The appeal of U-ratings, discontinuances and grievances have been unfair for a very long time, in my experience.

In 2004 a math teacher at John Adams High School in Queens, Edmond Farrell, contacted me to help him at his Office of Appeals and Reviews appeal where he was fighting to overturn his "U" (unsatisfactory) rating on his APPR (Annual Professional Performance Review). I wrote a letter to the NYC Education Department, the Mayor, and others:



                                                                                    December 29, 2004

Department of Education Chancellor Joel I. Klein
Deputy Chancellor Carmen Fariña
Dr. Elizabeth Arons
Ms. Virginia Caputo
Mr. Greg Brooks
Ms. Marianne Alvarez



            We believe that by exposing incidences of due process violations by the New York City Department of Education here in New York City, in the media, and on our Website parentadvocates.org,we can spur change.  When we heard that Mr. Farrell had received a year-end rating of “unsatisfactory” (“U-rating”) from Mrs. Grace Zwillenberg, the new principal at John Adams High School, after never receiving any U-ratings before at any school at which he has taught, we began to research due process proceedings, the writing of observation reports, and the process of teacher evaluation.  I was given several of Mr. Farrell’s observation reports and met with him several days before his hearing to discuss all the events which had led up to the U-rating.  He told me that he believed that the U-rating he has received is arbitrary, capricious, irrational, written in bad faith, and, therefore, totally unjustified and unfair.  After reading the memoranda and documents listed below, and after meeting with Mr. Farrell and talking with teachers who know him, I agreed.  In all of the material, I found no legitimate “fact” proving incompetence that would warrant the threatening approach that Mrs. Zwillenberg and new Math/Business Assistant Principal Mr. Bahaa Aboughaida seem to be taking.  Therefore, I agreed to appear at Mr. Farrell’s November 8, 2004 hearing at the Office of Appeals and Reviews (“OAR”) as a witness to support his appeal of the U-rating on the basis of the violations of due process.  


1)  RATING PEDAGOGICAL STAFF MEMBERS  

2)  THE APPEAL PROCESS (updated by Editor)

3)  PRINCIPAL PERFORMANCE REVIEW (updated - Editor)

John Adams High School

            When Mr. Farrell and his UFT adviser, Ms. Patricia Ritter, arrived, Mr. Scott and I prepared to go into the hearing room when the Hearing Officer, Ms. Marianne Alvarez, told us she would not allow either Mr. Scott or me into the room.  We were barred from the hearing.  I asked why, and was told that she knew nothing about any witnesses, and I simply could not be a witness.  The hearing began behind closed doors while Mr. Scott and I sat in the hallway.

            As none of the documents I had read and brought with me mentioned barring a witness from a hearing, I decided to speak with Ms. Caputo, who is the Director of OAR.  I walked into her office, and placed my stack of papers on the table near the door.  Ms. Caputo asked me what I wanted, and I politely said that I needed to attend the hearing of Mr. Edmond Farrell and was there as a witness.  Ms. Caputo walked over to me, saying over and over again that I was barred from the hearing, that she would not allow me to enter the hearing room, and that she simply would not allow it.  She grabbed the first sheet of paper from the pile in front of me, which happened to be Mr. Irizarry’s memo, and said that Mr. Irizarry agreed that there could be no witnesses at a hearing who did not work for the Department of Education.  Period!  I tried to state that Mr. Irizarry’s memo did not say anything at all about barring witnesses from a hearing, that Mr. Irizarry’s memo did not even relate to the subject of administrative hearings, and that Mr. Farrell didn’t work in Mr. Irizarry’s region, but, unfortunately, Ms. Caputo wasn’t even listening to what I was attempting to say because she was talking very quickly and loudly about my not being allowed into the hearing because “this was the policy.”

            I attempted to ask what “policy” this was, and could I please just read what this “policy” stated, but Ms. Caputo seemed to believe that I needed to be shouted out of the room.  In fact, I believe my asking to see the “policy” that she was claiming barred me from the hearing, infuriated her, because at this point she started yelling at me in a rude, imperious tone of voice to not attempt any further discussion of the issue.  I gathered up my papers and left the room, seeing that Ms. Caputo was not going to discuss anything.  As I walked down the hallway from her office, I noticed an open door on my left, and walked in.  I asked Mr. Greg Brooks to permit me into Mr. Farrell’s hearing, and he, too, started repeating that as I did not work for the Department of Education, I could not be a witness, and that was the “policy.”  I again asked to see the “policy” that he was claiming stated this “rule,” but my question seemed to anger him, just as it did Ms. Caputo, and he told me that I would never be a witness.  I joined Mr. Scott in the hallway and we sat out the remainder of the hearing there.

            When the hearing ended, Ms. Alvarez asked Mr. Scott and I into the hearing room for a chat.  She told us that, unfortunately, we could not enter the hearing because we did not work for the Department of Education.  I reminded her that not only did the material on the conduct of hearings not bar witnesses, or say that all witnesses had to have worked for, or currently be employed by, the Department of Education, but that Mr. Scott had, indeed, been a teacher for many years.  She said, again, that it was “policy” to not have witnesses at the appeals hearing!!  Was this, indeed, the secret “policy” mentioned by both Ms. Caputo and Mr. Brooks? 


            This statement shocked all of us in the room.  This, I believe, is the crux of the matter.  If a principal and other supervisors have written observation reports alleging that a teacher’s lesson is unsatisfactory, if the teacher’s intended witnesses are barred from a hearing that purports to investigate the teacher’s competence, and if no rebuttals of any statements made by the teacher’s accusers are permitted entry into the proceedings at some point before the person in the position of judging the matter makes a determination,  then we have a biased, unfair, and seriously prejudicial process that cannot and must not be allowed in a democratic society.

            I, President of The E-Accountability Foundation, write this letter in order to officially protest the unfair violation of due process rights of Mr. Edmond Farrell on November 8, 2004 at the New York City Department of Education’s Office of Appeals and Reviews.  In addition we are outraged by the way both Ms. Caputo and Mr. Brooks spoke to me in the OAR office and by their support for some esoteric “policy” that we believe does not exist.  We consider their actions at the level of “employee misconduct” and would appreciate both an explanation and an apology to be sent to my attention at the address above at your earliest convenience.  We also request that Mr. Farrell be given a fair chance to state his position at a public forum.  If the Department of Education does not schedule this forum, The E-Accountability Foundation will.  We will also be publishing this letter, and all ensuing letters pertaining to this matter, on our Website, parentadvocates.org.

            Thank you. 

                                                                                                Sincerely,

                                                                                                Betsy Combier


Ms. Randi Weingarten
Mr. Norman Scott (via email)
Ms. Lydia Segal (via email)
Ms. Elissa Gootman
Ms. Lila Corn (via email)
parentadvocates.org

I agreed to appear as a witness for him, along with retired teacher Norm Scott, and we were going to discuss the educational value of the workshop model in a high school setting, as well as the procedures used by Grace Zwillenberg to harm veteran teachers. We were both told that we did not work at the school, so we could not testify. I questioned Ms. Virginia Caputo about her decision, and she screamed me out of her office. I left quietly. Ed lost.

Then he filed a petition with the Commissioner:

STATE OF NEW YORK
STATE EDUCATION DEPARTMENT
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
In the Matter of EDMOND FARRELL,

Petitioner,

                                           PETITIONER’S MEMORANDUM OF LAW
v


JOEL I. KLEIN, Chancellor, New York City Department of Education, Appeal #17944

Respondent,

from action of the New York City Department of Education regarding the
denial of due process rights in the appeal of a U-rating

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

                                                 PRELIMINARY STATEMENT

I, Edmond Farrell(“Petitioner”), am a tenured mathematics teacher employed by the New York City Department of Education (“DOE”). Petitioner is fully aware of all the facts and circumstances in this case. Petitioner has brought this proceeding pursuant to §310 of the New York State Education Law alleging that Respondent’s actions, including filing a Verified Answer and then a Memorandum of Law written by two different people who do not know the facts and circumstances of this case and never, in any of their papers, say that they do, do not justify or give credence to the “unsatisfactory” rating (“U-rating”) given Petitioner in the 2003-2004 school year. Petitioner is, in fact, an award-winning teacher with satisfactory and excellent ratings throughout his teaching career – including 9 years at John Adams High School - until Mrs.Grace Zwillenberg became Interim Acting and then Principal of this same school.

 To give a U-rating to an experienced, tenured, and successful teacher is arbitrary, capricious, and simply a pretext, given under color of law as “just cause,” for creating intolerable working conditions for teachers as a result of false claims of unsatisfactory performance. This abuse of process, abuse of discretion and misfeasance is symptomatic of a method for terminating good teachers – those who have been successful in raising achievement scores of their students – in the name of “unsatisfactory performance” based on observation reports, which are simply opinions, in order to end the employment of people who are over the age of 40 or who do not remain silent about this abuse of their right to remain in the classroom and teach a curriculum that is proven to work, that they know how to teach, and teach well. This is, Petitioner alleges, a violation of employment law and his constitutional right to work and speak on issues proven to have reasonable pedagogical purpose. The right to teach a sound, basic educational program, Petitioner alleges, is a property right for the students, who are in school to learn from an experienced teacher and achieve their best. The key to the invalidity of Respondent’s claims is that the curriculum for which Petitioner was subjected to supervisory workplace bullying, harassment, and hazing is an unknown, worthless and unproven math program that harms students who then cannot succeed in the subject. Along with the abuses of process, discretion and misfeasance cited above, is the violation of due process by the Office of Appeals and Reviews Director Ms. Virginia Caputo, and OAR Hearing Officer Marianne Alvarez, both of whose actions are documented in the Verified Petition and Verified Reply, namely prohibiting Petitioner from addressing his grievance in a fair and unbiased hearing, as well as face his accusers. Accordingly, the petition and relief requested must be granted. 

