Thursday, July 17, 2008

Teacher Loses Right to Reinstatement For Failure To Follow Arbitrator's Conditions

Tenured teacher Bruce Harris lost his bid for reinstatement when he failed to complete sexual harassment training as directed by an arbitrator after charges had been sustained against him which were based upon inappropriate comments made to and about female teachers. Justice Sheila Abdus-Salaam in Matter of Bruce Harris v. Department of Education, Index No. 103653/08, New York County, wrote in a harshly worded opinion filed today that Harris had effectively waived his right to reinstatement when he failed to enroll in the mandated training.

After a 3020-a hearing decision reached on January 10, 2007 Harris was given a six month suspension and given permission, by the arbitrator, to be reinstated to his tenured position, if he completed sexual harassment training. On November 13, 2007 the DOE terminated Harris for his failure to complete the training.

In his petition Harris argued that the arbitrator's decision did not provide a date by which the training had to be started or completed and the DOE's decision to terminate him was arbitrary since the decision was "vague or indefinite."

Justice Abdus-Salaam found this unconvincing and held that "to the extent that petitioner is arguing that the award was vague or indefinite, petitoner could have made an applicaiton pursuant to CPLR 7511(b)(iii) to vacate or midify the award on the ground that it was imperfectly executed but he did not do so."

Mr. Harris was represented by NYSUT attorneys.





6 comments:

Anonymous said...

Dear Jeff,

Thanks for posting this. Background information about this case would have made the post even more helpful.

Perhaps, this case can form the basis for hypothetically discussions in various venues as a basis for getting NYC teachers to think about, and more clearly understand what is going on.

It's time to get a least a little bit beyond the "we're all getting railroaded" mindset. Although it seems clear that due process is being ignored whenever possible. Typical coming from a administration with 19th century capitalist view of labor.

It seems that Judge Sheila Abdus-Salaam may have willingly or unwittingly joined NYC DoE's corruption of the 3020-a proceedings. Again, more information is needed.

Here're some questions.

Is it correct to assume that the teacher was required to return to the Rubber Room after his six month suspension?

Should the teacher have been clearly be told what was expected of him? Forget about what this judged decided, let's get at what would be "right."

Shouldn't someone have followed up with him before the DoE moved for dismissal? Did the judge take this into consideration?

Is it correct to assume that he was waiting for further instructions to come from the DoE, or his attorney or someone in some position of authority?For example, did the teacher know that he was supposed to find sexual harassment training on his own, or was it from a recommended list of trainer provided by the DoE?

Was he expected to go for the training while on suspension, or after the suspension? During the workday or on his own time?

It probably would have been helpful he if could have shown that he was proactive, but no mention is made of this in your posting.

I bet that the teacher was actually left in the typical information vacuum that most people who are sent to the Rubber Room dwell in.

Also, was the teacher experiencing the array of emotions including shock, numbness, anger, and disbelief, etc. that it affected his ability to think clearly?

Perhaps he should consider appealing the decision (and change attorneys.)

Since he was represented by a NYSUT attorney suing the NYSUT attorney, and the UFT. Perhaps, should be carefully considered in at least a consultation with a an outside attorney.

I'd like to learn how others approach this.

Anonymous said...

In other instances, once the "impartial" arbitrator has ruled, NYSUT attorneys declare themselves quit of you, slam shut the book, and refuse to represent you in an appeal from a punishing and biased decision.

This decision is often injurious to one's health and life, and the health and life of those dependent upon and close to you.

Two questions about Bruce Harris' plight:

1. Did NYSUT represent him in his appeal, and if so, why did they champion his cause and ignore hundreds of other teachers?

2. Was this an Article 75 or 78 proceeding?

Thanks,

Sari

Anonymous said...

Dear Jeff,
I appreciate you posting relevant cases. Could you please post this particular case as you did the age discrimination suit.

thanks

Frunabulax

Jeff Kaufman said...

Yes, NYSUT represented Mr. Harris in his appeal to court.

Normally an appeal from an arbitration decision is brought as an Article 75 (through CPLR 7511). This case was brought by Article 78 because it was an appeal of his termination, not an appeal of the arbitrators decision, per se.

In any case someone dropped the ball for almost 11 months and the judge was not very sympathetic.

Jeff Kaufman said...

To anonymous 3:39. I agree that more background would be helpful but unfortunately I don't have it.

Let me try to answer your questions..

Is it correct to assume that the teacher was required to return to the Rubber Room after his six month suspension?
No I don't believe he could return because he did not get the training he was required to get.

Should the teacher have been clearly be told what was expected of him? Forget about what this judged decided, let's get at what would be "right."
I think that is a proper inference to be drawn from this decision.

Shouldn't someone have followed up with him before the DoE moved for dismissal? Did the judge take this into consideration?
Absolutely. Who's responsible? Is the member responsible to implement the decision. I have no idea as to what went on between Harris and his attorneys but it is clear someone dropped the ball and it didn't matter to the judge.

Is it correct to assume that he was waiting for further instructions to come from the DoE, or his attorney or someone in some position of authority?For example, did the teacher know that he was supposed to find sexual harassment training on his own, or was it from a recommended list of trainer provided by the DoE?
Great question. I have no idea.

Was he expected to go for the training while on suspension, or after the suspension? During the workday or on his own time?
According the judge's decision it was obvious (at least to her) that he should have been getting the training during his suspension.

Thanks for some great questions.

Anon 3:39 said...

A couple of follow up questions & comments.

First. Thanks again to Jeff, and to Sari & Frunabulax.

I hope that fellow teachers take Sari's comments seriously. The emotional impact of allegations, charges, etc. has not yet been well conveyed in writing. Many times when the writer in actually in pain, there is a tone that probably produces defensiveness and a sense of "This can't possibly happen to me" in the average reader. But most of the sympathetic not to mention unsympathetic political portrayals, and the analytical portrayals fail to take the emotional impact and resonances into account; so the reader may not "feel" the very real gut wrenching suffering that frequently goes on one way or another.

I second Frunabulax' request that the case be posted or made available somehow.

Jeff, your reply was unexpected:

> > Is it correct to assume that the teacher was required to return to the Rubber Room after his six month suspension?
>
> No I don't believe he could return because he did not get the training he was required to get.

So, after the suspension, it may have been the case that the teacher did not even attempt to return to work. If this is true, then what followed takes on a different perspective.

Again, more information would help all NYC teachers understand what kinds of things are going on. Still, it would be helpful to understand what would have constituted "due process" and "proper procedure" in this kind of situation, hypothetically speaking.

BTW -- Can folks post listings of web sites that deal with Rubber Room issues besides those linked to on this blog's main page.

- Anon 3:39