Wednesday, August 13, 2008

Rubber Room Teachers’ Lawsuit Demonstrates How Legal System Can Be a “Trap for the Unwary”

Back in January a group of rubber room teachers who called themselves “Teachers4Action” filed an action in Federal District Court against the City and the UFT (the UFT was not originally named but was later included as a necessary party which resulted in the loss of union representation for the charged teachers) in an effort to shut the rubber rooms down. Erin Einhorn of the Daily News reported that “The suit alleges that the rooms are part of a "scheme" to discriminate against experienced teachers and "reduce salaries by forcing teachers to quit or be fired.” New York Daily News, (Final Racing Edition) January 22, 2008, p12.

During this lawsuit it was suggested by the Federal Magistrate that Teachers4Action commence a proceeding in New York State court if they wanted to stop the proceedings since Federal Court, he believed, did not have jurisdiction. Teachers4Action and at least one teacher by herself commenced an Article 78 proceeding against sitting DOE arbitrators in an effort to stop the arbitrators from hearing disciplinary cases.

Teachers4Action alleged a long list of abuses by these arbitrators including conflicts of interest, failure to follow arbitration procedures and other disqualifying matters that they claimed required their recusal from hearing their cases. They specifically alleged that “Perhaps the most egregious example of Bias that demonstrates that the relief sought is meritorious and warranted is the fact that the lead named Respondent Deborah M. Gaincs is affiliated with and/or an employee of Petitioners employer.” Additionally they alleged that “Other examples of the need to enjoin Respondent Arbitrators:

a. Respondent Gaines works in the Mayor’s Office of Labor Relations and is a permanent member of the Panel that is sitting in judgment of matters related to Petitioners, Respondents communicate with one another and Respondent Gaines’ presence, decisions and advice influences the entire Respondent Panel and prejudices Petitioners rights;

b. On April 15, 2008, Arbitrator Javitz at a hearing of Petitioner’s member Paul Santucci confirmed that he was taking directions from the New York State Education Department about whether or not he should stay the 3020-a hearings until the issue of NYSUT withdrawal and providing alternate counsel was resolved;”

On April 29th Justice Sheila Abdus-Salaam denied the request to stop arbitration proceedings but permitted the case to go forward and ordered that the group replead their case. The group started another proceeding and the proceeding against Justice Abdus-Salaam was dismissed for failure to amend their pleadings.

The second proceeding was heard by Justice Kibbie Payne. The DOE was granted permission to intervene and moved to dismiss the proceeding alleging that Article 78 is not the proper mechanism to provide the relief that Teachers4Action was seeking.

What is an Article 78?

Without getting too technical here an Article 78 is a proceeding wherein someone seeks to review or compel a person (usually a governmental body or official) to do something. It has a 4 month statute of limitations and is brought by a petition seeking that the Court order a public official or body to perform an act. There are many reasons why Article 78 proceedings are brought. In the complicated field of education probationary dismissals, improper pay or even retirement issues are often brought by Article 78.


One area where Article 78 proceeding are not permitted is in the area 3020-a proceedings. When this statute was written the legislature saw the 3020-a proceeding as an arbitration proceeding and not a decision by the Chancellor. The review provisions specifically state that any appeal must be brought by Article 75 within 10 days of the arbitration decision. The Articles differ in the standards of review but in practice there is little difference between them.
Now, back to the story…

On August 10 Justice Payne dismissed the Teachers4Action case because “… the court finds that the instant petition has been improperly commenced pursuant to Article 78. Petitioner does not seek to overturn the final determination of a public agency, but rather seeks to bar certain arbitrators from presiding over hearings held pursuant to the teachers’ collective bargaining agreement. Further, Section 3020-a of the Education Law provides that in order to appeal a disciplinary hearing the employee . . . may make an application to the New York state supreme court to vacate or modify the decision of the hearing officer pursuant to section seven thousand five hundred eleven of the civil practice law and rules. The court‘s review shall be 1imited to the grounds set forth in such section (emphasis supplied)”

Clearly Justice Payne could have easily converted the proceeding to the proper form under New York Court rules. It is unclear why he chose not to.