                                                 STATEMENT OF FACTS

Petitioner received “Satisfactory” ratings for nine school years in a row at John Adams High School under two previous principals before Grace Zwillenberg was named Interim Acting Principal during the 2003-2004 school year and then appointed Principal. Bahaa Aboughaida was appointed as the Math/Business Assistant Principal of John Adams High School during the 2003-2004 school year, and within a few weeks issued Petitioner the first of a series of six observation reports that consisted “solely of advice, criticisms, evaluations, and recommendations.” Others in the series were issued by Grace Zwillenberg, Ben Waxman, as well as by Mr. Aboughaida. A number of the reports were written after an unannounced observation made to a repeater class of slow learners, late in the day. Petitioner considers these tactics to be “observation by ambush” and adds that these unannounced visits disrupted the classroom and jeopardized the learning environment of the students by making petitioner nervous once he realized that Mrs. Zwillenberg and Mr. Aboughaida were out to get him. The observation reports contained, in part, baseless claims of “suggested strategies that we have discussed” which were, in fact, never discussed. The U-rating that resulted in this Education Law §310 appeal was based upon the alleged evaluations of Mrs. Zwillenberg and Mr. Aboughaida, rather than based on facts and statistics. Lesson observation reports have been held by the Second Appellate Division in Elentuck v. Green to not contain “statistical or factual tabulations or data” but to “consist solely of advice, criticisms, evaluations, and recommendations.” More recently, Irving Schachter received the following May 4, 2005 letter from Ms. Cory Mescon, the Regional Records Access Officer of DOE’s Region 5:

“This letter is in response to your request for lesson observation reports issued to mathematics teachers at John Adams High School for the school year ending June 28, 2004. These observation reports constitute intra-agency materials pursuant to Public Officers Law Section 87(2)(g), in that they are reflective of opinion, advice and recommendation. These materials are not (1) statistical or factual tabulations of data, (2) instructions to staff that affect the public, or (3) a final agency policy or determination. Therefore, your request is denied.”

Respondent’s assertion that “all six reports contain facts and statistics” is thus false and invalid. Respondent classifies as “facts” the number of students in the classroom, and the seat numbers of the students. However, these have nothing to do with the level of Petitioner’s teaching performance. Respondent could, if allowed to state such “facts” as part of the employment criteria for teachers in general, proceed to the number of cracks in the wall or the quality or height or color of the desks in the room as a determinant of Petitioner’s performance. In fact, Petitioner is surprised that these absurd opinions were not added to the other equally absurd claims set forth in the six observation reports, i.e., Bahaa Aboughaida’s 10/24/03 assertions, “As you were explaining verbally the answer to the problem a bumblebee entered the room. The students started getting up from their seats and running away from it.” According to Respondent, the six reports made “recommendations for improvement.” Assuming that Respondent meant “suggestions for improvement,” Petitioner points out that he was under no contractual or legal obligation to implement any of the “suggestions” that were made, nonetheless, he tried out a number of them. Petitioner discovered that the suggestions from Mr. Aboughaida and Mrs. Zwillenberg were not useful, but that one of the suggestions from Mr. Waxman was. The papers submitted by Respondent concede several crucial points, most notably the challenge to the ratings system used in Petitioner’s evaluation. Respondent alleges that “The regulations of the Commissioner of the New York State Education Department (‘Commissioner’s Regulations’) mandate that each City School District of the City of New York develop a professional performance review plan, as set forth in §100.2(o)(2) of the Commissioner’s Regulations. The New York City Department of Education (‘DOE’) has complied with the Commissioner’s Regulations by developing a professional performance review plan. The review plan consists of a system of evaluation of pedagogical employees of the DOE and is the subject of the collective bargaining agreement (‘CBA’) between the United Federation of Teachers (‘UFT’) and the DOE. Article 8J of the CBA, entitled ‘Evaluation and Observation System’ specifies that the entire agreement with respect to the system of evaluation of pedagogical employees is embodied in the document ‘Teaching for the 21st Century.’

 The undated, incomplete material which respondent has offered predates the passage of §100.2(o)(2). Furthermore, no evidence has been introduced to demonstrate that “Teaching for the 21st Century” was revised after §100/2(o)(2) went into effect, or even that the professional performance review plan was validly adopted at a public meeting of either the former NYC Board of Education or the current Panel for Educational Policy. Respondent never offered any evidence that the standards described in “Teaching for the 21st Century” were the standards that were used to evaluate petitioner. Clearly, they were not the standards used, yet the observation reports consistently and routinely fault Petitioner for failure to follow the “Region 5 Mathematics Prototype” by whatever form Respondent refers to it. Significantly, respondent has failed to submit a copy of the “Region 5 Mathematics Prototype” as an exhibit to the Verified Answer. In paragraph 7 of the petition, Petitioner had alleged, “Such U-rating did not comply with the requirements of §100.2(o)(2) of the Regulations of the Commissioner of Education in that it was allegedly based on a flawed set of antiquated rating criteria that had not been developed cooperatively in consultation with representatives of the teachers, that had not been submitted in advance to parent groups and the United Federation of Teachers, and that had not been formally voted on during a public meeting of the PANEL FOR EDUCATIONAL POLICY OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK.”

 Respondent has now supported this allegation by having offered undated, incomplete material that predates the passage of §100.2(o)(2), but which, nonetheless, contains the statement, on page A8, “A new professional performance review report for New York City public school teachers will replace form BE/DOP 9955B (5/87) and be the official performance review document placed in a teacher’s personnel file.” Regrettably, this “new professional performance review report” never materialized either in the 20th Century, or in the 21st Century, to date. Petitioner does not even recognize “Teaching for the 21st Century,” as being the standard at all, since it was never issued to him, nor cited, except for a brief reference buried within the over 200-page CBA with the UFT. Since Petitioner had neither been informed of, advised of, nor given a copy of “Teaching for the 21st Century” during the 2003-2004 school year, nor at any time preceding, petitioner could hardly be expected to teach in accord with a standard unknown to him, and apparently to his supervisors as well. Petitioner is, in fact, an award-winning teacher with satisfactory and excellent ratings throughout his teaching career until Mrs.Grace Zwillenberg became Principal of John Adams High School. In fact, Petitioner was honored in the Fall of the 2004 school year with an award from the Renaissance Math Company for excellent teaching of it’s curriculum. What happened to petitioner is symptomatic of a city-wide phenomenon. Petitioner was subjected to supervisory workplace bullying, harassment, and hazing in order to force him to change from his successful teaching practices to an unknown and unproven math curriculum, intentionally harming the potential of the students in his class to succeed in the subject. Respondent also omitted including Appendix B of “Teaching for the 21st Century” in the submitted documents so that relevant information that would support the granting of the petition, that related to the invalid process of using observation reports in a disciplinary manner, and that set forth a description of “alternative approaches to teacher performance reviews” would not be read by either the Commissioner or his legal staff. The evidently intentional omission of Appendix B leads to the fair inference that Respondent did not want either the Commissioner or the Office of Counsel to see, and be guided by, the statements contained therein. The use of observation reports, especially those not containing “statistical or factual tabulations or data” or “instructions to staff that affect the public,” to discipline teachers is not only a gross error but also a fatal error. Even the supervisory staff manual of the Office of Appeals and Reviews, “Rating Pedagogical Staff Members,” states in relevant part, on page 19 of 40, “A major objective of a written report is that it be effective in improving teaching without reducing morale.”   

Clearly, as lesson observation reports do not contain "statistical or factual tabulations or data," they cannot be used to discipline a teacher unless they contain "instructions" that the teacher was alleged to have violated.

However, lesson observation reports do not contain "instructions" to a teacher, because they do not contain "instructions to staff that affect the public." The NYS Supreme Court, Monroe County, in Geneva Printing Co. and Donald C. Hadley v. South Seneca Central School District; South Seneca Board of Education; and President, South Seneca Board of Education (Index No. 7510/81, NYS Supreme Court, Monroe County, July 12, 1982) stated, in relevant part:

“The principal justification relied on by respondents is that the memorandum is inter-agency material which is not statistical or factual tabulations or data, instructions to staff that affect the public or final agency policy (or) determinations. The crux of the memorandum is the direction and instructions given Tyler as to the performance of his job. The principal of a high school obviously deals regularly with teachers, the board of education and children enrolled in the school and instructions as to the performance of his duties must necessarily affect the public. Furthermore, the memorandum is the foundation for Weibezahl’s recommendation and the subsequent approval of respondents and therefore it constitutes a final agency determination.”

If lesson observation reports from a school supervisor to a teacher are to have any validity whatsoever, they must contain a recitation of the facts and statistics upon which the "advice, criticisms, evaluations, and recommendations" are based. In addition, if a school supervisor wishes a teacher to take any "corrective action" based on the contents of a lesson observation report, then either the report itself, or a separately issued memorandum or letter, must contain "instructions to staff that affect the public" which the teacher is mandated to implement.

