sustained where, as here, the Chairperson improperly relies on documents which should have been excluded from consideration at the teacher's appeal. The A-420 (report prepared regarding alleged foul language) are not based on any personal observation by any administrator; instead, they are based solely on the hearsay statements written by the students. Thus, the A-420, by itself, cannot support the U-Rating.


Without the various documents, the only evidence left is the undisputed fact that Ms. Smith made the above-quoted statements in the midst of an extremely difficult time in class. The Chairperson's reluctance is revealed by her finding that the evidence "leaves many questions," by her emphasis on Ms. Smith's repeated calls for help.


Thus, while it may well be that Ms. Smith could have achieved her goal by using different language, it cannot reasonably be said that the language she used qualifies as prohibited verbal abuse as defined in the Regulations sufficient to support an Unsatisfactory Rating.


The Court reversed the denial of the appeal and directed that the Department remove the unsatisfactory rating from the teacher’s file.

Tags: Article 78, Civil Service, Employment Law, NYC DOE, appeals, teacher rating

Jeff Kaufman said...

Thanks for Smith v. BOE, an interesting case. While the summary quoted is accurate it leaves out an important point. Reading Justice Schleshinger's opinion it is abuntantly clear that she relied on the fact that the letter to the file supporting the U-rating was removed by Arbitrator Scheinman at a time when letters to the file could be grieved. The fact that no administrator witnessed the incident does not, by itself, seem to be enough to reverse the U rating.

Anonymous said...

I have a letter in my file for "shouting" at a student. I was escorting my class (along with many other teachers) upstairs. When we reached the top of the stairs, the principal swung her office door open, and asked, “Was that you?” I told her that I didn’t know what she was referring to and continued on my way. An hour later, her secretary was in my classroom (interrupting my lesson) with a file letter for me to sign. (I average about two letters a month; all as equally ludicrous.) I spoke to a lawyer and he said that there is no legal precedent for “petty behavior” by supervisors. Would this incident fall under “lack of due process”?