Friday, July 18, 2008

What Is a Chief Operating Officer Anyway?

According to a published article, today, in the New York Sun, Elizabeth Green reports that Michael Mulgrew has been named "in a memo to executive officers" to the post of "chief operating officer." While the article confuses special education with alternative education it is unclear what this appointment means since there is no post of "chief operating officer" in our constitution. (We have no by-laws so we didn't have to check there).

Under the common definition of COO the position as defined in Wikipedia is "A chief operating officer or chief operations officer (COO) is a corporate officer responsible for managing the day-to-day activities of the corporation. The COO is one of the highest ranking members of an organization, monitoring the daily operations of the company and reporting to the chief executive officer and/or board of directors. "

So what will Mulgrew do?

As mentioned in Green's article Weingarten, in her appointment, cited Mulgrew's handling of the break-up of District 79 as evidence of his leadership qualities. If this is the evidence we are in trouble.

Mulgrew watched as the DOE destroyed the Alternative High School district piece by piece and then finally, last year, ended by creating hundreds of ATRs and teachers required to interview for their positions. The Alternative High School District had a rich of history of providing education to populations that were not properly served by mainstream schools. The District expanded over the years and offered diplomas to under credited students, adults, incarcerated and hospitalized students in a place where best practices could be exchanged and teachers could learn from each other. Under Klein and his appointment of Cami Anderson, District 79 had to go.

Mulgrew, despite contractual requirements, did nothing to enforce the provisions which would have made this dismantling done with teacher input if it was to be dismantled at all. He watched as the District burned then made an agreement which basically gave the DOE everything it wanted.

Mulgrew can't get elected president on his own. If he stands for election for president in 2010 he'd better watch out.

How long can Randi be the head of both the AFT and UFT?

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.

Sunday, July 13, 2008


Back in 2005 forty-five teachers filed a complaint with the EEOC that the DOE had discriminated against them because they were over 40 years old. The Daily News reported the filing and Randi Weingarten announced at the time that "88% of teachers brought up on disciplinary charges in the last three years were over 40."

A lawsuit involving 12 of the teachers, filed in 2006, is finally coming to trial. While some of the claims have been dismissed on technical grounds the 12 teachers have won significant gains.

In Shapiro v. NYC DOE, 06 Civ. 1836, 2008 U.S. Dist. Lexis 46327, Judge Jed Rakoff found that during the 2004-2005 school year, five teachers were transferred from Graphic Communication Arts and reassigned to another school. All were over age forty. In June 2005, sixteen teachers at GCA were given unsatisfactory ratings ("U ratings") for the year. Of the 16, thirteen were over the age of 40. A year later, in June 2006, eight teachers received U ratings, only one of whom was under age forty.

One of the teachers given a U rating in 2005 was plaintiff Diana Friedline, who was 53 years old at the time. Friedline has a New York State teaching license in commercial art and a New York City teaching license in cold type composition. She had been a full time teacher since 1989. In the Spring of 2005, Friedline applied for a curriculum writing position at GCA. The principal told Friedline that Friedline was not eligible for the position because she was certified with the wrong license. Friedline filed a grievance objecting to her non-selection for the position, which was denied. Friedline also applied to have a substitute vocational assistant student teacher placed in her classroom; but this application was also denied. When Friedline complained to the principal that these actions were prompted by age discrimination, he told her that he preferred to hire younger candidates. In June 2005, Friedline was giving a U rating for the year.

One of the teachers given a U rating in both years was plaintiff Josefina Cruz, who was 58 years old in June 2005. She has been a teacher of Spanish at GCA since 2003. In the Spring of 2005, she received 24 classroom visits in a two-month period, which she testified was well above the norm. Her schedule was changed seven times in two weeks. She was then given a U rating for the year. In January, 2006, Cruz failed to administer the oral portion of the Spanish regents exam because she had not been given exam materials, which were kept in a vault to which she had no access. She was then given a U rating for the 2005 year, served with disciplinary charges, and reassigned to the Manhattan rubber room.