Petitioner’s substantive and procedural due process rights were consistently violated:

(1) Petitioner exercised his right to appeal from a rating other than a satisfactory rating. However, the UFT assigned a non-Attorney, Ms. Patricia Ritter, who refused to speak to Petitioner’s chosen advocate, Ms. Combier, and would not look at any documents pertaining to Petitioner’s case, before the November 8, 2004 Hearing at the Office of Appeals and Reviews, although she did speak briefly with Petitioner. Ms. Ritter asked very few questions, and was not an appropriate advocate for Petitioner in this forum. Ms. Alvarez’ barring of both Ms. Combier and Mr. Scott from the Hearing due to the fact that neither witness worked for the NYC DOE is invalid due to the obvious fact that Ms. Ritter does not work for the NYC DOE either.

(2) Petitioner’s right to have witnesses appear at his hearing was arbitrarily denied by Ms. Alvarez. Petitioner’s request to call three witnesses was denied prior to the administrative review; the right to call two other witnesses was denied during the administrative review; the right to telephone a physically handicapped witness was ignored during the administrative review; and, Respondent’s claim that Ms. Alvarez “permitted the presentation of a witness” namely Ms. Combier, (p. 8) after Petitioner and his advocate Ms. Ritter made their closing statements is completely false. Petitioner was permitted no witnesses. Ms. Combier and Mr. Scott were told – actually, Ms. Combier was screamed at – before the Hearing began, that they would not be allowed into the Hearing due to the fact that neither worked for the DOE. Both Mr. Scott and Ms. Combier arrived before the Hearing began, and sat outside the Hearing Room until after the Hearing was over. Ms. Alvarez left the Hearing Room after it was concluded and invited Ms. Combier and Mr. Scott into the room to talk, at which point she told them, when they asked why she had not allowed them to attend the Hearing, “Well, you cannot dispute what a Principal says.”

(3) Mr. Waxman, who is mentioned in the reply as having observed petitioner, was not present at the administrative review, either by telephone or in person. Ms. Alvarez did not seek to question him, yet the U-rating could not have been given, according to the policy and practice of DOE, without an observation report having been submitted by a “superintendent’s representative.” As there was no “superintendent’s representative” at this Hearing, any claims to the validity of the U-rating must be denied, as per Respondent’s own Regulations.

(4) Mrs. Zwillenberg and Mr. Aboughaida were not present at the Hearing, but were permitted to simply telephone in their testimony which is an outrageous violation of due process. Petitioner has a Constitutional right to face his accusers as he redresses a grievance. Any testimony given by telephone cannot be verified, as any oath taken over the telephone without a legal representative present at the other end cannot be valid. Witnesses must be seen and not just heard in order for the testimony to have value and in order for the testimony to be verified.

(5) It is perfectly clear that Marianne Alvarez’s claim that she did not know anything about Petitioner’s witnesses could only be true if she had never read the copy of Petitioner’s September 16, 2004 letter that had been sent to Ms. Alvarez’s supervisor, Virginia Caputo, at the Office of Appeals and Reviews. All the witnesses were clearly identified by name and address or name and business location in the September 16, 2004 letter, and receipt of this letter by Ms. Caputo is proven by the letter Ms. Sharon Sandra Dunn-Yules of the Queens United Federation of Teachers sent to Ms Caputo on November 3, 2004 advising her of the names of witnesses, and the fax Ms Caputo sent to Ms. Dunn-Yules on November 4, 2004 explaining the witness policy at OAR and denying Petitioner three witnesses from the Office of Legal Services. This provides irrefutable evidence that Ms. Caputo arbitrarily denied Petitioner access to three critical witnesses whom she had summarily determined had no involvement in petitioner’s case. Ms. Alvarez totally disregarded the major arguments in petitioner’s September 16, 2004 letter, thus successfully eliminating any possibility for substantiating any claims. 

If, it is true, as Respondent states in the Memorandum of Law (p. 9), that “Carmen Farina, Deputy Chancellor, Teaching and Learning, as designee for Joel Klein, Chancellor of the New York City Department of Education, reviewed the Committee’s Report and Recommendation”, why did she not sign it? Ms. Combier supplied a valid copy of Mrs. Farina’s signature from one of many letters she, Ms. Combier, received had in her possession which were signed by Mrs. Farina, and it is very clear that Mrs. Farina did not sign the Recommendation. Petitioner alleges that it is obvious that Mrs. Farina never read the Report, never decided his case, and/or refused to be held accountable for the decision. Did the person who signed for Mrs. Farina have knowledge of the facts and circumstances in this case? The questions that Petitioner asked about Mrs. Farina’s decision were never answered, and thus he alleges that Mrs. Farina will be, nonetheless, held accountable for the decision.

The numerous due process violations listed above necessitate the granting of the relief which Petitioner requests.

                                                                ARGUMENT

POINT I

THE DECISION OF THE CHANCELLOR OF THE NEW YORK CITY DEPARTMENT OF
EDUCATION TO SUSTAIN PETITIONER’S UNSATISFACTORY RATING BASED ON FALSE OBSERVATION REPORTS IS  MADE IN BAD FAITH, AND WITHOUT MERIT

The determination that the Petitioner’s U-rating must be upheld is wholly inconsistent with the facts and circumstances in this case and the deductions that can reasonably be made from the facts and circumstances. ( Barron’s Law Dictionary, 5th Edition, “Abuse of Discretion” 251 N.E. 2d 468, 471; and 458 P. 2d 336, 338, p. 4). The facts are that when Mrs. Zwillenberg was appointed Interim Acting Principal of John Adams High School in September, 2003, she and Petitioner did not agree on several matters. Mrs. Zwillenberg decided, upon information and belief, that she must “get rid of” Petitioner, and arbitrarily decided to use “observation reports” as the way to do it, despite her knowledge that Petitioner was in a protected category, that of age. Mr. Bahaa Aboughaida entered the school at the same time, and immediately gave Petitioner an unsatisfactory observation report in October. This is hardly the actions of someone who desired to work as a Team, and in a cooperative way with a new staff. As Petitioner was a tenured, award-winning teacher at the same school (See Verified Reply Exhibit “J”) for 9 years before Mrs. Zwillenberg started her job as Principal, and during this “pre-Zwillenberg” time Petitioner had consistently received “satisfactory” and “excellent” observation reports. Petitioner’s first Zwillenberg unsatisfactory observation was made less than two months after the beginning of school and shows vindictiveness and malice without justification or excuse. Nothing had changed in Petitioner’s teaching strategies or in the school except for the appointment of Mrs. Zwillenberg as Principal I.A. in September 2003. 99A. 2d 849, 854 (“Malice”, Barron’s Law Dictionary, p. 306) refers to an “intent to cause the very harm that results or some harm of the same general nature, or an act alone in wanton or willful disregard of the plain and strong likelihood that some such harm will result. There is no other circumstance, justification, excuse or recognized mitigation” that could give reason to the situation of a successful career ended so quickly and unfairly. 118 N.W. 2d 422, 425 (Barron’s, p.306).

The use of observation reports to discipline teachers in New York State cannot be sustained as valid when used arbitrarily, capriciously and in bad faith against a successful teacher such as Petitioner due to Elentuck v. Green (202 AD2d 425 [2d Dept.], lv. to appeal denied, 84 NY2d 809 [1994], reargument denied, 85 NY2d 858 [1995]). In this case, the Courts decided that observation reports are simply opinions, not facts or data.

If the argument is made that New York State is an “employer” and not an “employee” state, then using observation reports as a tool to rid the NYC DOE of teachers who are terminated because of these opinions used as a pretext may be legally valid in court except in those areas protected by the Federal Government which, in the ultimate forum of debate trumps both local and state laws. Petitioner does fall under the federal protection of age discrimination, and therefore alleges that a case could be made that a teacher’s right to redress false claims made in observation reports fall under Title 42 > Chapter 21 > Subchapter I > § 1983 especially if the administrative proceedings have so many violations of due process as in Farrell v Klein which will be discussed below.

A claimant under section § 1983 seeking to recover from a school district for the actions of an employee must produce evidence that the discriminatory treatment – in this case Petitioner alleges the use of “observation reports” to terminate teachers in New York State – resulted from policy or custom or the district to discriminate. Artis v. Francis Howell North Band Booster Association, 161 F.3d 1178 (8th Cir. 1998). Although a policy or custom under section 1983 usually involves more than one act, even a single act may be sufficient. Matthews v. high Island Independent School District, 991 F. Supp. 840 (S.D. Tex. 1998). Petitioner’s case shows that the “observation reports” written by Principal Zwillenberg, AP Aboughaida, and Regional LIS Ben Waxman are not valid tools of teacher discipline and termination as they do not contain any facts or tabulations of data, and therefore their use to remove Petitioner from the classroom shows an inappropriate intent to discriminate against him. Reyes Irizarry, in his memo “The Observation Process” dated September 27, 2004 (Verified Petition, Exhibit “G”), writes:

“The improvement of instruction is the primary goal and responsibility of every principal. The classroom observation is the most effective process to evaluate and improve the quality of instruction in the school. By observing teachers on a regular basis, principals can identify the strengths and needs of teachers as well as develop specific staff development activities to enhance the delivery of instruction in the school. It is the role of the principal to ensure that the observation process is understood to be a support mechanism to improve teaching and not a punitive exercise. The principal must also train all assistant principals supervision on how to effectively use the observation process to develop the teaching skills of all teachers”

The intention to discriminate, once proven, prohibits Respondent from using qualified immunity from damages awards as protection. Coleman v Houston Independent School District, 113 F. 3d 528 (5th Cir. 1997); Mercer v. Hammonds, 134 F. 3d 1066 (11th Cir. 1998). This information should be added to the training manual for Principals on the writing and use of “observation reports” so that no principal will use these observations to terminate the employment of, or harass, good teachers in the future as they will be held accountable for this.

