Challenge to NYS Tenure Survives a Motion to Dismiss

In Davids v. State, ____A.D. 3d____ (1st Dep't. March 28, 2018), Plaintiffs in this consolidated appeal brought an action claiming that the various tenure statutes violate the NYS Consitution Education Article which guarantees students the right to a "sound basic education." The Appellate Division affirmed the lower court decision which refused to dismiss the case. As the court explained:

The Education Article requires the Legislature to provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated'" ... "[S]tudents have a constitutional right to a sound basic education'" (Paynter v State of New York, ..."[A] sound basic education consists of the basic literacy, calculating, and verbal skills necessary to enable children to eventually function productively as civic participants capable of voting and serving on a jury'" (Paynter ..." Fundamentally, an Education Article claim requires two elements: the deprivation of a sound basic education, and causes attributable to the State'" (Aristy...
Here, the Davids plaintiffs allege in their complaint that teachers are a key determinant of the quality of education students receive and have a profound impact on students' lifetime achievement. The Davids plaintiffs allege that students taught by ineffective teachers—those in approximately the bottom five percent of teachers in New York—suffer lifelong problems and fail to recover from this marked disadvantage.

The Davids plaintiffs allege that the statutory scheme which controls the dismissal of teachers in New York and a seniority-based layoff system make it nearly impossible for school administrators to dismiss ineffective teachers. Specifically, the Davids plaintiffs allege that the following statutes pertaining to the dismissal of teachers deprive students of a sound basic education: Education Law §§ 1102(3), 2509, 2573, 2590-j, 3012, 3014, and 3020-a (hereinafter collectively the Dismissal Statutes). They further allege that Education Law § 3013(2), which mandates that teachers with the least seniority be laid off first (i.e., "last in first out"; hereinafter the LIFO Statute), also deprives students of a sound basic education.

The Davids plaintiffs allege that because of the Dismissal Statutes, school administrators are compelled to either leave ineffective teachers in place or transfer them from school to school. This statutory scheme, they allege, inevitably presents a fatal conflict with the right to a sound basic education guaranteed by article XI, § 1 of the NY Constitution because it forces certain New York students to be educated by ineffective teachers who fail to provide such students with the basic tools necessary to compete in the economic marketplace and participate in a democratic society.

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This is a very important decision to watch. I predict the Court of Appeals will grant leave to decide this case and it will ultimately reverse this decision. This is what has happened in other states. see, Vergara v. California Teachers Assoc., ___P.3d___(Ct. App. 2016). See also, Forslund v. State, 2017 Minn. App. Unpub. Lexis 789 (Minn. Ct. of Appeals 2017)(dismissing challenge to state tenure statute). On the other hand, should Plaintiffs prevail in the Court of Appeals (survive the Motion to Dismiss) and ultimately win at trial, this case has to potential to change tenure as we know it.

Retired Employee Looses Tenure Protection

Richardson v. City of New York, ___F. Supp. 2d ___(S.D.N.Y. Feb. 23, 2017), is an interesting case concerning the interaction of a retirement with the right to a hearing. A tenured administrator retired while an OSI disciplinary investigation was still taking place. Several years later, that administrator learned that she was on the invalid list after she applied for a different position. The court held that because the administrator resigned, she had no property interest which would trigger the right to a due process hearing. The plaintiff also did not have a protected "liberty interest". As the court explained:

As regards Richardson's alleged property interest, "there is no constitutionally protected property interest in prospective government employment." See Abramson v. Pataki, 278 F.3d 93, 100 (2d Cir. 2002). Richardson thus cannot allege a deprivation of property resulting from her placement on the Ineligible List. And indeed Richardson does not appear to contest Defendants' argument that she lacks a property interest in her security clearance. The cases cited by Richardson in which a property interest was found arose only in the context of termination of existing employment, not the denial of future employment. See, e.g., Locurto v. Safir, 264 F.3d 154 (2d Cir. 2001); Otero v. Bridgeport Housing Auth., 297 F.3d 142, 151 (2d Cir. 2002).
As regards the deprivation of a liberty interest, Richardson does not adequately allege a "stigma plus" due process violation. See, e.g., Behrend v. Klein, No. 04 Civ. 5413, 2006 WL 2729257, at *7 (E.D.N.Y. Sept. 25, 2006). A stigma-plus claim requires a plaintiff to show (1) a stigmatizing statement that "effectively put[s] a significant roadblock in that employee's continued ability to practice his or her profession," Donato v. Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 631 (2d Cir. 1996); (2) public dissemination of that statement; and (3) that any stigmatizing statements were made in close temporal proximity to the plaintiff's dismissal from government employment. See Segal v. City of N.Y., 459 F.3d 207, 212 (2d Cir. 2006).
Here, Richardson has failed to carry her burden at this stage, as she has not adequately alleged that any potentially stigmatizing description of her conduct was disseminated publicly. She only claims that her security clearance was denied, not that her prospective employer was ever informed of the nature of the charges against her. (Compl. ¶¶ 40-43.) She nowhere alleges that the report of the investigation was made public, or that the DOE's denial of her security clearance entailed the disclosure of the reasons for the denial. See McPherson v. N.Y. City Dep't of Educ., 457 F.3d 211, 216-17 (2d Cir. 2006) (affirming dismissal of a stigma-plus claim where "the reasons for placement on the `Ineligible/Inquiry List' remain confidential, and Plaintiff has provided no evidence suggesting otherwise").
Accordingly, Richardson's due process claim must be dismissed.