Another teacher who was given a U rating in 2005 was plaintiff Anthony Ferraro, who was then 72 years old. He began teaching at GCA in 1985. In May, 2003, the principal requested that teachers planning to retire contact him to let him know of their plans. Ferraro contacted the principal but then changed his mind and decided not to retire. When Ferraro told the principal of his change in plans, the principal asked Ferraro's age and then expressed "extreme dismay" that Ferraro was planning to say on at the school In December, 2004, Assistant Principal Johnson repeatedly chided Ferraro for continuing to work and reminded Ferraro that Ferraro could be doing other things with his life, such as spending time with his wife and traveling. Similarly, Assistant Principal Seyfried told Ferrarro that he did not understand why Ferraro was still working and that Ferraro should have retired long ago. In June, 2003, the principal told Ferraro that Ferraro was doing a "deplorable job" coordinating the "LEARN" program, a work-study program through which Ferraro coordinated employment opportunities for GCA students in their chosen fields of study. The principal also told Ferraro that his teaching style was "outmoded" and "outdated."
In September, 2003, Ferraro was removed from his position as LEARN coordinator, but a year later he was reassigned to the position but given less time to perform the necessary work. In January 2005, Ferraro was removed from the position once again and replaced by a younger teacher who was not properly licensed to act as coordinator. Also, in September 2004, Ferraro, a licensed peer mentor, applied to serve as a mentor to new teachers, but the position was given to someone 20 years his junior who was not a certified mentor. Finally, on June 13, 2005, the principal told Ferraro his teaching style was "antiquated" and then days later, Ferraro received a U rating for the year.

Another plaintiff is Diana Hrisinko, who is currently 64 years old. She began teaching at GCA in 2002. Beginning in the fall of 2004, Resnick would come into her classroom unannounced, sometimes as often as five times per week. On February 1, 2005, Hrisinko was transferred from GCA and thereafter worked briefly as a substitute teacher before assuming a position at another school. She filed a grievance claiming that her transfer was illegal because younger teachers with less seniority remained in their positions at GCA.

Plaintiff Elaine Jackson is currently 69 years old and was the Assistant Principal for the English Department at GCA for one semester in the fall of 2003. During her one semester as Assistant Principal, Jackson increased the passing ratio of the English Regents exam. At no time did the principal tell her that he was dissatisfied with her performance. Nonetheless, she was fired in January 2005 and replaced with a younger male who lacked relevant experience for the position.

Plaintiff Midge Maroni, currently 61 years old, began teaching at GCA in 2002. She testified that in early 2003 she was "subjected to ageist comments and unjust criticism" as "Resnick [the principal] repeatedly made references to his desire to have a staff of young teachers." Resnick also said things such as "you don't take your profession seriously, you have old ideas." Maroni was subjected to frequent short, unannounced visits to her classroom from Assistant Principal Brand. During 2005, while Maroni was acting as advisor for the school newspaper, she complained to Resnick that her students lacked access to computers to produce the paper; the next year, a younger teacher received a computer to use for this purpose. In June, 2005, Maroni received a U rating for the year. The U was later dismissed in an arbitration proceeding.

Plaintiff Geraldine F. Whittington, currently 61 years old, began teaching at GCA in 1986. She has a state teaching license in Graphic Arts. Whittington testified that, beginning in 2004, Resnick criticized her for taking sick time to which she was entitled, threatened her with a U rating and treated her with hostility, refusing to address her or make eye contact. When Resnick visited her classroom, he glared at her in an obtrusive and hostile manner. In the spring of 2004, the computers and scanners in Whittington's classroom broke. Whittington heard that new computer equipment was given to younger teachers rather than to her (despite her seniority). Whittington retired effective July 1, 2004.

Plaintiff Fitzroy Kington, currently 58 years old, began teaching at GCA in 1992. During 2004-2005, Resnick repeatedly stood outside of Kington's classroom and shook his head disapprovingly. Assistant Principal Guttman told Kington that Resnick wanted younger, more energetic teachers on staff, and asked when Kington was leaving (even though Kington had not indicated that he had any plan to leave the school). During a social studies exhibition, Kington heard Resnick refer to "old, burnt out, tired teachers" who gave children detention and told them they were no good. In May 2005, Kington applied to transfer to another school.

Plaintiff Gloria Chavez, currently 59 years old, began teaching at GCA in 2002. During the 2004-2005 school year, Resnick began a pattern of yelling at Chavez and threatening disciplinary action against her. He also told her that she looked "tired," should start drinking caffeinated coffee and should modernize her teaching style. In 2006, Chavez did not administer the oral portion of the Spanish regents exam because she was never given the required materials by Assistant Principal Silverman Chavez was then served with disciplinary charges, given a U rating, and reassigned to the Manhattan Regional Operation Center.

Plaintiff Erica Weingast, currently 60 years old, became GCA's bilingual coordinator in 2001. In 2003-2004, Weingast was removed from an after-school assignment teaching English, and the position was given to a teacher who was 30 years younger than Weingast. Between 2003 and 2005, Weingast was "subjected to a campaign of harassment which entailed unwarranted criticisms of her management of [the] bi-lingual studies program." In June, 2004, Resnick began to scream at her in public and humiliate her at school. In June 2005, defendants told her to expect a U rating or resign; Weingast resigned.