Teachers4Action is to be congratulated for having the courage to bring these proceedings. They have clearly been instrumental in maintaining the pressure on the both the UFT and the DOE to help stop the abuse that rubber room teachers are subjected to every day.

While kudos go out to Elizabeth Green of the New York Sun for covering this story it is important to note that Justice Payne did not throw out the case because “there was no evidence that the arbitrators were biased against the teachers.”

While the judge made a side comment about the lack of evidence he never heard any evidence since the case was dismissed because Teachers4Action filed the wrong paper.

We hope they will continue to fight.


Anonymous said...

Can these teachers apeal this decision? Can they opt for an Article 78 claiming the DOE was arbitrary and capricious in their finding? Can they bring charges against the UFT at PERB for failing to represent them??

Anonymous said...

Jeff, you have done an excellent job in providing an analysis of this recent development of the case the DOE.

It is appalling how Judge Payne handled the case! Given the baseless comments on the evidence It seems quite clear that the ruling was politically motivated.

However, this will just strengthen the Federal case.

I agree with Jeff that Teachers4Action is to be congratulated for having the courage to bring these proceedings.

I hope that they maintain the pressure on the both the UFT and the DOE to not only stop the abuses that rubber room teachers are subjected to every day, but also to stop the dysfunctional and mean spirited practices that put innocent, independent thinking and feeling teachers there in the first place.

Yes, T4A we hope you will continue to fight!

Anonymous said...

Please note that school safety agents will now be under review a civilian review panel. How long before trumped up charges against innocent SSA'S? They are represented by the UFT. Next victums of the rubber room??

Anonymous said...

Only certain SSA supervisors are UFT.

Anonymous said...

Congratulations to Teachers 4 Action. Don't give up because the case was filed in the wrong forum. Find the right forum and go ahead.

Anonymous said...

What is an Article 69?

Anonymous said...


Let Us Now Praise Famous Men

Many congratulations to you Jeff Kaufman for a superlative job covering this story and explaining how this Rubber Room case was/is impacted by so many legal technicalities and statutes.

Clearly momentum is building in the battle to secure Justice for the thousands of NYC teachers who must labor on a daily basis, ten months per year in a clearly hostile work environment, at the brutal mercy of the whims of the DOE's countless stooges, lackeys, lapdogs, bullies and clinically certifiable Sadists.

The DOE in this case has won a temporary and fleeting battle but in the end, the people who control the 19 billion dollar conglomerate euphimistically known as the NYC Dept/Board of Education will surely one day, lose the war and be consigned to the scrap heap of History where they so deservedly belong.

Everyone should check out "WHITE CHALK CRIME:The REAL Reason Schools Fail" by Karen Horwitz, at, a shattering expose of how Education in America has been turned into a veritable business in which corruption is rampant and anyone who gets in the way of the thieves and the grifters is viciously destroyed faster than a speeding bullet.

But truth, even when crushed into the ground, has a way of rising again. Let no teacher give up hope. Those brave souls who are fighting these cases on the front lines, in the trenches, will be seen in the future as the true educations heros they are.

The road to victory and Justice is always paved with the blood of those who stood up when most were hiding under rocks and playing it safe.

May the gods bless these brave pioneer pathbreakers for their selfless courage. Their amazing heroism in the face of almost insurmountable odds, is beyond praise.

I feel honored to know many of these fine individuals, band of brothers (and sisters) that they are. Bravo and a thousand more bravos to them all.

David Pakter

Anonymous said...


These Teachers4Action walk on the moon or something?

Ty Johnson; BBA, MS, MPIA, J.D., D.P.M., and personally recognized as a good samaritan by Judge Judy in 1998.

Anonymous said...

Is it common knowledge that this is the wrong form to use?

Anonymous said...

Dear Prof Kaufman:

Bravo for posting yet another vitally important story. Would it be possible to actually post the official transcripts and further details of this case on this site?
As always, UP THE REBELS!