Monday, October 18, 2010

Impact of Bryant Decision Yet to Be Determined

On Friday the New York Post reported that Charles Bryant, a probationary teacher with over 20 years as a paraprofessional, was reinstated to his teaching position after the DOE terminated him after an excessive corporal punishment allegation was lodged against him.

While the Post got the outcome right the impact and reason for the decision was not reported. Some of the important facts were also omitted.

Readers of this blog know that probationers can be terminated for any or no reason and Union lawyers will generally refuse to commence litigation in support of a terminated probationer and universally advise them to "forget about it" and get on with their lives. The Bryant case illustrates an important window for probationers…a window that should have been explored by our Union to protect impermissible probationary terminations.

Charles Bryant's excessive corporal punishment case was totally mismanaged by the Office of Special Investigations. The incident stemmed from Bryant's request to Cherry (a 16 year old and over 6 feet tall student) to go to the principal's office. A scuffle ensued after which the police were called. Bryant was reported by the police as the victim and Cherry the perpetrator.

Three student witnesses told OSI conflicting stories several days after the incident and Cherry told investigators that he was bleeding as a result of being hit by Bryant. The police report and the principal's vague memory did not support the student's account of the incident. No injury was ever reported.

Bryant's OSI interview was antagonistic and started with the investigator telling him, "I do not believe you."

Justice Emily Goodman of the New York County Supreme Court ordered the OSI files for an in camera or Court-only viewing review. The DOE refused. Additionally Goodman noted that Cherry was being held on Rikers Island on robbery charges.

Goodman noted the flawed investigation and found that "a probationary employee may be discharged without a hearing and without a statement of reasons so long as the act is done in good faith and not for constitutionally impermissible purposes."

Given the botched and biased investigation Goodman ordered Bryant back to work and ordered a new OSI investigation.

A victory for Bryant? Hopefully. However, the decision demonstrates that probationary terminations are not hopeless and our Union must take note of it and represent these Union members to the extent they deserve. (Bryant was represented by private counsel).

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