Plaintiff Ismael Diaz, currently 64 years old, began teaching at GCA in 2003. During the fall of 2004, Silverman was "constantly" coming into Diaz's classroom, commenting on trivial matters and asking Diaz to attend to a bulletin board in the hallway. She also checked his lessons plans more than once a week. In May 2004, Resnick and Silverman observed one of Diaz's lessons and rated it "unsatisfactory". Resnick refused to speak to Diaz when Diaz said "Good Morning" in the halls. Diaz was given a U rating at the end of the 2004-2005 school year and decided to retire.

In order to prove an Age Discrimination in Employment Act case the teachers are required to show that they suffered an "adverse employment action." This has been defined as suffering a materially adverse change in the terms of employment. A teacher is not required to show a change in income or reduction of benefits. Thus teachers reassigned to the rubber room or receiving a "U" rating can show adverse employment actions, something the City has fought hard to prevent.

Judge Rakoff found that both "U" ratings and rubber room transfers can, if shown in the context of an Age Discrimination claim, be grounds for recovery.

The plaintiffs will have their day in Court to prove their claims before a jury in Manhattan Federal Court.

Thursday, July 03, 2008


Cleverly waiting until after teachers left for their summer vacations Randi and Joel signed an agreement about several issues concerning the "rubber room." ICE has lobbied for years to provide due process to teachers and staff languishing in the "rubber room" and as the numbers swelled several inept measures were taken to answer the "problem."

First an alleged survey was undertaken. According to Randi only a few teachers assigned to the rubber room wanted their cases expedited. Nevertheless she appointed a three member team to "investigate" rubber room issues. The three member team was so effective it ended up alienating many of the rubber roomers and was part of the motivation for a class action lawsuit against the Union was commenced by the very teachers this fabulous trio was assigned to help.

The agreement reproduced below is not really an agreement. It is rather a statement of hopes and unenforceable goals and filled with precatory language. The Union is given almost no enforcement power if the DOE decides not follow the "agreement." Let's take the "agreement" point by point with potential problems outlined in red.

1. The DOE intends to provide the "general grounds" for the reassignment. The current practice is merely reassigning a teacher to the rubber room. Now, presumably, in the reassignment letter there will also be a "general ground"

Problem: Nowhere is "general grounds" defined. Also, SCI investigations (a large number of rubber room removals) are specifically exempt from disclosure. Also it is not clear whether the failure to provide this notice can be challenged in any forum.

2. Specific time timetables are provided in the "agreement." OSI has 90 days, criminal cases shall be transferred to the Administrative Trials Unit in 30 days and the DOE has 40 days to draft 3020-a charges.

Problem: While the DOE "will diligently attempt to comply with these timeframes" the agreement further states that this provision "shall not be enforceable through either the grievance processes set forth in the relevant collective bargaining agreements or any other legal mechanism"

3. Teachers shall be assigned to rubber rooms in their borough wherever possible.

Problem: The provision is subject to Chancellor's Regulation C-770 which leaves the DOE with the discretion which rubber room a teacher is assigned.

4. The DOE agrees to maintain rubber rooms as safe working environments.

Problem: The Public Safety Employee Safety and Health Act already provides this protection.

5. The number of arbitrators is increased with a special group of arbitrators assigned to incompetence hearings. A provision to provide for discovery where information is exchanged prior to a hearing.

Problem: The Union has long maintained that the reason that there are a shortage of arbitrators (and thus lengthy delays in the hearings) was because the DOE allegedly would only agree to appoint arbitrators they felt were anti-teacher. Increasing the number of arbitrators either means that this was untrue or they don't care who is appointed since it is doubtful that the DOE will accept pro-teacher arbitrators.

6. The last provision deals with an increase in the number of arbitration days that are allowed under the contract. Currently there are only 140 days permitted. Given the DOE and UFT's decimation of the grievance procedure it is clear that additional days were needed. Now the number has increased to 175.

Problem: The limitation of arbitration days, a dirty little secret, has caused delays and deals to be made concerning contract violations. While this increase is welcome given that class size and reorganization grievances count toward this yearly limit it severely delays important issues. Without the ability to obtain relief at lower levels of the grievance procedure arbitrations have been the only mechanisms to obtain contractual justice. Borough offices know all too well about the limits and unless a grievant is politically connected will generally refuse to go to arbitration. If one makes it through it will be delayed while "more important" grievances are heard.

So, what did we get from this "agreement?" Basically the UFT and DOE get to issue a press release that they are making efforts to lessen backlogs and empty the rubber rooms. In reality nothing will change unless the DOE wants to change. Doesn't sound like much of a labor-management agreement!

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