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Decision No. 13,160

Appeal of PEARL THOMPSON from a determination rendered by a hearing panel pursuant to Education Law "3020-a concerning charges brought by the Board of Education of Community School District No. 19 of the City School District of the City of New York and from action of the Board of Education of the City School District of New York regarding payment of salary.

Decision No. 13,160

(April 18, 1994)

Hon. Paul A. Crotty, Corporation Counsel, attorney for respondent, Everett Hughes, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals the determination of a hearing panel, convened pursuant to Education Law "3020-a, which found her guilty of certain charges of misconduct and recommended her dismissal. Petitioner also challenges the refusal of the Board of Education of the City School District of the City of New York to pay salary which she claims is owed to her. The appeal must be dismissed.

Petitioner is a tenured teacher employed by the City School District of the City of New York since 1958. During the 1988-89 school year, petitioner was employed as a first grade bilingual teacher at P.S. 290K in Community School District No. 19. On February 9, 1989, the Superintendent of Community School District No. 19 reassigned petitioner to the district office. On April 3, 1989, the Board of Education of Community School District No. 19 found probable cause to prefer charges against petitioner pursuant to Education Law "3020-a. The Chancellor of the City School District of New York suspended petitioner with pay on May 4, 1989. Petitioner was charged with insubordination and neglect of duty in connection with Specifications IA, IB, IC, IIA, IIB, and IIC. Petitioner was also charged with excessive absence and excessive lateness in connection with Specifications IIIA and IIIB. The Board further charged, with regard to all eight specifications, that petitioner had engaged in conduct unbecoming her position and prejudicial to the good order, efficiency, and discipline of the service, and that such conduct constituted substantial cause rendering her unfit to properly perform the obligations of her service.

A hearing panel convened, and a hearing was held over 18 days between March 1, 1990 and March 26, 1991. In a decision dated May 14, 1991, the hearing panel found petitioner not guilty of Specifications IIA and IIIB and guilty of the six other specifications, except that the panel found petitioner not guilty of neglect of duty as it related to Specifications IB. The board panel member dissented without opinion from the finding of not guilty of Specification IIIB and the employee panel member dissented without opinion from the findings of guilt on Specifications IC, IIC and IIIA. The Panel unanimously recommended petitioner's dismissal. Petitioner commenced this appeal on July 15, 1991.

Before I review the determination of the hearing panel, I will address petitioner's claims that the Board of Education of the City School District of New York failed to pay all salary due in the 1988-89, 1989-90, and the 1990-91 school years and that she was illegally assigned to the community school district's main office on February 9, 1989. Petitioner's claims of nonpayment of salary in the 1988-89 and 1989-90 school years and the reassignment on February 9, 1989 are untimely. Petitioner commenced this proceeding on July 15, 1991, over two years after the close of the 1988-89 school year and one year after the close of the 1989-90 school year. An appeal to the Commissioner of Education must be instituted within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause. The reasons for the delay must be set forth in the petition (8 NYCRR "275.16). Petitioner offers no explanation for the lengthy delay in challenging respondent's alleged nonpayment of salary or respondent's reassignment of petitioner to the district office in 1989. Accordingly, I find these claims to be untimely.

Although petitioner's claim regarding salary in 1990-91 is timely, it is nevertheless precluded by the doctrine of election of remedies. Petitioner brought a grievance on January 17, 1991, pursuant to the terms of a collective bargaining agreement. To the extent that petitioner seeks a review of a dispute involving her rights under a collective bargaining agreement that was previously submitted for resolution through the contractual grievance procedure, I am unable to address those same issues in this forum (Matter of Board of Education, Commack Union Free School District v. Ambach, et al., 70 NY2d 501 522 NYS2d 831 [1987]; Appeal of Perri, 30 Ed Dept Rep 277).

With respect to the merits of petitioner's appeal, petitioner claims that she was disadvantaged by lack of counsel at the March 25 and 26, 1991 hearings. Petitioner and her attorney received notice of both hearing dates. Although tenured employees are entitled to be represented by counsel in "3020-a proceedings (Education Law "3020-a[3][c]), they may waive such rights. The record reveals that petitioner voluntarily decided to proceed without legal counsel on the dates in question, despite being cautioned against this by the employee member of the "3020-a panel. In any event, where the right of counsel is created by statute, lack of counsel "[does] not affect the validity of the hearing unless the claimant demonstrates prejudice or unfairness in the proceeding" (Alvarez v. Bowen, 704 F.Supp. 49 [1989], quoting Heisner v. Secretary of Health, Education and Welfare, 538 F2d 1329 [1976]; Appeal of Tranberg, 32 Ed Dept Rep 34). Alter reviewing the record, I find that petitioner was given ample opportunity to present her case and that the panel chairperson conducted the hearing properly and fairly, ensuring that the record was fully developed (Alvarez v. Bowen, supra). Thus, petitioner has not shown prejudice or unfairness to demonstrate a violation of due process.