A 73-year old teacher with exemplary evaluations who was given a U-rating after a change in school administration won her case after suing the Sewanhaka Central High School District:

LUCILLE GRUBERG, Plaintiff, --against-- THE BOARD OF EDUCATION OF THE SEWANHAKA CENTRAL HIGH SCHOOL DISTRICT, Defendant, CV 96-3042 (ADS), 3 F. Supp. 2d 280; 1998 U.S. Dist. LEXIS 6079; 73 Empl. Prac. Dec. (CCH) P45,395, decided April 27, 1998. (See Exhibit “B”).

“The plaintiff accurately characterizes her annual evaluations from the time she began her career through 1990 as "more than satisfactory" and often "exemplary… In 1989, the year after she received such glowing accolades, there was a change in administration at the school. Diane Scricca became the Principal of Elmont Memorial High School and Robert Walsh became the Chair of the English Department. That same year, the plaintiff's annual evaluations suddenly plummeted. While the previous year's evaluations commended Gruberg's classroom management skills, Walsh's October 1990 evaluation criticized the teacher, suggesting that she needed to me more of "a strong classroom leader, firmly in control of the entire class at all times. (Defendant's Ex. E to Memorandum of Law in Support of Summary Judgment Motion). Walsh's evaluation of the plaintiff stated that "several times when questioning or helping a child, you so focused on that child that the remainder of the class was [**4] ignored and they became restless and went off task." He criticized her for such things as momentarily turning her back on the class to provide a tissue for a student, and for taking her eyes off the class when peering into the textbook for information, both of which purportedly lead to "lack of eye contact [which] causes problems." Despite these criticisms, Walsh concluded that Gruberg's lesson was "satisfactory" with the "aim of the lesson being accomplished." The plaintiff alleges that following her evaluation conference with Walsh, he told her that she "really ought to retire" and that "the job is getting to be too much for you and it will only get worse."

According to the plaintiff, things, indeed, got much worse for her. The teacher states that "at that point, Mr. Walsh and Ms. Scricca began to make my life impossible in order to force my retirement. I believe, without any doubt whatsoever, that they wanted me to retire because of my age." (Gruberg Aff., P 11). Her evaluations went from glowing in 1989, the year before she began working for Scricca and Walsh, to "mixed," and finally, to "unsatisfactory." By the plaintiff's account, once Scricca and Walsh came into power, she [**5] could not obtain a satisfactory evaluation no matter how hard she tried or whatever she did. "My every move was watched, and every incident the administration thought was improper was documented, no matter how trivial. For example, I was reprimanded for not standing by the door before the bell rang, for allowing my students two minutes at the start of class to settle down, for letting students speak without raising their hands, and for not utilizing the chalk board correctly." (Gruberg Aff., P 13). Her annual performance evaluation for the 1990-1991 school year, while overall satisfactory, noted a "weakness" in her classroom management. The plaintiff alleges that during the following school year, on February 28, 1992, Walsh approached her and said, "Why don't you retire while you still can with dignity?" At the end of the 1991-1992 school year, her annual evaluation was, for the first time in her career, rated "unsatisfactory." (Defendant's Exhibit L).

In June of 1992, as a consequence of the poor evaluation, Gruberg was placed under the Board of Education's Administration Regulation 4117.1 ["the Regulation"] for the next school year. A teacher placed on the Regulation is, in essence, [**6] on probation: a "remediation" plan is developed to address and improve those areas in which the teacher is deemed deficient, she is closely monitored by her supervisor, and more than the usual number of classroom observations are conducted to monitor her progress. The defendant explains that "if the remediation plan fails and the teacher's performance remains unsatisfactory, a decision has to be made as to what other action should be taken." If the teacher is not performing at a satisfactory level, one of the options is for the District to "charge" the teacher with incompetency under § 3020a of the New York Education Law, which provides that in order for a tenured teacher to be discharged for "incompetence," the teacher is entitled to notice of specific charges and hearing before a hearing officer. At such a hearing, the burden of proof is on the District to prove the charges, and the teacher is entitled to representation by counsel, to cross-examine witnesses, and to present witnesses in her own behalf. The hearing officer determines whether the [*283] teacher is "guilty" of the charges and what, if any, penalty should be imposed.

While still in the defendant's employ, the plaintiff filed [**7] age discrimination charges with the New York State Division of Human Rights. On August 4, 1992, following a hearing at which the defendant was represented by counsel and the plaintiff proceeded pro se, the State Division rendered a probable cause determination stating that the purported legitimate business reasons provided by the School District for her treatment were pretextual, and that she was discriminated against based on her age.

When the plaintiff returned to work at the beginning of the 1992-1993 school year, she continued to teach under the remediation plan. However, in the plaintiff's words, from then on, Walsh and Scricca constantly "demoralized, belittled, intimidated and [eventually] coerced me into resigning. They did this by singling me out and subjecting me to a standard of review unequal [to] that of any other teacher similarly situated in the District. They engaged in a deliberate and punitive course of conduct designed to force me to resign because of my age. . . . I worked under constant unwarranted criticism and the threats of an incompetency hearing. I was plagued with numerous requests to retire." (Gruberg Aff., P 31). The plaintiff contends, the defendants [**8] "created working conditions for me that were so intolerable that I was forced to tender my resignation in April 1994, effective in June 1994.’ (Gruberg Aff., P 29).

According to the plaintiff, the defendant's treatment of her was part of a broader discriminatory pattern and practice of ousting older teachers by placing them on the District's Administrative Regulation 4117.1, for purposes of eventually replacing them with younger teachers who are paid less. The plaintiff has named ten other teachers in the district who also were subjected to the Regulation, four of whom also resigned, allegedly as a consequence of being placed on the Regulation and being subjected to treatment similar to that described by Gruberg.”

Petitioner sees many similarities between the case currently before the Commissioner and that of Ms Gruberg, and offers the material below to support his belief that “observation reports” cannot be used to‘constructively discharge’ an employee, or to create an intolerable work atmosphere as Mrs. Zwillenberg, and Mr. Aboughaida did to Petitioner at John Adams High School:
”The plaintiff contends that she has satisfied the "discharge" element of her employment discrimination claim by proffering evidence that she was "constructively discharged." Constructive discharge of an employee occurs when an employer, rather than directly discharging an individual, intentionally creates an intolerable work atmosphere that forces an employee to quit involuntarily. See Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983). Working conditions are intolerable if they are "so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Lopez, 831 F.2d 1184 at 1188 (quoting Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 [1st Cir. 1977]).

In the Court's view, Gruberg has presented evidence sufficient to raise a material triable issue on the question of constructive discharge. The "plaintiff's proof allows [**14] the inference that she was treated arbitrarily and severely criticized despite her strong [*285] performance. A fact finder could infer, from the facts set forth in the affidavits and deposition testimony, that plaintiff was among the most competent employees in the [school]. . . . [A] reasonable person in [Gruberg's] position might have inferred from the circumstances, including the onslaught of unfounded criticism coupled with the threat of [an incompetency hearing and repeated demands that she retire], that she was compelled to leave. . . . Viewed as a whole, the facts in the case at hand, if proven, would permit a finder of fact to conclude that [Gruberg] was forced to resign." Chertkova v. Connecticut General Life Insurance Co., 92 F.3d at 92.

The Court rejects the defendant's contention that the plaintiff's resignation does not constitute a "constructive discharge" as a matter of law (Defendant's Memorandum of Law, at 6). In support of this argument, the defendant cites Stetson v. NYNEX Service Co., 995 F.2d 355 (2d Cir. 1993), where the Court of Appeals held that a constructive discharge could not be established "simply through evidence that an employee [is] dissatisfied [**15] with the nature of his assignments," that he "feels that the quality of his work has been unfairly criticized," or that "the employee's working conditions [are] difficult or unpleasant." In the Court's opinion, the defendant's reliance on Stetson is misguided. As the Second Circuit subsequently clarified in Chertkova v. Connecticut General Life Ins. Co., 92 F.3d at 92,

"While the Court recognizes that a disagreement with management over the quality of an employee's performance will not suffice to establish a constructive discharge. . . . here there is more than a disagreement over quality. Plaintiff's evidence suggests her supervisor[s] engaged in a pattern of baseless criticisms, [repeatedly demanded her retirement, and threatened to bring her up on incompetency charges, a precursor to her discharge.] . . . [A] reasonable person in [Gruberg's] position might have inferred from the circumstances, including the onslaught of unfounded criticism coupled with the threat of [a] termination [hearing], that she was compelled to leave.

