Ever since we lost the right to grieve letters in the file the UFT leadership has been quick to note that there are "so many ways" to fight a LIF "we haven't lost anything." As we know this is totally false. The fact is that most LIFs remain in our file adding to balance of workplace power being ceded to the administration.
Over the last two years, however, a little publicized method of removing some of these letters has been providing some teachers ways to fight LIFs. The types of LIFs involved are those that make findings against teachers that are disciplinary in nature. LIFs that comment on performance cannot be attacked in this way. What is disciplinary and what is mere comment is a line that has not been drawn, yet. The recent case of Rachel Cohn v. BOE, New York Supreme Court, Index No. 108965/2008 gives us a rare look into how this process works.
Justice Edmead, in her decision, found that Rachel Cohn "is currently employed by respondent DOE as a tenured Kindergarten teacher at P.S. 7Q in Queens, New York. On or about September 27, 2007, petitioner and Principal Sara Tucci ("Principal Tucci") engaged in a discussion concerning the duties and responsibilities of paraprofessionals, During the course of this discussion, Principal Tucci allegedly raised her voice at petitioner. Thereafter, petitioner allegedly uttered words to the effect that Principal Tucci should watch her "Latin temper.
"On or about November 16, 2007, Principal Tucci filed a complaint with DOE's Office of Equal Opportunity ("OEO"), alleging discrimination based on her ethnicity, Thereafter, the OEO conducted an investigation by interviewing petitioner, who was accompanied by her Union Representative Rosemary Parker, Principal Tucci, and two witnesses to the incident: the principal's secretary Angela Ehrefrnan and an assistant principal Maria Farazdel.
"On or about January 28, 2008, after completing its investigation, the OEO substantiated Principal Tucci's allegations, finding that petitioner's comment was inappropriate and may constitute harassment based on ethnicity in violation of Chancellor's Regulation A-830, By letter dated January 29, 2008, the OEO advised Principal Tucci that as principal, she was responsible for any corrective action to he taken as a result of the complaint.
Principal Tucci then met with petitioner and her UFT representative on February 27, 2008 to discuss the OEO's report and its decision to substantiate the allegations made in Principal Tucci's complaint of discrimination, Principal Tucci then prepared a letter, dated February 29, 2008 (the "letter"), documenting the February 27, 2008 meeting, the OEO findings, and Principal Tucci's conclusions, and placed the letter in petitioner's personnel file,"
Tucci's letter recited the chronology and found that Ms. Cohn "behaved in a discriminatory and unprofessional manner. You violated the Chancellor's regulations A-830."
Cohn argued that by placing a letter which was in essence the finding of wrongdoing without a due process hearing was violative of 3020-a since she had tenure.
The DOE argued that the UFT, by amending the contract to no longer permit grievance for LIFs had in effect, provided an alternate disciplinary procedure under 3020a and thus Ms. Cohn had no right to seek a due process hearing. This, they claim, was supported by the history of Article 21A of our contract which provided for over 40 years the right to grieve LIFs on the basis of whether the letter was inaccurate or unfair and remove the letters if such a finding was sustained.
Justice Edmead cited several cases going back to 1981 as the basis of her decision to remove the Ms. Cohn's letter. Under prior precedent the factors to determine whether letters will be considered disciplinary and thus subject to a due process hearing include "(1) whether the letter is from the teacher's immediate supervisor or from the board of education; (2) whether the letter is directed towards an improvement in performance or is a formal reprimand for prior misconduct; (3) whether the letter is in the nature of a performance evaluation or a castigation for misconduct; and (4) the severity of the misconduct and of the admonition or reprimand."
In ordering the removal of the letter Justice Edmead found "The letter herein does not offer constructive criticism, does not address a minor breach of conduct or protocol; and does not offer a suggestion for improvement. Instead, the letter conveys a finding and conclusion by the Principal Tucci that petitioner violated a Chancellor's Regulation by engaging in discriminatory acts. Thus, the letter herein cannot be categorized as an administrative evaluation. The letter rises to the level of a disciplinary reprimand. And, such a reprimand may not be issued to a teacher without a finding of misconduct pursuant to Education Law § 3020-a."
She also found that the UFT had not waived 3020-a.
Our members must be informed of this remedy. This is least our Union must do since they gave away this valuable right.
Click here for a copy of Justice Edmead's decision. (The DOE has moved to reargue the decision on March 27th. We will keep you informed of further developments).
5 comments:
Interesting, especially in light of today's NY Times editorial regarding Supreme Court decision that union workers cannot sue for age discrimination.
In that case, the Fed. Court of Appeals had held that collective bargaining agreements CANNOT waive workers' rights to sue under federal antidiscrimination laws. The Supreme Court just reversed that.
The dissenters on the court (our side) argued that the rights that Congress grants cannot be waived in a a collective-bargaining contract. "Union contracts represent group rights" and that "laws like Age Discrim. in Employment Act give individuals a right to sue for discrimination — no matter what deal their union decides to strike for the workers as a group."
Jeff - I know this age discrimination case is talking about a Federal law and not workplace laws in general, but will courts go in whichever way they can, lawsuit by lawsuit, to stomp on workers' rights?
LIF will continue to be placed in teachers' file regardless of the judge's ruling, just think about how much effort and money you have to spend to remove a piece of paper, principal can and will place a new LIF the day after the ruling. The number of teachers who will take Department to court for LIF will be far less than one percent!
You might be right about the numbers but just think about how a LIF that could be the cause of a teacher's termination could be removed. Sure the principal can pile the LIFs up but without a strong basis to terminate the letters will go in the garbage. This give us some (not much) hope.
I am one of the few who are curretnly sueing DOE in federal court. I cannot emphasize enough that it is a major undertaking, once you embark on this route, and you should better be prepared to lose and leave if court actions do not go your way.
Once you start court action, you are done on DOE's book, they will wait it out and come to kill you. It is an organization of revenge and control as we all know it because they can not afford to lose the sense of intimidation and control for a single day as principals are doing illegal activities every day.
Just hope you know what you get into when matters are taken to court.
Good luck 10:28!
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