Bad Teacher | For Cause vs. Misconduct | Goose is Cooked

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Bad Teacher – Good Result

Bad Teacher – Good ResultIn Matter of Roberts v. Department of Education of the City of New York, a Court found that the firing a Bronx tenured schoolteacher for what was described as years of abusive behavior toward students and insubordination toward administrators, was not only warranted “but, in fact, necessary.” 45 Misc.3d 1206(A) (Sup. Ct., N.Y. Cnty. 2014).

The petitioner Jason Roberts brought a petition, pro se, pursuant to CPLR Article 7511(b), to vacate a hearing officer’s decision and award pursuant to Education Law § 3020-a, which found just cause to terminate petitioner’s employment with respondent New York City Department of Education (“DOE”). Petitioner sought to vacate the hearing officer’s decision on various grounds, including that the charges against him were not properly brought and that the penalty imposed on him was so disproportionate to the misconduct proven as to shock one’s sense of fairness.

The Court recognized that Education Law § 3020-a limits a court’s review to the grounds set forth in CPLR § 7511: “Under CPLR [§]7511, an award may be vacated only if (1) the rights of a party were prejudiced by corruption, fraud or misconduct in procuring the award, or by the partiality of the arbitrator; (2) the arbitrator exceeded his or her power or failed to make a final and definite award; or (3) the arbitration suffered from an unwaived procedural defect.” Also, the Court found that because “courts consider disciplinary hearings under Education Law § 3020-a to be a form of compulsory arbitration, the hearing officer’s decision and award must have a rational basis and adequate support in the record.”

Based upon this standard, the Court found that the petitioner had “fallen far short of showing that Hearing Officer Javits’ decision and award was irrational. Petitioner’s hearing lasted for 18 days and consisted of testimony from 33 different witnesses who underwent direct examination, and subsequent cross-examination. In weighing the testimony of those witnesses, Hearing Officer Javits balanced the arguments each party made before coming to a conclusion with respect to the validity of each specification.”

Among the serious disciplinary charges against Jason Roberts was taking an asthma pump from a student; blowing a whistle directly into a student’s ear; telling students in his classroom that they could attack another student and break that student’s glasses; passing gas near students’ faces; spitting on a student; shouting words such as “bitch,” “hell to fucking no,” “suck a goat’s ass,” and “white devil” when addressing students, parents, and DOE staff members; and repeatedly threatening violence in P.S. 78, such as telling a fellow teacher in 2010 that, “[d]on’t worry, when bullets fly, I will spare you and your family.” He allegedly told another teacher that “the same knife that cuts the sheep will cut the goat.”

The Court concluded that Roberts was given ample opportunity to answer the allegations about his misconduct in an exhaustive administrative hearing, but failed to cast doubt on the hearing officer’s findings that his dismissal was warranted, and that the evidence of Roberts’ misconduct supporting Javits’ dismissal determination “overwhelming.”

The judge rejected contentions by Roberts that the hearing officer was biased against him, that he was denied his due process and that his dismissal was an overly harsh punishment.

According to the Court, Roberts was able to cite only one example of alleged bias by Javits, when Javits accepted a student’s testimony that Roberts had shot a staple into a student’s arm over the teacher’s denial. The Court concluded that the judgment was within Javits’ discretion as a hearing officer.

A discretion well exercised.

Discharge for Cause Versus Misconduct

Discharge for Cause Versus MisconductIn New York, a discharge for cause is not necessarily a discharge for misconduct. This distinction becomes very important when a former employee seeks unemployment insurance benefits, and was the subject of a recent appeal to the Third Department.

The appellant in In re Jackson was formerly employed as a probationary math teacher for three years. Pursuant to the Education Law, at the end of her three year probationary period, the school district had three options. It could either grant her tenure, terminate the employment or agree to an extension of the probationary term. The district sought to extend her probationary term through a one year extension, subject to the teacher’s execution of an agreement wherein she “waive[ed] any rights, claims or causes of action” related to tenure or the extension of her probationary period. 120 A.D.3d 1503 (3d Dept. 2014).

The teacher refused to sign this statement. She currently had a federal action pending against the district related to sexual harassment and retaliation. Her concern was that her rights in that action would be prejudiced if she executed the agreement, so she refused. As a result, the district terminated her employment. The district also contested her application for unemployment benefits. The district argued that her refusal to sign the agreement “constituted insubordination that rose to the level of misconduct” so as to disqualify her from receiving benefits and the Unemployment Board agreed.