The Court finds that there are myriad triable issues of material fact with respect to the issue of constructive discharge. [**16] Accordingly, the defendant's motion for summary judgment as to that issue is denied.” 

April 27, 1998, Decided

DISPOSITION: [**1] Defendants' motion for summary judgment denied.

COUNSEL: Robert M. Rosen, Esq., Delvis Melendez, Esq., Of Counsel, ROSEN, LEFF, ATTORNEYS, Hempstead, New York, for Lucille Gruberg, Plaintiff.

Stanley a. Camhi, Esq., Carrie Preble, Esq., Of Counsel, JASPAN, SCHLESINGER, SILVERMAN & HOFFMAN, LLP, Garden City, New York, for Sewanhaka Central High School District, Defendant.

JUDGES: Hon. Arthur D. Spatt, United States District Judge.

OPINIONBY: Arthur D. Spatt

OPINION: [*281] MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge:

This matter arises from the claims of the plaintiff, Lucille Gruberg ("Gruberg" or "the plaintiff'), under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. ("ADEA"), and New York State Executive Law §§ 296 and 297. Presently before the Court is the defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

I. BACKGROUND

At the time of the filing of the complaint, Gruberg was a seventy-three year old woman who had been employed by the defendant, the Board of Education of the Sewanhaka Central High School District (the "School District" or "the defendant"), as an English teacher [**2] in the Elmont Memorial High School ("High School") for more than twenty years, from September 1972 until June 1994. The plaintiff accurately characterizes her annual evaluations from the time she began her career through 1990 as "more than satisfactory" and often "exemplary." For example, her annual evaluation for the 1988-1989 school year included the following high praise:

Mrs. Lucille Gruberg is an experienced and knowledgeable teacher of English.

. . . Mrs. Gruberg planned lessons that would not only cover the many facets of the English courses of study but would also stretch students' minds. For her English 12 and 12NR students, especially, Mrs. Gruberg continually searched for stimulating materials that would force these students to think about what they wanted out of life and how to respond to the challenges that life offered.

Mrs. Gruberg is a caring teacher who tries to help students to reach their potential. She sets high standards for her classes and is completely in control of her students and her lesson. She respects her students, and they respect her.

Mrs. Gruberg is always willing to try out new ideas and approaches to encourage her students [**3] to write with confidence and to write better. . . .

Mrs. Gruberg is a responsible member of the English Department, performing her various duties effectively and conscientiously. [*282] This has been an excellent, productive year for Mrs. Gruberg.

(Plaintiff's Ex. B. Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment)(emphasis added).

In 1989, the year after she received such glowing accolades, there was a change in administration at the school. Diane Scricca became the Principal of Elmont Memorial High School and Robert Walsh became the Chair of the English Department. That same year, the plaintiff's annual evaluations suddenly plummeted. While the previous year's evaluations commended Gruberg's classroom management skills, Walsh's October 1990 evaluation criticized the teacher, suggesting that she needed to me more of "a strong classroom leader, firmly in control of the entire class at all times." (Defendant's Ex. E to Memorandum of Law in Support of Summary Judgment Motion). Walsh's evaluation of the plaintiff stated that "several times when questioning or helping a child, you so focused on that child that the remainder of the class was [**4] ignored and they became restless and went off task." He criticized her for such things as momentarily turning her back on the class to provide a tissue for a student, and for taking her eyes off the class when peering into the textbook for information, both of which purportedly lead to "lack of eye contact [which] causes problems." Despite these criticisms, Walsh concluded that Gruberg's lesson was "satisfactory" with the "aim of the lesson being accomplished." The plaintiff alleges that following her evaluation conference with Walsh, he told her that she "really ought to retire" and that "the job is getting to be too much for you and it will only get worse."

According to the plaintiff, things, indeed, got much worse for her. The teacher states that "at that point, Mr. Walsh and Ms. Scricca began to make my life impossible in order to force my retirement. I believe, without any doubt whatsoever, that they wanted me to retire because of my age." (Gruberg Aff., P 11). Her evaluations went from glowing in 1989, the year before she began working for Scricca and Walsh, to "mixed," and finally, to "unsatisfactory." By the plaintiff's account, once Scricca and Walsh came into power, she [**5] could not obtain a satisfactory evaluation no matter how hard she tried or whatever she did. "My every move was watched, and every incident the administration thought was improper was documented, no matter how trivial. For example, I was reprimanded for not standing by the door before the bell rang, for allowing my students two minutes at the start of class to settle down, for letting students speak without raising their hands, and for not utilizing the chalk board correctly." (Gruberg Aff., P 13). Her annual performance evaluation for the 1990-1991 school year, while overall satisfactory, noted a "weakness" in her classroom management. The plaintiff alleges that during the following school year, on February 28, 1992, Walsh approached her and said, "Why don't you retire while you still can with dignity?" At the end of the 1991-1992 school year, her annual evaluation was, for the first time in her career, rated "unsatisfactory." (Defendant's Exhibit L).

In June of 1992, as a consequence of the poor evaluation, Gruberg was placed under the Board of Education's Administration Regulation 4117.1 ["the Regulation"] for the next school year. A teacher placed on the Regulation is, in essence, [**6] on probation: a "remediation" plan is developed to address and improve those areas in which the teacher is deemed deficient, she is closely monitored by her supervisor, and more than the usual number of classroom observations are conducted to monitor her progress. The defendant explains that "if the remediation plan fails and the teacher's performance remains unsatisfactory, a decision has to be made as to what other action should be taken." If the teacher is not performing at a satisfactory level, one of the options is for the District to "charge" the teacher with incompetency under § 3020a of the New York Education Law, which provides that in order for a tenured teacher to be discharged for "incompetence," the teacher is entitled to notice of specific charges and hearing before a hearing officer. At such a hearing, the burden of proof is on the District to prove the charges, and the teacher is entitled to representation by counsel, to cross-examine witnesses, and to present witnesses in her own behalf. The hearing officer determines whether the [*283] teacher is "guilty" of the charges and what, if any, penalty should be imposed.

While still in the defendant's employ, the plaintiff filed [**7] age discrimination charges with the New York State Division of Human Rights. On August 4, 1992, following a hearing at which the defendant was represented by counsel and the plaintiff proceeded pro se, the State Division rendered a probable cause determination stating that the purported legitimate business reasons provided by the School District for her treatment were pretextual, and that she was discriminated against based on her age.

When the plaintiff returned to work at the beginning of the 1992-1993 school year, she continued to teach under the remediation plan. However, in the plaintiff's words, from then on, Walsh and Scricca constantly "demoralized, belittled, intimidated and [eventually] coerced me into resigning. They did this by singling me out and subjecting me to a standard of review unequal [to] that of any other teacher similarly situated in the District. They engaged in a deliberate and punitive course of conduct designed to force me to resign because of my age. . . . I worked under constant unwarranted criticism and the threats of an incompetency hearing. I was plagued with numerous requests to retire." (Gruberg Aff., P 31). The plaintiff contends, the defendants [**8] "created working conditions for me that were so intolerable that I was forced to tender my resignation in April 1994, effective in June 1994." (Gruberg Aff., P 29).

According to the plaintiff, the defendant's treatment of her was part of a broader discriminatory pattern and practice of ousting older teachers by placing them on the District's Administrative Regulation 4117.1, for purposes of eventually replacing them with younger teachers who are paid less. The plaintiff has named ten other teachers in the district who also were subjected to the Regulation, four of whom also resigned, allegedly as a consequence of being placed on the Regulation and being subjected to treatment similar to that described by Gruberg.

II. DISCUSSION

A. Summary Judgment: the Standard

A district court may grant summary judgment only if the evidence, viewed in the light most favorable to the party opposing the motion, presents no genuine issue of material fact, Samuels v. Mockry, 77 F.3d 34, 35 (2d Cir. 1996), and the movant is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The Court must, however, [**9] resolve all ambiguities and draw all reasonable inferences in the light most favorable to the party opposing the motion. See Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir. 1995). A genuine issue of material fact exists if "a reasonable jury could return a verdict for the nonmoving party." Vann v. City of New York, 72 F.3d 1040 (2d Cir. 1995).

Mere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment. Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996). If there is evidence in the record as to any material fact from which an inference could be drawn in favor of the non-movant, summary judgment is unavailable. Holt v. KMI-Continental, Inc., 95 F.3d 123, 128 (2d Cir. 1996), cert. denied, 520 U.S. 1228, 117 S. Ct. 1819, 137 L. Ed. 2d 1027 (1997); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991). The District Court is charged with the function of "issue finding", not "issue resolution." Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1224 (2d Cir. 1994).

Finally, the Court of Appeals has warned that trial courts must be especially cautious about granting summary judgment in discrimination [**10] cases, because in such cases the employer's intent is ordinarily at issue. See, e.g., Gallo, 22 F.3d at 1224. Since it is rare to find in an employer's records direct proof that a personnel decision was made for a discriminatory reason, whatever other relevant depositions, affidavits and materials are before the district court must be carefully scrutinized for circumstantial evidence that could support an inference of discrimination. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994).

[*284] It is within this framework that the Court addresses the grounds for the present motion for summary judgment.