Petitioner makes a number of other allegations: that her suspension was not duly authorized because the May 4, 1989 letter of suspension was not signed by the Chancellor, but was forged; that the charges brought against her were not authorized by the Board of Education of Community School District No. 19; and that such charges constitute retribution by the principal of P.S. 290K for a human rights complaint petitioner filed against the principal in 1984. I have reviewed each allegation and find that petitioner has not proved them by a preponderance of evidence in the record. Accordingly, they must be dismissed.

I now turn to the hearing panel's findings. Specifications IA concerns petitioner's conduct during a math training conference on October 7, 1988. The record shows that petitioner arrived at the conference 15 minutes late and turned around, refusing to face the other participants at the table. In addition, petitioner interrupted the conference, not permitting the trainer to make his presentation. When the assistant principal asked petitioner to be quiet, petitioner continued to interrupt. Petitioner admits that when the assistant principal advised her that she was being insubordinate, she replied, "How can I be insubordinate to another teacher." Petitioner's behavior during the math training conference was improper. Accordingly, I concur with the Panel's determination of guilt on this specification.

Specification IB concerns a letter dated October 8, 1988 and allegedly sent by petitioner to the assistant principal, which states:

You don't belong in here, according to Affirmative Action Plan of the U.S. government.


J. Glicker:

Cease and desist your interferances (sic). Stay out of my face. Don't say anything to me.

I challenge you to make a directive for all of the whites, telling them, exactly, as you told me, the procedure that they should follow (calling the office, etc.) whenever they want to urinate, during class time. I bet you won't, because you are not just a coward, but also a common sissy who "picks" on little black women. You are also a two-faced liar, fake, and phony, who is interfering with me because of the grievance that I filed against R. Cohen, years ago 1984.

If you think that you can continue to disturb my peace forever, just hear this: I keep an umbrella in my purse for my protection.

Last Tuesday I was so damn furious about your punk interferances (sic) that I stayed home. I was not sick. You made me miss a day's work.



Now it isn't Cohen who is maintaining the prejudice in the school, its you, you bastard. Never before in the history of my career has any man in this school system ever spoken down to me scolding, and criticizing. You have been doing this every damn day since Sept. I am going to pay you back for everything myself. I am not reporting you. I am the one who will fix your grits--all by myself--Bastard.

(Emphasis in the original)

Petitioner admits that she wrote the P.S. portion of the letter but states that she did not write all portions of the body of the letter. She states that the body of the letter is "padded." In addition, petitioner states that the body of the letter was not intended for the assistant principal, and she does not know how he obtained it. However, petitioner also admits to writing the letter on October 8, 1988, and that the handwriting in the letter and the signature in the letter appear to be hers.

The credible evidence indicates that petitioner wrote the letter and transmitted it to the assistant principal. The letter speaks for itself and represents clear misconduct as charged: insubordination, conduct unbecoming her position, and substantial cause that renders petitioner unfit to perform her obligations to the service. However, I agree with the hearing panel that such conduct does not constitute "neglect of duty" as that charge is commonly understood.

Specification IC concerns the dismissal of petitioner's class on November 10, 1988. Petitioner delayed dismissal because a student's notebook was missing. Petitioner refused to dismiss her class when directed to do so by the assistant principal. The assistant principal was forced to dismiss the class because parents who were waiting for their children were being unduly delayed. Thereafter, petitioner shouted at the assistant principal in front of other staff, "Don't you ever interfere with me again. You would not do it to a white teacher." Based upon these facts, I concur with the Panel's finding of guilt on this specification.

Specification IIA concerns petitioner's noncompliance with dismissal procedures of P.S. 290K on October 24, October 27, and December 21, 1988. Such procedures require the teacher to escort students outside of the building to a school gate. I agree with the hearing panel that there is a lack of documentation concerning petitioner's alleged noncompliance with established procedures. Accordingly, I find petitioner not guilty of this specification.