The teacher appealed this determination, and the Third Department reversed. It held that, although “refusing to comply with an employer’s reasonable directive to sign a document can constitute insubordination, and, thus, disqualifying misconduct,” the document must be one that is “necessary to the operation of the employer’s business.” Here, the teacher’s refusal to sign the agreement constituted nothing more than her “declining to enter into a new contract with the employer on its proffered terms.” It had nothing to do with the operation of the school district. The Court noted that her refusal to sign the extension agreement may have been classified as voluntarily leaving her employment — another basis for denial of benefits — but the district did not argue this point. Instead, it argued only that her refusal constituted insubordination.

Moreover, the court found that appellant’s pending sexual harassment and retaliation claim provided her with a “legitimate reason to refuse” to sign. In this case, having a legitimate reason to refuse also rebutted the district’s position that her refusal was disqualifying misconduct. As a result, the Third Department reversed, and the teacher was awarded her unemployment benefits.

One New York Company’s Goose is Cooked – In California

One New York Company’s Goose is Cooked – In CaliforniaIn a U.S. Supreme Court filing in Association des Eleveurs du Quebec v. Harris, 13-1313, our Nation’s highest court recently refused to hear a challenge to a California State law which bans the production and sale of foie gras.

Hudson Valley Foie Gras of Ferndale, N.Y., the largest producer of duck and geese foie gras in the Country, was among the companies challenging the law on the ground that it impeded interstate commerce.

U.S. Constitution, Article. I, Section 8, Clause 3, known as the Commerce Clause, provides:

The Congress shall have the power . . . [t]o regulate Commerce with foreign nations, and among the several States. . . .

By this clause, the power to regulate interstate commerce belongs to the federal government. As argued in the petition, the “Commerce Clause precludes the application of a state statute to commerce that takes place wholly outside of the State’s borders, whether or not the commerce has effects within the State.” Healy v. Beer Institute, 491 U.S. 324, 336 (1989). And “any attempt to directly assert extraterritorial jurisdiction over persons or property would offend sister States and exceed the inherent limits of the State’s power.” Shaffer v. Heitner, 433 U.S. 186, 197 (1977).

The 2004 California law took effect in 2012 and prohibits both the force-feeding of ducks to fatten their livers and the sale of foie gras.

The challenged statute provides in relevant part as follows:

A product may not be sold in California if it is the result of force feeding a bird for the purpose of enlarging the bird’s liver beyond normal size.

Force feeding a bird means a process that causes the bird to consume more food than a typical bird of the same species would consume voluntarily. Force feeding methods include, but are not limited to, delivering feed through a tube or other device inserted into the bird’s esophagus.

In affirming the U.S. District Court’s order, the Ninth Circuit held that “the Commerce Clause allows California to ban wholesome, USDA-certified poultry products from other States and countries — including, here, our NAFTA trading partner, Canada — if the farmers in those places use production methods that the California Legislature forbids to its own.”

The petition presented the Supreme Court with the following question:

Whether the Commerce Clause allows California to impose a complete ban on the sale of wholesome, USDA-approved poultry products from other States and countries — in this case, foie gras — based solely on the agricultural methods used by out-of-state farmers who raise their animals entirely beyond California’s borders.

According to the papers of one “friend of the court” (known as an “Amici Curiae”) “the Ninth Circuit’s decision in this case threatens one of the most basic aspects of free trade in North America. California has every right to dictate the agricultural practices to be used by its own farmers out of concern for the welfare of the farm animals within its borders. But, under the Constitution, it has no business telling farmers in other States — or in provinces in other countries like Canada — how they must feed their livestock as a condition to the sale of the resulting product in interstate and foreign commerce. As the leading representative of the food production sector in Quebec, CTAC is concerned about the harmful effects on trade in agricultural products between Canada and the United States if the Ninth Circuit’s erroneous decision is not reviewed by this Court.”

The California Attorney General Kamala Harris defended the law as being akin to states’ bans on selling horse meat to reflect societal concern over the mistreatment of animals.

In reply, the petitioner argued “Because it affects not just foie gras but everything from fresh eggs to fried chicken, this case raises an issue of paramount national importance in terms of the sovereignty of the States over their own agricultural production in our economic union. Who gets to decide how farmers in New York and Canada may raise their livestock in New York and Canada if they want to continue selling their USDA-approved poultry products throughout all 50 of the United States? Not California.”

For now, it does.

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