B. ADEA: The Standards

The ADEA provides, in relevant part, that it is "unlawful for an employer . . . to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). At trial, it is the plaintiff's burden to prove employment discrimination on the basis of age. Gallo, 22 F.3d at 1224. The Court notes that age discrimination claims brought under the New York State Human Rights Law, N.Y.Exec.Law §§ 290-301, [**11] are governed by the same standards as those brought under the ADEA. Wanamaker v. Columbian Rope Co., 108 F.3d 462, 467 (2d Cir. 1997); Spence v. Maryland Casualty Co., 995 F.2d 1147, 1158 (2d Cir. 1993).

A plaintiff asserting an age discrimination claim must meet an initial burden of presenting evidence sufficient to establish a prima facie case of the alleged violation of ADEA. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506, 113 S. Ct. 2742, 2746-47, 125 L. Ed. 2d 407 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 1093-94, 67 L. Ed. 2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973); Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995). Once the plaintiff establishes a prima facie case, the burden shifts to the employer to rebut it through the introduction of evidence of non-discriminatory reasons that support a finding that unlawful discrimination was not the cause of the discharge. Hicks, 509 U.S. at 506-07, 113 S. Ct. at 2746-47; Cronin, 46 F.3d at 203. The plaintiff retains the 'ultimate burden of persuasion" and the burden [**12] of proof to demonstrate that the challenged employment action was the result of intentional age discrimination. Hicks, 509 U.S. at 511, 113 S. Ct. at 2749; Cronin, 46 F.3d at 203. Since, in this case, the plaintiff resigned, she also has the burden of proving a "constructive discharge."

A prima facie case of discharge resulting from age discrimination is established if the plaintiff shows, through direct or circumstantial evidence, that: (1) she was within the protected age group; (2) she was qualified for the position; (3) she was discharged; and (4) the discharge occurred under circumstances giving rise to an inference of discrimination. Cronin, 46 F.3d at 204. To defeat a defendant's motion for summary judgment, the plaintiff need only show that there is a material issue of fact as to whether (1) the employer's asserted reason for discharge is false or unworthy of belief; and (2) it is more likely than not that an unlawful basis of discharge was the true reason. Chertkova v. Connecticut General Life Insurance Co., 92 F.3d 81, 92 (2d Cir. 1996).

The parties agree that the plaintiff was within the protected age group. Instead, the disputed issues in this case center [**13] on whether: (1) the plaintiff can establish that she was "discharged"; (2) the "discharge" occurred under circumstances giving rise to an inference of age discrimination; and (3) the defendant had legitimate, non-discriminatory reasons for the employment actions taken.

i. Constructive Discharge

The plaintiff contends that she has satisfied the "discharge" element of her employment discrimination claim by proffering evidence that she was "constructively discharged." Constructive discharge of an employee occurs when an employer, rather than directly discharging an individual, intentionally creates an intolerable work atmosphere that forces an employee to quit involuntarily. See Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983). Working conditions are intolerable if they are "so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Lopez, 831 F.2d 1184 at 1188 (quoting Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 [1st Cir. 1977]).

In the Court's view, Gruberg has presented evidence sufficient to raise a material triable issue on the question of constructive discharge. The "plaintiff's proof allows [**14] the inference that she was treated arbitrarily and severely criticized despite her strong [*285] performance. A fact finder could infer, from the facts set forth in the affidavits and deposition testimony, that plaintiff was among the most competent employees in the [school]. . . . [A] reasonable person in [Gruberg's] position might have inferred from the circumstances, including the onslaught of unfounded criticism coupled with the threat of [an incompetency hearing and repeated demands that she retire], that she was compelled to leave. . . . Viewed as a whole, the facts in the case at hand, if proven, would permit a finder of fact to conclude that [Gruberg] was forced to resign." Chertkova v. Connecticut General Life Insurance Co., 92 F.3d at 92.

The Court rejects the defendant's contention that the plaintiff's resignation does not constitute a "constructive discharge" as a matter of law (Defendant's Memorandum of Law, at 6). In support of this argument, the defendant cites Stetson v. NYNEX Service Co., 995 F.2d 355 (2d Cir. 1993), where the Court of Appeals held that a constructive discharge could not be established "simply through evidence that an employee [is] dissatisfied [**15] with the nature of his assignments," that he "feels that the quality of his work has been unfairly criticized," or that "the employee's working conditions [are] difficult or unpleasant." In the Court's opinion, the defendant's reliance on Stetson is misguided. As the Second Circuit subsequently clarified in Chertkova v. Connecticut General Life Ins. Co., 92 F.3d at 92,

"While the Court recognizes that a disagreement with management over the quality of an employee's performance will not suffice to establish a constructive discharge. . . . here there is more than a disagreement over quality. Plaintiff's evidence suggests her supervisor[s] engaged in a pattern of baseless criticisms, [repeatedly demanded her retirement, and threatened to bring her up on incompetency charges, a precursor to her discharge.] . . . [A] reasonable person in [Gruberg's] position might have inferred from the circumstances, including the onslaught of unfounded criticism coupled with the threat of [a] termination [hearing], that she was compelled to leave.

The Court finds that there are myriad triable issues of material fact with respect to the issue of constructive discharge. [**16] Accordingly, the defendant's motion for summary judgment as to that issue is denied.

ii. The Defendant's Asserted Reasons for Their Employment Decisions

The Court also concludes that this case is replete with genuine issues of material fact with respect to the defendant's asserted reasons for their employment decisions, and whether it is more likely than not that the defendant was motivated by the plaintiff's age. The Court begins with the plaintiff's age, a robust seventy-three. Additionally, in the Court's opinion, the plaintiff has presented substantial circumstantial evidence that the defendant sought to oust her due to her age. Just one year before Walsh and Scricca assumed power, she received a stellar annual review which commended her superior classroom management, innovative teaching style, and inspiring lectures. One year later, the same teacher was criticized for poor classroom control, and purported inability to capture her students' attention. In addition to this circumstantial proof, the plaintiff has alleged that Walsh and Scricca made various statements evidencing their improper motivation -- remarks such as that she "really ought to retire" and that "the job is [**17] getting to be too much for you and it will only get worse." Such classic, key statements are thinly veiled references to the plaintiff's age -- or so a jury reasonably could find. While the defendant asserts that the reason for the sudden, drastic change in the plaintiff's evaluation was due to Walsh's practice of conducting unannounced evaluations, in contrast to his predecessor's preference to forewarn teachers of any observations, this merely underscores the presence of material issues of fact as to the reasons for the defendant's employment decisions.

In addition, the plaintiff has raised the specter of a discriminatory pattern and practice of forcing out older teachers by placing them on the District's Administrative Regulation 4117.1, only to replace them with younger teachers who, interestingly, command less salaries. In fact, the plaintiff has named ten other teachers within the district who [*286] also were subjected to such treatment, four of whom resigned while on the Regulation remediation plan. Moreover, the plaintiff states that she was replaced with a teacher approximately twenty to thirty years her junior who was entitled to a much lower salary than the plaintiff earned. [**18] This latter assertion also raises a classic factual issue in an age discrimination case.

In sum, the Court concludes that this case is loaded with genuine issues of material fact. For this reason, and in view of the Second Circuit's directive that the plaintiff's burden of establishing a prima facie case in a discrimination suit is "de minimis," Chambers, 43 F.3d at 37, the defendant's motion for summary judgment is denied in all respects.

III. CONCLUSION

For the reasons stated above, it is hereby

ORDERED, that the defendants' motion for summary judgment is denied.

SO ORDERED.

Dated: Uniondale, New York

April 27, 1998
Hon. Arthur D. Spatt
United States District Judge

POINT I

TEACHERS DO NOT HAVE ANY LEGAL OBLIGATION TO IMPLEMENT THE ADVICE OR SUGGESTIONS OF SUPERVISORS AND MAY NOT BE RATED “UNSATISFACTORY” OR OTHERWISE DISCIPLINED, FOR AN ALLEGED FAILURE TO IMPLEMENT SUCH

Throughout the State of New York, teachers are not required to implement advice, recommendations, suggestions, and the like, even if they originate from supervisory personnel. Furthermore, teachers may not be rated “unsatisfactory,” or otherwise disciplined, for an alleged failure to implement such.

On March 6, 1986, Former Commissioner of Education Gordon Ambach determined Appeal of Board of Education of the Orchard Park Central School District (25 EDR 331). Commissioner Ambach stated on page 332:“Absent a violation of an established school rule or a direct order from a supervisor, respondent’s behavior would not constitute neglect of duty. Although petitioner identifies certain provisions of the school building manual as the source of a rule against leaving students to work unsupervised in the hallway, those provisions are expressed in terms of suggestions to teachers rather than directives. Upon careful review of the record, I find that petitioner failed to establish that respondent’s conduct breached any mandatory school rule or directive by a supervisor.”

POINT II

RESPONDENT HAS ADMITTED THAT ELENTUCK V. GREEN WAS A PROPER HOLDING, BUT MISREPRESENTED THE SCOPE OF THE HOLDING

On Page 19 of Respondent’s Memorandum of Law is the statement, “The Court properly held that the observation reports were exempt from production under FOIL pursuant to Public Officers Law § 87(2)(g) because they were intra-agency materials which were not ‘(i) statistical or factual tabulations or data,’ but rather were intra-agency ‘advice, criticisms, evaluations, and recommendations.’ ” However, respondent misrepresented the case as, “In Elentuck, the sole issue before the Court was whether the observation reports sought by the petitioner in that case were within one of the recognized exemptions to the Freedom of Information Law (‘FOIL’).” Respondent did not reveal that Elentuck also involved public access to Chancellor’s Committee reports and other records, and that a voluminous collection of records was being sought, for instance, “all Chancellor’s Committee reports, Education Law §3020-a reports, and ‘unsatisfactory’ lesson observation reports in the possession of Community School District/Board 24.”