Specification IIB concerns an incident at dismissal time on December 21, 1988. Petitioner did not escort her first grade class outside the building as required. An assistant principal observed one of petitioner's students leaving the building bleeding profusely from his forehead. The assistant principal returned the student to the building and found petitioner in the gymnasium. He directed petitioner to accompany the student to the main office while he supervised dismissal of the remaining students. When he returned to the office, he heard petitioner commenting that the child will die if they don't get help soon. Petitioner was chastised by a secretary for frightening the child, to which she responded that the student doesn't understand English anyway. After the assistant principal asked petitioner how she could dismiss a child in that condition, petitioner, placing her two hands against the assistant principal's chest, pushed him at least twice, causing him to step backwards. The assistant principal summoned the police. Although petitioner admits that she touched the assistant principal during this exchange, she does not admit that she pushed him. However, two witnesses present at the time, a teacher and the payroll secretary, verified that petitioner pushed the assistant principal. On this record, I affirm the Panel's finding of guilt on specification IIB.

Specification IIC states that after October 24, 1988, petitioner refused to hand in her lesson plan book to the principal, as required. Teachers of kindergarten through grade two at P.S. 290K are required to submit lesson plans to the principal every two weeks. When petitioner did not submit lesson plans, the principal wrote petitioner requesting them--every two weeks after October 24, 1988. Petitioner admits that she did not submit lesson plans to the principal because she was angry at the principal and because she believes that the principal on one occasion handed back her lesson plans in a demeaning way. Petitioner's rationale for her behavior is unacceptable. Petitioner did not comply with a reasonable request of supervisory staff designed to ensure that students are receiving an appropriate education. Accordingly, the Panel correctly found petitioner guilty of this specification.

Specification IIIA states that petitioner was excessively absent. Between October 4, 1988 and March 21, 1989--a little over five months--petitioner was absent on 32 days, including 26 days after February 9, 1989. Petitioner does not deny being absent on the specified days. Petitioner instead states that she was absent four times prior to February 9, 1989 because she was upset about how the assistant principal was treating her. Petitioner states that she was absent after February 9, 1989 because she was reassigned to the district office and given nothing to do. If petitioner felt aggrieved by the reassignment, however, she could have filed a union grievance or an appeal pursuant to Education Law "310. Petitioner did neither. Petitioner's action in absenting herself from work because she felt aggrieved was improper, as was her absenteeism due to being upset with the assistant principal. Therefore, I affirm the Panel's finding of guilt on this specification.

Specification IIIB states that petitioner was excessively tardy. Between October 12 and January 26, 1989, petitioner was late to work on 10 days. Petitioner provided an adequate explanation for 7 of the 10 days of tardiness. Accordingly, I agree with the hearing panel that a pattern of excessive tardiness has not been established in the record. Thus, the Panel properly found petitioner not guilty of this specification.

I turn now to the issue of penalty. The hearing panel unanimously recommended petitioner's dismissal. I find that recommendation reasonable based upon the record before me. Petitioner has evidenced an unwillingness to cooperate with her supervisors and take reasonable direction from them. Petitioner's conduct in two instances--transmitting a pejorative, threatening letter to the assistant principal on October 8, 1988 and pushing the assistant principal on December 21, 1988--are examples of particularly egregious conduct, in which petitioner chose to vent her anger over disagreements with her supervisors in an unprofessional, inappropriate and potentially dangerous manner. It is evident from the record that petitioner perceives herself to be persecuted by her superiors and by what she perceives as a series of illegal actions on the part of the city school district. Rather than being content with challenging these actions through contractual grievance proceedings, administrative appeals or judicial proceedings, petitioner has responded by engaging in a pattern of insubordinate and unprofessional conduct and by repeatedly failing to report to work. Her behavior demonstrates that she is unwilling or unable to control her anger and comply with the direction of her supervisors without engaging in misconduct. However, wronged petitioner believes herself to be, that does not justify her misconduct in this case, particularly her assault on a supervisor.

To impose the penalty of dismissal, charges pursuant to Education Law "3020-a must be substantial and substantiated (Appeal of Cuoco, 31 Ed Dept Rep 95; Appeal of Community School District No. 21 of the Board of Education of the City School District of the City of New York, 29 id. 299). On the record before me, I find that this standard has been met, and dismissal is the appropriate penalty.