Importance of Remorse In Employee Discipline Cases

I bring Matter of Vagianos v. City of New York, ___A.D.3d___(1st Dept. June 13, 2017) to your attention to illustrate an important point.
Most arbitrators and judges are human. If an employee, in this case a tenured teacher, admitted that he made a mistake and showed remorse, he or she may have a better chance of saving his or her job.
In rejecting the argument that dismissal of a tenured teacher shocked the courts conscience, the court stated:

Moreover, petitioner showed neither remorse for his conduct nor any appreciation of its seriousness so as to suggest that he would not engage in similar conduct again (see e.g. Matter of Varriale v City of New York, 148 AD3d 650 [1st Dept 2017]). Indeed, petitioner failed to take responsibility for the misconduct for which he had previously been disciplined, and was not deterred by that discipline from continuing his pattern of inappropriate behavior.

There is of  course, a major problem with showing remorse. That remorse will make a guilty finding very likely. Would the result have changed in this case? We will never know.

As most of you know, there are two issues in employee discipline; guilt and penalty.  If the employee shows remorse, a guilty finding becomes very likely, but it may help him or her with respect to penalty. But, if the employee is truly innocent, he or she cannot show remorse. That Catch 22 is inherent in the process.

Discharge of Tenured Teacher is Sustained, But Could The Teacher Have Done Something Different?

Morales v. NYC Department of Education, ___A.D.3d___(3rd Dep't. May 11, 2017), is an example of a typical decision sustaining the decision of a Education Law 3020-a Hearing Officer which terminated a tenured teacher's employment. I bring the below language to your attention:

The penalty of termination does not shock the court's sense of fairness (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 234 [1974]), given petitioner's teaching deficiencies over the course of three years, the absence of any improvement despite assistance offered by respondent, and her refusal to acknowledge her shortcomings (see Davis, 137 AD3d at 717). (emphasis added).

In my experience most courts and Hearing Officers recognize that teachers and other public employees are human and can make a mistake. Sometimes if they acknowledge their error, a teacher can save her job. Of course, if the teacher or other employee admits to the mistake, they are essentially admitting to the misconduct.

Would the result be different in this case?? We will never know. Also, maybe there was nothing for the teacher to admit to because she did nothing wrong. Maybe the Hearing Officer and the court got it wrong. That happens too. Our system is far from perfect.

Education Law 3020-a Decision Finding of Misconduct Bars Unemployment Insurance

Under New York law, if an employee is terminated for misconduct, they generally are not entitled to unemployment insurance. The issue of what constitutes disqualifying misconduct is often litigated.

Matter of Telemaque v. Commissioner of Labor, ____A.D. 3d___(3d Dep't, 2017), addressed the issue of whether a finding of misconduct by a Education Law Section 3020-a hearing officer is conclusive for purposes of Unemployment Insurance and the court held that it is, reasoning:

 Claimant primarily challenges the Hearing Officer's factual and credibility determinations, and argues that evidentiary errors were made at the disciplinary hearing. It does not appear that claimant appealed that disciplinary determination and her challenges to the merits of that determination may not be raised in this unemployment insurance proceeding. Moreover, the record reflects that claimant was represented by an attorney at the hearing who had the opportunity to present evidence and witnesses and to cross-examine the employer's witnesses, and that claimant testified at length with regard to the charges. As claimant had a full and fair opportunity to litigate the charges of misconduct at that hearing, the Board properly gave collateral estoppel effect to the Hearing Officer's factual determinations. . .