POINT III

THE PROFESSIONAL PERFORMANCE REVIEW PLAN USED BY THE NEW YORK CITY DEPARTMENT OF EDUCATION DOES NOT COMPLY WITH §100.2(o)(2) OF THE COMMISSIONER’S REGULATIONS

The undated material, “Teaching for the 21st Century,” submitted by respondent as Exhibit 8, which, significantly, was missing Appendix B in its entirety, and several of the “credit pages,” was promulgated a number of years prior to the passage of §100.2(o)(2). Nonetheless, the material contained the statement on page A8: “A new professional performance review report for New York City public school teachers will replace form BE/DOP 9955B (5/87) and be the official performance review document placed in a teacher’s personnel file.” Clearly, an examination of petitioner’s rating form for the 2003-2004 school year reveals that form BE/DOP 9955B (5/87) is still in use.

POINT IV

PETITIONER’S ORIGINAL “UNSATISFACTORY” RATING AND THE ALLEGED UPHOLDING OF SUCH BY SOMEONE ASSOCIATED WITH CARMEN FARIÑA WAS ARBITRARY, CAPRICIOUS, IRRATIONAL, AND IN BAD FAITH

In Canty v. New York City Board of Education (312 F. Supp. 254), the United States District Court of the Southern District of New York stated:

"The terms 'arbitrary' and 'capricious' embrace a concept which emerges from the due process clauses of the Fifth and Fourteenth Amendments of the United States Constitution and operates to guarantee that the acts of government will be grounded on established legal principles and have a rational factual basis. A decision is arbitrary or capricious when it is not supported by evidence or when there is no reasonable justification for the decision."

No “statistical or factual tabulations or data” or “instructions to staff that affect the public” pertaining to petitioner’s 2003-2004 teaching service were served upon petitioner prior to the U-rating hearing. No “statistical or factual tabulations or data” or “instructions to staff that affect the public” pertaining to petitioner’s 2003-2004 teaching service were presented to petitioner during the U-rating hearing. No “statistical or factual tabulations or data” or “instructions to staff that affect the public” pertaining to petitioner’s 2003-2004 teaching service were presented to Joel I. Klein or Carmen Fariña after the U-rating hearing had concluded, and prior to the November 29, 2004 personalized form letter being generated.

The Commissioner of Education order respondent Klein to vacate Petitioner’s “Unsatisfactory” rating, and to direct that a “Satisfactory” rating be substituted therefor. The Commissioner of Education order the Panel for Educational Policy to take all necessary actions to promptly implement §100.2(o) (2) of the Regulations of the Commissioner of Education.

The Commissioner of Education order the Panel for Educational Policy to revise its By-laws to ensure that employees receive due process at administrative reviews.
The Commissioner of Education order Virginia Caputo to revise the staff manuals of the Office of Appeals and Reviews so that employees and Union officials are accorded, and are properly informed of, due process procedures.
The Commissioner of Education order audits of the Panel for Educational Policy to ensure that §100.2(o)(2) of the Commissioner’s Regulations is being fully complied with, to forward one copy of the report of each audit to the New York State Education Department, and to post the audit reports on New York City’s official Website.
The Commissioner of Education order the Panel for Educational Policy to revise its By-laws to ensure that teachers are furnished a copy of the hearing panel report, and that they be given an appropriate time period to respond in writing, before the report is forwarded to the Chancellor for final decision on the matter.
The Commissioner of Education order respondent Klein to ensure that either he, personally, or his designee, personally, sign decision letters in the future, and that no initialed signatures are permissible.
The Commissioner order the Panel for Educational Policy to develop written procedures guaranteeing that the decision of the Chancellor, or the Chancellor’s designee, is appealable to the full Panel, in a manner reflective of fundamental due process.
An opportunity to present oral argument before the Commissioner.

8. Such other relief as the Commissioner deems just and proper.

CONCLUSION

For the reasons set forth herein, and in petitioner’s verified petition, verified reply, and the exhibits annexed to both, petitioner respectfully requests that the petition be granted and the relief requested therein be granted in all respects.

Dated: May 16, 2005

ED FARRELL

The Commissioner dismissed the Petition:

Appeal of EDMOND FARRELL from action of the New York City Department of Education and Chancellor Joel I. Klein regarding an unsatisfactory rating.

Niki Stanley

Current	NYC Department of Education
Previous	NYC Department of Education,  Time Warner Cable, MediaMind
Education	Coro Leadership New York 24

Current	The Opportunities Project,  Confessions of a Teacher Recruiter,  Savannah Custom Weddings & Elopements
Previous	New York City Department of Education,  Syracuse University, The Princeton Review
Education	New York University

RECRUITMENT CONSULTING:

- Train recruiters on marketing, recruitment and selection best practices
- Create an applicant experience that attracts high quality talent
- Execute targeted branding, marketing and social recruiting campaigns 
- Design data-driven & efficient selection processes
- Coach recruiters & hiring managers on the interviewing process
- Implement recruitment process outsourcing (RPO) models focused on building organizational capacity

We managed a 2 year 900+ hire RPO model for Newark Public Schools sponsored by the Mark Zuckerberg funded Foundation for Newark's Future, and have worked with charter schools nationally. 

CUSTOMER SPECIALTIES:

- Aspiring entrepreneurs
- Women or other individuals underrepresented in their field (e.g., STEM, politics, etc.) 
- New leaders & managers
- Teachers & education professionals

- Large organizations hiring 200+ new employees seeking to scale their approaches
- Small organizations building recruiting infrastructures while conducting their first searches
- Organizations who want to maximize their recruitment department's performance 
- Schools, districts and charter management organizations

Felicia Ramirez

 Summary

NYC DOE Peter Ianniello	Fordham Preparatory School,  Fordham University
Education	Fordham University

Peter Ianniello   eSchool Solutions | Peter Ianniello - NYC Department of Education | SFE Client Testimonial Published on Sep 20, 2012 Peter Ianniello from the NYC Department of Education discusses how the features of SmartFindExpress has helped to mandate their special education paraprofessionals. Learn more about eSchool Solutions teacher absence management programs by visiting our website http://www.eschoolsolutions.com/.     

Experience Executive Director, Human Resources NYC Department of Education December 1997 – Present (17 years 1 month) Director of Advancement Fordham Preparatory SChool January 2004 – December 2007 (4 years) Director of Alumni Systems Management Fordham University October 1987 – December 1995 (8 years 3 months) Managed all aspects of alumni data, gift records and acknowledgments, and reports for both the offices of Development and Alumni Relations as well as other University users.

NYCAPS-at-DOE



Chanette Shaw Chanette Shaw Human Resources Director at NYC Dept. of Education Greater New York City Area Education Management Previous NYC MTA,  T-Mobile Education Long Island University, C.W. Post Campus Experience Human Resources Director NYC Dept. of Education March 2006 – Present (8 years 10 months) Responsible for overall service, management, and coaching of the human resources function to the largest public school system in the country. Specifically focused on sourcing, recruitment, screening and selection, coaching, certification, on-boarding, leaves of absence, separations, and data collection and reporting. (Open)1 recommendation Human Resources Specialist (Consultant) NYC MTA December 2005 – March 2006 (4 months) Managed day-to-day human resources function and counsel within MTA headquarters and field business units covering the following areas: recruiting, benefits, employee and labor relations, employee communications, and employment documentation. Talent Acquisition Consultant T-Mobile April 2005 – December 2005 (9 months) Supported retail client groups by providing HR support in vacancy management, sourcing, and staffing for the Northeast region. (Open)1 recommendation            

As we all know, titles at the NYC DOE are meaningless. Take new OPI employee Harlyn Griffenberg (she is known as Harlyn Griffenberg Greer at OPI).



Harlyn Griffenberg

She used to be the "paralegal", "Disciplinary Investigator", "Secretary" or "Assistant to Gotcha Squad prosecuting Attorney Ian Nikol". When Ian appeared at 3020-a hearings, he used to bring Harlyn along. Now she works at OPI, Office of Personnel Investigations, as an Investigator. During two hearings I watched the two of them laugh, giggle, scribble notes, stare and do whatever would insult the Respondent or people in the room, during the hearing. As I wrote in my previous post, I think this type of behavior is frighteningly inappropriate. I believe she loathes teachers.



At one hearing about 2 years ago I started writing down the time of each disruptive moment. Harlyn wrote, "Betsy is writing about us", and she poked Ian and told him. He laughed, and told her "I don't care."

But he did care. He told the arbitrator at that hearing to order me to stop writing notes. He did not get his wish.

An attorney who worked with Ian at 3020-a hearings told me that he could not believe how theatrical and dismayingly insulting Ian Nikol was to everyone at the hearing. He was furious.

