Court Says “No” To NYC DOE Injunction That Keeps Teachers With Alleged “Fake” Vax Cards Off Salary

Judge Arlene Bluth made an important precedent-setting decision today in the matter of the 82 teachers who were suddenly removed from salary on April 25, 2022  because the NYC Department of Education “believed” they had submitted fake vaccination cards when told to send proof of vaccination in September 2021 under the Citywide Vaccine Mandate. Why do I say precedent-setting? Because Judge Bluth said STOP to the Board of Education of the City of New York after they blatantly violated public policy, the UFT and CSA contracts, Constitutional rights under the Fourteenth Amendment, Education Law, as well as countless other state and City laws and rules, by placing 82 people off salary because of a “belief” in their guilt.

Imagine the angst of an employee being accused of committing a felony crime and suddenly placed on leave without pay without any proof or any other information, including when you will be able to tell someone you are innocent and get back on salary.

When I first heard about this I did not believe any of it. Also, Education Law 3020 is very clear on the Constitutional rights to due process:

” No person enjoying the benefits of tenure shall be disciplined or removed during a term of employment except for just cause and in accordance with the procedures specified in section three thousand twenty-a of this article or in accordance with alternate disciplinary procedures contained in a collective bargaining agreement.”

This tenure law was created to stop any principal from suddenly terminating anyone for some nonsensical petty reason.

When Mayoral control took over the NYC Department of Education, Mayor Bloomberg rented huge spaces in District offices around the City ( there were 8 all together, in Manhattan, Brooklyn, Queens, Staten Island and the Bronx) where tenured educators charged by their principal or some other person at the DOE were reassigned and suspended WITH pay sometimes for up to 15 years, while awaiting a 3020-a hearing or after being found guilty but not terminated at a hearing. These rooms became what is known as the “rubber rooms”. People sat in these rooms ON SALARY but suspended from their teaching duties.

On April 25, 2022 the NYC Department of Education went a step further, and unilaterally placed 82 teachers on unpaid leave who had received one or two Pfizer vaccine shots at Wild Child in Amityville. Simply and astonishingly, these 82 people seemed to have been picked randomly and found guilty of the same allegation of wrong-doing as the people cited in a sting operation by the Suffolk County DA – see arrest in suffolk County of Julie Devuono – because they went to the place of the crime.

This seems to me to be similar to someone going to a bank to withdraw money, and suddenly robbers arrive and try to rob the bank. The police see the innocent person and make a connection to the robbers, and arrest the person trying to get a withdrawal.

As soon as the April 19 notice of  pending leave without pay on April 25 was received, the UFT General Counsel Beth Norton (pictured above) wrote Liz Vladeck, General Counsel (pictured below) an email letter which basically said, “stop this ridiculousness immediately, and put all people back on salary until a due process hearing has been held.”

Attorney Norton also filed a UFT Notice of Claim

 

A few of the accused teachers wanted to file a Grievance with the UFT, and heard that they could not file a Grievance, but could request a 3020-a (the emails below were sent and received by a teacher in Brooklyn):

Request for Grievance

No UFT member may request a 3020-a, so I’m not sure what Ms. Carte is doing but I am hopeful that she was just trying to be helpful. However, we have no information from Mr. Levine about whether or not he sent the request for the 3020-a to the Office of Legal Services at the DOE.

On May 3 Beth Norton asked Arbitrator Martin Scheinman to intervene, and he agreed. He issued his Scheinman Award June 27 (see below) saying that the Department must put everyone back on salary until “guilt” is established:

“Leave without pay is an unusual outcome. Yet, I decided it was appropriate for employees whose requests for a medical or religious exemption were denied. This is because such employees intentionally decided to disregard the mandate they be vaccinated by September 27, 2021, the date established by Commissioner Chokshi and Mayor de Blasio.

Implicit in such a designation of leave without pay is the individual failed to comply with the vaccine mandate. Here, there is a dispute whether the employees did or did not comply. Without that being assessed, or at least submitting evidence to show a high likelihood of non-compliance, the predicate for placing an employee on leave without pay does not exist.”

The DOE immediately filed an Article 75 Appeal to keep all 82 teachers suspended without pay and without any due process, but on July 8, 2022 NY Supreme Court Judge Arlene Bluth decided the DOE was wrong. The DOE and UFT will have another chance to make their arguments to Judge Bluth on July 19, 2022.

Meanwhile, 30 of the 82 teachers could not wait for the UFT or DOE to give them the relief they desperately needed, to be placed back on salary. They sued the NYC DOE in Kings County Supreme on June 30, 2022. I helped them put the case into the very amazing hands of Attorney Chad Laveglia who I asked to comment on all of this and the Scheinman Award issued June 27. He said,

“These teachers followed every instruction they were given. They uploaded their vaccination cards as required. Seven months later, the DOE had the audacity to send them an email placing them on leave without pay.  Significantly, they did so in abrogation of the due process that these teachers are constitutionally and legally entitled to. Due process protects the innocent from determinations of guilt based on nothing more than the whims of the accuser. The DOE has no basis in fact or law to summarily discipline these teachers. The DOE’s arbitrary and unlawful actions will be rectified in court.”

Chad, I, and all the unfairly suspended teachers are awaiting the next Court date, and we are hopeful that the denial of Law by the DOE will be stopped, and everyone will placed back on salary with back pay and any other relief that is just. and proper – including their jobs back!

See the papers in the Article 75:

Board of Education of the City School District of the City of New York et al v. United Federation of Teachers, Local 2, AFT, AFL-CIO et al

Index No. 451995/2022

PETITION

Vaccine Mandate August 24

April 19 email

Scheinman Sept 10 Award

Declaration of Impasse

UFT April 21 letter

DOE April 22 letter

UFT May 3 letter

DOE May 4 letter

UFT MAY 6 letter

DOE May 10 letter

UFT May 11 letter

Teachers CBA

2018 Memorandum of Agreement

Scheinman Sept 15 Award

DOE-ORDER_TO_SHOW_CAUSE

DOE Affirmation of Good Faith

Proof of Notice to Respondents

UFT MEMORANDUM_OF_LAW

Bluth signed-ORDER_TO_SHOW_CAUSE

STIPULATION of Adjournment

Betsy Combier

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