Ian Nikol

Here is Harlyn's LinkedIn page:

Experience

NIKKI Shakespeare, Human Resources Director at the DOE,
Children's Network 602

Current	NYC Department of Education
Previous	Agere Systems,  Lucent Technologies
Education	Teachers College of Columbia University

Experience

Maybe the NYC DOE could hire a proofreader -

I found a job posting approved by Nikki Shakespeare where the word "posting" was jobbled:

Tracy Cooney

Dr. Peter Ianniello

Any teacher who gets a "U" rating on an Annual Professional Performance Review (APPR) and then retires either that school year, or prior to the end of the fifth school year after that, cannot easily obtain a certificate to work as a per diem substitute.

In other words, if retired teachers want to work as per diem subs, they need to have five "S" ratings in a row during their last five years of service.

An exception would be if the teacher can find a principal to "nominate" him/her and then guarantee that the teacher will receive at least ten days of employment as a per diem sub at that school.    
Where did this policy come from?

Here is Peter Ianniello's email to a UFT retiree who is grieving the policy and who will also be appealing a U-rating on an APPR, that was based on a single "unsatisfactory" observation report, issued toward the end of his 30+ year career:

From: Ianniello Peter <PIannie@schools.nyc.gov>To: PerdiemInquiries <PerdiemInquiries@schools.nyc.gov>Cc: RFreiser <RFreiser@uft.org>; JVasquez <JVasquez@uft.org>
Sent: Fri, Nov 30, 2012 8:56 am
Subject: RE: I am in receipt of your attached 11/9/12 form letter in which you declined to process my application for a permanent retiree's Per Diem Certificate for Substitute Teacher assignments.

 Time to re-post my June 5, 2010 post on this blog. Theresa Europe is no longer the Director of the ATU. She was moved to the 7th floor, the tiny room next to Room 730-C right beside the Xerox machine.

In my opinion, if you are being falsely charged, DONT SETTLE.

FIGHT, defend yourself, and bring in as many witnesses as you can, all with subpoenas, so that the Department cannot prove the false claims against you.

Betsy Combier

Suddenly Peter Ianniello doesn't like to be on YouTube as much as I thought. Or, he doesn't want to be on MY blog on YouTube. Or whatever.

Anyway, all of Mr. Ianniello's YouTube appearances are now private.

Peter, we enjoyed watching you describe Department policy!! C'mon, be brave. Put them back out to the public. I guess I will have to file a FOIL request. Below is my former post with the live YouTube videos.

Betsy Combier

NYC DOE Peter Ianniello	Fordham Preparatory School,  Fordham University
Education	Fordham University

Peter Ianniello   eSchool Solutions | Peter Ianniello - NYC Department of Education | SFE Client Testimonial Published on Sep 20, 2012 Peter Ianniello from the NYC Department of Education discusses how the features of SmartFindExpress has helped to mandate their special education paraprofessionals. Learn more about eSchool Solutions teacher absence management programs by visiting our website http://www.eschoolsolutions.com/.     

Experience Executive Director, Human Resources NYC Department of Education December 1997 – Present (17 years 1 month) Director of Advancement Fordham Preparatory SChool January 2004 – December 2007 (4 years) Director of Alumni Systems Management Fordham University October 1987 – December 1995 (8 years 3 months) Managed all aspects of alumni data, gift records and acknowledgments, and reports for both the offices of Development and Alumni Relations as well as other University users.

NYCAPS-at-DOE

LINK

Read more: http://blog.thesingingclassroom.com/post/46195053828/why-does-music-education-matter?fb_ref=Default&fb_source=message#ixzz3LqPBQAQz

When I posted my article about Dr. Peter Ianniello on this blog, with Dr. Ianniello's email address, a former NYC DOE employee contacted him with the letter re-posted below (posted with permission by the author). I have removed the author's name.

The author of this letter to Dr. Ianniello believes that the email was the cause of Dr. Ianniello's removal from public scrutiny all of his YouTube videos. The author of the letter added,

"the people in the bronx, you know, Marcus Escobar and Margaret Borelli (UFT) were no help to me..."

and,

From:           @aol.com>
To: efields <efields@uft.org>
Sent: Sat, Dec 6, 2014 4:33 am
Subject: Fwd: initial 24hr complaint vs MS228X


I might as well throw this in:

Best Practice: Strengthening Human Resourcesin Public School Systems

Dr. Peter Ianniello

Please reply, Dr. Ianniello!

Dr. Ianniello on substitute teachers (removed from the public's view)

On Board Online • December 15, 2014

LINK
The front page of On Board on Nov. 10 contained a short piece about how six of 10 New York students who took the SAT were not at the level that the College Board claims will show readiness for college and careers. But many studies (including one mentioned in the Nov. 24 edition of On Board) have shown that the most important predictor of college success is a student's high school grades, not standardized test scores. As a school board member, teacher and parent, my concern is that our state and nation's focus on test scores feeds the myth that our schools are "failing" (and could easily be manipulated when state officials set cut scores).

More students are graduating high school and attending college than ever before in American history, and the United States remains the world's leader in innovation and an economic powerhouse. Yet, despite these achievements, there are those pushing the panic button over public education in the United States.

Many proponents of the Common Core and other educational reforms say we need to prepare students to compete in a global economy, particularly with "emerging" China. Such international comparisons have been going on for decades, including worries about falling behind the Soviets during the Cold War Era. Alarms have been raised over PISA scores, yet our overall results have remained consistent ever since PISA's inception. When looking at PISA results compared by wealth, American students in schools with low poverty rates are at the top of the international assessment rankings. The real issue is how to improve the achievement of students who grow up in poverty.

While we can disagree about whether there is a crisis, we can all agree that we want to see schools improve, particularly in areas with high poverty rates. Those who favor current education reforms claim that the best way to do that is to use high-stakes testing and have school and educator evaluations based partly on student test scores. The Common Core is married to these assessments and has been implemented as a way to hold states and local districts accountable.

Educators have always tested what they taught. But now what is tested determines what is taught. As long as Common Core testing is tied to school and educator ratings, schools will focus on the tested subjects of ELA and math, neglecting other disciplines.

While there is nothing wrong with the idea of creating a loose set of national educational benchmarks, it should have been done by the right people for the right reasons. The Common Core was primarily created and driven by the testing industry and related non-profit groups. Educator authors Anthony Cody, Mercedes Schneider and Julian Vasquez Heilig have debunked the claim that teachers played a major role in the creation of the Common Core. K-12 educators had little input in the process other than as part of validation groups.

Notably, the validation committees lacked early childhood and special education educators as well as teachers of English language learners. If early childhood experts had been involved in creating the Common Core, we would not be hearing so many concerns about the appropriateness of the standards for our youngest students. A group that wants to restore play to kindergartens and preschools called the Alliance for Childhood has called for the suspension of the Common Core Standards for grades K-3. The group's advisory board includes many prominent professors of education including Linda Darling-Hammond of Stanford, Deborah Meier of New York University and Dorothy and Jerome Singer of Yale.
All students need to be challenged, but the Common Core is an unproven framework that hampers teachers' efforts to diversify instruction for all learners. In the first two years of the Common Core assessments in New York, the achievement gap between white and black students has increased. What about children with learning disabilities or English Language Learners? Will the Common Core leave all of these groups further behind? What will be the impact on graduation rates as students will be required to pass Regents Exams aligned to the Core?

The absence of working K-12 educators in the creation of the Common Core has led to questionable instruction methods in both math and English Language Arts (ELA). As noted on the front page of On Board on Nov. 24, educators are concerned that the Common Core encourages an overreliance on non-fiction and informational text. ELA teachers are also troubled by the approach to fiction. In some modules available on EngageNY, students will spend several grueling weeks "close reading" a novel, frustrating and boring both advanced and struggling readers. Other lessons require only reading an excerpt from a novel - a practice that mirrors test-preparation. As noted in the Chicago Teachers Union's trenchant Common Core Position Paper, students need to find joy in reading, personal connections to previous knowledge and experiences. Boring "canned" readings and excerpts that mirror standardized exams will not inspire a love of reading.

Then there's math. Some of the new standards emphasize learning a visual process of breaking down a mathematical problem that may be helpful to some students. But Common Core math has become more about learning the language of math as opposed to understanding math itself. Many of the new math processes are confusing and take longer than traditional methods to solve problems. On social media, parents who have degrees and are employed in STEM fields have questioned how the new math would apply to their real world job tasks.

Many people ask: If not the Common Core, then what? New York has had excellent standards across various disciplines for years. Gary Stern of the Journal News recently looked at the "lost standards," an effort by actual New York educators to update the Empire State's educational benchmarks. This laudable process to update our standards was tossed aside as the Board of Regents moved towards adopting the Common Core as part of receiving $700 million from the Race to the Top initiative.

How should New York proceed? We should drop the Common Core Standards and revive and continue the progress that created "lost standards," known as the Regents Standards Review and Revision Initiative. The recent completion of the Social Studies Framework shows that quality standards can be created by New York educators who know their students, content, and age-appropriateness of curriculum.

Chris Cerrone is a member of the Springville-Griffith Institute school board, a middle school educator in Hamburg Central Schools and a founding member of New York State Allies for Public Education. This article does not necessarily represent the viewpoints of organizations of which he is a member.

Whistleblower case costs LAUSD a $3.3 million jury award

Now we can prove censorship.

NYCDOE Curbs Public Speaking at Panel Meetings.